EXPLANATORY STATEMENT
Tariff Concession Instrument No. 0916497
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.
Swan Energy Pty Ltd applied for a TCO in respect of certain wind powered generators on 14 May 2009.
Instrument
TCO No 0916497 was made on 31 July 2009. It declares that those certain wind powered generators 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 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 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. 0916497 is taken to have come into force on 14 May 2009.
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. 0916497 was enacted in 2009 under the Customs Act 1901 to address a specific need for tariff concessions for certain wind powered generators, which were not being produced in Australia at the time of the application. The instrument was introduced to facilitate the import of these generators by Swan Energy Pty Ltd, thereby reducing the customs duty from 5% to free, promoting the adoption of renewable energy technologies in Australia. The instrument was developed following an application made under section 269F of the Customs Act 1901, and the decision to grant the concession was made by the Chief Executive Officer of Customs, who found that the application met the core criteria as outlined in section 269C of the Act. The instrument was published in the Gazette, inviting public submissions, though none were received. The policy objective is to support the development of industries that are not established in Australia, encouraging the importation of goods that are crucial for technological advancement and economic growth.
Scope and Application
The Tariff Concession Instrument No. 0916497 applies to the importation of certain wind powered generators, specifically those that are subject to the Customs Act 1901, as administered by the Chief Executive Officer of Customs. This legislation targets importers and entities involved in the importation of these goods, aiming to reduce customs duty on qualifying products. The Act operates under the Commonwealth jurisdiction, as it is a federal instrument made under the authority of the Customs Act 1901. The instrument does not apply to goods specified in section 269SJ of the Act, which cannot be subject to a Tariff Concession Order (TCO). The application process involves ensuring that no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged, as per sections 269C and 269D of the Act. The TCO came into effect on 14 May 2009, the date on which the application was lodged, and does not affect any pre-existing rights or liabilities of persons other than the Commonwealth.
Key Provisions
The main operative sections of this legislation, specifically the Tariff Concession Instrument No. 0916497, revolve around section 269F (1) and 269C of the Customs Act 1901. Section 269F (1) allows for the application for a Tariff Concession Order (TCO) by any person, while section 269C outlines the core criteria that must be met for the Chief Executive Officer of Customs (CEO) to grant such an order. According to section 269C, the application for a TCO will be considered valid if, on the day the application was lodged, no substitutable goods were being produced in Australia in the ordinary course of business. If the CEO is satisfied with the application, they must issue a written TCO, as stipulated in section 269P(3).
The Act imposes several obligations on the parties involved. The CEO has a duty to assess whether the application for a TCO meets the core criteria as outlined in section 269C. This includes determining whether no substitutable goods were produced in Australia in the ordinary course of business on the day the application was lodged. Furthermore, under section 269K(1), the CEO must publish a notice in the Gazette inviting any interested party to submit their views on the proposed TCO. Once a TCO is issued, importers of the affected goods can apply for a refund of duty paid on those goods since the date the TCO is taken to have come into force, as per paragraph 126(1)(r) of the Regulations.
Breaches of the provisions outlined in the Customs Act 1901 may result in civil and/or criminal penalties, although specific offences and penalties are not detailed in this particular explanatory statement. Generally, under the Customs Act 1901, penalties for non-compliance can range from fines to imprisonment, depending on the severity and intent behind the breach. The maximum penalties are determined by the specific provisions of the Act that have been contravened, and these penalties can be enforced through civil or criminal proceedings as appropriate.