EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0832745
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.
Adc Communications applied for a TCO in respect of certain data cable connection jacks on 25 September 2008.
Instrument
TCO No 0832745 was made on 12 December 2008. It declares that those certain data cable connection jacks 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. 0832745 is taken to have come into force on 25 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 facilitate and regulate the movement of goods across Australia's borders, including the imposition and collection of customs duties. The Act establishes a framework under which Tariff Concession Orders (TCOs) can be made to provide lower rates of customs duty on certain goods, subject to certain conditions. The explanatory statement for Tariff Concession Instrument No. 0832745 details the application and approval process for a TCO, specifically addressing an application by Adc Communications for certain data cable connection jacks. The instrument was issued on 12 December 2008, declaring that the specified goods are subject to a free rate of duty, down from the general rate of 5%, following the Chief Executive Officer of Customs' determination that no substitutable goods were produced in Australia. This legislative instrument was designed to ensure the rights of importers are beneficially affected, allowing them to apply for duty refunds on imports made since the TCO's effective date, without imposing any new liabilities on individuals or entities.
Scope and Application
The Tariff Concession Instrument No. 0832745 under the Customs Act 1901 applies to individuals or entities seeking a reduction in customs duty on specific goods, in this case, data cable connection jacks, provided they meet certain criteria. The application process is overseen by the Chief Executive Officer of Customs, who evaluates whether the goods are substitutable and produced in Australia. If the application meets the core criteria set forth in section 269C of the Act, the CEO must make a Tariff Concession Order, effectively granting the concession. This order is retroactive to the date the application was lodged, meaning it applies from the moment the application was submitted. The scope of this legislation is national, as it operates under the Commonwealth's authority, and it does not disadvantage or impose liabilities on any person other than the Commonwealth. This particular instrument was made following an application by Adc Communications and took effect from 25 September 2008. The Act allows for further regulation and clarification through subordinate instruments, which may extend or restrict the application of the Act.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0832745 under the Customs Act 1901 (section 269F) allow the Chief Executive Officer of Customs (CEO) to make a Tariff Concession Order (TCO) upon application. If the application is deemed to meet the core criteria, the CEO must issue a TCO reducing the customs duty on specified goods (section 269C). This instrument, TCO No. 0832745, specifies that certain data cable connection jacks are subject to a concession, with the general duty rate of 5% reduced to free (section 269P(3)). This concession applies from the date the application was lodged, which in this case was 25 September 2008 (subsection 269S(1)).
The Act imposes obligations on the CEO to assess TCO applications against the core criteria, which includes verifying that no substitutable goods are produced in Australia (section 269C). The CEO must also publish a notice in the Gazette inviting any interested parties to submit objections if they believe the TCO should not proceed (subsection 269K(1)). In this case, the CEO did not receive any submissions (Consultation section). If the CEO is satisfied that the application meets the core criteria, they must make a written TCO (section 269P(3)).
Under the Customs Act 1901, failure to comply with the Act’s requirements can result in penalties. However, the Explanatory Statement does not specify any particular offences, penalties, or consequences for non-compliance with the TCO in this context. The primary focus of the Act is on the procedural correctness of the TCO application process and ensuring that the rights of third parties are not adversely affected. The TCO itself does not impose any liabilities on any person and does not affect pre-existing rights or impose liabilities in respect of actions taken before the TCO was registered (Commencement and Rights of Persons section).