EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1013345
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 folding mirrors on 17 March 2010.
Instrument
TCO No 1013345 was made on 04 June 2010. It declares that those certain folding mirrors 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. 1013345 is taken to have come into force on 17 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 Tariff Concession Instrument No. 1013345, enacted in 2010, amends the Customs Act 1901 to address the need for tariff concessions on specific imported goods, in this case, certain folding mirrors. This legislative instrument was introduced to provide relief on customs duties for goods that do not have Australian-made substitutes, thereby promoting fair competition and potentially reducing costs for consumers and businesses that rely on these imports. The instrument was created under the authority of the Customs Act 1901, enacted by the Parliament of Australia, with the policy objective of facilitating trade by allowing lower customs duties on certain imported goods that do not have a local equivalent. The Tariff Concession Order (TCO) in question came into force on the date the application was lodged, 17 March 2010, and no submissions were received opposing the concession, indicating broad acceptance of the measure.
Scope and Application
The Customs Act 1901, as augmented by Tariff Concession Instrument No. 1013345, applies to entities and individuals involved in the importation of goods specified in the instrument. The act primarily focuses on the concession of tariff rates for certain folding mirrors as designated in item 50 of Schedule 4 to the Customs Tariff Act 1995, which are subject to a reduced duty rate from the general 5% to a free rate. This concession is applicable to any person or entity that imports the specified folding mirrors into Australia, provided that no substitutable goods are produced in Australia. The application of this concession is governed by the criteria set out in sections 269C, 269D, and 269E of the Customs Act 1901, which stipulate that for a tariff concession to be granted, the goods must not have any Australian-made alternatives that serve the same purpose or design use. The instrument extends to the entire Commonwealth of Australia and is effective from the date the application for the concession was lodged, which is 17 March 2010. Importantly, this concession does not retroactively affect any rights or liabilities of individuals or entities other than the Commonwealth, thereby ensuring that the rights of importers are positively impacted from the date of the concession's application.
Key Provisions
The main sections of this legislation pertain to Tariff Concession Orders (TCOs) under Part XVA of the Customs Act 1901 (section 269C). A TCO allows for a lower rate of customs duty to be applied to certain goods if certain criteria are met. Specifically, Section 269F allows for an application to be made to the Chief Executive Officer of Customs (CEO) for a TCO concerning specified goods. Section 269SJ sets out the goods that cannot be subject to a TCO, and Section 269P(3) requires the CEO to make a written order if the application meets the core criteria, which is defined in Section 269C.
The obligations imposed by this legislation include the requirement for the CEO to decide if a TCO application meets the core criteria, as specified in Section 269C. This involves determining whether substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Additionally, Subsection 269K(1) mandates that the CEO publish a notice in the Gazette inviting submissions from any person who believes there are reasons why the TCO should not be made, and consider these submissions in their decision-making process.
Under this legislation, there are no explicit criminal offences or penalties mentioned for breach of the TCO provisions. However, any party aggrieved by the decision of the CEO can seek a review of that decision under Section 270 of the Customs Act 1901. The consequences of non-compliance would likely involve disputes over the duty rates applicable to the goods in question, potentially leading to administrative or legal challenges rather than direct criminal or civil penalties. The absence of specific penalties underscores the administrative nature of the enforcement mechanisms provided within the Customs Act 1901 framework.