Customs Amendment Act 1976 (Cth)
An Act to amend the
BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:—
(2) The
(3) The Principal Act, as amended by this Act, may be cited as the
“154. (1) In this section—
‘Annex I’ means Annex I to the Convention, a copy of the English text of which is set out in Part I of Schedule VII;
‘Annex II’ means Annex II to the Convention, a copy of the English text of which is set out in Part II of Schedule VII;
‘Convention’ means the Convention on the Valuation of Goods for Customs Purposes signed at Brussels on 15 December 1950;
‘Convention Definition of Value’ means the Definition of Value set out in Annex I as affected by the Interpretative Notes to the Definition of Value set out in Annex II.
“(2) Subject to sub-section (3), the value of any imported
goods shall, for the purposes of the
“(3) In the application of the Convention Definition of Value for the purposes of sub-section (2), the provisions of the Convention Definition of Value have effect as if—
(a) the reference in Article I (1) in Annex I to goods imported for home use were read as a reference to goods imported into Australia;
(b) the reference in Article I (1) in Annex I to the time when the duty becomes payable were read as a reference to the time when goods are first entered or deemed to be entered for the purposes of this Act;
(c) a reference in Article I (2)(a) in Annex I and in Note 5 set out in Annex II under the heading ‘Addendum to Article I’ to the port or place of introduction into the country of importation were read as a reference to the port or airport at which goods are discharged on importation into Australia;
(d) there were substituted for Article I (2)(b) in Annex I the following:—
(b) that with the exception of costs, charges and expenses incidental to the delivery of the goods from the port or place of exportation to the port or airport at which the goods are discharged on importation into Australia, the seller bears all costs, charges and expenses incidental to the sale and to the delivery of the goods at the port or airport at which the goods are discharged on importation into Australia, which are hence included in the normal price;’;
(e) a reference in Article I (2)(c) in Annex I and in Annex II to the country of importation were read as a reference to Australia;
(f) there were inserted in Note 2 set out in Annex II under the heading ‘Addendum to Article I’, after the words ‘cost of containers excluding those which are treated as separate articles for the purpose of levying duties of customs’, the words ‘but including containers that fall within item 12 in Schedule 2 to the
Customs Tariff Act 1966-1976’;(g) the reference in Note 4 set out in Annex II under the heading ‘Addendum to Article I’ to the official rate of exchange were read as a reference to the fair rate of exchange referred to in section 157; and
(h) in the case of goods that are the produce or manufacture of Canada, inland freight charges incurred in Canada were not greater than the amount of freight charges that would have been incurred in Canada if the goods had been forwarded from the place of origin of the goods to the nearest point of exit in Canada.”.
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SCHEDULE Section 6
SCHEDULE ADDED TO THE PRINCIPAL ACT
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SCHEDULE VII Section 154
PART I
ANNEX I TO THE CONVENTION
DEFINITION OF VALUE
ARTICLE I.
(1) For the purposes of levying ad valorem duties of customs, the value of any goods imported for home use shall be taken to be the normal price, that is to say, the price which they would fetch at the time when the duty becomes payable on a sale in the open market between a buyer and a seller independent of each other.
(2) The normal price of any imported goods shall be determined on the following assumptions:
(a) that the goods are delivered to the buyer at the port or place of introduction into the country of importation;
(b) that the seller bears all costs, charges and expenses incidental to the sale and to the delivery of the goods at the port or place of introduction, which are hence included in the normal price;
(c) that the buyer bears any duties or taxes applicable in the country of importation, which are hence not included in the normal price.
ARTICLE II.
(1) A sale in the open market between a buyer and a seller independent of each other presupposes:
(a) that the price is the sole consideration;
(b) that the price is not influenced by any commercial, financial or other relationship, whether by contract or otherwise, between the seller or any person associated in business with him and the buyer or any person associated in business with him, other than the relationship created by the sale itself;
(c) that no part of the proceeds of any subsequent resale, other disposal or use of the goods will accrue, either directly or indirectly, to the seller or any person associated in business with him.
(2) Two persons shall be deemed to be associated in business with one another if, whether directly or indirectly, either of them has any interest in the business or property of the other or both have a common interest in any business or property or some third person has an interest in the business or property of both of them.
ARTICLE III.
When the goods to be valued
(a) are manufactured in accordance with any patented invention or are goods to which any protected design has been applied; or
(b) are imported under a foreign trade mark; or
(c) are imported for sale, other disposal or use under a foreign trade mark,
SCHEDULE—continued
the normal price shall be determined on the assumption that it includes the value of the right to use the patent, design or trade mark in respect of the goods.
