EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1133342
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.
BOC Ltd applied for a TCO in respect of certain coolers on 30 September 2011.
Instrument
TCO No 1133342 was made on 04 January 2012. It declares that those certain coolers 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. 1133342 is taken to have come into force on 30 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 Customs Act 1901, enacted by the Australian Parliament, established a framework for managing customs duties, including the ability to issue Tariff Concession Orders (TCOs) through the Chief Executive Officer of Customs. This Act was designed to address the need for a flexible mechanism to provide tariff relief on specific goods that are not produced domestically, thereby encouraging imports and potentially reducing costs for consumers and businesses. The 2012 Tariff Concession Instrument No. 1133342, which came into effect on the date of application, was introduced to provide a tariff concession for certain coolers. This concession was granted as no substitutable goods were being produced in Australia at the time, aligning with the core criteria outlined in the Customs Act. The policy objective was to facilitate the importation of these goods at a lower duty rate, benefiting importers by potentially reducing their customs duty liabilities and encouraging market competition.
Scope and Application
The Tariff Concession Instrument No. 1133342 under the Customs Act 1901 applies to certain coolers, specifically those for which BOC Ltd applied on 30 September 2011. This instrument was made by the Chief Executive Officer of Customs (CEO) on 4 January 2012, declaring these coolers as goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies. This results in a concession, reducing the duty rate from the general 5% to free. The Act applies to the goods specified in the application and affects entities importing these goods, primarily benefiting importers who can apply for refunds of duty paid on these goods since the date the TCO is deemed to have come into effect. The application of this Act is national, as it is a Commonwealth Act, and it does not disadvantage any person by affecting their rights as at the date of registration or imposing liabilities for actions taken prior to the registration. The CEO is required to publish a notice in the Gazette inviting submissions on the application, although in this case, no submissions were received. The TCO does not extend to goods specified in section 269SJ of the Act, which are ineligible for such concessions.
Key Provisions
The Tariff Concession Instrument No. 1133342 under the Customs Act 1901 sets forth the conditions for a Tariff Concession Order (TCO) to be issued by the Chief Executive Officer of Customs (CEO) for certain coolers. Specifically, section 269F of the Act outlines the process whereby an individual or entity can apply for a TCO, provided that the goods in question are not those specified in section 269SJ, which are ineligible for TCOs. If the CEO determines that the application meets the core criteria set out in section 269C, which involves ensuring that no substitutable goods are produced in Australia in the ordinary course of business, a TCO will be issued. This is further defined in section 269P(3) of the Act, which requires the CEO to make a written order if satisfied that the application meets the core criteria. The TCO No. 1133342 was issued on 4 January 2012, declaring that certain coolers are subject to a duty-free rate, which contrasts with the general rate of 5% under item 50 of Schedule 4 to the Customs Tariff Act 1995.
The Act imposes certain obligations on the parties involved. Under section 269K(1), the CEO must publish a notice in the Gazette after accepting a TCO application as valid, inviting any interested parties to submit objections if they believe the TCO should not be made. In the case of TCO No. 1133342, no submissions were received in response to this notice. The Act also stipulates that the TCO is deemed to have come into force on the date the application was lodged, which in this instance was 30 September 2011. This means that the rights of importers will be positively affected, allowing them to apply for a refund of duty on goods imported since the effective date of the TCO, as per paragraph 126(1)(r) of the Regulations.
The Customs Act 1901 does not impose any liabilities on any person other than the Commonwealth regarding actions taken or omitted before the TCO registration date. There are no specific offences, penalties, or civil/criminal consequences mentioned in the provided text for breaches of the TCO provisions. However, any non-compliance with the terms of the TCO or related regulations could potentially lead to administrative actions, such as the withdrawal of tariff concessions or other regulatory responses, though these are not detailed in the provided excerpt.