EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0912632
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.
York Barbell Australia Pty Ltd applied for a TCO in respect of certain towers exercise on 16 April 2009.
Instrument
TCO No 0912632 was made on 17 July 2009. It declares that those certain towers exercise 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. 0912632 is taken to have come into force on 16 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 Australian Parliament, governs the regulation of goods entering and leaving the country, including the imposition of customs duties. To address the need for flexibility and to encourage trade and investment, the Act includes a provision for Tariff Concession Orders (TCOs), which can be applied for by interested parties and, if approved, result in reduced customs duties on specific goods. This mechanism is particularly useful for fostering the importation of goods that are not locally produced, thereby supporting industries that rely on imported materials or equipment. The Tariff Concession Instrument No. 0912632, made under the authority of the Customs Act, exemplifies this process by granting York Barbell Australia Pty Ltd a concession on certain exercise towers, lowering the duty rate from 5% to free, effective from the date of application on 16 April 2009. This instrument demonstrates the Act’s objective of facilitating smoother trade practices while ensuring no adverse effects on existing rights or liabilities of non-Commonwealth entities.
Scope and Application
The Tariff Concession Instrument No. 0912632, under the Customs Act 1901, applies to entities that import goods specified in the instrument, in this case, York Barbell Australia Pty Ltd. This particular instrument concerns the application of tariff concessions on certain towers exercise, which are subject to a reduced customs duty rate as declared in the instrument. The application of the Customs Act 1901 extends across the Commonwealth of Australia, and its jurisdiction is federal. The Act allows the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that apply to goods where certain criteria are met, such as the absence of substitutable goods being produced in Australia at the time of the application. The instrument is effective as of the date the application was lodged, which in this case is 16 April 2009. The instrument does not disadvantage any person other than the Commonwealth and does not impose any liabilities on individuals or entities for actions taken before the instrument's registration.
Key Provisions
The key provisions of this Tariff Concession Instrument (TCO) are set out in section 269F of the Customs Act 1901, which allows for the application for a Tariff Concession Order (TCO) to be made by the Chief Executive Officer of Customs (CEO). The CEO must determine whether the application meets the core criteria under sections 269C, 269B and 269D of the Act. If the CEO is satisfied that no substitutable goods are produced in Australia, the CEO must make a written order 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 applies. This instrument (TCO No 0912632) made on 17 July 2009 declares that the towers exercise are goods to which item 50 of Schedule 4 to the Tariff applies.
The CEO must consult with interested parties by publishing a notice in the Gazette (subsection 269K(1) of the Act) inviting any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO. In this instance, the CEO did not receive any submissions in response to this invitation. This TCO is taken to have come into force on 16 April 2009, the day on which the application for the TCO was lodged (subsection 269S(1) of the Act). 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 obligations and requirements of the Act are that the CEO must be satisfied that the TCO application meets the core criteria, which is when no substitutable goods were produced in Australia on the day the application was lodged. If the CEO is satisfied, they must make a written order 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 applies. The CEO must also consult with interested parties by publishing a notice in the Gazette inviting any person who considers that there are reasons why the TCO should not be made to lodge a submission with the CEO.
Any breaches of the Act may result in offences and penalties. However, the Explanatory Statement does not provide information on the specific offences, penalties, or civil/criminal consequences for breach, including maximum penalties where stated. It is important to note that any breaches of the Customs Act 1901 may result in civil or criminal penalties, depending on the nature and severity of the offence. The specific penalties for breach of the Act are not outlined in the Explanatory Statement.