EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0915259
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.
Applied Biosystems Pty Ltd applied for a TCO in respect of certain heaters bench top block laboratory on 07 May 2009.
Instrument
TCO No 0915259 was made on 31 July 2009. It declares that those certain heaters bench top block laboratory 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. 0915259 is taken to have come into force on 07 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 Parliament of Australia, establishes a framework through which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs. This legislative instrument was introduced to address the need for providing relief on customs duties for specific goods that are not produced in Australia or for which there are no suitable substitutes. The policy objective behind this act is to encourage the importation of goods that are either not domestically produced or have no viable Australian alternative, thereby potentially reducing costs for businesses and consumers. The Tariff Concession Instrument No. 0915259, issued on 31 July 2009, provides a concession on the customs duty for certain heaters bench top block laboratory equipment, reducing the duty rate from the general rate of 5% to free, effective from 7 May 2009. This concession was made after it was determined that no substitutable goods were produced in Australia. The instrument was made without any objections being lodged in response to the published notice, and it does not affect the rights of any person other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0915259, made under the Customs Act 1901, applies to specific goods for which a Tariff Concession Order (TCO) has been granted by the Chief Executive Officer of Customs (CEO). This instrument specifically relates to certain bench top block laboratory heaters, as applied for by Applied Biosystems Pty Ltd on 07 May 2009. The Act enables the CEO to reduce the rate of customs duty on certain goods if the core criteria are met, which includes ensuring that no substitutable goods are produced in Australia at the time the application is lodged. In this instance, the CEO determined that the application met the criteria and subsequently issued the TCO on 31 July 2009, reducing the duty on these laboratory heaters from a general rate of 5% to free. The TCO applies nationwide and became effective on the date the application was lodged, 07 May 2009, without affecting any pre-existing rights or imposing new liabilities on persons other than the Commonwealth. The CEO is required to publish a notice in the Gazette inviting submissions from interested parties, although no submissions were received for this particular TCO.
Key Provisions
The Customs Act 1901 (the Act) allows the Chief Executive Officer of Customs (the CEO) to issue Tariff Concession Orders (TCOs) under section 269F, which provide for a reduced rate of customs duty on specified goods. The CEO is required to decide whether an application for a TCO meets the core criteria, primarily outlined in section 269C, which stipulates that no substitutable goods should be produced in Australia in the ordinary course of business on the day the application was lodged. Further definitions relevant to the TCO process are provided in sections 269B, 269D, 269E, and 269P(3).
The obligations imposed by the Act on parties include the requirement for applicants to ensure their applications meet the core criteria, specifically that no substitutable goods are being produced in Australia. The CEO, upon receiving an application, must publish a notice in the Gazette inviting submissions from any interested parties and consider these submissions before making a decision. Additionally, the CEO must ensure that the TCO does not disadvantage any person or impose liabilities on anyone for actions taken prior to the TCO coming into effect, as stipulated in section 269S(1) of the Act.
In terms of consequences for breach, the Act does not explicitly outline specific criminal or civil penalties for failing to comply with the TCO process. However, any non-compliance with the customs duties and regulations under the Customs Act could lead to penalties such as fines, imprisonment, or both, as provided under the general provisions of the Act. The specific penalties would depend on the nature and severity of the breach, but they could include significant fines and/or imprisonment for serious or repeated breaches.