EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0815095
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.
Global Sythetics Pty Ltd applied for a TCO in respect of certain polyester fabric on 27 June 2008.
Instrument
TCO No 0815095 was made on 12 September 2008. It declares that those certain polyester fabric 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 10%. 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. 0815095 is taken to have come into force on 27 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 Tariff Concession Order No. 0815095, issued under the Customs Act 1901, aims to provide tariff concessions for certain polyester fabrics. Enacted in 2008 by the Chief Executive Officer of Customs, this instrument responds to an application from Global Synthetics Pty Ltd, seeking reduced customs duties for their specific goods. The objective of this legislation is to ensure that the application of tariff concessions aligns with the criteria set out in the Customs Act, particularly under section 269C, which mandates that a lower rate of duty applies if no substitutable goods are produced in Australia. By reducing the duty from 10% to free, the order seeks to support the import of these goods, benefiting importers who may now apply for duty refunds on qualifying imports. The enactment of this order does not adversely affect any existing rights or impose new liabilities on individuals or entities.
Scope and Application
The Tariff Concession Instrument No. 0815095 under the Customs Act 1901 applies to persons who wish to import specific goods into Australia and seek tariff concessions for those goods. The instrument specifically concerns the application made by Global Synthetics Pty Ltd for a tariff concession order (TCO) in respect of certain polyester fabric. The application was processed by the Chief Executive Officer of Customs (CEO) and the instrument was made on 12 September 2008. The Act applies to goods that are not substitutable by Australian-produced goods and meet the core criteria outlined in the Customs Act 1901. The instrument is applicable nationally, as it is a Commonwealth Act, and it specifically affects the importation of the specified goods. Any exclusions or exemptions are detailed in section 269SJ of the Customs Act 1901, which outlines goods that cannot be subject to a TCO. The application of the Act can be extended or restricted through subordinate instruments as specified in the Customs Tariff Act 1995.
Key Provisions
The primary operative sections of Tariff Concession Instrument No. 0815095 include section 269F, which allows for an application to be made to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) in respect of goods (section 269F). If the CEO is satisfied that the application meets the core criteria outlined in sections 269C and 269B, they must make a TCO (section 269P(3)). The instrument declares that certain polyester fabrics are goods to which item 50 of Schedule 4 to the Tariff applies, resulting in a rate of duty of free instead of the general rate of 10% (section 269P(3)).
The Act imposes several obligations and requirements on the parties it governs. For instance, under section 269K(1), the CEO must publish a notice in the Gazette inviting any person who believes there are reasons why the TCO should not be made to submit their concerns to the CEO. Additionally, under section 269S(1), the TCO is considered to have come into force on the day the application for the TCO was lodged, which in this case is 27 June 2008. The CEO's decision to make the TCO must be based on the criteria that no substitutable goods were produced in Australia on the day the application was lodged, as per section 269C. Furthermore, section 269SJ specifies the types of goods that cannot be subject to a TCO.
Failure to comply with the requirements and obligations of the Customs Act 1901 may result in civil or criminal consequences. The maximum penalties for breaches of the Customs Act can vary depending on the nature and severity of the offence. For example, under section 210 of the Act, an individual found guilty of an offence may face imprisonment for up to five years, a fine of up to 120 penalty units, or both. Similarly, corporations may face fines of up to 600 penalty units. These penalties reflect the seriousness with which the law treats breaches related to customs duties and tariff concessions.