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CUSTOMS REGULATIONS (AMENDMENT) 1996 NO. 327
STATUTORY RULES 1996 No. 327
Issued by the Authority of the Minister for Small Business and Consumer Affairs
Customs Act 1901
Customs Regulations (Amendment)
Section 270 of the Customs Act 1901 ("the Act") provides in part that the Governor-General 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.
Refunds of Duty
Subsection 163(1) of the Act provides that refunds, rebates and remissions of duty may be made "in respect of goods generally or in respect of the goods included in a class of goods" and in "such circumstances, and subject to such conditions and restrictions (if any), as are prescribed,.." and subsection 163(1 A) provides that the "regulations may prescribe the amount, or the means of determining the amount, of any refund, rebate or remission of duty that may be made for the purposes of subsection (1)."
Regulation 126 of the Regulations sets out the circumstances under which refunds, rebates and remissions are made. Regulation 127 sets out some of the conditions which apply to the making of a refund or remission of duty.
Tariff Concession Orders - TCOs
Part XVA of the Customs Act 1901 (sections 269B to 269SL inclusive) provides for the making of Tariff Concession Orders ("TCOs").
In accordance with these provisions, a person may apply to the Chief Executive Officer ("CEO of Customs") for a TCO in respect of particular goods. Where a TCO is granted, those goods may be imported duty-free by any person. Section 269K of the Act provides a procedure for a TCO application to be notified in the Gazette, so that any affected persons may lodge objections to the granting of a TCO. The basis of an objection is that the objector produces substitutable goods in Australia (section 269Q and that the objector therefore apprehends adverse business effects if goods are allowed duty-free entry under the proposed TCO.
Section 269SJ of the Act provides that the CEO of Customs must not make a Tariff Concession Order ("TCO") in respect of certain goods, including goods which are declared by the regulations to be goods to which a TCO should not extend.
Regulation 185 of the Customs Regulations ("the Regulations") provides, for the purposes of subsection 269SJ(1) of the Act, that a TCO should not extend to goods in (please note: the rest of this paragraph is missing from the scanned Explanatory Statement)
The amendments to the Regulations provide for:
* an amendment to Regulation 185 to exclude from the operation of 185(1)(a) a class of goods. The class of goods is defined by reference to their tariff classification, and are goods which generally relate to the textile, clothing and footwear industry. The effect of the amendment is to permit TCOs to be granted in respect of that class of goods ("the TCF goods") regulation
* an amendment to permit duty to be refunded or remitted as the case may be in respect of the M goods, where, on or after 1 July 1996, but for the operation of regulation 185, duty would not have been paid or payable by reason that a TCO would have applied to those goods - regulation 2, new paragraph 126(1)(x).
* an amendment to permit duty to be refunded in respect of seven (7) TCO applications received after 29 April 1996 in respect of the M goods regulation 2, new paragraph 126(1)(y) .
* an amendment to enable the CEO of Customs to determine, in relation to the refund and remission circumstances contained in new paragraphs 126(1)(x) and y), that a TCO would have been revoked on a particular day regulation 2, new subsection 126(31.
The Regulations commenced on gazettal.
Regulation 1 - Amendment
Regulation 1 provides that the Customs Regulations ("the Regulations") are amended as set out in the regulations.
Regulation 2 - Regulation 126 (Circumstances under which refunds, rebates and remissions are made)
Regulation 2 provides for 2 new refund circumstances to be inserted in subregulation 126(1) at paragraphs (x) and (y),
In accordance with new circumstance (x), duty may be refunded or remitted where duty has been paid or is payable on goods:
- that are specified in paragraph 185(2)(c) (ie the TCF goods new subparagraph (x)(i); and
- to which a TCO made before 1 July 1996 would have extended had not paragraph 185(1)(a) not applied to the goods after 30 June 1996 (ie that paragraph applies to goods that are dutiable at a rate of 15%) new subparagraph (x)(ii);
In accordance with new circumstance (y), duty may be refunded or remitted where duty has been paid or is payable on goods to which a TCO would have extended had TCOs been granted in relation to the seven (7) TCO applications listed in that new circumstance, from the dates at which those TCOs would have commenced operation had they been granted.
* Since considerable processing of these seven (7) applications had been undertaken by the time the unintended effect of paragraph 185(1)(a) was realised, it is possible to state that there was no person who objected to the making of the seven (7) TCOs.
New subregulation 3 permits the CEO of Customs to make a determination in respect of either of new circumstances (x) or (y), concerning one of the 170 TCOs which were revoked by the unintended effect of paragraph 185(1)(a), or in relation to a TCO which would have resulted from one of the TCO applications listed in new circumstance (y), then new circumstance (x) or (y) will cease to operate with respect to that particular TCO or TCO application as the case may be, with effect from that day.
* With the making of these proposed amendments, the facility to obtain a TCO will once again be restored in relation to the TCF goods. From that time the Australian Customs Service (by power vested in the CEO Customs under section 269J) will proceed to remake as far as possible the TCOs which were unintentionally revoked or prevented by the operation of paragraph 185(1)(a).
* As this task progresses, the new refund circumstances will become redundant to that extent, and it is proposed that the CEO Customs will exercise the power under new subregulation (3) to exempt the replaced TCOs from the operation of the new refund circumstances.
Regulation 3 - Regulation 127 (Conditions for refund etc. of duty)
Regulation 127 of the regulations provides, amongst other things, that a refund or remission is not payable unless a refund application is made in accordance with regulation 128.
Regulation 3 inserts a new subregulation (1A) into regulation 127 to exempt new circumstances 126(1)(x) and (y) from the operation of this provision, and therefore provide that a refund or remission application is not required in these cases (or an application fee - paragraph 128(1)(d) refers) .
Similarly, subregulation 127(2) presently limits the scope of the remission circumstance to goods in respect of which an application is made while the goods are under the control of Customs. New subregulation (3) (paragraph (3)(b) ) of the regulations exempts new circumstances 126(1)(x) and (y) from the operation of this provision.
Regulation 4 - Regulation 185 (Restrictions on TCOs)
Regulation 185 of the Regulations, by operation of paragraph 185(1)(a), presently provides that a TCO shall not be made in relation to goods which are dutiable at the rate of 15%.
Regulation 4 exempts the M goods from the operation of this provision, therefore restoring the facility to obtain TCOs in relation these goods. New paragraph 185(2)(c) identifies the TCF goods by reference to their tariff classification under the Customs Tariff Act 1995, as set out in that paragraph.