EXPLANATORY STATEMENT
Tariff Concessions Revocation Instrument 63/2008
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.
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 63/2008 was made on 28 June 2008. It revokes TCO 8734805 and makes TCO 0814700. The tariff classification has been changed from 8526.92 to 8529.90.30 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. 63/2008 revoked 8734805 and made new TCO 0814700 on 28 June 2008, with the Revocation date of effect as from 18 November 1987
Overview
The Tariff Concessions Revocation Instrument 63/2008, enacted on 28 June 2008, addresses the need for tariff classification adjustments within the Customs Act 1901. The instrument was introduced to correct discrepancies in tariff classifications that arose due to amendments in the Customs Tariff Act 1995 or decisions by the Administrative Appeals Tribunal. The Customs Act 1901 provides for the creation and revocation of Tariff Concession Orders (TCOs) by the Chief Executive Officer of Customs, with specific criteria for such orders outlined in sections 269C and 269P. The Instrument revokes TCO 8734805 and replaces it with TCO 0814700, reflecting a change in tariff classification from 8526.92 to 8529.90.30. The enacting body responsible for this legislative instrument is the Chief Executive Officer of Customs, with the policy objective being to ensure that the tariff classifications accurately reflect the current legal and economic environment.
Scope and Application
The Tariff Concessions Revocation Instrument 63/2008 operates under the Customs Act 1901, specifically targeting Tariff Concession Orders (TCOs) within Part XVA of the Act. It applies to goods that previously benefitted from a reduced rate of customs duty due to a TCO. The Act applies to the Chief Executive Officer of Customs (the CEO) who is responsible for making and revoking these orders. The instrument revokes TCO 8734805 and establishes new TCO 0814700, reflecting a change in tariff classification from 8526.92 to 8529.90.30 due to an amendment in the Customs Tariff Act 1995. The instrument has a Commonwealth reach, applying nationally across Australia. There were no consultations undertaken as the changes were considered minor and of a machinery nature. The revocation and establishment of the new TCO took effect from 28 June 2008, with the revocation date being retroactive to 18 November 1987, ensuring that the new classification is applied from the moment it became applicable, despite the prohibition on retrospective legislative instruments under section 12 of the Legislative Instruments Act 2003.
Key Provisions
The Tariff Concessions Revocation Instrument 63/2008, made under the Customs Act 1901, operates to revoke Tariff Concession Order (TCO) 8734805 and establish a new TCO, numbered 0814700. This legislative instrument was created in response to a change in the tariff classification of certain goods, specifically from classification 8526.92 to 8529.90.30. The change in tariff classification was the result of an amendment to the Customs Tariff Act 1995 (sections 269C and 269P). In accordance with subsection 269SD(2) of the Customs Act 1901, the Chief Executive Officer of Customs (CEO) was required to revoke the existing TCO and issue a new one, reflecting the updated tariff classification.
The Tariff Concessions Revocation Instrument 63/2008 imposes specific obligations on the parties governed by the Customs Act 1901. Primarily, it mandates that the CEO of Customs must ensure that the tariff classification stated in any TCO accurately reflects the goods it pertains to. Should the CEO become aware that a TCO's classification has been altered due to changes in the Customs Tariff Act 1995, a court decision, or written advice from an officer of Customs, they must revoke the existing TCO and issue a new one. This ensures that the correct tariff concessions are applied to the relevant goods. The instrument also requires that the new TCO, 0814700, applies from the date of revocation of the previous TCO, 8734805, which is 18 November 1987.
Under the Customs Act 1901, breaches of the obligations imposed by the Tariff Concessions Revocation Instrument 63/2008 could lead to both civil and criminal consequences. For instance, if the CEO fails to revoke and replace a TCO when required by the Act, this could result in incorrect tariff classifications being applied to goods, potentially leading to financial penalties for importers or exporters. The Act does not specify particular penalties for these breaches, but they could include fines and other civil remedies for any losses incurred due to incorrect tariff application. Additionally, if the non-compliance is deemed to be wilful or negligent, it could potentially lead to criminal charges under the Act, which may include imprisonment or significant fines.
The Tariff Concessions Revocation Instrument 63/2008 came into effect on 28 June 2008, with the revocation of TCO 8734805 taking effect from 18 November 1987, and the new TCO, 0814700, taking effect from the same date of revocation. The instrument operates despite the prohibition on retrospective legislative instruments under section 12 of the Legislative Instruments Act 2003, as per subsection 269SD(6) of the Customs Act 1901. This ensures that the changes in tariff classification are applied correctly and that the appropriate tariff concessions are in place for the goods in question.