EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0827797
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.
Jb Macmahon Pty Ltd applied for a TCO in respect of certain bottles washers and or dryers on 22 August 2008.
Instrument
TCO No 0827797 was made on 14 November 2008. It declares that those certain bottles washers and or dryers 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. 0827797 is taken to have come into force on 22 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 Parliament of Australia, provides for the regulation of customs and excise duties. To address the need for tariff concessions, Part XVA of the Customs Act 1901 was introduced to allow the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that apply lower rates of customs duty to specific goods, provided certain criteria are met. This legislative framework was designed to facilitate access to goods that are not readily available within Australia, thereby promoting trade and economic efficiency. Tariff Concession Instrument No. 0827797 was introduced in 2008 to provide tariff concessions for certain bottle washers and dryers, following an application by Jb Macmahon Pty Ltd. This measure was taken to ensure that the goods in question, which are crucial for various industries, are accessible at a reduced duty rate, effectively from the date of the application, 22 August 2008. The policy objective is to allow Australian businesses to acquire necessary goods more affordably, thereby supporting industrial activities and potentially leading to economic benefits.
Scope and Application
The Customs Act 1901 provides a framework under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs (CEO) to apply a lower rate of customs duty on certain goods. This is facilitated through Part XVA of the Act, allowing individuals or entities to apply for tariff concessions if the goods in question are not specified as ineligible in section 269SJ of the Act. A TCO application is deemed to meet the core criteria if, on the date of application, no substitutable goods are being produced in Australia in the ordinary course of business, as defined by sections 269D and 269E of the Act. If the CEO is satisfied with the application, a written order is issued, specifying the reduced duty on the goods, as per section 269P(3) of the Act. For instance, TCO No. 0827797 was issued for certain bottle washers and dryers, reducing the duty from the general rate of 5% to free. The TCO’s commencement date aligns with the date of the application, in this case, 22 August 2008, and it does not retroactively affect any rights or liabilities of persons other than the Commonwealth.
Key Provisions
The key operative sections of this legislation include section 269F, which allows for the application of a Tariff Concession Order (TCO) for certain goods, and section 269C, which establishes the core criteria that must be met for a TCO application to be considered valid. If the Chief Executive Officer (CEO) of Customs is satisfied that the application meets these criteria, a TCO can be made under section 269P(3). Section 269K(1) also mandates that the CEO must publish a notice in the Gazette inviting submissions from any interested parties. This process ensures transparency and allows for any objections to be considered before a TCO is issued.
The obligations imposed by this Act primarily concern the CEO of Customs. They must carefully review TCO applications to ensure that they comply with the core criteria set out in section 269C. The CEO is also required to publish a notice in the Gazette under section 269K(1) to invite submissions from interested parties. Once a TCO is issued, the CEO must ensure that it is registered and that its effects are communicated to the relevant stakeholders. The Act also imposes obligations on applicants to provide all necessary information and documentation to support their application for a TCO.
Failure to comply with the provisions of the Customs Act 1901 can result in various penalties. Under section 285 of the Act, any person who contravenes a provision of the Act may be liable for a penalty. The maximum penalty for a corporation is generally set out in section 285, and it can be significant, depending on the nature and severity of the breach. Additionally, breaches of the Act may also result in criminal charges being laid, which could lead to further penalties such as fines or imprisonment. Civil consequences may also arise for non-compliance, including the potential for damages claims from affected parties. It is crucial for all parties governed by this Act to adhere to its provisions to avoid these potential consequences.