Excise Act 1901

PART I-INTRODUCTORY  

SECTION 1  

1   SHORT TITLE  
This Act may be cited as the Excise Act 1901.

SECTION 2  

2   COMMENCEMENT  
This Act shall commence on a day to be fixed by Proclamation.

SECTION 4   DEFINITIONS  

4(1)    


In this Act, except where otherwise clearly intended:

apply
, in relation to an LPG remission, has a meaning affected by subsection (5).

approved form
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.

approved place
means:


(a) premises covered by a storage licence; or


(b) premises, other than premises that are a factory, covered by a manufacturer licence.

Australia
does not include:


(aa) Norfolk Island; or


(a) the Territory of Christmas Island; or


(b) the Territory of Cocos (Keeling) Islands;

authorised officer
, in relation to a section of any of the Excise Acts, means an officer authorised in writing by the CEO to exercise the powers or perform the functions of an authorised officer under that section;

beer
means any liquor on which, under the name of beer, any duty of excise imposed by the Parliament is payable;

Bulk container
means a container that has the capacity to have packaged in it more than 2 litres of liquid;

By authority
means by the authority of an officer doing duty in the matter in relation to which the expression is used;

CEO
means the Commissioner of Taxation;

Collector
means:


(a) the CEO; or


(b) in relation to a section of an Excise Act for which a person is an authorised officer - that authorised officer.

Commonwealth authority
means an authority or body established for a purpose of the Commonwealth by or under a law of the Commonwealth (including an Ordinance of the Australian Capital Territory).

condensate
means either:


(a) liquid petroleum; or


(b) a substance:


(i) that is derived from gas associated with oil production; and

(ii) that is liquid at standard temperature and pressure;

Container
means any article capable of holding liquids;

Note:

Container is defined differently in section 87 and in Division 1A of Part IX.

conveyance
means an aircraft, railway rolling stock, vehicle or vessel of any kind.

Dealer
(Repealed by No 115 of 2000)

dealer licence
has the meaning given bysubsection 38(5).

diesel fuel
(Repealed by No 54 of 2003)

diesel fuel rebate
(Repealed by No 54 of 2003)

diesel fuel rebate application
(Repealed by No 54 of 2003)

diesel fuel rebate Customs provisions
(Repealed by No 54 of 2003)

diesel fuel records
(Repealed by No 54 of 2003)

Duty
or "Excise duty" means duty of Excise.

eligible business entity
has the meaning given by subparagraph 61C(1)(b)(ia).

Excise Acts
means this Act and any instruments (including rules, regulations or by-laws) made under this Act and any other Act , and any instruments (including rules, regulations or by-laws) made under any other Act, relating to excise in force within the Commonwealth or any part of the Commonwealth.

Excisable goods
means goods in respect of which excise duty is imposed by the Parliament, and includes goods the subject of an Excise Tariff or Excise Tariff alteration proposed in the Parliament.

excisable LPG use
in relation to LPG:


(a) means the use of LPG in a system for supplying fuel to an internal combustion engine of either a motor vehicle or a vessel, either directly or by filling another tank connected to such an engine; but


(b) does not include the use of LPG for a motor vehicle that:


(i) is designed merely to move goods with a forklift and is for use primarily off public roads; or

(ii) is of a kind prescribed by the regulations for the purposes of this subparagraph.

excise place
means:


(a) a factory; or


(b) an approved place; or


(c) premises covered by a producer licence or dealer licence.

Excise Tariff
means an Act imposing duties of excise and includes such an Act that has not come into operation.

Factory
means premises on which any person is licensed to manufacture excisable goods, and includes all adjoining premises used in connexion therewith or with the business of the licensed manufacturer.

Finance Minister
has the meaning given by the Income Tax Assessment Act 1997.

fuel
means goods of a kind that fall within a classification in item 10, 20 or 21 of the Schedule to the Excise Tariff.

Gazette notice
means a notice signed by the CEO and published in the Gazette.

gaseous fuel
means compressed natural gas, liquefied natural gas or liquefied petroleum gas.

Industry Minister
(Repealed by No 88 of 2009)

International aircraft
has the same meaning as "aircraft" has in Part VII of the Customs Act 1901;

Justice
means any Justice of the Peace having jurisdiction in the place.

licence
has the meaning given by subsection 38(1).

licensed dealer
means a person or partnership who holds a dealer licence.

licensed manufacturer
means a person or partnership who holds a manufacturer licence.

licensed producer
means a person or partnership who holds a producer licence.

liquid petroleum
is a mixture of hydrocarbons:


(a) that is produced from gas wells; and


(b) that is liquid at standard temperature and pressure after recovery in surface separation facilities;

but does not include a substance referred to in paragraph (b) of the definition of condensate;

LPG
means:


(a) liquid propane; or


(b) a liquid mixture of propane and butane; or


(c) a liquid mixture of propane and other hydrocarbons that consists mainly of propane; or


(d) a liquid mixture of propane, butane and other hydrocarbons that consists mainly of propane and butane.

LPG remission
in relation to LPG means a remission, refund or rebate of excise duty that applies to LPG under regulations made under section 78 because the LPG is not intended to be used for an excisable LPG use.

Manufacture
includes all processes in the manufacture of excisable goods and, in relation to beer, includes the provision to the public at particular premises of commercial facilities and equipment for use in the production of beer at those premises;

Manufacturer
(Repealed by No 115 of 2000)

manufacturer licence
has the meaning given by subsection 38(2).

officer
means a person employed or engaged under the Public Service Act 1999 who is:


(a) exercising powers; or


(b) performing functions;

under, pursuant to or in relation to a taxation law (as defined by the Taxation Administration Act 1953).

Officer of Customs
(Repealed by No 25 of 2001)

other excisable beverage
(Repealed by No 74 of 2006)

Overseas ship
has the same meaning as "ship" has in Part VII of the Customs Act 1901;

penalty day
, in relation to an offence, means:


(a) if the Court knows the day on which the offence was committed - that day; or


(b) otherwise - the day on which the prosecution for the offence is instituted.

Permission
means the written permission of the Collector.

Place
includes ship or aircraft.

Place outside Australia
does not include:


(a) a ship or an area of waters, outside Australia; or


(b) an installation outside Australia; or


(c) a reef or an uninhabited island outside Australia.

Proclaimed material
(Repealed by No 115 of 2000)

Producer
(Repealed by No 115 of 2000)

producer licence
has the meaning given by subsection 38(4).

proprietor
of an approved place means a person or partnership who holds a storage licence that covers that place.

quarter
means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

Resources Minister
has the meaning given by the Petroleum Resource Rent Tax Assessment Act 1987.

Ship
means any vessel used in navigation, other than air navigation, and includes a barge, lighter or any other floating vessel.

small business entity
has the meaning given by section 328-110 (other than subsection 328-110(4)) of the Income Tax Assessment Act 1997.

Spirit
means goods described in item 3 of the Schedule to the Excise Tariff Act 1921;

Spirit
means a temperature of 20 degrees centigrade and a pressure of one standard atmosphere;

storage licence
has the meaning given by subsection 38(3).

The Customs
(Repealed by No 33 of 2009)

The Proprietor
(Repealed by No 115 of 2000)

This Act
includes all Excise Acts incorporated therewith and all regulations made under this Act or any such Excise Act.

tobacco
has a meaning affected by subsection (6).

tobacco goods
means goods mentioned in subitem 5.1, 5.5 or 5.8 of the table in the Schedule to the Excise Tariff Act 1921.

tobacco bale label
means a label that:


(a) is in a form approved in writing by the Commissioner of Taxation; and


(b) uniquely identifies a bale of tobacco leaf.

Warehouse
means a warehouse licensed under the Customs Act 1901.


4(2)    


A reference in this Act to a police officer shall be read as a reference to a member or special member of the Australian Federal Police or a member of the Police Force of a State or Territory.

4(3)    
A reference in this Act or in any other Act to an Excise Tariff or Excise Tariff alteration proposed in the Parliament shall be read as a reference to an Excise Tariff or Excise Tariff alteration proposed by a motion moved in the House of Representatives, and an Excise Tariff or Excise Tariff alteration proposed by a motion so moved shall be deemed to have been proposed in the Parliament at the time at which the motion was moved.

4(4)    
For the purposes of this Act, where the Schedule to the Excise Tariff Act 1921 applies in respect of goods, excise duty shall be taken to be imposed by the Parliament in respect of those goods notwithstanding that the word "Free" is specified in the column headed "Rate of Duty" in that Schedule as the rate of duty chargeable on those goods.

4(5)    


To avoid doubt, an LPG remission ceases to apply in relation to LPG if the excise duty on the LPG is subsequently paid (despite the remission having previously applied).

4(6)    


For the purposes of this Act, treat as tobacco any thing (including moisture) added to the tobacco leaf during manufacturing or processing.

SECTION 4AAA   ACT NOT TO APPLY SO AS TO EXCEED COMMONWEALTH POWER  

4AAA(1)    
Unless the contrary intention appears, if a provision of this Act:


(a) would, apart from this section, have an invalid application; but


(b) also has at least one valid application;

it is the Parliament's intention that the provision is not to have the invalid application, but is to have every valid application.


4AAA(2)    
Despite subsection (1), the provision is not to have a particular valid application if:


(a) apart from this section, it is clear, taking into account the provision's context and the purpose or object underlying the Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth's legislative power; or


(b) the provision's operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth's legislative power.

4AAA(3)    
Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

4AAA(4)    
This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

4AAA(5)    
In this section:

"application"
means an application in relation to:


(a) one or more particular persons, things, matters, places, circumstances or cases; or


(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

"invalid application"
, in relation to a provision, means an application because of which the provision exceeds the Commonwealth's legislative power;

"valid application"
, in relation to a provision, means an application that, if it were the provision's only application, would be within the Commonwealth's legislative power.


SECTION 4AA  

4AA   APPROVED FORMS  

SECTION 4A   CERTAIN INSTALLATIONS TO BE PART OF AUSTRALIA  

4A(1)    
For the purposes of the Excise Acts:


(a) a resources installation that becomes attached to, or that is, at the commencement of this subsection, attached to, the Australian seabed; or


(b) a sea installation that becomes installed in, or that is, at the commencement of this subsection, installed in, an adjacent area or a coastal area;

shall, subject to subsections (2) and (3), be deemed to be part of Australia.


4A(2)    
A resources installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of the Excise Acts, cease to be part of Australia if:


(a) the installation is detached from the Australian seabed, or from another resources installation attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or


(b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).

4A(3)    
A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of the Excise Acts, cease to be part of Australia if:


(a) the installation is detached from its location for the purpose of being taken to a place that is not in an adjacent area or in a coastal area; or


(b) after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place that is not in an adjacent area or in a coastal area.

4A(4)    
In this section:


(a) ``adjacent area'', ``Australian seabed'', ``coastal area'', ``resources installation'' and ``sea installation'' have the same respective meanings as in the Customs Act 1901;


(b) a resources installation shall be taken to be attached to the Australian seabed if it would be taken to be so attached for the purposes of the Customs Act 1901;


(c) a sea installation shall be taken to be installed in an adjacent area if it would be taken to be so installed for the purposes of the Customs Act 1901; and


(d) a sea installation shall be taken to be installed in a coastal area if it would be taken to be so installed for the purposes of the Customs Act 1901.

SECTION 5  

5   PENALTY AT FOOT OF SECTIONS  


The penalties referred to at the foot of sections indicate that any contravention of the section whether by act or omission is an offence against this Act punishable on conviction by a penalty not exceeding the penalty mentioned.

SECTION 5A  

5A   DECLARATION OFAPPROVED PLACES  

SECTION 6  

6   APPLICATION OF ACT  
This Act is incorporated and shall be read as one with the other Excise Acts except in so far as this Act is inconsistent with another Excise Act or other provision is made in another Excise Act.

SECTION 6A   HOW THIS ACT APPLIES TO PARTNERSHIPS  

6A(1)    
This Act applies to a partnership as if the partnership were a person, but it applies with the changes set out in subsections (2), (3), (4), (5) and (6).

6A(2)    
If this Act would otherwise require or permit something to be done by the partnership, the thing may be done by one or more of the partners on behalf of the partnership.

6A(3)    
If under this Act a document is given to a partner of the partnership in accordance with section 28A of the Acts Interpretation Act 1901, the document is taken to have been given to the partnership.

6A(4)    
An obligation that would otherwise be imposed on the partnership by this Act:


(a) is imposed on each partner instead; but


(b) may be discharged by any of the partners.

6A(5)    
The partners are jointly and severally liable to pay an amount that would otherwise be payable by the partnership under this Act.

6A(6)    
An offence against this Act that would otherwise be committed by the partnership is taken to have been committed by each partner who:


(a) aided, abetted, counselled or procured the relevant act or omission; or


(b) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the partner).

6A(7)    
If, for the purposes of subsection (6), it is necessary to establish that the partnership engaged in particular conduct, it is sufficient to show that the conduct was engaged in by a partner within the scope of his or her actual or apparent authority. If it is also necessary to establish that the partnership had a particular state of mind when it engaged in that conduct, it is sufficient to show the partner had the relevant state of mind.

6A(8)    
For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.


SECTION 6B   APPLICATION OF THE CRIMINAL CODE  

6B(1)    
Subject to subsection (2), Chapter 2 of the Criminal Code applies to an offence against this Act.

6B(2)    
For the purposes of an Excise Prosecution:


(a) Parts 2.1, 2.2, 2.3 and 2.4 of the Criminal Code apply; and


(b) Parts 2.5 and 2.6 of the Criminal Code do not apply; and


(c) a reference to criminal responsibility in Chapter 2 of the Criminal Code is taken to be a reference to responsibility.

6B(3)    
This section is not to be interpreted as affecting in any way the nature of any offence under this Act, the nature of any prosecution or proceeding in relation to any such offence, or the way in which any such offence is prosecuted, heard or otherwise dealt with.

6B(4)    
Without limiting the scope of subsection (3), this section is not to be interpreted as affecting in any way the standard or burden of proof for any offence under this Act that is the subject of an Excise Prosecution.

6B(5)    
In this section:

Excise Prosecution
has the meaning given in section 133.


PART II-ADMINISTRATION  

SECTION 7  

7   GENERAL ADMINISTRATION OF ACT  


The CEO has the general administration of this Act.
Note:

An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.

SECTION 8   DELEGATION BY MINISTER  

8(1)    


The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to an officer all or any of the Minister's powers under any Excise Act, other than this power of delegation.

