Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS REGULATIONS (AMENDMENT) 1995 NO. 244

STATUTORY RULES 1995 No. 244

Issued by the Authority of the Minister for Small Business, Customs and Construction

Customs Act 1901

Customs Regulations (Amendment)

Section 270 of the Customs Act 1901 (the Act) provides in part that:

"(1) 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 ... for giving effect to this Act or for the conduct of business relating to the Customs, ..."

The purpose of the Regulations is to amend the Customs Regulations (the Regulations) to:

(a) remove certain goods from the class of goods listed in Schedule 2 to the Regulations in respect of which a Tariff Concession Order (TCO) may not be made, and

(b) insert a new refund circumstance in relation to certain parts for historic cars which were inadvertently made ineligible for TCOs by Statutory Rules 1994 No 351

Part XVA of the Act provides for the duty free entry of certain goods via a TCO where it is established that the duty free entry of those goods is not likely to have a significant adverse effect on the market for Australian made substitutable goods. Section 269SJ of the Act provides in part that the Chief Executive Officer must not make a TCO in respect of goods declared by the Regulations to be goods to which a TCO should not extend.

Regulation 185 and Schedule 2 to the Regulations exclude certain goods from the Tariff Concession System (TCS) by listing goods by the tariff heading or subheading of such goods in Column 2 of Schedule 2. Column 3 of the Schedule provides the facility to fist goods within the restricted tariff class for which a TCO can be made.

(a)       Schedule 2 amendments

Subregulation 7.1 amends item 1 of Schedule 2 to provide that capers will be eligible for concessional entry into Australia via a TCO. The Government approved the removal of capers from the class of goods in respect of which a TCO cannot be made. Capers are classified to tariff subheading 0711.30 in Schedule 3 to the Customs Tariff Act 1987. Heading 0711.30 is covered by item 1 and therefore a TCO in respect of capers cannot at present be made. The amendment will make capers eligible for possible duty free entry via a TCO, as capers are a distinctive product with no substitutes and are not grown in Australia.

Subregulation 7.2 amends item 4 of Schedule 2 to provide that hydroxystearic acid will be eligible for concessional entry into Australia via a TCO. The Government approved the removal of Phydroxystearic acid from the class of goods in respect of which a TCO cannot be made. Hydroxystearic acid is classified to tariff subheading 1519.19 in Schedule 3 to the Customs Tariff Act 1987. Subheading 1519.19 is covered by item 4 and therefore a TCO in respect of hydroxystearic acid cannot at present be made. Hydroxystearic acid is a fatty acid which is a raw material used in the manufacture of petroleum greases. The amendment will make hydroxystearic acid eligible for possible duty free entry via a TCO, as there appears to be no Australian made equivalent to hydroxystearic acid suitable for use in lubricating oil and grease applications.

Subregulation 7.3 amends item 6 of Schedule 2 to provide that ethanol absolute will be eligible for concessional entry into Australia via a TCO if it meets the specification for use as a solvent in ultraviolet spectroscopy set out in the document published by the American Chemical Society in 1993 and known as Reagent Chemicals: American Chemical Society Specifications, Eighth Edition. The Government approved the removal of ethanol absolute (complying with the American Chemical Society specifications for ultraviolet spectroscopy published in 1993) from the class of goods in respect of which a TCO cannot be made. Ethanol absolute is classified to tariff heading 2207 in Schedule 3 to the Customs Tariff Act 1987. Heading 2207 is covered by item 6 and therefore a TCO in respect of ethanol absolute cannot at present be made. Ethanol absolute is used in ultraviolet spectroscopy, which is the analysis of chemical compounds depending on their absorption of ultraviolet and/or visible light. The amendment will make this particular kind of ethanol eligible for possible duty free entry via a TCO, as there appears to be no Australian production at present, nor does there appear to be any comparable substitutable goods produced here.

Subregulation 7.4 corrects a technical error by amending the words "Anhydrous Dextrose and Monohydrate Dextrose" in column 3 of item 6 of Schedule 2 to the Regulations to read "Anhydrous dextrose and monohydrate dextrose".

Subregulation 7.5 amends item 8 of Schedule 2 to provide that electric plug-in air freshener refills will be eligible for concessional entry into Australia via a TCO. The Government approved the removal of electric plug-in air freshener refills from the class of goods in respect of which a TCO cannot be made. Electric plug-in air freshener refills are classified to tariff heading 3307 in Schedule 3 to the Customs Tariff Act 1987. Heading 3307 is covered by item 8 and therefore a TCO in respect of electric plug-in air freshener refills cannot at present be made. The amendments will make electric plug-in air freshener refills eligible for possible duty free entry via a TCO, as there are no Australian-made products equivalent to electric plug-in air freshener refills.

