EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0906218
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.
Mercator Lighting applied for a TCO in respect of certain outdoor coach lights on 23 February 2009.
Instrument
TCO No 0906218 was made on 12 June 2009. It declares that those certain outdoor coach lights 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. 0906218 is taken to have come into force on 23 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 Customs Act 1901, as amended by Tariff Concession Instrument No. 0906218, was enacted to facilitate the process by which businesses can apply for tariff concessions on certain imported goods. This instrument, which came into force on 23 February 2009, allows for a reduced rate of customs duty for specific goods, thereby addressing the economic barriers faced by businesses in importing necessary items. The instrument was introduced in response to an application from Mercator Lighting for tariff concessions on certain outdoor coach lights, following a determination by the Chief Executive Officer of Customs that no substitutable goods were produced in Australia. The policy objective of this instrument is to provide tariff relief to importers, promoting trade and economic efficiency by ensuring that imported goods are competitively priced against locally produced alternatives. The instrument ensures that the rights of importers are protected and that the tariff concessions do not impose any liabilities on persons other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0906218, made under the Customs Act 1901, applies to the specific outdoor coach lights for which Mercator Lighting applied for a tariff concession order (TCO). This instrument is pertinent to the import of these goods into Australia and provides a lower rate of customs duty, effectively free, for the specified goods. The Act allows the Chief Executive Officer of Customs to make a TCO if certain criteria are met, primarily that no substitutable goods are produced in Australia on the day the application is lodged. The instrument's scope is limited to these particular goods and their importation into Australia, with no submissions received during the consultation process indicating opposition to the TCO. The TCO does not retroactively affect the rights or liabilities of any person other than the Commonwealth, and it does not impose any new liabilities on individuals or entities.
Key Provisions
Section 269F of the Customs Act 1901 outlines the process for applying for a Tariff Concession Order (TCO). This section stipulates that any person may apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods, provided the application is not for goods specified in section 269SJ, which lists items that cannot be subject to a TCO. Once an application is submitted, the CEO must determine whether it meets the core criteria, as defined in section 269C. This involves assessing whether, on the date of application, there were no substitutable goods produced in Australia in the ordinary course of business. If the CEO is satisfied that the application meets these criteria, they are required to issue a written TCO order, as stipulated in subsection 269P(3).
The Act imposes several obligations on the CEO when handling a TCO application. Upon receiving a valid application, the CEO must publish a notice in the Gazette, inviting any person who believes the TCO should not be made to submit their reasons to the CEO. This is outlined in subsection 269K(1) of the Act. In the case of Mercator Lighting's application for a TCO regarding certain outdoor coach lights, the CEO did not receive any submissions in response to the published notice. The CEO's role also includes ensuring that the TCO does not adversely affect the rights of any person other than the Commonwealth and does not impose any liabilities on individuals or entities for actions taken prior to the TCO's registration.
Failure to comply with the requirements set out in the Customs Act 1901 could result in various legal consequences. While the explanatory statement does not specify particular offences or penalties, it is implied that non-compliance with the TCO process or any associated regulations could lead to legal action. Such actions might include civil suits for breach of statutory duty or administrative penalties. It is essential for all parties to adhere to the provisions of the Act to avoid these potential consequences. For instance, in the case of Mercator Lighting, any deviation from the requirements of the TCO or associated regulations could result in legal repercussions, which might include financial penalties or other sanctions as deemed appropriate by the relevant authorities.