EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0842625
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.
Cormack Packaging applied for a TCO in respect of certain manually operated pump sprayers on 04 December 2008.
Instrument
TCO No 0842625 was made on 27 February 2009. It declares that those certain manually operated pump sprayers 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. 0842625 is taken to have come into force on 04 December 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 Australian Parliament, establishes a framework within which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs. This legislation was introduced to address the need for tariff concessions on specific goods, allowing for reduced customs duties under certain conditions. A key policy objective of the Act, as highlighted in Part XVA, is to facilitate the import of goods that are not produced domestically, thereby encouraging trade and economic activity. The explanatory statement for Tariff Concession Instrument No. 0842625 clarifies that the instrument was enacted to provide tariff relief on certain manually operated pump sprayers, effective from the date the application was lodged, provided no substitutable goods were produced in Australia at that time. The instrument ensures that importers of these goods can apply for duty refunds from the effective date, while safeguarding the rights of all parties involved.
Scope and Application
The Customs Act 1901, specifically Part XVA, governs the scheme for Tariff Concession Orders (TCOs) that can be made by the Chief Executive Officer of Customs (CEO). This legislation enables the application for reduced customs duties on goods that are the subject of a TCO, provided the application meets the core criteria set out in the Act. An applicant may apply for a TCO if the goods in question are not specified in section 269SJ of the Act, which details goods that cannot be subject to a TCO. The CEO must determine if the application meets the core criteria, which requires, among other things, that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If these criteria are satisfied, the CEO issues a written TCO, specifying the prescribed item of Schedule 4 to the Customs Tariff Act 1995 that applies to the goods in question. The Act further stipulates that a TCO does not affect the rights of any person other than the Commonwealth, ensuring that no disadvantage or liabilities are imposed on any person as a result of the TCO.
Key Provisions
The primary operative sections of the Tariff Concession Order No. 0842625 under the Customs Act 1901 (section 269P(3)) declare that certain manually operated pump sprayers are subject to a tariff concession, granting them a zero rate of duty instead of the general 5% duty (section 269P(3)). This concession applies because the Chief Executive Officer of Customs (CEO) determined that no substitutable goods were produced in Australia on the day the application was lodged (section 269C). The CEO must make a written order to effect this concession if the application meets the core criteria (section 269F). In this instance, Cormack Packaging applied for the tariff concession on 4 December 2008, and the CEO was satisfied that the application met the necessary criteria, leading to the issuance of the order on 27 February 2009.
The Customs Act 1901 imposes several obligations on the parties involved. The CEO must accept and process applications for tariff concessions, ensuring they meet the core criteria outlined in the Act. For applicants like Cormack Packaging, they must submit a valid application detailing why the goods in question should qualify for the concession. The CEO is also mandated to publish a notice in the Gazette inviting any interested parties to lodge submissions if they believe the concession should not be granted (section 269K(1)). Additionally, the CEO must ensure that the concession does not adversely affect the rights of any person other than the Commonwealth and does not impose any liabilities on such persons in respect of actions taken before the concession's effective date (section 269S(1)).
Any breach of the provisions under the Customs Act 1901 can lead to both civil and criminal consequences. While the explanatory statement does not explicitly detail the penalties, under Australian law, breaches of customs regulations can result in significant fines and, in severe cases, imprisonment. The exact penalties would depend on the nature and severity of the breach, as well as any associated laws and regulations. For instance, knowingly making false statements in an application could lead to criminal charges, while failure to comply with reporting or duty payment obligations could result in financial penalties. It is important for all parties to adhere strictly to the requirements set forth in the Act to avoid these potential consequences.