Customs Amendment Regulations 2004 (No. 2) (Cth)

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Customs Amendment Regulations 2004 (No. 2)1

Statutory Rules 2004 No. 1652

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Customs Act 1901.

Dated 24 June 2004

P. M. JEFFERY

Governor-General

By His Excellency’s Command

CHRISTOPHER MARTIN ELLISON

Minister for Justice and Customs

1Name of Regulations

These Regulations are the Customs Amendment Regulations 2004 (No. 2).

2Commencement

These Regulations commence on the date of their notification in the Gazette.

3Amendment of Customs Regulations 1926

Schedule 1 amends the Customs Regulations 1926.

Schedule 1Amendment

(regulation 3)

  

[1]Regulations 180 and 181

substitute

180Determination of cost of production or manufacture (section 269TAAD of the Act)

(1)

For subsection 269TAAD (5) of the Act, this regulation sets out:

  1. (a)

    the manner in which the Minister must, for paragraph 269TAAD (4) (a) of the Act, work out an amount (the amount) to be the cost of production or manufacture of like goods in a country of export; and

  2. (b)

    factors that the Minister must take account of for that purpose.

  1. (2)

    If:

    1. (a)

      an exporter or producer of like goods keeps records relating to the like goods; and

    2. (b)

      the records:

      1. (i)

        are in accordance with generally accepted accounting principles in the country of export; and

      2. (ii)

        reasonably reflect the costs associated with the production or manufacture of the like goods;

the Minister must work out the amount by using the information set out in the records.

  1. (3)

    The Minister must take account of the information available to the Minister about the allocation of costs in relation to like goods, in particular to establish:

    1. (a)

      appropriate amortisation and depreciation periods; and

    2. (b)

      allowances for capital expenditures and other development costs;

including information given by the exporter or producer of the goods mentioned in subregulation (1) that demonstrates that the exporter or producer of the goods has historically used the method of allocation.

  1. (4)

    If:

    1. (a)

      the Minister identifies a non-recurring item of cost that benefits:

      1. (i)

        current production of the goods mentioned in subregulation (1); or

      2. (ii)

        future production of those goods; or

      3. (iii)

        current and future production of those goods; and

    2. (b)

      the information mentioned in subregulation (3) does not identify the item;

the Minister must adjust the costs identified by the exporter or producer to take that item into account.

  1. (5)

    If:

    1. (a)

      the Minister identifies a circumstance in which costs, during the investigation period, are affected by start-up operations; and

    2. (b)

      the information mentioned in subregulation (3) does not identify the circumstance;

the Minister must adjust the costs identified in the information:

  1. (c)

    to take the circumstance into account; and

  2. (d)

    to reflect:

    1. (i)

      the costs at the end of the start-up period; or

    2. (ii)

      if the start-up period extends beyond the investigation period — the most recent costs that can reasonably be taken into account by the Minister during the investigation.

  1. (6)

    For this regulation, the Minister may disregard any information that he or she considers to be unreliable.

  2. (7)

    A word or expression that is defined in Part XVB of the Act and used in this regulation has the meaning given by that Part.

181Determination of administrative, selling and general costs (section 269TAAD of the Act)

  1. (1)

    For subsection 269TAAD (5) of the Act, this regulation sets out:

    1. (a)

      the manner in which the Minister must, for paragraph 269TAAD (4) (b) of the Act, work out an amount (the amount) to be the administrative, selling and general costs associated with the sale of like goods in a country of export; and

    2. (b)

      factors that the Minister must take account of for that purpose.

  2. (2)

    If:

    1. (a)

      an exporter or producer of like goods keeps records relating to the like goods; and

    2. (b)

      the records:

      1. (i)

        are in accordance with generally accepted accounting principles in the country of export; and

      2. (ii)

        reasonably reflect the administrative, general and selling costs associated with the sale of the like goods;

the Minister must work out the amount by using the information set out in the records.

