EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 35/2009
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.
Subsection 269SD(2) of the Act provides that if the CEO is satisfied that:
− because of an amendment of the Customs Tariff Act 1995; or
− having regard to a decision of a court of the Administrative Appeals Tribunal; or
− having regard to written advice on the matter given by an officer of Customs;
the tariff classification that is stated in a TCO to apply to the goods the subject of the TCO has not, with effect from a particular day, applied to those goods, the CEO must:
− make an order revoking the TCO with effect from that day; and
− make a new TCO in respect of the goods with effect from the revocation.
Instrument
Tariff Concessions Revocation Instrument No 35/2009 was made on 12 September 2008. It revokes TCO 0615641 and makes TCO 0830828. The tariff classification has been changed from 8426.30.00 to 8426.20.00 because of a tariff classification change.
Consultation
No consultation was undertaken since the change is minor or machinery nature and does not substantially alter existing arrangements.
Commencement
Subsection 269SD(2) provides that the order revoking the TCO has effect from the day on which the tariff classification did not apply to the goods. Further the new TCO has effect from the revocation. Subsection 269SD(4) provides that the day may be the day on which the old TCO came into force or a later day.
Subsection 269SD(6) provides that section 269SD 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. 35/2009 revoked 0615641 and made new TCO 0830828 on 12 September 2008, with the Revocation date of effect as from 10 October 2006
Overview
The Tariff Concessions Revocation Instrument 35/2009, enacted on 12 September 2008, is an instrument under the Customs Act 1901 designed to address the need for adjusting tariff classifications within the existing tariff concession orders framework. This instrument was introduced to rectify discrepancies arising from changes in tariff classifications, as outlined in the Customs Tariff Act 1995, or due to judicial decisions or administrative advice from Customs officers. The policy objective is to ensure that the tariff classifications applied to goods subject to tariff concession orders remain accurate and relevant, thereby maintaining the integrity and fairness of the tariff system. The instrument was enacted by the Chief Executive Officer of Customs and became effective from the day when the tariff classification ceased to apply to the goods, with the ability to set the effective date as from when the original tariff concession order came into force or a later date, in accordance with the provisions of the Customs Act 1901.
Scope and Application
The Tariff Concessions Revocation Instrument 35/2009 applies to the revocation of Tariff Concession Order (TCO) 0615641 and the issuance of a new TCO 0830828 under the Customs Act 1901. This legislation specifically pertains to the alteration of tariff classifications of certain goods, leading to changes in the customs duty rates applicable to these goods. The instrument was enacted to address a change in tariff classification resulting from amendments to the Customs Tariff Act 1995. The revocation and subsequent creation of the new TCO were necessitated because the original tariff classification no longer applied to the goods from a particular date, thus necessitating adjustments in the duty rates. The application of this Act is confined to the scope of the Customs Act 1901 and its related sections concerning tariff concessions. There were no exclusions or exemptions specified in the explanatory statement, and the instrument's scope was limited to the specific TCOs affected by the tariff classification change.
Key Provisions
The main operative sections of this legislation, specifically the Tariff Concessions Revocation Instrument 35/2009, involve the revocation of Tariff Concession Order (TCO) 0615641 and the introduction of a new TCO 0830828, as outlined in sections 269SD(2) and 269SD(6) of the Customs Act 1901. Section 269SD(2) mandates the revocation of a TCO if the tariff classification no longer applies to the goods due to changes in the Customs Tariff Act 1995 or other specified reasons. Section 269SD(6) ensures that this revocation and the creation of a new TCO take effect despite any prohibitions under the Legislative Instruments Act 2003 regarding retrospective legislative instruments.
The obligations and requirements imposed by the Act on the parties governed by this legislation primarily involve ensuring that any changes in tariff classification are accurately reflected in the TCOs. Specifically, section 269SD(2) places the obligation on the Chief Executive Officer of Customs (CEO) to monitor and adjust the tariff classifications of goods subject to TCOs. This requires the CEO to review the tariff classifications in light of amendments to the Customs Tariff Act 1995, decisions of the Administrative Appeals Tribunal, or written advice from Customs officers. If any changes are identified that render the existing tariff classification inapplicable, the CEO must promptly revoke the relevant TCO and issue a new one with the updated classification.
Failure to comply with the requirements set out in the Act can result in significant consequences. While the explanatory statement does not explicitly outline specific offences or penalties, breaches of the Customs Act 1901 generally can lead to civil or criminal penalties. Under the Customs Act, unauthorised importation of goods, fraudulent practices, and failure to comply with customs regulations can result in fines and, in some cases, imprisonment. The exact penalties depend on the severity of the breach and are determined by the courts.
In summary, the Tariff Concessions Revocation Instrument 35/2009 ensures that the tariff classifications for goods subject to TCOs are kept up-to-date, reflecting any changes in the Customs Tariff Act 1995 or other relevant factors. This legislation imposes clear obligations on the CEO to monitor and adjust TCOs accordingly. Non-compliance with these obligations can lead to severe civil and criminal penalties under the Customs Act 1901.