EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 31/2006
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).
Shinagawa Refractories Australasia Pty Ltd requested that the CEO revoke TCO 0516052 which covers refractory insulating board.
Instrument
Tariff Concession Instrument No 31/2006 was made on 12 April 2006. It revokes TCO 0516052 and remakes a narrower TCO 0606725 covering refractory insulating board in sheets 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.31/2006 revoked 0516052 and made the narrower TCO No. 0606725 on 12 April 2006.
Overview
The Customs Act 1901 was enacted to provide a comprehensive framework for the regulation of customs and excise in Australia. The Tariff Concessions Revocation Instrument 31/2006, made under the authority of the Customs Act, addresses the need to revoke and replace tariff concession orders when circumstances change, ensuring the tariff system remains fair and responsive to market conditions. The instrument was introduced to provide a mechanism for revoking tariff concessions when a producer in Australia can demonstrate that they are now producing substitutable goods. The revocation and replacement of tariff concessions by the Chief Executive Officer of Customs under this instrument aims to maintain the integrity of the tariff system, ensuring that tariff concessions are only applied when necessary and appropriate. This process is overseen by the Australian Parliament, which enacts the legislation that governs such actions, ensuring that the administrative actions taken by the CEO are in line with the broader objectives of the Customs Act.
Scope and Application
The Tariff Concessions Revocation Instrument 31/2006, under the Customs Act 1901, pertains to the revocation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. This instrument applies to entities and individuals who are directly affected by the tariff concessions, specifically those who have requested the revocation of a TCO based on their claim to be a producer in Australia of substitutable goods. The instrument has a national jurisdictional reach, as it is governed by the Commonwealth and affects the entire Australian market by adjusting the customs duty rates on specified goods. The Act's application is triggered by a request from a producer claiming that they now produce substitutable goods, which were not produced in Australia when the original TCO was made. If the CEO is satisfied with the request, the existing TCO is revoked and potentially replaced with a narrower TCO, which comes into effect from the date the revocation request was lodged. This instrument does not specify any exclusions or thresholds beyond those outlined in the Act itself, and its application can be extended or refined through subordinate instruments as necessary.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument 31/2006 include section 269SB, which allows a producer of substitutable goods to request the revocation of a Tariff Concession Order (TCO). Section 269SC outlines the criteria the Chief Executive Officer (CEO) of Customs must consider when deciding whether to revoke a TCO, and section 269SC(4) specifies that if the CEO decides to revoke a TCO, they must replace it with a narrower TCO if possible. This process is designed to ensure that tariff concessions are only applied when appropriate and can be adjusted if new information comes to light.
Under the Customs Act 1901, the CEO has the obligation to consider requests to revoke TCOs and to assess whether the applicant is a producer of substitutable goods and whether the TCO should have been made in the first place. If the CEO decides that the TCO should be revoked, they must also determine if a narrower TCO could be made and, if so, replace the revoked TCO with this narrower order. The CEO must also publish a notice in the Gazette as soon as practicable after receiving a request for revocation, providing details of the TCO and the request (subsection 269SC(1A)). This ensures transparency and allows stakeholders to be informed of changes to tariff concessions.
There are no explicit offences, penalties, or civil/criminal consequences outlined in the explanatory statement for the breach of the Tariff Concessions Revocation Instrument 31/2006. However, failure to comply with the requirements of the Customs Act 1901, such as improperly applying for or revoking a TCO, could potentially result in legal consequences under the broader provisions of the Act. The focus of the explanatory statement is primarily on the process and criteria for revoking and replacing TCOs rather than on penalties for non-compliance.
In summary, the Tariff Concessions Revocation Instrument 31/2006 outlines a structured process for revoking and potentially replacing TCOs under the Customs Act 1901. It mandates that the CEO consider the producer's request, assess the eligibility of the applicant, and ensure that the TCO is appropriate or can be replaced with a narrower TCO if necessary. The instrument ensures that tariff concessions are subject to review and adjustment based on current production capabilities in Australia, thereby maintaining fairness and accuracy in the application of customs duties.