Excise guidelines for the tobacco industry
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This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
2 LICENSING: Applications
2.1 PURPOSE
This Chapter deals with:
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- why there is a licensing regime
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- what a licence is
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- different licence types
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- responsibilities of a licence holder
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- what we can do
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- what records need to be kept
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- how long a licence is valid for
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- whether licences are transferable
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- disclosure of your licensing information
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- how to apply for a licence
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- how to change your licence details, and
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- penalties that can apply to offences in relation to licences.
2.2 INTRODUCTION
2.2.1 WHY THERE IS A LICENSING REGIME
The excise duty attached to ' excisable tobacco goods ' forms a significant component of the overall value of the goods. A licensing regime helps the ' CEO ' maintain control of excisable goods and ensure the correct amount of duty is paid.
The Excise Act stipulates that anyone wanting to produce, deal or store ' tobacco ' seed, plant or leaf or manufacture excisable tobacco goods must hold a licence issued under Part IV of the Excise Act.
Tobacco seed, plant or cured leaves are not excisable goods for the purposes of the Schedule. However, the Excise Act imposes controls over the growing of tobacco plants, including the possession of tobacco seeds. The provisions relating to the control of tobacco seed, plant or leaf are contained in Divisions 2 and 3 of Part III of the Excise Act.
A licence is an approval or authorisation to enable you to undertake activities as specified in the licence. If you undertake these activities without a licence, you are committing an offence and may be prosecuted. A licence may impose a number of important conditions on the licence holder, including limits to your activities.
A licence is issued to a specific entity and specifies the premises [18] where the activities may be undertaken. This may require you to have more than one licence.
Licences can be issued to:
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- individuals
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- partnerships and companies in their own right, and
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- individuals and companies in their capacity as trustees.
There may be different licensing processes depending on the type of entity applying for the licence.
2.3 POLICY AND PRACTICE
There are 4 licence types:
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- producer
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- dealer
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- manufacturer, and
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- storage.
A producer is a licensed grower of tobacco seed, plant or leaf. To be able to produce tobacco seed, plant or leaf, you must hold a valid producer licence. You cannot produce tobacco seed, plant or leaf at premises that are not covered by a licence. This requirement also applies to tobacco seed, plant or leaf grown for personal use as there is no exemption in the Excise Act for this activity. [19]
'Produce' includes all the activities of growing tobacco plants such as germinating seeds, growing seedlings, planting out, harvesting seeds for future seasons and harvesting the leaves, up to and including curing the leaf as stripped from the plant. [20]
You cannot grow or plant tobacco seed or plant, or hold tobacco seed, plant or leaf in anticipation of acquiring a producer licence. This means that you cannot produce samples to market to potential buyers if you do not hold a licence, nor can you store tobacco seed or seedlings.
A producer licence also allows you to sell tobacco seed, plant or leaf that you produce to:
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- licensed dealers
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- licensed manufacturers, or
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- other licensed producers.
Conditions may be imposed on a producer's licence including requirements around storage and in relation to persons participating in the business.
Typically, those who would require a producer licence include:
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- farmers who grow tobacco leaf for sale to licensed manufacturers, and
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- nurseries growing tobacco seedlings for sale to licensed producers.
There are presently no licensed commercial producers or dealers in Australia. A decision in 2006 made by local tobacco manufacturers to stop sourcing domestic tobacco leaf saw the majority of producer licences surrendered and cancelled as part of a related government compensation scheme. There are also currently no producer licences issued to grow tobacco for personal use.
Only a very small number of producer licences are presently held for limited purposes such as for accredited agricultural testing or research laboratories.
To be able to deal in tobacco seed, plant or leaf, you must hold a valid dealer licence. You cannot deal in tobacco seed, plant or leaf at premises that are not covered by a licence. [21]
'Deal' includes buying, selling, storing, distributing and importing.
You may also need a dealer licence if you wish to display tobacco seed or plant; for example, if you operate a museum.
You cannot deal in tobacco seed, plant or leaf in anticipation of acquiring a dealer licence.
