EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512080
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.
Vestas Nacelles Australia Pty Ltd applied for a TCO in respect of certain Wind Turbine Powered Generator Parts on 8 September 2005.
Instrument
TCO No 0512080 was made on 9 January 2006. It declares that those certain Wind Turbine Powered Generator Parts 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 0%.
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. 0512080 is taken to have come into force on 8 September 2005.
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 Commonwealth Parliament, governs the regulation of customs and excise in Australia. This legislation provides the framework under which Tariff Concession Orders (TCOs) can be issued to provide reduced customs duty rates for specific goods. The 2006 Tariff Concession Instrument No. 0512080, made under the authority of the Customs Act, addresses the need for tariff concessions by allowing the Chief Executive Officer of Customs to issue a TCO for certain Wind Turbine Powered Generator Parts, as applied for by Vestas Nacelles Australia Pty Ltd. The policy objective behind this instrument is to facilitate the importation of these specific goods by applying a reduced duty rate, provided no substitutable goods are produced in Australia, thereby encouraging the use of imported components in the Australian market. This instrument ensures that no existing rights or liabilities of any person are adversely affected, while potentially benefiting importers through duty refunds.
Scope and Application
The Tariff Concession Instrument No. 0512080 under the Customs Act 1901 applies to the specific category of Wind Turbine Powered Generator Parts for which Vestas Nacelles Australia Pty Ltd applied, providing a tariff concession to these goods. The Act, which applies on a Commonwealth level, allows for Tariff Concession Orders (TCOs) to be made by the Chief Executive Officer of Customs if certain criteria are met, specifically if no substitutable goods are produced in Australia in the ordinary course of business. The Act applies to any person who meets the specified criteria and seeks to import the designated goods, as evidenced by the application from Vestas Nacelles Australia Pty Ltd. The application and subsequent TCO do not affect any existing rights of persons other than the Commonwealth and do not impose any new liabilities. The TCO is effective from the date the application was lodged, 8 September 2005, and benefits importers by potentially allowing them to apply for a refund of duty paid on these goods since that date. The application of this TCO is limited by the exclusions outlined in section 269SJ of the Act, which specifies goods that cannot be subject to a TCO. The scope of the Act may be further refined or extended through subordinate instruments, which could include regulations or further orders made under the authority of the Customs Act 1901.
Key Provisions
The Tariff Concession Instrument No. 0512080 under the Customs Act 1901 is a specific order that applies to certain Wind Turbine Powered Generator Parts. Section 269F of the Act allows for applications to the Chief Executive Officer (CEO) of Customs for Tariff Concession Orders (TCOs). If the CEO determines that the application meets the core criteria, which include the absence of substitutable goods produced in Australia at the time of application (as outlined in sections 269C and 269D), a TCO can be issued (subsection 269P(3)). This particular TCO, effective from 8 September 2005, stipulates that the Wind Turbine Powered Generator Parts are subject to a 0% duty rate, down from the general rate of 5% (item 50 of Schedule 4 to the Customs Tariff Act 1995).
Under this Act, entities such as Vestas Nacelles Australia Pty Ltd are required to ensure that their applications for TCOs are lodged in accordance with the stipulated criteria. The CEO has the responsibility to evaluate these applications to determine their validity based on the criteria set forth in sections 269C and 269D of the Customs Act 1901. This involves confirming that no equivalent goods are being produced domestically at the time of application. Additionally, the CEO is mandated to publish notices in the Gazette, inviting submissions from interested parties regarding the proposed TCO. This transparency measure is intended to ensure that all relevant concerns are considered before a decision is made.
Failure to comply with the provisions of the Customs Act 1901 and the associated regulations can result in various legal consequences. If an entity knowingly provides false or misleading information in an application for a TCO, they may face criminal charges, which could include fines or imprisonment, as stipulated under the general provisions of the Act. The exact penalties depend on the severity of the offence and are subject to the Commonwealth's legal framework. Civil penalties may also apply for non-compliance, which could involve substantial fines and legal action to rectify the breach.