EXPLANATORY STATEMENT
Tariff Concession Revocation Instrument 49/2007
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 subsection 269SC(1) of the Act, the CEO must decide whether of not her or she 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;
− 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.
If the CEO is satisfied of those matters but is also satisfied that a narrower TCO could have been made on the day the request to revoke was lodged, the TCO must revoke the TCO and make, in its place, such a narrower TCO (subsection 269SC(4) refers).
Mark Sensing (Australia) Pty Ltd requested that the CEO revoke TCO 0506934 which covers thermal imaging paper.
Instrument
Tariff Concession Instrument No 49/2007 was made on 16 March 2007. It revokes TCO 0506934 and remakes a narrower TCO 0704053 covering thermal imaging paper as the CEO is satisfied that he or she would not have made the old TCO but could have made the narrower 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 269SC(7) provides that if a narrower TCO is made in place of another TCO, that narrower TCO comes into force from the date of effect of the revocation of the other TCO.
Subsection 239SD(8) provides that subsections 269SC(6) and 269SC(7) have effect despite section 12 of the Legislative Instruments Act 2003. Section 12 prohibits the making of certain retrospective legislative instruments.
Tariff Concession Instrument No 49/2007 revoked 0506934 and made the narrower TCO No. 0704053 on 16 March 2007.
Overview
The Customs Act 1901, enacted by the Parliament of Australia, provides a framework for the administration of customs and excise duties and includes provisions for the creation and revocation of Tariff Concession Orders (TCOs). These orders allow for lower rates of customs duty on specified goods, contingent on the absence of substitutable goods produced in Australia at the time of the application. In response to a request by Mark Sensing (Australia) Pty Ltd, Tariff Concession Instrument No 49/2007 was enacted on 16 March 2007 to revoke TCO 0506934 for thermal imaging paper and establish a narrower TCO 0704053, reflecting the Chief Executive Officer of Customs' determination that a narrower concession was feasible while the broader one would not have been issued under current conditions. This instrument adheres to the requirement for prompt publication of requests for TCO revocation in the Gazette, ensuring transparency, and operates within the legal constraints of retrospective legislative instruments as outlined in the Legislative Instruments Act 2003.
Scope and Application
The Tariff Concession Revocation Instrument 49/2007 under the Customs Act 1901 pertains specifically to the revocation of Tariff Concession Order (TCO) 0506934, which was related to thermal imaging paper, and its replacement with a narrower TCO 0704053. This instrument applies to the Chief Executive Officer of Customs (CEO) and any parties affected by the changes in tariff concessions, such as importers and producers of thermal imaging paper in Australia. The scope of the Act is focused on the regulation of customs duty concessions, ensuring that such concessions are granted only when no substitutable goods are produced in Australia. The CEO’s decision to revoke or narrow the TCO is based on the criteria set out in the Act, including the status of domestic production of substitutable goods. The revocation and remaking of the TCO are governed by specific provisions of the Customs Act, and the process involves public notification as mandated by the Act. The instrument's jurisdiction is Commonwealth-wide, reflecting the national scope of the Customs Act. Any exclusions or exemptions from this revocation would need to be considered under the specific terms of the Customs Act and any relevant subordinate legislation.
Key Provisions
The Tariff Concession Revocation Instrument 49/2007 (the Instrument) revokes Tariff Concession Order (TCO) 0506934 and replaces it with a narrower TCO 0704053, both of which pertain to thermal imaging paper. The Instrument was made under the authority of sections 269C, 269P, 269SB, and 269SC of the Customs Act 1901 (the Act). This process was initiated following a request by Mark Sensing (Australia) Pty Ltd for the revocation of TCO 0506934. The Chief Executive Officer of Customs (the CEO) determined that the revocation was warranted as the conditions for the original concession no longer applied, but a narrower TCO could be issued.
Under the Act, the CEO is obliged to consider the request for revocation and determine whether the applicant is a producer of substitutable goods in Australia. Additionally, the CEO must assess whether they would have made the original TCO if it were being considered on the day the revocation request was lodged (subsection 269SC(1)). If satisfied on both counts, the CEO must either revoke the TCO or, if a narrower TCO could be made, revoke the existing TCO and issue a new, narrower one (subsection 269SC(4)). Furthermore, the CEO is required to publish a notice in a Gazette as soon as practicable after receiving a revocation request, detailing the request and the specifics of the TCO in question (subsection 269SC(1A)).
Breach of the requirements set out in the Act, including the failure to comply with the obligations imposed on the CEO, can lead to significant consequences. While the explanatory statement does not explicitly outline offences or penalties, breaches of the Customs Act 1901 can result in both civil and criminal penalties. Civil penalties may include fines, restitution, and other financial penalties as deemed appropriate by the court. Criminal penalties can include imprisonment, fines, or both, depending on the severity of the breach. The maximum penalties are not specified in this particular explanatory statement but are detailed in other sections of the Act.
The commencement of the Instrument is governed by subsections 269SC(6) and 269SC(7) of the Act. The revocation of TCO 0506934 and the issuance of TCO 0704053 took effect on the day the revocation request was lodged, which was 16 March 2007. This commencement is effective despite the general prohibition on retrospective legislative instruments under section 12 of the Legislative Instruments Act 2003, as subsection 269SD(8) of the Customs Act 1901 overrides this prohibition in cases of tariff concession revocations. This ensures that the changes can be applied retroactively from the date of the revocation request, maintaining the integrity and fairness of the tariff concession scheme.