A dealer licence also allows you to buy from or sell tobacco seed, plant or leaf to:
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- licensed producers
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- licensed manufacturers, or
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- other licensed dealers.
Conditions may be imposed on a dealer licence including requirements for storage and in relation to persons participating in the business.
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- buy tobacco seed or plant, or
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- sell tobacco seed, plants or leaf. [22]
To manufacture excisable tobacco goods, the Excise Act requires you to be a licensed manufacturer [24] and that the goods are manufactured at covered premises in accordance with the conditions specified on your manufacturer licence. [25]
In relation to tobacco, the Excise Act excludes merely curing tobacco leaf from being manufacture. The Schedule defines 'tobacco' as being tobacco leaf subjected to any process other than curing the leaf as stripped from the plant.
We consider that these common activities in relation to tobacco are manufacture:
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- threshing tobacco leaf
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- conditioning
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- blending
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- cutting, and
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- making tobacco goods.
The following activities are examples of processes that are 'excise manufacture':
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- Threshed tobacco leaf is cut and treated with heat and moisture and combined with filters and paper to form cigarettes.
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- Cured tobacco leaves are cut to form 'roll your own' tobacco.
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- Cured tobacco leaf is threshed to separate the lamina from the stem. The lamina is called 'cut rag'.
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- Cured tobacco leaves are rolled together to form a cigar.
The following activities are examples of processes that are not 'excise manufacture'.
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- Tobacco leaf, as stripped from the plant, is cured to convert it into leaf tobacco. [26]
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- A person rolls a cigarette at home using papers and 'roll your own' tobacco on which duty has been paid.
You cannot commence manufacturing excisable tobacco goods without a licence. This means that you cannot test your manufacturing equipment or produce samples to market to potential buyers if you do not hold a licence.
Imported whole or threshed leaf is subject to customs duty at the same rate as loose manufactured tobacco. If you intend to use imported whole or threshed leaf in the manufacture of excisable products, you can deduct the customs duty paid from your final excise liability. If you have any questions regarding this you should contact us or Australian Border Force.
You can only manufacture tobacco goods at premises covered by your licence. [28] We may also give you written directions in regard to what parts of your factory any manufacturing process is to be carried on and inputs used in manufacture, and excisable tobacco goods, respectively are to be kept. [29]
A manufacturer licence allows you to sell tobacco leaf to a dealer or manufacturer who is also licensed under the Excise Act. You should confirm with us that a person actually holds any licence they may claim to hold.
From 1 July 2019, all storage of ' underbond ' tobacco goods ceased.
Licensed customs warehouses and excise storage premises that permit the storage of underbond goods are restricted from storing tobacco goods on which duty has not been paid.
2.3.2 RESPONSIBILITIES OF A LICENCE HOLDER
You are responsible for the secure storage of all tobacco seed, plant and leaf and excisable tobacco goods held on your premises or under your control and must store tobacco seed, plant or leaf and excisable tobacco goods only at premises that are covered by your licence. [30] If you are a manufacturer, this includes stalks, refuse, clippings or waste arising from the manufacturing process.
If you lose any tobacco leaf, you may be liable to pay an amount equivalent to the duty that would have been payable had that tobacco leaf been manufactured into tobacco goods. [31] The amount of such a liability can be substantial as the rate of excise duty per kilogram of tobacco content is significant when compared to the value of the finished cigarette. For the current rates of duty, refer to Excise duty rates for tobacco .
You may be responsible for paying an amount equal to the excise duty that would have been payable on any stolen, missing or unaccounted for excisable tobacco goods. [32]
If we take stock of excisable tobacco goods manufactured and the materials you use in the manufacturing process and it appears to us that not all the duty that should have been paid has been paid, you must pay the difference between the amount paid and the amount that should have been paid unless you can account for the deficiency to our satisfaction. [33]
You must not move tobacco seed, plant or leaf, without approval from us. This includes moving tobacco seed, plant or leaf from premises covered by your licence to any other location or for export. [34]
If you are moving tobacco leaf away from the place covered by your licence, you must ensure that the tobacco leaf has a tobacco bale label attached at all times that the tobacco leaf is not at a place covered by a licence, unless we approve otherwise in writing. [35]
You must comply with the Excise Act and all the conditions of your licence. [38]
You may deliver Australian tobacco leaf for a purpose such as medical, scientific, horticultural or agricultural use upon receipt of an approval from us. [39]
You must keep, retain and produce records in accordance with a ' direction under section 50 ' of the Excise Act.
