EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0948194
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.
The Trustee of the Bob Littler Family Trust applied for a TCO in respect of certain marine helm pumps on 10 December 2009.
Instrument
TCO No 0948194 was made on 08 March 2010. It declares that those certain marine helm pumps 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. 0948194 is taken to have come into force on 10 December 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 by the Australian Parliament to regulate the import and export of goods within Australia. The Act provides a framework for the imposition of customs duties and the management of tariff concessions. One significant aspect of the Customs Act is the scheme under which Tariff Concession Orders (TCOs) can be made by the Chief Executive Officer of Customs. This scheme was introduced to address the problem of ensuring that certain goods that are not produced in Australia are not subjected to customs duties when imported, provided they meet specific criteria. The policy objective is to facilitate the import of goods that are essential and not domestically produced, thereby supporting industries that rely on imported components. The instrument in question, Tariff Concession Instrument No. 0948194, was created to provide a tariff concession on certain marine helm pumps, reducing the duty on these goods from 5% to free, upon the application by the Trustee of the Bob Littler Family Trust. This instrument came into force on the date the application was lodged, 10 December 2009, and no submissions opposing the concession were received during the consultation period.
Scope and Application
The Customs Act 1901, as modified by Tariff Concession Instrument No. 0948194, applies to individuals and entities seeking tariff concessions on specific goods imported into Australia. This Act empowers the Chief Executive Officer of Customs to grant Tariff Concession Orders (TCOs) that provide a reduced rate of customs duty on goods deemed not to have substitutable alternatives produced within Australia. This concession applies to the marine helm pumps specified in the TCO. The instrument extends its application to the Commonwealth, with the specific focus on the import duties of these goods. It excludes goods listed in section 269SJ of the Customs Act 1901, which cannot be subject to a TCO. The instrument itself does not contain exclusions but refers to the parent Act for such details. The TCO's application can be extended or restricted through subordinate instruments, ensuring flexibility in tariff management. The TCO, once registered, benefits importers by potentially allowing them to apply for a refund of duties paid on these goods since the effective date of the TCO, while not imposing any new liabilities on persons other than the Commonwealth.
Key Provisions
The primary operative sections of the Tariff Concession Instrument No. 0948194 under the Customs Act 1901 (section 269C) establish the conditions for the application and issuance of a Tariff Concession Order (TCO). Section 269C specifies that an application for a TCO will be considered if, on the date of application, there are no substitutable goods produced in Australia in the ordinary course of business. Section 269B further clarifies the definitions of terms such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods'. If the Chief Executive Officer (CEO) of Customs is satisfied that the application meets these criteria, they must proceed to make the TCO (section 269P(3)). This TCO declares that the specified goods are subject to a prescribed item in Schedule 4 of the Customs Tariff Act 1995, effectively applying a lower or free rate of customs duty on those goods.
The Act imposes certain obligations on the parties involved in the TCO process. The applicant, such as the Trustee of the Bob Littler Family Trust in this instance, must submit a valid application that meets the core criteria set out in section 269C. The CEO of Customs is required to evaluate the application against these criteria and make a decision within the stipulated timeframe. Additionally, once an application is accepted as valid, the CEO must publish a notice in the Gazette inviting submissions from any interested parties who might oppose the making of the TCO (subsection 269K(1)). The CEO must then consider any submissions received before making a final decision. In this case, no submissions were received, allowing the TCO to proceed.
The Customs Act 1901 also outlines potential consequences for breaches of its provisions. While the explanatory statement does not detail specific offences or penalties under this particular TCO, the general legal framework within the Act can include both civil and criminal penalties for non-compliance. For instance, section 269SJ of the Act specifies goods that cannot be subject to a TCO, and any attempt to apply for a TCO for such goods could lead to penalties. The penalties for breaching the Customs Act can range from fines to imprisonment, depending on the severity and intent of the offence. The exact penalties would be determined in the context of the broader legal proceedings and the specific nature of the breach.