EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 159/2007
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.
Section 269SB of the Act provides, in part, that a person claiming to be a producer in Australia of substitutable goods in relation to the goods covered by a TCO may request the CEO to revoke the TCO.
Under subsection 269SC(1) of the Act, the CEO must decide whether of not her or she is satisfied:
− that, on the day of lodgement of the request, the person requesting the revocation of the TCO is a producer in Australia of goods that are substitutable goods in relation to the goods the subject of the TCO;
− that, if the TCO were not in force on that day but that day were the day on which the application for that TCO was lodged, the CEO would not have made the TCO.
If the CEO is satisfied of those matters but is also satisfied that a narrower TCO could have been made on the day the request to revoke was lodged, the TCO must revoke the TCO and make, in its place, such a narrower TCO (subsection 269SC(4) refers).
Diamond Power (Australia) Pty Ltd requested that the CEO revoke TCO 0706455 which covers power station steam generation boiler parts.
Instrument
Tariff Concessions Instrument No 159/2007 was made on 17 October 2007. It revokes TCO 0706455 and remakes a narrower TCO 0717437 covering power station steam generation boiler parts as the CEO is satisfied that he or she would not have made the old TCO but could have made the narrower TCO.
Consultation
Subsection 269SC(1A) of the Act provides that as soon as practicable after receiving a request for revocation of a TCO, the CEO must publish in a Gazette a notice which includes a statement that a request has been lodged and the full particulars of the TCO to which the request relates.
Commencement
Subsection 269SC(6) provides that an order revoking a TCO comes into force on the day on which the request to revoke the TCO was lodged.
Subsection 269SC(7) provides that if a narrower TCO is made in place of another TCO, that narrower TCO comes into force from the date of effect of the revocation of the other TCO.
Subsection 239SD(8) provides that subsections 269SC(6) and 269SC(7) have effect despite section 12 of the Legislative Instruments Act 2003. Section 12 prohibits the making of certain retrospective legislative instruments.
Tariff Concession Instrument No.159/2007 revoked 0706455 and made the narrower TCO No. 0717437 on 17 October 2007 with the Revocation date of effect as from 14 August 2007.
Overview
The Customs Act 1901, enacted by the Commonwealth Parliament, provides a framework for managing customs duties, including the establishment and revocation of Tariff Concession Orders (TCOs). The Tariff Concessions Revocation Instrument 159/2007 was introduced to address the problem of revocation requests for certain TCOs, specifically TCO 0706455, which covered power station steam generation boiler parts. The Act allows for the revocation of a TCO if a producer of substitutable goods in Australia requests it, provided the Chief Executive Officer of Customs is satisfied that the TCO should not have been made and that a narrower TCO could be implemented instead. This instrument revokes TCO 0706455 and replaces it with a narrower TCO 0717437, effective from the date of the revocation request. The policy objective is to ensure that tariff concessions are granted only when appropriate, reflecting current production capabilities in Australia and maintaining fair competition in the market.
Scope and Application
The Tariff Concessions Revocation Instrument 159/2007 operates under the Customs Act 1901, specifically addressing the revocation and replacement of Tariff Concession Orders (TCOs). It applies to the Chief Executive Officer of Customs (CEO) and any entity or individual impacted by the tariff concessions, particularly those involved in the production or importation of goods subject to the TCO. The Instrument is designed to ensure that tariff concessions are granted only when there are no substitutable goods produced in Australia, as per the core criteria set out in the Customs Act. The geographic reach of this legislation is national, affecting all parties involved in the importation of goods covered by the TCOs within Australia. The Instrument revokes TCO 0706455 and replaces it with a narrower TCO 0717437 for power station steam generation boiler parts, effective from the date of the request to revoke the initial TCO, 14 August 2007. The CEO is mandated to consult by publishing a notice in the Gazette once a request for revocation is received. The Instrument allows for the revocation and replacement of TCOs to be made under specific circumstances, ensuring that tariff concessions are applied appropriately based on current production capabilities in Australia.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument 159/2007 are sections 269C, 269P, 269SB, and 269SC of the Customs Act 1901. Section 269C allows for the creation of Tariff Concession Orders (TCOs) under certain conditions, while section 269P details the process for revocation of such orders. Section 269SB empowers a producer of substitutable goods in Australia to request the revocation of a TCO. Section 269SC outlines the criteria the Chief Executive Officer (CEO) of Customs must consider when deciding whether to revoke a TCO, including whether the requester is a producer of substitutable goods and whether the TCO would have been made if it were not already in force.
The Act imposes several obligations on the parties involved. The CEO of Customs is required to publish a notice in the Gazette once a request for revocation of a TCO is received, detailing the request and the particulars of the TCO in question (subsection 269SC(1A)). The CEO must also assess whether the requester is a producer of substitutable goods and whether they would have made the TCO on the day the request was lodged if it were not already in force (subsection 269SC(1)). If the CEO determines that a narrower TCO could have been made, they must revoke the existing TCO and issue a new, narrower one (subsection 269SC(4)).
There are no explicit offences, penalties, or civil/criminal consequences outlined for breaches of the Tariff Concessions Revocation Instrument 159/2007 within the provided text. However, the revocation and replacement of TCOs are governed by strict procedural requirements. Failure to adhere to these requirements could potentially result in the invalidation of the TCO revocation or the new TCO, depending on the context and any applicable legal principles. Given that the Act does not specify penalties for breaches in this context, any consequences would likely be determined by the courts on a case-by-case basis.