EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0804851
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.
Moffat Pty Limited applied for a TCO in respect of certain meal delivery systems on 21 April 2008.
Instrument
TCO No 0804851 was made on 11 July 2008. It declares that those certain meal delivery systems 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. 0804851 is taken to have come into force on 21 April 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. 0804851, enacted in 2008 under the Customs Act 1901, addresses the issue of applying lower customs duty rates to specific imported goods, in this case, certain meal delivery systems, provided that no substitutable goods are produced in Australia. The instrument was introduced to facilitate tariff concessions for such goods, ensuring that importers of these items benefit from reduced duty rates. The instrument was issued by the Chief Executive Officer of Customs, following the application by Moffat Pty Limited and subsequent approval based on the criteria set out in the Customs Act 1901. The policy objective of this instrument is to provide a streamlined process for tariff concessions, enhancing trade efficiency and benefiting importers by reducing their customs duty liabilities for the specified goods.
Scope and Application
The Tariff Concession Instrument No. 0804851 under the Customs Act 1901 applies to goods specified in a Tariff Concession Order (TCO) made by the Chief Executive Officer of Customs. Specifically, it applies to certain meal delivery systems for which Moffat Pty Limited applied and received approval. This instrument sets forth a concession that reduces the rate of customs duty from the general rate of 5% to a free rate for these specified goods. The application of the Act is confined to the Commonwealth jurisdiction and affects the import of these goods into Australia. The instrument does not apply to goods specified in section 269SJ of the Customs Act, which cannot be subject to a TCO, and excludes any substitutable goods produced in Australia. The instrument’s scope is further defined by its exclusion of any pre-existing rights or liabilities of persons other than the Commonwealth, ensuring that no existing duties or rights are adversely impacted by the concession. The instrument came into effect on 21 April 2008, the date the application was lodged, and allows importers of the specified goods to apply for a refund of duty from that date.
Key Provisions
The Tariff Concession Instrument No. 0804851 under the Customs Act 1901 applies a zero rate of customs duty to certain meal delivery systems, as declared in item 50 of Schedule 4 to the Customs Tariff Act 1995 (section 269P(3)). This concession was granted based on the Chief Executive Officer of Customs (CEO) being satisfied that no substitutable goods were produced in Australia at the time the application was lodged (section 269C). The general rate of duty on these goods is 5%, but the concession reduces it to free. The application for the tariff concession order (TCO) was submitted by Moffat Pty Limited on 21 April 2008, and the TCO came into effect on the same date (subsection 269S(1)).
The CEO is required to consider applications for TCOs under section 269F of the Act, ensuring they do not pertain to goods specified in section 269SJ, which are ineligible for TCOs. If an application meets the core criteria, including the absence of substitutable goods produced in Australia, the CEO must make a written TCO order (section 269P(3)). The CEO must also publish a notice in the Gazette, inviting any interested parties to submit objections if they believe the TCO should not proceed (subsection 269K(1)). In this instance, no objections were received.
Entities and individuals governed by the Act, particularly those who might be eligible for tariff concessions, must ensure their applications meet the statutory criteria, including proving the absence of substitutable goods produced in Australia (section 269C). Importers who qualify for the concession can apply for duty refunds on goods imported since the TCO's effective date, under paragraph 126(1)(r) of the Regulations. Additionally, the CEO is mandated to handle applications promptly and transparently, ensuring all relevant parties have the opportunity to be heard.
Breaches of the provisions outlined in the Customs Act 1901 may result in various legal consequences. While the explanatory statement does not specify particular offences or penalties related to TCO applications, general provisions within the Act could apply. For instance, any fraudulent application or misrepresentation of facts could lead to criminal charges, with potential penalties including fines and imprisonment. Additionally, failure to comply with the Act's requirements might incur administrative penalties, although the specifics are not detailed in the provided text.