(c) the price of goods on the domestic market of the country from which the imported goods were exported;
(d) the cost of production of goods, other than the computed value of identical goods or similar goods;
(e) the price of goods sold for export to a country other than Australia and not imported into Australia;
(f) any system that provides for minimum values for the purposes of this Act;
(g) arbitrary or fictitious values.
161H When transaction value unable to be determined
(1) Without limiting section 160, a Collector cannot determine the transaction value of imported goods for the purposes of this Division, including, but without limiting the generality of the foregoing, section 161A or 161B, if the Collector:
(a) after reasonable inquiry, is not aware of any import sales transaction in relation to the goods;
(b) has, in accordance with subsection (3), (5) or (7), decided that the transaction value of the goods cannot be determined; or
(c) is satisfied that the disposition or use of the goods by the purchaser is subject to restrictions, not being restrictions of the following kinds:
(i) restrictions imposed or required by, or by any public officer or authority acting in accordance with, any law in force in Australia;
(ii) restrictions that limit the geographical area in which the goods may be sold;
(iii) restrictions that do not substantially affect the commercial value of the goods.
(2) Where, in relation to goods required to be valued, a Collector:
(a) is satisfied that the purchaser and the vendor of imported goods were, at the time of the goods’ import sales transaction, related persons; and
(b) considers that that relationship may have influenced the price of the goods;
the Collector shall, by notice in writing served, personally or by post, on the purchaser of the goods:
(c) advise the purchaser of:
(i) the view that the Collector has formed of the possible effect on the price of the goods of the relationship between the purchaser and the vendor;
(ii) the reasons for forming that view; and
(iii) the fact that, because of that view, the Collector may be required to decide under subsection (3) that the transaction value of the goods cannot be determined; and
(d) invite the purchaser to put before the Collector, within a period specified in the notice (not being a period of less than 28 days), such further information as the purchaser considers might serve to satisfy the Collector as to any of the matters set out in subsection (3).
(3) On the expiration of the period specified in a notice under subsection (2), the Collector shall, unless the purchaser of the imported goods has satisfied the Collector that:
(a) a relationship between the purchaser and the vendor of the goods did not influence the price of the goods; or
(b) the amount of the transaction value that would be determined in respect of the goods if the purchaser and the vendor had not been related at the time of the import sales transaction for the goods divided by the number of the units of the goods closely approximates, having regard to all relevant factors:
(i) the unit price within the meaning of section 161A of identical goods that were exported to Australia about the same time as the imported goods;
(ii) the unit price within the meaning of section 161B of similar goods that were exported to Australia about the same time as the imported goods;
(iii) the unit price of identical goods or similar goods sold in a contemporary sale within the meaning of section 161C as determined in accordance with that section; or
(iv) the computed unit price of identical goods or similar goods that were imported into Australia about the same time as the imported goods being the computed value of those identical or similar goods determined in accordance with section 161F divided by the number of units of those identical or similar goods;
be taken to be unable to determine the transaction value of the goods.
(4) Where, in relation to goods required to be valued, a Collector is of the opinion that the price at which the goods were sold in their import sales transaction is different from the price at which goods that are identical goods or similar goods to the first‑mentioned goods would normally be sold in an import sales transaction similar to the first‑mentioned import sales transaction, the Collector shall, by notice in writing served, personally or by post, on the purchaser:
(a) advise the purchaser of the Collector’s opinion; and
(b) require the purchaser to satisfy the Collector, within the period specified in the notice, not being a period of less than 28 days, that the price difference was not designed to obtain a reduction of, or to avoid duty.
(5) On the expiration of the period specified in a notice under subsection (4) in relation to imported goods, the Collector shall, unless the purchaser of the goods to whom the notice was given has satisfied the Collector as required by the notice, be taken to be unable to determine the transaction value of the goods.
(6) Where, in relation to services provided in respect of goods required to be valued, a Collector is of the opinion that the services were provided in relation to the goods under the terms of their import sales transaction at a price different from the price normally paid for the provision of identical or similar services in relation to goods that are identical goods or similar goods to the first‑mentioned goods, sold in an import sales transaction similar to the first‑mentioned import sales transaction, the Collector shall, by notice in writing served, personally or by post, on the purchaser:
(a) advise the purchaser of the Collector’s opinion; and
(b) require the purchaser to satisfy the Collector, within the period specified in the notice, not being a period of less than 28 days, that the price difference was not designed to obtain a reduction of, or to avoid duty.
