EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0938596
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.
Jasco Pty Ltd applied for a TCO in respect of certain inkjet imaging paper on 14 October 2009.
Instrument
TCO No 0938596 was made on 04 January 2010. It declares that those certain inkjet imaging paper 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. 0938596 is taken to have come into force on 14 October 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 was enacted to regulate the importation of goods into Australia and to ensure the collection of customs duty. The Act includes provisions for the creation of Tariff Concession Orders (TCOs), which allow for the reduction or elimination of customs duty on certain goods. Enacted by the Commonwealth Parliament, this legislation seeks to provide a flexible mechanism to support Australian businesses and consumers by reducing the cost of specific goods. This is achieved by allowing the Chief Executive Officer of Customs to issue orders that apply a lower rate of duty to goods that meet certain criteria, such as the absence of substitutable goods produced in Australia. Tariff Concession Instrument No. 0938596, made under this Act, exemplifies the process by which specific goods, such as certain inkjet imaging paper, can benefit from tariff concessions, ultimately lowering the duty rate from 5% to free, effective from the date of the application, 14 October 2009.
Scope and Application
The Tariff Concession Instrument No. 0938596, made under the Customs Act 1901, applies to the specific case of certain inkjet imaging paper, where Jasco Pty Ltd successfully applied for a Tariff Concession Order (TCO) to reduce the customs duty from the general rate of 5% to free. This legislation is pertinent to the entity Jasco Pty Ltd and pertains to the goods they import, which in this instance are certain inkjet imaging papers. The geographic reach of this legislation is national, as it falls under the Commonwealth's purview. The Act does not explicitly exclude or exempt any parties or goods from its application, except those specified in section 269SJ of the Act, which cannot be subject to a TCO. The scope of the Act is further extended or restricted by subordinate instruments, such as the Customs Tariff Act 1995, which outlines the specifics of the duty rates.
Key Provisions
The main operative sections of the Customs Act 1901 relevant to the Tariff Concession Order (TCO) include sections 269C, 269D, 269E, 269F, 269K, 269P, and 269SJ (subsections 269K(1) and 269S(1)). Section 269F outlines the process for applying for a TCO, requiring the applicant to demonstrate that the goods are not specified in section 269SJ, which lists goods that cannot be subject to a TCO. Section 269C stipulates that a TCO application meets the core criteria if no substitutable goods were produced in Australia on the day the application was lodged. Definitions for "goods produced in Australia," "ordinary course of business," and "substitutable goods" are provided in sections 269D, 269E, and 269P(3) respectively. If the Chief Executive Officer (CEO) of Customs is satisfied that the application meets the core criteria, a written order is to be made under section 269P(3), declaring that the goods in question are subject to a specified item in Schedule 4 of the Customs Tariff Act 1995.
The Customs Act 1901 imposes several obligations on the parties involved. The CEO of Customs is required to review applications for TCOs to ensure they meet the core criteria, as defined by sections 269C and 269P(3). The CEO must also publish a notice in the Gazette (subsection 269K(1)) inviting submissions from interested parties on whether the TCO should be granted. Additionally, the CEO must ensure that the TCO does not affect the rights of any person, other than the Commonwealth, in a manner that disadvantages them or imposes liabilities for actions taken before the TCO was registered (subsection 269S(1)). Importers of the goods subject to the TCO are granted the right to apply for a refund of duty paid on imports since the TCO came into effect (paragraph 126(1)(r) of the Regulations).
Breach of the provisions of the Customs Act 1901 related to TCOs can result in both civil and criminal consequences. While the Act does not explicitly state maximum penalties for breach, general provisions of the Act and related regulations may apply. Civil penalties can include fines, and criminal penalties may include imprisonment, reflecting the severity of non-compliance. The precise penalties depend on the specific nature and extent of the breach, as well as any relevant regulations or subsidiary legislation. Ensuring compliance with the Act and its requirements is crucial to avoid these potential consequences.