EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1009268
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 cookie and or scone cutters on 22 February 2010.
Instrument
TCO No 1009268 was made on 07 May 2010. It declares that those certain cookie and or scone cutters 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. 1009268 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. 1009268, enacted on 7 May 2010 under the Customs Act 1901, provides a specific tariff concession for certain cookie and scone cutters. This legislation was introduced to address the need for tariff reductions on imported goods where there are no domestically produced substitutes. The instrument was made by the Chief Executive Officer of Customs after McPhersons Consumer Products successfully applied for a tariff concession order, meeting the criteria that no substitutable goods were produced in Australia. The objective of this legislation is to support importers by reducing the customs duty on these specific goods from the general rate of 5% to free, thereby enhancing the competitiveness of imported products in the Australian market. The instrument was published in the Gazette with an invitation for objections, none of which were received, and it came into force on the date of the application, 22 February 2010.
Scope and Application
The Tariff Concession Instrument No. 1009268 applies to individuals or entities who have applied for a Tariff Concession Order (TCO) in accordance with the Customs Act 1901, specifically targeting goods for which a lower rate of customs duty is sought. This Act applies to the Chief Executive Officer of Customs, who is responsible for deciding whether the application meets the core criteria, and to the goods in question, which in this case are certain cookie and scone cutters. The application of this Act is confined to the Commonwealth jurisdiction. It does not apply to goods specified in section 269SJ of the Act that are ineligible for a TCO. The scope of this Act may be extended or refined through subordinate instruments, as it references various sections and schedules of the Customs Act 1901 and the Customs Tariff Act 1995.
The geographical reach of this legislation is national, as it pertains to the customs duties applicable across Australia. The application of this TCO does not disadvantage any person other than the Commonwealth and does not impose any liabilities on any person for actions taken prior to the TCO's effective date. Instead, it provides beneficial rights to importers, including the ability to apply for a refund of duty on goods imported since the TCO's effective date.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 1009268 are section 269F, section 269C, and section 269P of the Customs Act 1901. Section 269F allows an individual to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) in respect of specific goods. Section 269C outlines the core criteria for the CEO to consider when deciding whether to approve an application for a TCO, which includes the condition that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Section 269P mandates that if the CEO is satisfied the application meets the core criteria, a written order declaring the goods eligible for the concession must be made.
The Act imposes certain obligations on the applicant, specifically under section 269F, where the applicant must submit a valid application to the CEO. The CEO, on the other hand, has the responsibility under section 269K(1) to publish a notice in the Gazette inviting any person who may have reasons to oppose the TCO to submit their views. Additionally, under section 269P(3), if the CEO is satisfied that the application meets the core criteria, they must make a written TCO. This process ensures that the application is considered fairly and transparently.
Breaches of the obligations and requirements set out in the Act can result in significant consequences. While the explanatory statement does not explicitly detail specific offences or penalties, the Customs Act 1901 generally outlines provisions for penalties related to non-compliance. For instance, under section 281 of the Customs Act 1901, penalties for contraventions can include fines and imprisonment, depending on the severity of the breach. For tariff concessions, non-compliance or misrepresentation in the application process could lead to financial penalties, including the potential recovery of any benefits gained through the concession.