EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0816491
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.
Le Mac Australia Group Pty Ltd applied for a TCO in respect of certain cationic printing ink on 07 July 2008.
Instrument
TCO No 0816491 was made on 26 September 2008. It declares that those certain cationic printing ink 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. 0816491 is taken to have come into force on 07 July 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 Parliament of Australia, establishes a framework for Tariff Concession Orders (TCOs) that can be made by the Chief Executive Officer of Customs to provide lower rates of customs duty on certain goods. The Tariff Concession Instrument No. 0816491, made in 2008, applies this framework to certain cationic printing inks, declaring that these goods are subject to a prescribed item in Schedule 4 of the Customs Tariff Act 1995, with a resulting duty rate of free, down from the general rate of 5%. The instrument was introduced to address the gap in the market for these specific inks, which were not being produced in Australia at the time of the application. The process involved ensuring that no substitutable goods were produced domestically, thereby meeting the core criteria under section 269C of the Act. The instrument came into effect on the date of the application, 7 July 2008, and it was made without any submissions from the public, as no objections were raised during the notification period.
Scope and Application
The Customs Act 1901, specifically Part XVA, governs the process by which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs (CEO). This act applies to any person who applies for a TCO in respect of goods, provided those goods do not fall under the exclusions outlined in section 269SJ. The TCOs pertain to goods that are subject to lower rates of customs duty and are determined by the CEO based on specific criteria, primarily the absence of substitutable goods produced in Australia. The act has a national jurisdictional reach, applying across all states and territories within Australia. The application of TCOs is contingent upon the CEO's satisfaction that the goods in question are not produced in Australia and do not have substitutable alternatives domestically. This legislation extends its application through subordinate instruments, specifically Schedule 4 to the Customs Tariff Act 1995, which outlines the prescribed rates and duties applicable to goods subject to TCOs. The Tariff Concession Instrument No. 0816491, for instance, was applied to certain cationic printing inks, setting their duty rate at free, which contrasts with the general rate of 5% for such goods.
Key Provisions
The Tariff Concession Instrument No. 0816491 under the Customs Act 1901 primarily establishes the conditions under which tariff concessions can be applied to certain goods. Section 269F (1) allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) concerning specific goods. The CEO is then required to assess whether the application meets the core criteria outlined in section 269C. This assessment hinges on whether 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. If the application satisfies these criteria, the CEO must issue a TCO, which declares the goods eligible for a concession under a specified item of Schedule 4 to the Customs Tariff Act 1995, as per section 269P(3).
Entities and individuals who seek to benefit from a TCO must comply with the procedural requirements stipulated in the Customs Act 1901. This includes submitting an application to the CEO and ensuring that the goods in question meet the eligibility criteria. The CEO is also obligated to publish a notice in the Gazette inviting any interested parties to submit submissions opposing the TCO, as per section 269K(1). The TCO itself becomes effective on the date the application is lodged, as stated in section 269S(1). This means that once the application is accepted, the TCO takes immediate effect, impacting the tariff rates applicable to the specified goods.
Breaches of the requirements set forth in the Customs Act 1901 and its associated regulations may result in penalties. While the specific offences and penalties for non-compliance are not detailed in the provided text, it is generally understood that violations of customs legislation can lead to both civil and criminal consequences. These may include fines, imprisonment, or other administrative penalties. The exact penalties would depend on the nature and severity of the breach, as well as any relevant provisions within the Customs Act 1901 or other related legislation.