EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0933525
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.
Edgar Edmondson applied for a TCO in respect of certain mop heads on 09 September 2009.
Instrument
TCO No 0933525 was made on 27 November 2009. It declares that those certain mop heads 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. 0933525 is taken to have come into force on 09 September 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. 0933525, enacted under the Customs Act 1901, aims to address the need for tariff concessions on specific imported goods where no equivalent products are produced in Australia. This instrument was introduced by the Chief Executive Officer of Customs following an application from Edgar Edmondson regarding certain mop heads. The primary objective of this legislation is to facilitate the importation of goods by providing a lower customs duty rate, thereby encouraging trade and potentially benefiting importers. The process involves assessing whether the goods in question meet the core criteria for a Tariff Concession Order, which includes ensuring that no substitutable goods are produced domestically. Once the criteria are met, the CEO issues a written order that reduces the customs duty rate for the specified goods, which in this case is mop heads, from the general rate of 5% to free duty. The legislation ensures that it does not adversely affect existing rights or impose new liabilities on any party other than the Commonwealth.
Scope and Application
The Tariff Concession Instrument No. 0933525 under the Customs Act 1901 provides a framework for the Chief Executive Officer of Customs to grant tariff concession orders (TCOs) for specified goods. This legislation applies to individuals or entities that apply for a TCO for goods that are not specified in section 269SJ of the Act, which lists goods that cannot be subject to a TCO. The application process involves meeting the core criteria outlined in sections 269C and 269D, ensuring that no substitutable goods are produced in Australia in the ordinary course of business. Once the CEO determines that the application meets these criteria, they must issue a TCO, which reduces the customs duty rate for the specified goods. This instrument has a Commonwealth jurisdictional reach and affects the rights of importers by potentially entitling them to a refund of duty for goods imported since the TCO's effective date. The TCO does not impose any liabilities on persons other than the Commonwealth for actions taken before the registration date.
Key Provisions
The Tariff Concession Order (TCO) No. 0933525 under the Customs Act 1901 applies a zero duty rate to certain mop heads, as stipulated in section 269P(3) of the Act. This concession is granted provided that no substitutable goods are produced in Australia, as defined in section 269C and further clarified in sections 269D and 269E. This means that if the goods specified in the TCO application are not being produced domestically and there are no suitable alternatives available, the concession is applicable. Section 269B outlines the specific definition of 'substitutable goods', which are those produced in Australia that could serve a similar purpose to the goods in question.
Under this Act, the Chief Executive Officer of Customs (CEO) has the authority to make such TCOs if the application meets the core criteria outlined in the legislation. The CEO must ensure that the application does not pertain to goods listed in section 269SJ of the Act, which cannot be subject to a TCO. Once an application is deemed valid, the CEO is obligated to issue a written order declaring the specified goods to be subject to a reduced duty rate, as specified in Schedule 4 of the Customs Tariff Act 1995. Additionally, the CEO must publish a notice in the Gazette, inviting any interested parties to submit objections to the TCO within a specified timeframe, as required by section 269K(1) of the Act.
The Act also imposes certain procedural obligations on applicants and the CEO. For instance, applicants must submit a valid application to the CEO, ensuring that it does not concern goods excluded under section 269SJ. The CEO must evaluate the application against the core criteria, engage in any necessary consultation, and make a decision based on whether the application meets the specified conditions. If the CEO determines that the application is valid, they must issue the TCO within the stipulated timeframe.
Failure to comply with the requirements of the Act can result in various consequences. While the Act does not explicitly state civil or criminal penalties for breaches, it is implied that non-compliance with tariff concession orders could lead to legal actions, such as claims for undue duty payments or disputes regarding the eligibility of goods for tariff concessions. The consequences for such breaches would depend on the specific circumstances and the interpretation of the relevant provisions by the courts.