EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 135/2007
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 135/2007 was made on 9 August 2007. It revokes TCO 0617406 and makes TCO 0711122. The tariff classification has been changed from 8464.90.90 to 8464.90.00 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. 135/2007 revoked 0617406 and made new TCO 0711122 on 9 August 2007, with the Revocation date of effect as from 1 January 2007
Overview
The Customs Act 1901 was enacted to establish the framework for the collection of customs duties and to provide for the administration and enforcement of related laws. Part XVA of this Act introduces a scheme whereby Tariff Concession Orders (TCOs) can be issued and revoked by the Chief Executive Officer of Customs. The Tariff Concessions Revocation Instrument 135/2007 was introduced to address the need for tariff classification adjustments due to changes in the Customs Tariff Act 1995 or court decisions. This instrument, made under the authority of the Customs Act 1901, revokes TCO 0617406 and establishes TCO 0711122 in its place, reflecting the updated tariff classification necessitated by these changes. The revocation and new order took effect from 1 January 2007, ensuring that the duty rates on the specified goods align with the current tariff classification. This legislative measure was introduced without consultation, as it is considered minor and of a machinery nature, not substantially altering existing arrangements.
Scope and Application
The Customs Act 1901 provides a framework under which Tariff Concession Orders (TCOs) can be made and subsequently revoked by the Chief Executive Officer of Customs. These orders enable a lower rate of customs duty for goods specified in a TCO, provided that certain criteria are met, such as the absence of substitutable goods produced in Australia at the time the application is lodged. The Tariff Concessions Revocation Instrument 135/2007 specifically addresses the revocation of TCO 0617406 and the issuance of a new TCO 0711122, effective from 1 January 2007, due to a change in tariff classification. The instrument was made on 9 August 2007 and came into effect from the date the previous tariff classification ceased to apply, as mandated by the provisions of the Customs Act. The revocation and creation of these orders are governed by specific sections of the Act, ensuring that the TCOs align with current tariff classifications, and the instrument operates within the legislative constraints, including those that prevent retrospective legislative actions.
Key Provisions
The Tariff Concessions Revocation Instrument 135/2007 primarily deals with the revocation of a Tariff Concession Order (TCO) and the establishment of a new TCO (sections 269SD(2) and 269SD(6)). Specifically, it revokes TCO 0617406 and establishes TCO 0711122, which is a direct consequence of a change in tariff classification. This legislative instrument ensures that the new TCO aligns with the updated tariff classification, as necessitated by changes in the Customs Tariff Act 1995 or a decision from the Administrative Appeals Tribunal.
The Act imposes several obligations on the Chief Executive Officer of Customs (CEO) when revoking a TCO and issuing a new one. According to section 269SD(2), the CEO must revoke the existing TCO if they are satisfied that the tariff classification stated in the TCO is no longer applicable to the goods, effective from the day the classification change took effect. The CEO must also ensure that the new TCO accurately reflects the updated tariff classification. This process is mandatory and must be carried out to maintain the integrity of the tariff concession scheme.
Failure to comply with the requirements of the Customs Act 1901 regarding tariff concession orders could lead to significant legal consequences. While the explanatory statement does not explicitly outline the penalties for non-compliance, under Australian law, breaches of legislative instruments can result in both civil and criminal penalties. For instance, under section 269SD, the CEO might face administrative sanctions for failing to revoke or issue TCOs as required. Additionally, if the non-compliance results in financial losses to the government or affects trade practices unfairly, it could lead to more severe penalties including fines or even imprisonment, depending on the severity and intent behind the breach.
The Tariff Concessions Revocation Instrument 135/2007 took effect on 9 August 2007, with the revocation of TCO 0617406 and the creation of TCO 0711122. The effective date of the revocation and the new TCO was set from 1 January 2007, aligning with the day the tariff classification change became applicable. This timing ensures that the legal framework remains current and reflective of the most recent tariff adjustments, thereby maintaining the accuracy and fairness of the duty rates applied to the specified goods.