EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0800042
Customs Act 1901
Background
Part XVA of the Customs Act 1901 (the Act) sets out a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs (the CEO). A lower rate of customs duty applies to goods that are the subject of a TCO.
Under section 269F of the Act, a person may apply to the CEO for a TCO in respect of goods. If the CEO is satisfied that the application is not in respect of goods specified in section 269SJ of the Act, which sets out those goods that cannot be subject to a TCO, the CEO must decide whether the application meets the core criteria.
Section 269C of the Act provides that a TCO application meets the core criteria if, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269B of the Act provides that ‘goods produced in Australia’ has the meaning given by section 269D, ‘ordinary course of business’ has the meaning given by section 269E and ‘substitutable goods’ in respect of goods the subject of a TCO application, means goods produced in Australia that are put, or are capable of being put, to a use that corresponds with a use (including a design use) to which the goods the subject of the application can be put.
Subsection 269P(3) of the Act provides that if the CEO is satisfied that a TCO application meets the core criteria, the CEO must make a written order (a TCO) declaring that the goods the subject of the TCO application are goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) specified in the order applies.
Aldi Stores applied for a TCO in respect of certain disposable pants on 02 January 2008.
Instrument
TCO No 0800042 was made on 14 March 2008. It declares that those certain disposable pants are goods to which item 50 of Schedule 4 to the Tariff applies since the CEO was satisfied that no substitutable goods were produced in Australia. The general rate of duty on these goods is 5%. The rate of duty for the goods subject to the TCO is free.
Consultation
Subsection 269K(1) of the Act provides in part that as soon as practicable after accepting a TCO application as a valid application, the CEO must publish a notice in the Gazette which includes an invitation to any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO. The CEO did not receive any submissions in response to this invitation.
Commencement
Subsection 269S(1) relevantly provides that a TCO is to be taken to have come into force on the day on which the application for the TCO was lodged. TCO No. 0800042 is taken to have come into force on 02 January 2008.
The TCO does not affect the rights of a person (other than the Commonwealth) as at the date of registration so as to disadvantage that person or impose liabilities on a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of registration. The rights of importers will be beneficially affected. Under paragraph 126(1)(r) of the Regulations, importers of such goods will be able to apply for a refund of duty on goods imported since the day on which the TCO is taken to have come into force. The TCO does not impose any liabilities on any person.
Overview
The Tariff Concession Instrument No. 0800042, enacted in 2008, amends the Customs Act 1901 to address the need for tariff concessions on specific goods. This instrument, introduced by the Australian Government through the relevant legislature, aims to facilitate the importation of goods by providing tariff relief under certain conditions. The policy objective is to ensure that the application of customs duty is fair and considers the availability of substitutable goods produced in Australia. In this particular case, the Instrument was enacted following an application by Aldi Stores for a tariff concession on certain disposable pants, reflecting the broader aim of reducing customs duty on goods where no domestic substitutes exist, thereby potentially benefiting importers and consumers.
Scope and Application
The Customs Act 1901 applies to any person or entity involved in the importation of goods into Australia, particularly those seeking tariff concessions. The Act allows the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) for goods where certain criteria are met, such as the absence of substitutable goods produced in Australia. These TCOs can lower or eliminate customs duty on specified goods, as seen in the case of disposable pants for which Aldi Stores applied for and received a concession. The geographic reach of the Act is national, affecting all importers across Australia, while the application process is overseen by the Commonwealth. Exclusions apply to goods specified in section 269SJ of the Act, which cannot be subject to a TCO. The Act’s application may be extended or restricted through subordinate instruments, ensuring flexibility in administration and enforcement.
Key Provisions
The Tariff Concession Instrument No. 0800042 under the Customs Act 1901 provides a framework for the application and granting of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). The key provision of this instrument is found in section 269F, which allows for the application of a TCO for goods. According to section 269C, for a TCO to be granted, the CEO must be satisfied that the goods in question are not substitutable by goods produced in Australia and that the application meets the core criteria specified in section 269D. Once these criteria are met, the CEO must issue a written TCO as outlined in section 269P(3).
The obligations under this Act are primarily placed on the applicant, who must ensure their application complies with the core criteria. The CEO has the responsibility of verifying the application’s validity and ensuring no substitutable goods are produced in Australia. Additionally, the CEO must publish a notice in the Gazette, as required by subsection 269K(1), inviting submissions from any interested parties. However, in this instance, the CEO did not receive any submissions, indicating no objections to the proposed TCO.
Failure to comply with the provisions of the Customs Act 1901 can lead to various legal consequences. While the explanatory statement does not detail specific offences under this particular TCO, breaches of the Customs Act in general can result in both civil and criminal penalties. Civil penalties may include fines, and criminal penalties could result in imprisonment, depending on the severity of the breach. The maximum penalties for breaches of customs legislation can vary widely, but they are generally set out in other sections of the Act or related regulations. It is important to note that the TCO itself does not impose any new liabilities on individuals or entities, but rather modifies the duty rates for specific goods.