EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 9/2009
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 and revoked 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 sections 269C and 269P of the Act, a TCO will be made if the application for the TCO meets the core criteria, that is, on the day on which the application was lodged, no substitutable goods were produced in Australia in the ordinary course of business.
Subsection 269SD(2) of the Act provides that if the CEO is satisfied that:
− because of an amendment of the Customs Tariff Act 1995; or
− having regard to a decision of a court of the Administrative Appeals Tribunal; or
− having regard to written advice on the matter given by an officer of Customs;
the tariff classification that is stated in a TCO to apply to the goods the subject of the TCO has not, with effect from a particular day, applied to those goods, the CEO must:
− make an order revoking the TCO with effect from that day; and
− make a new TCO in respect of the goods with effect from the revocation.
Instrument
Tariff Concessions Revocation Instrument No 9/2009 was made on 28 August 2008. It revokes TCO 0720625. The tariff classification 8502.39.90 has a free rate of duty.
Consultation
No consultation was undertaken since the change is minor or machinery nature and does not substantially alter existing arrangements.
Commencement
Subsection 269SD(2) provides that the order revoking the TCO has effect from the day on which the tariff classification did not apply to the goods. Further the new TCO has effect from the revocation. Subsection 269SD(4) provides that the day may be the day on which the old TCO came into force or a later day.
Subsection 269SD(6) provides that section 269SD has effect despite section 12 of the Legislative Instruments Act 2003. Section 12 prohibits the making of certain retrospective legislative instruments.
Tariff Concessions Revocation Instrument No.9/2009 revokes 0720625 on 28 August 2008,
with the Revocation date of effect as from 18 April 2008
Overview
The Customs Act 1901, enacted by the Parliament of Australia, establishes a framework for the imposition of tariffs and customs duties on imported goods. Part XVA of the Act introduces a scheme whereby Tariff Concession Orders (TCOs) can be created and revoked by the Chief Executive Officer of Customs. The Tariff Concessions Revocation Instrument 9/2009 was introduced to address a gap in the application of tariff classifications for goods subject to a TCO. Specifically, it revokes TCO 0720625 due to a change in tariff classification that renders the original concession inapplicable. This change was enacted to ensure that the customs duty applied to such goods aligns with current tariff regulations, thereby maintaining the integrity and effectiveness of the customs duty system. The instrument was made on 28 August 2008, and the revocation took effect from 18 April 2008, in accordance with the provisions of the Customs Act 1901.
Scope and Application
The Customs Act 1901 applies to a wide range of entities including individuals, businesses, and importers who are involved in the importation of goods into Australia. Specifically, the Tariff Concessions Revocation Instrument 9/2009 pertains to goods that are the subject of Tariff Concession Orders (TCOs), which are intended to provide lower rates of customs duty. This instrument revokes TCO 0720625 as from 18 April 2008, aligning with changes in tariff classifications as stipulated in the Customs Tariff Act 1995. The revocation and the subsequent new TCO have effect from the day the tariff classification ceased to apply to the goods. The instrument's application is national, governed under the Commonwealth of Australia, with no consultation needed due to its minor and machinery nature. The revocation order is made under the authority of the Chief Executive Officer of Customs, who must ensure that the tariff classification stated in a TCO remains applicable to the goods.
Key Provisions
The Tariff Concessions Revocation Instrument 9/2009 (the Instrument) revokes Tariff Concession Order (TCO) 0720625, as per sections 269C, 269P and 269SD of the Customs Act 1901 (the Act). The Instrument was made on 28 August 2008 and it revokes TCO 0720625 with effect from 18 April 2008. This revocation is due to changes in the tariff classification of the goods subject to the TCO, which no longer qualify for the lower rate of customs duty that was previously applied. The revocation order and the new TCO have effect from the date the tariff classification ceased to apply to the goods. Notably, the Instrument operates independently of section 12 of the Legislative Instruments Act 2003, which generally prohibits the creation of retrospective legislative instruments.
The Customs Act 1901 imposes obligations on the Chief Executive Officer of Customs (the CEO) to make or revoke TCOs based on specific criteria. Under section 269C, a TCO can be made if the application meets the core criteria, such as the absence of substitutable goods produced in Australia at the time of application. Conversely, section 269SD requires the CEO to revoke a TCO if the tariff classification stated in the TCO no longer applies to the goods due to amendments in the Customs Tariff Act 1995, court decisions, or written advice from a Customs officer. The CEO must then issue a new TCO reflecting the current tariff classification.
Failure to comply with the requirements of the Customs Act 1901 can lead to various legal consequences. For instance, if an entity fails to adhere to the tariff classification as outlined in the TCO or the new TCO, they may be liable for incorrect duty payments or face penalties. Under section 286 of the Customs Act 1901, an entity that knowingly makes a false statement or representation can be subject to a penalty of up to $22,200 for individuals and $111,000 for corporations. Additionally, the Commissioner of Customs may impose financial penalties for breaches related to duty payments or incorrect classifications, with the potential for substantial fines.
The Instrument's revocation of TCO 0720625 has practical implications for importers and exporters who were previously benefiting from the lower duty rate. They must now adjust their import and export practices to account for the higher tariff rate applicable to the goods in question. This change necessitates updated record-keeping and compliance measures to ensure that all customs duties are accurately calculated and paid. Failure to comply with these updated requirements could result in financial penalties or legal action by the Australian Customs Service.