EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0925641
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.
Import Ants applied for a TCO in respect of certain record and or cd and or dvd packaging on 20 July 2009.
Instrument
TCO No 0925641 was made on 02 October 2009. It declares that those certain record and or cd and or dvd packaging 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. 0925641 is taken to have come into force on 20 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. 0925641, made under the Customs Act 1901, was enacted to address the issue of providing tariff concessions on certain goods that were not produced in Australia and had no substitutable goods domestically. This instrument was introduced to ensure that the importation of specific goods, such as record, CD, and DVD packaging, could benefit from a lower rate of customs duty, aligning with the broader objective of promoting trade and economic efficiency. The instrument was initiated by an application from Import Ants on 20 July 2009, and the Tariff Concession Order (TCO) was subsequently made by the Chief Executive Officer of Customs on 2 October 2009, declaring that these goods are subject to a reduced duty rate of 0% as no substitutable goods were being produced in Australia at the time of application. The enactment of this TCO aimed to provide tariff relief and was not intended to disadvantage any person or impose new liabilities on individuals or entities other than the Commonwealth.
Scope and Application
The Customs Act 1901, specifically Part XVA, outlines a framework under which Tariff Concession Orders (TCOs) can be issued by the Chief Executive Officer of Customs (CEO). These orders apply a reduced rate of customs duty on specified goods, contingent on the absence of substitutable goods produced in Australia in the ordinary course of business. An application for a TCO can be made by any person to the CEO, and if the application complies with the criteria set out in the Act, the CEO is required to issue the order. The TCO applies to the goods specified in the order, and these goods are subject to a particular item of Schedule 4 to the Customs Tariff Act 1995. The CEO must consider any submissions made in response to a published notice inviting objections to the TCO, though in this instance, no submissions were received. The TCO commences on the day the application is lodged, and it does not affect the rights of any person as at the date of registration, nor does it impose any liabilities. Importers of the goods subject to the TCO will benefit from this order by being able to apply for a refund of duty on goods imported since the commencement date of the TCO.
Key Provisions
The main operative sections of this legislation are sections 269C, 269F, and 269P of the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) in respect of goods. If the CEO is satisfied that the application meets the core criteria, which includes the condition that no substitutable goods are produced in Australia on the date the application is lodged (section 269C), then the CEO must make a written order declaring that the goods are to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies (section 269P(3)). For the purposes of this legislation, a TCO was made for certain record and/or CD and/or DVD packaging on 2 October 2009, declaring that these goods are subject to a free rate of duty instead of the general rate of 5%.
The obligations and requirements imposed by this Act on the parties it governs include the necessity for the CEO to evaluate whether an application for a TCO meets the core criteria. This involves ensuring that no substitutable goods are produced in Australia at the time the application is made, as defined under sections 269B, 269D, and 269E of the Act. Additionally, the CEO is required to publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made, as per subsection 269K(1). In the case of TCO No. 0925641, the CEO did not receive any submissions. The Act also requires that the TCO does not affect the rights of a person, other than the Commonwealth, in a way that disadvantages them or imposes liabilities for actions taken before the date of registration.
The legislation imposes specific civil consequences for breaches of the Act's provisions. While the explanatory statement does not detail specific offences or penalties, the general framework of the Customs Act 1901 would apply. This means that any person who fails to comply with the requirements set out in the Act, such as providing false information in a TCO application, could face legal action. The severity of penalties would depend on the nature and extent of the breach, but could include fines or other civil penalties as determined by relevant courts. It is also worth noting that while the TCO does not impose any liabilities on any person, failure to adhere to the terms of the TCO or the Customs Act could still lead to legal repercussions.