8(2)    
A power so delegated, when exercised by the delegate, shall, for the purposes of the excise Act that conferred the power, be deemed to have been exercised by the Minister.

8(3)    
A delegation under this section does not prevent the exercise of a power by the Minister.

SECTION 12A  

12A   ATTACHMENT OF PART OF A STATE OR TERRITORY TO ADJOINING STATE OR TERRITORY FOR ADMINISTRATIVE PURPOSES  

SECTION 13  

13   CUSTOMS OFFICERS TO BE EXCISE OFFICERS  

SECTION 14  

14   FEES  

SECTION 15   TIME FOR COMPLIANCE WITH THIS ACT  

15(1)    


Where under any Excise Tariff or Excise Tariff alteration proposed in the Parliament any excise duty is proposed to be imposed on any goods previously free, any person who manufactures or proposes to manufacture those goods shall be allowed until the end of the transition period to comply with the provisions of this Act relating to licences.

15(2)    


However, during the transition period:


(a) a person who manufactures those goods without holding a manufacturer licence must comply with this Act as if the person held such a licence; and


(b) the premises on which the person manufactures those goods are taken to be a factory.


15(3)    


In this section:

first day
means the day on which the Excise Tariff or Excise Tariff alteration is proposed in the Parliament.

transition period
means the period starting at the start of the first day and ending either:


(a) 2 months after the end of the first day; or


(b) if, before the end of those 2 months:


(i) the person applies for a manufacturer licence for the goods; and

(ii) the Collector has not decided whether to grant, or refuse to grant, that licence;
at the earliest of the following:

(iii) 12 months after the end of the first day;

(iv) the end of the last day (if any) for the goods determined under subsection (4);

(v) the end of the day the Collector grants, or refuses to grant, the manufacturer licence.


15(4)    


For the purposes of this section, the Collector may, by legislative instrument, determine the last possible day of the transition period (the last day ) for particular goods. Such a day must be a day occurring:


(a) after:


(i) the day the determination was made; and

(ii) the end of the 2 months starting at the end of the first day; but


(b) before the end of the 12 months starting at the end of the first day.


15(5)    
(Repealed byNo 58 of 2006)


SECTION 16  

16   RIGHT TO REQUIRE SECURITY  


The CEO shall have the right to require and take securities for compliance with the Excise Acts and generally for the protection of the revenue and pending the giving of the required security in relation to any goods subject to the control of the CEO may refuse to deliver the goods or to pass any entry relating thereto.
Note:

Authorities given under section 114C of the Customs Act 1901 can be subject to conditions relating to securities under this section.

SECTION 17  

17   FORM OF SECURITY  
A security shall be given in a manner and form approved by a Collector and may, subject to that approval, be by bond, guarantee, cash deposit or any other method, or by 2 or more different methods.

SECTION 18  

18   GENERAL SECURITY MAY BE GIVEN  
When security is required for any particular purpose security may by the authority of the CEO be accepted to cover all transactions for such time and for such amount as the CEO may approve.

SECTION 19  

19   CANCELLATION OF BONDS  


All securities taken for compliance with the Excise Acts may after the expiration of 3 years from the date thereof or from the time specified for the performance of the conditions thereof be cancelled by the CEO.

SECTION 20  

20   NEW SURETIES  
If the Collector is not at any time satisfied with the sufficiency of any security he or she may require a fresh security and a fresh security shall be given accordingly.

SECTION 21  

21   FORM OF SECURITY  


The form of security in Schedule I shall suffice for all the purposes of a bond or guarantee under any Excise Act and without sealing shall bind its subscribers as if sealed and unless otherwise provided therein jointly and severally and for the full amount.

SECTION 22  

22   EFFECT OF SECURITY  


Whenever any such security is put in suit by the Collector the production thereof without further proof shall entitle the Collector to judgment for their stated liability against the persons appearing to have executed it unless the defendants shall prove compliance with the condition or that the security was not executed by them or release or satisfaction.

SECTION 23  

23   SURRENDER OF LESSER LICENCE FOR LARGER LICENCE  

SECTION 24   EXCISABLE GOODS AND GOODS LIABLE TO DUTIES OF CUSTOMS MAY BE USED IN MANUFACTURING EXCISABLE GOODS  

24(1)    
Excisable goods may, while subject to the CEO's control, be used in the manufacture of other excisable goods in accordance with this Act.

24(2)    


Goods liable to duties of Customs may, while subject to customs control under the Customs Act 1901, be used in the manufacture of excisable goods in accordance with this Act.

24(3)    
The regulations may prescribe conditions on the use of:


(a) excisable goods, while subject to the CEO's control, in the manufacture of other excisable goods; or


(b) goods liable to duties of Customs, while subject to customs control under the Customs Act 1901, in the manufacture of excisable goods.


PART III-MANUFACTURERS, PRODUCERS AND DEALERS  

Division 1-Manufacturers  

SECTION 25   ONLY LICENSED MANUFACTURERS TO MANUFACTURE EXCISABLE GOODS  

25(1)    
A person who does not hold a manufacturer licence must not intentionally manufacture excisable goods knowing, or being reckless as to whether, the goods are excisable goods.

Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


  • 25(2)    
    A person who does not hold a manufacturer licence must not manufacture excisable goods.

    Penalty: 100 penalty units.


    25(3)    
    Strict liability applies to subsection (2).


    SECTION 26   LICENSED MANUFACTURERS TO MANUFACTURE IN ACCORDANCE WITH ACT AND LICENCE  

    26(1)    
    A licensed manufacturer must not intentionally manufacture excisable goods knowing, or being reckless as to whether, the manufacture contravenes this Act or the manufacturer licence.

    Penalty: 2 years imprisonment or 500 penalty units.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    26(2)    
    A licensed manufacturer must not manufacture excisable goods in contravention of this Act or the manufacturer licence.

    Penalty: 100 penalty units.


    26(3)    
    Strict liability applies to subsection (2).


    SECTION 27   LICENSED MANUFACTURERS TO MANUFACTURE ONLY AT LICENSED PREMISES  

    27(1)    
    A licensed manufacturer must not intentionally manufacture excisable goods at premises that are not covered by the manufacturer licence knowing, or being reckless as to whether, the goods are excisable goods and:

    (a)    knowing the premises are not covered by the manufacturer licence; or

    (b)    being reckless as to whether the premises are covered by the manufacturer licence.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


  • 27(2)    
    A licensed manufacturer must not manufacture excisable goods at premises that are not covered by the manufacturer licence.

    Penalty: 100 penalty units.


    27(3)    
    Strict liability applies to subsection (2).


    Division 2-Producers  

    SECTION 28   ONLY LICENSED PRODUCERS TO PRODUCE TOBACCO LEAF ETC.  

    28(1)    
    A person who does not hold a producer licence must not intentionally produce material that is tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, the material is tobacco seed, tobacco plant or tobacco leaf.

    Penalty:

  • (a) for tobacco seed or tobacco plant-2 years imprisonment or 500 penalty units; and
  • (b) for tobacco leaf-2 years imprisonment or the greater of:
  • (i) 500 penalty units; and
  • (ii) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.
  • Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    28(2)    
    A person who does not hold a producer licence must not produce tobacco seed, tobacco plant or tobacco leaf.

    Penalty: 100 penalty units.


    28(3)    
    Strict liability applies to subsection (2).


    SECTION 29   LICENSED PRODUCERS TO PRODUCE IN ACCORDANCE WITH ACT AND LICENCE  

    29(1)    
    A licensed producer must not intentionally produce tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, the production contravenes this Act or the producer licence.

    Penalty: 2 years imprisonment or 500 penalty units.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    29(2)    
    A licensed producer must not produce tobacco seed, tobacco plant or tobacco leaf in contravention of this Act or the producer licence.

    Penalty: 100 penalty units.


    29(3)    
    Strict liability applies to subsection (2).


    SECTION 30   LICENSED PRODUCERS TO STORE TOBACCO LEAF ETC. AT LICENSED PREMISES  

    30(1)    
    A licensed producer must not, without permission, intentionally keep or store material that is tobacco seed, tobacco plant or tobacco leaf at premises that are not covered by the producer licence knowing, or being reckless as to whether, the material is tobacco seed, tobacco plant or tobacco leaf and:

    (a)    knowing the premises are not covered by the producer licence; or

    (b)    being reckless as to whether the premises are covered by the producer licence.

    Penalty:

  • (a) for tobacco seed or tobacco plant - 2 years imprisonment or 500 penalty units; and
  • (b) for tobacco leaf - 2 years imprisonment or the greater of:
  • (i) 500 penalty units; and
  • (ii) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.
  • Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    30(2)    
    A licensed producer must not, without permission, keep or store tobacco seed, tobacco plant or tobacco leaf at premises that are not covered by the producer licence.

    Penalty: 100 penalty units.


    30(3)    
    Strict liability applies to subsection (2).


    SECTION 31   LICENSED PRODUCERS TO PRODUCE TOBACCO LEAF ETC. AT LICENSED PREMISES  

    31(1)    
    A licensed producer must not intentionally produce material that is tobacco seed, tobacco plant or tobacco leaf at premises that are not covered by the producer licence knowing, or being reckless as to whether, the material is tobacco seed, tobacco plant or tobacco leaf and:

    (a)    knowing the premises are not covered by the producer licence; or

    (b)    being reckless as to whether the premises are covered by the producer licence.

    Penalty:

  • (a) for tobacco seed or tobacco plant - 2 years imprisonment or 500 penalty units; and
  • (b) for tobacco leaf - 2 years imprisonment or the greater of:
  • (i) 500 penalty units; and
  • (ii) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.
  • Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    31(2)    
    A licensed producer must not produce tobacco seed, tobacco plant or tobacco leaf at premises that are not covered by the producer licence.

    Penalty: 100 penalty units.


    31(3)    
    Strict liability applies to subsection (2).


    SECTION 32  

    32   ACCOUNTS AND RETURNS FOR LICENSED PRODUCERS  
    (Repealed by No 74 of 2006)

    Division 3 - Dealers  

    SECTION 33   ONLY LICENSED DEALERS TO DEAL IN TOBACCO LEAF ETC.  

    33(1)    
    A person who does not hold a dealer licence must not intentionally deal in material that is tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, the material is tobacco seed, tobacco plant or tobacco leaf.

    Penalty:

  • (a) for tobacco seed or tobacco plant-2 years imprisonment or 500 penalty units; and
  • (b) for tobacco leaf-2 years imprisonment or the greater of:
  • (i) 500 penalty units; and
  • (ii) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.
  • Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    33(2)    
    A person who does not hold a dealer licence must not deal in tobacco seed, tobacco plant or tobacco leaf.

    Penalty: 100 penalty units.


    33(3)    
    Strict liability applies to subsection (2).

    33(4)    
    Subsections (1) and (2) do not apply to a licensed producer who:


    (a) transfers tobacco seed, tobacco plant or tobacco leaf that the producer had produced; or


    (b) acquires tobacco seed or tobacco plant for the purpose of producing tobacco seed, tobacco plant or tobacco leaf.

    Note: A defendant bears an evidential burden for the matters in subsection (4).


    SECTION 34   LICENSED DEALERS TO DEAL IN ACCORDANCE WITH ACT AND LICENCE  

    34(1)    
    A licensed dealer must not intentionally deal in tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, the dealing contravenes this Act or the dealer licence.

    Penalty: 2 years imprisonment or 500 penalty units.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    34(2)    
    A licensed dealer must not deal in tobacco seed, tobacco plant or tobacco leaf in contravention of this Act or the dealer licence.

    Penalty: 100 penalty units.


    34(3)    
    Strict liability applies to subsection (2).


    SECTION 35   LICENSED DEALERS TO STORE TOBACCO LEAF ETC. AT LICENSED PREMISES  

    35(1)    
    A licensed dealer must not, without permission, intentionally keep or store material that is tobacco seed, tobacco plant or tobacco leaf at premises that are not covered by the dealer licence knowing, or being reckless as to whether, the material is tobacco seed, tobacco plant or tobacco and:

    (a)    knowing the premises are not covered by the dealer licence; or

    (b)    being reckless as to whether the premises are covered by the dealer licence.

    Penalty:

  • (a) for tobacco seed or tobacco plant - 2 years imprisonment or 500 penalty units; and
  • (b) for tobacco leaf - 2 years imprisonment or the greater of:
  • (i) 500 penalty units; and
  • (ii) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.
  • Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    35(2)    
    A licensed dealer must not, without permission, keep or store tobacco seed, tobacco plant or tobacco leaf at premises that are not covered by the dealer licence.

    Penalty: 100 penalty units.


    35(3)    
    Strict liability applies to subsection (2).


    SECTION 36   LICENSED DEALERS TO DEAL IN TOBACCO LEAF ETC. AT LICENSED PREMISES  

    36(1)    
    A licensed dealer must not intentionally carry on a business as a dealer at premises that are not covered by the dealer licence:

    (a)    knowing the premises are not covered by the dealer licence; or

    (b)    being reckless as to whether the premises are covered by the dealer licence.

    Penalty: 2 years imprisonment or 500 penalty units.


    36(2)    
    A licensed dealer must not carry on a business as a dealer at premises that are not covered by the dealer licence.

    Penalty: 100 penalty units.


    36(3)    
    Strict liability applies to subsection (2).


    SECTION 37  

    37   ACCOUNTS AND RETURNS FOR LICENSED DEALERS  
    (Repealed by No 74 of 2006)

    PART IV - MANUFACTURER, STORAGE, PRODUCER AND DEALER LICENCES  

    Division 1AA - Kinds of licences  

    SECTION 38   KINDS OF LICENCES  


    Kinds of licences

    38(1)    
    Each of the following is a licence for the purposes of this Act:

    (a)    a manufacturer licence;

    (b)    a storage licence;

    (c)    a producer licence;

    (d)    a dealer licence.

    Manufacturer licences

    38(2)    
    A manufacturer licence is a licence granted under subsection 39A(1) that authorises the licence holder to do any of the following:

    (a)    at one or more premises covered by the licence - manufacture kinds of excisable goods;

    (b)    at each premises covered by the licence - keep and store kinds of excisable goods on which duty has not been paid.

    Note:

    Certain manufacturer licences may cover only one premises (see subsection 38A(2)).



    Storage licences

    38(3)    
    A storage licence is a licence granted under subsection 39A(1) that authorises the licence holder to do any of the following, at each premises covered by the licence:

    (a)    keep and store kinds of excisable goods on which duty has not been paid;

    (b)    carry out other activities authorised by the licence.

