Overview

The Customs Act 1901, enacted by the Parliament of Australia, establishes a framework for the administration of customs and excise duties, among other things. One of the key mechanisms within this framework is the Tariff Concession Order (TCO), which can be made by the Chief Executive Officer of Customs (CEO) to provide a lower rate of customs duty on certain goods. This scheme is designed to encourage the import of goods that are not produced in Australia, thereby supporting industry competitiveness and consumer choice. The Tariff Concession Instrument No. 0923062 was introduced to provide a free rate of duty on specific aerobic exercise equipment, which Ausia Australia applied for on 3 July 2009. The CEO was satisfied that these goods met the core criteria for a TCO, as no substitutable goods were produced in Australia at the time of the application. The instrument was published in the Gazette with no objections, and it came into force on the date of the application, 3 July 2009, benefiting importers by allowing them to apply for a refund of duty on goods imported since that date.

Scope and Application

The Tariff Concession Instrument No. 0923062, issued under Part XVA of the Customs Act 1901, applies to specific goods in respect of which a Tariff Concession Order (TCO) has been granted. This particular Instrument, TCO No. 0923062, pertains to certain aerobic exercise equipment, granting these goods a lower rate of customs duty as specified in item 50 of Schedule 4 to the Customs Tariff Act 1995. The Act mandates that a TCO may only be granted if no substitutable goods are produced in Australia in the ordinary course of business, as outlined in sections 269C, 269D, 269E, and 269F of the Customs Act 1901. The instrument affects entities and individuals involved in the importation of these aerobic exercise equipment, providing them with tariff benefits as of the date the application was lodged, which in this case is 03 July 2009. The geographic reach of this Act is national, applying across all states and territories of Australia. There are no stated exclusions or exemptions in the Instrument itself, though the Act specifies that certain goods cannot be subject to a TCO under section 269SJ. The Act may also extend its application through subordinate instruments, although such extensions are not detailed in the Explanatory Statement.

Key Provisions

The Customs Act 1901, under Part XVA, outlines the process through which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs (CEO). A TCO allows for a lower rate of customs duty on specified goods. Section 269F of the Act allows a person to apply to the CEO for a TCO in respect of goods. If the CEO determines that the application pertains to goods not listed in section 269SJ, which outlines the types of goods that cannot be subject to a TCO, the CEO must then decide whether the application meets the core criteria set out in section 269C. The core criteria, as stated in section 269C, are met if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. This is further defined in section 269B, where 'goods produced in Australia' is interpreted according to section 269D, 'ordinary course of business' according to section 269E, and'substitutable goods' in relation to the goods in question 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. If the CEO is satisfied that a TCO application meets these criteria, they are required, under subsection 269P(3) of the Act, to make a written order declaring that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995 (Tariff). The specific TCO in question, number 0923062, was made on 18 September 2009, and it applies to certain aerobic exercise equipment. The CEO determined that no substitutable goods were produced in Australia, and thus the general rate of duty on these goods, which is 5%, is waived under this TCO. Upon accepting a TCO application as valid, the CEO must publish a notice in the Gazette, inviting any person who believes there are reasons why the TCO should not be made to lodge a submission, as required by subsection 269K(1) of the Act. In this instance, the CEO did not receive any submissions. According to subsection 269S(1) of the Act, a TCO is deemed to have come into force on the day on which the application for the TCO was lodged. TCO number 0923062 is thus taken to have come into force on 3 July 2009. The TCO does not affect the rights of any person, except the Commonwealth, as at the date of registration so as to disadvantage that person or impose liabilities in respect of anything done or omitted to be done before the date of registration. However, 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. Importantly, the TCO does not impose any liabilities on any person.