Commonwealth Numbered Regulations - Explanatory Statements

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Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs Amendment Regulation 1999 (No. 3)

Section 270 of the Customs Act 1901 (the Act) provides in part that the GovernorGeneral may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed for giving effect to the Act.

Purpose of the Regulations

These regulations amend paragraph 128A(4B)(d) of the Customs Regulations 1926 ("the Regulations") so that, if the Administrative Appeals Tribunal ("AAT") overturns a decision initiated by the Chief Executive Officer of Customs ("CEO") to revoke a Tariff Concession Order ("TCO"), a person who entered goods covered by the TCO can have 12 months from the date of the AAT decision to apply for a refund of Customs duty paid on those goods.


Tariff Concession Orders

Part XVA of the Act provides for the making of TCOs. A person may apply to the CEO for a TCO in respect of particular goods. If a TCO is granted in respect of those goods, any person entering those goods for home consumption will be able to pay a concessional rate of Customs duty.

Under Part XVA of the Act, TCOs may be revoked. There are two ways that revocations can be initiated: (i) a person can apply for the TCO to be revoked; or (ii) the CEO can review an existing TCO and decide to revoke it.

The Act provides that the AAT can review decisions of the CEO to revoke a TCO on his own initiative (paragraph 273GA(1)(s) refers).

Refunds of duty

The Act states that a refund of duty may be made in respect of goods generally, or in respect of the goods included in a class of goods, in such circumstances and subject to such conditions and restrictions as are prescribed (section 163 refers).

The Regulations prescribe the circumstances where a refund of duty may be made. One circumstance is where duty has been paid on goods that were first entered for home consumption at a time when a TCO in respect of those goods was in force, or was taken to have come into force (paragraph 126(1)(r) refers).

The Regulations require that an application for a refund of duty, in relation to goods for which a TCO was in force or was taken to have come into force, must be made within 12 months after the date on which:

(a)       the goods were entered for home consumption; or

(b)       the TCO was gazetted; or

(c)       a decision on an application for reconsideration of a decision made on a TCO

application or on a request for revocation of a TCO was gazetted; or

(d)       a decision of the AAT was made on an application for review of a decision of

the CEO on a reconsideration of a decision he made:

(i)       on whether an application for a TCO met the core criteria;

(ii)       on whether there was any one in Australia capable of repairing in the ordinary course of business those goods the subject of an application for a TCO for goods requiring repair;

(iii)       on whether the person requesting the revocation of a TCO was a producer in Australia of goods that were substitutable goods in relation to the goods the subject of the TCO, and that, if the TCO were not in force on the day of lodgement of the request for revocation but that day were the day the TCO application was lodged, the TCO would not have been made; or

(iv)       to revoke a TCO following a request for the revocation of the TCO from a

person and to replace the TCO with a narrower TCO;

whichever happens last (paragraph 128A(4B)(d) refers).

The Regulations do not refer to an application to the AAT for review of a decision by the CEO to revoke a TCO at his own initiative. This means that, if the AAT decides the CEO should not have revoked a TCO on his own initiative, the person applying for a refund of duty would have only 12 months from the date of entry of the goods to apply for the refund.

It is possible that the AAT decision can be made more than 12 months after the goods are entered. In this circumstance, the person is unable to receive a refund of Customs duty. This an anomaly.

These amendments will allow a person in this circumstance to claim a refund of Customs duty within 12 months of the decision of the AAT.

Details of the amendments are set out in the Attachment.

The Regulations commence on gazettal.


Regulation 1 - Name of regulations

Regulation 1 provides that the regulations are named the "Customs Amendment Regulations 1999 (No. 3)".

Regulation 2 - Commencement

Regulation 2 provides that the regulations are to commence on gazettal.

Regulation 3 - Amendment of Customs Regulations 1926

Regulation 3 provides that Schedule 1 amends the Customs Regulations 1926.

Item 1 of Schedule 1 - Paragraph 128A(4B)(d)

Item 1 rewrites paragraph 128A(4B)(d) of the Regulations to insert a reference to paragraph 273GA(1)(s) of the Act into that paragraph, giving applicants 12 months from the date of a decision of the AAT to apply for a refund of Customs duty.

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