EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0825007
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.
Universal Gift Traders Pty Ltd applied for a TCO in respect of certain tool sets on 05 August 2008.
Instrument
TCO No 0825007 was made on 31 October 2008. It declares that those certain tool sets 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. 0825007 is taken to have come into force on 05 August 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 for the regulation of customs and excise duties, among other matters. It was enacted to ensure the efficient administration of customs and excise laws and to facilitate international trade. Part XVA of the Act introduces a scheme under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs, allowing for lower rates of customs duty on specified goods. This scheme was designed to address the gap in providing tariff concessions for goods that are not produced in Australia, thereby promoting trade and economic efficiency. The policy objective behind this legislative framework is to ensure that Australia's trade policies are flexible enough to respond to the needs of businesses and consumers without unduly burdening domestic producers. The Explanatory Statement for Tariff Concession Instrument No. 0825007 clarifies the process and criteria for making such orders, ensuring transparency and accountability in the application of tariff concessions.
Scope and Application
The Tariff Concession Instrument No. 0825007, made under Part XVA of the Customs Act 1901, applies to entities or individuals seeking tariff concessions for specific goods, which in this case are certain tool sets. The instrument specifically applies to the goods nominated by Universal Gift Traders Pty Ltd and is designed to reduce the rate of customs duty to zero, down from the general rate of 5%, provided no substitutable goods were produced in Australia on the date the application was lodged. The geographic and jurisdictional reach of this legislation is Commonwealth-wide, extending across all states and territories of Australia. The application of the TCO is restricted by the criteria set out in sections 269C, 269D, and 269E of the Act, which determine the eligibility of goods for tariff concessions. Exclusions are made for goods specified in section 269SJ of the Act, which cannot be subject to a TCO. The Act allows for further application and interpretation through subordinate instruments, which may provide additional detail on the application process and eligibility criteria. The commencement date of this instrument is 5 August 2008, the date on which the application was lodged, and it does not affect the rights of any person as at the date of registration, ensuring that no one is disadvantaged or imposed with liabilities for actions taken prior to the registration date.
Key Provisions
The key sections of this legislation include sections 269F, 269C, and 269P of the Customs Act 1901, which outline the process for applying for a Tariff Concession Order (TCO). Section 269F allows a person to apply to the Chief Executive Officer of Customs (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, which sets out those goods that cannot be subject to a TCO, the CEO must decide if the application meets the core criteria set out in section 269C. If the CEO is satisfied that the application meets these criteria, they must make a written order declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995.
The obligations imposed by this Act on the parties involved include the requirement for the CEO to consider applications for TCOs and to ensure that the core criteria are met before making an order. The CEO must also publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting any person who believes the TCO should not be made to lodge a submission. The CEO must consider any submissions received before deciding whether to make the TCO. Additionally, the Act ensures that 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.
There are no specific offences, penalties, or consequences mentioned in the text for breach of the Act. However, it is implied that the CEO must adhere to the legislative requirements when considering and making TCOs. Failure to comply with the statutory obligations could potentially lead to legal challenges or other consequences, though these are not explicitly stated in the provided text. The focus of the legislation is on ensuring a fair and transparent process for applying for and making TCOs, rather than on penalising breaches.