If you are a manufacturer, you must also:
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- ensure tobacco goods are only delivered into the Australian domestic market with appropriate authority, as specified in your licence [40]
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- pay the correct amount of excise duty [41]
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- provide all reasonable facilities to enable us to exercise our powers under the Excise Act [42]
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- provide sufficient lights, correct weights and scales, and all labour necessary for
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- weighing material received into your factory
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- weighing all excisable goods manufactured in your factory, and
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- taking stock of all material and excisable goods contained in your factory [43] , and
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- have no more than 30% moisture content in the manufactured tobacco product [44] , which is determined by drying it at a temperature of 100 degrees Celsius. [45]
2.3.3 WHAT ELSE WE CAN DO
We have the right to enter premises covered by your licence at any time and can examine and take account of all the goods at the premises. [46] Note: we will usually only seek to enter your premises during normal business hours.
We can stop any vehicle leaving premises covered by your licence and check that there is proper documentation for tobacco leaf or excisable tobacco goods leaving the premises. We can question the driver about any goods in the vehicle. We can direct that the vehicle be unloaded and goods taken to particular parts of the premises for further examination. We must not detain a vehicle for longer than is necessary to do the checking. [47]
We can stop and search any vehicle (not just vehicles leaving premises covered by a licence) without a warrant if we have reasonable grounds for believing that the vehicle contains tobacco leaf or excisable tobacco goods and that the vehicle has been used, is being used or will be used in the commission of an offence under the Excise Act (and certain offences in the Crimes Act 1914 (Crimes Act) [48] and Criminal Code Act 1995 (Criminal Code) [49] relating to accessory after the fact, attempt to commit an offence, aid and abet someone to commit an offence and conspiracy to commit an offence). [50]
We can open packages and examine, weigh, mark and seal any excisable tobacco goods that are subject to ' excise control ' and, if you are a manufacturer, lock up, seal, mark or fasten any plant in or on your factory. [51]
We can also:
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- supervise the manufacture of excisable tobacco goods [52] , and
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- take samples of materials, partly manufactured excisable tobacco goods and excisable tobacco goods subject to excise control, and tobacco products that we have reasonable grounds for suspecting are excisable tobacco goods on which duty has not been paid. [53]
The Excise Act provides that a licence holder shall:
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- keep such records and furnish such returns as directed
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- keep these records for the period directed, and
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- on demand, produce those records to us. [54]
Any such direction will be in writing and included with your licence. We can amend this direction at any time and will provide written notification of this to you.
We can inspect and take copies of any records kept.
If you cease to hold an excise licence you must still keep all records of your previously licensed activities. Records must be kept for the period of time as directed which is generally 5 years unless otherwise specified.
The following are examples of the records that we may direct you to keep:
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- if you are a producer, details of
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- number of hectares on which you grow tobacco leaf
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- quantity of tobacco leaf you harvest
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- packing dates
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- kiln or barn numbers
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- number of racks or clamps
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- pick numbers
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- date unloaded from the kiln or barn
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- number of bales made
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- ATO bale label number
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- quantity (in kilos) of loose cured tobacco leaf in storage (in bags or slings)
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- number of bales entered into your storage shed
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- number of bales sent to sale
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- date bales are sent to sale
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- total number of bales in storage, and
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- any tobacco leaf lost, including
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- the date of the loss
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- the cause of the loss
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- the quantity of tobacco leaf lost
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- who the loss was reported to, and
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- the ATO comment or verification
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- if you are a dealer, details of
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- all tobacco seed plant or leaf purchased
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- all tobacco seed plant or leaf sold including to who and when the sale was made, and
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- imported tobacco leaf
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- if you are a manufacturer, details of
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- all tobacco leaf received at your premises covered by your licence
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- all tobacco leaf and excisable goods held in premises covered by your licence
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- the amount of excisable tobacco goods produced showing all inputs, outputs and waste
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- all deliveries from premises covered by your licence including to who and when the delivery was made including any exports
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- all duty payments and ' excise returns '
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- any refunds and remissions, and
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- destruction of any waste materials.
