EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0923925
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.
McPherson's Consumer Products applied for a TCO in respect of certain melamine tablewarre and or kitchenware on 08 July 2009.
Instrument
TCO No 0923925 was made on 25 September 2009. It declares that those certain melamine tablewarre and or kitchenware 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. 0923925 is taken to have come into force on 08 July 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, as amended, includes a scheme under which Tariff Concession Orders (TCOs) may be made by the Chief Executive Officer of Customs. This legislative framework was enacted to address the need for tariff concessions on certain imported goods, ensuring that the Australian market is supplied with goods that are not domestically produced or are not readily substitutable by locally manufactured alternatives. The policy objective underpinning this legislation is to facilitate access to competitively priced goods, thereby benefiting consumers and businesses. McPherson's Consumer Products, for example, successfully applied for a tariff concession on melamine tableware and kitchenware, resulting in a zero duty rate for these goods as of 8 July 2009, the date the application was lodged. This concession was granted after consultation and no objections were raised, ensuring that the rights of all parties were preserved without imposing new liabilities.
Scope and Application
The Tariff Concession Instrument No. 0923925, made under the Customs Act 1901, applies to specific melamine tableware and kitchenware by granting tariff concessions, thereby reducing the customs duty rate on these goods. This Instrument is pertinent to entities involved in the importation of these particular goods, with the application being initiated by McPherson's Consumer Products on 8 July 2009. The geographic reach of this Act is national, given it pertains to customs regulations throughout Australia. Notably, the Act does not extend to goods specified in section 269SJ, which outlines those ineligible for tariff concessions. The Instrument came into force on the same day as the application was lodged, 8 July 2009, and does not impose any liabilities on any person, including importers, regarding actions taken before its commencement. Moreover, importers can benefit from applying for a refund of duty on goods imported since the effective date of the Tariff Concession Order, as per the Regulations.
Key Provisions
The main operative sections of the Customs Act 1901 in relation to Tariff Concession Orders (TCOs) are sections 269C, 269F, and 269P. Section 269F allows for applications to be made to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. Section 269C stipulates that for the CEO to approve such an application, it must meet the core criteria, which include the condition that no substitutable goods are produced in Australia in the ordinary course of business on the day the application was lodged. If the CEO is satisfied that the application meets these criteria, they must make a written order under section 269P, declaring that the goods are subject to a lower rate of customs duty as specified in Schedule 4 of the Customs Tariff Act 1995.
The Customs Act 1901 imposes several obligations and requirements on the parties it governs. Firstly, any person may apply to the CEO for a TCO, provided the goods are not specified in section 269SJ of the Act, which lists those goods that cannot be subject to a TCO. The CEO, upon receiving a valid application, must determine if it meets the core criteria outlined in section 269C. This involves assessing whether any substitutable goods are produced in Australia on the day the application was lodged, as defined by sections 269D and 269E of the Act. If the application meets these criteria, the CEO must issue a written order declaring that the goods are subject to a reduced rate of duty.
Under the Customs Act 1901, there are potential civil and criminal consequences for breaches of the provisions relating to TCOs. While the explanatory statement does not detail specific offences or penalties, it is implied that non-compliance with the Act's requirements for applying for and granting TCOs could lead to legal action. The Act provides mechanisms for the CEO to enforce compliance, and any violations could result in penalties, which may include fines or other sanctions as prescribed by relevant legislation. The precise penalties would depend on the nature and severity of the breach, as well as any applicable provisions within the broader framework of Australian law.