Customs Regulations (Amendment) 1992 No. 277
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 277
Issued by the Authority of the Minister for Small Business, Construction and Customs
Customs Act 1901
Customs Regulations (Amendment)
Section 270 of the Customs Act 1901 (the Principal Act) provides in part that:
"(1) he Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed ... for giving effect to this Act or for the conduct of any business relating to the Customs, ..."
The Regulations amend the Customs Regulations (the Regulations) to:
(a) effect a number of amendments consequential to the introduction of Electronic Lodgement in the Customs and Excise Legislation Amendment Act 1992 (the CELA Act);
(b) amend Schedule 2 to enable "baby walkers" to be eligible for duty free importation via a Tariff Concession Order; and
(c) repeal regulation 183AA.
Background
(a) Implementation of Electronic Lodgement
The Principal Act was amended by the CELA Act to provide the legislative framework for the electronic transmission to the Australian Customs Service (Customs) of information concerning imported goods and the electronic lodgement of import entries in respect of such goods (Electronic Lodgement). The Electronic Lodgement provisions of the CELA Act commenced on 1 September 1992.
These Regulations effect a number of amendments to the Regulations as a consequence of the Electronic Lodgement amendments to the Principal Act. The amendments include the omission of 14 regulations and 3 prescribed forms which have become redundant under the new regime, the correction of crossreferences to sections in the Principal Act and the introduction of 4 new regulations which prescribe particulars under the new provisions of the Principal Act.
The main changes to the Regulations to give effect to the new regime are:
(i) Working days and hours of business
Regulation 19 prescribes the working days and hours of business of Customs for the performance of specific functions pursuant to section 28 of the Principal Act. Subregulation 3.1 remakes the Table in regulation 19 to include the hours of business for:
- receiving computer import entries via the COMPILE computer system;
- receiving documentary import entries;
- receiving computer export entries via the EXIT computer system; and
- receiving documentary export entries.
The need to prescribe the hours of business for receiving either documentary or computer import entries arises as the new "Special Clearance Goods" provision in section 71 of the Act only allows certain classes of goods to be delivered into home consumption without entry if the goods become subject to Customs control outside of the hours of business for lodging import entries as prescribed under section 28 of the Principal Act.
(ii) Information in relation to goods not requiring import entry
New sections 68 and 71 of the Principal Act provide that the owner of certain types of goods (namely, personal effects, goods imported by post with a value of less than $1000 and goods imported other than by post with a value of less than $250) need not make an import entry in respect of those goods but must provide such information in relation to those goods as the Regulations prescribe.
Subregulation 18.1 inserts a new regulation 41 which provides that if a Collector requires information under section 71 then the owner must provide that information in approved form or an approved statement, supplying such information as is required by the form or statement, sign the form or statement in the manner required and give the completed form or statement to a Collector.
(iii) Particulars to be included in an authority to deal with goods
New section 71B of the Principal Act provides for the giving of an authority to deal with goods that have been the subject of an import entry. New subsection 71B(5) provides that the authority to deal, whether given by document or computer, must set out:
(a) any conditions to which the authority is subject;
(b) the date on which the authority is given; and
(c) such other information as is prescribed.
To evidence that the authority to deal is in respect of goods the subject of a particular entry, subregulation 18.1 inserts a new regulation 42 which prescribes that for the purposes of paragraph 71B(5)(c) the entry number given by Customs or by the COMPILE computer system to the import entry relating to the goods must be included in an authority to deal with goods.
(iv) New refund circumstance when an import entry is withdrawn
New section 71F of the Principal Act allows an import entry which has been communicated to Customs to be withdrawn at any time before the goods, the subject of that entry, are dealt with in accordance with the entry, i.e. before the goods are warehoused, transhipped or delivered into home consumption. Old subsection 38(1) (the equivalent provision in the old regime which is repealed by section 8 of the CELA Act), however, only allowed an entry to be withdrawn before duty had been paid on the goods the subject of the entry.
