Overview

The Tariff Concession Instrument No. 0713122 was enacted in 2007 under the Customs Act 1901 to address the issue of providing tariff concessions for certain imported goods, specifically wind tunnels, which were not being produced in Australia. This instrument was created in response to an application from Ford Motor Co Of Australia Ltd, who sought a tariff concession order (TCO) for these particular wind tunnels. The Act enables the Chief Executive Officer of Customs to make such orders, provided the goods are not specified in the exclusion list under section 269SJ, and no substitutable goods are produced in Australia as per section 269C. The core criteria for approving a TCO application are outlined in section 269C, which includes the definition of 'substitutable goods' as per section 269D and 'ordinary course of business' as per section 269E. The instrument, TCO No. 0713122, was issued on 2 November 2007, declaring that the specific wind tunnels in question were subject to a 5% duty rate, but with the concession, the rate became free. This was made possible after satisfying the core criteria that no substitutable goods were being produced in Australia. The instrument’s commencement date is 17 August 2007, the day the application was lodged. The legislation ensures that no rights or liabilities of any person, other than the Commonwealth, are affected adversely by the TCO, and it provides for potential duty refunds for importers of the specified goods from the commencement date of the TCO.

Scope and Application

The Tariff Concession Instrument No. 0713122, which is grounded in the Customs Act 1901, applies to the Chief Executive Officer of Customs (CEO) and any entity or individual seeking a Tariff Concession Order (TCO) for specific goods. This instrument facilitates the application of a lower rate of customs duty on goods that meet the specified criteria, particularly when these goods are not substitutable by any goods produced in Australia in the ordinary course of business. The instrument extends its reach across the Commonwealth of Australia, impacting all relevant importers and exporters who engage with these particular goods. Notably, the legislation excludes certain goods from being subject to a TCO, as outlined in section 269SJ of the Act. The application of the Act may also be influenced by subordinate instruments, which can further define or refine the scope of its application. The commencement of this particular TCO is dated from the day the application was lodged, ensuring that the rights of importers are positively affected from that date, potentially entitling them to a refund of duties paid on goods imported since the effective date of the TCO.

Key Provisions

The primary operative sections of the Customs Act 1901, specifically under Part XVA, pertain to Tariff Concession Orders (TCOs) and their application process. Section 269F enables individuals or entities to apply to the Chief Executive Officer of Customs (CEO) for a TCO concerning particular goods, provided these goods do not fall under the category specified in section 269SJ. If the application is deemed valid by the CEO, it must then meet the core criteria outlined in section 269C, which requires that on the date of application, no substitutable goods were produced in Australia in the ordinary course of business. The definitions of key terms such as "goods produced in Australia," "ordinary course of business," and "substitutable goods" are detailed in sections 269D, 269E, and 269F respectively. The Act imposes specific obligations on the CEO and applicants for TCOs. Once a TCO application is accepted as valid, the CEO must publish a notice in the Gazette, inviting any interested party to submit reasons why the TCO should not be granted (subsection 269K(1)). This ensures transparency and provides an opportunity for public input. In the case of Ford Motor Co Of Australia Ltd’s application for a TCO concerning certain wind tunnels, the CEO verified that no substitutable goods were produced in Australia, meeting the core criteria. Consequently, the CEO issued TCO No. 0713122, declaring that the wind tunnels are subject to item 50 of Schedule 4 to the Tariff, resulting in a duty rate of free, instead of the general rate of 5%. Regarding breaches of the provisions outlined in the Act, the Explanatory Statement does not detail specific offences or penalties associated with non-compliance with TCOs. However, general provisions of the Customs Act 1901 would apply, which could include both civil and criminal penalties for offences related to the importation of goods or the provision of false or misleading information in an application. The severity of penalties would depend on the nature and extent of the breach, and could range from fines to imprisonment, as outlined in other relevant sections of the Customs Act 1901. The Act ensures that the rights of importers are positively affected and that no liabilities are imposed on any person, except the Commonwealth, concerning actions taken prior to the date of TCO registration.