  1. (3)

    If the Minister is unable to work out the amount by using the information mentioned in subregulation (2), the Minister must work out the amount:

    1. (a)

      by identifying the actual amounts of administrative, selling and general costs incurred by the exporter or producer in the production and sale of the same general category of goods in the domestic market of the country of export; or

    2. (b)

      by identifying the weighted average of the actual amounts of administrative, selling and general costs incurred by other exporters or producers in the production and sale of like goods in the domestic market of the country of export; or

    3. (c)

      by using any other reasonable method and having regard to all relevant information.

  2. (4)

    The Minister must take account of the information available to the Minister about the allocation of costs, in particular to establish:

    1. (a)

      appropriate amortisation and depreciation periods; and

    2. (b)

      allowances for capital expenditures and other development costs;

including information given by the exporter or producer of goods that demonstrates that the exporter or producer of the goods has historically used the method of allocation.

  1. (5)

    If:

    1. (a)

      the Minister identifies a non-recurring item of cost that benefits:

      1. (i)

        current production of goods; or

      2. (ii)

        future production of goods; or

      3. (iii)

        current and future production of goods; and

    2. (b)

      the information mentioned in subregulation (4) does not identify the item;

the Minister must adjust the costs identified by the exporter or producer to take that item into account.

  1. (6)

    If:

    1. (a)

      the Minister identifies a circumstance in which costs, during the investigation period, are affected by start-up operations; and

    2. (b)

      the information mentioned in subregulation (4) does not identify the circumstance;

the Minister must adjust the costs identified in the information:

  1. (c)

    to take the circumstance into account; and

  2. (d)

    to reflect:

    1. (i)

      the costs at the end of the start-up period; or

    2. (ii)

      if the start-up period extends beyond the investigation period — the most recent costs that can reasonably be taken into account by the Minister during the investigation.

  1. (7)

    For this regulation, the Minister may disregard any information that he or she considers to be unreliable.

  2. (8)

    A word or expression that is defined in Part XVB of the Act and used in this regulation has the meaning given by that Part.

181ADetermination of profit (subsection 269TAC (5B) of the Act)

  1. (1)

    For subsection 269TAC (5B) of the Act, this regulation sets out:

    1. (a)

      the manner in which the Minister must, for subparagraph 269TAC (2) (c) (ii) or (4) (e) (ii) of the Act, work out an amount (the amount) to be the profit on the sale of goods; and

    2. (b)

      factors that the Minister must take account of for that purpose.

  2. (2)

    For subregulation (1), the Minister must, if reasonably possible, work out the amount by using data relating to the production and sale of like goods by the exporter or producer of the goods in the ordinary course of trade.

  3. (3)

    If the Minister is unable to work out the amount by using the data mentioned in subregulation (2), the Minister must work out the amount:

    1. (a)

      by identifying the actual amounts realised by the exporter or producer from the sale of the same general category of goods in the domestic market of the country of export; or

    2. (b)

      by identifying the weighted average of the actual amounts realised by other exporters or producers from the sale of like goods in the domestic market of the country of export; or

    3. (c)

      subject to subregulation (4), by using any other reasonable method and having regard to all relevant information.

  4. (4)

    If:

    1. (a)

      the Minister uses a method of calculation under paragraph (3) (c) to work out an amount representing the profit of the exporter or producer of the goods; and

    2. (b)

      the amount worked out exceeds the amount of profit normally realised by other exporters or producers on sales of goods of the same general category in the domestic market of the country of export;

the Minister must disregard the amount by which the amount worked out exceeds the amount of profit normally realised by other exporters or producers.

  1. (5)

    For this regulation, the Minister may disregard any information that he or she considers to be unreliable.

  2. (6)

    A word or expression that is defined in Part XVB of the Act and used in this regulation has the meaning given by that Part.

