EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0809963
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.
Vemag Australia applied for a TCO in respect of certain meat grinder on 27 May 2008.
Instrument
TCO No 0809963 was made on 08 August 2008. It declares that those certain meat grinder 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. 0809963 is taken to have come into force on 27 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 Tariff Concession Instrument No. 0809963, enacted under the Customs Act 1901, addresses the problem of applying lower customs duty rates to specific imported goods, in this case, certain meat grinders, through a Tariff Concession Order (TCO). This legislation was introduced to provide a mechanism by which the Chief Executive Officer of Customs (CEO) can offer tariff concessions, effectively reducing the customs duty on specified goods, provided that no substitutable goods are produced in Australia in the ordinary course of business. The CEO is mandated to consider applications for such concessions and, if the criteria are met, to issue a TCO, which in this instance, was applied to certain meat grinders, reducing their duty rate from the general 5% to free. This legislative instrument aims to benefit importers by potentially allowing them to seek refunds on duties paid on these goods since the TCO's effective date, without imposing any new liabilities on individuals or entities other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0809963 under the Customs Act 1901 applies to any person or entity that imports goods that are the subject of a Tariff Concession Order (TCO). Specifically, it pertains to certain meat grinders that Vemag Australia applied for a TCO for on 27 May 2008. The Act applies to these goods to provide a concession on the customs duty, which is otherwise governed by Schedule 4 of the Customs Tariff Act 1995. The geographic reach of this Act is national, as it pertains to imports into Australia and operates under the Commonwealth's legislative authority. The Act excludes certain goods specified in section 269SJ from being subject to a TCO. Additionally, the Act does not affect any pre-existing rights of persons other than the Commonwealth or impose any new liabilities on such persons. The TCO takes effect from the date the application was lodged, in this case, 27 May 2008. The CEO of Customs may extend or restrict the application of the TCO through subordinate instruments, but no such actions are mentioned in this specific explanatory statement.
Key Provisions
The Tariff Concession Instrument No. 0809963, under the Customs Act 1901, facilitates the application process for Tariff Concession Orders (TCOs) for certain goods. Specifically, Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO. If the CEO determines that the application is not for goods specified in Section 269SJ, they must assess whether the application meets the core criteria set out in Section 269C. For a TCO application to meet these criteria, it must be shown that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, as defined by Sections 269D and 269E.
The obligations imposed by this Act on the parties involved include the requirement for the CEO to make a written order if the TCO application meets the core criteria. This order, as stipulated in Section 269P(3), declares that the specified goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, resulting in a reduced duty rate. Additionally, under Section 269K(1), the CEO must publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made. In this instance, no submissions were received.
Section 269S(1) dictates that a TCO comes into force on the day the application is lodged. Consequently, TCO No. 0809963 is effective from 27 May 2008. Importantly, this TCO does not affect the rights of any person other than the Commonwealth as of the registration date, ensuring that no one is disadvantaged or imposed with liabilities for actions taken prior to the registration. Importers, however, benefit from being able to apply for a refund of duty on goods imported since the TCO's effective date, as per paragraph 126(1)(r) of the Regulations.
Any breach of the provisions under this Act can lead to civil or criminal consequences. However, the specific penalties for such breaches are not detailed in the provided text. It is essential for all parties involved to comply with the obligations and requirements set out in this legislation to avoid any potential legal ramifications.