EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0922321
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.
Hales Family Trust applied for a TCO in respect of certain hygienic pumps on 30 June 2009.
Instrument
TCO No 0922321 was made on 18 September 2009. It declares that those certain hygienic pumps 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. 0922321 is taken to have come into force on 30 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 Customs Act 1901, enacted by the Australian Parliament, provides a framework for the administration of customs duties and the regulation of imports and exports. This legislation aims to facilitate international trade while ensuring the collection of appropriate duties and the enforcement of import regulations. One significant aspect of the Customs Act is the provision for Tariff Concession Orders (TCOs), which allow for the reduction or exemption of customs duty on certain goods under specific circumstances. The explanatory statement for Tariff Concession Instrument No. 0922321 details the process by which a TCO was granted to the Hales Family Trust for certain hygienic pumps, effective from 30 June 2009. The instrument was made on 18 September 2009, following an application to the Chief Executive Officer of Customs, who determined that no substitutable goods were produced in Australia, thereby meeting the core criteria for a TCO. The policy objective in this context is to support specific industries by reducing the financial burden of customs duties on goods that are not domestically produced.
Scope and Application
The Tariff Concession Instrument No. 0922321 applies to the goods specified in the instrument, namely certain hygienic pumps, and it operates under the framework established by Part XVA of the Customs Act 1901. The Act applies to any individual, trust, or entity that imports these specified goods and seeks a tariff concession order from the Chief Executive Officer of Customs. The scope of the Act is limited to the particular goods mentioned in the instrument, ensuring that the tariff concession applies exclusively to these items. The geographic reach of this legislation is national, as it pertains to the importation of goods into Australia and the application of customs duties as set out in the Customs Act 1901 and the Customs Tariff Act 1995. There are no exclusions or exemptions specified in this particular instrument, and the application is restricted to the goods and circumstances detailed in the TCO No. 0922321. The instrument itself extends the application of the Act by specifying the particular goods eligible for the tariff concession and the corresponding duty rates.
Key Provisions
The key operative sections of Tariff Concession Instrument No. 0922321 under the Customs Act 1901 include sections 269C, 269F, 269P, and 269S. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) for specific goods, provided that the goods are not those specified in section 269SJ. If the CEO determines that the application meets the core criteria as outlined in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business, then the CEO must issue a TCO (section 269P). The TCO specifies that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, which in this case resulted in a zero rate of duty for certain hygienic pumps.
The Act imposes certain obligations and requirements on the parties involved. The CEO must ensure that the TCO application does not pertain to goods that cannot be subject to a concession, as per section 269SJ. Additionally, the CEO must verify that no substitutable goods were produced in Australia at the time the application was lodged, as per section 269C. The CEO is also required to publish a notice in the Gazette inviting any interested parties to submit reasons against the TCO, as per section 269K. The TCO itself provides clarity on the tariff treatment of the specified goods and ensures that the rights of importers are beneficially affected, allowing them to apply for a refund of duty on goods imported since the TCO's effective date.
Breach of the provisions outlined in the Customs Act 1901, including making false or misleading statements in a TCO application, may lead to various consequences. The Act does not explicitly detail specific offences or penalties in this context but generally, making false statements can result in civil or criminal penalties under the general provisions of the Customs Act. These penalties may include fines and, in severe cases, imprisonment. The exact penalties would be determined based on the specific circumstances and severity of the breach. It is important for applicants and the CEO to adhere strictly to the legislative requirements to avoid any potential legal repercussions.