Subregulation 7.6 and subregulation 7.7 amend items 38 and 39 of Schedule 2 to provide that motorised golf cars and motorised golf carts will be eligible for concessional entry into Australia via TCOs. The Government approved the removal of motorised golf cars and motorised golf carts from the class of goods in respect of which a TCO cannot be made. Motorised golf cars are classified to tariff headings 8702 and 8703 and motorised golf carts are classified to tariff heading 8704 in Schedule 3 to the Customs Tariff Act 1987. Headings 8702, 8703 and 8704 are covered by items 38 and 39 and therefore a TCO in respect of motorised golf cars or motorised golf carts cannot at present be made. The amendments will make motorised golf cars and motorised golf carts eligible for possible duty free entry via a TCO as golf cars and golf carts should not be considered to be "motor vehicles" subject to the sectoral plan for Passenger Motor Vehicles, and local industry will have the opportunity to object to the issue of TCOs.

Parts for certain historic cars

The Regulations also restore eligibility to apply for TCOs for parts for vehicles at least 30 years of age. On 18 October 1994 changes were implemented to regulation 185 of the Regulations (Statutory Rules 1994 No. 351 refers) to provide that, in addition to the goods listed in Schedule 2, a TCO should not extend to goods for which the general rate of Customs duty specified in the Customs Tariff Act 1987 is 15%. The only goods which attract a duty rate of 15% are passenger motor vehicle parts. This change resulted in all existing TCOs which applied to goods having a general rate of 15% being revoked by the operation of subsection 269SJ(2) of the Act. The aim of this change was to prevent importers from applying for TCOs for passenger motor vehicle replacement parts for vehicles covered by the Passenger Motor Vehicle (PMV) Plan, as the Plan specifically caters to the PMV industry.

One unintended result of the amendment was the revocation of existing TCOs for parts for vehicles at least 30 years of age which also have a general rate of 15%. These TCOs had allowed importers of replacement parts for cars such as vintage, classic and veteran cars duty free entry on those products.

The Government approved amendments to the Regulations to restore eligibility for parts of passenger motor vehicles where such vehicles are at least 30 years of age. It also approved the restoration of duty free treatment back to 18 October 1994.

Subregulation 5.1 restores TCO eligibility by amending paragraph 185(a) to provide that goods being a passenger motor vehicle part, or a reproduction of a passenger motor vehicle part, that was manufactured at least 30 years before the day on which any TCO made under regulation 185 comes into force, are goods to which a TCO may extend.

As this amendment can only apply to allow TCOs to be made in the future, to restore duty free treatment for parts imported between 18 October 1994 and the day on which these amendments commence a special refund circumstance is provided in subregulation 2.1.

Subregulation 2.1 amends subregulation 126(1) of the Regulations by adding new paragraph (t) to provide that a refund of duty may be paid in the circumstance where duty has been paid on goods:

(i) being a passenger motor vehicle part, or a reproduction of a passenger motor vehicle part, that was manufactured at least 30 years before the day on which the part or reproduction was entered for home consumption; and

(ii)       that were entered for home consumption in the period commencing on 18 October 1994 and ending at the end of 16 August 1995; and

(iii)        to which a TCO the number of which is set out in Schedule 1A would have applied if the amendment of regulation 185 made by Statutory Rules 1994 No. 351 had not been made. These TCO reference numbers all relate to historic car parts and were unintentionally revoked on the commencement of Statutory Rules 1994 No. 351.

Subregulation 3.1 inserts new subregulation 128A(4C) to provide that an application for a refund of duty under new paragraph 126(1)(t) must be made no later than 15 August 1996. This will allow affected importers 12 months from the commencement of these amendments to seek a refund.

Subregulation 4.1 omits "or (r)" and substitutes "(r) or (t)" in regulation 128AB so that a fee is not payable on an application for refund of duty under new paragraph 126(1)(t).

Subregulation 6.1 inserts new Schedule 1A, which lists the reference numbers of TCOs taken to have been revoked by the operation of subsection 269SJ(2) on the commencement of Statutory Rules 1994 No. 351. An application for a refund of duty may be made where the goods involved fall to a TCO number listed in Schedule 1A, and where the other requirements of new paragraph 126(1)(t) are satisfied.

The Regulations commenced on gazettal.