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Customs Legislation Amendment (Augmenting Offshore Powers and Other Measures) Bill 2006

Schedule 3 Recovery of duty

Part 1 Amendments

Customs Act 1901

1  Section 153

Repeal the section.

2  Subsection 161L(2)

Omit all the words after paragraph (b), substitute:

section 165 applies in relation to any demand by the CEO for the payment of the amount of duty that is unpaid or the amount of refund that was overpaid.

3  Division 3 of Part VIII (heading)

Repeal the heading, substitute:

Division 3 Payment and recovery of deposits, refunds, unpaid duty etc.

4  Section 165

Repeal the section, substitute:

165   Recovery of unpaid duty etc.

             (1)  An amount of duty that is due and payable in respect of goods:

                     (a)  is a debt due to the Commonwealth; and

                     (b)  is payable by the owner of the goods.

             (2)  An amount of drawback, refund or rebate of duty that is overpaid to a person:

                     (a)  is a debt due to the Commonwealth; and

                     (b)  is payable by the person.

Demand for payment

             (3)  The CEO may make, in writing, a demand for payment of an amount that is a debt due to the Commonwealth under subsection (1) or (2).

             (4)  A demand, under subsection (3), for payment of an amount must specify the amount and include an explanation of how it has been calculated.

             (5)  A demand, under subsection (3), for payment of an amount must be made within 4 years from:

                     (a)  if the amount is a debt due to the Commonwealth under subsection (1)—the time the amount was to be paid by under this Act; or

                     (b)  if the amount is a debt due to the Commonwealth under subsection (2)—the time the amount was paid;

unless the CEO is satisfied that the debt arose as the result of fraud or evasion.

Recovery in court

             (6)  An amount that is a debt due to the Commonwealth under subsection (1) or (2) may be sued for and recovered in a court of competent jurisdiction by proceedings in the name of the Collector if:

                     (a)  the CEO has made a demand for payment of the amount in accordance with this section; or

                     (b)  the CEO is satisfied that the debt arose as the result of fraud or evasion.

165A   Refunds etc. may be applied against unpaid duty

             (1)  If:

                     (a)  an amount of duty is payable by a person in respect of goods that have been delivered into home consumption; and

                     (b)  the person would be entitled to an amount of drawback, refund or rebate of duty in respect of the goods if the amount of duty payable were paid;

then:

                     (c)  the CEO may apply the amount of the drawback, refund or rebate against the amount of duty payable; and

                     (d)  the person is taken to have paid, in respect of the goods, an amount of duty equal to the amount of drawback, refund or rebate applied; and

                     (e)  the amount of drawback, refund or rebate applied is taken to have been paid to the person.

             (2)  If the CEO applies an amount of drawback, refund or rebate against an amount of duty payable, the CEO must give the person who would have been entitled to receive the amount of drawback, refund or rebate written notice of:

                     (a)  the amount of drawback, refund or rebate applied; and

                     (b)  if the amount of drawback, refund or rebate applied is less than the amount of duty payable—the amount of duty that is still payable by the person.

5  Subsections 167(3) and (3A)

Repeal the subsections, substitute:

             (3)  For the purposes of this section, a payment is taken to be made under protest if, and only if:

                     (a)  the owner of the goods or the agent of the owner gives Customs notice in accordance with subsection (3A), by document or electronically, that the payment is made under protest; and

                     (b)  Customs receives the notice no later than 7 days after the day the payment is made.

          (3A)  A notice given by an owner or agent under subsection (3) must:

                     (a)  contain the words paid under protest ; and

                     (b)  identify the import declaration that covers the goods to which the protest relates; and

                     (c)  if the protest does not relate to all the goods covered by the import declaration—describe the goods to which the protest relates; and

                     (d)  include a statement of the grounds on which the protest is made; and

                     (e)  be signed by the owner or the agent of the owner.

6  Subsection 167(3)

Omit “For”, substitute “Subject to subsection (3B), for”.

7  Before subsection 167(4)

Insert:

          (3B)  If, under section 71DGA, an accredited client pays an amount of accredited client monthly duty estimate in respect of goods, then for the purposes of this section, the amount of duty that would be payable in respect of the goods if the amount of accredited client monthly duty estimate were not paid is taken to be paid under protest by the accredited client if, and only if:

                     (a)  the accredited client or the agent of the accredited client gives Customs notice in accordance with subsection (3C), by document or electronically, that the payment is made under protest; and

                     (b)  Customs receives the notice no later than 7 days after the accredited client payment day on which the amount of duty would be payable on the goods under subsection 71DGB(1) if the amount of accredited client monthly duty estimate were not paid.

          (3C)  A notice given by an accredited client or agent under subsection (3B) must:

                     (a)  contain the words paid under protest ; and

                     (b)  identify the periodic declaration that covers the goods to which the protest relates; and

                     (c)  if the protest does not relate to all the goods covered by the periodic declaration—describe the goods to which the protest relates; and

                     (d)  include a statement of the grounds on which the protest is made; and

                     (e)  be signed by the accredited client or the agent of the accredited client.

8  After subsection 167(4)

Insert:

          (4A)  No action lies for the recovery of any sum paid to Customs under section 71DGA as an amount of accredited client monthly duty estimate in respect of goods, unless:

                     (a)  the amount of duty that would be payable in respect of the goods if the amount of accredited client monthly duty estimate were not paid has been taken under subsection (3B) to have been paid under protest; and

                     (b)  the action is commenced within the following times:

                              (i)  if the sum is paid as an estimate of duty payable under any Customs Tariff—within 6 months after the accredited client payment day on which the amount of duty would be payable on the goods under subsection 71DGB(1) if the amount of accredited client monthly duty estimate were not paid; or

                             (ii)  if the sum is paid as an estimate of duty payable under a Customs Tariff or Customs Tariff alteration proposed in the Parliament—within 6 months after the Act, by which the Customs Tariff or Customs Tariff alteration proposed in the Parliament is made law, is assented to.

9  At the end of section 167

Add:

             (6)  In this section:

import declaration includes an import entry, within the meaning of the unamended Customs Act, that was made under that Act.

unamended Customs Act has the meaning given by section 4 of the Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act 2004 .

10  Paragraph 273GA(1)(ja)

Repeal the paragraph, substitute:

                    (ja)  a decision of the CEO under subsection 165(3) to make a demand for payment of an amount of drawback, refund or rebate of duty that was overpaid;

Customs Legislation Amendment and Repeal (International Trade Modernisation) Act 2001

11  Item 45 of Schedule 3

Repeal the item.



 

Part 2 Application and transitional provisions

12  Transitional—item 1

The repeal of section 153 of the Customs Act 1901 made by item 1 of this Schedule does not affect any proceedings brought under that section before the commencement of this item.

13  Transitional—item 4

(1)       This item applies to a demand made under section 165 of the old law.

(2)       Section 165 of the new law has effect, on and after the commencement time, as if the demand were a demand made under, and in accordance with, that section.

(3)       In this item:

commencement time means the time at which item 4 of this Schedule commences.

new law means the Customs Act 1901 as amended by item 4 of this Schedule.

old law means the Customs Act 1901 as in force before the commencement time.

14  Application—items 5 and 9

The amendments made by items 5 and 9 of this Schedule apply in relation to payments made on or after the commencement of those items.

15  Application—items 6 to 8

The amendments made by items 6 to 8 of this Schedule apply in relation to payments made on or after the commencement of those items.