EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0836867
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.
Paper Choice Pty Ltd applied for a TCO in respect of certain white woodfree printing paper on 24 October 2008.
Instrument
TCO No 0836867 was made on 16 January 2009. It declares that those certain white woodfree printing paper 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. 0836867 is taken to have come into force on 24 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, enacted by the Parliament of Australia, establishes a framework for the imposition of customs duty on imported goods, among other things. It includes provisions for Tariff Concession Orders (TCOs) under Part XVA, which allows for reduced customs duty rates on certain goods. This legislative instrument, Tariff Concession Instrument No. 0836867, was introduced to address the need for tariff concessions on specific imported goods that are not produced domestically, thus facilitating trade and reducing costs for importers. The objective of this instrument is to ensure that the application process for TCOs is transparent and allows for public consultation, as evidenced by the invitation for submissions which, in this case, yielded none. This instrument was made on 16 January 2009 by the Chief Executive Officer of Customs, who was satisfied that the application met the criteria outlined in the Act, particularly that no substitutable goods were produced in Australia.
Scope and Application
The Tariff Concession Instrument No. 0836867, made under the Customs Act 1901, applies to certain white woodfree printing paper, reducing the customs duty from the general rate of 5% to free. This instrument pertains to the application made by Paper Choice Pty Ltd, and the concession applies to goods that were not produced in Australia in the ordinary course of business at the time the application was lodged. The CEO of Customs, upon determining that no substitutable goods were produced domestically, issued the Tariff Concession Order (TCO), which came into effect on 24 October 2008, the date the application was lodged. The instrument is applicable nationally within Australia and benefits importers by allowing them to apply for a refund of duty on goods imported since the effective date of the TCO. The instrument does not disadvantage or impose liabilities on any person other than the Commonwealth for actions taken before its registration, ensuring that it only affects the rights of parties beneficially from the date of its implementation.
Key Provisions
The main operative sections of this legislation focus on the process and conditions under which Tariff Concession Orders (TCOs) can be made under the Customs Act 1901 (the Act). Specifically, section 269F outlines the application process for a TCO, where a person can apply to the Chief Executive Officer of Customs (the CEO) for a lower rate of customs duty on certain goods (section 269F(1)). Section 269C then defines the core criteria that must be satisfied for the CEO to approve such an application, which primarily involves ensuring that no substitutable goods are produced in Australia in the ordinary course of business at the time of application (section 269C(1)). If these criteria are met, the CEO is required to make a written order declaring the applicable prescribed item of Schedule 4 to the Customs Tariff Act 1995 (the Tariff) (section 269P(3)).
Under this Act, the CEO has specific obligations and requirements to follow when processing a TCO application. Upon receiving an application, the CEO must first determine if it pertains to goods that cannot be subject to a TCO as specified in section 269SJ of the Act (section 269F(2)). If the application does not involve such goods, the CEO must then assess whether the application meets the core criteria as outlined in section 269C. This includes verifying that no substitutable goods are produced in Australia at the time of application, as defined by sections 269D, 269E, and 269F of the Act. Additionally, the CEO must publish a notice in the Gazette, inviting submissions from any person who believes there are reasons why the TCO should not be made (subsection 269K(1)). In this case, the CEO did not receive any submissions, and thus proceeded to make the TCO.
The Act imposes specific consequences for breaches of its provisions. While the explanatory statement does not explicitly outline offences or penalties, it is reasonable to infer that any failure to comply with the statutory requirements or fraudulent applications could potentially lead to legal actions. For instance, the Act’s requirements are designed to ensure the proper application of tariff concessions, and non-compliance might result in civil or criminal penalties as prescribed by other sections of the Customs Act or relevant legislation. The specifics of such penalties would typically be determined in the context of broader legal proceedings.