EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0913172
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.
Nice Systems Australia applied for a TCO in respect of certain voice loggers digital on 21 April 2009.
Instrument
TCO No 0913172 was made on 10 July 2009. It declares that those certain voice loggers digital 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. 0913172 is taken to have come into force on 21 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, addresses the issue of setting customs duty rates for imported goods through the provision of tariff concession orders (TCOs). The Act establishes a framework under which the Chief Executive Officer of Customs (CEO) can grant tariff concessions to applicants who demonstrate that the goods in question are not produced in Australia and have no substitutable equivalents. This mechanism aims to provide relief to importers by potentially reducing the customs duty on certain goods, thereby fostering fair trade practices and economic efficiency. The Explanatory Statement for Tariff Concession Instrument No. 0913172, made on 10 July 2009, illustrates this process, where a concession was granted to Nice Systems Australia for certain voice loggers digital, reducing the duty rate from 5% to free. This action reflects the policy objective of supporting businesses by easing the financial burden associated with importing goods that are not domestically produced.
Scope and Application
The Tariff Concession Instrument No. 0913172, made under the Customs Act 1901, applies to voice loggers digital as specified by Nice Systems Australia and grants these goods a lower rate of customs duty, effectively making it free, provided that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. This instrument specifically exempts the subject goods from the general duty rate of 5% set out in item 50 of Schedule 4 to the Customs Tariff Act 1995. The application of this concession is subject to the core criteria stipulated in section 269C of the Customs Act, ensuring that the goods do not fall under the prohibited category set out in section 269SJ. The instrument came into force on the date the application was lodged, 21 April 2009, and it does not affect the rights of any person other than the Commonwealth, particularly ensuring no disadvantage or new liabilities are imposed on individuals or entities prior to its registration.
Key Provisions
The Tariff Concession Order No. 0913172, made under section 269P(3) of the Customs Act 1901 (the Act), pertains to certain voice loggers digital, granting them tariff concessions. According to the Explanatory Statement, this order was made on 10 July 2009, following an application by Nice Systems Australia on 21 April 2009. The instrument specifies that the certain voice loggers digital are now subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, resulting in a rate of duty that is free of charge, whereas the general rate of duty on these goods is 5%.
The obligations imposed by this Act primarily concern the Chief Executive Officer of Customs (the CEO). When an application for a Tariff Concession Order (TCO) is submitted, the CEO must first determine if the goods in question are not specified in section 269SJ of the Act, which lists goods that cannot be subject to a TCO. If the CEO is satisfied that the application is valid, they must ascertain whether the core criteria set out in section 269C are met. This involves confirming that, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. If the CEO is satisfied that these criteria are met, they must issue a written TCO. Additionally, the CEO is required to publish a notice in the Gazette inviting any interested parties to submit objections if they believe the TCO should not be made. In this instance, no submissions were received.
Under the Customs Act 1901, there are specific consequences for breaches of the provisions related to Tariff Concession Orders. Although the explanatory statement does not detail specific offences or penalties, breaches of customs legislation generally can lead to civil or criminal penalties, including fines and imprisonment. For example, under the Crimes Act 1914, contravening customs regulations can result in fines and imprisonment. For instance, knowingly making a false statement to a customs officer can attract a penalty of up to 12 months imprisonment or a fine of up to 10,000 penalty units, or both. These penalties underscore the importance of adhering to the Act’s requirements and the obligations placed on the CEO in processing TCO applications.
In summary, the Tariff Concession Order No. 0913172 establishes a lower rate of customs duty for certain voice loggers digital, aligning with item 50 of Schedule 4 to the Customs Tariff Act 1995. The process involves a rigorous assessment by the CEO to ensure that the core criteria for tariff concessions are met, including the absence of substitutable goods produced in Australia. The order came into effect on the date the application was lodged, providing benefits to importers who can now apply for duty refunds on goods imported since that date. While the explanatory statement does not detail specific penalties for breaches, the overarching legislation implies significant consequences for non-compliance, reinforcing the need for meticulous adherence to the Act’s provisions.