EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1014665
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.
McPherson's Consumer Products applied for a TCO in respect of certain brush heads on 25 March 2010.
Instrument
TCO No 1014665 was made on 11 June 2010. It declares that those certain brush heads 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. 1014665 is taken to have come into force on 25 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. 1014665, enacted in 2010, amends the Customs Act 1901 by providing for tariff concessions on certain brush heads. The purpose of this legislation is to address the issue of providing tariff concessions to ensure that certain imported goods are not subject to customs duty if they do not have substitutable Australian-produced equivalents. The instrument was introduced to provide relief to businesses that import these goods, potentially reducing their costs and increasing their competitiveness in the market. The enactment of this instrument was authorised by the Customs Act 1901, which outlines the framework for tariff concession orders. The policy objective of the Tariff Concession Instrument No. 1014665 is to facilitate trade by reducing the duty on specific imported goods, thereby encouraging their use and availability in the Australian market without imposing a disadvantage on any person or creating new liabilities.
Scope and Application
The Tariff Concession Instrument No. 1014665 under the Customs Act 1901 applies to individuals or entities, such as McPherson's Consumer Products in this case, seeking a tariff concession order (TCO) for specific goods. The instrument pertains to goods that are subject to a lower rate of customs duty, as determined by the Chief Executive Officer of Customs (CEO) based on the criteria set out in the Act. The scope of the Act extends to any person or entity eligible to apply for a TCO in respect of goods not specified in section 269SJ, which excludes certain goods from being subject to a TCO. The CEO is required to ensure that no substitutable goods are produced in Australia in the ordinary course of business when deciding on an application. The geographic and jurisdictional reach of the Act is Commonwealth-wide, as it pertains to the national customs duties regime. The Act can be extended or restricted through subordinate instruments, but the primary legislation outlines the framework and criteria for tariff concessions. This particular TCO, No. 1014665, pertains to certain brush heads and took effect from the date the application was lodged, which is 25 March 2010, and it does not disadvantage any person other than the Commonwealth or impose liabilities on any person for actions prior to its registration.
Key Provisions
The primary sections of Tariff Concession Instrument No. 1014665, which pertains to the Customs Act 1901, outline the process and criteria for the issuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). Specifically, section 269F allows for the application of a TCO, which results in a lower rate of customs duty for the specified goods. Section 269C mandates that for a TCO application to meet the core criteria, it must be established that no substitutable goods are produced in Australia at the time the application is made. The CEO is further required to publish a notice in the Gazette inviting submissions from the public if there are concerns about the TCO, as outlined in section 269K(1). If no objections are raised, and the CEO is satisfied that the application meets the criteria, a TCO will be issued under section 269P(3).
The obligations imposed by the Act on the parties involved are primarily centred around the application and assessment process. McPherson's Consumer Products, as the applicant, must submit a valid application that meets the core criteria specified in section 269C. The CEO, as the decision-maker, is required to assess the application, publish a notice in the Gazette, and consider any submissions received. The CEO must also ensure that the application does not pertain to goods specified in section 269SJ, which are ineligible for a TCO. Additionally, under section 269S(1), the TCO will be deemed to have come into force on the day the application was lodged.
In terms of consequences for non-compliance, the Act does not explicitly outline specific offences, penalties, or consequences for breaches of the TCO process. However, any misrepresentation or fraudulent activity in the application process could potentially lead to legal consequences under general criminal law provisions, such as fraud or deceit. The focus of the Act is more on the procedural correctness of the TCO application and the satisfaction of the core criteria, rather than penalising specific breaches of the process itself.