EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 50/2008
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 0710050 which covers road header and tunnelling machine parts.
Instrument
Tariff Concessions Revocation Instrument No 50/2008 was made on 3 May 2008. It revokes TCO 0710050 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Tariff Concessions Revocation Instrument No.50/2008, TCO 0710050, was revoked on 3 May 2008 with the Revocation date of effect as from 12 December 2007.
Overview
The Tariff Concessions Revocation Instrument 50/2008 was enacted to address the specific problem of revoking a Tariff Concession Order (TCO) under the Customs Act 1901. This legislation was introduced to allow for the revocation of TCOs when a domestic producer claims to manufacture substitutable goods, thereby fulfilling the core criteria for the concession to no longer be applicable. Enacted by the Chief Executive Officer of Customs, the instrument aims to ensure that tariff concessions are only granted in the absence of domestic production of substitutable goods. The policy objective is to maintain fair trade practices by preventing unnecessary tariff concessions when local production exists, thus protecting domestic industries from unfair competitive disadvantages.
The instrument, made on 3 May 2008, revokes TCO 0710050 following a request by Sandvik Australia Pty Ltd, a producer of substitutable goods for road header and tunnelling machine parts. The revocation became effective from 12 December 2007, aligning with the date the request was lodged. This revocation process adheres to the mandatory publication requirement in the Customs Act, ensuring transparency and accountability in the revocation process.
Scope and Application
The Tariff Concessions Revocation Instrument 50/2008, which revokes Tariff Concession Order (TCO) 0710050, applies to the goods specified within the TCO, namely road header and tunnelling machine parts, and to Sandvik Australia Pty Ltd, the entity that requested the revocation. The Act under which the instrument operates, the Customs Act 1901, encompasses all goods subject to customs duty in Australia and applies to the entire Commonwealth. The revocation of a TCO is contingent upon the Chief Executive Officer of Customs being satisfied that the applicant is a producer of substitutable goods in Australia and that the TCO would not have been made if the application were lodged on the day of the revocation request. The revocation takes effect from the date the request was lodged, circumventing retrospective legislative restrictions by virtue of specific provisions within the Customs Act 1901. This instrument does not explicitly exclude any categories of goods or entities beyond those specified in the TCO it revokes.
Key Provisions
The main operative sections of the Tariff Concessions Revocation Instrument 50/2008 revolve around the revocation of Tariff Concession Order (TCO) 0710050, which covers road header and tunnelling machine parts. Section 269SB of the Customs Act 1901 allows a person claiming to be a producer in Australia of substitutable goods to request the Chief Executive Officer (CEO) of Customs to revoke a TCO. The CEO must then make an order revoking the TCO if satisfied that the requester is indeed a producer of substitutable goods and that the CEO would not have made the TCO if the request had been lodged on the day the original TCO application was made (sections 269SC(1) and (3)).
The obligations and requirements imposed by this Act on the parties involved are primarily focused on the CEO’s actions upon receiving a request for TCO revocation. The CEO must publish a notice in a Gazette, including details of the request and the TCO, as soon as practicable after receiving the request (subsection 269SC(1A)). The CEO must also ensure that the order revoking the TCO comes into force on the day the revocation request was lodged (subsection 269SC(6)). Additionally, the CEO must adhere to the requirements despite any retrospective prohibitions under section 12 of the Legislative Instruments Act 2003 (subsection 269SD(8)).
The Act does not explicitly outline specific offences, penalties, or consequences for breaches of its provisions. However, the revocation of a TCO and the associated administrative processes are pivotal. Failure to comply with the statutory requirements for TCO revocation could lead to legal challenges or disputes regarding the validity of the revocation. The revocation of TCO 0710050 by the CEO on 3 May 2008, effective from 12 December 2007, underscores the importance of meeting the statutory criteria for revocation. This revocation impacts the customs duty rates for road header and tunnelling machine parts, potentially affecting trade and import practices.