EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1012310
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.
Caroma Dorf applied for a TCO in respect of certain sink accessories on 11 March 2010.
Instrument
TCO No 1012310 was made on 28 May 2010. It declares that those certain sink accessories 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. 1012310 is taken to have come into force on 11 March 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 Commonwealth Parliament, provides a framework for the administration of customs duties and includes provisions for Tariff Concession Orders (TCOs). These orders aim to address specific economic and trade policy needs by providing tariff concessions on certain goods. The legislation allows the Chief Executive Officer of Customs to grant these concessions when certain criteria are met, such as when no substitutable goods are produced in Australia. This instrument, Tariff Concession Instrument No. 1012310, was introduced to provide a tariff concession for certain sink accessories, recognising that these goods are not produced domestically and thus merit a lower customs duty rate. The instrument was published in the Gazette, inviting public submissions, but none were received. The concession aims to benefit importers by potentially allowing them to apply for a refund of duty paid on the specified goods imported since the TCO's effective date.
Scope and Application
The Tariff Concession Instrument No. 1012310 under the Customs Act 1901 applies to the specific goods, in this case certain sink accessories, for which Caroma Dorf submitted an application to the Chief Executive Officer of Customs (CEO) on 11 March 2010. The application was made to obtain a Tariff Concession Order (TCO) that would grant these goods a lower rate of customs duty, specifically a rate of duty that is free as opposed to the general rate of 5%. The Act applies to any person or entity seeking to import goods that meet the criteria for a TCO, ensuring that no substitutable goods are produced in Australia in the ordinary course of business. The instrument extends across the Commonwealth of Australia and its application is not restricted by state or territory boundaries. Notably, the TCO does not affect the rights of any person as at the date of registration, nor does it impose any liabilities on persons other than the Commonwealth for actions taken prior to the registration date. The instrument does not include any specific exclusions, exemptions, or thresholds beyond those outlined in the Customs Act 1901 and related regulations. The application of the TCO is further governed by subordinate instruments that may detail specific procedural or operational aspects of the concession.
Key Provisions
The primary sections of Tariff Concession Instrument No. 1012310 are sections 269C, 269B, 269D, 269E, 269F, 269P, 269S, and 269K. These sections collectively outline the conditions under which a Tariff Concession Order (TCO) can be made, the criteria that must be met for an application to be considered, the process for making the order, and the publication requirements for such orders. Section 269F allows a person to apply to the Chief Executive Officer (CEO) of Customs for a TCO in respect of certain goods. Section 269C specifies that a TCO application meets the core criteria if no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Section 269P(3) mandates that if the CEO is satisfied that the application meets the core criteria, a written TCO must be made.
The Act imposes several obligations on the parties involved. An applicant must ensure that the goods in question do not have substitutable goods produced in Australia as of the application date. The CEO must assess whether the application meets the core criteria, publish a notice in the Gazette inviting submissions, and make a TCO if the criteria are satisfied. The CEO did not receive any submissions against the TCO application for certain sink accessories, indicating that no objections were raised regarding the order.
There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of the TCO provisions in the explanatory statement. However, any party who fails to comply with the obligations and requirements set out in the Act could potentially face legal consequences under other sections of the Customs Act 1901 or related legislation. The focus of this instrument is primarily on the procedural aspects of making a TCO rather than punitive measures for non-compliance.