EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1023418
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.
Aqua Guardian Group Limited applied for a TCO in respect of certain flotation pod moulds on 26 May 2010.
Instrument
TCO No 1023418 was made on 17 August 2010. It declares that those certain flotation pod moulds 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. 1023418 is taken to have come into force on 26 May 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. 1023418, made under the Customs Act 1901, was enacted in 2010 to address the issue of providing tariff concessions for specific goods not produced in Australia. This legislative instrument aims to facilitate lower customs duty rates for goods that are not substituted by domestic production. The instrument was introduced following an application by Aqua Guardian Group Limited for tariff concessions on certain flotation pod moulds. The Customs Act 1901 provides the framework for the Chief Executive Officer of Customs to make such tariff concession orders, ensuring that they meet core criteria, such as the absence of substitutable goods produced in Australia. The policy objective is to encourage the importation of goods that are not locally produced, thereby supporting industries where Australia lacks domestic production capacity. The instrument came into force on the date of the application, 26 May 2010, and does not affect the rights of any person as at the date of registration.
Scope and Application
The Tariff Concession Instrument No. 1023418, which was made under the Customs Act 1901, applies to specific goods, namely certain flotation pod moulds, and is applicable to the applicant, Aqua Guardian Group Limited. The Instrument was made by the Chief Executive Officer of Customs and reduces the customs duty on these goods from 5% to free, provided the application meets the core criteria outlined in the Act. This concession is applicable from the date the application was lodged, which is 26 May 2010, and does not affect the rights of any person, except to the beneficial effect of importers who can apply for a refund of duty. The geographic and jurisdictional reach of this Instrument is national, as it is made under a Commonwealth Act. There are no stated exclusions, exemptions, or thresholds in the Instrument itself, though it does extend the application through subordinate instruments such as the Customs Tariff Act 1995 and the Customs Regulations 1999.
Key Provisions
The main operative sections of Tariff Concession Instrument No. 1023418 under the Customs Act 1901 (section 269P(3)) declare that certain flotation pod moulds are goods to which item 50 of Schedule 4 to the Customs Tariff Act 1995 applies, making the duty on these goods free. The instrument, effective from 26 May 2010, provides a lower rate of customs duty on these goods by applying a Tariff Concession Order (TCO). This concession applies only if the goods are not substitutable by any goods produced in Australia, as determined by the Chief Executive Officer of Customs (CEO) under section 269C.
The obligations imposed by this legislation on parties or entities governed by it include the requirement for the CEO to assess applications for TCOs and ensure they meet the core criteria. The CEO must also publish notices in the Gazette inviting submissions from any interested parties if a TCO application is accepted as valid, as stipulated in subsection 269K(1) of the Act. In this instance, the CEO did not receive any submissions against the TCO for flotation pod moulds, which means the order was made without any objections.
Under this Act, breaches or non-compliance with the provisions for TCOs can lead to civil or criminal consequences. The exact penalties are not detailed in the provided text but generally, breaches of customs laws can result in fines and imprisonment. The severity of these penalties would depend on the nature and extent of the breach, and would be determined under the relevant sections of the Customs Act 1901 or other applicable legislation. The TCO itself ensures that it does not impose any new liabilities on individuals or entities, protecting them from any adverse effects that might arise from its implementation.