EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1041557
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.
Schlindler Lifts Australia applied for a TCO in respect of certain lift and or elevator landing doors on 08 September 2010.
Instrument
TCO No 1041557 was made on 29 November 2010. It declares that those certain lift and or elevator landing doors 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. 1041557 is taken to have come into force on 08 September 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 Australian Parliament, provides a framework for the regulation of goods imported into Australia, including the imposition of customs duties. The Tariff Concession Instrument No. 1041557, made under the Customs Act, addresses a specific gap in the duty concessions available for certain goods, ensuring that Australian businesses and consumers can access competitively priced products without the burden of high tariffs. This instrument was introduced to facilitate the tariff concession application process for Schindler Lifts Australia concerning lift and elevator landing doors, ensuring that these goods benefit from a reduced rate of customs duty, thereby promoting fair trade and economic efficiency.
The instrument was created by the Chief Executive Officer of Customs in accordance with the Act's provisions, which allow for tariff concessions if certain criteria are met, including the absence of substitutable goods produced in Australia. The policy objective is to provide relief from customs duties for imported goods that do not have Australian-made equivalents, thus supporting the competitiveness of Australian industries and the affordability of goods for consumers. The process involved public consultation, and the instrument came into force on the date the application was lodged, ensuring timely benefits for eligible importers.
Scope and Application
The Tariff Concession Instrument No. 1041557 pertains to the Customs Act 1901 and specifically applies to goods for which Tariff Concession Orders (TCO) can be made. It affects entities or individuals seeking to import certain goods into Australia by providing a concessional rate of customs duty, in this case, free duty for certain lift and elevator landing doors. This legislation is applicable nationally and is enacted under the authority of the Commonwealth, specifically by the Chief Executive Officer of Customs (CEO) upon receiving an application from an eligible applicant. The application must meet the core criteria set out in the Customs Act 1901, notably that no substitutable goods were produced in Australia on the date of the application. This Instrument extends its application by making specific reference to item 50 of Schedule 4 of the Customs Tariff Act 1995. The TCO does not impose any new liabilities or disadvantage any persons other than the Commonwealth and is effective from the date the application was lodged, which in this instance was 08 September 2010.
Key Provisions
The main operative sections of the Customs Act 1901 (the Act) in relation to Tariff Concession Orders (TCOs) are sections 269C, 269B, 269D, 269E, 269F, 269P, and 269S. Section 269F allows a person to apply to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of goods. If the application is not in respect of goods specified in section 269SJ, the CEO must decide whether the application meets the core criteria as outlined in section 269C. Section 269C states that an application meets the core criteria if, on the day the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business. Definitions for terms such as 'goods produced in Australia', 'ordinary course of business', and'substitutable goods' are provided in sections 269B, 269D, and 269E respectively. If the CEO is satisfied that the application meets these criteria, they must make a written order (a TCO) as per section 269P(3).
The Act imposes several obligations and requirements on the parties and entities it governs. Firstly, the CEO must publish a notice in the Gazette as soon as practicable after accepting a TCO application as a valid application. This notice must include an invitation for any person who believes there are reasons why the TCO should not be made to lodge a submission with the CEO. This process ensures transparency and provides an opportunity for interested parties to voice their concerns. Secondly, if a TCO is granted, the CEO must ensure that the rights of importers are beneficially affected, and they can apply for a refund of duty on goods imported since the TCO came into force. The TCO must also not disadvantage any person or impose liabilities on a person in respect of anything done or omitted to be done before the date of registration.
The Act includes specific provisions regarding offences, penalties, and consequences for breach. While the Act does not explicitly state maximum penalties for breaches related to TCOs, it is reasonable to infer that breaches could potentially result in civil or criminal penalties under other relevant sections of the Act. For example, under section 234 of the Act, a person who commits an offence against the Act can be liable to a fine of up to 10,000 penalty units or imprisonment for up to five years, or both, depending on the severity of the offence. Additionally, section 247 of the Act provides for the imposition of pecuniary penalties for breaches of the Act, which can be up to 10,000 penalty units for individuals and 50,000 penalty units for bodies corporate. These penalties serve as a deterrent against non-compliance and ensure that the provisions of the Act are enforced effectively.