EXCISE ACT 1901
(Repealed by No 54 of 2003)
S 78AD repealed by No 54 of 2003, s 3 and Sch 4 item 6, effective 1 July 2003. For transitional provisions see note under s 78A. S 78AD formerly read:
AUDIT OF DIESEL FUEL REBATE APPLICATIONS
For the purposes of auditing a particular diesel fuel rebateapplication, the CEO may, by notice in writing given to the person whomade that application (the applicant ) before the end of 5 years after the making of that application, inform the applicant:
(a) that he or she is required to substantiate the entitlement to any rebate applied for under the application; and (b) that, for the purposes of the audit, an authorised officer may wish to exercise all
For the purposes of subsection (1), the audit powers of anauthorised officer in relation to a particular diesel fuel rebate application are powers to do all or any of the following:
(a) to require the applicant to demonstrate to the authorised officer the method, or the operation of any record keeping or accounting system, employed in arriving at the particulars or estimates included in the application and in the related diesel fuel records;
(b) to conduct testing of the record keeping or accounting system referred to in paragraph (a) in order to determine the accuracy of the system in arriving at those particulars or estimates;
(c) to require the applicant, within a period notified by the authorised officer (whether in a notice under subsection (1) or otherwise), to make available for inspection by the officer diesel fuel records that substantiate the entitlement to rebate applied forunder the application;
(d) to examine, make and retain copies of, or take and retain extracts from, any records made available in accordance with a requirement under paragraph (c);
(e) subject to subsections (4) and (5), to examine any premises, whether indicated by the records themselves or by the applicant, where diesel fuel the subject of the application has been, or is, used or stored;
(f) to examine any receptacle in which diesel fuel the subject of the application has been stored, or is stored, and to inspect, take and retain samples of, any fuel stored in it;
(g) subject to subsection (6), to board and examine any vessel, or to examine any vehicle or machine, in the control of the applicant, in which diesel fuel the subject of the application has been used or is used, and to examine, take and retain samples of, any fuel in that vessel, vehicle or machine;
(h) to require the applicant to answer any questions concerning the diesel fuel the subject of the application.
An applicant may comply with a requirement to make diesel fuelrecords available to authorised officers:
(a) by sending or giving the records to the authorised officer forexamination; or
(b) if the records are maintained at the residential premises of the applicant - by consenting to their examination, at any reasonable time, by the authorised officer at those premises; or
(c) if the records are maintained at premises that are not residential premises - by notifying the authorised officer that the records may be examined, at any reasonable time, by the authorisedofficer at those premises.
The power of an authorised officer under paragraph (2)(e)extends to a power to examine residential premises only if:
(a) the application relates to diesel fuel that was purchased for use at those premises in a manner that falls within paragraph 78A(1)(b) ; and
(b) the occupant or person in charge of those premises consents to the entry of the authorised officer for the purpose of exercising that power.
The power of an authorised officer under paragraph (2)(e) extends to a power to examine the residential areas of premises described in paragraph 78A(1)(ad), (c) or (d) only if:
(a) the application relates to diesel fuel that was purchased for use at those premises in a manner that falls within that paragraph; and
(b) the occupant or person in charge of those premises consents to the entry of the authorised officer for the purpose of exercising that power.History
S 78AD(5) amended by No 46 of 2002, s 3 Sch 1 item 9, by substituting ``described in paragraph 78A(1)(ad), (c) or (d)'' for ``described in paragraph 78A(1)(c) or (d)'', applicable only in relation to diesel fuel that is purchased on or after 1 July 2002.
The power of an authorised officer under paragraph (2)(g) extends to a power to examine a part of a vessel that comprises the living quarters for any of the crew of the vessel only if:
(a) the application relates to diesel fuel that was purchased for use in the vessel in a manner that falls within paragraph 78A(1)(b) ; and
(b) the person in charge of the vessel consents to the entry of theauthorised person for the purpose of exercising that power.
The power of an authorised officer to examine a vessel, vehicle or machine includes a power to conduct, or supervise the conducting of, a test of the vessel, vehicle or machine in order to determine its rate of diesel fuel consumption.
The applicant who has received a notice requiring that applicantto make available diesel fuel records that substantiate the entitlement to rebate applied for must not refuse or fail to make such records available for inspection.
Penalty: An amount not exceeding the amount of the rebate applied for and not substantiated.
An offence against subsection (8) is an offence of strict liability.
In determining whether diesel fuel records substantiate a person's entitlement to rebate applied for in respect of particular fuel, any particulars relating to the use or intended use of the fuel that are established in the exercise of an authorised officer's powers under this section may be taken into account.
For the purposes of this section, the CEO may, by notice published in the Gazette , specify a rate of diesel fuel consumption as the standard rate of diesel fuel consumption for a specified kind of vessel, vehicle or machine.
(a) a standard rate of diesel fuel consumption for a specified kind of vessel, vehicle or machine is specified under subsection (11); and
(b) an applicant applies for diesel fuel rebate in respect of diesel fuel used or to be used in a particular vessel, vehicle or machine that falls within that specified kind of vessel, vehicle or machine (as the case may be); and
(c) the amount of rebate applied for is based on a rate of diesel fuel consumption (the claimed rate ) that is greater than the standard rate;
then, the applicant's diesel fuel records are not to be taken to substantiate the applicant's entitlement to the rebate unless the records establish, or it is otherwise established, that the particular vessel, vehicle or machine in fact consumes diesel fuel at the claimed rate in circumstances similar to circumstances to which the application relates.
If an authorised officer proposes, under this section, to enter any premises or to board any vessel, the officer must, if requested to do so by the occupier or person in charge of the premises, or the person in control of the vessel, produce for inspection written evidence of the fact that he or she is an authorised officer, and, if the officer fails to do so, he or she is not authorised to enter the premises or board the vessel.
The occupier or person in charge of premises entered, or the person in control of a vessel boarded, must provide the authorised officer with all reasonable facilities and assistance for the effective exercise of the officer's powers.
Penalty: 10 penalty units.
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
S 78AD(14) amended by No 25 of 2001, s 3 and Sch 2 item 63, by inserting the note at the end, effective 4 May 2001.
An offence under subsection (14) is an offence of strict liability.
For strict liability , see section 6.1 of the Criminal Code .
S 78AD(14A) inserted by No 146 of 2001, s 3 and Sch 4 item 18, applicbale to acts and omissions that take place after December 15. If an act or omission is alleged to have taken place between 2 dates, one before and one on or after December 15, the act or omission is alleged to have taken place before December 15.
A person is not excused from making available a record when required to do so under subsection (2) on the grounds that the making available of the record makes the person liable to a penalty, but any records so made available are not admissible in evidence against the person in proceedings other than proceedings for an offence against section 78AA , subsection (8) of this section or paragraph 120(1)(vc), (vd) or (vi) , in relation to diesel fuel rebate.
S 78AD(15) amended by No 25 of 2001, s 3 and Sch 2 item 64, by inserting ``, (vd)'' after ``120(1)(vc)'', effective 4 May 2001.
Nothing in this section prevents the CEO from auditing, at a particular time, a number of diesel fuel rebate applications made by the same person if each of the applications may be audited by the CEO under subsection (1) at that time.
S 78AD inserted by No 97 of 1997, s 3 Sch 2 item 10, applicable only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 78A of this Act on or after 31 December 1997 (whether the fuel was purchased before or after 31 December 1997).
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