EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0829421
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.
Seaga Pty Ltd applied for a TCO in respect of certain non woven fabric on 03 September 2008.
Instrument
TCO No 0829421 was made on 28 November 2008. It declares that those certain non woven fabric 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. 0829421 is taken to have come into force on 03 September 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 provide a comprehensive framework for the administration of customs and excise duties, among other things. The Tariff Concession Instrument No. 0829421, issued in 2008, addresses the problem of ensuring that Australian businesses can access necessary imported goods at a reduced tariff rate when no suitable Australian-made alternatives exist. This instrument was introduced to provide tariff concessions for specific goods, enabling businesses to import these goods at a lower customs duty rate, thereby supporting the economic efficiency and competitiveness of Australian industries. The instrument is made under the authority of the CEO of Customs, who must be satisfied that no substitutable goods are produced in Australia, ensuring that the concessions do not undermine local production. The policy objective is to facilitate trade and support businesses by reducing the cost of importing essential goods, thus promoting economic activity and efficiency within the Australian market.
Scope and Application
The Tariff Concession Instrument No. 0829421 under the Customs Act 1901 applies to specific goods, in this instance certain non-woven fabric, which are subject to a Tariff Concession Order (TCO) granted to Seaga Pty Ltd. This legislation targets particular goods rather than specific persons or entities, focusing on the nature of the goods and their production status in Australia. The geographic scope of this Act is national, as it falls under the Commonwealth jurisdiction and applies to all of Australia. The legislation does not explicitly exclude any categories of goods from its purview, except for those specified in section 269SJ of the Act, which outlines goods that cannot be subject to a TCO. The Act also allows for the extension or restriction of its application through subordinate instruments, although no such instruments are mentioned in this context. The TCO itself came into force on the day the application was lodged, which is 3 September 2008, and it does not disadvantage any person or impose liabilities for actions taken before its registration.
Key Provisions
The main sections of the Customs Act 1901, specifically those relating to Tariff Concession Orders (TCOs), require that an application for a TCO must be made to the Chief Executive Officer of Customs (CEO) (sections 269F and 269C). If the CEO determines that the application meets the core criteria, which includes the condition that no substitutable goods were produced in Australia in the ordinary course of business at the time the application was lodged (section 269C), then the CEO must issue a written TCO (section 269P(3)). The TCO No. 0829421 specifies that certain non-woven fabrics are goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies, with a rate of duty of free, whereas the general rate is 5%.
The Act imposes several obligations on the parties involved. The CEO must ensure that the application for a TCO is not in respect of goods specified in section 269SJ of the Act, which lists those goods that cannot be subject to a TCO (section 269F). The CEO is also required to publish a notice in the Gazette inviting any person who may have objections to the TCO to lodge a submission with the CEO (subsection 269K(1)). If no objections are received, the CEO must then decide whether to make the TCO. Once a TCO is made, it comes into force on the day the application was lodged (subsection 269S(1)). The rights of importers will be beneficially affected, as they can apply for a refund of duty on goods imported since the day the TCO is taken to have come into force (paragraph 126(1)(r) of the Regulations).
Failure to comply with the provisions of the Customs Act 1901 can result in various penalties. However, the explanatory statement does not explicitly detail the penalties for breach of the Act or the TCO. It is important to refer to the relevant sections of the Customs Act 1901 and associated regulations for information on offences, penalties, and consequences for non-compliance. These may include fines and imprisonment, depending on the nature and severity of the breach. The maximum penalties would be determined by the specific provisions of the Customs Act 1901 and the relevant regulations.