EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0914935
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.
Clyne Foods applied for a TCO in respect of certain x ray sorter on 05 May 2009.
Instrument
TCO No 0914935 was made on 24 July 2009. It declares that those certain x ray sorter 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. 0914935 is taken to have come into force on 05 May 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, provides a framework for managing customs duties and tariffs, with Part XVA introducing the concept of Tariff Concession Orders (TCOs). These orders are designed to lower customs duties on specific goods, provided that certain criteria are met, such as the absence of substitutable goods produced in Australia. The purpose of these concessions is to promote trade by reducing the cost of importing certain goods, thus benefiting importers and potentially stimulating economic activity. The instrument in question, Tariff Concession Instrument No. 0914935, was enacted to address a specific application by Clyne Foods for tariff concessions on certain x-ray sorters, resulting in a zero percent duty rate on these goods, effective from the date of the application on 5 May 2009. This legislative action aligns with the broader policy objective of facilitating smoother trade operations by reducing the financial burden on importers of specified goods.
Scope and Application
The Tariff Concession Instrument No. 0914935, made under the Customs Act 1901, applies to specific goods, in this case certain x-ray sorters, which are subject to a lower rate of customs duty if a Tariff Concession Order (TCO) is made by the Chief Executive Officer of Customs. This legislation is relevant to any entity or person applying for such tariff concessions and specifically concerns the importation of the targeted goods into Australia. The geographic and jurisdictional reach of this Act is national, applying across all states and territories within Australia. The Act excludes any goods specified in section 269SJ of the Customs Act 1901, which outlines goods that cannot be subject to a TCO. The application of the Act may be extended or restricted through subordinate instruments, although no such amendments are indicated in the provided text. The commencement date of this particular TCO is 5 May 2009, and it provides for a refund of duty on goods imported since this date, without imposing any new liabilities on individuals or entities.
Key Provisions
The Customs Act 1901 (the Act) contains provisions for the application and implementation of Tariff Concession Orders (TCOs) under section 269F. When an individual or entity wishes to apply for a TCO in respect of certain goods, they must apply to the Chief Executive Officer of Customs (the CEO) (section 269F). If the goods are not specified in section 269SJ of the Act, which outlines the goods that cannot be subject to a TCO, the CEO must consider whether the application meets the core criteria set out in section 269C. This involves determining whether no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged (section 269C). If the application satisfies these criteria, the CEO must then make a written order (a TCO) declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies (subsection 269P(3)). For instance, TCO No 0914935 was issued for certain x-ray sorters, with a reduced duty rate of 5% to free, as no substitutable goods were being produced in Australia.
The Act imposes certain obligations on the CEO in relation to TCO applications. Once an application is accepted as valid, the CEO must publish a notice in the Gazette inviting any interested parties to submit any objections or reasons why the TCO should not be made (subsection 269K(1)). In this case, no submissions were received in response to the Gazette notice. The TCO also has specific commencement provisions, with the order coming into force on the date the application was lodged (subsection 269S(1)). It is important to note that the TCO does not affect the rights of any person, except the Commonwealth, in a way that would disadvantage them or impose liabilities for actions taken before the TCO's registration (subsection 269T(3)).
In terms of consequences for breach, the Act does not explicitly outline specific offences, penalties, or consequences for breaching the provisions related to TCOs. However, it is worth noting that failure to comply with the requirements of the Act or the Regulations could potentially lead to legal challenges or disputes regarding the validity of the TCO or the duty payable on the goods. The potential penalties or consequences would depend on the specific circumstances and the outcome of any legal proceedings.