EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0811714
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.
DH Technology Pty Ltd applied for a TCO in respect of certain mobile carts on 06 June 2008.
Instrument
TCO No 0811714 was made on 22 August 2008. It declares that those certain mobile carts 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. 0811714 is taken to have come into force on 06 June 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, enacted by the Australian Parliament, provides a framework for the imposition of customs duties and other charges on goods entering Australia. It includes a provision for Tariff Concession Orders (TCOs) under Part XVA, which allow for a lower rate of customs duty on specified goods if certain criteria are met. This mechanism was introduced to address the need for tariff relief on goods that cannot be produced domestically, ensuring that Australian consumers and businesses have access to competitively priced goods. The Tariff Concession Instrument No. 0811714, made on 22 August 2008, exemplifies this process by granting a tariff concession on certain mobile carts, reducing the general duty rate from 5% to free. This legislative approach aims to balance the interests of domestic producers and consumers by facilitating access to goods that are not produced locally, while also providing a transparent process for public consultation and feedback.
Scope and Application
The Tariff Concession Instrument No. 0811714 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for specific goods, in this case, certain mobile carts, which are deemed not to have substitutable goods produced in Australia. This instrument is made under the authority granted by section 269F of the Act, which allows the Chief Executive Officer of Customs to make a Tariff Concession Order (TCO) if an application meets the core criteria, such as the absence of substitutable goods produced in Australia as defined under sections 269D and 269E of the Act. The geographic reach of this legislation is national, as it pertains to the application of customs duties across Australia. The TCO provides a zero rate of customs duty for the specified mobile carts, which contrasts with the general rate of 5% applicable to these goods. Additionally, the Act ensures that the TCO does not disadvantage or impose liabilities on any person other than the Commonwealth in respect of actions taken before the TCO's effective date, thereby protecting the rights of importers who may apply for duty refunds under the Customs Act 1901 Regulations.
Key Provisions
The Tariff Concession Instrument No. 0811714 under the Customs Act 1901 (section 269F) allows the Chief Executive Officer of Customs (CEO) to issue Tariff Concession Orders (TCO) for certain goods. These orders apply a reduced rate of customs duty to goods specified in the order. Specifically, the Act mandates that if an application for a TCO is made and the CEO is satisfied that the goods are not specified in section 269SJ, the CEO must determine whether the application meets the core criteria, as outlined in sections 269C and 269P. For the purposes of this TCO, the CEO must be satisfied that no substitutable goods were produced in Australia on the date the application was lodged. This determination hinges on the definitions provided in sections 269D, 269E, and 269F, which clarify terms such as 'goods produced in Australia,' 'ordinary course of business,' and'substitutable goods.'
The obligations imposed by the Customs Act 1901 on the CEO include ensuring that any Tariff Concession Order issued complies with the statutory requirements. This involves a rigorous assessment process to ascertain that the goods in question are not substitutable by Australian-produced goods and that the application meets all necessary criteria. Additionally, the CEO is required to publish a notice in the Gazette, inviting any interested parties to submit objections if they believe the TCO should not be granted. In the case of TCO No. 0811714, no submissions were received, facilitating the issuance of the order.
Under the Customs Act 1901, failure to comply with the provisions of a Tariff Concession Order can result in significant consequences. While the explanatory statement does not detail specific offences or penalties for breaching the TCO, the general framework of the Customs Act 1901 implies that non-compliance could lead to civil or criminal penalties. These may include fines or other sanctions, depending on the nature and severity of the breach. It is critical for parties involved to adhere to the terms of the TCO to avoid any legal repercussions.