Overview

The Customs Act 1901, enacted by the Australian Parliament, establishes a framework for the imposition of customs duties on goods imported into Australia. It was introduced to address the need for a structured and consistent method of regulating the importation of goods and collecting the necessary duties. Part XVA of the Act specifically outlines the process for the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. These orders provide for a reduced rate of customs duty on certain goods. The Tariff Concession Instrument No. 1120789 was introduced to provide tariff concessions for specific kitchenware products imported by McPherson's Consumer Products, effective from 24 June 2011. The policy objective was to facilitate easier importation of these goods by reducing the customs duty from the general rate of 5% to a rate of free, provided no substitutable goods were produced in Australia.

Scope and Application

The Tariff Concession Instrument No. 1120789 under the Customs Act 1901 applies to entities or individuals seeking tariff concessions on specific goods imported into Australia. The Act provides a framework whereby the Chief Executive Officer of Customs can grant Tariff Concession Orders (TCOs) to reduce customs duty on particular goods. The scope of the Act includes any person or entity that applies for a TCO in relation to goods not specified in section 269SJ of the Act, which details goods that cannot be subject to a TCO. The Act applies to the entire Commonwealth of Australia and is part of the national regulatory scheme for customs and excise. The application of a TCO is contingent upon the CEO being satisfied that no substitutable goods were produced in Australia at the time of application, as outlined in sections 269C and 269D of the Act. The TCO does not affect any existing rights or liabilities accrued before its effective date and does not impose any new liabilities on persons other than the Commonwealth. Any exclusions or exemptions are detailed in the Act and related regulations, and the scope of the Act can be further defined or extended through subordinate instruments issued under the authority of the Customs Act 1901.

Key Provisions

The main operative sections of this legislation (F2011L02597) are sections 269C, 269B, 269D, 269E, 269F, 269P, 269K, 269S, 269SJ, and 269T of the Customs Act 1901, as well as item 50 of Schedule 4 to the Customs Tariff Act 1995. Section 269F allows a person to apply to the Chief Executive Officer of Customs (CEO) for a Tariff Concession Order (TCO) in respect of goods. If the CEO is satisfied that the application meets the core criteria outlined in sections 269C and 269SJ, the CEO must make a written order (a TCO) declaring that the goods are subject to a lower rate of customs duty. The definitions of key terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods" are provided in sections 269B, 269D, and 269E. Section 269P(3) requires the CEO to make a TCO if satisfied that the application meets the core criteria. Section 269K(1) mandates the CEO to publish a notice in the Gazette inviting submissions on the TCO application. Lastly, subsection 269S(1) states that a TCO comes into force on the day the application was lodged. The Act imposes several obligations on the parties and entities it governs. Firstly, McPherson's Consumer Products, the applicant, must ensure their application for a TCO is valid and meets the core criteria as outlined in the Act. Secondly, the CEO is responsible for determining whether the application meets the criteria and, if so, making a written TCO. Thirdly, the CEO must publish a notice in the Gazette inviting submissions on the TCO application and consider any submissions received. In this instance, the CEO did not receive any submissions. The Act also requires the CEO to ensure that the TCO does not affect the rights of any person as at the date of registration to disadvantage that person or impose liabilities on a person in respect of anything done or omitted to be done before the date of registration. The Act provides for both civil and criminal consequences for breaches. Under section 269T of the Customs Act 1901, any person who contravenes a TCO may be liable to a penalty not exceeding 10 penalty units for each offence. Additionally, under section 126(1)(r) of the Customs Regulations 1993, importers may apply for a refund of duty on goods imported since the day on which the TCO is taken to have come into force. However, the TCO does not impose any liabilities on any person. It is important to note that the maximum penalty for a contravention of a TCO is 10 penalty units per offence.