EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0915558
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.
Abey Australia Pty Ltd applied for a TCO in respect of certain brass shelves bathroom fittings on 08 May 2009.
Instrument
TCO No 0915558 was made on 31 July 2009. It declares that those certain brass shelves bathroom fittings 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. 0915558 is taken to have come into force on 08 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 Tariff Concession Instrument No. 0915558, enacted under the Customs Act 1901, was introduced to provide tariff concessions for specific goods, in this case brass shelves bathroom fittings, which were subject to a zero rate of customs duty as opposed to the general 5% rate. This Instrument was made by the Chief Executive Officer of Customs (CEO) on 31 July 2009, following an application from Abey Australia Pty Ltd on 08 May 2009. The CEO determined that no substitutable goods were produced in Australia, thereby meeting the core criteria for a Tariff Concession Order (TCO). The instrument was published in the Gazette, inviting any interested parties to submit objections, though none were received. The TCO was effective from the date of the application, 08 May 2009, and it did not disadvantage any persons or impose new liabilities, while potentially benefiting importers by allowing them to claim refunds of duty paid on the goods imported since that date.
Scope and Application
The Tariff Concession Instrument No. 0915558 under the Customs Act 1901 applies specifically to certain brass shelves bathroom fittings, as determined by the Chief Executive Officer of Customs (CEO). The CEO, upon receiving an application from Abey Australia Pty Ltd on 08 May 2009, assessed the application against the criteria set forth in the Act, including ensuring that no substitutable goods were produced in Australia in the ordinary course of business at the time of the application. The Instrument, which came into force on the same date the application was lodged, declares that the specified brass shelves bathroom fittings are subject to a free rate of duty, differing from the general rate of 5% as per the Customs Tariff Act 1995. The CEO published a notice in the Gazette inviting submissions against the application, none of which were received. The TCO does not affect the rights of any person except the Commonwealth, ensuring that no one is disadvantaged or incurs liabilities for actions taken prior to the registration of the TCO. Furthermore, the TCO does not impose any liabilities on any person.
Key Provisions
The Tariff Concession Instrument No. 0915558, made under the Customs Act 1901, specifically addresses the application of Tariff Concession Orders (TCOs) to certain brass shelves bathroom fittings. According to Section 269P(3) of the Act, once the Chief Executive Officer (CEO) of Customs is satisfied that an application meets the core criteria, they must make a written order that specifies the goods to which the concession applies. In this instance, the TCO declares that the certain brass shelves bathroom fittings are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, which imposes a duty rate of free instead of the general rate of 5%.
The obligations imposed by the Act on the parties involved are primarily on the CEO of Customs. Section 269C of the Act requires the CEO to determine whether an application meets the core criteria, specifically checking that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Section 269B further defines key terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods." The CEO also has a duty under Section 269K(1) to publish a notice in the Gazette inviting submissions from interested parties if they consider there are reasons why the TCO should not be made, although in this case, no submissions were received.
The Act does not explicitly detail specific offences, penalties, or consequences for breaches in the context of TCOs. However, it is implied that failure to comply with the provisions of the Customs Act 1901, including the correct application and implementation of TCOs, could result in legal action or penalties as outlined elsewhere in the Act or related legislation. For example, general provisions in the Customs Act could impose fines or other penalties for non-compliance with customs duties and regulations.
The commencement of the TCO under Section 269S(1) is effective from the date the application was lodged, which is 08 May 2009 in this case. This means that the concession applies retroactively from that date, allowing importers to apply for refunds of duty paid on goods imported since then. Importantly, the Act ensures that the TCO does not affect the rights of any person as at the date of registration in a way that disadvantages them or imposes liabilities for actions taken before the registration date.