EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0809733
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.
DIC Australia applied for a TCO in respect of certain printing ink coloured on 23 May 2008.
Instrument
TCO No 0809733 was made on 08 August 2008. It declares that those certain printing ink coloured 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. 0809733 is taken to have come into force on 23 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 Australian Parliament to regulate the import and export of goods into and out of Australia, among other things. It established a framework for the imposition of customs duties and provided for the making of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. The Act was designed to address the need for a streamlined and efficient process for granting tariff concessions on certain goods, thereby facilitating trade and supporting industry development. Tariff Concession Instrument No. 0809733, made under the authority of the Customs Act 1901, was introduced to provide tariff concessions on specific printing ink coloured, following an application by DIC Australia on 23 May 2008. The policy objective of the instrument is to ensure that the tariff concession does not disadvantage any person and allows for the refund of duties to importers of the specified goods since the instrument's effective date.
Scope and Application
The Customs Act 1901, through Part XVA, provides a framework for the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This legislative mechanism allows for the reduction or exemption of customs duties on specific goods, provided that certain criteria are met. A person may apply for a TCO in respect of goods, and if the CEO determines that the application is valid and meets the core criteria, a TCO is issued. Specifically, a TCO application is considered valid if, on the day the application is lodged, no substitutable goods are produced in Australia in the ordinary course of business. The application process includes a mandatory publication in the Gazette, inviting any interested parties to submit objections if they believe the TCO should not be granted. In this particular case, TCO No. 0809733, concerning certain printing ink coloured, was made on 8 August 2008, following an application by DIC Australia on 23 May 2008, and became effective from the date of the application. This order sets the rate of duty on the specified goods to free, down from the general rate of 5%. The TCO does not impact existing rights or liabilities, and it potentially benefits importers by allowing them to apply for a refund of duties paid on goods imported since the TCO's effective date.
Key Provisions
The Customs Act 1901 (the Act) allows for the creation of Tariff Concession Orders (TCOs) under section 269F, which provide for a lower rate of customs duty on specified goods. If a TCO application is made and the Chief Executive Officer of Customs (the CEO) determines that it meets the core criteria set out in section 269C, the CEO must make a written order declaring the goods to which the TCO applies. In this instance, TCO No. 0809733, made on 08 August 2008, declares that certain printing inks coloured are subject to a free rate of duty, down from the general rate of 5% (section 269P(3)).
The Act imposes several obligations on parties applying for a TCO. Firstly, an applicant must ensure that their application is not in respect of goods specified in section 269SJ, which cannot be subject to a TCO. Secondly, the CEO must consider whether the application meets the core criteria, which includes verifying that no substitutable goods were produced in Australia on the day the application was lodged (section 269C). Additionally, under subsection 269K(1), the CEO must publish a notice in the Gazette inviting any interested parties to submit objections to the proposed TCO. This procedural step ensures transparency and allows for any relevant concerns to be addressed before the order is made.
Failure to comply with the provisions of the Act can lead to various consequences. Firstly, if a TCO is made based on incorrect information or without meeting the core criteria, it may be subject to judicial review. Secondly, any party that knowingly provides false or misleading information in an application for a TCO may be subject to civil or criminal penalties. While the specific penalties are not detailed in the Act, under general provisions, offences can attract significant fines and, in serious cases, imprisonment. The Act also allows for the recovery of any benefits obtained through fraudulent means.
In summary, TCO No. 0809733 provides a tariff concession for certain printing inks coloured, reducing the duty rate from 5% to free. The Act sets out the process for applying for and making a TCO, including the core criteria that must be met and the publication of a notice in the Gazette. Non-compliance with the Act’s provisions can lead to judicial review, civil penalties, and potential criminal charges.