EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0903884
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.
Nhp Electrical Engineering Products applied for a TCO in respect of certain residual current devices on 05 February 2009.
Instrument
TCO No 0903884 was made on 01 May 2009. It declares that those certain residual current devices 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. 0903884 is taken to have come into force on 05 February 2009.
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. 0903884, made under the Customs Act 1901, was enacted in 2009 to address a specific gap in tariff concessions for certain residual current devices. This instrument was introduced to ensure that the application process for tariff concessions was transparent and inclusive, allowing for public submissions before a decision was made by the Chief Executive Officer of Customs. The policy objective of this legislation is to provide relief to importers by reducing or eliminating customs duty on specific goods, thereby potentially lowering the cost of imported goods and making them more competitive in the market. The instrument was made effective from the date the application was lodged, and it does not impose any liabilities or disadvantage any person other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0903884 under the Customs Act 1901 applies to specific residual current devices, which are subject to a reduced rate of customs duty as per the order made by the Chief Executive Officer of Customs. This applies to any entity or individual importing these devices, provided they meet the criteria outlined in the Act, which includes ensuring that no substitutable goods are produced in Australia in the ordinary course of business. The geographic reach of this legislation is national, as it pertains to the importation of goods into Australia and the application of customs duty as specified by the instrument. There are exclusions, as outlined in section 269SJ of the Act, which detail the types of goods that cannot be subject to a Tariff Concession Order. The instrument also notes that it does not affect the rights of any person, other than the Commonwealth, as at the date of registration and does not impose any liabilities on any person, thereby protecting the interests of importers who may benefit from the tariff concessions.
Key Provisions
The Tariff Concession Instrument No. 0903884, under the Customs Act 1901, applies to certain residual current devices and was made effective on 1 May 2009 (subsection 269P(3)). This instrument declares that the specified residual current devices are subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, which sets the rate of duty at free, whereas the general rate is 5% (section 269P(3)).
The obligations imposed by this Act on the parties primarily involve the process of application and assessment. An entity seeking tariff concession must lodge an application with the Chief Executive Officer of Customs (section 269F). The CEO must then determine if the application meets the core criteria, which include the absence of substitutable goods produced in Australia (section 269C). The CEO is also mandated to publish a notice in the Gazette inviting any submissions against the application (subsection 269K(1)).
Failure to comply with the conditions set out in the Customs Act 1901 may result in legal consequences. Although specific offences, penalties, or civil/criminal consequences for breaches of the Tariff Concession Orders are not detailed in the explanatory statement, general provisions under the Customs Act 1901 imply that breaches may lead to enforcement actions by the Customs authorities, potentially resulting in financial penalties or other legal sanctions. The specific penalties would depend on the nature and severity of the breach, as outlined in the broader legislative framework of the Customs Act 1901.