EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0935340
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.
Steeldrill Workwear Pty Ltd applied for a TCO in respect of certain cleaning wipes on 21 September 2009.
Instrument
TCO No 0935340 was made on 11 December 2009. It declares that those certain cleaning wipes 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. 0935340 is taken to have come into force on 21 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 Australian Parliament, established a framework for tariff concessions that allows for the reduction or elimination of customs duties on specific goods, as determined by the Chief Executive Officer of Customs (CEO). This Act was introduced to address the need for flexible tariff measures that can respond to economic and trade policy considerations, particularly in cases where no substitutable goods are produced domestically. The instrument in question, Tariff Concession Order No. 0935340, was made on 11 December 2009, and it grants tariff concessions on certain cleaning wipes, reducing the duty from the general rate of 5% to free, effective from 21 September 2009. This concession was granted after it was determined that no substitutable goods were produced in Australia, aligning with the core criteria outlined in the Act. The policy objective of this order is to facilitate the importation of these specific goods without imposing additional financial burdens on importers, thereby potentially enhancing trade efficiency and consumer access to these products.
Scope and Application
The Tariff Concession Instrument No. 0935340 under the Customs Act 1901 applies to individuals or entities that apply for tariff concessions on specific goods, in this case, certain cleaning wipes. The process is overseen by the Chief Executive Officer of Customs, who is responsible for determining whether the application for a Tariff Concession Order (TCO) meets the core criteria as outlined in the Act. The instrument is effective from the date of the application, 21 September 2009, and does not affect any pre-existing rights or liabilities of parties other than the Commonwealth. The application of this instrument is confined to the Commonwealth jurisdiction, with its primary application being the granting of tariff concessions on the specified goods. The instrument does not extend to goods that are specified in section 269SJ of the Act, which are ineligible for tariff concessions. The scope of this legislation is further defined and potentially expanded through subordinate instruments, which may include regulations or additional orders that specify further details or exceptions to the general application of the Act.
Key Provisions
The primary sections of the Tariff Concession Instrument No. 0935340 under the Customs Act 1901 (section 269F) involve the application process for a Tariff Concession Order (TCO), the assessment criteria (section 269C), and the conditions for issuing a TCO (section 269P(3)). The legislation outlines the process by which a person can apply for a TCO in respect of certain goods, such as cleaning wipes, and the criteria that must be satisfied for the Chief Executive Officer (CEO) of Customs to approve the TCO. If the CEO determines that the application meets the core criteria, they are required to issue a written TCO.
The obligations imposed by this legislation on the parties involved include the requirement for the CEO to assess the application to ensure it meets the core criteria specified in section 269C. This involves verifying that no substitutable goods were produced in Australia at the time the application was lodged. Additionally, the CEO must publish a notice in the Gazette inviting submissions from any interested parties who might have reasons why the TCO should not be made. The applicant, in this case, Steeldrill Workwear Pty Ltd, must submit a detailed application demonstrating that the goods in question meet the specified criteria.
Failure to comply with the provisions of this Act can result in significant legal consequences. If the CEO determines that a TCO application does not meet the required criteria but a TCO is issued anyway, this could be considered an improper exercise of power. Such actions could lead to legal challenges, with potential penalties including the nullification of the TCO and the imposition of retrospective duties. Furthermore, any person found to have deliberately provided false information in their application could face civil or criminal penalties as outlined in other sections of the Customs Act 1901, which may include fines or imprisonment depending on the severity of the offence. The exact penalties would depend on the specific provisions of the Act that are breached.