EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0939370
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.
McPhersons Consumer Products applied for a TCO in respect of certain soother holder on 20 October 2009.
Instrument
TCO No 0939370 was made on 04 January 2010. It declares that those certain soother holder 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 7.5%. 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. 0939370 is taken to have come into force on 20 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 Tariff Concession Instrument No. 0939370 was enacted in 2010 under the Customs Act 1901 to address the need for tariff concessions on specific goods not produced domestically. This instrument was introduced to facilitate the importation of certain goods by providing tariff relief, thereby supporting Australian businesses that rely on imported products by reducing their costs. The instrument was developed and enacted by the Australian government, with the aim of promoting trade efficiency and economic benefits by ensuring that certain imported goods are subject to lower customs duty rates. This approach helps to maintain competitive pricing and availability of goods in the Australian market, without imposing additional burdens on businesses or individuals prior to the concession's effective date.
Scope and Application
The Tariff Concession Instrument No. 0939370 under the Customs Act 1901 applies to specific goods, namely certain soother holders, which are subject to a tariff concession order (TCO) made by the Chief Executive Officer of Customs (CEO). This instrument facilitates a reduction in customs duty for these goods, provided that the application meets the core criteria outlined in the Act, particularly that no substitutable goods were produced in Australia on the day the application was lodged. The geographic scope of this Act is national, as it is enacted under the Commonwealth and applies across Australia. The instrument does not disadvantage any person other than the Commonwealth and does not impose any new liabilities; however, it does entitle importers to apply for a refund of duty on goods imported since the date the TCO is deemed to have come into force. The application process involves a public notice in the Gazette, inviting submissions from any person who may have reasons to oppose the TCO, though in this case, no submissions were received. The TCO comes into force on the date the application was lodged, which was 20 October 2009 in this instance.
Key Provisions
The main operative sections of this legislation pertain to the making of Tariff Concession Orders (TCOs) under the Customs Act 1901. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a TCO in respect of goods. If the CEO determines that the application is valid and meets the core criteria, as set out in sections 269C and 269P(3), the CEO must make a written order that declares the goods to which the TCO applies (section 269P(3)). In this instance, TCO No. 0939370 applies to certain soother holders and declares that they are subject to a 0% duty rate, as opposed to the general 7.5% rate.
The obligations imposed by this Act on the parties it governs are primarily procedural. The CEO must accept valid TCO applications and ensure they meet the core criteria (sections 269C and 269F). Once the CEO makes a TCO, the relevant goods are subject to the specified duty rate. Additionally, the CEO must publish a notice in the Gazette inviting submissions from any interested parties if there are concerns about the TCO (subsection 269K(1)). In this case, no submissions were received.
Failure to comply with the provisions of the Customs Act 1901 regarding the making and application of TCOs can result in civil or criminal penalties. While the explanatory statement does not detail specific offences or penalties, breaches of the Customs Act 1901 or the associated Customs Regulations 1994 could lead to fines or imprisonment. The exact penalties would depend on the nature and severity of the breach, as well as any relevant provisions in the Customs Act 1901 or the associated regulations. It is important for parties governed by this Act to adhere to the specified procedures and obligations to avoid any potential consequences.