EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 20/2008
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 subsections 269SC(1) and (3) of the Act, the CEO must make an order revoking the TCO if the CEO 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; and
− 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.
Vinidex Pty Ltd requested that the CEO revoke TCO 0709159 which covers tubes or pipes.
Instrument
Tariff Concessions Revocation Instrument No 20/2008 was made on 15 January 2008. It revokes TCO 0709159 as the CEO is satisfied that Vinidex Pty Ltd is a producer in Australia of substitutable goods and that the CEO would not have made the 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 239SD(8) provides, in part, that subsection 269SC(6) 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Tariff Concessions Revocation Instrument No.20/2008, TCO 0709159, was revoked on 15 January 2008 with the Revocation date of effect as from 20 November 2007.
Overview
The Tariff Concessions Revocation Instrument No 20/2008, enacted on 15 January 2008, addresses a specific issue within the Customs Act 1901 concerning the revocation of Tariff Concession Orders (TCOs). The Customs Act 1901 establishes a framework whereby TCOs can be created and subsequently revoked by the Chief Executive Officer of Customs. These orders apply reduced rates of customs duty to certain goods. The problem the instrument addresses is the revocation of TCOs when new information emerges indicating that Australian producers can now manufacture substitutable goods, thereby negating the original rationale for the concession. This revocation mechanism aims to ensure that tariff concessions are only applied when genuinely necessary, thus maintaining fairness and competitiveness within the Australian market. The enacting body responsible for this instrument is the Chief Executive Officer of Customs, acting under the authority granted by sections 269C, 269P, 269SB, 269SC, and 269SD of the Customs Act 1901. The policy objective behind this revocation is to ensure that tariff concessions are dynamically adjusted in response to changes in domestic production capabilities, thus fostering a balanced and equitable trading environment.
Scope and Application
The Customs Act 1901, through Part XVA, establishes a framework for the creation and revocation of Tariff Concession Orders (TCOs), which provide for lower rates of customs duty on specified goods. This legislation applies to any entity or individual that seeks to establish or contest a TCO, as well as to the Chief Executive Officer of Customs, who is responsible for making and revoking such orders. The Act’s application is national in scope, as it is a Commonwealth Act. The revocation of a TCO is contingent upon the CEO being satisfied that a producer in Australia of substitutable goods has made a request for revocation, and that on the day of the request, the TCO would not have been made if it were the day on which the original application for the TCO was lodged. The Act does not specify exclusions, exemptions, or thresholds for the revocation process. The application and scope of the Act can be extended or restricted through subordinate instruments, although such extensions or restrictions are not detailed in this specific Instrument.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument No 20/2008 under the Customs Act 1901 (section 269SC) require the Chief Executive Officer of Customs (CEO) to revoke a Tariff Concession Order (TCO) if certain criteria are met. Specifically, section 269SB allows a producer of substitutable goods in Australia to request the CEO to revoke a TCO if they believe that the goods they produce are substitutable and that the CEO would not have made the TCO had the request been lodged on the day the original application for the TCO was made. If the CEO is satisfied with these conditions, they must revoke the TCO, as outlined in subsections 269SC(1) and (3).
The obligations imposed on the parties by this Act include the requirement for any Australian producer of substitutable goods to formally request the CEO to revoke a TCO if they meet the specified conditions. Additionally, the CEO is obligated to promptly review the request and publish a notice in the Gazette once a request for revocation is received. This notice must include the full details of the TCO in question. If the CEO determines that the conditions for revocation are met, they must then issue an order to revoke the TCO, which takes effect from the date the revocation request was lodged.
The consequences for non-compliance or breach of this Act are not explicitly detailed within the explanatory statement provided. However, it is understood that failing to adhere to the requirements or obligations set out in the Customs Act 1901 could result in civil or criminal penalties, although the specifics of these penalties are not outlined in the document. The penalties could include fines or other legal repercussions, depending on the nature and severity of the breach.
In summary, the Tariff Concessions Revocation Instrument No 20/2008, as part of the Customs Act 1901, allows for the revocation of TCOs under specific circumstances, imposes clear obligations on both producers and the CEO, and implicitly suggests that there are consequences for non-compliance, although the exact penalties are not specified in this particular explanatory statement.