    Producer licences

    38(4)    
    A producer licence is a licence granted under subsection 39A(1) that authorises the licence holder to do any of the following, at the premises covered by the licence:

    (a)    produce tobacco seed, tobacco plant or tobacco leaf;

    (b)    keep and store tobacco seed, tobacco plant and tobacco leaf.

    Dealer licences

    38(5)    
    A dealer licence is a licence granted under subsection 39A(1) that authorises the licence holder to do any of the following at the premises covered by the licence:

    (a)    deal in tobacco seed, tobacco plant and tobacco leaf;

    (b)    keep and store tobacco seed, tobacco plant and tobacco leaf.

    SECTION 38A   PREMISES THAT LICENCES MAY COVER  

    38A(1)    
    A storage licence, or a manufacturer licence not covered by subsection (2), may cover one or more premises.

    38A(2)    
    A manufacturer licence authorising the manufacture of any tobacco goods, a dealer licence or a producer licence may cover only one premises.

    Division 1-Applications for licences  

    SECTION 39   APPLICATIONS FOR LICENCES  

    39(1)    
    An application for a licence may be made to the Collector.

    39(2)    
    The application must:

    (a)    be in a form (if any) approved by the CEO; and

    (b)    set out the name and address of the applicant; and

    (c)    set out the name and address of each person whom the Collector is required to consider for the purposes of paragraphs 39A(2)(b), (c), (e) and (f) and (2A)(a); and

    (d)    contain a description of each premises in relation to which the licence is sought; and

    (e)    set out such particulars of the matters that the Collector is required to consider for the purposes of sections 39A, 39B and 39C as will enable the Collector adequately to consider those matters; and


    (f) (Repealed by No 51 of 2024)

    (g)    contain such other information as is prescribed.


    Division 2-The granting of licences  

    SECTION 39A   IT IS IN THE COLLECTOR'S DISCRETION WHETHER TO GRANT LICENCE  

    39A(1)    
    The Collector may, by written notice given to the applicant, grant, or refuse to grant, a licence.


    39A(1A)    
    Without limiting subsection (1), but subject to subsections (2) and (3) of this section and subsection 38A(2), if the application is for a licence that would cover more than one premises, the Collector may decide:

    (a)    to grant the licence under subsection (1) of this section covering any or all of the premises; or

    (b)    to refuse to grant the licence.


    39A(2)    
    Without limiting subsection (1) but subject to subsection (3), the Collector may refuse to grant a licence if, in the Collector's opinion:

    (a)    where the applicant is a natural person - the applicant is not a fit and proper person; or

    (b)    where the applicant is a partnership - any of the partners is not a fit and proper person; or

    (c)    where the applicant is a company - any director, officer or shareholder of the company who would participate in the management or control of the company is not a fit and proper person; or


    (d) (Repealed by No 51 of 2024)

    (e)    where the applicant is a company - the company is not a fit and proper company; or

    (f)    the applicant is an associate (within the meaning of the Income Tax Assessment Act 1997) of a person who is not:


    (i) a fit and proper person; or

    (ii) a fit and proper company; or

    (fa)    

    if the applicant is a natural person - he or she does not have, and he or she does not have available to him or her, the skills and experience to carry out the activity that would be authorised by the licence; or

    (fb)    

    if the applicant is a company - the company does not have available to it the skills and experience to carry out the activity that would be authorised by the licence; or


    (g) (Repealed by No 51 of 2024)

    (h)    in relation to an application for a producer licence or dealer licence - the physical security of the storage place on the premises in relation to which the licence is sought is not adequate having regard to:


    (i) the nature of the storage place; or

    (ii) the quantity of tobacco leaf that would be kept at the storage place; or

    (iii) the procedures and methods that would be adopted by the applicant to ensure the security of tobacco leaf at the storage place; or


    (i) (Repealed by No 51 of 2024)

    (ia)    

    the applicant would not have a market for goods of a kind the licence would relate to; or

    (j)    the applicant would not be able to keep proper books of account or records to enable the CEO adequately to audit those books or records; or

    (k)    in relation to an application for a storage licence - the grant of the licence would delay liability for duty; or

    (l)    refusal to grant the licence is necessary to protect the revenue; or

    (m)    

    in relation to an application for a manufacturer licence thatpermits the manufacture of any tobacco goods - the applicant has previously failed to comply with a requirement to provide security under section 16; or

    (n)    one or more of the following matters exist for each of the premises described in the application:


    (i) a matter mentioned in paragraph (2A)(a);

    (ii) if the application is for a manufacturer licence or storage licence - a matter mentioned in paragraph (2A)(b) or (c);
    whether or not the one or more matters existing for particular premises are the same for each premises.

    39A(2A)    
    Subject to subsection (3), the Collector may refuse to grant a licence that would cover particular premises if, in the Collector's opinion:

    (a)    a natural person who would participate in the management or control of the premises is not a fit and proper person; or

    (b)    for an application for a manufacturer licence or storage licence - the physical security of the premises is not adequate having regard to:


    (i) the nature of the premises; or

    (ii) the kinds and quantity of goods that would be kept at the premises; or

    (iii) the procedures and methods that would be adopted by the applicant to ensure the security of goods at the premises; or

    (c)    for an application for a manufacturer licence or storage licence - the plant and equipment that would be used in relation to goods at the premises are not suitable having regard to the nature of those goods and the premises.


    39A(3)    
    If the application is for a producer licence or dealer licence, the Collector must not refuse to grant the licence on a ground mentioned in paragraph (2)(a), (b), (c) or (f), or the ground mentioned in paragraph (2)(n) relying on paragraph (2A)(a), unless the Collector is satisfied that it is necessary to refuse to grant the licence to protect the revenue.


    SECTION 39B  

    39B   DETERMINING WHETHER A NATURAL PERSON IS FIT AND PROPER  


    The Collector may, in considering whether a natural person is a fit and proper person, have regard to:

    (a)    

    whether, within one year before the application was made, the person has been charged with:

    (i) an offence against a provision of the Excise Acts; or

    (ii) an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for a period of one year or longer or by a fine of 50 penalty units or more; and

    (b)    

    whether, within 10 years before the application was made, the person was convicted of:

    (i) an offence against a provision of the Excise Acts; or

    (ii) an offence against a law of the Commonwealth, of a State or of a Territory that is punishable by imprisonment for a period of one year or longer or by a fine of 50 penalty units or more; and

    (ba)    

    the extent of the person's compliance, within 4 years before the application was made, with any law administered by the CEO; and

    (c)    whether the person has:


    (i) held a licence which has been cancelled; or

    (ia) held a licence which has been varied to no longer cover one or more premises; or

    (ii) participated in the management or control of a company that has had its licence cancelled; or

    (iii) participated in the management or control of a company that has had its licence varied to no longer cover one or more premises; and

    (ca)    

    the person's financial resources; and

    (d)    whether the person is an undischarged bankrupt; and

    (e)    

    if the person is the applicant - any misleading statement made in the application by the person; and

    (f)    

    if the person is the applicant and any statement by the person in the application was false - whether the person knew that the statement was false.

    SECTION 39C  

    39C   DETERMINING WHETHER A COMPANY IS FIT AND PROPER  


    The Collector may, in considering whether a company is a fit and proper company, have regard to:

    (a)    

    whether, within one year before the application was made, the company has been charged with:

    (i) an offence against a provision of the Excise Acts; or

    (ii) an offence against a law of the Commonwealth, a State or a Territory that is punishable by a fine of 50 penalty units or more; and

    (b)    

    whether, within 10 years before the application was made, the company was convicted of:

    (i) an offence against a provision of the Excise Acts; or

    (ii) an offence against a law of the Commonwealth, a State or a Territory that is punishable by a fine of 50 penalty units or more; and

    (ba)    

    the extent of the company's compliance, within 4 years before the application was made, with any law administered by the CEO; and

    (c)    whether the company has held a licence that has been cancelled; and

    (caa)    whether the company held a licence that has been varied to no longer cover one or more premises; and

    (ca)    

    the company's financial resosurces; and

    (d)    whether a receiver of the property, or part of the property, of the company has been appointed; and

    (e)    

    whether the company is under administration within the meaning of the Corporations Act 2001; and

    (f)    

    whether the company has executed under Part 5.3A of that Act a deed of company arrangement that has not yet terminated; and

    (fa)    

    whether the company is under restructuring within the meaning of that Act; and

    (fb)    

    whether the company has made, under Division 3 of Part 5.3B of that Act, a restructuring plan that has not yet terminated; and


    (g) (Repealed by No 8 of 2007)

    (h)    whether the company is being wound up.

    Division 3-Conditions and duration of licences  

    SECTION 39D   CONDITIONS OF LICENCE  

    39D(1)    
    A licence is subject to the condition that the licence holder must, within 30 days after one of the following matters occurs, give the Collector particulars in writing of the matter:

    (a)    one of the following persons is charged with an offence of the kind referred to in paragraph 39B(a):


    (i) the licence holder;

    (ii) where the licence holder is a partnership - a partner;

    (iii) where the licence holder is a company - a person who participates in the management or control of the company;

    (iv) a person who participates in the management or control of any of the premises covered by the licence;

    (b)    a person referred to in paragraph (a) of this subsection is convicted of an offence of the kind referred to in paragraph 39B(b) or becomes bankrupt;

    (c)    where the licence holder is a company - a person not described in the application for the licence as participating in the management or control of the company commences so to participate;

    (d)    a person not described in the application for the licence as participating in the management or control of any of the premises covered by the licence commences so to participate;

    (e)    where the licence holder is a partnership - there is a change in the membership of the partnership;

    (f)    

    where the licence holder is a company - any of the following events occurs:

    (i) the company is charged with an offence of a kind referred to in paragraph 39C(a);

    (ii) the company is convicted of an offence of a kind referred to in paragraph 39C(b);

    (iii) a receiver of the property, or part of the property, of the company is appointed;

    (iv) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Act 2001;

    (v) the company executes a deed of company arrangement under Part 5.3A of that Act;

    (va) a small business restructuring practitioner for the company is appointed under section 453B of that Act;

    (vb) the company makes a restructuring plan under Division 3 of Part 5.3B of that Act;

    (vi) the company begins to be wound up;

    (g)    in relation to a manufacturer licence or storage licence - there is a substantial change in:


    (i) a matter affecting the physical security of any of the premises covered by the licence; or

    (ii) the plant or equipment used in relation to goods at any of the premises covered by the licence;

    (h)    in relation to a producer licence or dealer licence - there is a substantial change in a matter affecting the physical security of the storage place on the premises covered by the licence;

    (i)    in relation to a manufacturer licence - the licence holder has ceased to manufacture excisable goods;

    (j)    in relation to a manufacturer licence or storage licence - the licence holder has ceased to keep and store goods at any of the premises covered by the licence;

    (k)    in relation to a producer licence - the licence holder has ceased to produce tobacco seed, tobacco plant and tobacco leaf;

    (l)    in relation to a dealer licence - the licence holder has ceased to deal in tobacco seed, tobacco plant and tobacco leaf.


    39D(2)    
    A licence is subject to such other conditions (if any) as are prescribed.

    39D(3)    
    A licence is subject to such other conditions (if any) as are specified in the licence, being conditions considered by the Collector to be necessary or desirable for the protection of the revenue or for the purpose of ensuring compliance with the Excise Acts.

    Note: If the licence permits the manufacture of tobacco goods, the Collector must state the tobacco excise period in the licence and the licence holder must give a tobacco excise return for each tobacco excise period, see section 66.


    39D(4)    


    The Collector may, upon application by the licence holder and upon the production of the licence and any relevant notice given under section 39DA:

    (a)    vary or revoke a condition of the licence (other than a condition covered by subsection (1) or (2)); or

    (b)    impose an additional condition for the licence;

    by making an alteration to, or an endorsement on, the licence or notice.


    SECTION 39DA   CHANGING LICENCE CONDITIONS ON OWN INITIATIVE  

    39DA(1)    
    The Collector may, on his or her own initiative, do one or more of the following:

    (a)    vary or revoke a condition of a licence (other than a condition covered by subsection 39D(1) or (2));

    (b)    impose an additional condition for the licence;

    by written notice given to the licence holder in accordance with subsection (3).


    39DA(2)    
    The Collector must be satisfied that the variation, revocation or imposition is necessary or desirable:

    (a)    for the protection of the revenue; or

    (b)    for the purpose of ensuring compliance with the Excise Acts.

    39DA(3)    
    The notice must:

    (a)    state the day (which must be at least 7 days after the day the notice is served) the variation, revocation or imposition is to take effect; and

    (b)    state that contravening a licence condition may make the licence holder liable for an offence; and

    (c)    be:


    (i) served, either personally or by post, on the licence holder; or

    (ii) served personally on a person who, at the time of service, apparently participates in the management or control of any of the premises covered by the licence.

    SECTION 39E   DURATION OF LICENCES  

    39E(1)    
    A licence comes into force on the day it is granted.

    39E(2)    
    A manufacturer licence authorising the manufacture of any tobacco goods, a dealer licence or a producer licence remains in force until the cancellation or expiry of the licence, whichever occurs first.


    39E(3)    
    For the purposes of subsection (2), a licence expires at the end of:

    (a)    the 30 September after the second anniversary of the day on which the licence is granted; or

    (b)    if the licence is renewed under subsection 39F(5) one or more times - the last day of the 3 year period that begins on the day the licence would otherwise have expired if the most recent renewal had not occurred.

    Example 1:

    A manufacturer licence that authorises the manufacture of tobacco goods is granted on 17 September 2025 and is not renewed. It expires at the end of 30 September 2027.

    Example 2:

    A producer licence is granted on 18 October 2025 and is not renewed. It expires at the end of 30 September 2028.

    Example 3:

    A dealer licence is granted on 20 March 2026. It is renewed under subsection 39F(5) on or before 30 September 2028, and is renewed again on or before 30 September 2031. It expires at the end of 30 September 2034.


    39E(4)    
    A storage licence, or a manufacturer licence not covered by subsection (2), remains in force until it is cancelled.


    SECTION 39F   RENEWAL OF CERTAIN LICENCES  

    39F(1)    


    The Collector may, by writing, renew a licence to which subsection 39E(2) applies on the written application of the licence holder.

    39F(2)    


    Where a licence is renewed, the Collector may specify conditions different from those specified in the original licence.

    39F(3)    
    The Collector may refuse to renew the licence if the Collector is satisfied that, if the licence were renewed, he or she would be entitled to cancel the licence.

    Automatic extension of licence

    39F(4)    


    If the Collector has not decided an application for renewal of a licence before the end of the expiry day, the licence continues in force until the Collector decides the application.

