(a) gives an undertaking, in writing, in terms satisfactory to the Comptroller‑General of Customs, that, if by virtue of a determination under section 273 the items, or proposed items, of a Customs Tariff to which the undertaking given by the transferor in relation to the goods related were to apply to goods entered for home consumption by the transferee in the exercise of the right, the transferee will, in the exercise of that right, enter for home consumption those goods, or the quantity of those goods having that value, under any of those items or proposed items or under any appropriate item, or proposed item, of a Customs Tariff that is not expressed to apply to goods as prescribed by by‑law; and
(b) if so required by a Collector, gives a security for payment of any penalty in connection with the undertaking that the transferee may become liable to pay to the Commonwealth under the Customs Undertakings (Penalties) Act 1981.
(3) An undertaking referred to in subsection (2) that relates to a specified quantity of goods shall include a statement acknowledging that, for the purposes of the application of the Customs Undertakings (Penalties) Act 1981 in relation to the goods to which the undertaking relates, the value of those goods is to be calculated by reference to the value per unit of those goods as set out in the statement, being a value per unit that was set out in the corresponding statement in the undertaking given by the transferor in relation to those goods.
(4) An undertaking referred to in subsection (2) shall include a statement acknowledging that, for the purposes of the application of the Customs Undertakings (Penalties) Act 1981 in relation to the goods to which the undertaking relates, the prescribed percentage of the value of the goods is to be the percentage set out in the statement, being the percentage set out in the corresponding statement in the undertaking given by the transferor in relation to those goods.
269 Revocation or variation of undertaking
A person who has given an undertaking in accordance with section 267 or 268 may, with the approval of the Comptroller‑General of Customs, revoke or vary that undertaking.
269A Recovery of penalties
A penalty payable by a person under the Customs Undertakings (Penalties) Act 1981 or the Customs Securities (Penalties) Act 1981 is a debt due to the Commonwealth, and the Commonwealth may recover the amount of the penalty by action in a court of competent jurisdiction.
Part XVA—Tariff concession orders
Division 1—Preliminary
269B Interpretation
(1) In this Part, unless the contrary intention appears:
capital equipment means goods, which if imported into Australia, would be goods to which Chapters 84, 85, 86, 87, 89 or 90 of Schedule 3 to the Customs Tariff Act 1995 would apply.
Customs Tariff Act 1995 includes that Act as proposed to be altered by a Customs Tariff alteration proposed, or intended to be proposed, in the Parliament.
gazettal day, in relation to a TCO application, means:
(a) unless paragraph (b) applies—the day on which the Comptroller‑General of Customs publishes a notice in respect of the application in the Gazette under subsection 269K(1); or
(b) if, in accordance with section 269N, the Comptroller‑General of Customs publishes a notice in respect of the application in the Gazette under subsection 269K(1) in substitution for an earlier notice—the day on which the Comptroller‑General of Customs publishes that substituted notice.
goods produced in Australia has the meaning given by section 269D.
last day for submission means:
(a) in relation to an original TCO application:
(i) so far as concerns a person invited by the Comptroller‑General of Customs under section 269M to lodge a submission in respect of the TCO application—the day fixed in the notice inviting that submission; and
(ii) so far as concerns any other person—the day occurring 50 days after the gazettal day; and
(b) in relation to an amended TCO application:
(i) so far as concerns a person invited under paragraph 269L(4B)(a) to lodge a further submission in respect of the amended TCO application—the day occurring 14 days after the notification containing that invitation; and
(ii) so far as concerns any other person—the day occurring 14 days after publication of a notice under paragraph 269L(4B)(b) inviting submissions in relation to the amended application.
lodged, in relation to a TCO application, includes taken to be lodged because of the operation of section 269J.
ordinary course of business has the meaning given by section 269E.
prescribed item means an item in Schedule 4 to the Customs Tariff Act 1995 that is expressed to apply to goods that a TCO declares are goods to which the item applies.
repair, in relation to goods, includes renovate.
substitutable goods, in respect of goods the subject of a TCO application or of a TCO, 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 or of the TCO can be put.
TCO means a tariff concession order made under section 269P or 269Q or taken to be made under section 269P or 269Q because of the operation of section 269SC.
TCO application means:
(a) an application for a TCO under section 269F; or
(b) an application for a TCO under section 269F as amended under section 269L; or
(c) a proposal for the issue of a TCO that is to be taken under section 269J to be a TCO application.
(2) Despite the definition of days in section 4, Sundays and public holidays are counted as days for the purpose of computing a period for the purposes of this Part but nothing in this subsection derogates from the operation of section 36 of the Acts Interpretation Act 1901.
