EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0916494
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.
Anaconda Stores Pty Ltd applied for a TCO in respect of certain backrest kayak on 14 May 2009.
Instrument
TCO No 0916494 was made on 31 July 2009. It declares that those certain backrest kayak 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 7.5%. 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. 0916494 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 for the imposition of customs duties and the provision of tariff concessions for certain goods. The Act sought to address the need for a streamlined process to reduce customs duties on specific imported goods under certain conditions. The Tariff Concession Instrument No. 0916494, created under the authority of this Act, was introduced to provide tariff concessions for certain backrest kayaks, responding to an application by Anaconda Stores Pty Ltd. The policy objective is to facilitate the import of goods by reducing the customs duty, provided no substitutable goods are produced in Australia, thereby encouraging trade and benefiting importers.
Scope and Application
The Tariff Concession Instrument No. 0916494 under the Customs Act 1901 applies specifically to the concession of customs duty rates for certain backrest kayaks, as applied for by Anaconda Stores Pty Ltd. This legislation is applicable to any person or entity that imports the specified goods, and it is effective under the jurisdiction of the Commonwealth of Australia. The Act mandates that the Chief Executive Officer of Customs (CEO) must assess applications for Tariff Concession Orders (TCOs) against specific criteria, including the absence of substitutable goods produced in Australia, to ensure that the concession does not undermine local production. The TCO in question came into force on the date the application was lodged, 14 May 2009, and no submissions were received in opposition to the concession. This TCO exempts the specified kayaks from the general duty rate of 7.5%, applying a rate of duty that is free. Notably, the legislation does not retroactively affect any rights or impose liabilities on individuals or entities for actions taken before the TCO's effective date, while also providing a pathway for importers to seek refunds on duties paid before the concession was applied.
Key Provisions
The primary sections of the Tariff Concession Instrument No. 0916494, as part of the Customs Act 1901, involve the process of applying for and granting a Tariff Concession Order (TCO). Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO for certain goods. If the application is deemed valid and meets the criteria specified in section 269C, the CEO must make a written order granting the concession (section 269P(3)). This order specifies that the goods in question are subject to a reduced rate of customs duty, as outlined in item 50 of Schedule 4 to the Customs Tariff Act 1995, effectively making the duty free for these goods.
The Act imposes specific obligations on the parties involved. The CEO of Customs is required to assess the application against the criteria outlined in sections 269C and 269SJ. This involves verifying that no substitutable goods are produced in Australia at the time of application, as defined by sections 269D and 269E. Additionally, the CEO must publish a notice in the Gazette inviting any objections or submissions from interested parties, as mandated by subsection 269K(1). If no objections are received, the CEO must proceed with making the TCO.
Failure to comply with the provisions of the Customs Act 1901 and the associated regulations may result in various consequences. Breaches of the Act or the regulations could lead to civil or criminal penalties, depending on the nature and severity of the offence. For example, knowingly making a false statement in an application could result in fines or imprisonment. However, the specific penalties are not detailed in the explanatory statement, and further reference to the Act or relevant regulations would be necessary to understand the full extent of potential penalties.