EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0929263
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.
C & A Brushware applied for a TCO in respect of certain paint roller head making machines on 11 August 2009.
Instrument
TCO No 0929263 was made on 16 October 2009. It declares that those certain paint roller had making machines 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. 0929263 is taken to have come into force on 11 August 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 was enacted by the Parliament of Australia to provide a comprehensive framework for the regulation of customs and excise. One of the mechanisms introduced under this Act is the Tariff Concession Order (TCO), which allows for the concession of customs duty on specified goods. The problem or gap that the TCO mechanism addresses is the need to facilitate the import of goods that are not produced domestically, thereby supporting industries that rely on imported components or finished goods. The Tariff Concession Instrument No. 0929263, made in 2010, is an example of this mechanism in action, where the Chief Executive Officer of Customs granted a concession for certain paint roller head making machines, reducing the duty on these goods from 5% to free. The objective of this instrument, as with other TCOs, is to encourage the import of goods that cannot be produced locally, thereby supporting the relevant industries and potentially lowering costs for consumers. The process involves an application to the CEO, who must determine if the goods meet the core criteria before making the concession, and includes a period for public consultation to ensure transparency and fairness.
Scope and Application
The Tariff Concession Order No. 0929263, made under the Customs Act 1901, applies to the importation of certain paint roller head making machines, for which a tariff concession order was applied and subsequently approved by the Chief Executive Officer of Customs. The legislation is designed to provide relief from customs duty for goods that are not substitutable by any goods produced in Australia in the ordinary course of business, as outlined in the Act. The concession applies to any individual or entity importing these specific machines, and the geographic reach of this Act is national, as it is a Commonwealth Act. The Act does not specify exclusions, but it explicitly mentions that the concession does not affect the rights of any person, except the Commonwealth, to disadvantage them or impose liabilities for actions taken before the concession order was registered. The order came into force on the date the application was lodged, which was 11 August 2009, and does not impose any liabilities on any person. Any importers of the specified goods since the commencement date may apply for a refund of duty under the Customs Regulations.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0929263 under the Customs Act 1901 (the Act) include sections 269C, 269B, 269D, 269E, 269F, 269P, 269K, 269S, and 269SJ. Section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a Tariff Concession Order (TCO) in respect of goods. If the application is valid and meets the core criteria specified in section 269C, the CEO must make a written TCO. Section 269P(3) mandates that the CEO must make a TCO if satisfied that no substitutable goods were produced in Australia. Additionally, section 269K requires the CEO to publish a notice in the Gazette inviting submissions from any person who believes the TCO should not be made. Section 269S(1) specifies that a TCO comes into force on the date the application for the TCO was lodged.
The obligations and requirements imposed by the Act on the parties governed by the TCO include ensuring that the goods for which the TCO is sought are not substitutable by goods produced in Australia in the ordinary course of business. The CEO must assess whether the application meets the core criteria and ensure that any substitutable goods are not produced in Australia. Furthermore, the CEO is required to publish a notice in the Gazette and consider any submissions received. The CEO must also ensure that the TCO does not adversely affect the rights of any person other than the Commonwealth and does not impose any liabilities on such persons.
For breaches of the Act or non-compliance with the TCO, there are no specific offences, penalties, or civil/criminal consequences mentioned in the explanatory statement. However, the general provisions of the Customs Act 1901 apply, which may include fines, imprisonment, or other penalties as prescribed by the relevant legislation. The maximum penalties for offences under the Customs Act can vary widely depending on the nature and severity of the breach, with some offences carrying significant financial penalties and/or imprisonment terms. The explanatory statement does not provide specific details on the penalties applicable to the TCO but refers to the broader legislative framework within which these penalties are determined.