EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0837558
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.
Cr Kennedy & Co applied for a TCO in respect of certain global navigation satellite antenna on 29 October 2008.
Instrument
TCO No 0837558 was made on 23 January 2009. It declares that those certain global navigation satellite antenna 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. 0837558 is taken to have come into force on 29 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. 0837558, enacted in 2009, is a regulation under the Customs Act 1901 designed to address the need for tariff concessions on specific imported goods. This legislation facilitates the reduction of customs duty rates for certain goods, as long as they meet the criteria stipulated within the Act, thereby encouraging trade and potentially reducing costs for businesses importing these goods. The instrument was created by the Chief Executive Officer of Customs, following an application by Cr Kennedy & Co for tariff concessions on certain global navigation satellite antennae. The instrument aims to ensure that no substitutable goods were produced in Australia at the time of application, which is a core criterion for approval. The instrument was made effective from the date of application, 29 October 2008, and does not affect the rights of any person adversely, while providing potential benefits to importers who can apply for a refund of duty on goods imported since the effective date.
Scope and Application
The Customs Act 1901, as amended, includes a scheme for Tariff Concession Orders (TCOs) which can be applied for by any person seeking to import goods into Australia. These orders are made by the Chief Executive Officer of Customs and apply to specific goods that are not being produced in Australia in the ordinary course of business, thereby qualifying for a lower rate of customs duty. The scope of this Act extends to any entity or individual involved in the import of goods that may be subject to a TCO, and it operates on a national level within the Commonwealth of Australia. The Act does not apply to goods specified in section 269SJ, which are ineligible for tariff concessions. The application of this Act can be further refined through subordinate instruments, such as regulations and subsidiary legislation, which may provide additional detail or criteria for determining eligibility for a TCO. The Act ensures that the rights of importers are protected and can benefit from duty refunds on eligible goods, without imposing new liabilities on individuals or entities.
Key Provisions
The primary operative sections of this legislation (F2009L00521) pertain to Tariff Concession Orders (TCOs) under Part XVA of the Customs Act 1901. According to section 269F, a person may apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. If the CEO is satisfied that the application is not for goods specified in section 269SJ and meets the core criteria in section 269C, the CEO must make a written order declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995. For instance, TCO No. 0837558 was made for certain global navigation satellite antennas on 23 January 2009, declaring that these goods are subject to item 50 of Schedule 4, with a duty rate of free, down from the general rate of 5%.
The Act imposes certain obligations on the parties involved. Firstly, applicants must ensure their applications are not for goods specified in section 269SJ and meet the core criteria set out in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. The CEO has the duty to process valid applications and make a TCO if the core criteria are satisfied. Additionally, subsection 269K(1) requires the CEO to publish a notice in the Gazette inviting submissions from any person who considers there are reasons why the TCO should not be made. In this instance, no submissions were received.
Offences, penalties, or consequences for breach of this legislation are not explicitly detailed within the provided text. However, the Customs Act 1901 generally includes provisions for offences and penalties related to breaches of customs laws, which may apply to non-compliance with TCO requirements. The maximum penalties for breaches of customs laws can include fines and imprisonment, depending on the severity of the breach. The specifics would need to be referred to in the broader Customs Act 1901 for precise details.