By extending the time during which an entry may be withdrawn, new section 71F now allows an entry on which duty has been paid to be withdrawn. Therefore duty will have been paid on an import entry for which no duty liability exists.
Subregulation 20.1 inserts a new paragraph (da) into regulation 126 which provides for a new refund circumstance in the situation where an import entry in relation to goods is withdrawn, the amount of duty specified in the import entry in relation to the goods has been paid, and none of the existing refund circumstances in paragraphs (a), (b), (c) or (d) applies.
(v) Remission of duty if an import entry is withdrawn
New section 71J of the Principal Act provides that where a person amends an import entry then that entry is taken to have been withdrawn as it previously stood. Therefore, the amended entry is considered to be a new entry in respect of the same goods under new section 71A.
There will also be situations where an importer will in fact withdraw an entry under new section 71F and then lodge a second entry in respect of the same goods under new section 71A, quite independently of the operation of the deeming provision in new section 71J.
In either of the above situations, if the importer has paid duty on the withdrawn entry, the new refund circumstance in paragraph 126(1)(da) alone would require the importer to apply for a refund of the duty paid on the withdrawn entry and to pay any amount owing on the second entry before being able to take delivery of the goods.
Subregulation 21.1 inserts a new regulation 126A which provides that in the situation where an entry on which duty has been paid is withdrawn and another entry is made in respect of the same goods, or an entry is taken to have been withdrawn under section 711 because the importer has amended the entry, then the amount of duty owing on the second entry is remitted to the extent of the amount paid on the withdrawn entry. If the duty owed on the second entry is less than that paid on the withdrawn entry, the importer will be entitled to a refund of the difference, and is not required to apply for that refund or to pay the application fee under section 163 of the Principal Act.
(b) Amendments to Schedule 2
Schedule 2 to the Regulations lists goods in respect of which Tariff Concessions Orders shall not be made, by specifying the Tariff heading or subheading of the restricted goods in Column 2 of the Schedule. Column 3 of Schedule 2 lists goods that are exceptions to the restrictions provided for in Column 2.
On 22 April 1992 the Government approved a request for "baby walkers" to be removed from the class of goods excluded from eligibility for a Tariff Concession Order. Baby walkers are a metal frame on castors, with a plastic seat, used to encourage babies to walk. They are characterised as children's furniture and are classified to 9403.70.00 in Schedule 3 of the Customs Tariff Act 1997.
Regulation 24 amends the Regulations to enable a Tariff Concession order to be made in respect of baby walkers.
(c) Repeal of regulation 183AA
Regulation 183AA of the Regulations prescribed a time limit of 35 days for the purposes of subsections 269TC(1) and (2) of the Principal Act, that is, a 35 day time limit for the Comptroller to make a prima facie decision on an application for anti-dumping of countervailing relief. These subsections were amended by section 13 of the Customs Legislation (Tariff Concessions and Anti-Dumping) Amendment Act 1992 to reduce the time limit to 25 days, thus making regulation 183AA redundant.
Subregulation 22.1 amends the regulations by omitting regulation 183AA.
The Regulations amend the Customs Regulations as follows.
Amendments to the Customs Regulations
1. Commencement
Subregulation 1.1 provides for a commencement date of 22 April 1992 for subregulation 24.1, which enables "baby walkers" to be eligible for duty free importation via a Tariff Concession Order.
• This retrospective commencement date does not offend subsection 48(2) of the Acts Interpretation Act 1901 as it confers the benefit of eligibility for duty free entry. The 22 April 1992 commencement is the date of the Government's decision to grant Tariff Concession eligibility to these goods.
The remainder of the Regulations would commence on Gazettal.
2. Amendment
Subregulation 2.1 is a formal machinery provision which provides that the Customs Regulations are amended as set out in these Regulations.
3. Regulation 19 (Working days and hour of business)
Subregulation 3.1 omits regulation 19 and substitutes a new regulation 19 which incorporates a Table setting out the working days and hours of business for 16 different functions of Customs (subregulation 19(1)). The main change to the Table is the inclusion of the hours of business for receiving computer import entries via the COMPILE computer system (item 9) and the hours of business for receiving computer export entries via the EXIT computer system (item 14).
