Excise guidelines for the fuel industry

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07 REMISSIONS, REFUNDS, DRAWBACKS & EXEMPTIONS

OUR COMMITMENT TO YOU The information in this publication is current at August 2012. This publication is an expression of the Commissioner's opinion on the operation of fuel excise legislation. This publication is not legally or administratively binding on the Commissioner and is not a 'public ruling' for the purposes of Division 358 of Schedule 1 to the Taxation Administration Act 1953. If you feel this publication does not fully cover your circumstances, please seek help from the Tax Office or a professional adviser. Since we regularly revise our publications to take account of any changes to the law, you should make sure this edition is the latest. The easiest way to do this is by checking for a more recent version on our website at www.ato.gov.au

7.1 PURPOSE

7.2 INTRODUCTION

7.3 POLICY AND PRACTICE

7.3.1 WHEN CAN I APPLY FOR A REMISSION OF EXCISE DUTY?

7.3.2 WHEN CAN I APPLY FOR A REFUND OF EXCISE DUTY?

7.3.3 WHEN CAN I APPLY FOR A DRAWBACK OF EXCISE DUTY?

7.3.4 WHAT HAPPENS IF I AM OVERPAID A REFUND OR DRAWBACK?

7.3.5 WHEN ARE EXCISABLE FUEL PRODUCTS EXEMPT FROM EXCISE DUTY?

7.4 PROCEDURES

7.4.1 HOW DO I APPLY FOR A REMISSION OR REFUND?

7.4.2 HOW DO I APPLY FOR A DRAWBACK?

7.4.3 WHAT DO I DO IF I NEED MORE INFORMATION?

7.5 WHAT PENALTIES CAN APPLY TO OFFENCES IN RELATION TO REMISSIONS, REFUNDS, DRAWBACKS AND EXEMPTIONS?

7. 6 TERMS USED

7.7 LEGISLATION (quick reference guide)

7.7.1 Excise Act 1901

7.7.2 Excise Regulations 1925

7.7.3 Excise Tariff Act 1921

7.7.4 Crimes Act 1914

7.1 PURPOSE

This chapter deals with:
  • when you can apply for a remission, refund or drawback
  • what happens if you are overpaid a refund or drawback
  • when fuel products are exempt from excise duty
  • how to apply for a remission, refund or drawback, and
  • penalties that can apply to offences in relation to remissions, refunds, drawbacks and exemptions.

7.2 INTRODUCTION

A remission of excise duty extinguishes in full or part, the liability for duty that was imposed at the point of manufacture. A refund is the repayment of duty that has already been paid. A drawback is a repayment of duty already paid. It is similar to a refund, but applies where duty-paid goods are exported. In some circumstances the duty you pay on goods may be subject to a complete or partial refund or drawback. [138]

7.3 POLICY AND PRACTICE

7.3.1 WHEN CAN I APPLY FOR A REMISSION OF EXCISE DUTY?

You can apply for a remission of excise duty payable on your excisable fuel products if any of the following circumstances apply while the goods are subject to excise control : The fuel products have deteriorated or been damaged, pillaged, lost or destroyed, [139]
  'Pillaged' means to strip of money or goods by open violence, as in war; plunder. [140] This does not cover simple cases of theft.
  'Lost' in this context does not simply mean can not be found. For example a tank may spring a leak and it is known that the fuel has drained away. The fuel has been lost and cannot be used by anyone as a fuel.

  For more information about payment of duty see Chapter 6 - Payment of duty.
Example 7A Fuel which is under bond is accidentally destroyed by fire at a licenced site. The owner applies for a remission of duty on the destroyed fuel. If approved, this would extinguish the duty liability.
  The fuel is used in the manufacture of goods that are not excisable and is chemically transformed (other than by combustion) in that manufacture. [141] This circumstance applies where a fuel product is transformed through a chemical reaction (other than combustion) to produce an entirely different substance that is no longer an excisable product, as in some large-scale petrochemical manufacturing processes. The remission does not apply where fuel is merely mixed with other substances to make products such as solvents, cleaning agents or paint. The goods are not worth the amount of excise duty payable on the goods. [142] The excisable fuel products are for sale to diplomatic or consular missions and the goods are to be delivered under your PSP. [143]
Example 7B A manufacturer receives an order from a diplomatic mission for fuel, for official use. The manufacturer delivers the fuel, into the Australian domestic market (to the diplomatic mission), under the terms of their PSP. (The terms of the PSP may require the manufacturer to submit an Excise remission (NAT 4289) to us, after delivery of the fuel.)

