EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0829953
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.
Ozito Industries Pty Ltd applied for a TCO in respect of certain jigsaw kits on 08 September 2008.
Instrument
TCO No 0829953 was made on 28 November 2008. It declares that those certain jigsaw kits 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. 0829953 is taken to have come into force on 08 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 Tariff Concession Instrument No. 0829953 was enacted under the Customs Act 1901 and is intended to provide tariff concessions for certain goods, effectively reducing or eliminating customs duty for those goods. The instrument was introduced to address the need for lower customs duties on specific imported goods where no substitutable Australian-made products exist, thereby supporting import activities that are beneficial to consumers and potentially boosting market competition. The instrument was developed and enacted by the Chief Executive Officer of Customs, as authorised by the Customs Act 1901, to streamline the process of applying for tariff concessions and ensure that such applications are assessed efficiently. The overarching policy objective of this legislative instrument is to facilitate the importation of goods that do not have local alternatives, thereby potentially lowering costs for consumers and businesses.
Scope and Application
The Tariff Concession Order No. 0829953 under the Customs Act 1901 applies to specific jigsaw kits for which Ozito Industries Pty Ltd submitted an application on 08 September 2008. The order was issued by the Chief Executive Officer of Customs (CEO) on 28 November 2008, upon determining that the application met the core criteria set out in the Act, specifically that no substitutable goods were produced in Australia. As a result, the order declares that these jigsaw kits are subject to a free rate of duty, as opposed to the general rate of 5%, under item 50 of Schedule 4 to the Customs Tariff Act 1995. This concession is applicable to the Commonwealth of Australia and affects the rights of importers, who can now apply for a refund of duty on these goods imported since the effective date of the order, 08 September 2008. The order does not disadvantage any person or impose liabilities on any person in respect of actions taken before the order was issued.
The application of this Tariff Concession Order is limited to the goods specified in the application and does not extend to any other goods unless specifically included in a subsequent order. The order is subject to the conditions and criteria set out in the Customs Act 1901, including the requirement that no substitutable goods were produced in Australia at the time the application was lodged. The CEO must also publish a notice in the Gazette inviting any person with an interest in the application to lodge a submission. In this case, no submissions were received. The CEO's decision to issue the order is final, and the rights of importers are beneficially affected by the reduction in duty rates. The order does not extend to affect any person other than the Commonwealth or impose any liabilities on any person in respect of anything done or omitted to be done before the date of registration.
Key Provisions
The Tariff Concession Instrument No. 0829953, which pertains to certain jigsaw kits, operates under the Customs Act 1901, specifically section 269F (2). Pursuant to this section, Ozito Industries Pty Ltd applied for a Tariff Concession Order (TCO) on 08 September 2008. The Chief Executive Officer of Customs (CEO) was tasked with determining whether the application met the core criteria set out in section 269C of the Act, which includes ensuring that no substitutable goods were produced in Australia on the day the application was lodged. The CEO also had to consider whether the goods in question were specified in section 269SJ, which outlines goods that cannot be subject to a TCO.
Under section 269P(3) of the Customs Act 1901, if the CEO determines that an application meets the core criteria, a written TCO must be issued. The CEO was satisfied that no substitutable goods were produced in Australia for the jigsaw kits in question, leading to the issuance of TCO No. 0829953 on 28 November 2008. This TCO declares that the certain jigsaw kits are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, resulting in a duty rate of free, as opposed to the general rate of 5%.
Failure to comply with the provisions of the Customs Act 1901 can result in various civil or criminal consequences. Specifically, under section 269K(1), the CEO is required to publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made. If the CEO fails to properly consult or if there is an improper application of the criteria in section 269C, this could potentially lead to legal challenges or administrative penalties. Additionally, any fraudulent application or misrepresentation of facts to obtain a TCO could result in criminal charges under relevant Commonwealth laws, with penalties including fines and imprisonment.
The commencement date of the TCO is the day the application was lodged, 08 September 2008, as per section 269S(1) of the Act. Importantly, the TCO does not affect any rights or impose any liabilities on persons other than the Commonwealth, as outlined in section 269S of the Act. However, it does beneficially affect the rights of importers, who can apply for a refund of duty on goods imported since the TCO's effective date under paragraph 126(1)(r) of the Regulations.