EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0833360
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.
Atdec Pty Ltd applied for a TCO in respect of certain laptop support frame on 30 September 2008.
Instrument
TCO No 0833360 was made on 19 December 2008. It declares that those certain laptop support frame 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. 0833360 is taken to have come into force on 30 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. 0833360 was enacted under the Customs Act 1901 to address the issue of providing tariff concessions for specific goods that are not produced in Australia and for which no suitable substitutes are available domestically. This instrument was introduced to provide relief on customs duties for importers of certain goods, thereby encouraging trade and reducing costs for businesses that rely on importing these specific items. The policy objective of this legislation, as stipulated in the Act, is to ensure that such tariff concessions are only granted when there are no substitutable goods produced in Australia and to facilitate smoother trade operations by lowering the duty rates on the specified goods. This was enacted by the Chief Executive Officer of Customs, who is mandated under section 269F of the Act to make Tariff Concession Orders upon receiving applications that meet the specified criteria.
Scope and Application
The Customs Act 1901, specifically under Part XVA, outlines the framework for Tariff Concession Orders (TCOs) which are issued by the Chief Executive Officer of Customs. These orders apply to specific goods for which a lower rate of customs duty is set, provided the application for such a concession meets the core criteria stipulated in the Act. The TCOs are applicable to entities and individuals who import goods and seek tariff reductions for those imports. The legislation extends its reach to various industries that rely on imported goods and it affects the conduct and transactions related to the importation of these goods. Geographically, the Act applies under the Commonwealth jurisdiction, ensuring a uniform application of tariff concessions across Australia. Notably, the Act excludes certain goods from being subject to a TCO, as specified in section 269SJ. The application process for a TCO includes a public consultation period where objections can be raised, although in the case of TCO No. 0833360, no submissions were received. The commencement of the TCO is effective from the date of application, with the TCO providing benefits to importers by allowing them to claim duty refunds on goods imported since the effective date of the TCO, without imposing additional liabilities on any party.
Key Provisions
The main operative sections of this legislation include sections 269F, 269C, and 269P of the Customs Act 1901, which govern the process of applying for and making Tariff Concession Orders (TCOs). Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods, while section 269C specifies the core criteria that must be met for the CEO to consider the application. Once the CEO is satisfied that the application meets these criteria, section 269P(3) mandates the CEO to make a written order declaring the goods subject to a prescribed rate of duty specified in Schedule 4 of the Customs Tariff Act 1995.
The Act imposes several obligations on the parties involved. The CEO is required to ensure that the application for a TCO is not in respect of goods specified in section 269SJ, which excludes certain goods from TCO eligibility. Furthermore, the CEO must assess whether the application meets the core criteria outlined in section 269C, specifically determining if no substitutable goods were produced in Australia on the day the application was lodged. Additionally, under section 269K, the CEO must publish a notice in the Gazette inviting submissions from any person who may have reasons why the TCO should not be made.
Failure to comply with the provisions of the Customs Act 1901 may result in civil or criminal consequences. While the explanatory statement does not explicitly detail offences or penalties, breaches of the Act can lead to legal action for non-compliance. The consequences may include fines or other penalties as prescribed by the relevant legislation. The exact penalties would depend on the specific nature of the breach and the discretion of the court in imposing a penalty.
In summary, the Tariff Concession Instrument No. 0833360, under the Customs Act 1901, allows for the reduction of customs duty rates for certain goods through the application and approval process for TCOs. It imposes specific obligations on the CEO and other parties to ensure that the application process is transparent and meets the statutory criteria. Any non-compliance with the Act's provisions could lead to legal repercussions, although the specific penalties are not detailed in the explanatory statement.