EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0803412
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.
Convenience Food Systems International B.V applied for a TCO in respect of certain convenience food die set on 29 February 2008.
Instrument
TCO No 0803412 was made on 16 May 2008. It declares that those certain convenience food die sets 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. 0803412 is taken to have come into force on 29 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 Tariff Concession Instrument No. 0803412 was enacted in 2008 under the Customs Act 1901, to provide tariff concessions for certain goods. This instrument was introduced to address the need for facilitating trade by reducing the customs duty on specific imported goods, thus encouraging their importation into Australia. The Customs Act 1901 empowers the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) for goods that meet certain criteria, such as not having substitutable goods produced in Australia. The Tariff Concession Instrument No. 0803412 was made in response to an application by Convenience Food Systems International B.V for tariff concessions on certain convenience food die sets. The instrument declares that these goods are subject to a 5% duty rate instead of the general rate, which is free of charge. The policy objective of this legislation is to ensure that the tariff concessions do not adversely affect the rights of any person other than the Commonwealth and to provide benefits to importers by allowing them to apply for refunds of duty on goods imported since the TCO came into force.
Scope and Application
The Tariff Concession Instrument No. 0803412 under the Customs Act 1901 applies to entities or individuals who import certain convenience food die sets, as specified by the instrument. The instrument grants tariff concessions, effectively reducing the customs duty rate for these goods from the general rate of 5% to free, provided that the application for the concession meets the core criteria outlined in the Act. The scope of this instrument is limited to goods that are not substitutable by any goods produced in Australia in the ordinary course of business. The instrument's jurisdiction is national, applying across Australia. The process involves an application to the Chief Executive Officer of Customs, who must ensure that the application does not pertain to goods excluded by section 269SJ of the Act and that it satisfies the core criteria stipulated in section 269C. The instrument came into effect on the date the application was lodged, which is 29 February 2008. It does not affect any existing rights of persons other than the Commonwealth, nor does it impose any liabilities on individuals or entities. The instrument may be further extended or modified through subordinate instruments as required.
Key Provisions
The main operative sections of this legislation include section 269C, which stipulates that a Tariff Concession Order (TCO) application meets the core criteria if no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged (s 269C). Section 269P(3) mandates that if the Chief Executive Officer (CEO) is satisfied that the application meets these criteria, they must make a written order declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (s 269P(3)). Additionally, section 269K(1) requires the CEO to publish a notice in the Gazette inviting submissions from any person who considers that there are reasons why the TCO should not be made (s 269K(1)). These sections collectively govern the process for applying for and granting tariff concessions for specific goods.
The obligations imposed by the Act on the parties include the requirement for applicants to ensure that their applications meet the core criteria outlined in section 269C, specifically that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. The CEO is obligated to make a decision on the application based on whether it meets the core criteria and to publish a notice in the Gazette inviting submissions if the application is accepted as valid. Importers of goods that become subject to a TCO are entitled to apply for a refund of duty on goods imported since the TCO is taken to have come into force, as per paragraph 126(1)(r) of the Regulations. The CEO must also consider any submissions received in response to the Gazette notice before making a final decision on the application.
Failure to comply with the provisions of the Customs Act 1901 may result in various consequences. Although the explanatory statement does not detail specific offences, penalties, or civil/criminal consequences for breach, breaches of the Act could potentially result in legal action. Under Australian law, breaches of customs regulations can lead to fines and other penalties. However, the maximum penalties are not specified within this explanatory statement. Importers who fail to comply with the refund of duty provisions could be subject to civil penalties for non-compliance. It is essential for all parties involved to adhere to the requirements of the Act to avoid any potential legal repercussions.