EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0912000
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.
Textor Pty Ltd applied for a TCO in respect of certain airlaid absorbent paper on 08 April 2009.
Instrument
TCO No 0912000 was made on 29 June 2009. It declares that those certain airlaid absorbent paper 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. 0912000 is taken to have come into force on 08 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 Customs Act 1901, enacted by the Parliament of Australia, provides a framework for the administration of customs duties and the regulation of the importation and exportation of goods. Specifically, Part XVA of the Act introduces a scheme for Tariff Concession Orders (TCOs), which allows for the reduction or exemption of customs duty on certain goods. The Customs Tariff Concession Instrument No. 0912000, issued on 29 June 2009, addresses the gap by providing tariff concessions for certain airlaid absorbent paper, as applied for by Textor Pty Ltd on 8 April 2009. The Chief Executive Officer of Customs determined that these goods, which are subject to a general duty rate of 5%, should be exempt from duty because no substitutable goods were produced in Australia. This decision was made in accordance with the core criteria outlined in section 269C of the Act. The policy objective of this instrument is to ensure that the application of tariff concessions benefits importers by potentially allowing them to claim refunds for duties paid on these goods since the effective date of the concession.
Scope and Application
The Tariff Concession Instrument No. 0912000 under the Customs Act 1901 applies to specific goods, namely certain airlaid absorbent paper, and is designed to provide tariff concessions to these goods. This instrument applies to Textor Pty Ltd, which made the application for the tariff concession. The instrument is applicable to the general rate of duty on these goods, which is reduced from 5% to free, thereby benefiting the rights of importers. The scope of the Act extends to the Commonwealth level, and the instrument was created in accordance with the provisions of Part XVA of the Customs Act 1901. The instrument excludes goods specified in section 269SJ of the Act, which cannot be subject to a Tariff Concession Order (TCO). The instrument also does not affect the rights of any person, other than the Commonwealth, as at the date of registration, nor does it impose any liabilities on any person. The instrument's commencement is effective from the date of the application for the TCO, in this case, 08 April 2009. The application of the Act may be extended or restricted through subordinate instruments, as per the relevant provisions of the Customs Act 1901.
Key Provisions
The main operative sections of the Customs Act 1901, as relevant to Tariff Concession Order No. 0912000, include section 269C, which sets out the core criteria for a TCO application, and section 269P, which mandates the CEO to make a written order if the application meets the criteria. Section 269F allows a person to apply for a TCO for goods, while section 269SJ specifies goods that are ineligible for a TCO. In this case, the CEO was satisfied that the application for certain airlaid absorbent paper met the core criteria, leading to the issuance of TCO No. 0912000, effective from 8 April 2009.
The Act imposes several obligations and requirements on the parties it governs. Primarily, it requires the CEO to assess whether a TCO application meets the core criteria specified in section 269C, which involves determining if there are no substitutable goods produced in Australia. The CEO must also publish a notice in the Gazette inviting submissions from interested parties if they believe the TCO should not proceed, as per subsection 269K(1). In this case, the CEO did not receive any submissions opposing the TCO. Additionally, section 269S stipulates that a TCO takes effect on the date the application was lodged.
Under the Customs Act 1901, breaches of the provisions related to TCOs can lead to various consequences. Although the Explanatory Statement does not detail specific offences or penalties for failing to comply with a TCO, general provisions in the Act could apply. For example, non-compliance with customs duties and regulations could result in civil or criminal penalties, including fines and imprisonment, as outlined in other sections of the Customs Act and related legislation. The maximum penalties would depend on the specific nature and severity of the breach.