EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0842986
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 cleaning pack on 08 December 2008.
Instrument
TCO No 0842986 was made on 27 February 2009. It declares that those certain bbq cleaning pack 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. 0842986 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. 0842986, made under the Customs Act 1901, was enacted in 2009 to address the need for tariff concessions for specific goods that are not produced in Australia and for which there are no substitutable domestic goods. The Customs Act 1901 provides a framework through which the Chief Executive Officer of Customs can grant Tariff Concession Orders (TCOs) that reduce the customs duty on certain imported goods, provided that these goods do not have Australian-made equivalents. The objective of this legislative instrument is to facilitate the importation of goods that are not produced locally, thereby supporting trade and consumer access to a broader range of products at potentially lower costs. The instrument was introduced by the Parliament of Australia and aims to streamline the process for granting tariff concessions, ensuring that the application criteria are met and that no objections are raised by interested parties.
Scope and Application
The Tariff Concession Instrument No. 0842986 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for specific goods, in this case, barbeque cleaning packs. The application process is overseen by the Chief Executive Officer of Customs (CEO), who must determine if the application meets the core criteria set forth in the Act. These criteria include ensuring that no substitutable goods are produced in Australia in the ordinary course of business at the time the application is lodged. The TCO No. 0842986 was issued on 27 February 2009, declaring that the barbeque cleaning packs in question are subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, thus granting them a duty-free status. This instrument has a Commonwealth jurisdictional reach, extending nationally across Australia. The Act also mandates that the CEO must publish a notice in the Gazette inviting any interested parties to submit objections to the TCO, although no such submissions were received in this instance. The TCO came into effect on 8 December 2008, the date the application was lodged, and it does not disadvantage any person or impose any liabilities on anyone other than the Commonwealth.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0842986 under the Customs Act 1901 (section 269F) allow for the application by a person for a Tariff Concession Order (TCO) in respect of certain goods, which, if approved, results in a lower rate of customs duty being applied. A TCO application is considered valid if it meets the core criteria, which, according to section 269C, means that on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. If the Chief Executive Officer (CEO) of Customs is satisfied that these criteria are met, they must make a written order declaring that the goods are subject to a prescribed rate in Schedule 4 to the Customs Tariff Act 1995.
In relation to obligations and requirements, section 269K(1) stipulates that the CEO must publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid. This notice invites any person who believes there are reasons why the TCO should not be made to lodge a submission with the CEO. Additionally, the TCO must be registered and is taken to have come into force on the day the application was lodged, as per subsection 269S(1). The CEO in this case did not receive any submissions in response to the published notice.
Under the Customs Act 1901, breaches of the provisions related to TCOs can lead to civil or criminal consequences. However, the explanatory statement does not specify particular offences or penalties for breaches of TCOs. Generally, penalties for breaches of the Customs Act can include fines and imprisonment. For example, section 212 of the Act provides for a maximum penalty of 10,000 penalty units for serious breaches, while section 213 provides for a maximum penalty of 2,000 penalty units for less serious breaches. The specifics of penalties for breaches of TCOs would need to be referred to the broader Customs Act and any applicable regulations.