EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0837713
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.
Mcphersons Consumer Products applied for a TCO in respect of certain ceramic foot file on 30 October 2008.
Instrument
TCO No 0837713 was made on 23 January 2009. It declares that those certain ceramic foot file 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. 0837713 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 Tariff Concession Instrument No. 0837713, enacted in 2009, provides a lower rate of customs duty for certain ceramic foot files under the Customs Act 1901. This legislation was introduced to address the issue of applying for tariff concessions for goods that are not produced domestically in Australia, thereby ensuring that the Australian market remains competitive without imposing unnecessary burdens on consumers. The instrument was enacted by the Chief Executive Officer of Customs, in accordance with section 269F of the Customs Act 1901, and the policy objective was to facilitate the importation of these goods without incurring high customs duties, thus benefiting both importers and consumers. The instrument was published in the Gazette, inviting any objections to the concession, although none were received, and it came into effect on the date the application was lodged, 30 October 2008.
Scope and Application
The Tariff Concession Instrument No. 0837713 applies to certain ceramic foot files, specifically those subject to the application made by McPhersons Consumer Products on 30 October 2008. It falls under the purview of Part XVA of the Customs Act 1901, which governs the making of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. The Act applies to the goods specified in the application and mandates that no substitutable goods were produced in Australia in the ordinary course of business at the time the application was lodged. The instrument is designed to provide tariff concessions to the specified goods, effectively setting their customs duty rate to free, down from the general rate of 5%. The geographic and jurisdictional reach of this Act is limited to the Commonwealth of Australia, with the application and effect confined to the specified goods and the dates mentioned. The Act does not extend or restrict its application through subordinate instruments but relies on the core criteria set out in the Customs Act 1901. There are no stated exclusions or exemptions within this specific TCO, though certain goods are ineligible under section 269SJ of the Act. The TCO does not disadvantage any person or impose liabilities in respect of actions taken before its registration.
Key Provisions
The primary sections of the Customs Act 1901 that are relevant here include sections 269C, 269F, 269P, and 269SJ. Section 269F (1) allows a person to apply to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO) in respect of goods. The CEO must then determine whether the application meets the core criteria, which is outlined in section 269C of the Act. If the CEO is satisfied that the application meets these criteria, a TCO must be issued as per section 269P(3). Section 269SJ specifies the goods that cannot be the subject of a TCO.
The obligations imposed by the Act on parties and entities include the requirement for a person to apply for a TCO if they wish to benefit from a lower rate of customs duty on specific goods. The CEO of Customs has the responsibility to assess whether the application meets the core criteria. This involves verifying that no substitutable goods are produced in Australia on the day the application was lodged, as defined by sections 269D and 269E of the Act. If the application meets these criteria, the CEO must make a written TCO.
The Act also outlines the consequences of breaching its provisions. Although the explanatory statement does not specify criminal offences or penalties, it does state that the CEO must follow the procedures outlined in the Act when deciding on a TCO application. Failure to comply with these procedures could potentially lead to legal challenges or administrative penalties, as the Act is enforced by the CEO of Customs. The statement also highlights that the TCO does not disadvantage any person or impose liabilities on any person, except the Commonwealth, in respect of anything done or omitted to be done before the date of registration.
The explanatory statement further clarifies that once a TCO is issued, importers can apply for a refund of duty on goods imported since the TCO is taken to have come into force, as per paragraph 126(1)(r) of the Regulations. This provision ensures that importers benefit from the lower duty rate. The CEO is also required to publish a notice in the Gazette inviting any person who considers there are reasons why the TCO should not be made to lodge a submission. In the case of TCO No. 0837713, no submissions were received in response to this invitation, indicating a smooth process without objections.