EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0927030
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.
Huyck Wangner applied for a TCO in respect of certain paper making fabrics on 28 July 2009.
Instrument
TCO No 0927030 was made on 09 October 2009. It declares that those paper making fabrics 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. 0927030 is taken to have come into force on 28 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 Parliament of Australia, established a legislative framework under which the Chief Executive Officer of Customs can grant Tariff Concession Orders (TCOs) to reduce customs duty rates for certain imported goods. The purpose of this legislation was to address the gap in the duty concessions for specific goods not produced domestically, thereby encouraging import and potentially reducing costs for consumers and businesses. The explanatory statement for Tariff Concession Instrument No. 0927030 outlines that Huyck Wangner's application for a TCO on certain paper making fabrics was approved by the CEO, effective from 28 July 2009, as no substitutable goods were being produced in Australia. The instrument was published in the Gazette with no objections received, and the new tariff rate of free duty for these fabrics under item 50 of Schedule 4 to the Customs Tariff Act 1995 came into effect on the date of the application. This TCO ensures that importers of these fabrics can benefit from a refund of duties paid since the concession was enacted, without imposing any new liabilities on persons other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0927030 under the Customs Act 1901 applies to individuals or entities seeking tariff concessions for specific goods, provided the application meets the core criteria outlined in the Act. Specifically, the instrument applies to Huyck Wangner's application for tariff concessions on certain paper making fabrics, which are to be treated as goods to which item 50 of Schedule 4 to the Customs Tariff Act 1995 applies. The application process involves determining whether substitutable goods are produced in Australia; if not, the Chief Executive Officer of Customs must make a written order granting the concession. This concession alters the general rate of duty from 5% to free, benefitting importers who can apply for duty refunds on imports since the effective date of the concession, which is the date the application was lodged. The geographic reach of this Act is national, applying across Australia as per the Commonwealth's legislative authority. The Act does not disadvantage or impose liabilities on any person other than the Commonwealth, nor does it affect pre-existing rights. Any further application or restriction of this Act may be extended through subordinate instruments.
Key Provisions
The main operative sections of this legislation are sections 269C, 269F, 269K, 269P, and 269S of the Customs Act 1901, which establish the framework for Tariff Concession Orders (TCOs). Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO for certain goods. If the CEO is satisfied that the application meets the core criteria specified in section 269C, which requires that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, the CEO must make a written order (a TCO) as specified in section 269P. The TCO, once made, comes into force on the day the application for the TCO was lodged, as per section 269S. Additionally, section 269K mandates that the CEO publish a notice in the Gazette inviting submissions from any interested parties if they believe the TCO should not be made.
The obligations imposed by the Act on the parties involved are primarily centered on the CEO’s role in assessing and approving TCO applications. The CEO must ensure that the application for a TCO does not pertain to goods specified in section 269SJ, which are ineligible for tariff concessions. The CEO must also verify that the application meets the core criteria outlined in section 269C. Upon accepting a valid application, the CEO is required to publish a notice in the Gazette under section 269K, inviting submissions from any interested parties. If no submissions are received, the CEO proceeds to make the TCO. The CEO’s duties are further detailed in ensuring that the TCO does not adversely affect the rights of any person other than the Commonwealth and does not impose any liabilities on persons for actions taken before the TCO’s registration date.
The legislation does not explicitly state any offences, penalties, or civil/criminal consequences for breaches related to the TCO process itself. However, the Customs Act 1901, from which this legislation is derived, generally includes provisions for penalties related to customs breaches. These penalties can include fines and imprisonment for serious breaches, as stipulated in other relevant sections of the Act. In the context of this specific TCO, the focus is on the administrative process and ensuring that the rights and liabilities of parties are appropriately managed without creating any adverse impacts or liabilities stemming from the TCO.