EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0835957
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.
Multix Pty Ltd applied for a TCO in respect of certain piping bag disposable on 17 October 2008.
Instrument
TCO No 0835957 was made on 14 January 2009. It declares that those certain piping bag disposable 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. 0835957 is taken to have come into force on 17 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 Tariff Concession Instrument No. 0835957, enacted under the Customs Act 1901, was introduced to address the issue of providing tariff concessions for specific goods. This instrument was developed to streamline the process by which certain goods could be subjected to lower customs duty rates, thereby facilitating trade and potentially reducing costs for importers. The Customs Act 1901, managed by the Parliament of Australia, aims to ensure efficient and fair customs administration. The policy objective behind this instrument is to provide tariff concessions for goods that meet specific criteria, such as not being substitutable by locally produced goods, thereby encouraging the importation of necessary items without imposing undue financial burdens on importers.
Scope and Application
The Tariff Concession Instrument No. 0835957 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for specific goods, namely certain piping bag disposables. This instrument facilitates the application of a lower customs duty rate for these goods, which otherwise would have a general rate of duty of 5%. The application of this concession is contingent on the Chief Executive Officer of Customs determining that no substitutable goods are produced in Australia, thereby meeting the criteria outlined in section 269C of the Act. The instrument is effective from the date the application was lodged, 17 October 2008, and it ensures that the rights of importers are beneficially affected by allowing them to apply for a refund of duty on goods imported since the commencement date. Notably, the instrument does not disadvantage any person by imposing liabilities for actions taken prior to its registration.
The geographic scope of this legislation is inherently tied to the Commonwealth jurisdiction, as it is an instrument under the Customs Act 1901. However, its impact is specifically on the importation of designated goods into Australia. The instrument does not impose any liabilities on any person and does not affect the rights of any person other than the Commonwealth in respect of actions taken before its registration. This legislation is an example of how the Customs Act 1901 can be utilised to provide targeted tariff concessions, subject to the core criteria set out in the Act.
Key Provisions
The main operative sections of this legislation focus on the process and criteria for the granting of Tariff Concession Orders (TCOs) under the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. If the CEO decides that the application is valid and meets the core criteria outlined in section 269C, the CEO must issue a written order (TCO) specifying the goods and the applicable tariff item (subsection 269P(3)). This specific TCO No. 0835957, made on 14 January 2009, pertains to certain piping bag disposables, declaring that they are subject to a free rate of duty as specified in item 50 of Schedule 4 to the Customs Tariff Act 1995.
The Act imposes several obligations on both the applicant and the CEO. The applicant must ensure that their application is not for goods specified in section 269SJ, which cannot be subject to a TCO. The CEO is required to determine whether the application meets the core criteria, which include verifying that no substitutable goods are produced in Australia on the day the application is lodged (section 269C). Additionally, the CEO must publish a notice in the Gazette, inviting any interested parties to submit objections to the TCO (subsection 269K(1)). In this instance, the CEO did not receive any submissions.
In terms of offences and penalties, the Customs Act 1901 does not explicitly state penalties for breaches related to TCOs. However, the general enforcement provisions of the Act apply, and breaches could result in civil or criminal consequences, depending on the nature and severity of the offence. The specific penalties would be determined based on the relevant sections of the Act and any applicable regulations.
The TCO itself has significant implications for the rights of parties involved. It ensures that the rights of persons (other than the Commonwealth) as at the date of registration are not disadvantaged, and no liabilities are imposed on any person for actions taken before the registration date (subsection 269S(1)). Importers, in particular, stand to benefit as they can apply for a refund of duty on goods imported since the day the TCO is taken to have come into force (paragraph 126(1)(r) of the Regulations). The TCO does not impose any new liabilities on any party, thereby maintaining a fair and transparent process for tariff concessions.