7.3.1.1 REMISSION OF EXCISE DUTY ON LPG AND LNG

A remission of duty is available where you are a licensed person or a holder of a periodic settlement permission and you use LPG or LNG for purposes other than in an internal combustion engine in either a motor vehicle or vessel. [143A] A remission of duty is also available where you are a licensed person or the holder of a periodic settlement permission and you deliver LPG or LNG that is not for use, or intended for use, in an internal combustion engine in either a motor vehicle or vessel. The remission applies at the time the LPG or LNG is delivered. [143B] For the period 1 December 2011 to 30 June 2012 the remission for non-transport LNG and LPG was a full remission of duty. From 1 July 2012 the remission becomes a partial remission as non-transport gaseous fuels became subject to a carbon charge under the Clean Energy Future suite of amendments. A partial remission when applied, results in a reduced amount of duty being payable on the relevant goods, It is the Government's intention that from 1 July 2013 non transport gaseous fuels once again become eligible for a full remission as these clients will begin to account for the emissions associated with gaseous fuels directly under the Carbon Pricing Mechanism, rather than through the excise system. This will be a compulsory scheme thus ensuring all taxpayers currently entitled to a partial remission will once again become entitled to full remissions.

  For more information about Periodic settlement permissions refer to Chapter 6 - Payment of duty.
Example 7C: LPG delivered under settlement permission Elizabeth's business is licensed for excise purposes and holds a periodic settlement permission. The business supplies LPG to Kathleen's business for the purposes of heating during the 2012-2013 financial year. Kathleen advises Elizabeth that she will not be using the LPG in the internal combustion engine of a motor vehicle or vessel. This means a partial remission applies and Elizabeth will only have to pay the equivalent carbon charge on the LPG, not the higher transport duty rate.
 
Example 7D: LPG delivered no settlement permission applies Susan manufactures LPG. Susan receives an order from Brian who explains that he will not be using the fuel in an internal combustion engine of a motor vehicle or vessel. As Susan does not hold a periodic settlement permission, she must lodge an entry and pay duty before she can deliver the fuel to Brian. Susan applies the partial remission and pays a reduced amount of duty. Once the entry is passed, Susan can deliver the fuel to Brian. This means that Susan must remit excise duty at a rate equivalent to the carbon charge prior to delivering the LPG to Brian.
 
Example 7E: LPG delivered for mixed use Aaron manufactures LPG. Aaron delivers LPG to Christopher in a bulk tank for transport and non-transport use. The LPG is excisable. As Aaron supplies the LPG to Christopher for mixed use he cannot apply a remission to the LPG. This means that Aaron must pay excise duty at the transport rate in relation to all the LPG supplied to Christopher. Christopher may be entitled to a fuel tax credit depending on his use of the fuel.
 
Example 7F: LPG delivered for transport use by a distributor Huey's business is licensed for excise purposes and supplies LPG to a site specified in a manufacturer licence held by Daisy's Distributors. Daisy holds a movement permission that allows the LPG to move from Huey's licensed site without duty being paid. Daisy distributes fuel to both transport clients and non-transport clients. Where Daisy distributes the LPG to service stations and trucking companies for transport purposes, Daisy will be liable to pay duty on the fuel and no remission will be available.

  For more information about movement permissions refer to Chapter 5 - Movement permissions.

7.3.1.2 NOTICE REQUIREMENTS FOR LPG DELIVERED UNDER REMISSION

If you hold a manufacturer or storage licence and you supply or sell LPG to which a remission (full or partial) applies at the time of supply or sale you must give notice to your customer. [143C] If you on-sell or on-supply LPG on which a remission applied, and at the time of the on-sale or on-supply a remission continues to apply, you must give notice to your customer that a remission applied to the LPG. [143D] The notice must include the words:
'Not to be used, or supplied, for transport use. Penalties apply'. [143E]
The statement must appear on the first page of the tax invoice you provide. [143F]
The phrase 'excisable LPG use' means to use 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.
The phrase 'excisable LPG use' does not include the use of LPG for a motor vehicle that is merely designed to move goods with a forklift and is for use primarily off public roads.
You are not required to give a notice for LPG you supply if the supply is:
  1. in, or into, a container with a capacity that does not exceed 210kgs; or
  2. to a residential premises and the LPG is not supplied, in whole or in part, for the purpose of carrying on an enterprise. [143G]

