EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS REGULATIONS (AMENDMENT)
STATUTORY RULES 1990 NO. 222
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS
Section 270 of the Customs Act 1901 (“the Act”) provides in part that “The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act …”
Paragraph 126 (o) of the Customs Regulations (“the Regulations”) prescribes a refund circumstance to enable the refunding of customs duty where goods were entered for home consumption under section 68 of the Act and were wholly used in the manufacture of goods on which excise duty has been paid under the Excise Act 1901.
Regulation 181 of the Regulations prescribes particulars which must appear on an application for a tariff concession order under paragraph 269G(2)(a) of the Act.
Regulation 183A of the Regulations prescribes the period within which an application for review by the Anti-Dumping Authority must be made in terms of subsection 269TF(1) of the Act.
Background
The Statutory Rules effect a number of changes to the Customs Regulations as follows:
a) Paragraph (o) is removed from regulation 126 because the problem of double payment of excise duty has been resolved, making this refund circumstance unnecessary;
b) Regulation 128C is repealed as a consequence of the removal of the refund circumstance referred to above;
c) Regulation 183A is repealed and a new regulation 183A substituted to make clear how the time period is to run, within which an application is to be made for review by the Anti-Dumping Authority of a negative prima facie case decision or a negative preliminary finding by the Australian Customs Service in dumping investigations.
Details of the amendments are as follows:
Regulation 1: removes paragraph (o) from regulation 126 because the refund circumstance is no longer necessary.
Section 6G of the Excise Tariff Act 1921 enabled the payment of customs duty on goods imported for use in the manufacture of excisable goods to be deferred until the excisable goods in which the imported goods were incorporated were entered for home consumption. The provision then countenanced the collection of customs duty only on the “imported” component in the excisable mixture, and then only at the rate, if any, by which the customs duty rate exceeded the excise duty rate on the excisable goods. Whilst this device effectively prevented the double payment of excise duty, it proved to be administratively cumbersome, especially as the imported product frequently became the subject of more than one excisable mixture. Thus, new arrangements were introduced in the Excise Tariff Amendment Act 1989. Section 6G of the Excise Tariff Act 1921 was repealed and a new item 44 added to the Fourth Schedule to the Customs Tariff Act 1987, which enables the ‘industry protection’ element only of customs duty to be collected prior to the use of the goods in the manufacture of an excisable product. The revenue element of customs duty (which mirrors the excise duty amount) is effectively deferred until the excisable product (which now contains an imported component in the mixture) is entered for home consumption at which time excise duty on the complete product is levied in the usual manner.
Regulation 2; repeals regulation 128C as a consequence of the amendment effected by regulation 1 above.
Regulation 128C prescribes the amount of the refund, rebate or remission of duty that may be made in a circumstance referred to in paragraph 126 (o).
Regulation 3; makes a technical amendment to regulation 181 by substituting “Manager” for “Assistant Comptroller-General” in paragraph 181(2) (c). This amendment was overlooked when regulation 181 was amended via Statutory Rule No. 260 of 1989, and brings paragraph 181(2)(c) into line with the remainder of that subregulation.
Regulation 4: repeals regulation 183A and substitutes a new regulation 183A to correct the fact that no particular day is currently mentioned from which the 30 day period that is prescribed for the making of applications for review by the Anti-Dumping Authority of certain Customs dumping decisions runs. The new regulation 183A prescribes the period under subsection 269TF(1) of the Act as the period ending at the expiry of 30 days after either:
notification of a decision under subsections 269TC(1) or (2) to reject an application (ie, a negative prima facie case); or
notification of a negative preliminary finding under subsection 269TD(3).
Overview
The Customs Regulations (Amendment) Statutory Rules 1990 No. 222 were enacted to make amendments to the Customs Regulations under the Customs Act 1901, addressing specific issues related to customs duty refunds and the review process for anti-dumping decisions. The Regulations were issued by the authority of the Minister of State for Small Business and Customs, as stated in the explanatory statement. The policy objective of these amendments was to streamline customs duty refund processes and clarify the timeline for reviewing anti-dumping authority decisions, ensuring efficiency and administrative convenience. The changes included the removal of a redundant refund circumstance for customs duty, the repeal of a corresponding regulation, and a technical amendment to an application form requirement, alongside a clarification of the timeframe for reviewing certain dumping investigation decisions.
