EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0911059
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 table and floor lamps on 01 April 2009.
Instrument
TCO No 0911059 was made on 19 June 2009. It declares that those certain table and floor lamps 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. 0911059 is taken to have come into force on 01 April 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. 0911059, enacted in 2009 under the Customs Act 1901, addresses the need for a streamlined process to provide tariff concessions on specific goods, thereby facilitating trade and potentially reducing costs for importers. This instrument was introduced to allow for a lower rate of customs duty on goods that are the subject of a Tariff Concession Order (TCO) when the Chief Executive Officer of Customs is satisfied that the application meets the core criteria, namely that no substitutable goods were produced in Australia. The instrument is designed to benefit importers by potentially lowering their duty costs and providing a refund mechanism for duties already paid on eligible goods since the TCO's effective date. The instrument was published in the Gazette, inviting any objections, though none were received, and it came into effect on the date the application was lodged, ensuring that it does not adversely affect the rights of any person prior to its registration.
Scope and Application
The Tariff Concession Instrument No. 0911059 applies to goods, specifically certain table and floor lamps, that are subject to a Tariff Concession Order (TCO) under Part XVA of the Customs Act 1901. This Act pertains to the regulation of customs duty on imported goods, and the instrument specifically addresses the reduction of customs duty on the specified lamps. The application of the TCO is governed by the Chief Executive Officer of Customs (CEO), who must determine if the application meets the core criteria set out in the Act. The geographic reach of this legislation is national, as it pertains to the importation of goods into Australia and the application of customs duty under Australian law. The TCO excludes goods specified in section 269SJ of the Act, which lists those that cannot be subject to a TCO. The instrument also extends the application of the TCO through subordinate instruments, which may further define terms or provide additional criteria for eligibility. The TCO does not impose any liabilities on persons other than the Commonwealth and does not disadvantage anyone's rights as of the date of registration.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0911059 under the Customs Act 1901 (section 269P(3)) establish the framework for making Tariff Concession Orders (TCOs). If the Chief Executive Officer of Customs (CEO) is satisfied that an application for a TCO meets the core criteria, the CEO is required to make a written order (section 269P(3)). This order declares that the goods in question are subject to a specific item of Schedule 4 to the Customs Tariff Act 1995, with the associated duty rate specified in the order. In this case, the TCO No. 0911059 made on 19 June 2009 declared that certain table and floor lamps are goods to which item 50 of Schedule 4 to the Tariff applies, resulting in a duty rate of free.
The Act imposes several obligations and requirements on the parties involved. Firstly, any person can apply to the CEO for a TCO in respect of goods (section 269F). The CEO must ensure that the application is not in respect of goods specified in section 269SJ of the Act, which outlines those goods that cannot be subject to a TCO. If the application is valid, the CEO must decide whether it meets the core criteria (section 269C). This decision hinges on whether substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If the CEO is satisfied that the application meets these criteria, a TCO must be issued (section 269P(3)). Additionally, as soon as practicable after accepting a TCO application as a valid application, the CEO must publish a notice in the Gazette inviting any interested person to lodge a submission if they believe the TCO should not be made (subsection 269K(1)).
In terms of consequences for breach, the Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for failing to comply with the provisions of the TCO or the application process. However, any breach of the Customs Act 1901 or associated regulations could lead to penalties under the general provisions of the Act. These may include fines or imprisonment, depending on the nature and severity of the breach. The specific penalties would be determined by the relevant courts and are not detailed within the confines of this particular TCO instrument.
The Tariff Concession Instrument No. 0911059 has been designed to ensure that importers of the specified table and floor lamps can benefit from a reduced duty rate, which is zero in this instance. The rights of other parties, as at the date of registration, are not adversely affected by the TCO. Importers, however, will have the opportunity to apply for a refund of duty on goods imported since the TCO is taken to have come into force on 01 April 2009 (paragraph 126(1)(r) of the Regulations). The instrument clearly states that no liabilities will be imposed on any person due to the TCO, further safeguarding the interests of all parties involved.