7.3.1.3 PENALTY OR OFFENCE RELATING TO LPG DELIVERED UNDER REMISSION

You may be subject to a penalty of 1 penalty unit if you do not give the notice when required. The penalty would apply to each instance where the notice was not supplied. [143H] Penalty for using LPG for an excisable LPG use You may be subject to a demand for payment from us if:
  • LPG is sold or supplied to you; and
  • you use the LPG for an excisable LPG use; and
  • an LPG remission applied to the LPG at the time of the use. [143I]
The amount demanded will be equal to 2 times the amount of excise duty that would be payable on the LPG when used for an excisable LPG use. [143J] Penalty for unlawfully selling LPG that is used for an excisable LPG use You may also be subject to a penalty if:
  1. you intentionally sell LPG; and
  2. you know that, or should reasonably have known as to whether, the LPG will be used for an excisable LPG use, and
  3. the LPG is used for an excisable LPG use; and
  4. an LPG remission to the LPG at the time of the use. [143K]
The penalty is 2 years imprisonment or the greater of:
  1. 500 penalty units; and
  2. 5 times the amount of duty that would be payable on the LPG at the rate of duty payable on excisable LPG on the day the LGP was used. [143L]

  For more information about offences and penalties refer to Chapter 9 - Offences.

7.3.2 WHEN CAN I APPLY FOR A REFUND OF EXCISE DUTY?

You can apply for a refund of excise duty paid on excisable fuel products if the following circumstances apply:
  1. Duty has been paid on fuel that was lost or destroyed. Duty has been paid on excisable fuel products, however it is later found that, while the goods were subject to excise control (i.e. while they were at the licensed site), they deteriorated or had been damaged, pillaged, lost or destroyed, [144]
    Example 7G A licensed entity that does not have a periodic settlement permission enters a quantity of fuel and pays the appropriate duty. Before the goods are delivered from the licensed premises a fire destroys the fuel. As the fuel products were still subject to excise control when they were destroyed, the licence holder can apply for a refund of duty on the fuel products. Upon receipt of this application and satisfactory evidence of the destruction of the fuel, the refund will be paid.
     
  2. Duty-paid fuel products, while the goods are subject to excise control, are not worth the amount of excise duty paid. [145]
  3. Duty has been paid through manifest error of fact or patent misconception of the law. [146]
      These circumstance applies to an error that is evident, obvious or apparent and also in situations where duty has been paid for goods entering the Australian domestic market that are not in fact excisable. In both cases a refund of the duty paid would be payable.
     
    Example 7H The system used by an entity to record deliveries into the Australian domestic market and calculate their duty liability on a weekly basis incorrectly identifies a sale of gasoline for aviation use as tariff item 10.6 and pays excise duty at a rate of $0.38143 per litre rather than the applicable rate of $0.08616. The entity identifies the error after the end of the settlement period. It is eligible to apply for a refund for the difference between the duty paid and the duty that was properly payable.
  4. Duty-paid goods have been taken up as ship's stores or aircraft's stores. [147] Ship's stores on overseas ships and aircraft's stores on international flights are not subject to excise duty. Where duty has been paid and the excisable fuel products are subsequently re-directed for use on ships or aircraft travelling overseas (for example bunker fuel), this refund circumstance may apply. This circumstance does not apply where a fuel tax credit is applicable.
  5. Under a directive by a Minister of State, [148] duty-paid goods are withdrawn from circulation on grounds of public health or safety and returned to the manufacturer. [149]
  6. Petrol that is returned to a manufacturer or to a warehouse. [150] 'Petrol' does not only mean gasoline. It also includes any goods classified to item 10 or 15 of the excise tariff, other than goods that have been used. [151] As gaseous fuels are classified to subitems 10.19A, 10.19B and 10.19C, they are captured by the definition of 'petrol'. The circumstance applies to petrol that is returned to a licensed petroleum terminal. Duty may be refunded when the petrol returns to underbond stock holdings. It does not have to be returned to the original manufacturer. Returns can occur for a number of reasons, including:
    • contamination
    • over delivery, or
    • vapour recovery. This relates to vapour that is pumped out of a tank at a service station and captured within the tanks on the delivery truck when fuel is delivered.   The vapour is extracted from the tanker back at the licensed premises and is converted back to a liquid form and will eventually form part of another delivery.          
  7. Recycled hydraulic oil, brake fluid, transmission oil, transformer oil or heat transfer oil (classified to Excise Tariff Act subitem 15.2), for which no benefit is payable under the Product Stewardship (Oil) Regulations 2000, that has been used for the same purpose for which it was used before being recycled. [152]
  8. Duty has been paid on excisable fuel products and they are sold to a diplomatic or consular mission. [153]

