EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 48/2009
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 48/2009 was made on 26 November 2008. It revokes TCO 0824733 and makes TCO 0840746. The tariff classification has been changed from 7323.99.00 to 7324.90.00 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. 48/2009 revoked 0824733 and made new TCO 0840746 on 26 November 2008, with the Revocation date of effect as from 4 August 2008
Overview
The Tariff Concessions Revocation Instrument 48/2009 was enacted to address a specific issue under the Customs Act 1901, concerning the revocation of Tariff Concession Orders (TCOs) due to changes in tariff classification. This instrument was introduced by the Chief Executive Officer of Customs, as authorised by sections 269C, 269P, and 269SD of the Customs Act. The primary objective of this legislation is to ensure that the tariff classification stated in a TCO accurately reflects the current status of the goods in question, particularly in response to amendments in the Customs Tariff Act 1995, decisions of the Administrative Appeals Tribunal, or advice from Customs officers. The instrument was enacted to streamline the process of updating tariff concessions, ensuring that the appropriate duty rates are applied to goods as per the current tariff classification. The revocation and subsequent creation of a new TCO were intended to take effect from the date the previous tariff classification ceased to apply to the goods, ensuring a seamless transition without retrospective application that would contravene other legislative provisions.
Scope and Application
The Tariff Concessions Revocation Instrument 48/2009 applies to the revocation and replacement of Tariff Concession Orders (TCO) under Part XVA of the Customs Act 1901. Specifically, it concerns the revocation of TCO 0824733 and the creation of TCO 0840746, which occurred due to changes in tariff classification. The instrument's application is jurisdictional, operating within the framework of the Customs Act 1901, which is a Commonwealth Act. The changes were necessitated by an amendment in the Customs Tariff Act 1995, impacting the tariff classification of certain goods, leading to the revocation of the existing TCO and the establishment of a new one. The instrument applies to the entities or persons involved in the importation of goods that are subject to these tariff concessions. The instrument does not specify any exclusions, exemptions, or thresholds, but rather directly addresses the necessary changes in tariff classifications due to legislative amendments. The commencement of the new TCO and the revocation of the old one is contingent on the tariff classification's effective date, which can be backdated to the original TCO's commencement date or a subsequent date, as stipulated in the Customs Act 1901.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument 48/2009 are sections 269C, 269P, and 269SD of the Customs Act 1901. Section 269C sets out the criteria for making a Tariff Concession Order (TCO), while section 269P allows for the revocation of a TCO. Section 269SD(2) requires the Chief Executive Officer of Customs (CEO) to revoke a TCO if the tariff classification stated in the TCO no longer applies to the goods due to changes in the Customs Tariff Act 1995, a court decision, or advice from a Customs officer. The Instrument revokes TCO 0824733 and replaces it with TCO 0840746 due to a change in tariff classification.
The Act imposes several obligations and requirements on the parties and entities it governs. The CEO must ensure that a TCO is only made if no substitutable goods are produced in Australia on the day the application is lodged, as stipulated in section 269C. Furthermore, the CEO must revoke a TCO and issue a new one if the tariff classification of the goods changes, in accordance with section 269SD(2). This obligation ensures that the correct tariff classification is applied to the goods at all times.
Breaching the requirements set out in the Customs Act 1901 can result in both civil and criminal consequences. Civil penalties may include fines or monetary penalties as prescribed by the relevant legislation. Criminal penalties may include imprisonment or fines, depending on the severity of the breach. The maximum penalties for breaches of the Customs Act 1901 are not specified in the Tariff Concessions Revocation Instrument 48/2009, but they can be found in the Act itself. It is essential for parties and entities governed by the Act to comply with its provisions to avoid any potential penalties or consequences.