EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0946488
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.
Voritsu Koki Australia applied for a TCO in respect of certain laser unit on 08 January 2009.
Instrument
TCO No 0946488 was made on 03 April 2009. It declares that those certain laser unit 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. 0946488 is taken to have come into force on 08 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, enacted by the Parliament of Australia, provides a framework for the administration of customs duties and the regulation of imports and exports. The Act allows for the establishment of Tariff Concession Orders (TCOs) through Part XVA, which aims to offer tariff relief on certain goods. This mechanism was introduced to address the need for flexibility in tariff applications to support industries that rely on imported goods, ensuring they are not unduly burdened by customs duties. The Tariff Concession Instrument No. 0946488, issued under this Act, was enacted to provide tariff concessions to Voritsu Koki Australia for specific laser units, effective from 8 January 2009. The policy objective is to facilitate the import of these goods at a reduced duty rate, thereby supporting industry efficiency and competitiveness by ensuring that no substitutable goods were produced in Australia at the time of application.
Scope and Application
The Tariff Concession Instrument No. 0946488 under the Customs Act 1901 applies to certain laser units as specified by Voritsu Koki Australia, who applied for a Tariff Concession Order (TCO) on 08 January 2009. This instrument was issued on 03 April 2009 and became effective from the date the application was lodged, pursuant to subsection 269S(1) of the Act. The TCO applies to the goods in question by declaring that they are subject to item 50 of Schedule 4 of the Customs Tariff Act 1995, resulting in a duty-free status. This instrument is applicable nationally, extending its reach across Australia, and is administered by the Chief Executive Officer of Customs (CEO) in accordance with the legislative framework established under Part XVA of the Customs Act. The CEO's decision to grant the TCO was based on the criteria outlined in section 269C of the Act, confirming that no substitutable goods were produced in Australia on the date the application was lodged. This legislative process ensures that the application of the TCO does not disadvantage any person other than the Commonwealth and does not impose any liabilities on any person, while potentially benefiting importers by allowing them to apply for a refund of duty on goods imported since the effective date of the TCO.
Key Provisions
The Tariff Concession Instrument No. 0946488, which is made under the Customs Act 1901, applies specifically to certain laser units. This instrument (section 269P(3)) requires the Chief Executive Officer of Customs (the CEO) to make a written order, known as a Tariff Concession Order (TCO), if the CEO is satisfied that the application for a TCO meets the core criteria set out in the Act. In this case, the CEO was satisfied that no substitutable goods were produced in Australia at the time the application was lodged, allowing the CEO to declare that the laser units are subject to a lower rate of customs duty, which is free instead of the general 5% rate (item 50 of Schedule 4 to the Customs Tariff Act 1995).
The obligations imposed by this legislation are primarily on Voritsu Koki Australia, the applicant for the TCO. They must ensure that their application is valid and that the laser units do not have substitutable goods produced in Australia. The CEO, on the other hand, has the obligation to assess the application against the core criteria, make a written order if the criteria are met, and publish a notice in the Gazette inviting submissions from interested parties. In this instance, the CEO did not receive any submissions opposing the TCO.
Failure to comply with the requirements of the Customs Act 1901 or the provisions of a TCO could result in civil or criminal penalties. The Act does not specify particular offences related to TCOs, but general provisions for offences under the Customs Act may apply, potentially leading to fines or imprisonment. For example, providing false or misleading information in the application process could result in penalties under section 274 of the Act, which carries a maximum penalty of five years imprisonment. Additionally, any misuse of the tariff concession, such as importing goods under false pretences, could attract further penalties under the relevant sections of the Customs Act.