EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0801913
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.
Acorn Stairlifts Pty Limited applied for a TCO in respect of certain stairway chairlifts parts on 01 February 2008.
Instrument
TCO No 0801913 was made on 11 April 2008. It declares that those certain stairway chairlifts parts 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. 0801913 is taken to have come into force on 01 February 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 Customs Act 1901, enacted by the Parliament of Australia, provides a framework for the regulation of customs duties and other charges. To address specific economic needs and policy objectives, such as fostering industry growth and ensuring fair competition, the Act allows for the creation of Tariff Concession Orders (TCOs) through Part XVA. This instrument allows the Chief Executive Officer of Customs to grant tariff concessions on certain goods, provided that no substitutable goods are produced in Australia and the application meets the core criteria. This legislative framework was designed to benefit specific industries by reducing customs duty rates, thereby enhancing their competitiveness. The TCO mechanism ensures that applications are assessed fairly, with an opportunity for public consultation, and that the rights of existing parties are not adversely affected by the concessions granted.
The Tariff Concession Instrument No. 0801913, introduced under this legislative framework, addresses a specific application by Acorn Stairlifts Pty Limited for certain stairway chairlifts parts. The instrument declares that these parts are subject to a free rate of duty under item 50 of Schedule 4 to the Customs Tariff Act 1995, effective from the date of the application. This concession was granted after satisfying the core criteria and following a period of public consultation with no objections received. The instrument aims to benefit the industry by lowering the tariff on these specific goods, thereby supporting its growth and competitiveness.
Scope and Application
The Customs Act 1901, as specified by Tariff Concession Instrument No. 0801913, pertains to the application of Tariff Concession Orders (TCOs) for particular goods, in this instance, stairway chairlifts parts. This Act applies to individuals or entities that seek tariff concessions for goods that are not currently being produced in Australia in the ordinary course of business and that have no substitutable goods available domestically. The geographic reach of this Act is national, as it applies under the jurisdiction of the Commonwealth. The Act allows for the exclusion of certain goods that cannot be subject to a TCO, as specified in section 269SJ. The application of the Act may extend or be restricted through subordinate instruments, although this particular instance does not indicate any such extensions or restrictions. The Tariff Concession Instrument No. 0801913 was made on 11 April 2008, and it came into force on the day the application was lodged, 1 February 2008. The instrument ensures that the rights of persons other than the Commonwealth are not adversely affected and that no new liabilities are imposed on any person as a result of the concession.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0801913 under the Customs Act 1901 (the Act) are sections 269C, 269F, 269P, and 269SJ. Section 269F allows for the application of a Tariff Concession Order (TCO) by a person to the Chief Executive Officer of Customs (the CEO). If the CEO determines that the application meets the core criteria as outlined in section 269C and that the goods are not specified in section 269SJ, a TCO is to be made under section 269P. The instrument, TCO No. 0801913, declares that the specified stairway chairlifts parts are subject to a tariff concession, applying item 50 of Schedule 4 to the Customs Tariff Act 1995, thereby reducing the duty from 5% to free.
The Act imposes several obligations on the parties involved. The CEO is required to assess whether an application for a TCO meets the core criteria, particularly if no substitutable goods are produced in Australia in the ordinary course of business (section 269C). The CEO must also publish a notice in the Gazette inviting submissions from any interested parties once an application is accepted as valid (subsection 269K(1)). Additionally, Acorn Stairlifts Pty Limited, as the applicant, must ensure that their application provides sufficient information and evidence to satisfy the CEO that the goods qualify for a TCO.
Failure to comply with the requirements of the Act or the terms of a TCO can result in various consequences. While specific offences are not detailed in the explanatory statement, breaches of customs regulations generally can lead to civil and criminal penalties. Civil penalties may include fines, and in more severe cases, criminal penalties can apply, potentially leading to imprisonment. The maximum penalties would depend on the specific breach and the relevant provisions of the Customs Act 1901 and associated regulations. The TCO itself does not impose any liabilities on any person but provides a benefit to importers by potentially allowing them to apply for a refund of duty on goods imported since the TCO came into force (paragraph 126(1)(r) of the Regulations).