EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0842984
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 bbq scoops on 08 December 2008.
Instrument
TCO No 0842984 was made on 27 February 2009. It declares that those certain bbq scoops 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. 0842984 is taken to have come into force on 08 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 Tariff Concession Instrument No. 0842984 was introduced in 2009 under the Customs Act 1901, with the aim of providing tariff concessions for specific goods. This instrument allows the Chief Executive Officer of Customs to grant tariff concessions on certain goods, resulting in a lower rate of customs duty for those goods. The Customs Act 1901 facilitates the process of applying for and granting tariff concession orders, ensuring that the core criteria for such orders are met. The instrument in question concerns bbq scoops, for which McPhersons Consumer Products applied for a tariff concession order on 8 December 2008.
The Australian Government, through the relevant legislature, enacted this instrument to address the need for tariff concessions on specific goods, providing benefits to importers and ensuring that no existing rights or liabilities of any person are adversely affected. The process of granting these concessions involves publishing notices in the Gazette and considering any submissions received, although in this instance, no submissions were made. The tariff concession order came into force on the date the application was lodged, providing relief to importers who can apply for a refund of duty on goods imported since the commencement date.
Scope and Application
The Tariff Concession Instrument No. 0842984 under the Customs Act 1901 applies specifically to the goods for which a Tariff Concession Order (TCO) has been applied and approved by the Chief Executive Officer of Customs. This legislation facilitates the reduction or exemption of customs duty on specified goods, provided that the application meets the core criteria stipulated in the Act. These criteria include the absence of substitutable goods produced in Australia in the ordinary course of business, as defined by the Act. The instrument extends to any entity or individual importing the designated goods, thereby directly affecting the import procedures and duties associated with these goods. Geographically, the application of this TCO is national, as it pertains to the Australian customs regime. However, it does not apply to goods specified in section 269SJ of the Act that are explicitly excluded from TCO consideration. The commencement of this TCO, dated 8 December 2008, implies that the tariff concessions apply retroactively to that date, benefiting importers who may now claim refunds for duties paid on the goods since the effective date. The TCO does not disadvantage any existing parties or impose new liabilities, ensuring that it only favourably impacts the rights of importers post its effective date.
Key Provisions
The primary sections of the Tariff Concession Instrument No. 0842984 under the Customs Act 1901 (sections 269C, 269P(3), and 269S) establish the process for making Tariff Concession Orders (TCOs). Section 269C stipulates that an application for a TCO meets core criteria if, at the time of application, no substitutable goods are produced in Australia. Section 269P(3) mandates that if the Chief Executive Officer (CEO) of Customs is satisfied that the application meets these criteria, they must issue a written order (TCO). The instrument declares that certain bbq scoops are subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, with the duty rate for these goods being reduced to free from the general rate of 5%.
The Act imposes several obligations on parties applying for a TCO. The applicant must ensure that the application is not for goods specified in section 269SJ, which lists goods ineligible for a TCO. Additionally, the CEO must publish a notice in the Gazette inviting submissions from interested parties if the application is deemed valid. The CEO must also consider any submissions received and decide whether the application meets the core criteria based on the definitions of 'goods produced in Australia', 'ordinary course of business', and 'substitutable goods' provided in sections 269D, 269E, and 269F respectively.
Failure to comply with the requirements of the Customs Act 1901 may result in various consequences. Although the explanatory statement does not explicitly list offences or penalties, breaches of customs regulations generally carry significant civil or criminal penalties. For example, knowingly making a false statement or representation in a customs document can lead to fines up to $22,200 for individuals or $111,000 for corporations, as stipulated under section 236 of the Customs Act 1901. Furthermore, failure to comply with TCO requirements or other customs obligations can result in penalties such as the imposition of duties and interest on the goods, or other administrative sanctions.