EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0834340
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.
Dats Pty Ltd applied for a TCO in respect of certain dog houses on 07 October 2008.
Instrument
TCO No 0834340 was made on 19 December 2008. It declares that those certain dog houses 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. 0834340 is taken to have come into force on 07 October 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 to regulate the import and export of goods in Australia. Among other provisions, Part XVA of the Act allows for Tariff Concession Orders (TCOs) to be issued, which provide for reduced customs duty on certain goods. The instrument, F2009L00570, was introduced to establish Tariff Concession Order No. 0834340, which grants a concession on the duty for certain dog houses. This was in response to an application by Dats Pty Ltd, which sought to ensure that no substitutable goods were being produced in Australia, as required under section 269C of the Act. The instrument was developed following consultation processes outlined in the Act, including a Gazette notice inviting submissions, although none were received. The objective of this tariff concession is to benefit importers by allowing them to apply for duty refunds on goods imported since the effective date of the TCO, which is the same as the date the application was lodged, without imposing any new liabilities on individuals or entities.
Scope and Application
The Tariff Concession Instrument No. 0834340, made under Part XVA of the Customs Act 1901, applies to the concession of customs duty on certain dog houses, as applied for by Dats Pty Ltd. This instrument operates within the Commonwealth of Australia and pertains to the concession of customs duty rates for specific goods, in this case, dog houses. The instrument was enacted to reduce the general duty rate from 5% to free for the specified goods, provided no substitutable goods were produced in Australia in the ordinary course of business at the time the application was lodged. The instrument is applicable to Dats Pty Ltd and the importation of the specified dog houses, contingent upon the conditions outlined in the Act being met. There are no exclusions or exemptions mentioned in the provided text, though it is noted that the instrument does not affect any existing rights or liabilities of persons other than the Commonwealth as of the date of the application.
The Customs Act 1901's provisions extend to the entire Commonwealth, and the application of this Tariff Concession Order is similarly broad within these jurisdictional boundaries. The Chief Executive Officer of Customs has the authority to make such orders under the Act, subject to the conditions stipulated, and the process includes a requirement for public notice and opportunity for objections, although none were received in this instance. The commencement date for the effect of this Tariff Concession Order is the date on which the application was lodged, which was 7 October 2008. The instrument does not impose any new liabilities or disadvantage any person's existing rights, and it provides for the potential refund of duties paid on the specified goods imported since the effective date of the order.
Key Provisions
The main operative sections of this legislation pertain to the process of applying for and making a Tariff Concession Order (TCO) under the Customs Act 1901. Section 269F allows an application to be made to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. Once the CEO determines that the application is valid and meets the core criteria, which are outlined in section 269C, they must make a written order declaring that the goods are subject to a lower rate of duty specified in Schedule 4 to the Customs Tariff Act 1995. Section 269K requires the CEO to publish a notice in the Gazette inviting submissions from any person who may have reasons why the TCO should not be made. The CEO must consider these submissions before making a decision.
The Customs Act 1901 imposes specific obligations on both the CEO and the applicant for a TCO. The CEO must first ensure that the application is not in respect of goods specified in section 269SJ, which cannot be subject to a TCO. If the application is valid, the CEO must then assess whether it meets the core criteria by determining if no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, as per section 269C. If the CEO is satisfied that the application meets these criteria, they must make a written TCO as specified in section 269P(3). The applicant must ensure their application is complete and accurate, providing all necessary information for the CEO to make a determination.
Under the Customs Act 1901, any failure to comply with the requirements of the TCO or any misuse of the concession may result in various consequences. While the explanatory statement does not specify penalties for non-compliance or misuse, it is implied that breaches could lead to civil or criminal penalties as outlined in other sections of the Customs Act 1901. For instance, section 251 of the Act outlines offences related to fraudulent importation and the imposition of penalties, including fines and imprisonment. The specific penalties for breaches related to TCOs would need to be determined by reference to the broader provisions of the Customs Act 1901 and any related regulations.