EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 40/2011
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.
C. I. Ceramics (Aust) Pty Ltd requested that the CEO revoke TCO 0615551 which covers steel making ladle nozzle fillers.
Instrument
Tariff Concessions Revocation Instrument No 40/2011 was made on 08 April 2010. It revokes TCO 0615551 as the CEO is satisfied that C. I. Ceramics (Aust) Pty Ltd 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Tariff Concessions Revocation Instrument No.40/2011, TCO 0615551, was revoked on 8 April 2010 with the Revocation date of effect as from 15 February 2010.
Overview
The Tariff Concessions Revocation Instrument 40/2011, made under the Customs Act 1901, was enacted to address the need for revoking tariff concession orders when new domestic production of substitutable goods emerges. This instrument was introduced to provide a mechanism for the Chief Executive Officer of Customs to revoke a tariff concession order in response to a request from a producer of substitutable goods. The policy objective is to ensure that tariff concessions are only granted when there are no substitutable goods produced domestically, thereby supporting Australian industry and ensuring fair trade practices. The instrument was made on 8 April 2010 and came into effect on 15 February 2010, revoking Tariff Concession Order 0615551 relating to steel making ladle nozzle fillers, following a request from C. I. Ceramics (Aust) Pty Ltd.
Scope and Application
The Tariff Concessions Revocation Instrument 40/2011 applies to the revocation of a specific Tariff Concession Order (TCO) under the Customs Act 1901, relating to steel making ladle nozzle fillers. This revocation is in response to a request made by C. I. Ceramics (Aust) Pty Ltd, a producer in Australia of substitutable goods. The instrument revokes TCO 0615551 based on the Chief Executive Officer of Customs being satisfied that the applicant is a producer of substitutable goods and that the concession would not have been granted had the application been made on the date of the revocation request. This Act applies nationally, within the Commonwealth of Australia, and is administered by the CEO under the specified sections of the Customs Act 1901. The revocation has no stated exclusions or exemptions but is contingent on the specific conditions of the TCO and the application of the Act. The revocation order takes effect from the date the request was lodged, which is 15 February 2010, and is effective despite provisions in the Legislative Instruments Act 2003 that typically prohibit retrospective legislative instruments.
Key Provisions
The Tariff Concessions Revocation Instrument No 40/2011, under the Customs Act 1901, revokes Tariff Concession Order (TCO) 0615551, which had previously allowed for a lower rate of customs duty on steel making ladle nozzle fillers. This revocation is based on the Chief Executive Officer of Customs (CEO) being satisfied that C. I. Ceramics (Aust) Pty Ltd is a producer of substitutable goods in Australia, and that the CEO would not have made the TCO if the request for revocation had been made on the day the original TCO was applied for (subsections 269SC(1) and (3)). The revocation was published in a Gazette notice as required by subsection 269SC(1A) to inform the public of the revocation and its details. The revocation took effect from the day the request was lodged, 15 February 2010, as per subsection 269SC(6), despite the prohibition in section 12 of the Legislative Instruments Act 2001 regarding retrospective legislative instruments (subsection 269SD(8)).
The Customs Act 1901 imposes specific obligations on the CEO regarding the revocation of TCOs. The CEO must ensure that any request for revocation is considered under the criteria set out in subsections 269SC(1) and (3), verifying the producer's status and the hypothetical condition if the TCO had not been made. Additionally, the CEO is obligated to publish the request and details of the TCO in the Gazette as soon as practicable after receiving the request, as stipulated in subsection 269SC(1A). These provisions ensure transparency and provide an opportunity for public input or objection before the final revocation order is made.
Failure to comply with the provisions of the Customs Act 1901 regarding the revocation of TCOs may result in legal consequences. The Act does not specify explicit penalties for non-compliance with the revocation process; however, any breach of the statutory obligations could potentially lead to judicial review or other legal actions if the CEO fails to adhere to the prescribed procedures. This includes ensuring that all due process is followed, including timely publication and proper consideration of the revocation request. Such oversight could result in the revocation order being declared invalid or subject to correction by a court of law.