New subregulation 19(2) defines the terms "national public holiday" and "public holiday" for the purposes of subregulation (1).
4. Regulation 23AA (Authority to deal with goods)
Subregulation 4.1 provides for regulation 23AA to be omitted from the Regulations.
• The authority to deal provision is now in section 71A of the Principal Act.
5. Regulation 23AB (Suspension of authority to deal with goods)
Subregulation 5.1 provides for regulation 23AB to be omitted from the Regulations.
• The power to cancel an authority to deal is now provided for in subsection 71B(8) of the Principal Act.
6. Regulation 23A (Commercial documents)
Subregulation 6.1 provides for regulation 23A to be omitted from the Regulations.
• The perforation and stamping of documents is not required under the new Electronic Lodgement regime.
7. Regulation 23B (Customs Stamp)
Subregulation 7.1 provides for regulation 23B, which prescribed the stamp for the purposes of regulation 23A, to be omitted from the Regulations.
8. Regulation 24 (Appropriate perforator)
Subregulation 8.1 provides for regulation 24, which prescribed the appropriate perforator for the purposes of regulation 23A, to be omitted from the Regulations.
9. Regulation 25 (Deposits by subscribers to Customs securities)
Subregulation 9.1 effects a technical amendment to subregulation 25(1AA) of the Regulations to correct the reference to the Principal Act provision which entitles an officer of Customs to require verification of information in an entry by the production of documents (i.e. new subsection 71D(6)).
Subregulation 9.2 omits subregulation 25(1A) and substitutes 3 new subregulations (1A), (1B) and (1C) which remake the provision in accordance with current drafting style and corrects cross-references to the Principal Act provisions under the new import entry regime.
10. Regulation 33 (Sight entry - making of)
Subregulation 10.1 provides for regulation 33 to be omitted from the Regulations.
• Sight entries, or visual examinations, are now provided for in section 71C of the Principal Act.
11. Regulation 34 (Sight entry - part contents of a package)
Subregulation 11.1 provides for regulation 34 to be omitted from the Regulations for the same reasons outlined for subregulation 10.1 above.
12. Regulation 35 (Sight entry - consequent examination of goods)
Subregulation 12.1 provides for regulation 35 to be omitted from the Regulations for the same reasons outlined for subregulation 10.1 above.
13. Regulation 36 (Entry - manner in which made)
Subregulation 13.1 provides for regulation 36 to be omitted from the Regulations.
• Section 71K of the Principal Act now provides for the manner of communicating with Customs by documents.
14. Regulation 36A (Entries given electronically)
Subregulation 14.1 provides for regulation 36A to be omitted from the Regulations.
• Section 71L of the Principal act now provides for the manner and effect of communicating with Customs by computer.
15. Regulation 37 (Entries for home consumption or warehousing: required particulars)
Subregulation 15.1 provides for regulation 37 to be omitted from the Regulations.
• Section 71K of the Principal Act now requires documentary entries to be in an approved form and to contain such information as is required by the form.
16. Regulation 38 (Entries, for home consumption or warehousing, given electronically: required particulars)
Subregulation 16.1 provides for regulation 38 to be omitted from the Regulations.
• Section 71L of the Act now requires an entry given by computer to include such information as is set out in an approved statement.
17. Regulation 39 (Entry for transhipment)
Subregulation 17.1 provides for regulation 39 to be omitted from the Regulations.
• Sections 71A and 71K now require an entry for transhipment to be in an approved form.
18. Regulation 42 (Delivery of goods for home consumption without entry)
Subregulation 18.1 provides for regulation 42 to be omitted from the Regulations and for the substitution of new regulations 41 and 42.
• Section 70 of the Act now provides for the delivery of certain goods into home consumption without entry thus making regulation 42 redundant.
