EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0949993
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.
Jasco applied for a TCO in respect of certain paper stapling machines on 22 December 2009.
Instrument
TCO No 0949993 was made on 12 March 2010. It declares that those certain paper stapling machines 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. 0949993 is taken to have come into force on 22 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 Tariff Concession Instrument No. 0949993 was enacted in 2010 under the Customs Act 1901 to address the issue of providing tariff concessions for certain goods, thereby encouraging their importation and use in Australia. This instrument was introduced in response to the need for specific concessions to be applied to goods where no substitutable alternatives are produced domestically. The instrument was created by the Chief Executive Officer of Customs, who has the authority to make Tariff Concession Orders (TCOs) under section 269F of the Customs Act. The primary policy objective is to reduce the customs duty on certain imported goods, thereby potentially lowering costs for businesses and consumers and encouraging the use of specified goods.
The instrument specifically addresses an application by Jasco for a TCO concerning certain paper stapling machines, effective from 22 December 2009. The instrument declares that these machines are subject to a free duty rate as no substitutable goods were produced in Australia at the time of the application. This concession is intended to benefit importers by allowing them to apply for a refund of duty paid on these goods since the effective date of the TCO, as outlined in the Customs Regulations. Importantly, the instrument ensures that it does not disadvantage any person other than the Commonwealth by affecting their rights as at the date of registration or imposing new liabilities.
Scope and Application
The Tariff Concession Instrument No. 0949993, made under the Customs Act 1901, applies to entities that seek tariff concessions for specific goods, in this case, certain paper stapling machines. The instrument was made by the Chief Executive Officer of Customs in response to an application by Jasco, and it grants a tariff concession order that results in the specified paper stapling machines being subject to a duty-free rate instead of the general rate of 5%. This order is applicable to the Commonwealth of Australia and affects the customs duty on the imported goods to which it applies. The application of this instrument is subject to certain conditions, including that no substitutable goods were produced in Australia at the time of application, and the order does not affect the rights of any person except to the benefit of importers who can apply for a refund of duty on goods imported since the order's effective date. The order came into effect on the date the application was lodged, 22 December 2009, and no submissions were received in response to the notice published in the Gazette.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 0949993 pertain to the application process for Tariff Concession Orders (TCOs) as outlined in the Customs Act 1901. Section 269F allows any person to apply to the Chief Executive Officer of Customs (CEO) for a TCO regarding certain goods. To qualify, the application must meet core criteria, which include the absence of substitutable goods produced in Australia on the day the application was lodged (section 269C). Additionally, the CEO must ensure that the goods are not specified in section 269SJ, which details goods that cannot be subject to a TCO. If the CEO is satisfied that the application meets these criteria, they are required to make a written order declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies (section 269P(3)).
The obligations imposed on the parties governed by this Act include the necessity for applicants to provide sufficient information to establish that their application meets the core criteria. This involves demonstrating that no substitutable goods were produced in Australia on the date the application was lodged. Furthermore, the CEO has the obligation to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting submissions from any person who believes there are reasons why the TCO should not be made (subsection 269K(1)). In this case, no submissions were received.
There are no specific offences, penalties, or civil/criminal consequences outlined in the Act for breaches related to TCOs. However, the general legal framework of the Customs Act 1901 applies, which could include penalties for false statements or fraudulent activities related to the application process. The Customs Act includes provisions for penalties in cases of fraud, misrepresentation, or other serious breaches, although the exact penalties are not specified in this particular instrument.