Your licence will state its expiry date. When first issued, the licence is valid until the next 30 September 2 years after the anniversary of the day it is granted. [55]
Example 2A
If we grant a licence on 15 January 2025, it will expire on 30 September 2027.
If we grant a licence on 15 October 2025, it will expire on 30 September 2028.
Upon renewal, a licence is valid for a further 3 years starting from the day after the date of expiry of the existing licence, that is, 1 October 3 years from the year the existing licence expires.
You cannot transfer your licence to another individual, business entity or premises. The proposed new licence holder must apply for a new licence. You must also request cancellation of your current licence if you are no longer carrying out an excise activity. It is important that you advise us of any change before it takes effect.
The exception to the above rule arises when a licence holder dies. If this is the case, the licence is taken to be transferred to the person's legal personal representative. This allows for the finalisation of the affairs and, unless cancelled earlier, the licence is automatically cancelled 3 months after the licence holder died. [56]
2.3.7 DISCLOSING LICENSING INFORMATION
As well as the protection provided by the Privacy Act 1988 (Privacy Act), the tax laws have secrecy provisions about using and disclosing taxpayer information. We can only look at, record, discuss or disclose information about you when it is a necessary part of our work, or where the law specifies that we may.
Section 355-50 of Schedule 1 to the Taxation Administration Act 1953 (TAA) allows us to record or disclose information about you in certain circumstances.
In relation to licensing information, section 355-50 of Schedule 1 to the TAA allows us to disclose information about whether you hold a current excise licence or what conditions may apply to that licence if the information is required so that another person is able to understand or comply with the Excise Act.
If we decide that the disclosure is necessary, we must provide the information in writing to the person who requires it. If the matter is urgent, we may advise by phone. However, we must later confirm the information in writing.
Anyone who receives licensing information should use it only for the purpose for which it was given. Any other use may be unlawful.
Note: The TAA imposes certain obligations on you concerning the on-disclosure of information that affects another person. [57] The Privacy Act imposes certain obligations on you concerning the privacy of information that you have received about an individual. Further information can be obtained from the Office of the Australian Information Commissioner . Our decision in relation to the disclosure of protected information is not a reviewable decision. However, you have the right to make a complaint to the Commonwealth Ombudsman about a range of administrative actions we take or the Privacy Commissioner if you think we have breached the Privacy Act in dealing with your personal information.
2.4 PROCEDURES
If you would like to apply for a licence, you should:
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- contact us by phone on 1300 137 290 , and
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- lodge an application form together with all the required supporting documents. [58]
Our staff will:
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- discuss your particular circumstances with you
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- give you advice about the appropriate licence or licences
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- explain how to apply
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- explain your ongoing obligations as a licence holder, and
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- provide you with a licence application form.
Before lodging your application form, make sure you have included the required supporting documents. Your application form contains information to help you work out which supporting documents you must provide. You may also need to complete other excise forms, depending upon your proposed activities.
Supporting documents can include:
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- an accurate plan of the premises that clearly indicates the area for production, dealing, manufacture or storage
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- a Fit and proper person declaration , and
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- if requested by us, a Consent to a national criminal history check - excise.
To lodge your completed application form and supporting documents:
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- lodge online ATO Online Services , or
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- post them to
- Excise Licensing
- Australian Taxation Office
PO Box 3514
ALBURY NSW 2640
2.4.2 CHANGING LICENCE DETAILS
We can amend your licence for changes that do not involve a change of entity or physical location. This includes a change of:
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- business name (that is your trading name)
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- postal address, or
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- street name or property address made by a relevant authority.
A change in composition of a partnership does not affect the continuity of the partnership's licence. Any one or more of the partners may act on behalf of the partnership in notifying changes. [60]
You must advise us of any of these changes within 30 days. We will then provide you with an amended licence.