• New regulation 41 provides that information in relation to goods required by the Collector under section 71 of the Act (namely personal effects, goods imported by post with a value of less than $1000 and goods imported other than by post with a value of less than $250 for which an import entry is not required) must be provided by the owner in an approved form or an approved statement, must include such information as the form or statement requires, and that the form or statement must be signed in the manner indicated and given to a Collector.
• New Regulation 42 provides that an authority to deal with goods under section 71B of the Act must include the entry number given by Customs or the COMPILE computer system to the import entry which relates to the goods.
19. Regulation 108 (Manner of acceptance by Collector of estimated value of goods)
Subregulation 19.1 effects a technical amendment to regulation 108 of the Regulations to correct the reference to the provision for an authority to deal with goods (i.e. new subsection 71B(4)).
20. Regulation 126 (Circumstances under which refunds, rebates and remissions are made)
Subregulation 20.1 amends subregulation 126(1) to provide a new refund circumstance where:
- an import entry in relation to goods is withdrawn; and
- the amount of duty specified in the import entry in relation to the goods has been paid; and
- none of the existing refund circumstances in paragraphs (a), (b), (c) or (d) applies.
21. New Regulation 126A
Subregulation 21.1 inserts a new regulation 126A into the Regulations to provide for the remission of duty if an import entry is withdrawn.
New subregulation 126A(1) provides that the new regulation applies to a person if the person has paid an amount of duty on an import entry which has been withdrawn or is taken to have been withdrawn under section 71J because of an amendment, and has made a second entry in respect of the same goods.
New subregulation 126A(2) provides that if the amount of duty owing on the second entry is less than or equal to the duty paid on the withdrawn entry, then the duty owing on the second entry is remitted to the extent of the amount paid on the withdrawn entry, and the person is not entitled to a refund of the duty paid on the withdrawn entry.
New subregulation 126A(3) provides that if the amount of duty owing on the second entry is greater than that paid on the withdrawn entry, then the duty owing on the second entry is remitted to the extent of the amount paid on the withdrawn entry and the person is entitled to a refund of the difference. The person is not required to apply for a refund or to pay the refund application fee under section 163 of the Act, however he or she must present the refund authority issued by Customs in order to claim the refund.
22. Regulation 183AA (Anti-Dumping: time for consideration of applications under subsection 269TB(1) or (2) of the Act)
Subregulation 22.1 provides for regulation 183AA to be omitted from the Regulations.
• Subsection 269TB(1) and (2) of the Act were amended by section 13 of the Customs Legislation (Tariff Concessions and AntiDumping) Amendment Act 1992 to reduce the time limit to 25 days, thus making the 35 day period in regulation 183AA redundant.
23. Schedule 1 (Forms)
Subregulation 23.1 provides for Forms 10, 11 and 14 the be omitted from the Schedule.
• Forms 10, 11 an 14 were prescribed in respect of regulations 33, 35 and 39 respectively, all of which have been omitted as redundant by these Regulations.
Subregulations 23.2, 23.3 and 23.4 provide for technical amendments to correct cross references in Form 45AA to the relevant provisions of the Principal Act.
Subregulation 23.5 amends the heading to Form 45A to correct cross references to the relevant provisions of the Principal Act and to the redrafted regulation 25.
24. Schedule 2 (Goods in respect of which concession orders must not be made)
Subregulation 24.1 inserts two new items 47A and 47B into Schedule 2 to provide for eligibility for duty free entry via a Tariff Concession Order for baby walkers.
• New item 47A specifies that goods classified to 9403.10.00 to 9403.60.00 of the Tariff are ineligible for a Tariff Concession Order.
• New item 47B specifies that goods with a tariff classification of 9403.70.00 are ineligible for a Tariff Concession Order with the exception of baby walkers.
Subregulation 24.2 amends item 48 of Schedule 2 by specifying that the present exemption contained in Column 3 of Schedule 2 is for goods classified to 9403.80.00 of the Tariff.
Subregulation 24.3 inserts a new item 48A in Schedule 2 to specify that goods classified to 9403.90.00 of the Tariff are not eligible for a Tariff Concession Order.