    Period of renewal

    39F(5)    


    If the Collector renews a licence, it is renewed for a period of 3 years, unless cancelled earlier, starting on the day after the expiry day.
    Example:

    A licence is due to expire on 30 September 2008 (the expiry day). On 1 September 2008 the licence holder applies to renew the licence. The Collector has not decided the application by the end of 30 September 2008.

    The licence continues in force automatically past 30 September 2008 until the Collector decides the application.

    On 15 October 2008 the Collector decides to renew the licence. The 3 year period of renewal starts on 1 October 2008.



    Licence may be renewed more than once

    39(6)    


    A licence may be renewed more than once under this section.

    Definition

    39(7)    


    In this section:

    expiry day
    , in relation to a licence, means the 30 September on which the licence is due to expire under paragraph 39E(3)(a) or (b).


    Division 3A - Variation of licences to include additional premises  

    SECTION 39FA   APPLICATION FOR VARIATION  

    39FA(1)    
    The holder of:

    (a)    a storage licence; or

    (b)    a manufacturer licence that does not authorise the manufacture of tobacco goods;

    may apply to the Collector to vary the licence to cover additional premises.


    39FA(2)    
    The application must:

    (a)    be in a form (if any) approved by the CEO; and

    (b)    set out the name and address of the licence holder; and

    (c)    identify the licence to be varied; and

    (d)    for each additional premises that is covered by one or more other licences held by the licence holder - identify the other licences; and

    (e)    for each additional premises that is not covered by another licence held by the licence holder:


    (i) set out the name and address of each person whom the Collector is required to consider for the purposes of paragraph 39A(2A)(a); and

    (ii) contain a description of the premises; and

    (iii) set out such particulars of the matters that the Collector is required to consider in relation to premises for the purposes of sections 39A, 39B and 39C as will enable the Collector adequately to consider those matters; and

    (f)    contain such other information as is prescribed.

    SECTION 39FB   VARIATION OF LICENCE  

    39FB(1)    
    The Collector may, on application by the licence holder under section 39FA, by written notice, vary a licence to cover additional premises.

    39FB(2)    
    If:

    (a)    a licence (the first licence ) covers particular premises; and

    (b)    the Collector varies another licence held by the same licence holder to cover the premises;

    the Collector must, by written notice given to the licence holder:

    (c)    unless paragraph (d) applies - vary the first licence to no longer cover the premises; or

    (d)    if the effect of varying the first licence as mentioned in paragraph (c) would be that no premises are covered by the licence - cancel the first licence.

    Division 4-Suspension and cancellation of licences  

    SECTION 39G   WHEN THE COLLECTOR MAY SUSPEND A LICENCE  

    39G(1)    
    Subject to subsection (2), the Collector may suspend a licence if the Collector has reasonable grounds for believing that:

    (a)    where the licence holder is a natural person - that person is not a fit and proper person; or

    (b)    where the licence holder is a partnership - any of the partners is not a fit and proper person; or

    (c)    where the licence holder is a company - a director, officer or shareholder of the company who participates in the management or control of the company is not a fit and proper person; or


    (d) (Repealed by No 51 of 2024)

    (e)    where the licence holder is a company - the company is not a fit and proper company; or

    (f)    the licence holder is an associate (within the meaning of the Income Tax Assessment Act 1997) of a person who is not:


    (i) a fit and proper person; or

    (ii) a fit and proper company; or

    (fa)    

    if the licence holder is a natural person - he or she does not have, and he or she does not have available to him or her, the skills and experience to carry out the activity that is authorised by the licence; or

    (fb)    

    if the licence holder is a company - the company does not have available to it the skills and experience to carry out the activity that is authorised by the licence; or


    (g) (Repealed by No 51 of 2024)

    (h)    in relation to a producer licence or dealer licence - the physical security of the storage place on the premises covered bythe licence is no longer adequate having regard to:


    (i) the nature of the storage place; or

    (ii) the quantity of tobacco leaf kept in the storage place; or

    (iii) the procedures and methods adopted to ensure the security of tobacco leaf at the storage place; or


    (i) (Repealed by No 51 of 2024)

    (ia)    

    the licence holder does not have a market for goods of a kind the licence relates to; or

    (j)    the licence holder is not keeping proper books of account or records to enable the CEO adequately to audit those books or records; or

    (k)    a condition of the licence, other than a condition that relates only to particular premises, has been breached; or

    (l)    the licence holder has made a statement to the Collector that is false or misleading; or

    (m)    it is necessary for the protection of the revenue to suspend the licence; or

    (ma)    

    in relation to a manufacturer licence that permits the manufacture of any tobacco goods - the licence holder has failed to comply with a requirement to provide security under section 16 in relation to that licence; or

    (n)    in relation to a manufacturer licence or storage licence - it is necessary for the purpose of ensuring compliance with the Excise Acts to suspend the licence; or

    (o)    the licence holder has not, for a period of at least 3 years, conducted any activities authorised by the licence at any premises covered by the licence; or

    (p)    one or more of the following matters exist for each premises covered by the licence:


    (i) a matter mentioned in paragraph (1A)(a), (d) or (e);

    (ii) for a manufacturer licence or storage licence - a matter mentioned in paragraph (1A)(b) or (c);
    whether or not the one or more matters existing for particular premises are the same for each premises.

    39G(1A)    
    If the licence covers more than one premises, the Collector may suspend a licence in relation to particular premises if the Collector has reasonable grounds for believing that:

    (a)    a natural person who participates in the management or control of the premises is not a fit and proper person; or

    (b)    for a manufacturer licence or storage licence - the physical security of the premises is no longer adequate having regard to:


    (i) the nature of the premises; or

    (ii) the kinds and quantity of goods kept at the premises; or

    (iii) the procedures and methods adopted to ensure the security of goods at the premises; or

    (c)    for a manufacturer licence or storage licence - the plant and equipment used at the premises covered by the licence are such that the protection of the revenue in relation to goods at the premises is inadequate; or

    (d)    in any case - the licence holder has not, for a period of at least 3 years, conducted any activities authorised by the licence at the premises; or

    (e)    in any case - a condition of the licence relating to the premises has been breached.


    39G(2)    
    If the licence is a producer licence or dealer licence, the Collector must not suspend the licence under paragraph (1)(a), (b), (c), (d), or (f) unless the Collector is satisfied that it is necessary to suspend the licence to protect the revenue.


    SECTION 39H  

    39H   DETERMINING WHETHER A NATURAL PERSON IS FIT AND PROPER  


    The Collector may, in considering whether a natural person is a fit and proper person for the purposes of paragraphs 39G(1)(a), (b), (c) and (f) and (1A)(a), have regard to:

    (a)    whether, within one year before the day of the Collector's consideration, the person has been charged with an offence of the kind referred to in paragraph 39B(a); and

    (b)    whether, within 10 years before the day of the Collector's consideration, the person has been convicted of an offence of the kind referred to in paragraph 39B(b); and

    (ba)    

    the extent of the person's compliance, within 4 years before the day of the Collector's consideration, with any law administered by the CEO; and

    (bb)    

    the person's financial resources; and

    (c)    whether the person is an undischarged bankrupt; and

    (d)    whether, within 10 years beore the day of the Collector's consideration, the person has:


    (i) held another licence which has ben cancelled; or

    (ia) held a licence that has been varied to no longer cover one or more premises; or

    (ii) has participated in the management or control of a company that has had its licence cancelled; or

    (iii) participated in the management or control of a company that has had its licence varied to no longer cover one or more premises.

    SECTION 39I  

    39I   DETERMINING WHETHER A COMPANY IS FIT AND PROPER  


    The Collector may, in considering whether a company is a fit and proper company for the purposes of paragraphs 39G(1)(e) and (f), have regard to:


    (a) whether, within one year before the day of the Collector's consideration, the company has been charged with an offence of the kind referred to in paragraphs 39C(a); and


    (b) whether, within 10 years before the day of the Collector's consideration, the company is convicted of an offence of the kind referred to in paragraph 39C(b); and


    (ba) the extent of the company's compliance, within 4 years before the day of the Collector's consideration, with any law administered by the CEO; and


    (bb) the company's financial resources; and


    (c) the matters referred to in paragraphs 39C(d) to (h).

    SECTION 39J   METHOD OF SUSPENSION  

    39J(1)    
    If the Collector decides to suspend a licence relying on subsection 39G(1) or (1A), the Collector must give a written notice in accordance with this section to the licence holder.


    39J(2)    
    The notice must be:

    (a)    served, either personally or by post, on the licence holder; or

    (b)    served personally on a person who, at the time of service, apparently participates in the management or control of any of the premises covered by the licence.


    39J(3)    
    A notice given under subsection (1) relating to a suspension relying on subsection 39G(1):

    (a)    must state that, if the licence holder wishes to prevent the cancellation of the licence, he or she may, within 7 days after the day on which the notice was served, give to the Collector at an address specified in the notice a written statement showing cause why the licence should not be cancelled; and

    (b)    may, if it appears to the Collector to be necessary for the protection of the revenue or for ensuring compliance with the Excise Acts, state that the licence is suspended.


    39J(4)    
    If the notice states that the licence is suspended, then the licence is suspended on and from the service of the notice.

    39J(4A)    
    A notice given under subsection (1) relating to a suspension relying on subsection 39G(1A):

    (a)    must state that, if the licence holder wants the licence to continue to cover the premises to which the suspension relates, the licence holder may, within 7 days after the day on which the notice was served, give to the Collector at an address specified in the notice a written statement showing cause why the premises should continue to be covered by the licence; and

    (b)    may, if it appears to the Collector to be necessary for the protection of the revenue or for ensuring compliance with the Excise Acts, state that the licence is suspended in relation to the premises.


    39J(4B)    
    If the notice states that the licence is suspended in relation to particular premises, then the licence is suspended in relation to the premises on and from the service of the notice.


    39J(5)    
    The Collector may revoke a suspension at any time.


    39J(6)    
    The Collector must revoke a suspension made relying on subsection 39G(1) if the licence has not been cancelled within 28 days after the day the Collector suspended the licence.


    39J(7)    
    The Collector must revoke a suspension made relying on subsection 39G(1A) if, within 28 days after the day the Collector made the suspension, the licence has not been varied to no longer cover the premises to which the suspension relates.


    SECTION 39K   ACTIVITIES THAT ARE PROHIBITED DURING SUSPENSION  

    39K(1)    
    During a period in which a licence is suspended relying on subsection 39G(1), the licence holder must not, without permission under subsection (6) of this section:

    (a)    for a manufacturer licence - intentionally manufacture goods that are excisable goods knowing, or being reckless as to whether, they are excisable goods; and

    (b)    for a manufacturer licence or a storage licence - intentionally keep or store excisable goods at any of the premises covered by the licence knowing, or being reckless as to whether, they are excisable goods.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


  • 39K(1A)    
    During a period in which a licence is suspended relying on subsection 39G(1A), the licence holder must not, without permission under subsection (6) of this section, at premises in relation to which the licence is suspended:

    (a)    for a manufacturer licence - intentionally manufacture goods that are excisable goods knowing, or being reckless as to whether, they are excisable goods; or

    (b)    for a manufacturer licence or a storage licence - intentionally keep or store excisable goods knowing, or being reckless as to whether, they are excisable goods.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

  • 39K(2)    
    During a period in which a licence is suspended, the licence holder must not, without permission under subsection (6):

    (a)    for a producer licence - intentionally produce material that is tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, it is tobacco seed, tobacco plant or tobacco leaf; and

    (b)    for a dealer licence - intentionally deal in material that is tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, it is tobacco seed, tobacco plant or tobacco leaf.

    Penalty:

  • (a) for tobacco seed or tobacco plant - 2 years imprisonment or 500 penalty units; and
  • (b) for tobacco leaf - 2 years imprisonment or the greater of:
  • (i) 500 penalty units; and
  • (ii) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.
  • Note: See section 4AA of the Crimes Act 1914for the current value of a penalty unit.


    39K(3)    
    During a period in which a manufacturer licence, producer licence or dealer licence is suspended, the licence holder must not, without permission under subsection (6), intentionally keep or store tobacco leaf knowing, or being reckless as to whether, it is tobacco leaf.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


  • 39K(4)    
    During a period in which a licence is suspended relying on subsection 39G(1), the licence holder must not, without permission under subsection (6) of this section:

    (a)    for a manufacturer licence - manufacture excisable goods; and

    (b)    for a manufacturer licence or storage licence - keep or store excisable goods at any premises covered by the licence; and

    (c)    for a producer licence - produce tobacco seed, tobacco plant or tobacco leaf; and

    (d)    for a dealer licence - deal in tobacco seed, tobacco plant or tobacco leaf; and

    (e)    

    for a manufacturer licence, storage licence, producer licence or dealer licence - keep or store tobacco leaf.

    Penalty: 100 penalty units.


    39K(4A)    
    During a period in which a licence is suspended relying on subsection 39G(1A), the licence holder must not, without permission under subsection (6) of this section, at premises in relation to which the licence is suspended:

    (a)    for a manufacturer licence - manufacture excisable goods; or

    (b)    for a manufacturer licence or storage licence - keep or store excisable goods.

    Penalty: 100 penalty units.


    39K(5)    
    Strict liability applies to subsections (4) and (4A).


    39K(6)    
    During a period in which a licence is suspended relying on subsection 39G(1) or (1A), the Collector may:

    (a)    give written permission for goods to be kept or stored at any of the premises covered by the licence; and

    (b)    give witten permission for a process to be carried out at any of the premises covered by the licence; and

    (c)    give written permission for the movement of goods from any of the premises covered by the licence to another place; and

    (d)    

    if the licence is suspended relying on subsection 39G(1):

    (i) by written notice to the owner of goods at premises covered by the licence, require the owner to remove the goods to another place approved by the Collector; and

    (ii) take such control of premises covered by the licence, and of any goods at those premises, as may be necessary for the protection of the revenue or for ensuring compliance with the Excise Acts; and

    (e)    if the licence is suspended relying on subsection 39G(1A):


    (i) by written notice to the owner of goods at premises in relation to which the licence is suspended, require the owner to remove the goods to another place approved by the Collector; and

    (ii) take such control of premises in relation to which the licence is suspended, and of any goods at those premises, as may be necessary for the protection of the revenue or for ensuring compliance with the Excise Acts; and

    (f)    by written notice to the licence holder, require the holder to pay such costs incurred by the CEO as a result of the suspension.