If you need more information on licensing matters, contact us via:
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- ATO Online Services
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- phone 1300 137 290 , or
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- write to us at
- Australian Taxation Office
PO Box 3514
ALBURY NSW 2640
We will ordinarily respond to written information requests within 28 days. If we cannot respond within 28 days, we will contact you within 14 days to obtain more information or negotiate an extended response date.
2.4.4 PENALTIES THAT CAN APPLY IN RELATION TO LICENCES
The following are the penalties that may apply after conviction for an offence.
If you intentionally produce tobacco seed or plant without a producer licence, the penalty is a maximum of 2 years in prison or 500 ' penalty units '. [61]
If you intentionally produce tobacco leaf without a producer licence, the penalty is a maximum of 2 years in prison or the greater of 500 penalty units and 5 times the amount of duty that would have been payable if tobacco leaf had been manufactured into excisable goods. [62]
If your production of tobacco seed, plant or leaf does not comply with the Excise Act or any conditions specified in your licence, the penalty is a maximum of 2 years in prison or 500 penalty units. [63]
If you intentionally produce tobacco seed or plant at premises that are not specified in your licence, the penalty is a maximum of 2 years in prison or up to 500 penalty units. [64]
If you intentionally produce tobacco leaf at premises that are not specified in your licence, the penalty is a maximum of 2 years in prison or the greater of 500 penalty units and 5 times the amount of duty that would have been payable if tobacco leaf had been manufactured into excisable goods. [65]
A separate strict liability penalty of 100 penalty units can apply to all offences included in this section. [66]
If you intentionally deal in tobacco seed or plant without a dealer licence, the penalty is a maximum of 2 years in prison or 500 penalty units. [67]
If you intentionally deal in tobacco leaf without a dealer licence, the penalty is a maximum of 2 years in prison or the greater of 500 penalty units and 5 times the amount of duty that would have been payable if tobacco leaf had been manufactured into excisable goods. [68]
If your dealing in tobacco seed, plant or leaf intentionally does not comply with the Excise Act and any conditions specified in your licence, the penalty is a maximum of 2 years in prison or 500 penalty units. [69]
If you intentionally deal in tobacco seed, plant or leaf at premises that are not specified in your licence, the penalty is a maximum of 2 years in prison or 500 penalty units. [70]
A strict separate liability penalty of 100 penalty units can apply to all offences included in this section. [71]
If you intentionally manufacture excisable tobacco goods without a manufacturer licence, the maximum penalty is both 10 years in prison and the greater of the following:
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- 1,500 penalty units
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- 5 times the amount of duty on the excisable tobacco goods. [72]
If you intentionally manufacture excisable tobacco goods contrary to the Excise Act or any conditions specified in your licence, the penalty is a maximum of 2 years in prison or 500 penalty units. [73]
If you intentionally manufacture excisable tobacco goods at premises that are not covered by your licence, the penalty is a maximum of 2 years in prison or the greater of 500 penalty units and 5 times the amount of duty on the excisable tobacco goods. [74]
A separate strict liability penalty of 100 penalty units can apply to all offences included in this section. [75]
If you are a licensed producer and you intentionally keep or store tobacco seed, or plant at premises that are not covered by your licence, the penalty is a maximum of 2 years in prison or 500 penalty units. [76]
If you are a licensed producer and you intentionally keep or store tobacco leaf at premises that are not covered by your licence, the penalty is a maximum of 2 years in prison or the greater of 500 penalty units and 5 times the amount of duty that would have been payable if tobacco leaf had been manufactured into excisable goods. [77]
If you are a licensed dealer and you intentionally keep or store tobacco seed, or plant at premises that are not covered by your licence, the penalty is a maximum of 2 years in prison or 500 penalty units. [78]
If you are a licensed dealer and you intentionally keep or store tobacco leaf at premises that are not covered by your licence, the penalty is a maximum of 2 years in prison or the greater of 500 penalty units and 5 times the amount of duty that would have been payable if tobacco leaf had been manufactured into excisable goods. [79]
If you intentionally possess or have custody or control of excisable tobacco goods without permission, the maximum penalty is 10 years in prison and the greater of the following:
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- 1500 penalty units
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- 5 times the amount of duty on the excisable tobacco goods. [80]
If you intentionally possess or have custody or control of tobacco seed or plant without permission, the maximum penalty is 10 years in prison and the greater of the following:
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- 1,500 penalty units
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- for tobacco plant, 5 times the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption. [81]
If you intentionally possess or have custody or control of tobacco leaf without permission, the maximum penalty is 10 years in prison and the greater of the following:
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- 1,500 penalty units
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- 5 times the amount of duty that would be payable if the leaf is manufactured into excisable tobacco goods and entered for home consumption. [82]
A separate strict liability penalty of 100 penalty units can apply to all offences under the Excise Act included in this section. [83]
False or misleading statements
If you make a statement to us that is false or misleading, or make an omission from a statement that makes it false or misleading, the penalty is a maximum of 50 penalty units.
