EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 48/2011
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.
Surteco Australia Pty Limited requested that the CEO revoke TCO 0708237 which covers edge banding rolls.
Instrument
Tariff Concessions Revocation Instrument No 48/2011 was made on 19 November 2008. It revokes TCO 0708237 as the CEO is satisfied that Surteco Australia Pty Limited 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Tariff Concessions Revocation Instrument No.48/2011, TCO 0708237, was revoked on 19 November 2008 with the Revocation date of effect as from 24 September 2008.
Overview
The Customs Act 1901, enacted by the Commonwealth Parliament, established a framework for the administration of customs duties and the provision of tariff concessions. This legislation was introduced to address the need for a structured process to manage tariff concessions, ensuring that they are granted based on specific criteria and can be revoked when appropriate. Part XVA of the Act provides the legal basis for making and revoking Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. The Tariff Concessions Revocation Instrument 48/2011 revokes TCO 0708237 at the request of Surteco Australia Pty Limited, reflecting the process outlined in the Customs Act for addressing claims of local production of substitutable goods. The revocation is effective from the date the request was lodged, ensuring compliance with legislative timelines and the prohibition on retrospective legislative instruments.
Scope and Application
The Tariff Concessions Revocation Instrument 48/2011, under the Customs Act 1901, applies to the revocation of Tariff Concession Orders (TCO) which are typically used to provide lower customs duty rates on specified goods. This instrument specifically addresses the revocation of TCO 0708237, which pertains to edge banding rolls, in response to a request by Surteco Australia Pty Limited. The legislation operates within the Commonwealth jurisdiction of Australia and its application extends to entities such as Surteco Australia Pty Limited, which must meet the criteria of being a producer of substitutable goods in Australia at the time of the revocation request. The revocation is effective as of the date the request was lodged, in this case, 24 September 2008. The instrument ensures that the Chief Executive Officer of Customs (CEO) can revoke a TCO if they are satisfied that the requesting entity qualifies as a producer of substitutable goods and that the concession would not have been granted if the request had been made on the day the original concession application was lodged. The Act does not specify exclusions or exemptions but relies on the conditions outlined within its provisions and subordinate instruments, which may further detail the application and revocation processes.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument 48/2011 revolve around the revocation of Tariff Concession Orders (TCOs) under the Customs Act 1901. Section 269C and 269P detail the criteria for establishing a TCO, focusing on the absence of substitutable goods in Australia at the time of application. Section 269SB allows a producer in Australia of substitutable goods to request the Chief Executive Officer (CEO) of Customs to revoke a TCO. Section 269SC(1) and (3) require the CEO to revoke the TCO if satisfied that the requestor is a producer of substitutable goods and that the TCO would not have been made had the current date been the date of the original application.
The Act imposes several obligations on the parties involved. Surteco Australia Pty Limited, as the requestor, must demonstrate that it is a producer of substitutable goods in relation to the goods covered by the TCO. The CEO, on the other hand, is mandated to review the request and, if satisfied with the evidence provided, revoke the TCO. Additionally, under subsection 269SC(1A), the CEO must publish a notice in the Gazette detailing the request for revocation and the specifics of the TCO in question.
Breaching the requirements set out in the Customs Act 1901 can lead to various consequences. While the explanatory statement does not specify penalties for non-compliance, it is understood that failure to adhere to the provisions governing the revocation of TCOs could result in legal challenges or disputes regarding tariff concessions. The revocation of a TCO could impact the duty rates on the affected goods, potentially leading to financial implications for importers and exporters. Additionally, non-compliance with the notification requirements in subsection 269SC(1A) could result in the CEO facing administrative or legal scrutiny.