EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512082
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.
I McR Tinsley & Partners Pty Ltd applied for a TCO in respect of certain Wind Turbine powered generator parts on 8 September 2005.
Instrument
TCO No 0512082 was made on 25 November 2005. 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 10%. 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 269SA(2) (b) relevantly provides that a TCO is to be taken to have come into force on the day on which the local manufacturer ceased production of substitutable goods. Accordingly, TCO No. 0512082 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 Tariff Concession Instrument No. 0512082 was enacted in 2005 under the Customs Act 1901. This instrument addresses the need to provide tariff concessions for specific goods, in this case certain Wind Turbine powered generator parts, by allowing for a lower rate of customs duty when no substitutable goods are produced in Australia. The Customs Act 1901 provides a framework for the Chief Executive Officer of Customs to make Tariff Concession Orders (TCOs) that reduce the duty on certain imported goods if they meet specific criteria. In this instance, McR Tinsley & Partners Pty Ltd applied for a TCO for the aforementioned parts, which was granted as no substitutable goods were being produced in Australia. The Instrument was published in the Gazette, with no objections received, and came into force on 8 September 2005. The policy objective is to encourage the importation of goods that are not being produced domestically, thereby benefiting importers by potentially reducing their duty liabilities.
Scope and Application
The Tariff Concession Instrument No. 0512082 applies to the customs duty rates on certain Wind Turbine powered generator parts. It is enacted under Part XVA of the Customs Act 1901, which allows for the creation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs (CEO). These orders can lower the rate of customs duty on specified goods if certain criteria are met, such as the absence of substitutable goods being produced in Australia at the time of the application. The Act applies to entities and individuals who are directly involved in the importation of these goods, thereby potentially benefiting from reduced duty rates. Geographically, the application of this Act is within the Commonwealth of Australia, with its provisions extending to all states and territories under the national scope of the Customs Act 1901. There are specific exclusions as per section 269SJ of the Act, which details goods that cannot be subject to a TCO. The instrument itself does not explicitly mention any exclusions, exemptions, or thresholds, but relies on the broader criteria and definitions provided by the Customs Act 1901 and the Customs Tariff Act 1995. The Act may also extend its application through subordinate instruments, although the specifics are not detailed in the explanatory statement.
Key Provisions
The Tariff Concession Instrument No. 0512082, made under the Customs Act 1901, establishes a tariff concession order (TCO) for certain Wind Turbine powered generator parts. According to section 269P(3) of the Act, if the Chief Executive Officer of Customs (CEO) is satisfied that the application meets the core criteria, they must make a written order declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies. In this case, the CEO determined that no substitutable goods were produced in Australia, thus meeting the criteria for a TCO (section 269C). The TCO No. 0512082, issued on 25 November 2005, specifies that the certain Wind Turbine powered generator parts are subject to item 50 of Schedule 4 of the Tariff, with the general rate of duty on these goods being 10%, but the rate for the goods subject to the TCO is free (section 269P(3)).
The Act imposes certain obligations on parties or entities it governs. Under section 269K(1) of the Act, the CEO is required to publish a notice in the Gazette as soon as practicable after accepting a TCO application as valid. This notice must include an invitation for any person who believes there are reasons why the TCO should not be made to lodge a submission with the CEO. In the case of TCO No. 0512082, no submissions were received in response to this invitation. Furthermore, under section 269SA(2)(b) of the Act, the TCO is taken to have come into force on the day on which the local manufacturer ceased production of substitutable goods, which in this instance is 8 September 2005.
Breaching the requirements of the Customs Act 1901 may result in various civil or criminal consequences. However, the explanatory statement for TCO No. 0512082 does not specify any particular offences, penalties, or consequences for non-compliance with the Act. It is essential to note that the TCO does not affect the rights of any 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. 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.