EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0930750
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.
Alan Coupland Family Trust applied for a TCO in respect of certain self venting canopies on 21 August 2009.
Instrument
TCO No 0930750 was made on 06 November 2009. It declares that those certain self venting canopies 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 7.5%. 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. 0930750 is taken to have come into force on 21 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 Tariff Concession Instrument No. 0930750 was enacted to address a specific gap in the Customs Act 1901, providing a mechanism for the Chief Executive Officer of Customs (CEO) to grant tariff concessions on certain goods. Enacted by the Australian Government, this instrument aims to facilitate lower rates of customs duty for goods that are not produced in Australia and for which there are no substitutable alternatives. The policy objective is to encourage trade and economic efficiency by reducing the cost of importing specific goods, thereby benefiting importers and potentially stimulating domestic consumption or further processing of these goods.
The instrument was introduced following an application by the Alan Coupland Family Trust for tariff concessions on certain self-venting canopies. After thorough assessment, the CEO determined that these goods met the core criteria outlined in the Customs Act 1901, including the absence of substitutable goods produced in Australia. Consequently, the Instrument No. 0930750 was made, effective from 21 August 2009, which grants a tariff concession reducing the duty on these canopies from 7.5% to free. This change was published in the Gazette with an invitation for objections, none of which were received.
Scope and Application
The Tariff Concession Instrument No. 0930750 under the Customs Act 1901 applies to the specific goods—self-venting canopies—for which the Alan Coupland Family Trust applied, granting them tariff concessions and effectively reducing the customs duty from 7.5% to free. The Act applies to any entity or individual who imports goods subject to a Tariff Concession Order (TCO). The scope of the Act encompasses all such imports entering Australia, as it operates under the federal legislative framework. The application of a TCO is contingent upon the Chief Executive Officer of Customs determining that the goods in question are not produced in Australia in the ordinary course of business and meet the specified core criteria. Importantly, this TCO does not affect any rights or liabilities of individuals or entities other than the Commonwealth concerning actions taken prior to the TCO's registration date. The Instrument came into force on the date the application was lodged, 21 August 2009, and any subsequent importation of the specified goods may qualify for a refund of duty under the relevant regulations.
Key Provisions
The Customs Act 1901, as detailed in Part XVA, provides the framework for Tariff Concession Orders (TCOs), which are issued by the Chief Executive Officer of Customs (CEO). When an application is made for a TCO (section 269F), the CEO must assess whether it meets the core criteria set out in section 269C. Specifically, if the CEO is satisfied that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, they must then proceed to make a TCO (section 269P(3)). This TCO declares that the goods in question are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, effectively reducing the duty rate for these goods.
The obligations under the Customs Act 1901 require any person who considers that there are reasons why a TCO should not be made to lodge a submission with the CEO. The CEO is mandated to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting any interested parties to submit their views (subsection 269K(1)). In the case of TCO No. 0930750, the CEO did not receive any submissions in response to the Gazette notice. The TCO also stipulates that it does not affect the rights of any person, 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.
The Customs Act 1901 includes provisions for offences and penalties, though specific details are not provided in the explanatory statement. Generally, failure to comply with the Act could result in civil or criminal consequences, which may include fines or imprisonment, depending on the nature and severity of the breach. For TCO No. 0930750, no specific penalties are mentioned, but it is implied that any breaches of the terms set out in the TCO or the Act itself would be subject to the relevant legal consequences as outlined in the broader Customs Act 1901 framework.