EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0915577
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.
Bausch And Lomb Aust Pty Ltd applied for a TCO in respect of certain contact lens cleaning retail packs on 08 May 2009.
Instrument
TCO No 0915577 was made on 31 July 2009. It declares that those certain contact lens cleaning retail packs 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. 0915577 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. 0915577, enacted in 2009, is an instrument under the Customs Act 1901. It was introduced to address the need for tariff concessions for specific goods, in this instance, certain contact lens cleaning retail packs, which Bausch And Lomb Aust Pty Ltd had applied for. This instrument is designed to provide a lower rate of customs duty for these goods if certain conditions are met, specifically if no substitutable goods are produced in Australia. The Customs Act 1901 provides the legislative framework under which the Chief Executive Officer of Customs can make such Tariff Concession Orders, following the application and assessment of the core criteria by the CEO. The instrument is effective from the date the application was lodged, 8 May 2009, and does not disadvantage any person or impose liabilities on anyone other than the Commonwealth. The general rate of duty on these goods is 5%, while the rate of duty for the goods subject to the Tariff Concession Order is free.
Scope and Application
The Tariff Concession Instrument No. 0915577 under the Customs Act 1901 applies specifically to the goods for which a Tariff Concession Order (TCO) has been requested and granted. This particular TCO, made on 31 July 2009, pertains to certain contact lens cleaning retail packs and declares that these goods are subject to item 50 of Schedule 4 to the Customs Tariff Act 1995, resulting in a concession from the general 5% duty rate to a free rate. The instrument applies to any entities or individuals importing these specific goods into Australia, thereby reducing the customs duty they would otherwise incur. The TCO applies nationally within Australia and is effective from the date the application was lodged, 8 May 2009, as per the provisions of the Customs Act. The instrument does not affect the rights of any person, except the Commonwealth, as it pertains only to the specific goods detailed and does not impose any new liabilities on any person, providing a clear benefit to importers who can now claim refunds on duties paid before the TCO's effective date.
Key Provisions
The main operative sections of the Customs Act 1901 as amended by Tariff Concession Instrument No. 0915577, focus on the establishment and implementation of Tariff Concession Orders (TCOs) (sections 269C, 269P(3)). Section 269C outlines the core criteria for a TCO application to be approved, particularly that no substitutable goods are produced in Australia on the day the application is lodged (section 269E). Section 269P(3) mandates that if the application meets these criteria, the Chief Executive Officer of Customs (CEO) must issue a TCO, declaring that the specified goods are subject to a prescribed item in the Customs Tariff Act 1995. The TCO in question (section 269P(3)) applies to certain contact lens cleaning retail packs, resulting in a zero duty rate as opposed to the general 5% rate.
The Act imposes specific obligations on the parties involved. An applicant for a TCO must ensure that the application is not in respect of goods listed in section 269SJ of the Act, which specifies goods that are ineligible for a TCO. The CEO has the responsibility to assess whether the application meets the core criteria, particularly focusing on whether substitutable goods are produced in Australia. Upon meeting these criteria, the CEO must publish a notice in the Gazette, inviting any interested party to submit objections to the TCO (subsection 269K(1)). The CEO must also consider any submissions received and decide on the application accordingly.
Failure to comply with the provisions of the Customs Act 1901 or the terms of a TCO can lead to various civil and criminal consequences. Under section 269P(4) of the Act, an incorrect application or misrepresentation of facts can result in penalties for the applicant, which may include fines or other sanctions as prescribed by the Act. Additionally, any person who knowingly provides false or misleading information in relation to a TCO application may face criminal charges, with potential penalties including fines and imprisonment. The specific maximum penalties are detailed in the relevant sections of the Act and the Customs Tariff Act 1995. These provisions are designed to ensure the integrity of the tariff concession process and protect the interests of all parties involved.