EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0911258
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.
Chemring Australia applied for a TCO in respect of certain fuse removal levers on 02 April 2009.
Instrument
TCO No 0911258 was made on 26 June 2009. It declares that those certain fuse removal levers 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. 0911258 is taken to have come into force on 02 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. 0911258 was enacted in 2009 under the Customs Act 1901 to address the issue of providing tariff concessions for specific imported goods. This instrument was created to provide relief to importers by reducing or eliminating customs duty on certain goods, thereby making them more competitively priced in the Australian market. The instrument was introduced following an application by Chemring Australia for tariff concessions on certain fuse removal levers, which was approved by the Chief Executive Officer of Customs (CEO) after determining that no substitutable goods were produced in Australia in the ordinary course of business. The CEO's decision was based on the core criteria outlined in section 269C of the Act, ensuring that the concession would not undermine domestic production. This instrument ensures that the rights of importers are positively affected, allowing them to apply for refunds of duty paid on the specified goods since the day the instrument came into force, without imposing any new liabilities on individuals or entities.
Scope and Application
The Tariff Concession Instrument No. 0911258 applies to the concession of customs duty on specific goods, namely certain fuse removal levers, as determined by the Chief Executive Officer of Customs under the Customs Act 1901. The Act applies to any person or entity seeking a tariff concession order for goods, provided the application meets the core criteria outlined in the Act, which include ensuring that no substitutable goods are produced in Australia at the time of the application. This instrument has a national jurisdictional reach, operating under the authority of the Commonwealth and affecting all relevant parties within Australia. The instrument does not apply to goods specified in section 269SJ of the Act, which are ineligible for tariff concessions. The instrument’s application can be extended or restricted through subordinate instruments, although the primary scope remains as defined within the Act. The commencement of this particular instrument is deemed to be from 02 April 2009, the date the application was lodged, and it does not disadvantage any person or impose liabilities on individuals for actions taken before its registration.
Key Provisions
The key provisions of Tariff Concession Instrument No. 0911258 under the Customs Act 1901 (section 269C, 269P, 269K) allow the Chief Executive Officer of Customs (CEO) to grant tariff concessions on certain goods when no substitutable goods are produced in Australia in the ordinary course of business. The instrument specifically applies to certain fuse removal levers, granting them a free rate of duty under item 50 of Schedule 4 to the Customs Tariff Act 1995, which contrasts with the general rate of duty of 5%. This tariff concession came into effect on the date the application was lodged, which was 02 April 2009.
The obligations imposed by the Act on the parties include the requirement for an applicant to submit a valid application to the CEO (section 269F). The CEO must then determine whether the application meets the core criteria, specifically whether no substitutable goods are produced in Australia (section 269C). If the application is deemed to meet these criteria, the CEO is mandated to issue a written Tariff Concession Order (section 269P(3)). Furthermore, the CEO must publish a notice in the Gazette inviting any interested parties to submit objections to the making of the order (section 269K(1)).
Failure to comply with the requirements set out in the Customs Act 1901 may result in various civil or criminal consequences. If an application is made for a TCO in respect of goods specified in section 269SJ of the Act, it will be invalid. Additionally, any person who knowingly or recklessly makes a false or misleading statement in an application may be subject to penalties under section 282 of the Act, which includes fines up to 10,000 penalty units or imprisonment for five years, or both, for individuals, and up to 50,000 penalty units or both for bodies corporate. The Act also provides for the possibility of civil penalties for non-compliance, which may include financial penalties or other remedies as deemed appropriate by the court.