EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0945605
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 brushes bottles and teat set on 02 January 2009.
Instrument
TCO No 0945605 was made on 27 March 2009. It declares that those certain brushes bottles and teat set 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. 0945605 is taken to have come into force on 02 January 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 a comprehensive framework for the administration of customs and excise in Australia. It includes provisions for the imposition and collection of customs duty and excise duty on imported goods, among other things. One of the ways in which the Customs Act facilitates trade is through the scheme for Tariff Concession Orders (TCOs), which allows for the reduction or elimination of customs duty on certain goods. The Tariff Concession Instrument No. 0945605 was introduced to provide tariff concessions for certain brushes bottles and teat sets, which were the subject of an application by McPhersons Consumer Products on 2 January 2009. The instrument was made by the Chief Executive Officer of Customs, who determined that no substitutable goods were produced in Australia in the ordinary course of business. The tariff concession applies to goods imported on or after the date of the application, which is 2 January 2009.
The Tariff Concession Instrument No. 0945605 was made by the Chief Executive Officer of Customs under section 269F of the Customs Act 1901. The instrument declares that certain brushes bottles and teat sets are goods to which item 50 of Schedule 4 to the Customs Tariff Act 1995 applies, which means that the general rate of duty on these goods is free. The policy objective of the instrument is to provide tariff concessions for goods that are not produced in Australia in the ordinary course of business, which is intended to support Australian industry and promote fair competition. The instrument does not affect the rights of any person as at the date of registration, and it does not impose any liabilities on any person.
Scope and Application
The Tariff Concession Instrument No. 0945605 applies to the goods specified in the instrument, which are certain brushes, bottles, and teat sets, and is governed under the Customs Act 1901. The Act applies to any person or entity that imports these specific goods into Australia, with the aim of providing a lower rate of customs duty under the scheme of Tariff Concession Orders (TCOs). The CEO of Customs is responsible for making decisions on TCO applications based on the criteria outlined in the Act, particularly ensuring that no substitutable goods are produced in Australia. The instrument’s geographic reach is national, as it pertains to the importation of goods into Australia and the application of customs duties as per the Australian Customs Tariff. The instrument does not disadvantage any person by imposing liabilities for actions taken before its effective date, which is taken to be the date the application was lodged, in this case, 2 January 2009. The CEO is also required to publish a notice in the Gazette to invite any interested parties to make submissions regarding the TCO application, although no submissions were received for this particular instrument.
Key Provisions
The primary sections of Tariff Concession Instrument No. 0945605 under the Customs Act 1901 include sections 269F, 269C, 269B, and 269P. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO) in respect of specific goods. If the application is deemed valid, section 269C requires the CEO to assess whether it meets the core criteria, which includes ensuring that no substitutable goods were produced in Australia on the day the application was lodged. Section 269B further clarifies the terms used in this assessment, such as "goods produced in Australia," "ordinary course of business," and "substitutable goods." If the CEO is satisfied that the application meets these criteria, section 269P(3) mandates that a written TCO be issued, declaring that the goods specified in the application are subject to a prescribed item of Schedule 4 to the Customs Tariff Act 1995.
The Act imposes specific obligations on the parties involved. For instance, the CEO must determine the validity of the TCO application and whether it meets the core criteria outlined in section 269C. This involves verifying that no substitutable goods were produced in Australia on the date of the application. Additionally, as per section 269K(1), the CEO is required to publish a notice in the Gazette inviting submissions from any interested parties who may object to the making of the TCO. In this case, no submissions were received. Once the TCO is issued, the CEO must ensure that the rights of importers are not adversely affected, and that no new liabilities are imposed on any person by virtue of the TCO, as stipulated under the Customs Act.
In terms of penalties and consequences, the Customs Act does not specify any particular offences, penalties, or consequences for breaching the provisions of the TCO. However, the Act does provide for potential civil and criminal liabilities if any party involved in the import or export of goods fails to comply with the broader requirements of the Customs Act and associated regulations. For example, failure to declare goods correctly, or any fraudulent activities related to the import or export process, could result in substantial fines and, in severe cases, criminal prosecution. The specific penalties for such breaches would be determined by the relevant sections of the Customs Act and the applicable regulations.