(3) In determining whether goods produced in Australia are put, or are capable of being put, to a use corresponding to a use to which goods the subject of a TCO, or of an application for a TCO, can be put, it is irrelevant whether or not the first‑mentioned goods compete with the second‑mentioned goods in any market.
269C Interpretation—core criteria
For the purposes of this Part, a TCO application is taken to meet 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.
269D Interpretation—goods produced in Australia
(1) For the purposes of this Part, goods, other than unmanufactured raw products, are taken to be produced in Australia if the goods are wholly or partly manufactured in Australia.
(2) For the purposes of this Part, goods are to be taken to have been partly manufactured in Australia if at least one substantial process in the manufacture of the goods was carried out in Australia.
(3) Without limiting the meaning of the expression substantial process in the manufacture of the goods, any of the following operations or any combination of those operations does not constitute such a process:
(a) operations to preserve goods during transportation or storage;
(b) operations to improve the packing or labelling or marketable quality of goods;
(c) operations to prepare goods for shipment;
(d) simple assembly operations;
(e) operations to mix goods where the resulting product does not have different properties from those of the goods that have been mixed.
269E Interpretation—the ordinary course of business
(1) For the purposes of this Part, other than section 269Q, goods (other than made‑to‑order capital equipment) that are substitutable goods in relation to goods the subject of a TCO application are taken to be produced in Australia in the ordinary course of business if:
(a) they have been produced in Australia in the 2 years before the application was lodged; or
(b) they have been produced, and are held in stock, in Australia; or
(c) they are produced in Australia on an intermittent basis and have been so produced in the 5 years before the application was lodged;
and a producer in Australia is prepared to accept an order to supply them.
(2) For the purposes of this Part, substitutable goods, in respect of goods the subject of a TCO application, are taken to have been produced in Australia in the ordinary course of business if:
(a) a producer in Australia could produce substitutable goods, in respect of goods the subject of the TCO application, with existing facilities; and
(b) the substitutable goods the producer could produce would be made‑to‑order capital equipment; and
(c) in the 5 years before the application was lodged, the producer has made goods requiring the same labour skills, technology and design expertise as the substitutable goods the producer could produce; and
(d) the producer is prepared to accept an order to supply substitutable goods in respect of goods the subject of the TCO application.
(3) In this section:
made‑to‑order capital equipment means a particular item of capital equipment:
(a) that is made in Australia on a one‑off basis to meet a specific order rather than being the subject of regular or intermittent production; and
(b) that is not produced in quantities indicative of a production run.
Division 2—Making and processing TCO applications
269F Making a TCO application
(1) A person may apply to the Comptroller‑General of Customs for a tariff concession order in respect of goods.
(2) An application must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form.
(3) Without limiting the generality of paragraph (2)(c), a TCO application must contain:
(a) a full description of the goods to which the application relates; and
(b) a statement of the tariff classification that, in the opinion of the applicant, applies to the goods; and
(c) if the applicant is not proposing to make use of the TCO to import the goods to which the application relates into Australia on the applicant’s own behalf—the identity of the importer for whom the applicant is acting; and
(d) particulars of all the inquiries made by the applicant (including inquiries made of prescribed organisations) to assist in establishing that there were reasonable grounds for believing that, on the day on which the application was lodged, there were no producers in Australia of substitutable goods.
(4) A TCO application may be lodged:
(a) by leaving it at a place that has been allocated for lodgement of TCO applications by notice published on the Department’s website; or
(b) by posting it by prepaid post to a postal address specified in the approved form; or
(c) by sending it by fax to a fax number specified in the approved form;
and the application is taken to have been lodged when the application, or a fax of the application, is first received by an officer of Customs.
(5) The day on which an application is taken to have been lodged must be recorded on the application.
269FA The applicant’s obligation
It is the responsibility of an applicant for a TCO to establish, to the satisfaction of the Comptroller‑General of Customs, that, on the basis of:
(a) all information that the applicant has, or can reasonably be expected to have; and
(b) all inquiries that the applicant has made, or can reasonably be expected to make;
there are reasonable grounds for asserting that the application meets the core criteria.
269G Withdrawing a TCO application
(1) A person who has lodged a TCO application under section 269F may withdraw the application at any time before a decision is made under section 269P or 269Q in relation to that application.
(2) A withdrawal of a TCO application:
(a) must be in writing; and
(b) must be lodged with the Comptroller‑General of Customs in the same manner, and is taken to be lodged on the same day, as is specified in relation to a TCO application; and
(c) must have the day of its lodgement recorded.