    39K(7)    
    If an amount that the licence holder is required to pay in accordance with a notice under paragraph (6)(f) is not paid, that amount may be recovered as a debt due to the Commonwealth by action in a court of competent jurisdiction.


    SECTION 39L   CANCELLATION OF LICENCES  

    39L(1)    
    The Collector may cancel a licence if:

    (a)    the Collector is entitled to suspend the licence relying on subsection 39G(1); or

    (b)    but for subsection 39LA(3), the Collector could vary the licence under subsection 39LA(1) or would be required to vary the licence under subsection 39LA(2).


    39L(2)    
    The Collector must cancel a licence if the Collector:

    (a)    receives a written notice from the licence holder requesting the Collector to cancel the licence; and

    (b)    is satisfied that the licence holder has no tobacco seed, tobacco plant, tobacco leaf or excisable goods in his or her possession, custody or control.

    39L(3)    
    The Collector must cancel a licence under subsection (1) or (2) by written notice:

    (a)    served, either personally or by post, on the licence holder; or

    (b)    served personally on a person who, at the time of service, apparently participates in the management or control of any of the premises covered by the licence.


    39L(4)    
    If the Collector cancels the licence, the Collector must by written notice inform the owner of excisable goods at any of the premises covered by the licence:

    (a)    that the owner is required, within a time specified in the notice or any further time allowed by the Collector, to:


    (i) pay to the Collector duty payable in respect of the goods at the premises; or

    (ii) remove the goods at the premises to another place in accordance with permission obtained from the Collector; and

    (b)    that, if the owner does not comply with the requirements of the notice, the goods will be sold or otherwise disposed of.


    39L(5)    
    The notice under subsection (4) must be:

    (a)    served, either personally or by post, on the owner of the goods; and

    (b)    served personally on a person who, at the time of the cancellation of the licence, apparently participated in the management or control of any of the premises covered by the licence.


    39L(6)    
    If the owner of goods to which a notice under subsection (4) applies fails to comply with the requirements of the notice within the time specified in the notice or any further time allowed by the Collector, the Collector may sell, or otherwise dispose of, the goods.

    39L(7)    
    If the licence of a person is cancelled, the person must surrender the licence to the Collector if requested by the Collector to do so.

    Penalty: 1 penalty unit.


    39L(8)    
    Strict liability applies to subsection (7).


    SECTION 39LA   VARIATION OF CERTAIN LICENCES TO REMOVE PREMISES  

    39LA(1)    
    Subject to subsection (3), the Collector may vary a licence to no longer cover particular premises if:

    (a)    the licence covers more than one premises; and

    (b)    the Collector is entitled to suspend the licence in relation to the premises relying on subsection 39G(1A).

    39LA(2)    
    Subject to subsection (3), the Collector must vary a licence to no longer cover particular premises if:

    (a)    the licence covers more than one premises; and

    (b)    the Collector receives written notice from the licence holder requesting the variation.

    39LA(3)    
    The Collector must not vary a licence under subsection (1) or (2) if the effect of varying the licence would be:

    (a)    for a manufacturer licence - that there are no factories covered by the licence; or

    (b)    for a storage licence - that there are no premises covered by the licence.

    39LA(4)    
    The Collector must vary a licence under subsection (1) or (2) by written notice:

    (a)    served, either personally or by post, on the licence holder; or

    (b)    served personally on a person who, at the time of service, apparently participates in the management or control of premises covered by the licence.

    39LA(5)    
    If the Collector varies the licence under subsection (1), the Collector must, by written notice, inform an owner of excisable goods at the premises that will no longer be covered by the licence:

    (a)    that the owner is required, within a time specified in the notice or any further time allowed by the Collector, to:


    (i) pay to the Collector duty payable in respect of the goods at the premises; or

    (ii) remove the goods at the premises to another place in accordance with permission obtained from the Collector; and

    (b)    that, if the owner does not comply with the requirements of the notice, the goods will be sold or otherwise disposed of.

    39LA(6)    
    The notice under subsection (5) must be:

    (a)    served, either personally or by post, on the owner of the goods; or

    (b)    served personally on a person who, at the time of the variation of the licence, apparently participated in the management or control of the premises.

    39LA(7)    
    If the owner of goods in relation to which a notice under subsection (5) is served fails to comply with the requirements of the notice within the time specified in the notice or any further time allowed by the Collector, the Collector may sell, or otherwise dispose of, the goods.

    Division 5-Dealing with goods after cancellation etc.  

    SECTION 39M   REMOVAL OF GOODS IF LICENCE CEASES TO BE IN FORCE OR IS VARIED  


    Fault-based offences

    39M(1)    
    If a licence ceases to be in force, a person must not, without permission, intentionally remove from any of the premises that were covered by the licence any excisable goods on which duty has not been paid knowing, or being reckless as to whether, the goods are excisable goods on which duty has not been paid.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

  • 39M(2)    


    If a licence is varied to no longer cover particular premises, a person must not, without permission, intentionally remove from the premises any excisable goods on which duty has not been paid, knowing, or being reckless as to whether, the goods are excisable goods on which duty has not been paid.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.


  • Strict liability offences

    39M(3)    
    If a licence ceases to be in force, a person must not, without permission, remove from any of the premises that were covered by the licence:

    (a)    any excisable goods the duty on which has not been paid; or

    (b)    any tobacco seed, tobacco plant or tobacco leaf.

    Penalty: 100 penalty units.


    39M(3A)    
    If a licence is varied to no longer cover particular premises, a person must not, without permission, remove from the premises any excisable goods on which duty has not been paid.

    Penalty: 100 penalty units.


    39M(4)    
    Strict liability applies to subsections (3) and (3A).


    SECTION 39N   REMOVAL OF GOODS BY COLLECTOR IF LICENCE CEASES TO BE IN FORCE OR IS VARIED  

    39N(1)    
    If a licence ceases to be in force, the Collector may cause:

    (a)    any excisable goods on which duty has not been paid that are at any of the premises that were covered by the licence; and

    (b)    any packages in which the goods are contained;

    to be removed to such other place as the Collector thinks fit.


    39N(1A)    
    If a licence is varied to no longer cover particular premises, the Collector may cause:

    (a)    any excisable goods on which duty has not been paid that are at the premises; and

    (b)    any packages in which the goods are contained;

    to be removed to such other place as the Collector thinks fit.


    39N(2)    
    The Collector may sell or otherwise dispose of goods if after 6 months after removing the goods under subsection (1) or (1A):

    (a)    they are not claimed, in writing, by their owner; or

    (b)    the duty, expenses of removal, storage rent and other storage charges (if any) on or in respect of them have not been paid.


    39N(3)    
    The duty to be paid on the excisable goods claimed under subsection (2) is to be calculated at the rate in force at the time when the duty is paid.

    39N(4)    
    This section does not apply to licences to which section 77E applies.

    Division 6-Miscellaneous  

    SECTION 39O  

    39O   DEATH OF LICENCE HOLDER  


    If a licence holder dies, the licence is taken to be transferred to the person's legal personal representative. However, the licence is taken to be automatically cancelled at the end of the 3 months after the day on which the person dies.

    SECTION 39P  

    39P   SERVICE OF NOTICES  


    For the purpose of the application of section 29 of the Acts Interpretation Act 1901 to the service by post of a notice under this Part on a person who holds or held a licence, such a notice posted as a letter addressed to the person at the address of any of the premises that are or were covered by the licence is taken to be properly addressed.

    SECTION 39Q  

    39Q   REVIEW OF DECISIONS  


    A person or partnership who is dissatisfied with a decision of the Collector under this Part may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.

    SECTION 39R  

    39R   SPENT CONVICTIONS SCHEME  


    Nothing in this Part affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that relieve persons in certain circumstances from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

    SECTION 40   EXCISE AND EXCISE-EQUIVALENT WAREHOUSE LICENCES REGISTER  


    Establishing and maintaining the register

    40(1)    
    The CEO must establish and maintain a register, to be known as the Excise and Excise-Equivalent Warehouse Licences Register, that includes the information mentioned in subsection (2) about licences of any of the following kinds that are in force:

    (a)    storage licences granted under subsection 39A(1) of this Act;

    (b)    manufacturer licences granted under subsection 39A(1) of this Act, other than manufacturer licences that allow for the manufacture of tobacco goods;

    (c)    warehouse licences granted under section 79 of the Customs Act 1901 that are excise-equivalent warehouse licences for the purposes of Part V of that Act.

    40(2)    
    The information that must be included is as follows:

    (a)    the name of the licence holder;

    (b)    if the licence holder has an Australian Business Number - the Australian Business Number;

    (c)    the name of the Act under which the licence was granted;

    (d)    any additional information that is prescribed by the regulations for the purposes of this paragraph.

    Updating the register

    40(3)    
    If:

    (a)    the CEO is satisfied that information included in the register is incorrect; and

    (b)    the CEO has access to information that the CEO believes to be correct;

    the CEO may adjust the information on the register accordingly.



    Register to be publicly available

    40(4)    
    The CEO must ensure that the register is made publicly available on a website maintained by the Australian Taxation Office.

    Register is not a legislative instrument

    40(5)    
    The register is not a legislative instrument.

    Admissibility of information on the register

    40(6)    
    The CEO may issue a document containing the details of a matter taken from the register.

    40(7)    
    A document issued under subsection (6) is admissible in any proceedings as prima facie evidence of the matter.

    40(8)    
    Subsections (6) and (7) do not limit the manner in which evidence may be adduced, or the admissibility of evidence, under the Evidence Act 1995.

    SECTION 41  

    41   LICENCE FEE  

    SECTION 42  

    42   CURRENCY OF LICENCES  

    SECTION 43  

    43   TRANSFER OR CANCELLATION  

    PART IVA - CONTROL OF TOBACCO SEED, PLANT AND LEAF  

    SECTION 44   PERMISSION TO MOVE TOBACCO SEED, TOBACCO PLANT AND TOBACCO LEAF  

    44(1)    


    The Collector may give written permission to a person specified in the permission to move tobacco seed, tobacco plant or tobacco leaf from a place specified in the permission to another place so specified.

    44(2)    


    It is a condition of a permission to move tobacco leaf that a tobacco bale label must be affixed to the tobacco leaf at all times when the tobacco leaf is not at premises covered by a manufacturer licence, producer licence or dealer licence, unless the Collector has given additional written permission that it need not have a tobacco bale label.

    44(3)    


    Permission under subsection (1) or (2) may be given subject to the condition that the person to whom the permission is given complies with such conditions as are specified in the permission, being conditions that, in the opinionof the Collector, are necessary for the protection of the revenue or for the purpose of ensuring compliance with the Excise Acts.

    44(4)    


    A person to whom permission has been given under this section must not intentionally act or fail to act knowing, or being reckless as to whether, the act or omission contravenes a condition under subsection (2) or specified in the permission under subsection (3).

    Penalty:

  • (a) if the permission relates to tobacco seed or tobacco plant - 2 years imprisonment or 500 penalty units; and
  • (b) if the permission relates to tobacco leaf - 2 years imprisonment or the greater of:
  • (i) 500 penalty units; and
  • (ii) 5 times the amount of duty worked out under the regulations, being the duty that would be payable if the tobacco leaf has been manufactured into excisable goods and entered for home consumption on the penalty day.
  • Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    44(5)    


    A person must not fail to comply with a condition under subsection (2) or specified in the permission under subsection (3).

    Penalty: 100 penalty units.


    44(6)    
    Strict liability applies to subsection (5).

    44(7)    


    If, before the tobacco seed, tobacco plant or tobacco leaf was moved, a person to whom permission has been given under this section intentionally acts or fails to act knowing, or being reckless as to whether, the act or omission contravenes a condition specified in the permission, then, for the purposes of paragraph 116(1)(ba), the movement of the seed, plant or leaf is taken to have been moved without permission under section 44.

    44(8)    


    A person commits an offence if:

    (a)    the person has permission under this section to deliver tobacco seed, tobacco plant or tobacco leaf for export; and

    (b)    the seed, plant or leaf is not exported within 30 days after the day of delivery (or, if the permission specifies a shorter or longer period, that shorter or longer period); and

    (c)    the person fails to return the seed, plant or leaf to the place specified in a permission for the return of the goods within 5 days after the end of the 30 day period (or, if the permission mentioned in paragraph (a) specified a shorter or longer period, after the end of that shorter or longer period).

    Penalty:

  • (a) if the permission relates to tobacco seed or tobacco plant - 2 years imprisonment or 500 penalty units; and
  • (b) if the permission relates to tobacco leaf - 2 years imprisonment or the greater of:
  • (i) 500 penalty units; and
  • (ii) 5 times the amount of duty worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.

  • 44(9)    


    Subsection (8) does not apply if the goods were destroyed before the end of the 30 day period (or if the permission specified a shorter or longer period, that shorter or longer period).
    Note:

    The defendant bears an evidential burden in relation to the matters in subsection (9). See subsection 13.3(3) of the Criminal Code.


    SECTION 45  

    45   EXCISABLE GOODS TO BE MADE IN LICENSED FACTORIES  

    PART V-EXCISE SUPERVISION, MANUFACTURERS' BOOKS, AND REGULATION OF FACTORIES GENERALLY  

    SECTION 46  

    46   SUPERVISION BY OFFICERS  
    The manufacture of excisable goods shall for the protection of the revenue be subject to the right of supervision by officers.

    SECTION 47  

    47   ACCOMMODATION FOR OFFICERS  
    (Repealed by No 74 of 2006)

    SECTION 48  

    48   PAYMENT FOR BOARD AND LODGING  
    (Repealed by No 74 of 2006)

    SECTION 49  

    49   FACILITIES TO OFFICERS  


    Every licensed manufacturer shall provide all reasonable facilities for enabling officers to exercise their powers under this Act.

    Penalty: 10 penalty units

    Note:

    See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

    SECTION 50   RECORD KEEPING  

    50(1)    


    A licensed manufacturer, licensed producer and licensed dealer, and a proprietor of an approved place, shall:


    (a) keep such records, and furnish to the CEO such returns, as the CEO directs;


    (b) retain any records so kept for such period as the CEO directs; and


    (c) on demand by an officer, produce the records to the officer.

    Penalty: 30 penalty units.

    Note:

    See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    50(1A)    


    Strict liability applies to subsection (1).

    50(2)    
    An officer may inspect and take copies of, or extracts from, any records kept in pursuance of subsection (1).

    SECTION 51   COLLECTOR MAY GIVE DIRECTIONS  

    51(1)    
    The Collector may give directions in writing to any licensed manufacturer directing:

    (a)    in what parts of a factory covered by the licence any process in the manufacture is to be carried on.

