EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0815153
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.
Permaseal Electrical Appliances Pty Ltd applied for a TCO in respect of certain ironing boards with steam iron holder on 30 June 2008.
Instrument
TCO No 0815153 was made on 19 September 2008. It declares that those certain ironing boards with steam iron holder 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. 0815153 is taken to have come into force on 30 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 administration of customs and excise duties, and includes provisions for Tariff Concession Orders (TCOs). The Act was introduced to streamline the customs duty process and provide relief to certain goods, ensuring they are not subject to higher customs duties if they are not produced in Australia. This specific legislative instrument, Tariff Concession Instrument No. 0815153, was made under the authority of the Customs Act 1901 to address the application from Permaseal Electrical Appliances Pty Ltd for a tariff concession on certain ironing boards with a steam iron holder. The policy objective of this TCO was to facilitate the importation of these specific goods at a reduced customs duty rate, thereby lowering the cost for consumers and businesses importing these goods.
Scope and Application
The Tariff Concession Instrument No. 0815153, made under Part XVA of the Customs Act 1901, pertains to the application of Tariff Concession Orders (TCO) for specific goods, in this case certain ironing boards with steam iron holders. The Act applies to individuals or entities that apply for a TCO and import the specified goods, with the primary effect being the reduction or elimination of customs duty on these goods. The application and concession are determined by the Chief Executive Officer of Customs, who must ensure that the goods are not substitutable by any products manufactured in Australia. The geographical reach of this Act is national, as it applies across Australia under the Commonwealth's customs laws. The Act explicitly excludes certain goods as outlined in section 269SJ, and any liabilities or disadvantages to non-Commonwealth persons are avoided if the TCO is applied retroactively from the date of the application. The application of this legislation can be further defined through subordinate instruments, which may provide additional criteria or conditions for TCO applications.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0815153 are sections 269C, 269P(3), and 269S. Section 269C outlines the core criteria that must be satisfied for a Tariff Concession Order (TCO) application to be approved, specifically that no substitutable goods were produced in Australia on the day the application was lodged. Section 269P(3) mandates that if these core criteria are met, the Chief Executive Officer of Customs (CEO) must issue a written TCO. Section 269S specifies that a TCO comes into force on the day the TCO application is lodged, as was the case for this instrument, which was made on 19 September 2008, but is considered effective from 30 June 2008.
The Act imposes several obligations and requirements on the parties involved. Firstly, the CEO must ensure that the application for a TCO is not in respect of goods specified in section 269SJ of the Customs Act 1901, which excludes certain goods from TCO consideration. The CEO is also required to publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made. While no submissions were received in this case, the requirement to invite and consider public feedback is an integral part of the process. The CEO must also ensure that the TCO does not affect the rights of persons other than the Commonwealth in a detrimental manner.
The Act does not specify particular offences, penalties, or consequences for breaches related to TCOs. However, the process itself includes checks to prevent improper concessions, such as ensuring that no substitutable goods were produced in Australia on the application date. Failure to comply with the requirements of the Act could result in the TCO being challenged or invalidated, potentially leading to legal consequences for the applicant. Nonetheless, the primary focus of the Act in this context is on ensuring that the concession process is fair and transparent rather than on prescribing specific penalties for breaches.