EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0944764
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 door stoppers on 25 November 2009.
Instrument
TCO No 0944764 was made on 29 January 2010. It declares that those certain door stoppers 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. 0944764 is taken to have come into force on 25 November 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 Commonwealth Parliament, provides a framework for managing tariffs and customs duties. In response to an application from McPhersons Consumer Products, Tariff Concession Instrument No. 0944764 was introduced to address the specific issue of applying tariff concessions on certain door stoppers. This instrument was enacted to ensure that the application of the Customs Act aligns with the economic policy objectives of promoting fair trade and supporting Australian manufacturing by ensuring that tariff concessions are only granted where appropriate. The instrument came into force on the date the application was lodged, 25 November 2009, and it provides for a free rate of duty on the specified door stoppers, thereby benefiting importers without imposing any additional liabilities on other parties.
Scope and Application
The Tariff Concession Instrument No. 0944764 under the Customs Act 1901 applies to entities or individuals seeking a tariff concession order (TCO) for goods not produced in Australia. The Act operates within the Commonwealth jurisdiction, and the instrument extends to the specific goods mentioned, in this case, certain door stoppers, which are subject to a free rate of duty as specified in item 50 of Schedule 4 to the Customs Tariff Act 1995. The instrument came into force on the date the application was lodged, which was 25 November 2009, and it does not impose any liabilities on any person nor does it disadvantage anyone by affecting their rights as at the date of registration. The instrument also allows for the possibility of refund for importers of such goods since the TCO's effective date, as per the Customs Act and the Customs Regulations 1995. Any person considering that there are reasons why the TCO should not be made could have lodged a submission with the Chief Executive Officer of Customs, though in this instance, no submissions were received. The scope of the Act is extended through subordinate instruments such as the Customs Regulations 1995, which provide for the application process and potential refunds.
Key Provisions
The key operative sections of Tariff Concession Instrument No. 0944764 under the Customs Act 1901 include sections 269C, 269B, 269D, 269E, 269F, 269P, and 269S. Section 269F allows an individual to apply to the Chief Executive Officer of Customs (the CEO) for a Tariff Concession Order (TCO) concerning specific goods. If the CEO is satisfied that the application does not pertain to goods specified in section 269SJ, which lists goods that cannot be subject to a TCO, the CEO must assess whether the application meets the core criteria as outlined in section 269C. If the CEO determines that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, a TCO may be issued under section 269P(3).
The Act imposes specific obligations and requirements on the parties involved. The CEO must publish a notice in the Gazette, inviting any person who believes there are reasons why the TCO should not be made to lodge a submission, as per subsection 269K(1) of the Act. In this instance, no submissions were received in response to this invitation. Furthermore, under section 269S(1), the TCO is considered to have come into force on the day the application for the TCO was lodged. It is important to note that the TCO does not affect the rights of any person, other than the Commonwealth, as at the date of registration, so as to disadvantage that person or impose liabilities on a person in respect of anything done or omitted to be done before the date of registration.
In terms of offences, penalties, or civil/criminal consequences for breach, the Customs Act 1901 does not explicitly state any specific penalties for failing to comply with the provisions of a TCO. However, it is worth noting that breaches of any other related legislation, such as the Customs Act 1901 or the Customs Tariff Act 1995, may result in civil or criminal penalties, as appropriate. For instance, knowingly or recklessly making a false statement to the CEO or an officer of the Department of Immigration and Border Protection may result in a fine of up to 10,000 penalty units or imprisonment for up to two years, or both, under section 283AB of the Customs Act 1901. It is essential for parties subject to the TCO to ensure compliance with all relevant legislation to avoid any potential penalties or consequences.