PART II
ANNEX II TO THE CONVENTION
INTERPRETATIVE NOTES
TO THE DEFINITION OF VALUE
NOTE 1.
The time when the duty becomes payable, referred to in paragraph (1) of Article I shall be determined in accordance with the legislation of each country and may be, for example, the time at which the goods declaration for home use is duly lodged or registered, the time of payment of customs duty or the time of release of the goods.
NOTE 2.
The “costs, charges and expenses” mentioned in Article I, paragraph (2) (b) include, inter alia, any of the following:
—carriage and freight;
—insurance;
—commission;
—brokerage;
—costs, charges and expenses of drawing up outside the country of importation documents incidental to the introduction of the goods into the country of importation, including consular fees;
—duties and taxes applicable outside the country of importation except those from which the goods have been exempted or have been or will be relieved by means of refund;
—cost of containers excluding those which are treated as separate articles for the purpose of levying duties of customs; cost of packing (whether for labour, materials or otherwise);
—loading charges.
NOTE 3.
The normal price shall be determined on the assumption that the sale is a sale of the quantity to be valued.
NOTE 4.
Where the determination of the value or of the price paid or payable depends upon factors which are expressed in a currency other than that of the country of importation, the foreign currency shall be converted into the currency of the importing country at the official rate of exchange of that country.
NOTE 5.
The object of the Definition of Value is to make it possible in all cases to calculate the duties payable on the basis of the price at which imported goods are freely available to any buyer on a sale in the open market at the port or place of introduction into the country of importation. It is a concept for general use and is applicable whether or not the goods are in fact imported under a contract of sale, and whatever the terms of that contract.
But the application of the
Definition implies an enquiry into current prices at the time of valuation. In
practice, when imported goods are the subject of a
(a) to proper safeguards aimed at preventing evasion of duty by means of fictitious or colourable contracts or prices; and
(b) to such adjustments of that price as may be considered necessary on account of circumstances of the sale which differ from those envisaged in the Definition of Value.
SCHEDULE—continued
Adjustment under paragraph (b) above may in particular be required with reference to freight and other expenses dealt with in paragraph (2) of Article I and Note 2 of the Addendum to Article I, or with reference to discounts or other reductions in price granted in favour of sole agents or sole concessionaires, or to any abnormal discount or any other reduction from the ordinary competitive price.
NOTE 1.
The provisions of Article III do not restrict the provisions of Articles I and II.
NOTE 2.
The provisions of Article III may also be applied to goods imported for sale, other disposal or use, after further manufacture, under a foreign trade mark.
NOTE 3.
A trade mark shall be treated as a foreign trade mark if it is the mark of:
(a) [D1] any person by whom the goods to be valued have been grown, produced, manufactured, offered for sale or otherwise dealt with outside the country of importation; or
(b)[D2] any person associated in business with any
person referred to in
(c) [D3] any person whose rights in the mark are restricted by an agreement with any person referred to in(a) [D4] or (b[D5] ) above.
It is recommended that the concept of value expressed by the Definition and these Interpretative Notes be employed for the valuing of all goods subject to customs declaration, including duty-free goods and goods liable to specific customs duties.
1. Act No. 41, 1976; assented to 2 June 1976.
2. Act No. 6, 1901, as amended by No. 21, 1906; Nos. 9 and 36, 1910; No. 19, 1914; No. 10,1[D6] 916; No. 19,1[D7] 922; No. 12,1[D8] 923; No. 22,1[D9] 925; No. 6,1[D10] 930; Nos. 7 and 45, 1934; No. 7, 1935; No. 85, 1936; No. 54, 1947; No. 45,1[D11] 949; Nos. 56 and 80, 1950; No. 56, 1951; No. 108, 1952; No. 47, 1953; No. 66,1[D12] 954; No. 37, 1957; No. 54, 1959; Nos. 42 and 111, 1960; No. 48, 1963; Nos. 29, 82 and 133, 1965; No. 28, 1966; No. 54, 1967; Nos. 14 and 104, 1968; Nos. 12 and 134, 1971; No. 162,1[D13] 973; No.2[D14] 16,1[D15] 973 (as amended by No. 20,1[D16] 974); Nos. 28 and 120,1[D17] 974; and Nos. 56,7[D18] 7 and 107,1[D19] 975.
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