EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0830239
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.
Dixon Asia Pacific applied for a TCO in respect of certain grooved fittings on 09 September 2008.
Instrument
TCO No 0830239 was made on 28 November 2008. It declares that those certain grooved fittings 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. 0830239 is taken to have come into force on 09 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. 0830239, enacted in 2008, amends the Customs Act 1901 to provide tariff concessions on certain grooved fittings. This legislation was introduced to address the issue of ensuring that Australian businesses have access to competitively priced imported goods, particularly when no suitable Australian-made alternatives exist. The instrument was enacted by the Chief Executive Officer of Customs, in line with the provisions of section 269F of the Customs Act, which allows for the application of tariff concessions on goods that meet specific criteria. The core policy objective underpinning this measure is to support Australian industry by facilitating the importation of goods that are not produced domestically, thereby maintaining competitive market conditions.
The instrument was developed following an application by Dixon Asia Pacific and was published in the Gazette, inviting submissions from interested parties. As no objections were received, the instrument was enacted as of the date the application was lodged, which is 09 September 2008. This legislative action ensures that importers of these particular grooved fittings can benefit from a reduced duty rate, while safeguarding the rights of all parties involved. This approach aims to encourage fair trade practices and provide economic advantages to Australian businesses by lowering import costs for specific goods.
Scope and Application
The Customs Act 1901, specifically Part XVA, provides a framework under which Tariff Concession Orders (TCOs) may be issued by the Chief Executive Officer of Customs (CEO). This legislation applies to entities or individuals seeking a reduction in customs duty on certain goods, provided that these goods are not specified in section 269SJ of the Act as ineligible for such concessions. The scope of the Act extends to goods that are subject to a TCO application and those for which the CEO determines that no substitutable goods are produced in Australia in the ordinary course of business, as outlined in section 269C. The application of the Act is not limited by geographic boundaries within Australia but is bound by the overarching federal framework. The Act allows for the CEO to make a TCO if it is satisfied that the application meets the core criteria, as established under sections 269B and 269C. Notably, the TCO does not disadvantage any person or impose new liabilities, ensuring that the rights of importers are beneficially affected, as per subsection 269S(1). The Act's application may be further detailed or restricted through subordinate instruments, aligning with the Customs Tariff Act 1995.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0830239 (F2009L00641) pertain to the provisions under the Customs Act 1901, specifically section 269F, which allows for the application of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). This legislation facilitates the granting of tariff concessions, thereby reducing the customs duty on specified goods. The instrument declares that certain grooved fittings are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, setting the rate of duty for these goods at free, as opposed to the general rate of 5%. This was made effective from the date the application was lodged, 9 September 2008, as outlined in subsection 269S(1).
The Customs Act 1901 imposes several obligations on the parties involved. The CEO has a duty to assess whether an application for a TCO meets the core criteria, which involves ensuring that no substitutable goods are being produced in Australia at the time of the application, as defined in sections 269C, 269D, and 269E. Additionally, the CEO must publish a notice in the Gazette inviting submissions from interested parties once a TCO application is accepted as valid, as required by subsection 269K(1). The CEO also has to consider any submissions received and make a written order if the application meets the core criteria, as stated in subsection 269P(3).
Should there be a breach of any of the provisions outlined in the Customs Act 1901, the legislation provides for both civil and criminal consequences. Civil penalties may be imposed for non-compliance with the tariff concessions, though specific penalties are not detailed in the explanatory statement. Criminal penalties may also apply, and the maximum penalties are not explicitly stated in the provided text. However, generally, breaches of customs legislation can result in significant fines and imprisonment, as per the broader customs laws of Australia. The act of importing goods without the appropriate tariff concessions or providing false information in an application could lead to severe penalties, including fines and imprisonment, reflecting the seriousness with which customs breaches are treated under Australian law.