EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0845403
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.
Vita Gold Products applied for a TCO in respect of certain pouch desiccant inserter on 30 December 2008.
Instrument
TCO No 0845403 was made on 27 March 2009. It declares that those certain pouch desiccant inserter 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. 0845403 is taken to have come into force on 30 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. 0845403, enacted under the Customs Act 1901, addresses the problem of ensuring that Australian industries remain competitive by providing tariff concessions for specific goods that are not produced domestically. The instrument was introduced by the Chief Executive Officer of Customs in response to an application from Vita Gold Products for tariff concessions on certain pouch desiccant inserters. The objective of this instrument is to grant tariff relief by exempting these goods from the standard customs duty, thereby benefiting importers who can now claim refunds for duties paid on these goods since the instrument's effective date of 30 December 2008. The instrument ensures that no existing rights or liabilities of non-Commonwealth entities are adversely affected.
Scope and Application
The Tariff Concession Instrument No. 0845403, made under the Customs Act 1901, applies to Vita Gold Products in relation to their application for a Tariff Concession Order (TCO) for certain pouch desiccant inserters. The instrument applies to goods that are subject to a TCO, reducing their customs duty rate from the general rate to free. The Act enables the Chief Executive Officer of Customs to make a TCO if the application meets the core criteria, specifically if no substitutable goods were produced in Australia in the ordinary course of business on the date the application was lodged. The application for the TCO must also not be in respect of goods specified in section 269SJ of the Act, which lists goods that cannot be subject to a TCO. The geographic reach of this Act and its subordinate instruments is national, as the Act applies throughout Australia. There are no stated exclusions, exemptions, or thresholds in this particular TCO, though the Act allows for the possibility of exclusions and exemptions through its legislative framework. The application of the TCO does not affect the rights of any person as at the date of registration, except to the benefit of importers who can apply for a refund of duty on goods imported since the TCO came into force.
Key Provisions
The main operative sections of this legislation, specifically Tariff Concession Order No. 0845403, include section 269C, which stipulates that a Tariff Concession Order (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 269P(3) requires the Chief Executive Officer of Customs (CEO) to make a written order declaring that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995 if the CEO is satisfied that the application meets the core criteria. Section 269K(1) mandates that the CEO must publish a notice in the Gazette inviting submissions on the TCO application, while section 269S(1) specifies that the TCO is effective from the date the application was lodged.
These sections impose several obligations on the parties involved. The CEO must evaluate the TCO application to determine if it meets the core criteria, which involves assessing whether any substitutable goods were being produced in Australia on the application date. If the CEO determines that the application meets the core criteria, they must issue a written TCO order. Additionally, the CEO must publish a notice in the Gazette inviting public submissions regarding the application. Should no submissions be received, the TCO can proceed as planned. Importers of the goods subject to the TCO will have the right to apply for a refund of duty paid on imports made since the effective date of the TCO, as per paragraph 126(1)(r) of the Regulations.
The Act does not explicitly state any offences, penalties, or civil/criminal consequences for breaches of the TCO provisions. However, the legislative framework surrounding the Customs Act 1901 and the Customs Tariff Act 1995 suggests that any non-compliance with these provisions could potentially lead to legal actions under the broader customs and tariff laws. These might include penalties for misrepresentation, fraud, or any other breaches of customs regulations. The specific penalties would depend on the nature and severity of the breach, as outlined in the respective acts and regulations.