EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0809129
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.
Enviroballs Australia applied for a TCO in respect of certain washball on 21 May 2008.
Instrument
TCO No 0809129 was made on 08 August 2008. It declares that those certain washball 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. 0809129 is taken to have come into force on 21 May 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 was enacted by the Commonwealth Parliament to provide a comprehensive framework for the regulation of imports and exports in Australia, including the imposition of customs duties. The Act aims to facilitate international trade while protecting domestic industries and generating revenue for the government. The Tariff Concession Instrument No. 0809129, made under the Customs Act, addresses the problem of potentially uncompetitive Australian industries by allowing the Chief Executive Officer of Customs to grant tariff concessions on certain goods. This instrument was introduced to ensure that Australian businesses are not at a disadvantage when competing with imported goods by providing them with reduced customs duties. The policy objective is to support the competitiveness of Australian industries by mitigating the impact of customs duties on specific goods, thereby promoting fair trade practices and protecting local producers.
Scope and Application
The Tariff Concession Instrument No. 0809129, made under the Customs Act 1901, applies to specific goods, in this instance certain washballs, and pertains to the reduction of customs duty for these goods when imported into Australia. This legislation facilitates the concession of tariff rates by the Chief Executive Officer of Customs, who must ensure that the goods in question are not substitutable by any goods produced in Australia in the ordinary course of business. The scope of the Act is national, operating within the framework set by the Customs Act 1901 and the Customs Tariff Act 1995. The instrument was made on 8 August 2008 and is effective from 21 May 2008, the date the application for the tariff concession was lodged. It does not affect the rights of any person other than the Commonwealth and does not impose any liabilities on individuals or entities, ensuring that it only benefits the rights of importers who may apply for a refund of duty on goods imported since the effective date of the concession. The Act allows for further regulation and application through subordinate instruments, which may provide additional detail or specific conditions under which the tariff concessions apply.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0809129 under the Customs Act 1901 (section 269F) allow for the application of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO) to reduce the rate of customs duty on certain goods. This particular TCO, No. 0809129, applies to certain washballs and sets their duty rate at free, as opposed to the general rate of 5% (section 269P(3)). This concession is effective from the date the application was lodged, which was 21 May 2008 (subsection 269S(1)).
The obligations imposed by this Act primarily rest on the CEO of Customs, who must consider applications for TCOs, determine whether they meet the core criteria, and make a written order if satisfied (section 269C). The CEO must also publish a notice in the Gazette inviting submissions from interested parties (subsection 269K(1)). In this case, the CEO received no submissions in response to the published notice.
Any breaches of the requirements set forth in the Customs Act 1901 can lead to various civil or criminal consequences. For instance, if an entity fails to comply with the terms of a TCO or provides false information in an application, it may face legal action. Penalties for such offences can include fines and, in severe cases, imprisonment. However, the specifics of penalties are not detailed in the explanatory statement but would typically be found in the relevant sections of the Customs Act 1901 or associated regulations.
The TCO ensures that the rights of persons other than the Commonwealth are not adversely affected by its implementation (subsection 269S(2)). Specifically, it does not impose any liabilities on any person and allows importers to apply for a refund of duty on goods imported since the effective date of the TCO (paragraph 126(1)(r) of the Regulations). This legislative instrument aims to provide a clear, effective pathway for tariff concessions while ensuring that existing rights and obligations are not compromised.