EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0934757
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.
Ntp Forklifts Australia applied for a TCO in respect of certain pallet trucks on 16 September 2009.
Instrument
TCO No 0934757 was made on 04 December 2009. It declares that those certain pallet trucks 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. 0934757 is taken to have come into force on 16 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 Customs Act 1901, enacted by the Commonwealth Parliament, establishes a framework for the imposition of customs duties on imported goods, among other provisions. It introduced a scheme under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs (CEO) to provide tariff concessions on certain goods. This mechanism was designed to address the issue of ensuring that Australia remains competitive in global markets by reducing the cost of imported goods through tariff concessions where appropriate. The explanatory statement outlines that Tariff Concession Instrument No. 0934757 was enacted to address a specific application by Ntp Forklifts Australia for tariff concessions on certain pallet trucks. The policy objective is to facilitate the importation of goods that are not substitutable by locally produced alternatives, thereby benefiting importers and potentially consumers by reducing the cost of these goods.
Scope and Application
The Tariff Concession Instrument No. 0934757, made under the Customs Act 1901, applies to the goods specified in the Instrument, namely certain pallet trucks, which are now subject to a concessional rate of customs duty. This Instrument operates within the framework established by Part XVA of the Customs Act 1901, allowing for Tariff Concession Orders (TCOs) to be issued by the Chief Executive Officer of Customs (CEO) when certain conditions are met. Specifically, the Instrument applies to the applicant, Ntp Forklifts Australia, and to any importers of the specified pallet trucks. The geographic reach of this Act is national, applying across all states and territories of Australia. The Act does not explicitly state exclusions, but it does clarify that the TCO does not affect the rights of persons other than the Commonwealth and does not impose any liabilities on any person. The Instrument can be extended or restricted through subordinate instruments, as allowed by the Customs Act 1901.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0934757 (TCO No. 0934757) under the Customs Act 1901 (section 269P(3)) declare that certain pallet trucks are goods to which item 50 of Schedule 4 to the Customs Tariff Act 1995 applies, due to the absence of substitutable goods produced in Australia on the date the application was lodged. This means that the pallet trucks in question benefit from a lower rate of customs duty, effectively free of charge, whereas the general rate of duty on these goods is 5%. This concession is contingent upon the application meeting the core criteria specified in sections 269C and 269D of the Customs Act, particularly the requirement that no substitutable goods were produced in Australia at the time the application was submitted.
The obligations imposed by the Act on the parties involved, particularly the Chief Executive Officer (CEO) of Customs, include ensuring that the application for a Tariff Concession Order (TCO) is processed in accordance with the statutory requirements. The CEO must verify that the application is valid and meets the core criteria outlined in the Act. This involves confirming that no substitutable goods were produced in Australia in the ordinary course of business on the date the application was lodged, as per section 269C. Additionally, the CEO must publish a notice in the Gazette inviting submissions from interested parties, as mandated by subsection 269K(1). The CEO's duty to make a written order declaring the tariff concession if the criteria are met ensures that the process is transparent and adheres to the legislative framework.
Any failure to comply with the requirements set forth in the Customs Act 1901 may result in civil or criminal consequences. The Act does not explicitly outline specific penalties for breaches in this context, but general provisions under the Customs Act could apply, including fines and potential imprisonment. The seriousness of the breach, intent, and any associated harm would be considered in determining the appropriate penalty. It is essential for all parties to adhere to the statutory obligations to avoid any adverse legal repercussions.
TCO No. 0934757 does not affect the rights of any person (other than the Commonwealth) as at the date of registration, ensuring that no one is disadvantaged or imposed with liabilities for actions taken prior to the registration date. This provision protects individuals and entities from retroactive legal consequences, ensuring that the tariff concession applies only prospectively from the date the application was lodged. Furthermore, it provides a clear benefit to importers by allowing them to apply for a refund of duty on goods imported since the TCO came into effect on 16 September 2009, as per paragraph 126(1)(r) of the Regulations.