Customs Amendment Regulations 2001 (No. 5) 2001 No. 211
EXPLANATORY STATEMENT
STATUTORY RULES 2001 No. 211
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs Amendment Regulations 2001 (No. 5)
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 Customs Act.
The purpose of the amending Regulations is to insert into the Customs Regulations 1926 (the Regulations) a new refund circumstance relating to certain automotive goods and to allow importers of automotive goods 12 months from the date on which they offset duty payable on those goods to apply for certain refunds.
The Automotive Competitiveness and Investment Scheme (ACIS) which was established by the ACIS Administration Act 1999 (the ACIS Administration Act) commenced on 1 January 2001. Under ACIS registered participants can earn ACIS duty credits. Those credits can be earned on the production of motor vehicles, engine or engine components and investment in certain plant and equipment and research and development. Under subsection 4(10) of the ACIS Administration Act these credits can, amongst other things, be transferred to other persons and applied to the importation of certain eligible imports in order to offset customs duty payable on those imports.
Item 41E of Schedule 4 of the Customs Tariff Act 1995 (item 41E) provides a concessional rate of duty on certain goods prescribed by by-law, including components for such goods, imported by a person who owns duty credit under ACIS that can be applied in respect of the importation of those goods and who applies that credit to that importation.
Item 2 of Schedule 1 to the amending Regulations inserts into the Regulations a new refund circumstance which will allow importers who paid duty on certain automotive goods and who transferred duty credits to the Commonwealth to apply for a refund of the duty paid on those goods. An application can only be made in respect of goods entered for home consumption on or after 1 January 2001, being the date on which registered participants started earning duty credits. Further a refund will not be paid if a previous refund has made in respect of those duty credits.
Each registered participant in ACIS must provide quarterly returns to the Secretary of the Department of Industry, Science and Resources (the Secretary). The Secretary then calculates the amount of credits that the participant has earned and places them on the ACIS ledger. Once the duty credits have been placed on the ledger the person who owns those credits can apply them to the importation of relevant goods. Since returns are only required quarterly, duty credits could not be placed on the ledger until after 1 April 2001. Hence, registered participants could not enter relevant imports under item 41E until after 1 April 2001. The new refund circumstance will allow those participants to apply for a refund of duty paid on relevant goods imported on or after 1 January 2001 provided the registered participant transfers duty credits to the Commonwealth.
Under the new refund circumstance an importer will also be able to apply for a refund:
• where they imported relevant automotive goods but did not own any duty credits at the time of importation and they subsequently become the owner of duty credits;
• where they imported goods under item 41E offsetting some of the duty payable on the goods and they subsequently become the owner of additional duty credits; and
• where they failed to import the goods under item 41E even though they owned duty credits at the time.
Item 3 of Schedule 1 to the amending Regulations provides that the amount of the refund described above should not exceed the amount of duty credit transferred to the Commonwealth.
Item 4 of Schedule 1 to the amending Regulations sets out the times in which an application for a refund, remission or rebate may be made.
Details of the amending Regulations are set out in the Attachment.
The amending Regulations commenced on gazettal.
ATTACHMENT
Customs Amendment Regulations 2001 (No. 5)
Regulation 1 - Name of regulations
Regulation 1 provides that the amending Regulations are named the "Customs Amendment Regulations 2001 (No. 5)".
Regulation 2 - Commencement
Regulation 2 provides that the amending Regulations are to commence on gazettal.
Regulation 3 - Amendment of Customs Regulations 1926
Regulation 3 provides that Schedule 1 amends the Customs Regulations 1926 (the Regulations).
Schedule 1 - Amendments
Item 1 - Paragraph 126(1)(y)
Item 1 of Schedule 1 to the amending Regulations contains a technical amendment to allow an additional refund circumstance to be inserted at the end of subregulation 126(1) of the Regulations.
Item 2 - After paragraph 126(1)(y)
Item 2 of Schedule 1 to the amending Regulations inserts a new refund circumstance relating to automotive goods into subregulation 126(1) of the Regulations.
Under this new refund circumstance a refund will be paid where duty has been paid on goods that are classified under a subheading of heading 8702, 8703 or 8704 of Schedule 3 to the Customs Tariff Act 1995 or are components for such goods and are prescribed by a by-law made for the purposes of item 41E of Schedule 4 to the Customs Tariff Act 1995 (item 41E). These are the same goods that have or could have been imported under item 41E. A refund will be paid in respect of those goods if:
• the goods were entered for home consumption on or after 1 January 2001;
• the owner of the goods has transferred duty credits to the Commonwealth; and
• a refund has not already been paid because of the transfer of those credits to the Commonwealth.
This new refund circumstance will allow those registered participants who were allocated duty credits after 1 April 2001 to apply for refunds on relevant automotive goods that they imported on or after 1 January 2001.
Under the new refund circumstance an importer will also be able to apply for a refund in the following circumstances:
• where they imported relevant automotive goods but did not own any duty credits at the time of importation and they subsequently become the owner of duty credits;
• where they imported goods under item 41E offsetting some of the duty payable on the goods and they subsequently become the owner of additional duty credits; and
• where they failed to import the goods under item 41E even though they owned duty credits at the time.
Item 3 - After subregulation 126(5)
Item 3 of Schedule 1 to the amending Regulations inserts into the Regulations a new subregulation 126(6) which makes it clear that the amount of refund made under the new circumstance described above cannot exceed the amount of duty credit transferred to the Commonwealth. For example, an importer may have imported automotive goods and paid $100 duty in respect of them. The importer then earns or acquires 50 duty credits and transfers them to the Commonwealth. The importer can then apply for a refund of the duty paid on the goods, however the refund cannot exceed $50 (being the amount of the duty credit transferred).
Item 4 - After subregulation 128A(6)
Item 4 of Schedule 1 to the amending Regulations inserts into regulation 128A of the Regulations a new subregulation (7).
Subsection 163(3) of the Customs Act 1901 (the Act) provides that in relation to refunds the amount of duty in respect of goods that are imported under item 41E is to be taken to be sum of the amount of any money paid as customs duty and the amount of duty offset by duty credits. Hence, where goods are imported under item 41E and they meet the criteria for a refund contained in regulation 126 of the Regulations the amount of duty credits will be added to the amount of cash paid as duty and this amount will be taken to be the amount of duty paid in respect of the goods for the purposes of the refund.
Regulation 128A of the Regulations sets out the times in which an application for a refund, remission or rebate may be made. In respect of many refund circumstances a refund application may be made within 12 months after the date on which duty was paid (subregulations 128A(3) and (5) refer). In respect of some goods imported under item 41E duty credits will be used to offset all of duty payable on the goods and no duty will be paid on the goods. New subregulation 128A(7) deems the date on which duty was paid to include the date on which duty was offset.