EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 10/2010
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 10/2010 was made on 21 May 2009. It revokes TCO 0804294 and makes TCO 0917087. The tariff classification has been changed from 8428.90.00 to 8479.89.90 because of a tariff classification change.
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. 10/2010 revoked 0804294 and made new TCO 0917087 on 21 May 2009, with the Revocation date of effect as from 16 April 2008
Overview
The Tariff Concessions Revocation Instrument 10/2010 was enacted to address a specific issue within the Customs Act 1901, particularly relating to the revocation of Tariff Concession Orders (TCOs) due to changes in tariff classification. This instrument was made on 21 May 2009 and revoked TCO 0804294, subsequently issuing a new TCO 0917087, effective from 16 April 2008. The Tariff Concession Orders scheme, established under Part XVA of the Customs Act 1901, allows for the application of a lower rate of customs duty to certain goods, provided no substitutable goods are produced in Australia. The revocation and issuance of new TCOs are mandated by the Chief Executive Officer of Customs (CEO) under sections 269C and 269P, contingent upon meeting core criteria and the tariff classification change as stipulated in section 269SD(2). The instrument was developed without consultation, deemed unnecessary due to its minor and machinery nature, and operates to ensure the Customs Act remains aligned with the most current tariff classifications as per the Customs Tariff Act 1995.
Scope and Application
The Tariff Concessions Revocation Instrument 10/2010, operating under the Customs Act 1901, applies to the revocation and reissuance of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This Act pertains to entities or individuals who have applied for, and currently hold, a TCO that may be affected by changes in tariff classifications or court decisions impacting the classification of specific goods. The legislation extends across the Commonwealth of Australia and is enforced by the CEO of Customs. Notably, the instrument revokes TCO 0804294 and replaces it with TCO 0917087, reflecting a change in tariff classification from 8428.90.00 to 8479.89.90, necessitated by updates in the Customs Tariff Act 1995. The revocation and new order take effect from the date the previous tariff classification ceased to apply to the goods, as stipulated in the Customs Act, and the process circumvents the prohibition on retrospective legislative instruments set out in the Legislative Instruments Act 2003.
Key Provisions
The Tariff Concessions Revocation Instrument 10/2010, under the Customs Act 1901, primarily focuses on the revocation and replacement of existing Tariff Concession Orders (TCOs) due to changes in tariff classifications. Specifically, section 269SD(2) mandates the revocation of TCO 0804294 and the creation of TCO 0917087, as the tariff classification for the goods in question has been altered. This change is a result of amendments to the Customs Tariff Act 1995, making it necessary to adjust the duty rates applicable to these goods. The new instrument was made on 21 May 2009, with the revocation taking effect from 16 April 2008, and the new TCO being effective from the date of the revocation.
The Act imposes several obligations on the parties and entities governed by it. Firstly, section 269C and 269P require that an application for a TCO be made only if, on the date of application, no substitutable goods are being produced in Australia. This ensures that the concession is granted only to goods that are not domestically produced. Secondly, section 269SD(2) obligates the Chief Executive Officer of Customs (CEO) to revoke a TCO if certain conditions are met, such as changes in tariff classifications or court decisions affecting the classification. This ensures the tariff classifications remain accurate and reflective of current policy and legal interpretations.
Failure to comply with the provisions of the Customs Act 1901 can lead to significant consequences. Section 269SD(6) ensures that the revocation and new TCO creation take effect despite restrictions under the Legislative Instruments Act 2003, which generally prohibits retrospective legislative instruments. This means that while the act does have retrospective effect, it is carefully managed to comply with legislative constraints. Furthermore, non-compliance with tariff concessions or failure to adhere to the conditions set by the CEO can result in financial penalties and legal ramifications. The specific penalties for breaches of customs regulations are not detailed in the explanatory statement but typically include fines and potential criminal charges depending on the severity and intent of the breach.
The instrument's creation and its impact are grounded in the necessity to maintain accurate and up-to-date tariff classifications, ensuring that the duty rates are correctly applied as per the current legal and economic context. The lack of consultation mentioned in the explanatory statement indicates that the changes are considered minor and do not substantially alter existing arrangements, thereby streamlining the process without extensive procedural delays.