EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 33/2011
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.
Huntsman Corporation Australia Pty Limited requested that the CEO revoke TCO 0703306 which covers monobutyl diethylene glycol ethers.
Instrument
Tariff Concessions Revocation Instrument No 33/2011 was made on 20 August 2009. It revokes TCO 0703306 as the CEO is satisfied that Huntsman Corporation Australia Pty Limited 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Tariff Concessions Revocation Instrument No.33/2011, TCO 0703306, was revoked on 20 August 2009 with the Revocation date of effect as from 29 June 2009.
Overview
The Tariff Concessions Revocation Instrument 33/2011 was enacted to address the need for revoking a Tariff Concession Order (TCO) under the Customs Act 1901. This was introduced to respond to situations where local production of substitutable goods commences in Australia, thereby rendering the tariff concession no longer necessary. The Customs Act 1901, as amended, allows for the revocation of TCOs if a producer in Australia of goods substitutable to those covered by the TCO requests it, and if the CEO is satisfied that the TCO would not have been made had the local production existed at the time of the original application. The instrument was made by the Chief Executive Officer of Customs, following a request by Huntsman Corporation Australia Pty Limited to revoke TCO 0703306, which related to monobutyl diethylene glycol ethers. The revocation took effect from the date the request was lodged, 29 June 2009.
Scope and Application
The Tariff Concessions Revocation Instrument 33/2011, made under the Customs Act 1901, pertains to the revocation of Tariff Concession Order (TCO) 0703306 concerning monobutyl diethylene glycol ethers. The Act applies to entities such as Huntsman Corporation Australia Pty Limited, which can request the revocation of a TCO if they produce substitutable goods in Australia. The Act's jurisdiction extends to the Commonwealth level, with the Chief Executive Officer of Customs (CEO) having the authority to make and revoke TCOs. The CEO must revoke a TCO if satisfied that the requesting entity is a producer of substitutable goods and that the TCO would not have been issued if the request had been made on the day the TCO application was lodged. This revocation is effective from the date the revocation request was made, despite legislative constraints on retrospective legislative instruments. The CEO is also required to publish a notice in a Gazette once a revocation request is received, detailing the request and the specifics of the TCO in question.
Key Provisions
The Tariff Concessions Revocation Instrument 33/2011 under the Customs Act 1901 primarily revokes Tariff Concession Order (TCO) 0703306, which pertains to monobutyl diethylene glycol ethers. This revocation is in response to a request by Huntsman Corporation Australia Pty Limited, who claimed to be a producer of substitutable goods. The Chief Executive Officer (CEO) of Customs revoked the order on 20 August 2009 and determined that Huntsman Corporation Australia Pty Limited is indeed a producer of these substitutable goods. Furthermore, the CEO found that had the TCO not been in force on the day the request was lodged, they would not have made the TCO in the first place.
The Act imposes specific obligations on the CEO in relation to the revocation of TCOs. Section 269SC(1) mandates that the CEO must make an order to revoke a TCO if satisfied that the requestor is a producer of substitutable goods in Australia. Additionally, Section 269SC(3) requires that the CEO must be convinced that they would not have made the TCO if it were the day on which the original application for the TCO was lodged. To facilitate transparency and public consultation, Subsection 269SC(1A) requires the CEO to publish a notice in a Gazette as soon as practicable after receiving a request for revocation, including the full particulars of the TCO in question.
There are no specific offences, penalties, or civil/criminal consequences outlined in the explanatory statement for the breach of the provisions related to the revocation of TCOs under the Customs Act 1901. The focus of the Act in this context is more on ensuring that tariff concessions are appropriately managed and revoked when necessary to support Australian producers of substitutable goods. The legal framework emphasizes procedural correctness and the timely revocation of TCOs to maintain fair trade practices.