EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0828028
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.
Avery Denison Materials applied for a TCO in respect of certain paper thermal imaging in rolls on 25 August 2008.
Instrument
TCO No 0828028 was made on 14 November 2008. It declares that those certain paper thermal imaging in rolls 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. 0828028 is taken to have come into force on 25 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 Tariff Concession Order No. 0828028 was enacted in 2008 under the Customs Act 1901, with the aim of facilitating a reduction in customs duty for specific goods, in this case, certain paper thermal imaging in rolls, by providing tariff concessions. This legislative instrument was introduced to address the need for tariff concessions where substitutable goods were not produced in Australia, thereby providing a competitive edge for Australian businesses and potentially lowering costs for consumers. The enactment was overseen by the Parliament of Australia, with the policy objective being to support domestic industries by reducing the cost of imported goods through tariff concessions where applicable. This approach is designed to ensure that Australian businesses can compete more effectively in the global market by reducing the financial burden associated with importing certain goods.
Scope and Application
The Customs Act 1901 applies to individuals and entities involved in the importation of goods into Australia, including businesses and their agents. The Act provides for the establishment of Tariff Concession Orders (TCOs), which can reduce the customs duty payable on certain goods, provided specific criteria are met. This scheme is particularly relevant to importers who wish to apply for reduced tariff rates for specific goods not produced domestically. The Act extends to the Commonwealth jurisdiction, and its application is facilitated by subordinate instruments such as the Customs Tariff Act 1995, which outlines the specific tariff rates. Notably, the Act excludes certain goods from being subject to TCOs, as specified in section 269SJ of the Act. The TCO process requires the Chief Executive Officer of Customs to assess applications and make written orders if the core criteria are satisfied, as outlined in sections 269C and 269P(3) of the Act. Once a TCO is issued, it is taken to have come into effect from the date the application was lodged, benefiting importers by potentially reducing their duty liabilities on the specified goods.
Key Provisions
The Customs Act 1901, particularly Part XVA, outlines a framework for Tariff Concession Orders (TCOs) which can be made by the Chief Executive Officer (CEO) of Customs (sections 269C and 269P). A TCO reduces the customs duty on certain goods, as specified in the order. An application for a TCO can be submitted to the CEO by any person, and if the CEO determines that the application is valid and meets the core criteria, they must make a written order (sections 269F and 269C). The CEO must also ensure that the application does not pertain to goods specified in section 269SJ, which are ineligible for a TCO.
The Act imposes certain obligations on the CEO and applicants. The CEO must assess whether the application for a TCO meets the core criteria, which requires that no substitutable goods are produced in Australia in the ordinary course of business on the day the application was lodged (section 269C). Additionally, the CEO must publish a notice in the Gazette as soon as practicable after accepting the application as valid, inviting submissions from any person who believes there are reasons why the TCO should not be made (subsection 269K(1)). If no submissions are received, the CEO can proceed to make the TCO. In this specific case, the CEO did not receive any submissions and proceeded to issue TCO No. 0828028 on 14 November 2008, which applied to certain paper thermal imaging in rolls.
Breaching the requirements set forth by the Customs Act 1901 may have legal consequences. While the explanatory statement does not explicitly outline specific offences, penalties, or civil/criminal consequences, it is understood that any misuse of the TCO system could potentially lead to legal action under the broader customs legislation. For instance, if an entity were to falsely claim that no substitutable goods are produced in Australia to secure a TCO, this could result in legal penalties, including fines or other sanctions as stipulated in the broader customs regulations. The specifics of such penalties would be detailed in other parts of the Customs Act or related regulations, but the integrity of the application process is paramount to avoid any legal ramifications.