EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0942055
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.
McPherson's Consumer Products Pty Ltd applied for a TCO in respect of certain gripper mats on 28 October 2009.
Instrument
TCO No 0942055 was made on 25 January 2010. It declares that those certain gripper mats 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. 0942055 is taken to have come into force on 28 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. 0942055 was enacted in 2010 under the Customs Act 1901, aiming to facilitate the importation of specific goods by reducing their customs duty rate. This legislative instrument was introduced to address the need for tariff concessions for certain products, allowing for more competitive pricing and potentially stimulating economic activity related to these goods. The instrument was created in response to an application by McPherson's Consumer Products Pty Ltd for tariff concessions on certain gripper mats. The instrument was processed by the Chief Executive Officer of Customs, who determined that the application met the core criteria for a tariff concession order, leading to the declaration that the specified gripper mats would benefit from a tariff rate of free, down from the general rate of 5%. This was enacted to ensure that no substitutable goods were being produced in Australia at the time of the application.
The enactment body responsible for this instrument is the Parliament of Australia, with the objective of providing a streamlined process for granting tariff concessions to encourage trade and economic benefits. The instrument became effective on the date the application was lodged, 28 October 2009, and it was officially registered on 25 January 2010. The process included an invitation for public submissions, though none were received, which indicates a smooth transition for the tariff concession without public opposition. The rights of importers were positively impacted, allowing them to apply for refunds of duties paid on imports of these goods since the effective date of the concession.
Scope and Application
The Tariff Concession Instrument No. 0942055 under the Customs Act 1901 applies to goods specified in the instrument, in this case certain gripper mats, and provides a concession on the rate of customs duty applicable to these goods. This Act is applicable at a Commonwealth level and is administered by the Chief Executive Officer of Customs. The legislation allows for a lower rate of customs duty for goods that are the subject of a Tariff Concession Order (TCO), provided the core criteria are met, which includes the condition that no substitutable goods were produced in Australia in the ordinary course of business at the time the application was lodged. The application process involves an invitation for submissions published in the Gazette, though no submissions were received in response to this particular application. The TCO is effective from the date the application was lodged, which is 28 October 2009, and does not affect any pre-existing rights or liabilities of persons other than the Commonwealth. Importers of the specified goods are eligible to apply for a refund of duty on goods imported since the effective date of the TCO. The scope of the Act is extended through the subordinate Customs Tariff Act 1995, which specifies the applicable duty rates in its schedule.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 0942055 under the Customs Act 1901 (section 269P(3)) require the Chief Executive Officer of Customs (CEO) to make a written order (a Tariff Concession Order, or TCO) if satisfied that an application for tariff concession meets the core criteria. Specifically, section 269C of the Act stipulates that the application meets these criteria if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Section 269P(3) mandates that the CEO must then issue a TCO, specifying the prescribed item of Schedule 4 to the Customs Tariff Act 1995 applicable to the goods in question. In this instance, TCO No. 0942055 declares that certain gripper mats are subject to item 50 of Schedule 4, with a duty rate of 5% reduced to free under the concession.
The obligations imposed by the Act on the parties include the requirement for McPherson's Consumer Products Pty Ltd to lodge a valid application with the CEO for a TCO, ensuring that the application meets the core criteria outlined in section 269C. The CEO, in turn, is obligated to evaluate the application against these criteria, publish a notice in the Gazette inviting submissions from interested parties, and make a decision on whether to issue the TCO. Additionally, the CEO must ensure that the rights of any person are not adversely affected by the TCO concerning actions taken before the order's registration. The CEO's duty to consider and act on applications and the obligations of the applicant to meet the criteria are central to the legislative framework governing tariff concessions.
The Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for breach in the context of TCOs. However, any failure by McPherson's Consumer Products Pty Ltd to adhere to the application requirements or by the CEO to properly evaluate and issue a TCO when criteria are met could lead to disputes or legal challenges. These could potentially result in judicial review or administrative penalties depending on the specific breach and its impact. Given that the explanatory statement does not specify maximum penalties, any enforcement actions would likely be determined on a case-by-case basis in accordance with general administrative law principles.