EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0933526
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.
Matthews Fire Alarm Pty Ltd applied for a TCO in respect of certain pressure fire hydrant boosters on 09 September 2009.
Instrument
TCO No 0933526 was made on 27 November 2009. It declares that those certain pressure fire hydrant boosters 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. 0933526 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. 0933526 was enacted under the Customs Act 1901 to provide a tariff concession for certain pressure fire hydrant boosters. This legislative instrument was introduced to address the issue of ensuring that Australian businesses could import necessary goods without being unduly burdened by high customs duties, particularly when no Australian-made alternatives exist. The instrument was developed by the Chief Executive Officer of Customs (CEO), in accordance with the provisions of the Customs Act, particularly sections 269C, 269F, and 269S, which detail the criteria for tariff concession orders and the process for applications. The overarching policy objective is to facilitate the efficient import of goods that are essential for business operations while ensuring that Australian industries are not unfairly disadvantaged by high import duties on goods that are not domestically produced. The instrument became effective on the date the application was lodged, 9 September 2009, and does not impose any new liabilities or affect pre-existing rights of non-Commonwealth entities.
Scope and Application
The Tariff Concession Instrument No. 0933526, made under the Customs Act 1901, applies to specific goods, namely certain pressure fire hydrant boosters, for which Matthews Fire Alarm Pty Ltd applied for a Tariff Concession Order (TCO). The application was successful because no substitutable goods were produced in Australia on the day the application was lodged, satisfying the core criteria stipulated in the Act. This instrument, which came into force on the date the application was lodged, aims to grant free duty status to the specified goods, reducing the general duty rate from 5% to zero. The instrument does not affect the rights of any person, except to the benefit of importers who can now apply for a refund of duty on goods imported since the TCO's effective date. The instrument extends its application through subordinate instruments, as it references specific sections of the Customs Act and the Customs Tariff Act 1995, ensuring that its scope and effects are clearly defined and limited by existing legislation.
Key Provisions
The primary operative sections of this legislation are sections 269F, 269C, 269B, 269D, 269E, 269P, and 269K of the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO) for goods. If the CEO determines that the application meets the core criteria, as outlined in sections 269C and 269B, they must make a TCO. Section 269P(3) requires the CEO to make a written order declaring the goods subject to the TCO if satisfied that no substitutable goods were produced in Australia. Section 269K mandates the CEO to publish a notice in the Gazette inviting submissions regarding the TCO application.
Under this legislation, the CEO has the obligation to assess TCO applications to determine if they meet the core criteria. If the application is valid, the CEO must publish a notice in the Gazette inviting submissions. If no objections are received, the CEO must make a TCO if satisfied that no substitutable goods were produced in Australia. The TCO will come into force on the date the application was lodged. Importers of the goods subject to the TCO can apply for a refund of duty under the Customs (Consolidated) Regulations 1994.
The legislation outlines that there are no offences or penalties associated with breaches of the TCO provisions. However, the rights of any person, other than the Commonwealth, are not adversely affected by the TCO. The TCO does not impose any liabilities on any person. This means that the legislation primarily focuses on the procedural aspects of applying for and issuing TCOs, without imposing criminal or civil penalties for non-compliance.