EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0924282
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.
Kodak Australia applied for a TCO in respect of certain inkjet paper in sheets on 09 July 2009.
Instrument
TCO No 0924282 was made on 25 September 2009. It declares that those certain inkjet paper in sheets 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. 0924282 is taken to have come into force on 09 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, enacted by the Australian Parliament, provides a framework for tariff concessions through Tariff Concession Orders (TCOs) which can be made by the Chief Executive Officer of Customs. The 2010 Tariff Concession Instrument No. 0924282 was introduced to address the need for tariff concessions on specific goods, in this case, certain inkjet paper in sheets, following an application by Kodak Australia. The objective of this legislation is to ensure that lower rates of customs duty apply to goods specified in a TCO if certain conditions are met, such as the absence of substitutable goods produced in Australia. This legislative instrument was designed to benefit importers by allowing them to apply for a refund of duty on goods imported since the day the TCO is deemed to have come into force, without imposing any new liabilities on individuals or entities.
Scope and Application
The Customs Act 1901, through its Tariff Concession Orders, applies to entities and individuals seeking to import specific goods into Australia, aiming to reduce the customs duty on those goods if certain conditions are met. Specifically, the Act allows the Chief Executive Officer of Customs to make a Tariff Concession Order if the applicant demonstrates that no substitutable goods are produced in Australia and the goods are not specified in section 269SJ of the Act, which lists those goods ineligible for tariff concessions. The scope of the Act extends nationally, with the application of any Tariff Concession Order being effective from the date the application is lodged. The 2009 Tariff Concession Order No. 0924282 for certain inkjet paper in sheets, which grants a duty-free rate, illustrates this process, as it was made after satisfying the core criteria and no objections were received. This legislation ensures that the rights of importers are positively affected while imposing no new liabilities on anyone except the Commonwealth.
Key Provisions
The Customs Act 1901, as amended by Tariff Concession Instrument No. 0924282, allows for the reduction or elimination of customs duties on specific goods through Tariff Concession Orders (TCOs). According to section 269F, any person can apply to the Chief Executive Officer of Customs (CEO) for a TCO if the goods in question are not specified in section 269SJ, which lists goods that cannot be subject to a TCO. For an application to be considered, it must meet the core criteria set out in section 269C. This requires that, on the date the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. As per section 269P(3), if the CEO is satisfied that the application meets these criteria, they must issue a written TCO.
The obligations imposed by the Act on parties or entities include ensuring that any goods subject to a TCO application are not substitutable by goods produced in Australia. The CEO has the responsibility to evaluate applications against these criteria and to make a TCO if the application meets the requirements. Furthermore, the CEO must publish a notice in the Gazette inviting submissions from any interested parties who may have reasons to oppose the TCO. This process ensures transparency and allows for stakeholder input before the TCO is issued.
Failure to comply with the provisions of the Customs Act 1901 can result in legal consequences. While the explanatory statement does not detail specific offences under this particular TCO, the general provisions of the Act may impose penalties for non-compliance. Typically, breaches of the Customs Act can lead to civil penalties, including fines, and in more severe cases, criminal penalties may apply. The exact penalties would depend on the specific nature of the breach, but they can include substantial fines and potential imprisonment for individuals found guilty of serious violations. It is important for entities and individuals to adhere to the requirements set forth in the Act to avoid these consequences.