(3) If a notice informing of the lodgement of a TCO application is published in the Gazette before that application is withdrawn, the Comptroller‑General of Customs must publish in the Gazette, as soon as practicable after the withdrawal is lodged, a notice:
(a) stating that the TCO application has been withdrawn; and
(b) describing the goods to which the TCO application related; and
(c) specifying the Gazette number and date of the previous notice relating to the TCO application; and
(d) specifying the date of withdrawal of the TCO application.
269H Screening the application
(1) Not later than 28 days after a TCO application is lodged, the Comptroller‑General of Customs must:
(a) if he or she is satisfied:
(i) that the application complies with section 269F; and
(ii) that, having regard to the information disclosed in the application and to the particulars of the inquiries made by the applicant, there are reasonable grounds for believing that the applicant has discharged the responsibility referred to in section 269FA; and
(b) if he or she is not aware of any producer in Australia of substitutable goods;
by notice in writing given to the applicant, inform the applicant that the application is accepted as a valid application; and
(c) if he or she is not so satisfied; or
(d) if he or she is aware of such a producer;
by notice in writing given to the applicant, inform the applicant that the application is rejected and of the reasons for the rejection.
(2) If the Comptroller‑General of Customs has not, within that period, accepted or rejected the application, this Part has effect as if the Comptroller‑General of Customs had, immediately before the end of that period, informed the applicant, by notice in writing, that the application is accepted as a valid application.
269HA Comptroller‑General of Customs may reject a TCO application in relation to goods referred to in section 269SJ
(1) If, at any time during the period starting from the receipt of a TCO application and ending with the making of a TCO, the Comptroller‑General of Customs becomes satisfied that the goods to which the application relates are goods in respect of which, under subsection 269SJ(1), the Comptroller‑General of Customs is prevented from making a TCO, the Comptroller‑General of Customs must:
(a) reject the application; and
(b) by notice in writing given to the applicant, inform the applicant that the application is rejected and of the reason for the rejection.
(2) If, at any time after the publication of a notice in the Gazette under subsection 269K(1), the Comptroller‑General of Customs rejects the application to which the notice relates under subsection (1), the Comptroller‑General of Customs must, as soon as practicable after rejecting the application, publish a notice in the Gazette stating that the application has been rejected and giving the reason for the rejection.
269J Applications taken to be lodged in certain circumstances
(1) If the Comptroller‑General of Customs decides that it is desirable to consider making a TCO despite the absence of a TCO application, the Comptroller‑General of Customs may declare, in writing, that he or she has so decided.
(2) A declaration under subsection (1) must include a proposal for the issue of the TCO in respect of the goods referred to in the declaration.
(3) If the Comptroller‑General of Customs makes a declaration under this section, this Part has effect as if:
(a) the proposal contained in the declaration were a TCO application lodged under section 269F on the day on which the declaration is made; and
(b) the application had been accepted under section 269H as a valid application on that day.
269K Processing a valid application
(1) As soon as practicable after accepting a TCO application as a valid application, the Comptroller‑General of Customs must publish a notice in the Gazette:
(a) stating that the application has been lodged; and
(aa) identifying the applicant; and
(ab) if the applicant is not proposing to make use of the TCO to import the goods to which the application relates into Australia on the applicant’s own behalf—identifying the importer for whom the applicant is acting; and
(b) providing a description of the goods to which the application relates including a reference to the Customs tariff classification that, in the opinion of the Comptroller‑General of Customs, applies to the goods; and
(c) inviting any persons who consider that there are reasons why the TCO should not be made to lodge a submission with the Comptroller‑General of Customs not later than 50 days after the gazettal day.
(2) A submission must:
(a) be in writing; and
(b) be in an approved form; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form.
(3) A submission:
(a) must be lodged with the Comptroller‑General of Customs in the same manner, and is taken to be lodged on the same day, as is specified in relation to a TCO application; and
(b) must have the day of its lodgement recorded.
(4) If a person lodges a submission later than 50 days after the gazettal day in respect of a TCO application without being invited by the Comptroller‑General of Customs to do so under section 269M, the Comptroller‑General of Customs must not take the submission into account in determining whether to make a TCO.
269L Amendment of TCO applications
(1) If a person lodges a submission in respect of a TCO application within 50 days after the gazettal day, the Comptroller‑General of Customs must, within 14 days after the end of that 50 day period, give the applicant for the TCO a notice in writing setting out:
(a) the name and address of each person who has lodged a submission within that period; and
(b) a short statement of the grounds on which each submission is based.