EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0945210
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.
Arnotts Biscuits applied for a TCO in respect of certain dough laminating cutting and forming line on 27 November 2009.
Instrument
TCO No 0945210 was made on 26 February 2010. It declares that those certain dough laminating cutting and forming line 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. 0945210 is taken to have come into force on 27 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 was enacted to provide for the regulation of imports and exports through the administration of customs and excise duties, as well as the collection of revenue. The Act was introduced to address the need for a structured system to manage international trade and ensure compliance with Australian customs laws. The Tariff Concession Instrument No. 0945210 was established under the Customs Act 1901 to allow the Chief Executive Officer of Customs to provide tariff concessions on certain goods. This instrument aims to facilitate trade by reducing the customs duty on specific goods, thereby promoting economic efficiency and competitiveness in the market. The policy objective is to ensure that Australian industries can access necessary goods at a reduced cost, which in turn supports broader economic objectives by encouraging trade and investment. The instrument was enacted by the Parliament of Australia and came into force on the date the application for the tariff concession was lodged, as per subsection 269S(1) of the Act.
Scope and Application
The Customs Act 1901 provides a framework for Tariff Concession Orders (TCOs) through which the Chief Executive Officer of Customs (CEO) can apply lower rates of customs duty on specified goods. This Act applies to entities or individuals seeking to import goods that are eligible for tariff concessions, provided the goods do not fall under the category of items specified in section 269SJ of the Act. The Act's jurisdiction extends nationally across Australia, and it includes provisions for the CEO to consider applications for TCOs, ensuring that no substitutable goods are produced in Australia in the ordinary course of business before granting the concession. The TCOs are effective from the date the application is lodged, as per subsection 269S(1) of the Act, and they do not disadvantage any person or impose liabilities on them for actions taken prior to the order's registration. Notably, importers can benefit from these concessions by applying for a refund of duty on goods imported since the TCO's effective date.
Key Provisions
The key operative sections of Tariff Concession Instrument No. 0945210 under the Customs Act 1901 (the Act) are sections 269C, 269F, 269P, and 269S. Section 269F allows for an application to be made to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO) in respect of certain goods. If the CEO is satisfied that the application meets the core criteria, which includes that no substitutable goods are produced in Australia in the ordinary course of business, a TCO may be issued under section 269P. Section 269C specifies that the core criteria are met if no substitutable goods were produced in Australia on the day the application was lodged. Section 269S specifies that the TCO is taken to have come into force on the day the application was lodged.
The obligations imposed by the Act on the parties include the requirement for the CEO to consider whether an application meets the core criteria and to make a written order if satisfied. The applicant must ensure that the application is made in respect of goods not specified in section 269SJ, which lists those goods that cannot be subject to a TCO. Additionally, the CEO must publish a notice in the Gazette inviting submissions if there are any reasons why the TCO should not be made. In this instance, the CEO did not receive any submissions.
The Act also outlines the potential consequences for breach. Under section 269K(1), the CEO must publish a notice in the Gazette inviting any person who considers there are reasons why the TCO should not be made to lodge a submission. Failure to comply with this requirement could result in the TCO being subject to review or challenge. Additionally, section 269S specifies that the TCO is taken to have come into force on the day the application was lodged, and it does not affect the rights of a person 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. Therefore, while there are no specific penalties mentioned in the explanatory statement, any improper issuance of a TCO could lead to legal challenges and potential revocation of the order if found to be in breach of the Act’s provisions.