Excise guidelines for the fuel industry
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|OUR COMMITMENT TO YOU The information in this publication is current at May 2009. This publication is an expression of the Commissioner's opinion on the operation of fuel excise legislation. This publication is not legally or administratively binding on the Commissioner and is not a 'public ruling' for the purposes of Section 105-60 or Division 358 of Schedule 1 to the Taxation Administration Act 1953. The law does not provide for legally binding rulings on fuel excise legislation. If you feel this publication does not fully cover your circumstances, please seek help from the Tax Office or a professional adviser. Since we regularly revise our publications to take account of any changes to the law, you should make sure this edition is the latest. The easiest way to do this is by checking for a more recent version on our website at www.ato.gov.au|
9.1 PURPOSEThis chapter deals with:
- offences under the Excise Act
- infringement notices, and
- application of the Criminal Code.
This chapter is a general discussion on offences. It is not meant as legal advice and you are encouraged to seek independent legal advice in relation to your own individual circumstances.
There are a number of acts or omissions under the Excise Act that are offences.
A conviction for an offence may result in a penalty as provided for within the Excise Act. The penalty provided may be in the form of penalty units , a term of imprisonment or an amount of money calculated by a set formula.
Certain acts or omissions are offences under the Excise Act for which penalties are prescribed.
For penalties to apply to an offence (except where an infringement notice has been issued), you must first be convicted of the offence in a court of law following prosecution.
Certain offences under the excise legislation are strict liability offences as defined in section 6.1 of the Criminal Code (Schedule to the Criminal Code Act 1995 ). Essentially, strict liability means that the offence consists of the physical act or omission only. It is not necessary for the court to find that you knowingly committed, or were reckless or negligent in relation to the act or omission.
Some sections of the Excise Act prescribe the following two levels of offence for similar conduct:
a higher penalty applies to an act or omission intentionally or recklessly committed,(i.e. where there is a 'fault element), and
a lower penalty applies to the same act or omission on a strict liability basis, (i.e. where no 'fault' element needs to be proven).
Section 26 of the Excise Act prescribes that licensed manufacturers are to manufacture in accordance with the Act and their licence.
9.4 PENALTIESThe Excise Act contains many provisions that include a penalty at the foot of the section or subsection. This means that if you are convicted of an offence against the particular provision then you can receive a penalty not exceeding the penalty mentioned.  The penalty listed is thus the maximum penalty but the courts can impose a lesser penalty.
|Example 9B A person manufactures excisable fuel products without a manufacturer licence. This is a contravention of subsection 25(2) of the Excise Act which says that a person shall not manufacture excisable goods without a manufacturer licence. The penalty at the foot of subsection 25(2) of the Excise act is 100 penalty units. We bring a court action against the person and the court convicts the person. The penalty cannot exceed 100 penalty units but it can be less.|
|Where an offence also causes goods to be forfeited,  conviction by the courts results in the forfeited goods being condemned.  This means they are no longer your property and we can dispose of the goods as we see fit.|
9.5 INFRINGEMENT NOTICESWe may issue an infringement notice  as an alternative to prosecution for unlawfully possessing, or unlawfully selling excisable goods.  An infringement notice imposes a penalty of 20 penalty units. To issue an infringement notice, we must have a reasonable belief that you have committed the offence. Notices must be issued within 12 months of the commission of the offence.  In the event of non-payment, prosecution action may be brought against you. You cannot be prosecuted for the same offence where an infringement notice has been issued unless the infringement notice is withdrawn. We can withdraw an infringement notice and if we do so after you have paid the penalty we must refund that to you.
9.6 APPLICATION OF THE CRIMINAL CODEChapter 2 of the Criminal Code applies to offences against the Excise Act. However, Parts 2.5 and 2.6, which are in Chapter 2, do not apply.  In some courts, Excise prosecutions are able to be treated as criminal matters while in other courts they are treated as civil matters.
9.7 TERMS USEDPenalty units A penalty unit is specified in section 4AA of the Crimes Act 1914 and, at the time of writing, is $110.
9.8 LEGISLATION (quick reference guide)In this chapter we have referred to the following legislation:
9.8.1 Excise Act 1901Section 5 - Penalty at foot of sections Section 6B - Application of the Criminal Code Section 25 - Only licensed manufacturers to manufacture excisable goods Section 26 - Licensed manufacturers to manufacture in accordance with Act and licence Section 116 - Forfeiture Section 117 - Unlawful possession of excisable goods Section 117B - Unlawfully selling excisable goods Section 127A - Alternative penalties Section 129A - Purpose and effect of this Part (Part XA - penalty instead of prosecution) Section 129B - When an infringement notice may be issued Section 129C - Matters to be included in an infringement notice Section 129D - Due date for penalty Section 129E - Effect of payment of penalty Section 129F - Withdrawal of infringement notice Section 151 - Conviction to operate as a condemnation
9.8.2 Crimes Act 1914Section 4AA - Penalty units Section 4D - Penalties
9.8.3 Criminal Code Act 1995Section 6.1 - Strict liability Chapter 2 - General principles of criminal responsibility
|You are here||1 July 2006||Original document|
|1 April 2015||Updated document|
|12 July 2017||Updated document|
|11 December 2017||Updated document|
|4 June 2021||Current document|