EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0908283
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.
Stauff Corporation applied for a TCO in respect of certain filler breathers on 11 March 2009.
Instrument
TCO No 0908283 was made on 29 May 2009. It declares that those certain filler breathers 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. 0908283 is taken to have come into force on 11 March 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, enacted by the Australian Parliament, provides a framework for the administration of customs duties and includes a mechanism for granting tariff concessions. Specifically, Part XVA of the Act allows the Chief Executive Officer of Customs (CEO) to make Tariff Concession Orders (TCOs) which apply reduced customs duty rates to certain goods. The policy objective of this legislative instrument is to support Australian industries by reducing the duty on goods for which there are no locally produced alternatives. The Tariff Concession Instrument No. 0908283, made on 29 May 2009, was introduced in response to an application from Stauff Corporation for tariff concessions on certain filler breathers, where the CEO found that no substitutable goods were produced in Australia. Consequently, the instrument declares that these goods are subject to a free duty rate, as opposed to the general rate of 5%. The instrument came into effect on 11 March 2009, the date the application was lodged, and no submissions were received in opposition to the TCO.
Scope and Application
The Customs Act 1901, through its Part XVA, governs the establishment of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO) that apply reduced rates of customs duty to specified goods. These orders are applicable to any person or entity seeking to import goods that meet the criteria outlined in the Act. The Act's application is national, encompassing all states and territories within Australia. Notably, the Act excludes certain goods from eligibility for TCOs as specified in section 269SJ. The CEO's decision-making process involves ensuring that the goods in question are not substitutable by any goods produced in Australia in the ordinary course of business, as defined in sections 269D and 269E of the Act. Once the CEO determines that the core criteria are met, a TCO is issued, granting the specified goods a reduced duty rate as outlined in Schedule 4 of the Customs Tariff Act 1995. In the case of Tariff Concession Instrument No. 0908283, certain filler breathers were granted a free rate of duty, effective from the date of the application on 11 March 2009. The instrument was published in the Gazette with an invitation for public submissions, none of which were received, leading to the issuance of the TCO.
Key Provisions
The key provisions of Tariff Concession Instrument No. 0908283 involve the making of Tariff Concession Orders (TCOs) under section 269F of the Customs Act 1901. When an application is made to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods, the CEO must assess whether the application meets the core criteria (section 269C). If the CEO determines that the application meets the criteria, they must issue a written order declaring that the goods are subject to a specific tariff item (subsection 269P(3)). For the particular case of Stauff Corporation, the CEO issued TCO No. 0908283 on 29 May 2009, declaring that certain filler breathers are subject to a zero rate of duty, which was previously 5%.
The obligations imposed by the Act on the parties involved are primarily on the CEO, who must ensure that any TCO applications are assessed against the core criteria. The CEO must also ensure that a notice is published in the Gazette once an application is accepted as valid, inviting any interested parties to submit submissions if they believe the TCO should not be granted (subsection 269K(1)). Additionally, the CEO must ensure that the TCO does not disadvantage any person or impose any liabilities in respect of actions taken prior to the registration of the TCO.
There are no specific offences, penalties, or civil/criminal consequences mentioned in the text for breaches of the provisions under this TCO. However, the Customs Act 1901 and associated regulations would generally apply to any breaches of customs duties and related obligations. This might include penalties such as fines or imprisonment for wilful or negligent breaches, as well as potential civil actions for damages if any party is adversely affected by a breach of the Act or its regulations. The exact penalties would depend on the nature and severity of the breach, as outlined in the broader customs legislation.