EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1008752
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 sink and or bath plugs on 18 February 2010.
Instrument
TCO No 1008752 was made on 30 April 2010. It declares that those certain sink and or bath plugs 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. 1008752 is taken to have come into force on 18 February 2010.
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 imposition of customs duties on imported goods. It includes provisions for Tariff Concession Orders (TCOs), which can be applied for by individuals or entities seeking a reduction in customs duties on specific goods. The purpose of the Customs Act 1901, as amended, is to facilitate the regulation of customs duties and the movement of goods across Australian borders, ensuring that certain products can be imported at reduced rates when specific conditions are met. In particular, McPhersons Consumer Products applied for a TCO concerning certain sink and bath plugs, resulting in Tariff Concession Instrument No. 1008752, which was issued on 30 April 2010. The instrument, which came into force on 18 February 2010, aims to address the problem of higher duty rates on specific goods by providing tariff concessions where applicable. This legislative instrument ensures that the rights of importers are protected and potentially benefited, without imposing any new liabilities on individuals or entities.
Scope and Application
The Tariff Concession Instrument No. 1008752 applies to the goods specified in the instrument, namely certain sink and bath plugs, and is governed under the Customs Act 1901. This legislation empowers the Chief Executive Officer of Customs to grant tariff concession orders (TCOs) which reduce the rate of customs duty on goods that are not produced in Australia and for which no suitable substitute is available. The application of this instrument is national in scope, covering all importers and exporters within the Commonwealth of Australia. The process for applying for a TCO involves meeting specific criteria set out in the Act, including the absence of substitutable goods produced in Australia, and the instrument is subject to the terms and conditions specified in the Customs Tariff Act 1995. There are no exclusions or exemptions detailed in this particular TCO, and the application must be made in accordance with the statutory requirements. The instrument came into effect on the date the application was lodged, which is 18 February 2010, and does not affect any pre-existing rights or liabilities.
Key Provisions
The primary sections of the Tariff Concession Instrument No. 1008752 involve the making of a Tariff Concession Order (TCO) under the Customs Act 1901 (section 269F). This instrument, issued on 30 April 2010, specifies that certain sink and bath plugs are subject to a reduced customs duty rate as per item 50 of Schedule 4 to the Customs Tariff Act 1995. Under section 269C, the CEO must assess whether the application for the TCO meets the core criteria, specifically ensuring that no substitutable goods were produced in Australia on the date the application was lodged (section 269P(3)). If the application meets the criteria, the CEO is mandated to issue a written TCO, as outlined in the instrument.
The Act imposes specific obligations on the parties involved. The CEO of Customs must ensure that the application for a TCO is valid and meets the criteria set out in the Act. The CEO is also required to publish a notice in the Gazette (subsection 269K(1)) inviting any interested parties to submit their views on the application. For the TCO to be effective, the CEO must be satisfied that the application meets the core criteria, including the absence of substitutable goods produced in Australia. The CEO must also ensure that the TCO does not disadvantage any person other than the Commonwealth and does not impose any new liabilities (subsection 269S(1)).
Any breaches of the provisions under the Customs Act 1901 can result in significant consequences. While the explanatory statement does not detail specific offences under this instrument, general provisions of the Act may apply. Breaches of the Customs Act can lead to civil or criminal penalties, depending on the nature and severity of the offence. Civil penalties can include fines and the recovery of unpaid duties, while criminal penalties can result in imprisonment, reflecting the seriousness of non-compliance with the Act's provisions. The maximum penalties for offences under the Customs Act can vary widely, with some serious offences potentially leading to imprisonment for several years. The exact penalties depend on the specific nature of the offence and are determined by the courts.