EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0924409
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 utensils sets on 10 July 2009.
Instrument
TCO No 0924409 was made on 25 September 2009. It declares that those certain utensils sets 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. 0924409 is taken to have come into force on 10 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. 0924409, enacted in 2009, is a legislative instrument under the Customs Act 1901. It addresses the need to provide tariff concessions for certain imported goods, thereby facilitating trade and reducing the financial burden on businesses importing specific items. This instrument was introduced by the Chief Executive Officer of Customs, acting under the authority conferred by the Customs Act. The primary policy objective of this instrument is to provide tariff concessions for goods where no substitutable goods are produced in Australia, thus ensuring that importers are not disadvantaged and can benefit from reduced customs duty rates.
The instrument specifically applies to certain utensil sets, for which McPherson's Consumer Products applied for a tariff concession order (TCO) on 10 July 2009. Following the assessment by the CEO, TCO No. 0924409 was issued on 25 September 2009, declaring that these utensils sets are subject to a duty rate of free, as opposed to the general rate of 5%. The TCO came into effect from the date of the application, 10 July 2009, and does not affect any pre-existing rights or impose new liabilities on any person. Importers of these goods can apply for a refund of duty paid since the commencement date of the TCO.
Scope and Application
The Tariff Concession Instrument No. 0924409 under the Customs Act 1901 applies to goods specified in the instrument, which in this case are certain utensils sets. The Act applies to any person or entity that imports these specified goods into Australia. The instrument allows for a concession on customs duty, reducing the rate from 5% to free for the specified goods, provided that the application for the tariff concession meets the core criteria as outlined in the Act. The geographic and jurisdictional reach of this legislation is national, as it pertains to customs duties managed by the Commonwealth of Australia. The Act excludes goods specified in section 269SJ of the Customs Act 1901, which cannot be subject to a tariff concession order. Additionally, the Act does not affect any existing rights of persons other than the Commonwealth and does not impose any liabilities on any person. The application of the Act can be extended or restricted through subordinate instruments, such as regulations and orders made under the authority of the Act.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0924409 under the Customs Act 1901 involve the application, assessment, and issuance of Tariff Concession Orders (TCOs). Section 269F permits an application to the Chief Executive Officer of Customs (CEO) for a TCO in respect of specified goods. Section 269C stipulates that a TCO application meets core criteria if no substitutable goods were produced in Australia on the day the application was lodged, while section 269B defines key terms such as "goods produced in Australia" and "ordinary course of business". Upon satisfying these criteria, the CEO must issue a TCO as outlined in section 269P(3).
The obligations and requirements imposed by the Act on the parties involved primarily concern the application and assessment process for TCOs. McPherson's Consumer Products, in this case, must submit an application under section 269F. The CEO must then assess whether the application meets the core criteria outlined in section 269C, including ensuring that no substitutable goods were produced in Australia. If the CEO is satisfied with the application, a TCO must be issued as per section 269P(3). Additionally, the CEO must publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made, as per subsection 269K(1).
The Act also delineates the potential consequences for breaches. Although the explanatory statement does not detail specific offences, the Customs Act 1901 generally outlines various civil and criminal penalties for non-compliance with customs regulations. These can include fines and imprisonment, although the maximum penalties are not specified in the provided text. In this context, any misuse or misrepresentation in the application process could result in the CEO declining the TCO application and possibly initiating further investigation or legal action.
The commencement of the TCO, as stipulated in subsection 269S(1), is effective from the date the application was lodged, which in this case is 10 July 2009. This commencement date is critical as it determines the effective period during which the tariff concessions apply. Importantly, the TCO does not affect any rights of persons (other than the Commonwealth) as at the date of registration, nor does it impose any liabilities on any person for actions taken before the registration date. This provision ensures that existing legal rights and obligations are preserved, and no retroactive liabilities are imposed.
Overall, the Tariff Concession Instrument No. 0924409 facilitates a streamlined process for applying and obtaining tariff concessions for specific goods, provided the core criteria are met. It sets clear obligations for applicants and the CEO, while also ensuring that the rights of existing parties are protected, and potential liabilities are avoided.