    (b)    in what parts of a factory covered by the licence material and other matters used in the manufacture and excisable goods manufactured are respectively to be kept.

    And every licensed manufacturer must comply with such directions.

    Penalty: 10 penalty units.

    Note:

    See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    51(2)    


    An offence under subsection (1) is an offence of strict liability.
    Note:

    For strict liability , see section 6.1 of the Criminal Code.


    SECTION 52  

    52   WEIGHTS AND SCALES  


    Every licensed manufacturer must at the manufacturer's own expense provide sufficient lights, correct weights and scales, and all labour necessary for weighing material received into and all excisable goods manufactured in a factory covered by the licence, and for taking stock of all material and excisable goods contained in such a factory.

    Penalty: 10 penalty units

    Note:

    See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

    SECTION 53  

    53   RESPONSIBILITY OF MANUFACTURERS  


    Every licensed manufacturer is responsible for the safe custody of all tobacco leaf and excisable goods in a factory covered by the licence and for the observance of this Act within such a factory.

    PART VI-PAYMENT OF DUTY, REMOVAL OF EXCISABLE GOODS FROM FACTORIES, AND EXCISE CONTROL  

    SECTION 54   LIABILITY TO PAY DUTY  

    54(1)    


    The licensed manufacturer of excisable goods, or, where the owner of excisable goods enters them for home consumption, the owner of the goods, shall pay to the Collector, in accordance with this Act, the Excise duty on those goods.
    Note:

    For provisions about collection and recovery of the duty, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.


    54(2)    
    If the manufacture of beer involves, in whole or in part, the provision to the public at particular premises of commercial facilities and equipment for use in the production of beer at those premises, then, despite subsection (1), only the person who provides those facilities and equipment at those premises is liable to pay excise duty on the beer.

    54(3)    


    If excisable goods are delivered to a relevant traveller (within the meaning of section 61E) under a permission under that section, then, despite subsection (1) of this section, the relevant traveller (and no-one else) is liable to pay excise duty on the goods.

    54(4)    


    To avoid doubt, if the excisable goods are tobacco goods, only the licensed manufacturer of the goods is liable to pay Excise duty on the goods.
    Note:

    Under subsection 66(7), tobacco goods are taken to be entered, and delivered, for home consumption at the time they are manufactured.


    SECTION 54A   LIABILITY OF COMMONWEALTH AUTHORITIES TO PAY EXCISE DUTY  

    54A(1)    
    Subject to subsection (2), to the extent that, but for this section, an Act (whether enacted before, on or after 1 July 1989) would:


    (a) exempt a particular Commonwealth authority from liability to pay Excise duty; or


    (b) exempt a person from liability to pay Excise duty in relation to goods for use by a particular Commonwealth authority;

    then, by force of this section, the exemption has no effect.


    54A(2)    
    Subsection (1) does not apply to an exemption if:


    (a) the provision containing the exemption is enacted after 30 June 1989; and


    (b) the exemption expressly refers to Excise duty (however described).

    SECTION 55  

    55   TRANSFER OF PARTLY MADE GOODS  
    Partly manufactured excisable goods may by authority be transferred from one factory to another for the purpose of completing the manufacture.

    SECTION 57  

    57   SIZE OF PACKAGES  
    (Repealed by No 74 of 2006)

    SECTION 58   ENTRY FOR HOME CONSUMPTION ETC  

    58(1)    


    Subject to subsections (2) and (4), entries may be made by the licensed manufacturer or owner and passed by an officer and may authorize the removal of excisable goods for:


    (a) Home consumption.


    (b) Removal to an approved place that is an approved place in relation to goods of all kinds or in relation to goods of the kind that are to be entered.


    58(1A)    
    An entry in subsection (1):


    (a) shall be made in accordance with an approved form, or in a manner approved by the CEO;


    (b) shall contain such information as is required by the CEO;


    (c) shall be signed or authorised in a manner required by the CEO; and


    (d) shall be lodged with, or transmitted to, the CEO.


    58(1B)    


    Where it is intended to export excisable goods, the exportation of those goods must be dealt with under Part VI of the Customs Act 1901, but the granting of an authority to deal with those goods under section 114C of that Act does not affect the CEO's control over those goods in accordance with section 61 of this Act.

    58(2)    


    Subject to subsection (3), excisable goods that are stabilised crude petroleum oil or condensate must not be entered for exportation under the Customs Act 1901 unless and until the goods:


    (a) have been entered for home consumption under this Act; or


    (b) are treated, under section 61C, as if they had been so entered.


    58(3)    


    Subsection (2) does not apply to excisable goods that are stabilised crude petroleum oil, or condensate, obtained from prescribed petroleum, within the meaning of section 5B of the Excise Tariff Act 1921, produced from a Resource Rent Tax area as defined in that Act.

    58(4)    


    Excisable goods that are spirit or other excisable beverage must not be entered for home consumption unless:


    (a) the spirit or other excisable beverage has been repackaged in containers other than bulk containers; or


    (b) the spirit or other excisable beverage is entered for home consumption for a purpose for which a free rate of duty applies; or


    (c) the CEO, by notice in writing, permits the spirit or other excisable beverage to be entered for home consumption packaged in bulk containers.


    58(5)    


    The CEO must not permit excisable goods that are spirit or other excisable beverage to be entered for home consumption packaged in bulk containers unless:


    (a) the containers have a capacity of not more than 20 litres or such other volume as the CEO approves in writing; and


    (b) the CEO is satisfied that the spirit or other excisable beverage will not, for the purposes of retail sale, be repackaged in any other container.


    58(6)    


    In subsections (4) and (5):

    other excisable beverage
    means goods covered by item 2 of the Schedule to the Excise Tariff Act 1921.


    SECTION 59  

    59   PAYMENT OF DUTY  


    Subject to sections 59A and 59AA, the excise duty on excisable goods must be paid at the rate in force:


    (a) when the goods are delivered into home consumption under subsection 61C(2) or 66(7); or


    (b) when payment is made;

    whichever is the earlier.

    SECTION 59A   DECLARED PERIOD QUOTAS-EFFECT ON RATES OF EXCISE DUTY  

    59A(1)    
    If at any time the CEO is of the opinion that, for the reason that persons are anticipating, or may anticipate, an increase in the rate of duty applicable to goods of a particular kind, the quantity of goods of that kind that may be entered for home consumption during a period is likely to be greater than it would otherwise be, the CEO may, by notice published in the Gazette, declare that that period is, for the purposes of this section, a declared period with respect to goods of that kind.

    59A(2)    
    The CEO shall, in a notice under subsection (1) declaring that a period is a declared period for the purposes of this section, specify in the notice another period, being a period ending before the commencement of the declared period, as the base period in relation to the declared period.

    59A(3)    
    Where the CEO makes a declaration under subsection (1) specifying a declared period in respect of goods of any kind, he or she may, in respect of that kind of goods, or goods of a kind included in that kind of goods, make an order in writing (in this Act referred to as a ``quota order'' applicable to a person specified in the order, being an order that states that the person's quota, for the declared period, in respect of goods of the kind to which the order relates is such quantity as is specified in the order or is nil, and, subject to subsection (4) and subsection 61C (6), the order comes into force forthwith.

    59A(4)    
    Where, during a declared period, a person enters goods for home consumption, being goods of a kind in respect of which there is no quota order in force that is applicable to that person for the declared period, the CEO may, before the entry is passed and whether or not the declared period has expired, make, under subsection (3), a quota order that is applicable to that person for that declared period in respect of goods of that kind, and a quota order so made shall, subject to subsection 61C (6) and unless the contrary intention appears in the order, be deemed to have come into force immediately before the time of entry of the goods.

    59A(5)    
    In making a quota order under subsection (3), or revoking or varying a quota order under section 59B, with respect to a person, the CEO shall have regard to the quantity of goods (if any) of the kind to which the order relates that, at any time or times during the period that is the base period with respect to the declared period to which the order relates or during any other period that the CEO considers relevant, the person has entered for home consumption, and to such other matters as the CEO considers relevant.

    59A(6)    
    If:


    (a) at any time during a declared period, a person has entered any goods (in this section referred to as the ``relevant goods'') for home consumption, being goods of a kind in respect of which there is in force at the time of entry of the goods a quota order that states that the person's quota in respect of goods of that kind is a quantity specified in the order;


    (b) the quantity of the relevant goods so entered, together with goods (if any) of that kind previously entered for home consumption by the person during the declared period, exceeds the quota; and


    (c) the amount of Excise duty paid or payable on the relevant goods at the rate of duty in force at the time of entry of the goods is less than the amount of duty applicable to those goods in accordance with the rate of duty in force on the day immediately following the last day of the declared period;

    the rate of Excise duty payable on the relevant goods, or on so much of the relevant goods as, together with goods (if any) of that kind previously entered for home consumption by the person during the declared period, exceeds the quota, is the rate of duty in force on the day immediately following the last day of the declared period.


    59A(7)    
    If:


    (a) at any time during a declared period, a person has entered any goods for home consumption, being goods of a kind in respect of which there is in force at the time of entry of the goods a quota order that states that the person's quota in respect of goods of that kind is nil; and


    (b) the amount of Excise duty paid or payable on those goods at the rate of duty in force at the time of entry of the goods is less than the amount of duty applicable to those goods in accordance with the rate of duty in force on the day immediately following the last day of the declared period;

    the rate of Excise duty payable on the goods is the rate of duty in force on the day immediately following the last day of the declared period.


    59A(8)    


    Where, at any time during a declared period, a person enters any goods for home consumption, being goods of a kind in respect of which there is in force at the time of entry of the goods a quota order that is applicable to that person for the declared period, the CEO shall have the right, before the entry is passed, in addition to requiring Excise duty to be paid on the goods at the rate in force at that time of entry of the goods, to require and take, for the protection of the revenue in relation to any additional amount of duty that may become payable on the goods, or on a part of the goods, by virtue of the operation of subsection (6) or (7), security by way of cash deposit of an amount equal to the amount of duty payable on the goods, or on that part of the goods at the rate in force at the time of entry of the goods.

    59A(9)    
    For the purposes of this section, a person shall be deemed to have entered goods for home consumption at a particular time (in this section referred to as ``time of entry'') if the person entered the goods, or caused the goods to be entered, for home consumption at that time or is, by virtue of subsection 61C (2), deemed to have entered the goods for home consumption at that time.

    SECTION 59AA   PAYMENT OF DUTY BY RELEVANT TRAVELLERS  

    59AA(1)    


    Excise duty on goods payable by a relevant traveller under subsection 54(3) must be paid at the rate in force at the time the goods are taken by the relevant traveller for reporting to an officer of Customs doing duty in relation to clearance under the Customs Act 1901 of the personal baggage of the relevant traveller.

    59AA(2)    
    The excise duty is due and payable at that time.

    Note:

    For provisions about collection and recovery of the duty, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.


    59AA(3)    
    In this section:

    officer of customs
    has the same meaning as in section 61E.

    relevant traveller
    has the same meaning as in section 61E.


    SECTION 59B   REVOCATION AND VARIATION OF QUOTA ORDERS  

    59B(1)    
    The CEO may, by writing under his or her hand, revoke or vary a quota order at any time before:


    (a) the expiration of the declared period to which the quota order relates; or


    (b) the expiration of the period within which application may be made for the review of the quota order;

    whichever last occurs.


    59B(2)    
    Where a quota order is revoked by the CEO under this section, the revocation shall be deemed to have taken effect on the day on which the order came into force.

    59B(3)    
    The revocation of a quota order under this section does not prevent the making of a further quota order that is applicable to the person to whom the revoked quota order was applicable and that has effect with respect to the declared period in respect of which the revoked quota order had effect, whether or not the kind of goods to which the further quota order relates is the same as the kind of goods to which the revoked quota order related.

    59B(4)    
    Subject to subsection (5), a variation of a quota order under this section shall, for the purposes of section 59A, be deemed to have had effect on and from the day on which the quota order came into force.

    59B(5)    
    Where:


    (a) a quota order applicable to a person states that the person's quota in respect of goods of the kind to which the order relates is a quantity specified in the order; and


    (b) the CEO varies the order in such a way that the order specifies a lesser quantity or states that the person's quota is nil;

    the variation has effect on and from the day on which it is made.


    SECTION 59C  

    59C   SERVICE OF QUOTA ORDERS ETC  
    The CEO shall, as soon as practicable after he or she makes a quota order or revokes or varies a quota order, cause a copy of the quota order or of the revocation or variation, as the case may be, to be served on the person to whom the quota order is applicable.

    SECTION 60   PERSONS TO KEEP EXCISABLE GOODS SAFELY ETC  

    60(1)    


    Where a person (including a licensed manufacturer) who has, or has been entrusted with, the possession, custody or control of excisable goods which are subject to the CEO's control:


    (a) fails to keep those goods safely; or


    (b) when so requested by a Collector, does not account for those goods to the satisfaction of a Collector;

    the person shall, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the Excise duty which would have been payable on those goods if they had been entered for home consumption on the day on which the Collector made the demand.

    Note:

    For provisions about collection and recovery of the amount, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.


    60(1A)    
    Where:


    (a) excisable goods subject to the CEO's control are, by authority of an entry passed under this Act or of a permission given under section 61A, taken from a place for removal to another place;


    (b) the goods are not, or part of the goods is not, delivered to that other place; and


    (c) when so requested by a Collector, the person who made the entry or to whom the permission was given, as the case may be, does not account for the goods, or for that part of the goods, as the case may be, to the satisfaction of a Collector;

    the person shall, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the Excise duty which would have been payable on the goods, or on that part of the goods, as the case may be, if they had been entered for home consumption on the day on which the demand was made.

    Note:

    For provisions about collection and recovery of the amount, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.


    60(1B)    
    Where:


    (a) excisable goods subject to the CEO's control are, by authority of a permission given under section 61A, removed to a place other than a warehouse; and


    (b) the person to whom the permission was given fails to keep those goods safely or, when so requested by a Collector, does not account for the goods to the satisfaction of a Collector;

    the person shall, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the Excise duty which would have been payable on those goods if they had been entered for home consumption on the day on which the demand was made.

    Note:

    For provisions about collection and recovery of the amount, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.


