EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0844023
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.
Paperlinx Australia applied for a TCO in respect of certain display panel system on 16 December 2008.
Instrument
TCO No 0844023 was made on 06 March 2009. It declares that those certain display panel system 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. 0844023 is taken to have come into force on 16 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 was enacted to provide for the regulation of customs and excise in Australia. The Act was introduced to address the need for a comprehensive legislative framework governing customs duties, border control, and related administrative processes. The Tariff Concession Instrument No. 0844023, issued under the authority of the Customs Act 1901, was enacted by the Chief Executive Officer of Customs in response to an application from Paperlinx Australia for tariff concessions on certain display panel systems. This instrument aims to provide a lower rate of customs duty on these goods, contingent on the CEO's determination that no substitutable goods are produced in Australia. The instrument came into force on the date the application was lodged, 16 December 2008, and allows for the duty-free importation of the specified goods while ensuring that no existing rights or liabilities are adversely affected.
Scope and Application
The Tariff Concession Instrument No. 0844023 under the Customs Act 1901 applies to specific goods, in this case certain display panel systems, and is applicable to entities such as Paperlinx Australia that seek tariff concessions for the importation of these goods. The Act allows the Chief Executive Officer of Customs to make Tariff Concession Orders (TCO) that can provide a lower rate of customs duty on certain goods, provided the application meets the core criteria stipulated in the Act. The core criteria include that no substitutable goods are produced in Australia at the time of the application. This instrument has a Commonwealth jurisdictional reach as it is part of the federal legislative framework. The Act extends its application through subordinate instruments, such as the Customs Tariff Act 1995, which specifies the duty rates applicable to goods under TCOs. There are no exclusions or exemptions specified in the TCO itself, although the Act excludes certain goods from being subject to TCOs altogether, as outlined in section 269SJ of the Customs Act. The TCO does not affect any existing rights of individuals or entities and does not impose any new liabilities.
Key Provisions
The main operative sections of this legislation include sections 269C, 269B, and 269P(3) of the Customs Act 1901, which outline the criteria and process for making Tariff Concession Orders (TCOs). Section 269C specifies that a TCO application meets the core criteria if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269B defines key terms such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods'. Section 269P(3) mandates that if the Chief Executive Officer of Customs (CEO) is satisfied that the application meets the core criteria, they must make a written order (a TCO) declaring that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995.
Under this Act, the CEO has specific obligations when processing a TCO application. Upon receiving an application, the CEO must determine whether it meets the core criteria by assessing whether no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If the application is deemed valid, the CEO must make a written TCO and publish a notice in the Gazette inviting any interested parties to lodge submissions. If no submissions are received, the CEO must proceed with making the TCO. Additionally, the CEO must ensure that the rights of importers are not adversely affected by the TCO, and importers can apply for duty refunds on goods imported since the date the TCO is deemed to have come into force.
The Act does not explicitly outline specific offences or penalties for breaches related to the making of TCOs. However, general compliance with the Customs Act 1901 is expected, and any breaches of the Act or Regulations could result in civil or criminal penalties, including fines and imprisonment. The maximum penalties for breaches are determined by the severity of the offence under the relevant sections of the Customs Act and associated Regulations. It is essential for parties involved in the importation of goods to adhere to the provisions of the TCO and the broader Customs Act to avoid potential legal repercussions.