EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0906067
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.
Anaconda Stores Pty Ltd applied for a TCO in respect of certain fillet kits on 20 February 2009.
Instrument
TCO No 0906067 was made on 15 May 2009. It declares that those certain fillet kits 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. 0906067 is taken to have come into force on 20 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. 0906067, enacted in 2009, is a legislative instrument under the Customs Act 1901, designed to provide tariff concessions for specific goods that are not produced in Australia in the ordinary course of business. This instrument was introduced to address the gap in tariff rates for imported goods that have no substitutable domestic production, thereby ensuring that Australian consumers and businesses can access certain goods at a reduced customs duty rate. The instrument was enacted by the Chief Executive Officer of Customs following an application by Anaconda Stores Pty Ltd for tariff concessions on certain fillet kits. The policy objective is to provide a tariff concession that benefits importers by reducing the duty on these specific goods to zero, thereby facilitating trade and ensuring competitive pricing for consumers. The instrument came into effect on the date the application was lodged, 20 February 2009, and does not affect the rights of any person as at the date of registration, ensuring that no existing liabilities or disadvantages are imposed on individuals or entities.
Scope and Application
The Customs Act 1901, as modified by the Tariff Concession Instrument No. 0906067, provides a mechanism through which the Chief Executive Officer of Customs can grant tariff concession orders (TCO) that apply lower rates of customs duty on specified goods. This process is applicable to any person or entity that applies for such concessions, provided the goods in question do not fall under the category of items explicitly excluded by section 269SJ of the Act. The scope of the legislation is national, extending across the Commonwealth of Australia, and it applies to the importation of goods that meet the core criteria set out in the Act. The Act specifies that no substitutable goods should be produced in Australia at the time of the application, as per sections 269C and 269D, and further defines the terms 'ordinary course of business' and'substitutable goods'. The geographic reach of this legislation is nationwide, and it does not impose any liabilities or affect the rights of individuals adversely if applied retrospectively. The TCO in question, specifically Instrument TCO No. 0906067, relates to certain fillet kits and took effect from the date of the application, 20 February 2009.
Key Provisions
The Tariff Concession Instrument No. 0906067 under the Customs Act 1901 primarily focuses on the establishment of Tariff Concession Orders (TCOs) for certain goods. Section 269F of the Act allows a person to apply to the Chief Executive Officer (CEO) of Customs 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, and that no substitutable goods were produced in Australia on the day the application was lodged (section 269C), the CEO must make a TCO. This order declares that the goods are subject to a prescribed item in Schedule 4 to the Customs Tariff Act 1995, effectively reducing the duty rate.
The Act imposes several obligations on the parties involved. The CEO must review the application against the core criteria (sections 269C and 269B), ensuring that the goods are not substitutable and that they were not produced in Australia in the ordinary course of business on the application date. The CEO must also publish a notice in the Gazette inviting submissions from any person who might have reasons to oppose the TCO (subsection 269K(1)). Once a TCO is made, it comes into force on the date the application was lodged (subsection 269S(1)). The TCO does not affect the rights of a person as at the date of registration and does not impose any liabilities on any person.
Section 269SJ of the Customs Act 1901 outlines the types of goods that cannot be subject to a TCO. Any application for a TCO in respect of these goods must be rejected by the CEO. The obligations of the CEO include verifying the eligibility of the goods for a TCO, considering any submissions received, and making the TCO if the criteria are met. Importers, on the other hand, must ensure they meet the criteria for applying for a TCO and can apply for a refund of duty under paragraph 126(1)(r) of the Regulations for goods imported since the TCO came into force.
Failure to comply with the provisions of the Customs Act 1901 can result in penalties. While the explanatory statement does not detail specific offences or penalties, breaches of the Act or Regulations could lead to civil or criminal consequences. For example, making false or misleading statements in an application could lead to fines or imprisonment under the relevant sections of the Act. The maximum penalties for such offences can vary, depending on the specific breach and the jurisdiction.