EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0826244
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.
Jasco Pty Ltd applied for a TCO in respect of certain wood or plastic ruler on 13 August 2008.
Instrument
TCO No 0826244 was made on 24 October 2008. It declares that those certain wood or plastic ruler 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. 0826244 is taken to have come into force on 13 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 was enacted by the Australian Parliament to regulate the importation and exportation of goods within Australia, including the imposition and collection of customs duties. The Act provides for the establishment of a tariff concession scheme to assist Australian businesses by reducing the customs duty on certain imported goods. The Tariff Concession Instrument No. 0826244 was introduced under Part XVA of the Customs Act 1901 to address the issue of ensuring that certain imported goods, such as wood or plastic rulers, receive a tariff concession when no substitutable goods are produced in Australia. The policy objective of this instrument is to provide tariff relief to importers and businesses that rely on these specific goods, thereby promoting fair competition and supporting economic efficiency within Australia.
Scope and Application
The Tariff Concession Instrument No. 0826244 applies to specific wood or plastic rulers as declared by the Chief Executive Officer of Customs under Part XVA of the Customs Act 1901. This application of the Act is targeted at entities or individuals who import these particular goods, granting them a lower rate of customs duty, specifically reducing it from 5% to free duty. The Act's geographic reach is national, as it pertains to the importation of goods into Australia. The application process for a Tariff Concession Order (TCO) must meet the core criteria outlined in section 269C of the Act, ensuring that no substitutable goods are produced in Australia in the ordinary course of business. The instrument also mandates the publication of the TCO application in the Gazette, allowing for public submissions, although none were received in this case. The commencement of the TCO is effective from the date the application was lodged, which in this instance is 13 August 2008, ensuring that the rights of importers are beneficially affected from that date. The instrument does not impose any liabilities on any person and does not disadvantage any person or entity other than the Commonwealth.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0826244 under the Customs Act 1901 (section 269P(3)) require the Chief Executive Officer of Customs (the CEO) to make a written order (Tariff Concession Order, or TCO) if satisfied that the application meets the core criteria. The core criteria, outlined in section 269C, require that no substitutable goods were produced in Australia on the day the application was lodged, as defined by sections 269D and 269E of the Act. Once the CEO is satisfied, the TCO must be made, and it declares that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, which in this case is item 50 for certain wood or plastic rulers.
The Act imposes several obligations on the parties it governs. The CEO has the responsibility to assess the validity of the TCO application, ensuring that the core criteria are met, and to make a written TCO if those criteria are satisfied. Additionally, the CEO must publish a notice in the Gazette inviting any interested parties to submit objections if they believe the TCO should not be made, as per subsection 269K(1). Importers of the goods subject to the TCO have the right to apply for a refund of duty on goods imported since the day the TCO is taken to have come into force, under paragraph 126(1)(r) of the Regulations. These obligations ensure a transparent and fair process for applying for and assessing TCOs.
In terms of consequences for non-compliance, the Act does not specify any offences, penalties, or civil or criminal consequences for failing to comply with the provisions of the TCO. However, it is important to note that the TCO does not impose any liabilities on any person. The rights of the Commonwealth and other persons are protected so as not to be disadvantaged or to incur liabilities for actions taken before the TCO's effective date, as per subsection 269S(1). This ensures that the TCO does not retroactively affect any past transactions or impose unforeseen liabilities on individuals or entities.