EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1009265
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 soft fruit slicer household tools on 22 February 2010.
Instrument
TCO No 1009265 was made on 07 May 2010. It declares that those certain soft fruit slicer household tools 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. 1009265 is taken to have come into force on 22 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 Tariff Concession Instrument No. 1009265, enacted under the Customs Act 1901, was introduced to address the issue of providing tariff concessions for specific goods that do not have Australian-produced alternatives. The Act, overseen by the Parliament of Australia, aims to facilitate trade by reducing customs duties on goods that are not produced domestically. This legislative instrument was developed to streamline the process for granting tariff concessions, ensuring that such concessions are awarded when appropriate, thereby supporting economic efficiency and competitiveness in the market. The instrument was designed to ensure that no person is disadvantaged or subjected to new liabilities as a result of the concession, while also providing benefits to importers who can seek refunds for duties paid on the specified goods prior to the concession’s effective date.
Scope and Application
The Tariff Concession Instrument No. 1009265, made under the Customs Act 1901, applies to the specific goods of soft fruit slicer household tools that were subject to an application by Mcphersons Consumer Products. This application was made to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO), which, if approved, reduces the rate of customs duty for these goods. The Act applies to any person or entity that imports the specified goods and benefits from the concessional tariff rate, which in this case is set at free duty as opposed to the general rate of 5%. The geographic reach of this legislation is national, as it pertains to customs duties administered by the Commonwealth of Australia. There are no stated exclusions or exemptions within the scope of this particular TCO, though the Act itself excludes certain goods from being subject to a TCO under section 269SJ. The application of the Act may be extended or restricted through subordinate instruments, such as regulations or further orders made by the CEO under section 269F of the Customs Act 1901.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 1009265 are those that permit the Chief Executive Officer (CEO) of Customs to make Tariff Concession Orders (TCOs) under section 269F of the Customs Act 1901 (the Act). The instrument itself is made under section 269P(3) of the Act. Section 269C of the Act sets out the core criteria that must be satisfied for a TCO application to be approved, which is that no substitutable goods were produced in Australia on the day the application was lodged. Once the CEO is satisfied that the core criteria are met, they must make a written order declaring that the goods in question are subject to the prescribed tariff concession (section 269P(3)). In this case, the CEO made TCO No. 1009265 on 7 May 2010, declaring that certain soft fruit slicer household tools are subject to a tariff concession, specifically item 50 of Schedule 4 to the Customs Tariff Act 1995, resulting in a duty rate of free instead of the general rate of 5%.
The Act imposes specific obligations and requirements on both applicants and the CEO. For applicants, the primary obligation is to ensure that their application for a TCO is made in accordance with section 269F of the Act, which includes demonstrating that the goods in question are not specified in section 269SJ and that they meet the core criteria outlined in section 269C. The CEO, on the other hand, is required to determine whether an application meets the core criteria, make a written order if the criteria are met, and publish a notice in the Gazette inviting submissions from any interested parties (subsection 269K(1)). In this instance, the CEO satisfied the core criteria for the application by McPhersons Consumer Products and made TCO No. 1009265.
The Act does not explicitly outline specific offences, penalties, or consequences for breaches in this context. However, the general provisions of the Customs Act 1901 and associated regulations apply, which may include civil or criminal penalties for non-compliance with customs regulations, including the misuse or improper application of tariff concessions. These penalties can include fines and, in severe cases, imprisonment, depending on the nature and extent of the breach. The specific penalties are determined by the courts based on the circumstances of each case.