EXPLANATORY STATEMENT
Tariff Concession Revocation Instrument 53/2009
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).
Latronic Sunpower Pty Ltd requested that the CEO revoke TCO 0807948 which covers locomotive traction inverters.
Instrument
Tariff Concession Instrument No 53/2009 was made on 18 February 2009. It revokes TCO 0807948 and remakes a narrower TCO 0844723 covering locomotive traction inverters 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.53/2009 revoked 0807948 and made the narrower TCO No. 0844723 on 18 February.2009, with the revocation date of effect 23 December 2008
Overview
The Customs Act 1901, enacted by the Australian Parliament, addresses the administration of customs and excise duties. Specifically, Part XVA of the Act outlines a scheme for the creation and revocation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs. The purpose of these concessions is to apply lower rates of customs duty on specified goods, provided no substitutable goods are produced in Australia. The Tariff Concession Revocation Instrument 53/2009 was introduced to manage the revocation of such concessions in response to a request from Latronic Sunpower Pty Ltd to revoke TCO 0807948, which covers locomotive traction inverters. The revocation of TCO 0807948 and the subsequent creation of a narrower TCO 0844723 were implemented following satisfaction by the CEO that the original concession would not have been granted under current conditions, while a narrower concession could have been made. The revocation and replacement of the concession are effective from 23 December 2008, illustrating the Act's intent to balance international trade benefits with domestic production capabilities.
Scope and Application
The Customs Act 1901, specifically as modified by Tariff Concession Instrument No. 53/2009, applies to the revocation and replacement of Tariff Concession Orders (TCOs) in relation to specified goods, in this case locomotive traction inverters. The instrument is directed towards the Chief Executive Officer of Customs (CEO) who is responsible for making and revoking TCOs, which effectively lower the rate of customs duty on certain goods. The Act applies to any entity or individual who has applied for or has an interest in a TCO, and it concerns the conduct and transactions related to the importation of goods subject to these concessions. The geographical reach of the Act is national, as it pertains to customs operations across Australia. However, the specific application in this case involves the revocation of TCO 0807948 and the introduction of a narrower TCO 0844723. The CEO’s decision to revoke and remake the TCO is contingent upon satisfying certain criteria outlined in the Act, including the absence of substitutable goods being produced in Australia and the feasibility of a narrower concession. The commencement of the revocation and replacement of the TCO is effective from the date the revocation request was lodged, which in this case was 23 December 2008.
Key Provisions
The main operative sections of the Tariff Concession Revocation Instrument 53/2009 under the Customs Act 1901 (sections 269C, 269P, 269SB, 269SC) pertain to the revocation of Tariff Concession Orders (TCOs). Specifically, section 269C details the conditions under which a TCO may be made, while section 269P outlines the process for revoking a TCO. Section 269SB allows a producer of substitutable goods to request the revocation of a TCO if they believe the goods are now being produced in Australia. Section 269SC(1) requires the Chief Executive Officer of Customs (CEO) to assess whether the request for revocation is valid, and if so, whether a narrower TCO could be made in its place. If the CEO is satisfied with the request and that a narrower TCO is feasible, they must revoke the existing TCO and issue a new, narrower TCO (subsection 269SC(4)).
The obligations imposed by the Act on the parties and entities it governs are primarily centred around the process of requesting and deciding on the revocation of a TCO. Section 269SB(1) mandates that any producer of substitutable goods must make a formal request to the CEO to revoke a TCO. The CEO, under section 269SC(1), must then evaluate the request by confirming that the requesting party is indeed a producer of substitutable goods and that the TCO would not have been made if the request had been made on the day the original TCO was applied for. If the CEO is satisfied with these conditions and determines that a narrower TCO is possible, they must revoke the existing TCO and issue a new one (subsection 269SC(4)). Additionally, the CEO is required to publish a notice in the Gazette as soon as practicable after receiving a request for revocation, detailing the request and the TCO in question (subsection 269SC(1A)).
Failure to comply with the provisions of the Customs Act 1901, particularly regarding the revocation of a TCO, can lead to civil or criminal consequences. However, the explanatory statement does not explicitly detail the penalties or consequences for non-compliance with the Act. Generally, breaches of customs regulations can result in fines, imprisonment, or both, depending on the severity and intent of the breach. The exact penalties are governed by other sections of the Customs Act and related legislation. It is important for all parties involved to adhere to the stipulated processes and timelines to avoid potential legal repercussions.