EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 53/2007
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.
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 53/2007 was made on 4 April 2007. It revokes TCO 0108954 and makes TCO 0704538. The tariff classification has been changed from 8422.30.90 to 8422.40.90 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. 53/2007 revoked 0108954 and made new TCO 0704538 on 4 April 2007.
Overview
The Tariff Concessions Revocation Instrument 53/2007, enacted on 4 April 2007, is an instrument under the Customs Act 1901 that addresses the need for adjustments in tariff concession orders due to changes in tariff classifications or decisions by courts and tribunals. The instrument was introduced to ensure that tariff concession orders accurately reflect the current tariff classification of goods, thereby maintaining the integrity and effectiveness of the tariff concession scheme. The enactment of this instrument falls under the authority of the Chief Executive Officer of Customs, who is tasked with making and revoking tariff concession orders in accordance with the provisions of the Customs Act 1901. The policy objective behind this instrument is to ensure that tariff concessions remain applicable only when the specified tariff classification continues to be appropriate for the goods in question, thereby preventing any unintended benefits or drawbacks that might arise from outdated tariff classifications.
The instrument revokes Tariff Concession Order 0108954 and replaces it with Tariff Concession Order 0704538 due to a change in tariff classification from 8422.30.90 to 8422.40.90. The revocation and creation of new orders are effective from the day the previous tariff classification ceased to apply to the goods. Importantly, this instrument operates despite the prohibitions outlined in section 12 of the Legislative Instruments Act 2003, which generally restricts the retrospective application of legislative instruments.
Scope and Application
The Customs Act 1901 governs the regulation and administration of customs and excise duties in Australia, and specifically, Part XVA of the Act pertains to the creation and revocation of Tariff Concession Orders (TCOs). These orders apply a lower rate of customs duty to certain goods, contingent upon the criteria that no substitutable goods were produced in Australia on the day the application for the TCO was made. The Tariff Concessions Revocation Instrument 53/2007 revokes an existing TCO (0108954) and establishes a new TCO (0704538) due to a change in tariff classification, which was triggered by an amendment to the Customs Tariff Act 1995. This instrument applies to the goods covered under the affected tariff classification and is managed by the Chief Executive Officer of Customs, who has the authority to make and revoke such orders as specified in sections 269C, 269P, and 269SD of the Customs Act. The revocation and creation of the TCOs under this instrument are effective from the date the previous tariff classification ceased to apply to the goods, as determined by the CEO. This process adheres to the legislative framework outlined in the Customs Act, ensuring that the changes do not contravene the prohibitions set out in section 12 of the Legislative Instruments Act 2003, which restricts the making of retrospective legislative instruments.
Key Provisions
The Tariff Concessions Revocation Instrument 53/2007, made under section 269SD(2) of the Customs Act 1901, revokes Tariff Concession Order (TCO) 0108954 and establishes a new TCO 0704538. The revocation and the new order were necessitated due to a change in tariff classification, as stated in the explanatory statement accompanying the Instrument. The new TCO applies a different tariff classification, 8422.40.90, in place of the previous 8422.30.90.
Under the Customs Act 1901, the Chief Executive Officer of Customs (CEO) is empowered to make and revoke TCOs. The CEO must revoke a TCO if they determine that the tariff classification specified in the TCO no longer applies to the goods due to an amendment in the Customs Tariff Act 1995, a decision of a court or the Administrative Appeals Tribunal, or advice from an officer of Customs. This process ensures that the tariff classification remains accurate and reflects current legislative and judicial decisions.
The obligations imposed on parties by the Customs Act 1901 and the Tariff Concessions Revocation Instrument 53/2007 include ensuring that the tariff classification for goods subject to a TCO is up to date. Importers and exporters must be aware of the changes in tariff classifications and comply with the new TCO when importing or exporting the affected goods. The CEO’s decision to revoke and replace a TCO must be communicated to relevant stakeholders to ensure smooth implementation of the new tariff classification.
The Customs Act 1901 and the Tariff Concessions Revocation Instrument 53/2007 do not explicitly state penalties for non-compliance with the new TCO. However, general provisions within the Customs Act 1901 provide for offences and penalties for non-compliance with customs regulations. Importers and exporters who fail to comply with the new tariff classification may face civil and criminal penalties, including fines and potential imprisonment, depending on the severity and intent of the non-compliance. The exact penalties would be determined based on the specific circumstances of each case and the provisions of the Customs Act 1901.