Time limits apply in making an application for a refund of duty. Generally, an application must be submitted within 14 days of the date on which the excise duty

7.3.3 WHEN CAN I APPLY FOR A DRAWBACK OF EXCISE DUTY?

You can apply for a drawback if you export fuel products that have had excise duty paid on them. [154] We will only pay a drawback if: [155]
  • prior to the exportation, you advise us that you intend to claim a drawback (We can exempt you from this requirement, in writing, on all claims for drawback. Alternatively, we can decide to pay a particular claim despite the fact you did not apply prior to exportation. [156] )
  • before exportation of the excisable fuel products on which duty has been paid, the goods are available for inspection by us,
  • you have not claimed a refund of excise duty in relation to the exported excisable fuel products
  • the excisable fuel products will not be returned to Australia after they have been exported
  • you keep records showing:
    • that duty was paid on the fuel products (for example invoice), and
    • the fuel products were exported (for example, an export declaration number or bill of lading)
  • you lodge a drawback claim in the approved form no later than 12 months after the fuel products were exported, and
  • the amount of the claim is at least $50.
The amount of the drawback will not exceed the amount of excise duty that was paid. [157]

7.3.4 WHAT HAPPENS IF I AM OVERPAID A REFUND OR DRAWBACK?

If we overpay you by way of a refund or drawback then you must pay the overpaid amount back. We can demand that you pay back the amount and if you do not repay the amount within the time we specify in the demand we can recover the amount through the courts as a debt due to the Commonwealth. [158]

7.3.5 WHEN IS EXCISE DUTY NOT PAYABLE ON EXCISABLE GOODS?

Excise duty is not payable on excisable goods if they are:
  • exported
  • sold for use as ship's or aircraft's stores [159]
  • with our approval, delivered as small samples, [160] or
  • subject to full remission without application. [161]

What are ship's and aircraft's stores?

Ship's and aircraft's stores are goods for the use of passengers or crew on international journeys or for the service of ships or aircraft on international journeys. If you supply ship's or aircraft's stores underbond , you must obtain a movement permission to move the goods from the licensed premises to the place of export.

Can I deliver samples without payment of duty?

Yes, you may be able to deliver small samples without payment of duty and without entry. You must apply to us for approval and your application must:
  • be in writing
  • specify who the sample is for
  • specify the quantity for approval, and
  • specify the purpose of the sample.
In determining what constitutes a sample we would consider each application on a case by case basis, but as a guide the sample volume would need to be less than 10 litres.      
  You do not include approved samples in your excise return ; however, you must keep records of any samples you deliver.
To apply for approval, send your application to us by:
  • faxing to (03) 9285 1168
  • posting to

    Australian Taxation Office

    PO Box 3001

    PENRITH NSW 2740

When are excisable fuel products subject to remission without application?

Excisable fuel products, to which items 10 and 15 of the excise tariff apply, are subject to full remission without application when they are for official use but not for trade by: [162]
  • the Governor-General or any member of the Governor-General's family
  • State Governors or any member of a State Governor's family
  •   the Australian American Foundation (Australian-American Fulbright Commission)
  • the ANZAC Agency for the Pacific Region of the Commonwealth War Graves Commission, and
  • the Government of another country, under an agreement between that Government and the Australian Government.

