EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 49/2008
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.
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.
Sandvik Australia Pty Ltd requested that the CEO revoke TCO 0710022 which covers foundation drilling machine parts.
Instrument
Tariff Concessions Revocation Instrument No 49/2008 was made on 3 May 2008. It revokes TCO 0710022 as the CEO is satisfied that Sandvik Australia 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Tariff Concessions Revocation Instrument No.49/2008, TCO 0710022, was revoked on 3 May 2008 with the Revocation date of effect as from 12 December 2007.
Overview
The Tariff Concessions Revocation Instrument 49/2008, enacted in 2008, addresses the revocation of Tariff Concession Orders (TCOs) under the Customs Act 1901. This instrument was introduced in response to the need to ensure that tariff concessions are appropriately granted and subsequently revoked when the conditions for such concessions no longer apply. The Customs Act 1901 provides for the making and revocation of TCOs by the Chief Executive Officer of Customs, who must revoke a TCO if satisfied that substitutable goods are being produced in Australia and that the concession should not have been granted initially. The policy objective underpinning this revocation is to maintain fair competition within the Australian market by ensuring that tariff concessions are only applicable when there is no domestic production of substitutable goods.
Scope and Application
The Tariff Concessions Revocation Instrument 49/2008, as an instrument under the Customs Act 1901, pertains to the revocation of Tariff Concession Orders (TCOs), specifically TCO 0710022 which covers foundation drilling machine parts. This instrument applies to entities such as Sandvik Australia Pty Ltd, which requested the revocation based on its status as a producer of substitutable goods in Australia. The legislation governs the process by which the Chief Executive Officer of Customs (CEO) may revoke a TCO if certain conditions are met, including the absence of substitutable goods being produced in Australia on the day the revocation request is made, and the CEO's satisfaction that the TCO would not have been granted if the current conditions were the same as those on the original application date. The revocation instrument is part of a Commonwealth-level legislation and applies nationally across Australia. There are no stated exclusions or exemptions within this particular instrument, but the process for revocation is carefully outlined to ensure compliance with the Customs Act 1901 and related legislative instruments. The CEO's decision to revoke is also subject to public notice requirements as stipulated in the Act.
Key Provisions
The Tariff Concessions Revocation Instrument 49/2008 revokes Tariff Concession Order (TCO) 0710022, which had provided tariff concessions for foundation drilling machine parts. This revocation was enacted under sections 269C, 269P, and 269SB of the Customs Act 1901. The CEO of Customs is mandated by the Act to revoke a TCO if satisfied that a producer in Australia is now producing substitutable goods and that the TCO would not have been made if the application were considered today. Specifically, under section 269SC(1) and (3), the CEO must revoke the TCO if satisfied that the requesting party is a producer of substitutable goods and that the TCO would not have been made if the request had been lodged on the day the TCO application was originally submitted.
The Act imposes obligations on the CEO to carefully assess any request for revocation of a TCO. The CEO must publish a notice in the Gazette as soon as practicable after receiving a revocation request, outlining the full particulars of the TCO in question, as per subsection 269SC(1A). This ensures transparency and provides an opportunity for public comment or objections. Moreover, the CEO's decision to revoke a TCO must be based on a stringent evaluation of the current production status in Australia and the hypothetical scenario of whether the TCO would have been issued if the current conditions had existed at the time of the original application.
Failure to comply with the Act's provisions, or acting in a manner contrary to the requirements, may result in legal consequences. While the explanatory statement does not detail specific offences or penalties, breaches of the Customs Act 1901 generally can lead to both civil and criminal penalties. Civil penalties could include fines, and in severe cases, criminal penalties may apply, including imprisonment, depending on the nature and severity of the breach. The exact penalties would be determined by the relevant sections of the Customs Act 1901 and other applicable laws.