Notes

1. These Regulations amend Statutory Rules 1926 No. 203, as amended by 1927 Nos. 17, 95 and 121; 1928 Nos. 47, 57, 74 and 95; 1929 Nos. 25, 56 and 127; 1930 Nos. 91, 138 and 140; 1931 Nos. 16, 42 and 90; 1932 No. 90; 1933 Nos. 21, 105, 106 and 129; 1934 Nos. 109 and 127; 1935 Nos. 1, 41, 69 and 113; 1936 Nos. 49 and 163; 1938 No. 111; 1939 No. 157; 1940 Nos. 203 and 256; 1946 Nos. 127 and 161; 1947 Nos. 29, 83, 94 and 152; 1948 No. 156; 1949 Nos. 34, 78, 95 and 111; 1950 No. 17; 1951 Nos. 34, 38, 71, 99, 106, 109 and 159; 1952 No. 96; 1953 No. 102; 1954 No. 21; 1955 Nos. 15, 32 and 66; 1956 Nos. 71, 83, 91 and 127; 1957 Nos. 57 and 76; 1958 No. 86; 1959 No. 106; 1960 Nos. 29 and 70; 1961 Nos. 60 and 144; 1962 Nos. 102 and 103; 1963 No. 149; 1964 No. 141; 1965 Nos. 86, 121 and 194; 1966 Nos. 15 and 173; 1967; Nos. 9 and 179; 1968 No. 68; 1969 Nos. 69, 77, 133, 152 and 186; 1970 Nos. 104, 113 and 170; 1971 Nos. 9, 59 and 170; 1972 No. 96; 1973 Nos. 155, 251, 257 and 268; 1974 Nos. 29 and 112; 1976 Nos. 261 and 262; 1977 Nos. 68, 137 and 188; 1978 Nos. 32, 147, 180 and 195; 1979 Nos. 181, 275 and 277; 1980 Nos. 109, 255, 372 and 377; 1981 Nos. 162, 265 and 382; 1982 Nos. 140, 255, 311, 335 and 404 and Act No. 108, 1982; Statutory Rules 1983 Nos. 92, 93, 327, 328, 329 and 330 and Act No. 101, 1983; Statutory Rules 1984 Nos. 13, 18, 137, 319 and 462; 1985 Nos. 12, 71, 76, 126, 306 and 308; 1986 Nos. 77, 91, 94, 144, 174, 175, 176, 215, 248, 361, 363, 367 and 368; 1987 Nos. 72, 102, 103, 124, 140, 162, 244, 297 and 316; 1988 Nos. 111, 179, 207, 260 and 270; 1989 Nos. 100, 101, 159, 160, 161, 162, 163, 243, 260 and 409; 1990 Nos. 6, 8, 123, 147, 148, 189, 217, 220, 222, 248, 274 and 450; 1991 Nos. 30, 109, 129, 139, 140, 228, 290, 316 and 384; 1992 Nos. 72, 175, 277 (as amended by 1992 No. 326), 328, 343, 344, 447 and 464; 1993 Nos. 66, 158 and 339; 1994 Nos. 53, 82, 183, 311, 312, 351, 366, 367, 391 and 435; 1995 Nos. 99, 136, 244, 313, 321, 352, 423 and 424; 1996 Nos. 42, 43, 134, 326 and 327; 1997 Nos. 52, 70, 79, 89, 128, 131, 255, 284, 378, 379 and 422; 1998 Nos. 38, 101, 212, 229, 276 and 278; 1999 Nos. 35, 131, 149, 270, 323 and 330; 2000 Nos. 13, 74, 93, 141, 142, 173, 174, 210, 241, 252, 287, 349 and 350; 2001 Nos. 30, 63, 89, 119, 211 and 335; 2002 Nos. 28, 98, 138, 195, 256, 310, 328 and 329; 2003 Nos. 16, 51, 65, 178, 186, 227, 237, 249 and 319; 2004 No. 88.

2. Notified in the Commonwealth of Australia Gazette

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