EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 21/2010
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 21/2010 was made on 22 May 2009. It revokes TCO 0905076 and makes TCO. 0917312 The tariff classification has been changed from 8546.20.00 to 8544.60.90 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. 21/2010 revoked 0905076 and made new TCO 0917312 on 22 May 2009, with the Revocation date of effect as from 13 February 2009
Overview
The Tariff Concessions Revocation Instrument 21/2010 was enacted to address the issue of tariff classification adjustments as required by the Customs Act 1901. The instrument was made under the authority of the Chief Executive Officer of Customs and serves to revoke an existing Tariff Concession Order (TCO) and issue a new one to reflect changes in tariff classification. This legislative instrument ensures that the applicable customs duty rates are correctly aligned with the updated tariff classifications, thereby maintaining the integrity of the tariff concession scheme. The instrument was not subject to consultation as it pertains to a minor, machinery-related change that does not substantially alter existing arrangements. The revocation and creation of the new TCO were effective from the date the tariff classification change came into effect.
Scope and Application
The Tariff Concessions Revocation Instrument 21/2010 pertains to the Customs Act 1901, specifically addressing the revocation and replacement of Tariff Concession Orders (TCOs) which are made under Part XVA of the Act. The instrument applies to goods whose tariff classification has undergone changes due to amendments in the Customs Tariff Act 1995, decisions by the Administrative Appeals Tribunal, or advice from Customs officers. The Chief Executive Officer of Customs is responsible for revoking and issuing new TCOs when these circumstances arise, ensuring the correct tariff classification applies. This instrument revokes TCO 0905076 and replaces it with TCO 0917312, reflecting the change in tariff classification from 8546.20.00 to 8544.60.90 effective from 13 February 2009. The revocation and new TCO took effect from 22 May 2009, following the specified subsections in the Customs Act, and despite certain prohibitions under the Legislative Instruments Act 2003 regarding retrospective legislative instruments.
Key Provisions
The Tariff Concessions Revocation Instrument 21/2010 (Instrument) revokes Tariff Concession Order (TCO) 0905076 and establishes a new TCO, 0917312, under the Customs Act 1901 (the Act). This change was necessitated by an amendment to the Customs Tariff Act 1995, which altered the tariff classification for the goods in question. The instrument specifies that the new classification, 8544.60.90, applies from the date the previous classification, 8546.20.00, ceased to be applicable, as per subsection 269SD(2) of the Act. This revocation and the creation of the new TCO were effective from 13 February 2009, the date the previous tariff classification was no longer valid.
The obligations imposed by this Act, particularly under sections 269C, 269P, and 269SD, require that no substitutable goods should be produced in Australia on the day the application for a TCO is lodged. Moreover, if the Chief Executive Officer (CEO) of Customs is satisfied that the tariff classification for goods subject to a TCO has changed, they must revoke the existing TCO and issue a new one that reflects the updated tariff classification. This ensures that the duty rates and regulatory requirements for importing these goods remain accurate and compliant with current tariff regulations.
Failure to adhere to the provisions of the Customs Act 1901 and the specific requirements of a TCO can lead to civil and criminal consequences. While the Act does not explicitly state maximum penalties for non-compliance, breaches of customs laws generally attract significant fines and, in severe cases, imprisonment. For instance, knowingly importing goods in contravention of the customs laws can result in penalties of up to $22,000 or imprisonment for up to five years, or both, under section 147 of the Act. Additionally, administrative penalties may apply for incorrect tariff classifications, which can include financial penalties and the forfeiture of goods.
The Instrument also clarifies that the provisions of section 269SD take precedence over section 12 of the Legislative Instruments Act 2003, which prohibits the creation of certain retrospective legislative instruments. This ensures that the CEO can still make necessary adjustments to TCOs in response to changes in tariff classifications or court decisions, even if these changes have retrospective effect.