EXPLANATORY STATEMENT
Tariff Concession Instrument No. 1136057
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.
Robert Bosch Pty Ltd applied for a TCO in respect of certain mitre saw stands on 27 October 2011.
Instrument
TCO No 1136057 was made on 16 January 2012. It declares that those certain mitre saw stands 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. 1136057 is taken to have come into force on 27 October 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. 1136057, enacted under the Customs Act 1901, addresses the need for tariff concessions for specific goods by allowing the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs). This legislative instrument was introduced to provide a mechanism for reducing customs duty rates for certain imported goods where no substitutable Australian-produced goods exist. The primary objective of this measure is to support Australian businesses by providing them with competitively priced imported goods, thereby promoting economic efficiency and consumer benefits. The instrument was developed by the Parliament of Australia and aims to ensure that the application of tariff concessions is transparent and subject to public consultation, as outlined in the Customs Act 1901.
Scope and Application
The Tariff Concession Instrument No. 1136057 under the Customs Act 1901 applies to specific goods for which an application has been made by an entity or individual seeking a tariff concession. This instrument pertains to mitre saw stands, where the application was made by Robert Bosch Pty Ltd. The Act applies to these goods to provide a lower rate of customs duty, specifically bringing it to zero, provided that no substitutable goods are produced in Australia in the ordinary course of business. The geographic reach of this Act is national, applying across all states and territories within Australia, and the application of the tariff concession is effective from the date the application was lodged, 27 October 2011. The Act includes provisions for the Chief Executive Officer of Customs to make written orders for tariff concessions if certain criteria are met, and the process involves publishing a notice in the Gazette to invite submissions from interested parties. The instrument does not impose any liabilities on any person, including the Commonwealth, and it does not affect the rights of a person in a manner that would disadvantage them or impose liabilities for actions taken prior to the instrument's registration.
Key Provisions
The Customs Act 1901 (the Act) provides a framework for the application and approval of Tariff Concession Orders (TCOs), which can reduce or eliminate customs duty on certain imported goods. Section 269F (1) of the Act allows any person to apply to the Chief Executive Officer (CEO) of Customs for a TCO for goods. The CEO must then determine whether the application meets the core criteria as outlined in sections 269C and 269SJ of the Act. Section 269C specifies that an application meets the core criteria if no substitutable goods were produced in Australia on the day the application was lodged. If the CEO is satisfied that these conditions are met, they must make a written order (a TCO) declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies (section 269P(3)).
The obligations imposed by the Act on parties and entities are primarily focused on the application process and the conditions under which a TCO can be granted. The CEO of Customs has the responsibility to review applications under section 269F and ensure they meet the core criteria outlined in section 269C. Additionally, the CEO must publish a notice in the Gazette inviting submissions from interested parties regarding the proposed TCO, as required by section 269K(1). This ensures transparency and allows stakeholders to voice any objections or concerns about the application.
Failure to comply with the provisions of the Customs Act can result in various civil or criminal consequences. While the Act does not explicitly detail specific offences or penalties related to the TCO process, breaches of customs laws generally can lead to significant penalties. Under the Customs Act, offences can attract fines and imprisonment, with the severity of the penalty dependent on the nature and extent of the breach. For example, section 233 of the Act provides for penalties for offences such as fraudulent importations, which can include fines of up to $22,000 or imprisonment for up to five years, or both. These provisions underscore the importance of compliance with the Act's requirements.