EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 6/2009
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 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.
Amcor Paper and Functional Coatings Pty Ltd requested that the CEO revoke TCO 0813346 which covers bleached paper.
Instrument
Tariff Concessions Revocation Instrument No 6/2009 was made on 20 November 2008. It revokes TCO 0813346 as the CEO is satisfied that Amcor Paper and Functional Coatings 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Tariff Concessions Revocation Instrument No.6/2009, TCO 0813346 was revoked on 20 November 2008 with the Revocation date of effect as from 17 October 2008.
Overview
The Tariff Concessions Revocation Instrument No. 6/2009, enacted on 20 November 2008, addresses a gap in the Customs Act 1901 concerning the revocation of Tariff Concession Orders (TCOs) that provide lower rates of customs duty for specific goods. The revocation of TCO 0813346, which covered bleached paper, was initiated by a request from Amcor Paper and Functional Coatings Pty Ltd, a producer of substitutable goods. This request was made under the authority granted by sections 269SB, 269SC, and 269P of the Customs Act 1901, which allow for the revocation of TCOs if the Chief Executive Officer of Customs is satisfied that the conditions for such concessions no longer apply. The policy objective of this revocation is to ensure that tariff concessions are only granted when there are no substitutable goods produced in Australia, thereby maintaining a fair and competitive market for domestic producers.
Scope and Application
The Tariff Concessions Revocation Instrument 6/2009 applies to the revocation of a specific Tariff Concession Order (TCO) within the framework established by the Customs Act 1901. The Act allows the Chief Executive Officer of Customs (the CEO) to make and revoke TCOs, which provide for lower rates of customs duty on certain goods if no substitutable goods are produced in Australia in the ordinary course of business. This instrument specifically revokes TCO 0813346, which covered bleached paper, following a request by Amcor Paper and Functional Coatings Pty Ltd, a producer of substitutable goods. The revocation takes effect from the date the request was lodged, 17 October 2008. The CEO must ensure that Amcor Paper and Functional Coatings Pty Ltd meets the criteria for revocation as stipulated in the Act, specifically that the company is a producer of substitutable goods and that the CEO would not have made the TCO if the request had been lodged on the original application date. The CEO is also required to publish a notice in the Gazette once a revocation request is received. The revocation order is not subject to the prohibition on retrospective legislative instruments under the Legislative Instruments Act 2003.
Key Provisions
The Tariff Concessions Revocation Instrument 6/2009 operates under sections 269SB, 269SC, and 269SD of the Customs Act 1901. It provides the mechanism for the Chief Executive Officer of Customs (CEO) to revoke a Tariff Concession Order (TCO). Specifically, section 269SB allows a person claiming to be a producer in Australia of substitutable goods to request the CEO to revoke a TCO. Section 269SC(1) and (3) mandates that the CEO must revoke the TCO if satisfied that the requesting person is indeed a producer of substitutable goods and that the CEO would not have made the TCO if the revocation request was made on the day the TCO application was lodged. Section 269SC(6) specifies that the revocation takes effect from the day the revocation request was lodged, irrespective of section 12 of the Legislative Instruments Act 2003, which prohibits retrospective legislative instruments.
This instrument imposes several obligations on the parties involved. Firstly, any Australian producer of goods substitutable to those covered by a TCO can request the CEO to revoke the TCO. The CEO, in turn, has the obligation to assess the request based on the criteria outlined in section 269SC(1) and (3) of the Customs Act 1901. This includes verifying the producer's claim and determining whether the CEO would have made the TCO had the revocation request been made on the day the original TCO application was lodged. Additionally, section 269SC(1A) requires the CEO to publish a notice in a Gazette as soon as practicable after receiving a revocation request, detailing the request and the particulars of the TCO involved.
Failure to comply with the provisions of the Customs Act 1901 can result in legal consequences. However, the explanatory statement does not explicitly outline specific offences, penalties, or consequences for non-compliance with this instrument. The main focus of the instrument is procedural, ensuring that the CEO follows a specific process for revoking a TCO upon valid request and within the stipulated timeframe. The revocation itself, as per section 269SC(6), is effective from the date the revocation request was lodged, adhering to the legislative requirement to avoid retrospective effects as per section 12 of the Legislative Instruments Act 2003.