EXPLANATORY STATEMENT
CEO Instrument of Approval No. 99 of 2005
Customs Act 1901
Subsection 4A(1) of the Customs Act 1901 (the Act) defines an approved form as a form that is approved, by instrument in writing, by the Chief Executive Officer of Customs (the CEO). Subsection 4A(2) of the Act provides that the instrument by which a form is approved under subsection 4A(1), is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Under paragraph 6(d) of the Legislative Instruments Act 2003, approved forms are legislative instruments.
Background
Section 163 of the Act relates to applications for refunds, rebates and remissions of duty. Under subsection 163(1AA) of the Act, the procedures to be followed by Customs in dealing with such applications may be prescribed in the Customs Regulations 1926 (the Regulations).
Regulation 128AAA of the Regulations prescribes the procedures for dealing with applications for refunds, rebates and remissions of duty. It allows a Collector to require an applicant to deliver documents or information in relation to his or her application, either by document or by computer.
Subregulation 128AAA(4) provides that a documentary requirement to deliver documents or information must be in an approved form. The ‘Refund Query Advice’ form has been previously approved as the approved form for the purposes of requiring documents or information under subregulation 128AAA(4) of the Regulations. However, the new “Refund Query Advice” form is necessary as a result of amendments to the Act made by the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 (the ITM Act).
Section 68 of the Act provides that goods that are imported into Australia and goods that are intended to be imported into Australia must be entered for home consumption or warehousing. Prior to 19 July 2005, an entry for home consumption or warehousing was made under section 71A of the Act as an import entry. The ‘Refund Query Advice’ form previously approved requires details of the import entry, to which the duty that is the subject of the refund application relates, to be provided.
On 19 July 2005, section 71A was repealed by the ITM Act and replaced with three new provisions. An entry for home consumption is now made under section 71A of the Act (as an import declaration) or under section 71DB of the Act (as a request for cargo release). An entry for warehousing is made under section 71DH of the Act (as a warehouse declaration).
Therefore, as a consequence of the repeal of section 71A and the new method of entering goods for home consumption under an import declaration, the new “Refund Query Advice” form has been approved and requires the details of the import declaration, as opposed to import entry, to be provided.
CEO Instrument of Approval No. 99 of 2005 approves the “Refund Query Advice (B760 SEP/05)” form as an approved form for the purposes of making, by document, a requirement for the delivery of documents or information in respect of an application for refund of duty in respect of an import declaration made under the amended Act (as defined in section 4 of the Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act 2003).
Consultation
No consultation was undertaken under section 17 of the Legislative Instruments Act 2003 before this instrument was made as it is of a minor or machinery nature and does not substantially alter existing arrangements.
Commencement
The instrument commences on the day after it is registered.
Overview
The Customs Act 1901, enacted by the Australian Parliament, governs the regulation and administration of customs and excise duties. The Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001 introduced significant changes to the customs process, including the repeal of section 71A, which previously governed entries for home consumption and warehousing. To address the gap created by these changes and ensure the smooth administration of duty refunds, rebates, and remissions, the Customs Regulations 1926 were updated to reflect the new entry procedures. CEO Instrument of Approval No. 99 of 2005 was introduced to approve a new "Refund Query Advice (B760 SEP/05)" form, which aligns with the revised customs entry requirements under the amended Customs Act. This legislative instrument was approved by the Chief Executive Officer of Customs and is intended to facilitate the proper documentation and information submission for refund applications under the updated legislative framework.
Scope and Application
CEO Instrument of Approval No. 99 of 2005 pertains to the Customs Act 1901 and specifically concerns the approval of a form for use in applications for refunds, rebates, and remissions of duty under section 163 of the Act. This form, the "Refund Query Advice (B760 SEP/05)," has been approved by the Chief Executive Officer of Customs and serves as a legislative instrument under the Legislative Instruments Act 2003. The application of this instrument is limited to the entities and individuals involved in making applications for refunds, rebates, or remissions of duty under the Customs Act, particularly those who must provide documents or information in relation to such applications. The form is designed to comply with the procedural requirements set out in Regulation 128AAA of the Customs Regulations 1926, which has been updated to reflect changes in the Act due to the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001. The geographic reach of this approval is within the Commonwealth of Australia, as it relates to the Customs Act which applies nationally. There are no specific exclusions or thresholds outlined in the instrument itself, though the applicability is contingent upon the specific provisions of the Customs Act and associated regulations. The instrument does not extend or restrict application through subordinate instruments but provides a necessary update to align with legislative changes.
Key Provisions
The primary operative section of the CEO Instrument of Approval No. 99 of 2005 (section 4) approves the "Refund Query Advice (B760 SEP/05)" form as an approved form for the purposes of requiring, by document, the delivery of documents or information in relation to an application for refund of duty in respect of an import declaration made under the amended Customs Act 1901. This form is specifically designed to address the changes brought about by the Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001, which replaced the previous method of making entries for home consumption and warehousing with new procedures. The approved form now requires details of the import declaration, rather than the former import entry, to be provided.
The obligations and requirements imposed by the Act and the Regulations on parties or entities governed by them include the necessity for applicants to provide specific documents or information in the approved form when making applications for refunds, rebates, or remissions of duty. Regulation 128AAA of the Customs Regulations 1926 mandates that these applications must be made in accordance with the procedures prescribed, which include the use of the approved form for documentary requirements. This ensures that all relevant information is delivered in a standardised and approved format, facilitating efficient processing of the applications by Customs.
In terms of potential consequences for breach, the Act and the Regulations do not explicitly state civil or criminal penalties for failure to comply with the requirements to use the approved form for refund applications. However, the use of an unapproved form could result in delays or refusals in processing refund applications, which may lead to financial and logistical inconveniences for the applicant. Additionally, persistent non-compliance could potentially lead to further scrutiny or investigations by Customs, which might result in more severe administrative consequences.
The explanatory statement clarifies that no consultation was undertaken for this instrument as it is considered to be of a minor or machinery nature and does not substantially alter existing arrangements. The instrument comes into effect on the day after it is registered, ensuring that the new form is promptly available for use in compliance with the updated legislative requirements.