EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0921809
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.
Transpacific Superior applied for a TCO in respect of certain 990 litre garbage bins on 25 June 2009.
Instrument
TCO No 0921809 was made on 18 September 2009. It declares that those certain 990 litre garbage bins 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. 0921809 is taken to have come into force on 25 June 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. 0921809 was enacted in 2009 under the Customs Act 1901 to provide a tariff concession for certain 990 litre garbage bins. The instrument was introduced to address the need for tariff concessions on specific goods that are not produced in Australia and are essential for economic or other reasons. This instrument was created in response to an application from Transpacific Superior, and it aims to facilitate the import of these goods by reducing the customs duty from the general rate of 5% to free. The Australian Government, through the Chief Executive Officer of Customs, is the enacting body for this instrument, and the policy objective is to ensure that the import of these specific goods is facilitated without imposing any disadvantage or liability on importers or other stakeholders.
Scope and Application
The Tariff Concession Instrument No. 0921809, made under the Customs Act 1901, applies to the specific goods identified in the instrument, namely certain 990 litre garbage bins. This instrument allows for a concession in the tariff rate for these goods, effectively setting their customs duty at free, whereas the general rate of duty would be 5%. The application for such a tariff concession order is made by an individual or entity to the Chief Executive Officer of Customs, who then determines whether the application meets the core criteria set out in the Act. The scope of this particular instrument is limited to the specified goods and the tariff concessions they attract, and it operates within the broader framework of the Customs Act 1901, which is a Commonwealth Act. The instrument does not affect any existing rights or liabilities of persons other than the Commonwealth as of the date of registration and does not impose any new liabilities on any person. The instrument came into effect on the day the application was lodged, which was 25 June 2009, and no submissions opposing the concession were received during the consultation period.
Key Provisions
The Tariff Concession Instrument No. 0921809 under the Customs Act 1901 (section 269F) allows for the application of lower customs duty rates on specified goods through a Tariff Concession Order (TCO). When an applicant, such as Transpacific Superior in this case, submits an application for a TCO, the Chief Executive Officer of Customs (CEO) evaluates whether the goods in question meet the core criteria outlined in section 269C. Specifically, the CEO must be satisfied that no substitutable goods were produced in Australia on the date the application was lodged. This determination is critical as it impacts the eligibility of the goods for a tariff concession. If the CEO determines that the application meets these criteria, they must issue a written TCO, specifying the new duty rate applicable to the goods, as outlined in section 269P(3).
The obligations imposed by this legislation on the parties involved are clear. The applicant must ensure that their application is thorough and includes all necessary information to demonstrate that the goods are eligible for a TCO. The CEO, on the other hand, must meticulously verify the information provided and conduct a public consultation process as required by section 269K(1). This includes publishing a notice in the Gazette inviting any interested parties to submit their views on why the TCO should not be granted. In this instance, no submissions were received, indicating public concurrence with the application.
Failure to comply with the requirements of the Customs Act 1901 can result in serious consequences. While specific offences and penalties are not detailed in the explanatory statement, breaches of the Act can generally lead to enforcement actions by the CEO or legal proceedings. Penalties for non-compliance could include fines, legal action, or other civil or criminal sanctions as stipulated by the Act. The precise nature and extent of these penalties would depend on the specific breach and the discretion of the relevant authorities.