(7) On the expiration of the period specified in a notice under subsection (6) in relation to imported goods, the Collector shall, unless the purchaser of the goods to whom the notice was given has satisfied the Collector as required by the notice, be taken to be unable to determine the transaction value of the goods.
161J Value of goods to be in Australian currency
(1) Where an amount that is, in accordance with this Division, required to be taken into account for the purpose of ascertaining a value of any imported goods is an amount in a currency other than Australian currency, the amount to be so taken into account shall be the equivalent in Australian currency of that amount, ascertained according to the ruling rate of exchange in relation to that other currency in respect of the day of exportation of the goods.
(2) For the purposes of this section, the Comptroller‑General of Customs may specify, by notice published in the Gazette:
(a) a rate that is to be deemed to be, or to have been, the ruling rate of exchange, in relation to any currency, in respect of a day, or of each day occurring during a period, preceding the day of publication of the notice; or
(b) a rate that is to be deemed to be, or to have been, the ruling rate of exchange, in relation to any currency, in respect of each day occurring during a period commencing on the day of publication of the notice, or on an earlier day specified in the notice, and ending on the revocation of the notice;
after having regard:
(c) where the ruling rate of exchange is specified in respect of a day—to commercial rates of exchange that prevailed on or about that day;
(d) where the ruling rate of exchange is specified in respect of a period commencing before the day of publication of the notice—to commercial rates of exchange that prevailed during so much of that period as preceded the day of publication of the notice; and
(e) where the ruling rate of exchange is specified in respect of any other period—to commercial rates of exchange that last prevailed before the publication of that notice.
(3) At any time, the ruling rate of exchange in relation to a particular foreign currency, in respect of a particular day, shall be:
(a) if a rate of exchange has been specified at that time under subsection (2) as the ruling rate of exchange, in relation to that currency, in respect of that day, or in respect of a period that includes that day—the rate so specified; and
(b) if a rate of exchange has not been so specified at that time—such a rate of exchange as the Comptroller‑General of Customs determines to be the ruling rate of exchange, in relation to that currency, in respect of that day, after having regard to commercial rates of exchange prevailing on or about that day and to such other matters as the Comptroller‑General of Customs considers relevant.
(4) In this section:
day of exportation, in relation to imported goods, means:
(a) where the goods were exported by post from the place of export and a Collector is satisfied as to the day of posting—that day;
(b) where the goods departed or were transported from their place of export in any other way and a Collector is satisfied as to the day of their departure or transportation—that day; and
(c) in any other case—a day determined by the Collector.
161K Owner to be advised of value of goods
(1) Where the Comptroller‑General of Customs or a Collector has determined the customs value of goods in accordance with this Division, the Comptroller‑General of Customs or the Collector shall cause the value to be recorded on the entry in respect of them or otherwise advise their owner of the amount.
(2) Where a Collector signifies, in a manner prescribed by the regulations, his or her acceptance of an estimate of the value of the goods, whether that estimate appears on the entry in respect of those goods or in any other statement of information provided in respect of those goods, the Collector shall, by so signifying, be taken for the purposes of subsection (1) to have determined the customs value of the goods and to have advised their owner of that amount.
(3) If, within 28 days after being advised under subsection (1) of the customs value of goods determined in accordance with this Division, an owner of the goods requests a Collector, in writing, to give the owner particulars of the valuation, the Collector shall, within 28 days after the making of the request, give the owner a notice in writing setting out:
(a) the method by which the customs value of the goods was determined;
(b) the findings of material questions of fact relating to that determination, the evidence or other material on which those findings were based and the reasons for that determination; and
(c) the calculations by which the determination of the value was made and the information on which those calculations were based.
(4) Nothing in this section requires, or permits, the giving of information that:
(a) relates to the personal affairs or business affairs of a person, other than the person making the request because of which information was given; and
(b) is information:
(i) that was supplied in confidence;
(ii) the publication of which would reveal a trade secret;
(iii) that was given in compliance with a duty imposed by an enactment; or
(iv) the giving of which in accordance with the request would be in contravention of an enactment, being an enactment that expressly imposes on the person to whom the information was given a duty not to divulge or communicate to any person, or to any person other than a person included in a prescribed class of persons, or except in prescribed circumstances, information of that kind.
(5) In this section, enactment has the same meaning as in the Administrative Decisions (Judicial Review) Act 1977.
