EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0512083
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 9 September 2005.
Instrument
TCO No 0512083 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. 0512083 is taken to have come into force on 9 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. 0512083, enacted under the Customs Act 1901, aims to facilitate the importation of certain Wind Turbine powered generator parts by providing a tariff concession, effectively reducing the customs duty from 10% to free. This instrument was introduced to address the gap where Australian manufacturers were not producing these specific parts, thereby ensuring that Australian businesses could benefit from competitive pricing without the burden of high import duties. Enacted by the Chief Executive Officer of Customs, the policy objective is to support the local industry by promoting the importation of goods that are not domestically produced, thereby encouraging economic growth and competitiveness in the sector.
The instrument was introduced following an application by McR Tinsley & Partners Pty Ltd, which sought the tariff concession on 9 September 2005. After assessing the application and finding no substitutable goods produced in Australia, the CEO issued Tariff Concession Order No. 0512083 on 25 November 2005. The order became effective on the date the application was lodged, aligning with the provisions of the Customs Act. No submissions were received opposing the order, and the rights of importers were protected, with potential for duty refunds on imports since the order's effective date.
Scope and Application
The Tariff Concession Order No. 0512083 under the Customs Act 1901 applies to Wind Turbine powered generator parts, specifically those applied for by McR Tinsley & Partners Pty Ltd. This legislation allows for a lower rate of customs duty on specified goods if certain conditions are met, thereby facilitating the importation of these parts without the usual customs duty burden. The Act applies to any person or entity that imports these goods into Australia, providing them with tariff concessions if no substitutable goods are produced in Australia. The geographic and jurisdictional reach of this legislation is national, as it is governed by Commonwealth law and applies across all states and territories in Australia. The application of the Tariff Concession Order is contingent on the core criteria being satisfied, which includes ensuring that no substitutable goods are produced domestically. This order does not impose any liabilities on individuals or entities, and it does not affect the rights of any person other than the Commonwealth in relation to actions taken prior to the order’s registration.
Key Provisions
The key operative sections of this legislation detail the process and criteria for the creation of Tariff Concession Orders (TCOs) under the Customs Act 1901 (the Act). Section 269F allows for an application to the Chief Executive Officer of Customs (the CEO) for a TCO in respect of goods. If the application is not in respect of goods specified in section 269SJ, which outlines goods ineligible for a TCO, the CEO must assess if the application meets the core criteria (section 269C). A TCO application meets these criteria if, on the day it was lodged, no substitutable goods were produced in Australia in the ordinary course of business (section 269P(3)). The CEO must then make a written order declaring the goods to which a prescribed item of Schedule 4 to the Customs Tariff Act 1995 applies.
The Act imposes several obligations and requirements on parties involved in the process. The CEO must publish a notice in the Gazette inviting submissions if any person believes there are reasons why the TCO should not be made (subsection 269K(1)). In this instance, no submissions were received, allowing the process to proceed. The TCO is effective from the date the local manufacturer ceased production of substitutable goods, as per subsection 269SA(2)(b). Importantly, the TCO does not disadvantage any person (other than the Commonwealth) or impose liabilities on any person in respect of actions taken before the date of registration. Importers of the affected goods can apply for a refund of duty paid on goods imported since the effective date of the TCO.
There are no explicit offences or penalties mentioned in the text for breaches of the TCO process or related duties. However, it is important to note that any failure to comply with the Act or regulations could potentially lead to civil or criminal consequences, depending on the nature and severity of the breach. The maximum penalties for breaches of the Customs Act 1901 can include fines and imprisonment, as per the relevant sections of the Act and associated regulations.