EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0837712
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.
Mcpherson Consumer Products Pty Ltd applied for a TCO in respect of certain garden tool sets on 30 October 2008.
Instrument
TCO No 0837712 was made on 16 January 2009. It declares that those certain garden tool sets 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. 0837712 is taken to have come into force on 30 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, as amended, includes provisions that allow for Tariff Concession Orders (TCOs) which offer reduced rates of customs duty on certain goods. The Tariff Concession Instrument No. 0837712 was enacted in 2009 to address the need for a streamlined process to grant tariff concessions on specific goods where no substitutable goods are produced in Australia. This instrument was introduced by the Parliament of Australia and aims to facilitate trade by reducing the duty burden on importers of eligible goods, thereby promoting economic efficiency and competitiveness. In this instance, McPherson Consumer Products Pty Ltd successfully applied for a tariff concession on certain garden tool sets, resulting in a duty reduction from 5% to free. The enactment ensures that the rights of importers are protected and that no existing rights or liabilities are adversely affected by the concession.
Scope and Application
The Tariff Concession Instrument No. 0837712 applies to the concessions on customs duty for certain garden tool sets, as requested by McPherson Consumer Products Pty Ltd. This instrument is a product of the Customs Act 1901, specifically under Part XVA, which allows the Chief Executive Officer of Customs to issue Tariff Concession Orders (TCO) upon application. The TCO applies to goods specified in the application and is effective from the date the application was lodged, in this case, 30 October 2008. The geographic reach of this Act is national, as it pertains to the importation of goods into Australia and the application of customs duties. The instrument does not affect any existing rights of persons, except to the benefit of importers who can now apply for a refund of duties on the specified goods. It is noteworthy that the Act also includes provisions for public consultation before the issuance of a TCO, although in this instance, no submissions were received. The application and implementation of this TCO are further regulated by the Customs Tariff Act 1995 and the Customs Regulations 1999, which can extend or specify additional details regarding the application of the TCO.
Key Provisions
The main operative sections of this legislation include section 269C, which sets out the core criteria that an application for a Tariff Concession Order (TCO) must meet. According to section 269C, for the CEO to be satisfied that an application meets the core criteria, the CEO must be convinced, on the day the application was lodged, that no substitutable goods were produced in Australia in the ordinary course of business. This requirement is elaborated further in sections 269D and 269E, which define 'goods produced in Australia' and 'ordinary course of business' respectively. Section 269P(3) mandates that if the CEO is satisfied that the application meets the core criteria, they must make a written order (a TCO) declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies.
Under this legislation, the obligations imposed on the parties involved are primarily centred on the application process for a TCO. The applicant, in this case McPherson Consumer Products Pty Ltd, must ensure that their application is valid and meets the core criteria as outlined in section 269C. The CEO of Customs has the responsibility to assess the application against these criteria and, if satisfied, to make the TCO. Additionally, as per subsection 269K(1), the CEO must publish a notice in the Gazette inviting submissions from any interested parties who may oppose the making of the TCO. The CEO also has an obligation to consider any submissions received in response to the published notice.
In terms of potential offences, penalties, or consequences for breaches of this legislation, the explanatory statement does not provide specific details on civil or criminal penalties. However, it is important to note that the TCO does not affect the rights of any person, other than the Commonwealth, as at the date of registration. This means that the TCO does not disadvantage any person or impose any liabilities on any person in respect of anything done or omitted to be done before the date of registration. Furthermore, the rights of importers are beneficially affected under the TCO, as they will be able to apply for a refund of duty on goods imported since the day the TCO is taken to have come into force.