EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 23/2010
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.
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).
Rotary Heat Exchangers Pty Ltd requested that the CEO revoke TCO 0802667 which covers heat exchangers.
Instrument
Tariff Concession Instrument No 23/2010 was made on 28 October 2009. It revokes TCO 0802667 and remakes a narrower TCO 0939948 covering heat exchangers 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.23/2010 revoked 0802667 and made the narrower TCO No. 0939948 on 28 October.2009, with the revocation date of effect 7 September 2009
Overview
The Tariff Concessions Revocation Instrument 2010, made under the Customs Act 1901, addresses the issue of tariff concessions for goods that are subsequently found to be substitutable. Enacted by the Chief Executive Officer of Customs (CEO) in response to a request from Rotary Heat Exchangers Pty Ltd, this instrument revokes Tariff Concession Order (TCO) 0802667, which covers heat exchangers, and replaces it with a narrower TCO 0939948. The revocation and subsequent remaking of the TCO are predicated on the CEO’s satisfaction that while the original TCO would not have been made if the request to revoke had been lodged on the application day, a narrower TCO could have been made. This instrument is designed to ensure that tariff concessions are only granted when genuinely warranted, balancing the interests of local producers with those seeking duty concessions. The CEO is required to publish a notice of the request and particulars of the TCO in the Gazette, as mandated by the Customs Act, ensuring transparency and accountability in the process.
Scope and Application
The Tariff Concessions Revocation Instrument 23/2010 applies under the Customs Act 1901 to the revocation of Tariff Concession Orders (TCOs) that offer a lower rate of customs duty on certain goods. The Act applies to the Chief Executive Officer of Customs who has the authority to make or revoke such orders. This legislation is pertinent to any entities or individuals affected by the tariffs on goods covered by the TCOs, particularly those involved in the production or importation of the specified goods. The scope of this Act is Commonwealth-wide, reflecting its federal application across Australia. The Act allows for the revocation of TCOs if a request is made by a producer of substitutable goods in Australia, and the CEO is satisfied that the concession should not have been made or that a narrower concession could apply. This process involves a specific statutory consultation process whereby the CEO must publish the request and details of the TCO in a Gazette. The revocation and replacement of TCOs under this instrument are subject to the conditions outlined in the Customs Act 1901, and the commencement of the revocation and any new concession takes effect from the date the revocation request was lodged.
Key Provisions
The Tariff Concessions Revocation Instrument 23/2010 (the Instrument) revokes Tariff Concession Order (TCO) 0802667 and replaces it with TCO 0939948. The Instrument is founded in sections 269C, 269P, 269SB, and 269SC of the Customs Act 1901, which provide the framework for making and revoking tariff concession orders. Under these sections, the Chief Executive Officer of Customs (the CEO) can make or revoke a TCO if it meets certain criteria, such as the absence of substitutable goods produced in Australia. The CEO can also revoke a TCO if there are substitutable goods produced in Australia, and a narrower TCO could be made instead. The Instrument revokes TCO 0802667 and makes TCO 0939948 because the CEO is satisfied that while the original TCO would not have been made, a narrower TCO could have been made on the date the request to revoke was lodged.
The Act imposes several obligations on the CEO when considering a request to revoke a TCO. Under section 269SC(1) of the Act, the CEO must determine whether the applicant is a producer in Australia of goods that are substitutable in relation to the goods covered by the TCO, and whether the CEO would not have made the TCO if it were not in force on the day the request to revoke was lodged. If the CEO is satisfied with these matters, the CEO must either revoke the TCO or, if a narrower TCO could have been made, revoke the TCO and make the narrower TCO instead (section 269SC(4)). The CEO must also publish a notice in a Gazette as soon as practicable after receiving a request for revocation, which includes a statement that a request has been lodged and the full particulars of the TCO to which the request relates (subsection 269SC(1A)). The CEO must make these decisions and publish the notice in accordance with the provisions of the Customs Act 1901 and the Legislative Instruments Act 2003.
Breaching the obligations and requirements imposed by the Customs Act 1901 can result in various civil and criminal consequences. While the explanatory statement does not provide specific information on the offences, penalties, or civil/criminal consequences for breach, it is reasonable to assume that any breach of the Act could result in penalties or legal action. The maximum penalties for breaches of the Customs Act 1901 can vary depending on the specific offence and the circumstances of the case. For example, penalties for offences involving customs duty evasion can include fines of up to $22,000 for individuals and $110,000 for corporations, as well as imprisonment for up to five years. Penalties for other offences under the Act can include fines of up to $11,000 for individuals and $55,000 for corporations, as well as imprisonment for up to two years. The actual penalties imposed will depend on the specific circumstances of each case and will be determined by a court or tribunal.