EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0936710
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.
Home Theatre Group applied for a TCO in respect of certain flat screen television or flat screen monitor protectors on 29 September 2009.
Instrument
TCO No 0936710 was made on 11 December 2009. It declares that those certain flat screen television or flat screen monitor protectors 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. 0936710 is taken to have come into force on 29 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, establishes a framework for the imposition of customs duties and includes provisions for Tariff Concession Orders (TCOs). These concessions can reduce the duty payable on certain imported goods, provided they meet specific criteria. The problem this legislation addresses is the potential for undue financial burden on importers when certain goods are subject to high tariffs, which can impact trade and consumer costs. The explanatory statement for Tariff Concession Instrument No. 0936710 outlines the process for applying for and granting TCOs, highlighting that the primary policy objective is to ensure that TCOs are granted only when there are no substitutable goods produced in Australia, thereby promoting fair competition and potentially reducing costs for consumers and businesses. The instrument itself, made in 2009, provides a tariff concession for flat screen television or monitor protectors, reducing the duty from 5% to free, effective from the date of application.
Scope and Application
The Tariff Concession Instrument No. 0936710 under the Customs Act 1901 applies to a specific category of goods, namely certain flat screen television or flat screen monitor protectors, and is applicable to the individual or entity, such as Home Theatre Group, who made the application for tariff concession. This instrument is part of a broader scheme established under the Customs Act, which allows for the application of lower rates of customs duty on certain goods through Tariff Concession Orders (TCOs). The geographic reach of this Act is national, as it operates within the Commonwealth of Australia. The Act specifically excludes goods listed in section 269SJ of the Customs Act, which cannot be subject to a TCO, and only applies when the Chief Executive Officer of Customs is satisfied that no substitutable goods are produced in Australia. The Act's application may be further refined through subordinate instruments, which can provide additional criteria or conditions for the implementation of TCOs. The TCO in question took effect from the date the application was lodged, which was 29 September 2009, and does not affect any pre-existing rights or liabilities of parties other than the Commonwealth.
Key Provisions
The primary sections of this Tariff Concession Instrument, numbered 0936710, revolve around the granting of a Tariff Concession Order (TCO) under the Customs Act 1901 (section 269F). Specifically, section 269C sets out the core criteria for a TCO application, which must be met for the Chief Executive Officer (CEO) of Customs to consider making the order. If the CEO determines that the application meets these criteria, they must make a written order (section 269P(3)) specifying that the goods in question are subject to a reduced tariff rate as outlined in Schedule 4 of the Customs Tariff Act 1995. This particular instrument, TCO No. 0936710, applies to certain flat screen television or flat screen monitor protectors, reducing the duty rate from the general 5% to free.
The Act imposes several obligations on the parties involved. The CEO of Customs has a duty to assess the validity of the TCO application based on the criteria in section 269C, ensuring that no substitutable goods are produced in Australia. Additionally, the CEO must publish a notice in the Gazette (section 269K(1)) inviting any interested party to submit objections to the proposed TCO. In this case, the CEO did not receive any submissions opposing the application, which facilitated the issuance of the TCO. Importers of the specified goods are also affected, as they can apply for a refund of duties paid since the TCO came into effect under the Customs Act 1901 (paragraph 126(1)(r) of the Regulations).
The Act provides for certain consequences if the provisions are breached. While the explanatory statement does not detail specific offences or penalties related to TCOs, the Customs Act 1901 and associated regulations likely outline penalties for non-compliance. These could include fines or other civil and criminal penalties for actions such as fraudulent applications or improper use of a TCO. The exact penalties would depend on the specific breach and could be found in related sections of the Customs Act and its regulations.
In summary, the Tariff Concession Instrument No. 0936710 under the Customs Act 1901 provides for a reduced customs duty on certain flat screen television or flat screen monitor protectors. The CEO of Customs is required to evaluate applications against specific criteria and publish notices in the Gazette to allow for public submissions. Failure to comply with the Act’s provisions could result in penalties, although specific penalties are not detailed in this explanatory statement.