  If you are not certain whether someone falls into one of these categories, you should contact us by phone on 1300 137 292 .
To supply fuel products under these circumstances, you must first ensure the receiver meets the relevant criteria. For example, you should only accept orders, stating that the goods are for official use, on the official stationery, or official order, of eligible people or organisations. You must keep a copy of this documentation. LPG and LNG delivered for non transport use is also subject to remission. Remissions for LPG or LNG also apply without application, however if a partial remission applies then there will be a requirement to pay the remaining excise duties.

  For more information of how the remission applied refer to Section 7.3.1.1 Remission of Excise Duty on LPG and LNG above.
  You do not have to apply for a remission for LPG and LNG under these circumstances and, if a full remission applies, you do not have to include these products on your excise return.

7.3.5.1 WHEN IS CNG, LPG and LNG EXEMPT FROM EXCISE DUTY?

Gaseous fuels are specifically exempt from excise duty in the following circumstances.
CNG
CNG is exempt from duty if it was compressed: [162A]
  • for use other than as a fuel for a motor vehicle; or
  • other than in the course of carrying on an enterprise; or
  • for use as a fuel for a motor vehicle designed merely to move goods with a forklift and for use primarily off public roads; or
  • at a residential premises; and
    • the rate at which the gas was compressed at those premises is not more than 10 kilograms of compressed natural gas per hour; and
    • the gas is not sold or otherwise supplied in the course of carrying on an enterprise.
The phrase 'in the course of carrying on an enterprise' has the same meaning that it has in the A New Tax System (Goods and Services Tax) Act 1999.
'Residential premises' has the same meaning that it has in the A New Tax System (Goods and Services Tax) Act 1999.
LPG and LNG
LPG and LNG are exempt from duty if you are a licensed manufacturer and you use the fuel at the premises specified in the licence in the process of manufacturing:
  • petroleum condensate or stabilised crude petroleum oil; or
  • liquefied petroleum gas, liquefied natural gas or other hydrocarbons. [162B]

7.4 PROCEDURES

7.4.1 HOW DO I APPLY FOR A REMISSION OR REFUND?

An application for a remission (where required) or refund must be submitted in writing. Records to substantiate your claims must be maintained and produced when requested. [163] For refund circumstance 1, 2, 3 or 4, in section 7.3.2 above, your application must be submitted within 14 days of the date on which the excise duty was paid. However, this time may be extended to within 12 months of payment depending on your circumstances. [164] To ensure the excisable fuel products do not find their way into the Australian domestic market we may wish to inspect or supervise the disposal of the goods. If underbond goods must be destroyed off site, you must apply for a movement permission to move them from the licensed premises to the place of destruction.

  Unless fuel products have been accidentally destroyed, you should contact us before moving or destroying any that are subject to remission or refund. We will provide you with direction and advise if the goods are to be inspected or the destruction supervised.

  For more information about movement permissions refer to Chapter 5 - Movement permissions .
You can elect to have a refund credited to your excise account or paid directly into your bank account.

  To apply for a remission, send us a completed Excise remission (NAT 4289). You can use the Excise remission instructions (NAT 15769) to help you complete this form.

  To apply for a refund, send us a completed Excise refund (NAT 4288). You can use the Excise refund instructions (NAT 15771) to help you complete this form. Applications can also be made on company letterhead as long as all the relevant information is provided.
If you are not satisfied with our decision to refuse your refund or remission, you can request a review of our decision by lodging an objection within 60 days.

  For more information about your review rights refer to Chapter 8 - Reviews and objections .

7.4.2 HOW DO I APPLY FOR A DRAWBACK?

To apply for a drawback of duty, send us a completed Excise drawback (NAT 4287) or an application on your business letterhead. You can use the Excise drawback instructions (NAT 15688) to help you complete NAT 4287. Your drawback application must be received not later than 12 months after the day on which the goods were exported. If we refuse to pay your drawback and you are not satisfied with our decision you can request a review of our decision by lodging an objection within 60 days.

  For more information about your review rights refer to Chapter 8 - Reviews and objections .

7.4.3 WHAT DO I DO IF I NEED MORE INFORMATION?

If you need more information on remissions, refunds, drawbacks and exemptions contact us as follows:
  • phone 1300 137 292
  • fax (03) 9285 1168 , or
  • write to us at

    Australian Taxation Office

    PO Box 3001

    PENRITH NSW 2740
We will ordinarily respond to written information requests within 28 days. If we cannot respond within 28 days, we will contact you within 14 days to obtain more information or negotiate an extended response date.