Scope and Application
The Customs Regulations (Amendment) Statutory Rules 1990 No. 222, issued under the authority of the Minister of State for Small Business and Customs, modify the Customs Regulations to reflect changes in legislative and administrative processes, particularly concerning customs duty refunds and the application process for tariff concession orders and reviews by the Anti-Dumping Authority. These regulations apply to all entities and persons involved in customs transactions, including importers, manufacturers, and customs brokers, across Australia. The amendments primarily affect those dealing with goods that were previously subject to customs duty and excise duty, as well as those seeking tariff concessions or challenging anti-dumping decisions. The changes clarify and streamline the process for applying for reviews and eliminate unnecessary administrative burdens. Notably, the removal of paragraph (o) from regulation 126 addresses the previously cumbersome practice of deferring customs duty payments, which is now superseded by the Excise Tariff Amendment Act 1989. Additionally, regulation 183A is updated to specify the exact timeframe for applications for review by the Anti-Dumping Authority, ensuring that stakeholders have clear guidance on the procedural aspects of their engagements with customs and trade regulations.
Key Provisions
The Customs Regulations (Amendment) Statutory Rules 1990 No. 222 (the "Amendments") introduce several significant changes to the Customs Regulations, which are governed by the Customs Act 1901 (the "Act"). These changes primarily focus on the removal of outdated refund circumstances, the clarification of certain application procedures, and the correction of a technical oversight. Regulation 1 removes paragraph (o) from regulation 126, which was previously used to enable the refunding of customs duty where goods were used in the manufacture of excisable goods (s 126(o)). This amendment is made because the problem of double payment of excise duty has been resolved through legislative changes in the Excise Tariff Amendment Act 1989, making the refund circumstance unnecessary (s 126(o)). As a result, regulation 128C, which prescribes the amount of refund, rebate, or remission of duty in the circumstance referred to in paragraph 126(o), is also repealed by Regulation 2 (s 128C).
Further, Regulation 3 makes a technical amendment to regulation 181 by substituting “Manager” for “Assistant Comptroller-General” in paragraph 181(2)(c). This amendment rectifies an oversight that occurred when regulation 181 was last amended via Statutory Rule No. 260 of 1989, ensuring that paragraph 181(2)(c) aligns with the rest of the subregulation (s 181(2)(c)). Lastly, Regulation 4 repeals regulation 183A and substitutes a new regulation 183A to clarify the time period within which an application for review by the Anti-Dumping Authority must be made. The new regulation 183A specifies that the 30-day period runs from the expiry of either the notification of a decision under subsections 269TC(1) or (2) to reject an application (i.e., a negative prima facie case) or the notification of a negative preliminary finding under subsection 269TD(3) (s 269TF(1)).
The parties or entities governed by these regulations must adhere to the new requirements. For instance, they must no longer seek refunds under the circumstances previously allowed by regulation 126(o) since this has been rendered unnecessary (s 126(o)). Additionally, applications for tariff concession orders must now include particulars consistent with the updated regulation 181 (s 181). Furthermore, any party seeking to review a negative prima facie case decision or a negative preliminary finding by the Australian Customs Service in dumping investigations must ensure their application for review is submitted within 30 days from the notification date, as prescribed by the new regulation 183A (s 269TF(1)).
Failure to comply with the requirements of these regulations may lead to various consequences, including administrative penalties, financial liabilities, or other legal repercussions. For instance, applying for a refund under circumstances that are no longer permissible could result in the application being denied and potentially incur additional administrative costs. Similarly, missing the specified 30-day period for applying for a review by the Anti-Dumping Authority could result in the application being dismissed, with no recourse to review the dumping decision. While the specific penalties are not outlined in the Explanatory Statement, breaches of customs regulations generally may attract fines or other penalties as stipulated by the relevant Acts and regulations.