EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 40/2009
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 40/2009 was made on 14 August 2009. It revokes TCO 0910938 and makes TCO 0929688. The tariff classification has been changed from 7318.19.00 to 7318.16.00 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. 40/2009 revoked 0910938 and made new TCO 0929688 on 14 August 2009, with the Revocation date of effect as from 14 August 2009
Overview
The Tariff Concessions Revocation Instrument 40/2009 was enacted to address the need for adjusting tariff concessions in response to changes in tariff classifications, decisions of the Administrative Appeals Tribunal, or advice from Customs officers. The Customs Act 1901 provides a framework for the creation and revocation of Tariff Concession Orders (TCOs), which allow for reduced customs duties on specified goods. The Instrument was introduced to ensure the continued accuracy and effectiveness of tariff concessions in light of changes in the Customs Tariff Act 1995 or judicial and administrative decisions. The Instrument was made by the Chief Executive Officer of Customs under the authority granted by the Customs Act 1901, with the policy objective of maintaining fair and updated tariff classifications. The Instrument took effect from the date of revocation of the old TCO and the creation of the new TCO, as specified in the Customs Act 1901, despite restrictions on retrospective legislative instruments set out in the Legislative Instruments Act 2003.
Scope and Application
The Tariff Concessions Revocation Instrument 40/2009, made under the Customs Act 1901, applies to the revocation of a Tariff Concession Order (TCO) and the creation of a new TCO for specific goods. This instrument is specifically concerned with the tariff classification changes that affect the duty rates applied to certain imported goods. The Act applies to the Chief Executive Officer of Customs, who is tasked with managing and revoking TCOs when necessary. The Instrument revokes TCO 0910938 and introduces TCO 0929688, reflecting an amendment in the tariff classification from 7318.19.00 to 7318.16.00 due to a change in the Customs Tariff Act 1995. The geographic and jurisdictional reach of this legislation is national, as it pertains to the administration of customs duties across Australia. The Instrument does not extend or restrict application through subordinate instruments but operates within the framework provided by the Customs Act 1901 and the Customs Tariff Act 1995. The revocation and creation of the TCOs are effective from the date of the tariff classification change, 14 August 2009, and no consultation was undertaken due to the minor and machinery nature of the change.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument 40/2009 under the Customs Act 1901 (the Act) are sections 269C, 269P, and 269SD. Section 269C outlines the process for making Tariff Concession Orders (TCOs), while section 269P specifies the core criteria for these orders, which include the condition that no substitutable goods were produced in Australia on the day the application was lodged. Section 269SD provides the mechanism for revoking TCOs when the tariff classification changes due to an amendment in the Customs Tariff Act 1995, a court decision, or written advice from a Customs officer. This section mandates the revocation of the existing TCO and the creation of a new one if the tariff classification is no longer applicable. The Instrument revokes TCO 0910938 and establishes TCO 0929688 effective from 14 August 2009 due to a change in tariff classification.
The obligations and requirements imposed by the Act on the parties or entities it governs primarily revolve around ensuring that any Tariff Concession Orders (TCOs) remain aligned with current tariff classifications. The Chief Executive Officer of Customs (the CEO) must diligently monitor tariff changes and make necessary adjustments to the TCOs to reflect accurate classifications. Any person or entity that benefits from a TCO must ensure their goods comply with the conditions specified in the order. Failure to adhere to the terms of the TCO can result in the loss of tariff concessions, potentially leading to higher customs duties.
The Instrument also outlines specific civil and criminal consequences for breaches of the Act, although these are not explicitly detailed within the explanatory statement. Generally, under the Customs Act 1901, breaches can lead to penalties such as fines and, in severe cases, criminal charges. The exact penalties depend on the nature and severity of the breach. The Act allows for significant financial penalties and imprisonment, but the specific maximum penalties would be found in the relevant sections of the Customs Act 1901 or other related legislation. The revocation of a TCO due to non-compliance with tariff classifications is a civil matter, but persistent or deliberate breaches could escalate to criminal penalties.