    60(1C)    
    If a person (including a licensed manufacturer) has, or has been entrusted with, the possession, custody or control of excisable goods:


    (a) on which duty has not been paid; and


    (b) that have been delivered for exportation in accordance with a permission under section 61A; and


    (c) the person:


    (i) fails to keep those goods safely; or

    (ii) when requested by a Collector, does not satisfy the Collector that the goods have been exported and does not otherwise account for those goods to the satisfaction of the Collector;

    the person must, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the excise duty which would have been payable on those goods if they had been entered for home consumption on the day on which the Collector made the demand.

    Note:

    For provisions about collection and recovery of the amount, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.


    60(1D)    
    For the purposes of subparagraph (1C)(c)(ii), evidence that the goods were delivered for export does not constitute evidence that goods have been exported.


    60(2)    
    (Repealed by No 74 of 2006)


    60(3)    
    (Repealed by No 74 of 2006)


    60(4)    
    This section does not affect the liability of a person arising under or by virtue of:


    (a) any other provision of this Act; or


    (b) a security given under this Act.

    SECTION 61   CONTROL OF EXCISABLE GOODS  

    61(1)    


    All excisable goods are subject to the CEO's control until delivered for home consumption or for exportation to a place outside Australia, whichever occurs first.

    61(2)    


    A person must not, without permission, intentionally move, alter or interfere with excisable goods that are subject to the CEO's control knowing, or being reckless as to whether, the goods are excisable goods that are subject to the CEO's control.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


  • 61(3)    


    A person must not, without permission, move, alter or interfere with excisable goods that are subject to the CEO's control.

    Penalty: 100 penalty units.


    61(4)    
    Strict liability applies to subsection (3).


    SECTION 61AA   DELIVERY FOR EXPORTATION  

    61AA(1)    


    For the purposes of this Act, excisable goods, other than goods delivered to a person under section 61D(2), are not taken to have been delivered for exportation until they are brought into a place that is a prescribed place for the purposes of paragraph 30(1)(d) of the Customs Act 1901 for export.

    61AA(2)    
    For the purposes of this Act excisable goods delivered to a person under subsection 61D (2) are taken to have been delivered for exportation at the time when they are received by that person.

    SECTION 61AB  

    61AB   PERMISSION TO DELIVER FOR EXPORTATION  

    SECTION 61A   PERMISSION TO REMOVE GOODS THAT ARE SUBJECT TO CEO'S CONTROL  
    Permission to remove goods from and to particular places

    61A(1)    


    A Collector may give permission in writing to a person specified in the permission to remove goods of a kind specified in the permission that are subject to the CEO's control from a place so specified to another place so specified and, until the permission is revoked, the permission is authority for the person to remove goods of that kind that are subject to the CEO's control accordingly.

    61A(2)    


    A Collector may give permission in writing to a person specified in the permission to remove goods subject to the CEO's control that are specified in the permission from a place so specified to another place so specified, and the permission is authority for the person to remove those goods accordingly.

    61A(2AAA)    
    A Collector may give permission in writing to the holder of:

    (a)    a storage licence; or

    (b)    a manufacturer licence other than a manufacturer licence authorising the manufacture of any tobacco goods;

    to remove goods that are subject to the CEO's control from premises covered by the licence to any other premises at which goods of the kind being removed are authorised to be kept (whether by that or any other licence).


    61A(2AAB)    
    A Collector:

    (a)    must give permission under subsection (2AAA):


    (i) on the grant of a licence covered by paragraph (2AAA)(a) or (b) that covers more than one premises; or

    (ii) for a licence covered by paragraph (2AAA)(a) or (b) that covered only one premises when granted - if the Collector varies the licence to cover more than one premises; and

    (b)    otherwise, may give a permission under that subsection on application by the licence holder.


    61A(2AAC)    
    A permission given under subsection (2AAA) has effect subject to any conditions to which the licence that covers the premises from which the goods are removed is subject.


    61A(2AAD)    
    Until a permission under subsection (2AAA) is revoked, the permission is authority for the licence holder to remove goods subject to the CEO's control accordingly.


    61A(2AA)    


    Despite any of the preceding subsections, a Collector must not give permission under subsection (1), (2) or (2AAA) in circumstances prescribed by the regulations.

    Permission to deliver goods for exportation

    61A(2A)    
    A Collector may give permission in writing to a person specified in the permission to deliver for exportation goods of a kind specified in the permission that are subject to the CEO's control and, until the permission is revoked, the permission is authority for the person to deliver for exportation goods of that kind that are subject to the CEO's control accordingly.


    61A(2B)    
    A Collector may give permission in writing to a person specified in the permission to deliver for exportation goods subject to the CEO's control that are specified in the permission, and the permission is authority for the person to deliver those goods accordingly.



    Certain permissions may be revoked

    61A(2C)    
    A Collector may, by written notice given to the licence holder, revoke a permission under subsection (1), (2AAA) or (2A).



    Permission may be subject to conditions

    61A(3)    


    Permission under subsection (1), (2), (2AAA), (2A) or (2B) may be given subject to the condition that the person to whom the permission is given complies with such conditions as are specified in the permission, being conditions that, in the opinion of the Collector, are necessary for the protection of the revenue or for the purpose of ensuring compliance with the Excise Acts.

    Contravening a condition of a permission

    61A(4)    


    A person to whom permission has been given under this section must not intentionally act or fail to act knowing, or being reckless as to whether, the act or omission contravenes a condition specified in the permission.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


  • 61A(5)    


    If, before the goods were removed, a person to whom permission has been given under this section intentionally acts or fails to act knowing, or being reckless as to whether, the act or omission contravenes a condition specified in the permission, then, for the purposes of paragraph 116(1)(d), the removal of the goods is taken not to have been authorised by this Act.

    61A(6)    


    A person must not fail to comply with a condition specified in a permission given under this section.

    Penalty: 100 penalty units.


    61A(7)    


    Strict liability applies to subsection (6).

    SECTION 61B   REMOVAL OF GOODS TO A WAREHOUSE BY A COLLECTOR  

    61B(1)    


    Where, in accordance with an entry under section 58 or a permission under subsection 61A (1) or (2), goods are removed to a place other than a general warehouse, a Collector may, at any time before the goods cease to be subject to the CEO's control, direct that the goods be moved from that place to a general warehouse specified by him or her and, if default is made in complying with the direction, the Collector may cause the goods to be moved to that warehouse or to any other general warehouse.

    61B(2)    
    A Collector has a lien on goods which he or she has caused to be moved to a warehouse under subsection (1) for any expenses incurred by him or her in connexion with their removal to the warehouse and for any warehouse rent and charges incurred in relation to the goods.

    61B(3)    
    In this section, ``general warehouse'' means a warehouse that is a general warehouse for the purpose of the Customs Act 1901.

    SECTION 61C   PERMISSION TO DELIVER CERTAIN GOODS FOR HOME CONSUMPTION WITHOUT ENTRY  

    61C(1)    


    A person may apply to the Collector for permission to deliver goods (other than tobacco goods) for home consumption without entering them for that purpose:

    (a)    in respect of a recurring 7 day period; or

    (b)    

    in respect of a calendar month if:

    (ia) the person is a small business entity, or is a person covered by subsection (1AA), (an eligible business entity ); or

    (i) the person is included in a class prescribed by the regulations; or

    (ii) the goods to be delivered for home consumption are of a kind prescribed by the regulations; or

    (c)    

    in respect of a quarter if:

    (i) the goods are classified to item 1, 2, 3, 10, 15, 20 or 21 of the Schedule to the Excise Tariff Act 1921; and

    (ii) the person is an eligible business entity.

    61C(1AA)    


    A person is covered by this subsection if:

    (a)    the person is not a small business entity; and

    (b)    the person would be a small business entity if:


    (i) each reference in Subdivision 328-C (about what is a small business entity) of the Income Tax Assessment Act 1997 to $10 million were instead a reference to $50 million; and

    (ii) the reference in paragraph 328-110(5)(b) of that Act to a small business entity were instead a reference to a person covered by this subsection.

    61C(1A)    


    If a person applies in respect of a recurring 7 day period, the person may specify in the application the 7 day period that the person wishes to use.

    61C(1B)    


    An application must be made in an approved form.

    61C(1C)    


    The Collector may, on receiving an application under subsection (1) or advice under subsection (8) or (9), by notice in writing:

    (a)    give permission to the person to deliver for home consumption, from a place specified in the permission, goods:


    (i) of a kind specified in the permission; and

    (ii) subject to the CEO's control;
    even though an entry of the goods for home consumption has not been made and passed under this Act; or

    (b)    refuse to give such a permission and set out in the notice the reasons for so refusing.


    61C(1D)    


    If a permission is to apply in respect of a 7 day period, the notice must specify:

    (a)    the 7 day period for which permission is given; and

    (b)    the first day of the 7 day period from which permission is given.


    61C(1E)    


    If a permission is to apply in respect of a calendar month, the notice must specify the calendar month from which permission is given.

    61C(1F)    


    If a permission is to apply in respect of a quarter, the notice must specify the quarter from which permission is given.

    61C(2)    


    Goods delivered for home consumption by authority of a permission given under subsection (1C) shall, for the purposes of this Act, be deemed to be entered for home consumption on the day on which they are so delivered.

    61C(3)    


    A permission given under subsection (1C) is subject to the following conditions:

    (a)    if the person's permission applies in respect of a 7 day period and specifies goods other than gaseous fuel - the condition that, to the extent that the permission relates to goods other than gaseous fuel, the person give the Collector a return, in an approved form, on the first business day following the end of each 7 day period, providing particulars in relation to the goods that have, during the period to which the return relates, been delivered into home consumption under the permission;

    (b)    if the person's permission applies in respect of a 7 day period and specifies gaseous fuel - the condition that, to the extent that the permission relates to gaseous fuel, the person give the Collector a return, in an approved form, on or before the sixth business day following the end of each 7 day period, providing particulars in relation to the gaseous fuel that has, during the period to which the return relates, been delivered into home consumption under the permission;

    (c)    

    if the person is an eligible business entity and the person's permission applies in respect of a calendar month - the condition that the person give the Collector a return, in an approved form, on or before the 21st day of each calendar month, providing particulars in relation to the goods that have, during the previous calendar month, been delivered into home consumption under the permission;

    (d)    

    if a person is included in a class mentioned in subparagraph (1)(b)(i) or has permission to deliver for home consumption goods of a kind mentioned in subparagraph (1)(b)(ii) in respect of a calendar month - any condition prescribed by the regulations;

    (da)    

    if the person is an eligible business entity and the person's permission applies in respect of a quarter - the condition that the person give the Collector a return, in an approved form, on or before:

    (i) for a quarter ending on 31 March, 30 June or 30 September - the 28th day after the end of the quarter; and

    (ii) for a quarter ending on 31 December - the 28th day of the February after the end of the quarter;
    providing particulars in relation to the goods that have, during the quarter, been delivered into home consumption under the permission;

    (e)    if a person ceases to be an eligible business entity - the condition that the person advise the Collector, in writing, of that fact as soon as practicable after ceasing to be an eligible business entity;

    (f)    if a person ceases to be included in a class mentioned in subparagraph (1)(b)(i) - the condition that the person advise the Collector, in writing, of that fact as soon as practicable after ceasing to be included in that class;

    (g)    the condition that, at the time when each return is given to the Collector, the person pay any duty owing at the rate applicable when the goods were delivered into home consumption;

    (h)    any other condition, specified in the permission, that, in the opinion of the Collector, is necessary for the protection of the revenue or for the purpose of ensuring compliance with the Excise Acts.


    61C(3A)    


    Despite paragraphs (3)(a), (b), (c), (d) and (da), the Collector may determine different conditions for giving the Collector a return if:

    (a)    a person does not have any duty liability; or

    (b)    subsection (8) or (9) applies.


    61C(4)    


    A person to whom permission has been given under this section must not intentionally act or fail to act knowing, or being reckless as to whether, the act or omission contravenes a requirement specified in the permission.

    Penalty: 2 years imprisonment or the greater of:

  • (a) 500 penalty units; and
  • (b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

    Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


  • 61C(4A)    


    If, before the goods were removed, a person to whom permission has been given under this section intentionally acts or fails to act knowing, or being reckless as to whether, the act or omission contravenes a requirement specified in the permission, then, for the purposes of paragraph 116(1)(d), the removal of the goods is taken not to have been authorised by this Act.

    61C(4B)    


    A person must not fail to comply with a requirement specified in a permission given under this section.

    Penalty: 100 penalty units.


    61C(4C)    


    Strict liability applies to subsection (4B).

    61C(5)    


    Subject to subsection (6), a permission given under subsection (1C) does not authorize the delivery of goods in respect of which a quota order under subsection 59A (3) is in force at any time if the CEO would have the right under subsection 59A (8), if the goods were entered for home consumption under section 58 at that time, to take security with respect to the goods for the protection of the revenue.

    61C(6)    
    For the purposes of subsection (5), a quota order, or a variation of a quota order, shall be deemed not to be in force unless it has been served on the person to whom the quota order applies or has otherwise been brought to the notice of that person.

    61C(7)    


    If the Collector is satisfied that a person to whom a permission has been given under subsection (1C) has failed to comply with any condition to which the permission is subject, the Collector may, at any time while the permission remains in force, by notice in writing, revoke the permission. The notice must set out the reasons for the revocation.

    61C(8)    


    If:

    (a)    

    a person is an eligible business entity or included in a class mentioned in subparagraph (1)(b)(i); and

    (b)    

    the person's permission applies in respect of a calendar month or a quarter; and

    (c)    

    the person advises the Collector, in writing, that the person ceases to be an eligible business entity or included in a class mentioned in subparagraph (1)(b)(i);

    the Collector must, by notice in writing:

    (d)    revoke the permission with effect from a specified day; and

    (e)    give another permission under subsection (1C) in respect of a 7 day period.


    61C(9)    


    If a person advises the Collector, in writing, that the person wishes to change the period in respect of which their permission applies, the Collector may, by notice in writing:

    (a)    revoke the permission with effect from a specified day; and

    (b)    give another permission under subsection (1C) in respect of another period.


    61C(10)    


    Subsections (7) to (9) do not, by implication, limit the application of subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.

    SECTION 61D   OUTWARDS DUTY FREE SHOPS  

    61D(1)    
    In this section:

    "international flight"
    means a flight, whether direct or indirect, by an aircraft between a place in Australia from which the aircraft takes off and a place outside Australia at which the aircraft lands or is intended to land;

    "international voyage"
    means a voyage, whether direct or indirect, by a ship between a place in Australia and a place outside Australia;

    "outwards duty free shop"
    means a warehouse in respect of which the relevant warehouse licence authorises the sale in the warehouse of goods to relevant travellers;

    "proprietor"
    , in relation to an outwards duty free shop, means the holder of the warehouse licence that relates to the outwards duty free shop;

    "relevant traveller"
    means a person:


    (a) who intends to make an international flight, whether as a passenger on, or as a pilot or member of the crew of, an aircraft; or


    (b) who intends to make an international voyage, whether as a passenger on, or as the master or a member of the crew of, a ship;

    "warehouse licence"
    has the same meaning as it has in the Customs Act 1901.


