EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 44/2008
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 44/2008 was made on 22 April 2008. It revokes TCO 0719752 and makes TCO 0803873. The tariff classification has been changed from 8413.91.90 to 8479.90.00 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. 44/2008 revoked 0719752 and made new TCO 0803873 on 22 April 2008, with the Revocation date of effect as from 20 November 2007
Overview
The Tariff Concessions Revocation Instrument 44/2008 was enacted to address changes in tariff classifications that necessitate the revocation of existing Tariff Concession Orders (TCOs) under the Customs Act 1901. The instrument, made on 22 April 2008 by the Chief Executive Officer of Customs, revokes TCO 0719752 and establishes a new TCO 0803873 following a change in the tariff classification from 8413.91.90 to 8479.90.00. This revocation and re-establishment ensure that the correct tariff classification applies to the relevant goods, thereby maintaining the integrity of the customs duty scheme. The instrument was issued under the authority of subsection 269SD(2) of the Customs Act, and it took effect from the day the previous tariff classification ceased to apply to the goods, which was 20 November 2007. The instrument operates despite certain retrospective prohibitions under the Legislative Instruments Act 2003, as provided by subsection 269SD(6) of the Customs Act.
Scope and Application
The Tariff Concessions Revocation Instrument 44/2008, made under the Customs Act 1901, applies to the revocation of Tariff Concession Order (TCO) 0719752 and the establishment of new TCO 0803873. This instrument is triggered by changes in tariff classifications as per the Customs Tariff Act 1995, court decisions, or advice from Customs officers, and it is enforced by the Chief Executive Officer of Customs. The instrument specifically addresses the shift in tariff classification from 8413.91.90 to 8479.90.00, effective from 20 November 2007, and was implemented on 22 April 2008. The Act applies nationally across Australia, affecting any goods subject to the revised tariff classifications. No consultation was necessary due to the minor and machinery nature of the change, which does not significantly alter existing arrangements. The commencement of the revocation and the new TCO is governed by the Customs Act 1901, with specific provisions ensuring that the changes take effect from the specified dates, notwithstanding any retrospective prohibitions under the Legislative Instruments Act 2003.
Key Provisions
The Tariff Concessions Revocation Instrument 44/2008 (F2008L01436) focuses on the revocation and creation of Tariff Concession Orders (TCOs) under the Customs Act 1901. Section 269C and 269P of the Act are pivotal, as they establish the criteria for making TCOs, ensuring that the goods subject to these concessions are not produced in Australia when the application is made. Section 269SD(2) stipulates that if the tariff classification of goods changes due to amendments in the Customs Tariff Act 1995, court decisions, or advice from Customs officers, the CEO must revoke the existing TCO and issue a new one reflecting the updated tariff classification.
The obligations under this legislation primarily rest on the CEO of Customs. They must ensure that the tariff classification stated in a TCO accurately reflects the goods' classification at all times. If there is any change due to the reasons mentioned in section 269SD(2), the CEO is mandated to revoke the existing TCO and issue a new one. This process ensures that the duty rates applied to the goods remain consistent with the current tariff classifications.
Breaches of the provisions outlined in the Customs Act 1901, including the failure to correctly apply or update tariff classifications, can result in civil or criminal penalties. While specific penalties are not detailed in the explanatory statement, under Australian law, incorrect application of customs duties can lead to substantial fines and other penalties. The exact penalties would depend on the severity and intent behind the breach, with the potential for significant financial repercussions and legal consequences for non-compliance. The revocation and creation of TCOs are designed to maintain the integrity of the customs duty system and ensure that goods are appropriately classified and taxed.