EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0916471
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.
Emc Pacific applied for a TCO in respect of certain metering and dosing system on 14 May 2009.
Instrument
TCO No 0916471 was made on 31 July 2009. It declares that those certain metering and dosing system 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. 0916471 is taken to have come into force on 14 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, established a framework within which Tariff Concession Orders (TCOs) could be issued by the Chief Executive Officer of Customs. This Act was designed to address the need for providing tariff concessions on specific goods, thereby facilitating trade and economic activities by reducing customs duty burdens. The introduction of TCOs aims to promote the availability of goods in the Australian market by allowing the importation of certain items at a reduced or no customs duty rate, provided they meet specific criteria and are not already produced in Australia. This legislative instrument seeks to support importers by ensuring access to essential goods that are otherwise not manufactured domestically, thereby encouraging competition and potentially lowering consumer prices.
Scope and Application
The Tariff Concession Instrument No. 0916471 under the Customs Act 1901 applies to specific metering and dosing systems that were the subject of an application by Emc Pacific. The Act allows the Chief Executive Officer of Customs (CEO) to grant a Tariff Concession Order (TCO) that lowers the rate of customs duty on the specified goods if certain conditions are met. The legislation pertains to any individual or entity seeking a TCO for goods that are not produced in Australia and do not have substitutable goods produced locally. The geographic scope of the Act is national, applying across Australia. The instrument excludes goods that cannot be subject to a TCO as per section 269SJ of the Act. The TCO does not disadvantage existing rights or impose new liabilities, and it allows for duty refunds to importers for goods imported since the TCO came into effect on 14 May 2009. The application of the Act can be extended or clarified through subordinate instruments, although this particular TCO does not extend its application beyond the specified metering and dosing systems.
Key Provisions
The main operative sections of this legislation are sections 269C, 269P(3), and 269K(1) of the Customs Act 1901 (the Act). Section 269C stipulates that a Tariff Concession Order (TCO) application meets the core criteria if no substitutable goods were produced in Australia on the day the application was lodged. Section 269P(3) mandates that if the Chief Executive Officer of Customs (CEO) is satisfied that the TCO application meets these criteria, they must make a written order declaring that the goods in question are subject to a prescribed item in Schedule 4 to the Customs Tariff Act 1995. Section 269K(1) requires the CEO to publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made. This notice must be published as soon as practicable after accepting a TCO application as valid.
The Act imposes several obligations and requirements on the parties involved. Firstly, any person who wishes to apply for a TCO must do so by submitting an application to the CEO. The CEO then evaluates the application to determine if it meets the core criteria set out in section 269C. If the CEO is satisfied that the application meets these criteria and no substitutable goods were produced in Australia, they must make a written order (a TCO) as per section 269P(3). Additionally, the CEO must publish a notice in the Gazette inviting any interested parties to lodge submissions on the TCO application, as per section 269K(1). This ensures transparency and allows for potential objections to be considered.
There are no specific offences outlined in the Act for breaching the provisions related to TCOs. However, if the CEO determines that a TCO application does not meet the core criteria, they are not required to make a TCO. The Act does not specify any penalties for failing to meet the core criteria, but it does provide that a TCO does not affect the rights of any person as at the date of registration to disadvantage them or impose liabilities for actions taken before the TCO was registered. Therefore, any breach of the requirements would primarily result in the denial of tariff concessions, with no additional civil or criminal penalties specified.
In summary, the Customs Act 1901 provides a clear framework for the creation of Tariff Concession Orders through sections 269C, 269P(3), and 269K(1). These sections mandate the CEO to evaluate applications, make written orders when criteria are met, and ensure public notice and submissions are considered. While there are no explicit penalties for non-compliance, the primary consequence is the denial of tariff concessions. The Act ensures that any TCO does not adversely affect existing rights or impose new liabilities for actions taken prior to the TCO's registration.