EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1133088
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 garlic press household tools on 28 September 2011.
Instrument
TCO No 1133088 was made on 04 January 2012. It declares that those certain garlic press household tools 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. 1133088 is taken to have come into force on 28 September 2011.
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. 1133088, enacted under the Customs Act 1901, addresses the issue of applying tariff concessions on certain imported goods. This instrument was introduced to facilitate the reduction of customs duty on specific goods that are not produced domestically or are not substitutable with goods produced in Australia. The policy objective is to support Australian importers by reducing the cost of importing certain goods, thereby potentially lowering consumer prices and improving market competitiveness. The instrument was issued following an application by McPherson's Consumer Products for tariff concessions on certain garlic press household tools, where it was determined that no suitable Australian-produced alternatives existed. The instrument was officially registered on 4 January 2012 and is effective from 28 September 2011, the date the application was lodged. The instrument does not affect the rights of any person adversely and allows for the potential refund of duties paid on the eligible goods since the effective date.
Scope and Application
The Tariff Concession Instrument No. 1133088, made under the Customs Act 1901, applies to goods specified in the instrument, namely certain garlic press household tools. This legislation pertains to entities or individuals who import these goods into Australia and aims to reduce the customs duty on them by declaring that these tools are subject to a lower rate of duty, which in this case is free, rather than the general rate of 5%. The Act's reach is national, applying throughout Australia as it falls under Commonwealth legislation. There are no exclusions or exemptions specified within the explanatory statement; however, the Act excludes certain goods that cannot be subject to a Tariff Concession Order, as outlined in section 269SJ. The instrument itself does not extend or restrict application through subordinate instruments, as it directly applies the tariff concession to the specified goods as declared by the Chief Executive Officer of Customs upon meeting the core criteria outlined in section 269C of the Act.
Key Provisions
The main operative sections of the Tariff Concession Instrument No. 1133088 include sections 269F, 269C, 269B, and 269P(3) of the Customs Act 1901. Section 269F allows an application to be made to the Chief Executive Officer (CEO) of Customs for a Tariff Concession Order (TCO) concerning specific goods. If the CEO is satisfied that the application does not pertain to goods prohibited under section 269SJ, they must then determine whether the application meets the core criteria as outlined in section 269C. This section stipulates that an application meets the core criteria if no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Furthermore, section 269B defines terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods." Finally, if the CEO is satisfied that the application meets the core criteria, they must issue a written TCO under section 269P(3), specifying the prescribed item of Schedule 4 to the Customs Tariff Act 1995 that applies to the goods in question.
The Customs Act 1901 imposes certain obligations and requirements on the parties involved. Firstly, any person who wishes to apply for a TCO must do so in accordance with section 269F. The CEO is then required to assess the application under section 269C, ensuring that no substitutable goods were produced in Australia in the ordinary course of business on the date the application was lodged. If the application meets the core criteria, the CEO must make a TCO as specified in section 269P(3). Additionally, the CEO must publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid, inviting any interested parties to submit their views on the application. This is in accordance with subsection 269K(1) of the Act. Any TCO that is made is taken to have come into force on the date the application for the TCO was lodged, as per subsection 269S(1).
Breaching the provisions of the Customs Act 1901, including those related to TCOs, can result in various penalties and consequences. Although the explanatory statement does not specify exact penalties, the Act and associated regulations typically provide for both civil and criminal penalties for breaches. These may include fines, imprisonment, or both, depending on the severity of the breach. The maximum penalties are usually outlined in the relevant sections of the Act or in associated regulations. For instance, under the Customs Act, offences such as making a false statement or providing false information can lead to significant fines and potential imprisonment. It is essential for all parties to comply with the Act to avoid any legal repercussions.