EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 20/2009
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.
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).
Boronia Technologies Pty Ltd requested that the CEO revoke TCO 0700603 which covers screw compressor chillers.
Instrument
Tariff Concession Instrument No 20/2009 was made on 6 February 2009. It revokes TCO 0700603 and remakes a narrower TCO 0904092 covering screw compressor chillers 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.20/2009 revoked 0700603 and made the narrower TCO No. 0904092 on 6 February.2009, with the revocation date of effect 9 December 2008
Overview
The Customs Act 1901, enacted by the Parliament of Australia, facilitates the regulation of customs duties and related concessions through a structured scheme. This Act allows for the creation and revocation of Tariff Concession Orders (TCOs), which provide lower customs duty rates for specified goods, contingent on certain criteria being met. The Tariff Concessions Revocation Instrument 20/2009, introduced to address the specific issue of revocation of a TCO concerning screw compressor chillers, was made by the Chief Executive Officer of Customs in accordance with the Act's provisions. This revocation and replacement of the original TCO with a narrower TCO was executed after Boronia Technologies Pty Ltd requested the revocation, following the CEO's determination that a narrower concession would have been appropriate. The process involved a review to ensure that the new TCO aligned with the Act's requirements, thereby maintaining the integrity and purpose of the tariff concession scheme.
Scope and Application
The Customs Act 1901, as amended by the Tariff Concessions Revocation Instrument 20/2009, pertains to the revocation and replacement of Tariff Concession Orders (TCO) concerning specific goods. This instrument applies to any entities or individuals involved in the production or importation of goods that fall under the scope of a TCO. The legislation targets entities that can demonstrate the production of substitutable goods in Australia, thereby impacting the tariff concessions applied to these goods. Geographically, the Act applies across Australia, encompassing both Commonwealth and state jurisdictions, ensuring uniform application of tariff regulations. The instrument specifies that a TCO will be revoked if the Chief Executive Officer of Customs is satisfied that the requesting party is a producer of substitutable goods in Australia and that the original TCO would not have been issued if the request were made on the day of application. The instrument also notes that if a narrower TCO can be made, it will replace the revoked order. The revocation and remaking of the TCO are designed to ensure fair and accurate tariff application based on current production capabilities in Australia.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument No. 20/2009 (the Instrument) concern the revocation of Tariff Concession Order (TCO) 0700603 and the creation of a narrower TCO 0904092 (sections 1-2). Section 1 revokes TCO 0700603, which had provided a lower rate of customs duty on screw compressor chillers. Section 2 remakes a narrower TCO 0904092, reflecting the change in circumstances regarding the production of substitutable goods in Australia.
The Instrument imposes specific obligations on the Chief Executive Officer of Customs (CEO) as per section 269SB of the Customs Act 1901. The CEO must determine whether the requestor for revocation is a producer in Australia of substitutable goods, and whether, on the day the request was lodged, the CEO would not have made the TCO if it were being considered anew. Additionally, if the CEO is satisfied with these points but believes a narrower TCO could have been made, they must revoke the existing TCO and issue the narrower TCO (subsection 269SC(4)). Furthermore, under section 269SC(1A), the CEO must publish a notice in the Gazette about the request for revocation, including full details of the TCO.
The Instrument also outlines consequences for breaches of the Customs Act 1901. While the Instrument itself does not specify penalties, the Customs Act 1901 contains provisions that could lead to criminal or civil penalties for non-compliance with its requirements. For instance, section 269P of the Act provides that failure to adhere to the terms of a TCO may result in penalties including fines and imprisonment, with the specifics of these penalties being detailed elsewhere in the Act. Moreover, the CEO’s failure to comply with the statutory obligations to consider and act on revocation requests as per section 269SC could also result in legal consequences under the Act.