EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0844403
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.
Electroboard Pty Ltd applied for a TCO in respect of certain interactive whiteboard speakers on 17 December 2008.
Instrument
TCO No 0844403 was made on 13 March 2009. It declares that those certain interactive whiteboard speakers 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. 0844403 is taken to have come into force on 17 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. 0844403 was enacted in 2009 under the Customs Act 1901, addressing the need for tariff concessions on specific imported goods that do not have substitutable domestic alternatives. This legislative instrument was developed to provide relief to importers by reducing or eliminating customs duties on certain goods, thereby facilitating trade and reducing costs for businesses that rely on these imports. The instrument was created by the Chief Executive Officer of Customs, in accordance with section 269F of the Act, following an application by Electroboard Pty Ltd for tariff concessions on interactive whiteboard speakers. The policy objective is to encourage the import of goods that are not produced domestically, thereby supporting the availability of diverse products in the Australian market and potentially fostering competition. The instrument came into effect on the date the application was lodged, 17 December 2008, and does not affect the rights of any person prior to its registration, ensuring that it imposes no new liabilities while potentially benefiting importers by allowing them to seek refunds on duties paid before the tariff concession took effect.
Scope and Application
The Tariff Concession Instrument No. 0844403 applies to the interactive whiteboard speakers for which Electroboard Pty Ltd submitted an application under Part XVA of the Customs Act 1901. This legislation enables the Chief Executive Officer of Customs to grant tariff concessions through Tariff Concession Orders (TCOs) when specific criteria are met, such as the absence of substitutable goods produced in Australia. The TCO applies to the goods specified in the instrument, granting them a lower rate of customs duty as outlined in the Customs Tariff Act 1995. The Act operates on a Commonwealth level, applying across Australia, and affects entities such as importers who can benefit from duty refunds under the relevant regulations. The TCO does not impose any new liabilities or disadvantage any person in respect of actions taken prior to its registration, ensuring that it only affects rights prospectively from the date of registration. Any exclusions or limitations are specified within the core criteria of the Customs Act 1901, with the CEO having the authority to extend or restrict the application through subordinate instruments if necessary.
Key Provisions
The Tariff Concession Instrument No. 0844403 under the Customs Act 1901 provides for tariff concessions for specific goods, in this case, certain interactive whiteboard speakers. The primary operative sections of this legislation include sections 269F, 269C, and 269P. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO). Section 269C stipulates 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. If the CEO is satisfied that the application meets these core criteria, section 269P(3) requires the CEO to issue a written order declaring that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995.
The Act imposes several obligations and requirements on the parties involved. Firstly, the CEO must ensure that any TCO application does not pertain to goods specified in section 269SJ of the Act, which lists goods ineligible for a TCO. The CEO must also decide whether the application meets the core criteria by verifying that no substitutable goods were produced in Australia on the day the application was lodged. Additionally, under section 269K(1), the CEO must publish a notice in the Gazette inviting any interested parties to submit their views on the application. Although no submissions were received in response to the notice for this particular TCO, this requirement remains mandatory for all TCO applications.
The legislation also outlines potential consequences for breaches. While the explanatory statement does not explicitly detail offences or penalties for non-compliance with the TCO provisions, it is understood that breaches of the Customs Act 1901 or its associated regulations can lead to civil or criminal penalties. Typically, civil penalties for breaches of customs legislation can include fines up to several thousand dollars, depending on the severity and nature of the breach. Criminal penalties can include imprisonment, with the maximum penalty varying according to the specific offence. However, for this particular TCO, no breaches or penalties are indicated, as the CEO's decision to grant the concession was based on the absence of substitutable goods produced in Australia.