EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 25/2008
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 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).
Rhinobuilt Australia Pty Ltd requested that the CEO revoke TCO 0708678 which covers scaffolding.
Instrument
Tariff Concession Instrument No 25/2008 was made on 22 January 2008. It revokes TCO 0708678 and remakes a narrower TCO 0801189 covering scaffolding 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.25/2008 revoked 0708678 and made the narrower TCO No. 0801189 on 22 January 2008 with the revocation date of effect 22 January 2008
Overview
The Tariff Concessions Revocation Instrument 2008, enacted to address specific concerns within the Customs Act 1901, aims to provide flexibility in the administration of tariff concessions. This instrument was introduced by the Commonwealth Parliament and was made on 22 January 2008, revoking TCO 0708678 and replacing it with a narrower TCO 0801189. The instrument was created in response to a request from Rhinobuilt Australia Pty Ltd, which claimed to be a producer of substitutable goods in relation to scaffolding, asserting that the existing tariff concession was no longer justified as it did not meet the core criteria established under sections 269C and 269P of the Act. The policy objective of this revocation and re-establishment of a tariff concession is to ensure that tariff concessions accurately reflect the current production landscape in Australia, thereby supporting fair competition and economic efficiency.
Scope and Application
The Tariff Concessions Revocation Instrument 2008, made under the Customs Act 1901, pertains to the revocation of specific Tariff Concession Orders (TCOs) and the creation of new, narrower TCOs. This legislation applies to entities and individuals involved in the production and importation of goods subject to TCOs, particularly in the context of scaffolding as per TCO 0708678. The Act operates within the Commonwealth jurisdiction, governing the process through which the Chief Executive Officer of Customs (CEO) can revoke or remake TCOs based on specific criteria. A TCO can be revoked if the CEO determines that on the day of the revocation request, substitutable goods are being produced in Australia, and if, on the day the original TCO application was lodged, the CEO would not have made the TCO. If a narrower TCO can be justified, the CEO revokes the existing TCO and issues a narrower one. The revocation and remaking of TCOs under this Instrument are subject to publication requirements in the Gazette and specific commencement provisions, ensuring the changes are effective from the date the revocation request was lodged. This Act does not specify exclusions, exemptions, or thresholds, but its application may be extended or restricted through subordinate instruments.
Key Provisions
The Tariff Concessions Revocation Instrument 2008 (F2008L00273) pertains to the Customs Act 1901, specifically under Part XVA, which governs the making and revoking of Tariff Concession Orders (TCOs). Section 269C and Section 269P of the Act outline the criteria for establishing a TCO, whereby a lower customs duty applies to goods subject to a TCO. This arrangement is contingent upon the condition that, on the date the application for the TCO was lodged, no substitutable goods were being produced in Australia. Section 269SB allows for a request to revoke a TCO by a person claiming to be a producer of substitutable goods in Australia.
The main operative sections of the Instrument, particularly subsection 269SC(1), require the Chief Executive Officer of Customs (CEO) to assess two criteria when a revocation request is made: whether the person requesting the revocation is a producer in Australia of substitutable goods, and whether, if the TCO were not in force on the day the revocation request was made, the CEO would not have made the TCO. If the CEO is satisfied with these criteria but also determines that a narrower TCO could have been made on the day the revocation request was lodged, the existing TCO must be revoked and a narrower TCO must be established in its place, as per subsection 269SC(4).
The obligations imposed on the CEO by the Act are to promptly publish a notice in a Gazette upon receiving a revocation request, as per subsection 269SC(1A). This notice must include a statement that a revocation request has been lodged and provide full particulars of the TCO in question. Furthermore, the Act stipulates that an order revoking a TCO comes into effect on the day the revocation request was lodged, and if a narrower TCO is made in its place, it takes effect from the date of the revocation of the original TCO, as per subsections 269SC(6) and 269SC(7). These provisions are designed to operate irrespective of certain retrospective legislative constraints, as outlined in section 12 of the Legislative Instruments Act 2003.
Should any party breach the obligations set forth by the Customs Act 1901 or the Tariff Concessions Revocation Instrument 2008, they could potentially face civil or criminal consequences. However, the specific offences, penalties, or consequences for breach are not detailed in the provided text. It is important for legal practitioners to refer to the full text of the Act and related instruments to fully understand the potential ramifications of non-compliance.