EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0924094
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.
Ed Oates Pty Ltd applied for a TCO in respect of certain synthetic mats on 08 July 2009.
Instrument
TCO No 0924094 was made on 25 September 2009. It declares that those certain synthetic mats 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. 0924094 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 Tariff Concession Instrument No. 0924094 was enacted to provide tariff concessions for certain synthetic mats under the Customs Act 1901. The Act was introduced to address the gap in providing tariff relief for goods that are not produced domestically, thereby encouraging the importation of such goods by reducing their customs duty. This instrument was enacted by the Chief Executive Officer of Customs, who has the authority to make Tariff Concession Orders under section 269F of the Act. The policy objective of this instrument, as outlined in section 269C, is to ensure that a TCO is made when no substitutable goods are produced in Australia in the ordinary course of business. The instrument was made on 25 September 2009, and it applies to certain synthetic mats, reducing the general duty rate of 5% to free, effective from 8 July 2009. This concession is expected to benefit importers by allowing them to apply for a refund of duty on goods imported since the date the TCO came into force.
Scope and Application
The Tariff Concession Instrument No. 0924094 applies to synthetic mats as specified in the instrument, providing a tariff concession under the Customs Act 1901. The Act applies to the Chief Executive Officer of Customs who has the authority to make Tariff Concession Orders (TCO) for certain goods, thereby reducing or eliminating customs duty on these goods. The scope of the Act extends to any entity or individual seeking to import goods that meet the criteria for tariff concessions, provided that these goods are not specified in section 269SJ of the Act, which lists goods that cannot be subject to a TCO. The instrument operates within the jurisdictional reach of the Commonwealth of Australia and is effective from the date the application for the TCO was lodged. The instrument ensures that the rights of importers are advantageously affected, allowing them to apply for a refund of duty on goods imported since the effective date of the TCO. Notably, the instrument does not impose any liabilities on any person other than the Commonwealth and does not disadvantage any person in respect of actions taken before the instrument's registration. The application of this Act can be extended or restricted through subordinate instruments, as provided under section 269C of the Act.
Key Provisions
The Tariff Concession Instrument No. 0924094, as explained, pertains to the Customs Act 1901 (section 269C) and its provisions for Tariff Concession Orders (TCOs). Under section 269F, an individual or entity can apply to the Chief Executive Officer of Customs (CEO) for a TCO regarding specific goods. The CEO is mandated to assess if the application adheres to the core criteria outlined in the Act. If the CEO determines that no substitutable goods, as defined by section 269D, were produced in Australia in the ordinary course of business, they must issue a written order declaring that the goods are subject to a specified tariff concession, as per section 269P(3). This particular instrument (TCO No. 0924094) concerns certain synthetic mats, which are declared to have a duty rate of free, as opposed to the general rate of 5%, since the CEO found no substitutable goods were being produced in Australia.
The Act imposes specific obligations on the CEO and applicants. Under section 269K(1), the CEO must promptly publish a notice in the Gazette after accepting a TCO application as valid. This notice includes an invitation for any interested parties to submit any reasons against the TCO's approval. Additionally, section 269S(1) dictates that a TCO is effective from the date the application was lodged, ensuring that the process is time-sensitive and transparent.
Failure to comply with the obligations stipulated in the Customs Act 1901 may result in legal consequences. While specific offences and penalties are not detailed in the explanatory statement, breaches of customs regulations generally lead to civil or criminal penalties. Civil penalties can include fines, while criminal penalties may include imprisonment, depending on the severity of the breach. The exact penalties would be subject to the broader provisions of the Customs Act and related regulations.