7.5 WHAT PENALTIES CAN APPLY TO OFFENCES IN RELATION TO REMISSIONS, REFUNDS, DRAWBACKS AND EXEMPTIONS?

The following are the penalties that may apply after conviction for an offence. Evade If you evade payment of any duty which is payable, the maximum penalty is 5 times the amount of duty on the excisable fuel products or where a court cannot determine the amount of that duty the penalty is a maximum of 500 units. [165] False or misleading statements If you make a false or misleading statement, or an omission from a statement in respect of duty payable on particular goods, to us, a penalty not exceeding the sum of 50 penalty units and twice the amount of duty payable on those goods. [166]

7.6 TERMS USED

Excisable fuel products Excisable goods are goods on which excise duty is imposed. Excise duty is imposed on goods that are manufactured or produced in Australia and listed in the Schedule to the Excise Tariff Act. As these guidelines deal with fuel products, we have used the term excisable fuel products. Excisable fuel products include:
  • petrol
  • diesel
  • renewable diesel
  • crude petroleum oil
  • condensate
  • heating oil
  • kerosene
  • fuel ethanol
  • biodiesel
  • compressed natural gas (CNG)
  • liquefied natural gas (LNG); and
  • liquefied petroleum gas (LPG).
Excise control Goods are subject to excise control from the point of manufacture until they have been delivered into the Australian domestic market or for export. Goods subject to excise control cannot be moved, altered or interfered with except as authorised by the Excise Act. Excise return An excise return [167] is the document that you use to advise us:
  • the volume of excisable fuel products that you have delivered into the Australian domestic market during the period designated on your PSP, or
  • the volume of excisable fuel products that you wish to deliver into the Australian domestic market following approval.
Penalty units A penalty unit is specified in section 4AA of the Crimes Act 1914 and, at the time of writing, is $110. Underbond This is an expression not found in excise legislation but it is widely used to describe goods that are subject to excise control. Excisable goods that are subject to excise control are commonly referred to as 'underbond goods' or as being 'underbond'. This includes goods that have not yet been delivered into the Australian domestic market and goods moving between premises under a movement permission.

7.7 LEGISLATION (quick reference guide)

In this chapter we have referred to the following legislation:

7.7.1 Excise Act 1901

Subsection 4(1) - Definitions Section 24 - Excisable goods and goods liable to duties of Customs may be used in manufacturing excisable goods Section 58 - Entry for home consumption etc. Section 61A - Permission to remove goods that are subject to CEO's control Section 64 - Delivery of samples free of duty Section 77HA - Compressed natural gas that is exempt from excise duty Section 77HB - Liquefied petroleum gas and liquefied natural gas that is exempt from excise duty Section 77L - Notice requirements for sales or supplies of LPG to which an LPG remission applies Section 77M - Penalty for using LPG for excisable LPG use Section 78 - Remissions, rebates and refunds Section 79 - Drawbacks Section 80 - Recovery of overpayments of refunds, rebates, and drawbacks Section 117BA -Unlawfully selling LPG that is used for an excisable LPG use Section 120 - Offences Section 160A - Ship's stores and aircraft's stores

7.7.2 Excise Regulations 1925

Regulation 49AAA - Notice requirements for sales or supplies of LPG to which LPG remission applies - content Regulation 44AB - Circumstances in which notice for sales or supplies of LPG to which LPG remission applies not required Regulation 50 - Circumstances under which refunds, rebates and remissions are made Regulation 50A - Other circumstances under which refunds, rebates and remissions are made Regulation 51 - Requirements for remission, rebate or refund Regulation 52 - Application for remission, rebate or refund Regulation 53 - Period for making of application Regulation 76 - Drawback of excise duty on goods Regulation 78A - Conditions relating to payment of drawback of duty Regulation 78B - Amount of claim for drawback of excise duty Schedule 1 - Prescribed circumstances (regulation 50A)

7.7.3 Excise Tariff Act 1921

The Schedule

7.7.4 Crimes Act 1914

Section 4AA - Penalty units
Excise guidelines for the fuel industry
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