EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0911368
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.
Toyota Tsusho applied for a TCO in respect of certain motor vehicle battery manipulators on 03 April 2009.
Instrument
TCO No 0911368 was made on 29 June 2009. It declares that those certain motor vehicle battery manipulators 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. 0911368 is taken to have come into force on 03 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. 0911368, enacted in 2009, is a legislative instrument under the Customs Act 1901, designed to provide tariff concessions for certain goods. This instrument was introduced to address the need for facilitating trade by reducing customs duty on specified goods, thereby making them more competitively priced in the Australian market. The instrument was enacted by the Commonwealth of Australia and is part of the broader scheme under which Tariff Concession Orders (TCOs) are made by the Chief Executive Officer of Customs. The policy objective behind this instrument is to ensure that Australian importers and consumers benefit from reduced tariffs on goods that are not produced domestically, thus promoting fair trade practices and economic efficiency.
The instrument came into force on the date the application was lodged, in this case, 3 April 2009, and does not retroactively affect any rights or impose any liabilities on persons other than the Commonwealth. This ensures that the rights of importers are positively impacted, allowing them to potentially claim refunds on duties paid on imports of the specified goods since the effective date of the TCO. No objections were raised against the application, indicating broad acceptance and support for the tariff reduction on the specified motor vehicle battery manipulators.
Scope and Application
The Tariff Concession Instrument No. 0911368, made under the Customs Act 1901, applies specifically to the concession of customs duty on certain motor vehicle battery manipulators as applied for by Toyota Tsusho. The Act applies to individuals or entities seeking tariff concessions for goods that are not produced in Australia in the ordinary course of business. The instrument extends to the national jurisdiction of Australia, with the concession taking effect from the date of the application, 03 April 2009. It is pertinent to note that the application of this Tariff Concession Order (TCO) is limited to the goods specified in the instrument and does not extend to other goods unless similarly applied for and approved. The CEO of Customs must ensure that the goods in question do not have substitutable Australian-made alternatives, as outlined in section 269SJ of the Act. The TCO does not impose any liabilities or affect the rights of any person other than the Commonwealth, and importantly, it does not disadvantage any person or impose liabilities in respect of actions taken before the registration of the TCO.
Key Provisions
The primary sections of the Customs Act 1901 pertinent to this legislation include sections 269C, 269B, 269D, 269E, 269F, 269P, and 269SJ (subsection 269K(1) also plays a significant role). These sections outline the framework for Tariff Concession Orders (TCOs) and specify the criteria for determining when such orders can be made. According to section 269F, any person can apply to the Chief Executive Officer (CEO) of Customs for a TCO regarding certain goods, provided these goods are not listed in section 269SJ. If the CEO is convinced that the application is valid, they must assess whether it meets the core criteria detailed in section 269C. If the CEO determines that the application meets these criteria, they are required by section 269P(3) to issue a written order, a TCO, stating that the goods in question are subject to a specified item in Schedule 4 of the Customs Tariff Act 1995.
The obligations imposed on parties under this Act are primarily directed at the CEO of Customs. The CEO must ensure that any TCO application is valid, which involves checking that the goods in question are not listed in section 269SJ and that the core criteria in section 269C are met. This includes confirming that no substitutable goods are being produced in Australia on the day the application is lodged. Furthermore, the CEO is mandated to publish a notice in the Gazette, inviting any interested parties to lodge submissions opposing the TCO if they believe there are valid reasons for not making the concession. In the case of TCO No. 0911368, the CEO did not receive any submissions opposing the concession.
The legislation also outlines specific consequences for non-compliance or breaches of the Act’s provisions. Although the explanatory statement does not detail specific offences or penalties, the general framework of the Customs Act 1901 implies that any misuse or improper application of the TCO provisions could potentially lead to legal consequences. The act of knowingly providing false information in an application could be seen as a breach of the Act's requirements and might attract penalties. However, the exact nature and extent of these penalties are not specified within this explanatory statement, leaving the detailed understanding to be derived from the broader context of the Customs Act 1901.