161L Review of determinations and other decisions
(1) At any time after the making of a determination or other decision by an officer under this Division in relation to goods, the Comptroller‑General of Customs may review the determination or other decision and may:
(a) affirm the determination or other decision;
(b) vary the determination or other decision; or
(c) revoke the determination or other decision and make any other determination or decision that is required to be made for the purpose of determining the customs value of the goods in accordance with this Division.
(2) Where, by reason that the Comptroller‑General of Customs, under subsection (1), has varied or revoked a determination or other decision of an officer or has made a determination or other decision that is required to be made by reason of the revocation of a determination or other decision of an officer:
(a) an amount of duty that was levied is less than the amount that should have been levied; or
(b) an amount of duty that was refunded is greater than the amount that should have been refunded;
section 165 applies in relation to any demand by the Comptroller‑General of Customs for the payment of the amount of duty that is unpaid or the amount of refund that was overpaid.
(3) In this section, officer means a Collector or a delegate of the Comptroller‑General of Customs.
Division 3—Payment and recovery of deposits, refunds, unpaid duty etc.
162 Delivery of goods upon giving of security or undertaking for payment of duty, GST and luxury car tax
(1) Where goods the property of a person included in a prescribed class of persons are imported or a person imports goods included in a prescribed class or goods intended for a prescribed purpose and intends to export those goods, the Collector may grant to the person importing the goods permission to take delivery of those goods upon giving a security or an undertaking, to the satisfaction of the Collector, for the payment of:
(a) the duty, if any, on those goods; and
(b) the assessed GST payable on the taxable importation, if any, that is associated with the import of those goods; and
(c) if a taxable importation of a luxury car is associated with the import of those goods—the assessed luxury car tax payable on that taxable importation.
(2) The regulations may prescribe provisions to be complied with in relation to goods in respect of which permission has been granted under the last preceding subsection.
(2A) Without limiting the generality of subsection (2), regulations under that subsection may provide that conditions, restrictions or requirements specified in the permission granted under subsection (1) in relation to goods are to be complied with in relation to the goods.
(3) Where the Collector has granted permission to a person to take delivery of goods upon giving a security or an undertaking referred to in subsection (1), the duty (if any) is not payable if:
(a) the provisions of the regulations are complied with; and
(b) either:
(i) the goods are exported within a period of 12 months after the date on which the goods were imported, or within such further period as the Comptroller‑General of Customs, on the application of the person who imported the goods, allows; or
(ii) one or more of the circumstances or conditions specified in the regulations apply in relation to the goods;
and, if security was given by way of deposit of cash or of an instrument transferable by delivery, the amount deposited or the instrument shall be returned to the person by whom the security was given.
Note: In these circumstances, GST and luxury car tax are not payable. See section 171‑5 of the GST Act and section 13‑25 of the Luxury Car Tax Act.
(4) If the circumstances described in paragraphs (3)(a) and (b) do not exist in relation to the goods:
(a) the security may be enforced according to its tenor; or
(b) if an undertaking to pay the amount of the duty (if any), the GST (if any) and the luxury car tax (if any) has been given, that amount may be recovered at any time in a court of competent jurisdiction by proceedings in the name of the Collector.
162A Delivery of goods on the giving of a general security or undertaking for payment of duty, GST and luxury car tax
(1) The regulations may provide that:
(a) goods of a specified class;
(b) goods imported by persons of a specified class;
(c) goods of a specified class imported by persons of a specified class; or
(d) goods imported for a specified purpose;
may, in accordance with this section, be brought into Australia on a temporary basis without payment of duty, GST or luxury car tax.
(1A) Without limiting the generality of subsection (1), regulations under that subsection may be regulations that apply to goods if:
(a) the goods are specified in an instrument authorised by the regulations; and
(b) conditions, restrictions or requirements specified in that instrument are complied with in respect of the goods.
(1B) Without limiting the generality of paragraph (1A)(b), conditions, restrictions or requirements referred to in that paragraph that apply to goods may specify, or relate to:
(a) the time during which the goods may remain in Australia; or
(b) the purposes for which the goods may be used while they are in Australia.
(2) The Comptroller‑General of Customs may accept a security given by a person for the payment of, or an undertaking by a person to pay, all of the following in relation to specified goods that are described in regulations made for the purposes of subsection (1) and that may be imported after a particular date or during a particular period:
(a) the duty, if any, that may become payable on the goods;
(b) the assessed GST that may become payable on the taxable importation, if any, that is associated with the import of the goods;
(c) if a taxable importation of a luxury car is associated with the import of the goods—the assessed luxury car tax that may become payable on that taxable importation.