EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 36/2009
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 36/2009 was made on 8 October 2008. It revokes TCO 0617154 and makes TCO 0834382. The tariff classification has been changed from 8477.90.90 to 8477.90.00 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. 36/2009 revoked 0617154 and made new TCO 0834382 on 8 October 2008, with the Revocation date of effect as from 1 January 2007
Overview
The Tariff Concessions Revocation Instrument 36/2009 was enacted to address discrepancies in tariff classifications arising from amendments in the Customs Tariff Act 1995 or court decisions. This legislative instrument operates under the Customs Act 1901, providing the framework for the creation and revocation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. The primary policy objective is to ensure that the appropriate tariff classifications are applied to goods, maintaining consistency and fairness in the application of customs duties. The instrument was introduced to rectify a specific issue identified in TCO 0617154, where the tariff classification was no longer applicable due to changes in the Customs Tariff Act 1995, thereby necessitating the revocation of the old order and the creation of a new one, TCO 0834382. The instrument was developed by the relevant authority within the Australian Government, reflecting a minor but necessary adjustment to existing arrangements.
Scope and Application
The Tariff Concessions Revocation Instrument 36/2009, made under the Customs Act 1901, pertains to the revocation and subsequent re-establishment of Tariff Concession Orders (TCOs) that apply to specific goods subject to customs duties. This instrument applies to goods that were previously covered under TCO 0617154 and now fall under TCO 0834382, following a change in tariff classification. The revocation and re-establishment of these orders are in line with section 269SD of the Customs Act, which mandates the revocation of a TCO if its tariff classification no longer applies to the goods due to changes in the Customs Tariff Act 1995 or decisions by the Administrative Appeals Tribunal. The revocation and new TCO have effect from the day the previous classification ceased to apply, which in this case is 1 January 2007. This legislative instrument is binding on all entities involved in the importation of the specified goods, ensuring they comply with the updated tariff classifications. The scope of this legislation is national, extending across all jurisdictions in Australia where the Customs Act 1901 applies, thereby affecting importers, exporters, and the customs service.
Key Provisions
The Tariff Concessions Revocation Instrument 36/2009 (Instrument) operates under sections 269C, 269P, and 269SD of the Customs Act 1901, focusing on the revocation and creation of Tariff Concession Orders (TCOs). Specifically, section 269C outlines the criteria for establishing a TCO, while section 269P mandates that a TCO will be made if the application meets these criteria, such as no substitutable goods being produced in Australia on the application day. Section 269SD(2) mandates the CEO to revoke a TCO if the tariff classification stated in the TCO no longer applies due to changes in the Customs Tariff Act 1995, court decisions, or advice from Customs officers.
The Instrument imposes several obligations on parties governed by the Act. Firstly, the CEO must ensure that a TCO remains accurate and applicable to the goods in question. If the tariff classification changes, the CEO is required to revoke the existing TCO and issue a new one. This ensures that the duty rates remain aligned with current tariff classifications. The Instrument further mandates that the revocation and issuance of a new TCO should take effect from the day the tariff classification change came into effect, ensuring timely and accurate application of customs duties.
Failure to comply with the provisions of the Customs Act 1901 and the Tariff Concessions Revocation Instrument 36/2009 can lead to both civil and criminal consequences. Section 12 of the Legislative Instruments Act 2003, which prohibits the making of certain retrospective legislative instruments, does not apply to section 269SD, allowing for retrospective effect where necessary. Penalties for breaches may include fines and other sanctions as stipulated in the Customs Act, depending on the nature and severity of the breach. The maximum penalties for customs-related offences can vary, but typically include substantial fines and potential imprisonment for serious or repeated offences.
The Instrument revokes TCO 0617154 and introduces TCO 0834382, effective from 8 October 2008, with the revocation taking effect from 1 January 2007. This change was made due to a shift in tariff classification from 8477.90.90 to 8477.90.00, reflecting an update in the Customs Tariff Act 1995. Given the nature of the change, no consultation was undertaken as it was deemed minor and of a machinery nature, not substantially altering existing arrangements.