    61D(2)    


    Subject to the regulations (if any), a Collector may give permission, in accordance with subsection (3), for excisable goods that are specified in the permission, are subject to the CEO's control and are sold to a relevant traveller in an outwards duty free shop that is specified in the permission to be:


    (a) delivered to the relevant traveller personally for exportation by him or her when making the international flight or voyage in relation to which he or she is a relevant traveller; and


    (b) exported by the relevant traveller when making that flight or voyage without the goods having been entered for exportation; and, subject to subsection (13), the permission is authority for such goods to be so delivered and so exported.


    61D(3)    
    Permission under subsection (2) is given in accordance with this subsection if it is in writing and is delivered to the proprietor of the outwards duty free shop to which the permission relates.

    61D(4)    
    Permission under subsection (2) may relate to particular goods, all goods, goods included in a specified class or classes of goods or goods other than goods included in a specified class or classes of goods.

    61D(5)    
    Without limiting the matters that may be prescribed in regulations referred to in subsection (2), those regulations:


    (a) may prescribe circumstances in which permission under that subsection may be given;


    (b) may prescribe matters to be taken into account by a Collector when deciding whether to give permission under that subsection; and


    (c) may prescribe conditions to which a permission under that subsection is to be subject.

    61D(6)    
    A Collector may, when giving permission under subsection (2) or at any time while a permission under that subsection is in force, impose conditions to which the permission is to be subject, being conditions that, in the opinion of the Collector, are necessary for the protection of the revenue or for the purpose of ensuring compliance with the Excise Acts and may, at any time, revoke, suspend or vary, or cancel a suspension of, a condition so imposed.

    61D(7)    
    Without limiting the generality of paragraph (5) (c) or subsection (6), a condition referred to in that paragraph or that subsection to which a permission is to be subject may be:


    (a) a condition to be complied with by the proprietor of the outwards duty free shop to which the permission relates or by relevant travellers to whom goods to which the permission relates are sold;


    (b) a condition that the permission only applies to sales to relevant travellers who comply with a prescribed requirement or requirements, which may be, or include, a requirement that relevant travellers produce to the proprietor of the outwards duty free shop to which the permission relates or to an employee or agent of that proprietor a ticket or other document, being a document approved by a Collector for the purposes of this paragraph, showing that the relevant traveller is entitled to make the international flight or voyage in relation to which he or she is a relevant traveller; or


    (c) a condition that the proprietor of the outwards duty free shop to which the permission relates will keep records specified in the regulations and will notify a Collector of all sales made by him or her to which the permission applies.


    61D(8)    
    A condition imposed in respect of a permission under subsection (6) or a revocation, suspension or variation, or a cancellation of a suspension, of such a condition takes effect when notice, in writing, of the condition or of the revocation, suspension or variation, or of the cancellation of the suspension, is served on the proprietor of the outwards duty free shop to which it relates, or at such later time (if any) as is specified in the notice, but does not have effect in relation to any goods delivered to a relevant traveller before the notice was served.

    61D(9)    
    A condition imposed in respect of a permission under paragraph (5) (c) or subsection (6) or a revocation, suspension or variation, or a cancellation of a suspension, of a condition under subsection (6) may relate to all goods to which the permission relates or to particular goods to which the permission relates and may apply either generally or in particular circumstances.

    61D(10)    
    A permission under subsection (2) is subject to:


    (a) the condition that the proprietor of the outwards duty free shop to which the permission relates will ensure that relevant travellers to whom goods are delivered in accordance with the permission are aware of any conditions of the permission with which they are required to comply; and


    (b) the condition that that proprietor will provide a Collector with proof, in a prescribed way and within a prescribed time, of the export of goods delivered to a relevant traveller in accordance with the permission.

    61D(11)    


    If a person who is required to comply with a condition imposed in respect of a permission under subsection (2) fails to comply with the condition, he or she commits an offence against this Act punishable upon conviction by a penalty not exceeding 50 penalty units.
    Note:

    See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    61D(11A)    


    An offence under subsection (11) is an offence of strict liability.
    Note:

    For strict liability , see section 6.1 of the Criminal Code.


    61D(12)    
    Where the proprietor of an outwards duty free shop to which a permission under subsection (2) relates does not produce the proof required by paragraph (10) (b) that goods delivered by him or her to a relevant traveller in accordance with the permission have been exported by that traveller, the goods shall be deemed to have been entered, and delivered, for home consumption by the proprietor, as owner of the goods, on the day on which the goods were delivered to that traveller.

    61D(13)    
    A Collector may, in accordance with the regulations, revoke a permission given under subsection (2) in relation to the sale of goods occurring after the revocation.

    61D(14)    
    Where a Collector makes a decision under subsection (2) refusing to give permission to the proprietor of an outwards duty free shop or under subsection (13) revoking a permission given under subsection (2), the Collector shall cause to be served, either personally or by post, on the proprietor of the shop, a notice in writing setting out the Collector's findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

    SECTION 61E   INWARDS DUTY FREE SHOPS  

    61E(1)    


    In this section:

    "airport shop goods"
    has the same meaning as in the Customs Act 1901;

    "international flight"
    means a flight, whether direct or indirect, by an aircraft between a place outside Australia from which the aircraft took off and a place in Australia at which the aircraft landed;

    "inwards duty free shop"
    means a warehouse in respect of which the relevant warehouse licence authorises the sale in the warehouse of airport shop goods to relevant travellers;

    officer of Customs
    has the same meaning as in the Customs Act 1901.

    "place outside Australia"
    does not include:


    (a) a ship, or an area of waters, outside Australia;


    (b) an installation outside Australia; or


    (c) a reef or an uninhabited island, outside Australia;

    "proprietor"
    , in relation to an inwards duty free shop, means the holder of the warehouse licence that relates to the inwards duty free shop;

    "relevant goods"
    means goods that are both:


    (a) excisable goods; and


    (b) airport shop goods;

    "relevant traveller"
    means a person who:


    (a) has arrived in Australia on an international flight, whether as a passenger on, or as the pilot or a member of the crew of, an aircraft; and


    (b) has not been questioned, for the purposes of the Customs Act 1901, by an officer of Customs in respect of goods carried on that flight.


    61E(2)    
    Subject to the regulations (if any), a Collector may give permission, in accordance with subsection (3), for relevant goods that are specified in the permission and are sold to a relevant traveller in an inwards duty free shop that is specified in the permission to be:


    (a) delivered to the relevant traveller; and


    (b) taken by the relevant traveller for reporting to an officer of Customs doing duty in relation to clearance under the Customs Act 1901 of the personal baggage of the relevant traveller.


    61E(3)    
    Permission under subsection (2) is given in accordance with this subsection if it is in writing and is delivered to the proprietor of the inwards duty free shop to which the permission relates.

    61E(4)    
    Without limiting the matters that may be prescribed in regulations referred to in subsection (2), those regulations:


    (a) may prescribe circumstances in which permission under that subsection may be given;


    (b) may prescribe matters to be taken into account by a Collector when deciding whether to give permission under that subsection; and


    (c) may prescribe conditions to which a permission under that subsection is to be subject.

    61E(5)    


    A Collector may, when giving permission under subsection (2) or at any time while a permission under that subsection is in force, impose conditions to which the permission is to be subject, being conditions that, in the opinion of the Collector, are necessary for the protection of the revenue or for the purpose of ensuring compliance with the Excise Acts and may, at any time, revoke, suspend or vary, or cancel a suspension of, a condition so imposed.

    61E(6)    
    Without limiting the generality of paragraph (4) (c) or subsection (5), a condition referred to in that paragraph or that subsection to which a permission is to be subject may be:


    (a) a condition to be complied with by the proprietor of the inwards duty free shop to which the permission relates or by relevant travellers to whom goods to which the permission relates are sold; or


    (b) a condition that the proprietor of the inwards duty free shop to which the permission relates will keep records specified in the regulations.

    61E(7)    
    A condition imposed in respect of a permission under subsection (5) or a revocation, suspension or variation, or a cancellation of a suspension, of such a condition takes effect when notice, in writing, of the condition or of the revocation, suspension or variation, or of the cancellation of the suspension, is served on the proprietor of the inwards duty free shop to which it relates, or at such later time (if any) as is specified in the notice, but does not have effect in relation to any goods delivered to a relevant traveller before the notice was served.

    61E(8)    
    A condition imposed in respect of a permission under paragraph (4) (c) or subsection (5) or a revocation, suspension or variation, or a cancellation of a suspension, of a condition under subsection (5) may relate to all goods to which the permission relates or to particular goods to which the permission relates and may apply either generally or in particular circumstances.

    61E(9)    
    A permission under subsection (2) is subject to the condition that the proprietor of the inwards duty free shop to which the permission relates will ensure that relevant travellers to whom goods are delivered in accordance with the permission are aware of any conditions of the permission with which they are required to comply.

    61E(10)    


    If a person who is required to comply with a condition imposed in respect of a permission under subsection (2) fails to comply with the condition, the person commits an offence against this Act punishable upon conviction by a fine not exceeding 50 penalty units.
    Note:

    See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.


    61E(10A)    


    An offence under subsection (10) is an offence of strict liability.
    Note:

    For strict liability , see section 6.1 of the Criminal Code.


    61E(11)    
    A Collector may, in accordance with the regulations, revoke a permission given under subsection (2) in relation to the sale of goods occurring after the revocation.

    61E(12)    
    Where a Collector makes a decision under subsection (2) refusing to give permission to the proprietor of an inwards duty free shop or under subsection (11) revoking a permission given under subsection (2), the Collector shall cause to be served, either personally or by post, on the proprietor of the shop, a notice in writing setting out the Collector's findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

    SECTION 62  

    62   DEFICIENCY IN DUTY  


    Whenever, in relation to any factory, it appears, on taking stock of excisable goods manufactured and material by an officer, that duty has not been paid on the full quantity of excisable goods on which duty ought to have been paid, the licensed manufacturer shall forthwith pay to the Collector the amount of the deficiency unless such deficiency is accounted for to the satisfaction of the Collector.

    SECTION 63  

    63   POWER TO PRESCRIBE SCALES FOR CALCULATING QUANTITIES OF EXCISABLE GOODS PRODUCED  
    For the purpose of calculating the full quantity of excisable goods which have been produced in a factory scales may be prescribed showing the quantity of excisable goods which shall be deemed to have been produced from a given quantity of material, and the quantity of fully manufactured excisable goods which shall be deemed to have been produced from a given quantity of partly manufactured excisable goods.

    SECTION 64  

    64   DELIVERY OF SAMPLES FREE OF DUTY  


    Small samples of goods subject to the CEO's control may, with the approval of a Collector, be delivered for home consumption without entry of the samples for home consumption and without payment of duty on the samples.

    SECTION 65   RULES FOR WORKING OUT THE VOLUME OR WEIGHT ETC. OF EXCISABLE GOODS  


    Making of rules

    65(1)    
    The CEO may, by legislative instrument, determine rules forworking out one or more of the following:


    (a) the volume of excisable goods;


    (b) the weight of excisable goods;


    (c) the percentage by volume of alcohol in excisable goods;


    (d) the energy content of excisable goods.

    Note:

    The rules may make different provision with respect to different matters or different classes of matters (see subsection 33(3A) of the Acts Interpretation Act 1901).


    65(2)    
    The rules may, for example:


    (a) specify sampling methods; and


    (b) permit minor variations between:


    (i) the nominated or labelled volume of excisable goods and the actual volume of the goods; or

    (ii) the nominated or labelled weight of excisable goods and the actual weight of the goods; or

    (iii) the nominated or labelled volume of alcohol in excisable goods and the actual volume of alcohol in the goods;
    so as to provide for unavoidable variations directly attributable to the manufacturing process.

    Application of rules

    65(3)    


    The rules apply to excisable goods entered for home consumption on or after the time when the rules commence.
    Note:

    Section 12 of the Legislation Act 2003 deals with when a legislative instrument commences.


    PART VII - SPECIAL PROVISIONS RELATING TO TOBACCO  

    SECTION 66   PAYMENT OF DUTY RELATING TO TOBACCO GOODS  

    66(1)    
    If the Collector grants a person a licence under subsection 39A(1) that permits the manufacture of any tobacco goods, the Collector must determine a recurring 7 day period (the tobacco excise period ) for the licence.

    66(2)    
    However, if the licence is granted on a day that is not the first day of the tobacco excise period, the Collector must determine the first tobacco excise period to be the period from that day until the day before the next tobacco excise period starts.

    66(3)    
    The tobacco excise period, and any tobacco excise period determined under subsection (2), must be stated in the licence.

    66(4)    
    The person must, for each tobacco excise period for the licence that begins before the licence ends or is cancelled, give a tobacco excise return to the Collector which includes:


    (a) the amount (including a nil amount) of tobacco goods manufactured under the licence during the period; and


    (b) the amount of the Excise duty payable on those tobacco goods.

    66(5)    
    The return must be:


    (a) in the approved form; and


    (b) given to the Collector:


    (i) on the first business day after the tobacco excise period ends; or

    (ii) if the licence ends or is cancelled during the tobacco excise period - on the first business day after the day the licence ends or is cancelled.

    66(6)    
    The Excise duty on the tobacco goods manufactured under the licence during the tobacco excise period is due and payable by the person on the same day that the return must be given for that period.

    66(7)    
    For the purposes of this Act, the tobacco goods manufactured under the licence during the tobacco excise period are taken to be entered for home consumption, and delivered for home consumption, at the time the goods are manufactured.

    SECTION 67  

    67   GENERAL INTEREST CHARGE ON UNPAID DUTY  
    If any of the Excise duty remains unpaid after it is due under subsection 66(6), the person liable to pay the duty is liable to pay the general interest charge (within the meaning of the Taxation Administration Act 1953) on the unpaid amount of the Excise duty for each day in the period that:


    (a) started at the beginning of the day by which the amount was due to be paid; and


    (b) finishes at the end of the last day, at the end of which, any of the following remains unpaid:


    (i) the amount;

    (ii) general interest charge on any of the amount.

    Note: The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.