EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0837559
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.
Reliance Worldwide Pty Ltd applied for a TCO in respect of certain crimping jaws on 29 October 2008.
Instrument
TCO No 0837559 was made on 23 January 2009. It declares that those certain crimping jaws 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. 0837559 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. 0837559, enacted in 2009 under the Customs Act 1901, addresses the need for tariff concessions on specific goods to ensure they are not subject to customs duties that may otherwise apply. This legislative instrument was introduced to facilitate the application process for tariff concession orders (TCOs) as stipulated in Part XVA of the Customs Act, allowing for the reduction or exemption of customs duty on certain goods when no substitutable goods are produced in Australia. The Commonwealth Parliament enacted this instrument to provide a streamlined process for businesses to apply for and obtain tariff concessions on specific goods, thereby ensuring competitive pricing and accessibility in the market.
The Chief Executive Officer of Customs (CEO) is responsible for determining whether an application for a TCO meets the core criteria, which requires that no substitutable goods were produced in Australia on the day the application was lodged. This mechanism was designed to protect Australian industries by ensuring that tariff concessions are only granted when necessary and appropriate. The policy objective is to encourage the importation of goods that are not produced domestically, thereby benefiting consumers and businesses by reducing costs and increasing market diversity. This instrument ensures that the rights of importers are not adversely affected, and they may be eligible for duty refunds on goods imported since the effective date of the concession.
Scope and Application
The Customs Act 1901, specifically under Part XVA, governs the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO) to lower the customs duty rate on certain imported goods. This legislation applies to individuals or entities who are importing goods and can apply for a TCO if the goods meet specific criteria, such as not having substitutable goods produced in Australia in the ordinary course of business. The geographic scope of the Act is national, as it applies across Australia under Commonwealth law. The Act does not impose any disadvantages or liabilities on persons other than the Commonwealth and does not affect rights as they stood before the registration of the TCO. While the Act itself specifies the primary conditions for issuing a TCO, subordinate instruments may further detail specific processes or additional criteria to be considered by the CEO in making such orders.
Key Provisions
The main sections of the Customs Act 1901 relevant to this Tariff Concession Order (TCO) include section 269F, which allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO concerning certain goods. Section 269C stipulates that an application meets the core criteria if no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If the CEO is satisfied with the application, they must issue a written order as a TCO, as outlined in section 269P(3). This specific TCO, number 0837559, applies to certain crimping jaws, declaring them to be subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, thereby granting a duty-free status to these goods.
The Act imposes several obligations and requirements on the parties it governs. Firstly, section 269K(1) mandates that as soon as practicable after accepting a TCO application as valid, the CEO must publish a notice in the Gazette inviting any interested party to lodge a submission if they believe the TCO should not be made. In this case, the CEO did not receive any submissions. Secondly, section 269S(1) stipulates that a TCO comes into force on the day the application for the TCO was lodged. For TCO No. 0837559, this date is 29 October 2008. Additionally, the TCO does not affect the rights of any person (other than the Commonwealth) as at the date of registration in a way that disadvantages them or imposes liabilities for actions taken before the registration date.
Under the Customs Act 1901, there are no specific offences, penalties, or civil or criminal consequences outlined for breaches of the TCO provisions. However, section 269S(1) ensures that the TCO does not impose any liabilities on any person and does not disadvantage any person other than the Commonwealth. Importers of the affected goods can apply for a refund of duty on goods imported since the day the TCO is taken to have come into force, as per paragraph 126(1)(r) of the Regulations. This provision aims to ensure that the TCO benefits the importers without imposing any additional burdens or liabilities.