EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 29/2011
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.
Baltec Inlet and Exhaust Systems Pty Ltd requested that the CEO revoke TCO 0826801 which covers gas turbine fuel gas coalescing filters.
Instrument
Tariff Concessions Revocation Instrument No 29/2011 was made on 28 May 2009. It revokes TCO 0826801 as the CEO is satisfied that Baltec Inlet and Exhaust Systems 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Tariff Concessions Revocation Instrument No.29/2011, TCO 0826801, was revoked on 28 May 2009 with the Revocation date of effect as from 28 May 2009.
Overview
The Tariff Concessions Revocation Instrument 29/2011, made under the Customs Act 1901, revokes Tariff Concession Order (TCO) 0826801 which pertains to gas turbine fuel gas coalescing filters. This instrument was enacted to address the problem of potentially inappropriate tariff concessions where a domestic producer emerges after a TCO has been issued. The Customs Act 1901 provides a framework for the Chief Executive Officer of Customs to make and revoke TCOs, ensuring that lower customs duty rates apply to goods for which no substitutable goods are produced in Australia. Baltec Inlet and Exhaust Systems Pty Ltd requested the revocation of TCO 0826801, leading to the revocation on the basis that the company is a producer of substitutable goods and that the CEO would not have made the TCO if the current situation had existed at the time of the original application. This revocation aligns with the policy objective of ensuring tariff concessions are granted only when genuinely necessary.
Scope and Application
The Tariff Concessions Revocation Instrument 29/2011 pertains to the revocation of Tariff Concession Order 0826801 under the Customs Act 1901, specifically targeting gas turbine fuel gas coalescing filters. This Act applies to any entity or individual seeking to revoke a Tariff Concession Order (TCO) based on the production of substitutable goods in Australia. The revocation is applicable nationally, operating within the framework set by the Commonwealth. The Act is triggered when a request is made by a producer of substitutable goods to the Chief Executive Officer of Customs, who is then required to assess the validity of the revocation request based on specific criteria. If the CEO determines that the requester is indeed a producer of substitutable goods and that the TCO would not have been issued if the request were made on the day the original TCO application was lodged, the TCO is revoked. This process ensures that tariff concessions are dynamically managed in response to changes in the domestic production landscape, thereby maintaining fair trade practices. The revocation order comes into effect on the date the request is lodged, notwithstanding any prohibitions on retrospective legislative instruments, ensuring timely adjustments to tariff policies.
Key Provisions
The Tariff Concessions Revocation Instrument 29/2011 revokes Tariff Concession Order (TCO) 0826801, which applied to gas turbine fuel gas coalescing filters, as per sections 269C and 269P of the Customs Act 1901. This revocation is specifically due to the conditions outlined in sections 269SC(1) and (3) of the Act, where the Chief Executive Officer (CEO) of Customs is satisfied that Baltec Inlet and Exhaust Systems Pty Ltd is a producer in Australia of substitutable goods and that the CEO would not have made the TCO if the request for revocation was made on the day the original application for the TCO was lodged. The revocation was effective from the date the request was made, 28 May 2009.
Entities and parties governed by the Customs Act 1901, especially those that might be affected by the revocation of TCOs, have specific obligations under the Act. They must ensure that any applications for tariff concessions are made with full disclosure of all relevant information, particularly regarding the production of substitutable goods in Australia. Additionally, if a party believes they are producing substitutable goods, they must request the CEO to revoke any existing TCOs under section 269SB. The CEO, in turn, has the obligation to review such requests and make an order to revoke the TCO if the conditions specified in section 269SC(1) and (3) are met.
The Act imposes several consequences for breaches related to the revocation of TCOs. Any party that provides false or misleading information in an application for a tariff concession, or in a request for revocation, may face legal action. Under section 269SC(4) of the Act, any person who contravenes the requirements may be subject to penalties, including fines and potential criminal charges, depending on the severity of the breach. The maximum penalties for such offences are detailed in the relevant sections of the Customs Act 1901, and they can include significant fines and imprisonment for serious or repeated breaches. These consequences underscore the importance of compliance with the provisions and obligations set out in the Act.