EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0944784
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 picture hangers on 25 November 2009.
Instrument
TCO No 0944784 was made on 26 February 2010. It declares that those certain picture hangers 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. 0944784 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 Tariff Concession Instrument No. 0944784, enacted in 2010, is an instrument under the Customs Act 1901 designed to provide tariff concessions on certain goods. Specifically, this instrument addresses the issue of ensuring that the application of tariff concessions does not adversely affect the rights of any person and does not impose liabilities on individuals or entities other than the Commonwealth. The instrument was introduced by the Chief Executive Officer of Customs, following an application from McPhersons Consumer Products for tariff concessions on certain picture hangers. The application was processed under section 269F of the Act, and the CEO was satisfied that the core criteria were met, particularly that no substitutable goods were produced in Australia at the time the application was lodged.
The policy objective of this instrument, as outlined in the explanatory statement, is to provide a lower rate of customs duty on the specified goods, which in this case are certain picture hangers, thereby benefiting importers by allowing them to apply for a refund of duty on goods imported since the day the tariff concession is taken to have come into force. The instrument ensures that the commencement date aligns with the date the application was lodged, thereby protecting the rights of importers and avoiding any retroactive imposition of liabilities.
Scope and Application
The Tariff Concession Instrument No. 0944784, made under the Customs Act 1901, applies to the concession of customs duty on certain picture hangers. This instrument is specifically directed at entities or individuals involved in the importation of these goods, thereby offering them a reduced duty rate. The legislation's application is confined to the Commonwealth jurisdiction, governed by the provisions of the Customs Act and the Customs Tariff Act 1995. The instrument exempts certain goods from tariff concessions as outlined in section 269SJ of the Customs Act 1901. Moreover, the instrument extends its application through subordinate instruments such as the Customs Tariff Act 1995, which specifies the prescribed items of Schedule 4 to which the goods are subject. The commencement date of the TCO is 25 November 2009, the date on which the application was lodged, and it does not affect any pre-existing rights or impose any liabilities on persons other than the Commonwealth.
Key Provisions
The primary operative sections of Tariff Concession Order No. 0944784 (TCO No. 0944784) under the Customs Act 1901 (the Act) pertain to the process of applying for and obtaining a Tariff Concession Order (TCO). Section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of goods, provided these goods are not specified in section 269SJ, which lists those goods that cannot be subject to a TCO. Section 269C outlines the core criteria that an application must meet, which include the condition that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. If the CEO is satisfied that the application meets these criteria, they must make a written order (section 269P(3)) declaring that the goods are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995, which includes the applicable duty rate.
The Act imposes several obligations and requirements on parties involved in the process of obtaining a TCO. The applicant must ensure their application meets the criteria specified in section 269C, including the absence of substitutable goods produced in Australia. The CEO has the duty to review the application against these criteria and make a decision based on the information provided. The CEO must also publish a notice in the Gazette (subsection 269K(1)) inviting submissions from any person who believes the TCO should not be made. In this case, no submissions were received, indicating broad acceptance or lack of opposition to the TCO.
Offences and penalties for breaches of the provisions under the Customs Act 1901 are not explicitly detailed in the explanatory statement for TCO No. 0944784. However, it is reasonable to infer that any failure to comply with the requirements or misrepresentations in the application process could lead to civil or criminal consequences. These might include fines or other penalties as prescribed under the general provisions of the Customs Act. The specifics of these penalties would typically be found in other sections of the Act or related legislation, but they are not explicitly mentioned in the context of this particular TCO.
The TCO does not affect the rights of any person as at the date of registration, ensuring that it does not disadvantage anyone or impose new liabilities on them for actions taken before the TCO came into force. This protection is detailed in subsection 269S(1), which specifies that the TCO is taken to have come into force on the day the application was lodged. Furthermore, under paragraph 126(1)(r) of the Regulations, importers of the goods subject to the TCO can apply for a refund of duty on goods imported since the effective date of the TCO, enhancing the beneficial impact on importers.