However, if that false or misleading statement is in respect of duty payable on particular goods, the penalty is a maximum of 50 penalty units and twice the amount of duty payable on those goods. [84]
If you do not keep, retain and produce records as directed, the penalty is a maximum of 30 penalty units. [85]
If you do not comply with a direction in regard to what parts of the factory can be used for various matters, the penalty is of 10 penalty units. [86]
If you intentionally make or use counterfeit bale labels, the penalty is a maximum of 500 penalty units. A separate strict liability penalty of penalty 100 units can apply to this offence. [87]
If you do not provide all reasonable facilities for enabling us to exercise our powers under the Excise Act, the penalty is a maximum of 10 penalty units. [88]
If you do not provide sufficient lights, correct weights and scales, and all labour necessary for weighing material received into, and all excisable tobacco goods manufactured in your factory and for taking stock of all material and excisable tobacco goods contained in your factory, the maximum penalty is 10 penalty units. [89]
If we mark or seal excisable tobacco goods or fasten, lock or seal any plant in your factory and you alter, break or erase the mark, seal, fastening or lock, the maximum penalty is 50 penalty units. [90]
2.5 TERMS USED
CEO means the Commissioner of Taxation.
Tobacco goods are no longer subject to excise control from the point of manufacture when they have been deemed entered and delivered into home consumption. Duty is payable by the manufacturer at the time the goods are manufactured.
Tobacco seed, plant and leaf are subject to excise control and cannot be moved, altered or interfered with except as authorised by the Excise Act.
An excise return [91] is the document that you use to advise us the volume of excisable tobacco goods that you have manufactured during the 7-day tobacco excise period designated on your licence.
Excisable goods are goods on which excise duty is imposed. Excise duty is imposed on goods that are manufactured or produced in Australia and listed in the Schedule to the Excise Tariff Act.
The value of a penalty unit is contained in section 4AA of the Crimes Act 1914, and is indexed regularly. The dollar amount of a penalty unit is available at Penalties .
This is a written instruction issued under section 50 of the Excise Act to a licensed manufacturer, licensed producer, licensed dealer, or proprietor of premises covered by an excise licence, to keep specified records, furnish specified returns, retain records for a specified period and produce those records on demand by us.
Tobacco means tobacco leaf subjected to any process other than curing the leaf as stripped from the plant. [92] Tobacco includes any thing (including moisture) added to the tobacco leaf during manufacturing or processing. [93]
This means that until tobacco leaf is subjected to processes after curing it is not excisable. However tobacco seed and plant is a controlled substance and as such you need to hold an excise producer or dealer licence to be in possession of these goods.
The species of the Nicotiana genus that are generally used for smoking, chewing or snuff are considered to produce tobacco leaf. Those species are currently Nicotiana tabacum, Nicotiana rusticum and Nicotiana sylvestris.
This is an expression not found in excise legislation, but it is widely used to describe goods that are subject to excise control. Excisable goods that are subject to excise control are commonly referred to as 'underbond goods' or as being 'underbond'. This includes goods that have not yet been delivered into home consumption and goods moving between premises covered by a licence under a movement permission.
Amendment history
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| Throughout | Content checked for technical accuracy and currency.
Updated in line with current ATO style and accessibility requirements. |
Copyright notice
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References
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