PART X
-
PENAL PROVISIONS
SECTION 120
OFFENCES
120(1)
A person shall not:
(i)
Sell except by authority any excisable goods unlawfully removed from a factory;
(ii)
(Repealed by No 115 of 2000)
(iii)
(Repealed by No 115 of 2000)
(iiia)
Sell or offer for sale any goods consisting of beer as defined in the Prefatory Notes to the Schedule to the Excise Tariff 1921 being beer that has not been manufactured at a factory that is a brewery for the purposes of Part
VIIA
;
(iv)
Evade payment of any duty which is payable;
(v)
(Repealed by No 137 of 2000)
(va)
(Repealed by No 137 of 2000)
(vb)
(Repealed by No 137 of 2000)
(vc)
(Repealed by No 54 of 2003)
(vd)
(Repealed by No 54 of 2003)
(vi)
either:
(i)
intentionally make a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular; or
(ii)
intentionally omit from a statement made to an officer any matter or thing, reckless as to the fact that without the matter or thing the statement is misleading in a material particular;
(ix)
Sell or offer for sale any goods upon the pretence that such goods are excisable goods upon which Excise duty has not been paid.
History
S 120(1) amended by No 54 of 2003, s 3 and Sch 4 item 9, by repealing paras (vc) and (vd), effective 1 July 2003. For transitional provisions see note under s 78A. Paras (vc) and (vd) formerly read:
(vc)
intentionally obtain or retain diesel fuel rebate, reckless as to the fact that the person is not entitled to the rebate under section 78A;
(vd)
intentionally obtain or retain diesel fuel rebate, reckless as to the fact that the person is not entitled to the rebate under section 164 of the
Customs Act 1901
;
S 120(1) amended by No 146 of 2001, s 3 and Sch 4 items 21 to 23, by substituting paras (vc), (vd) and (vi), applicable 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. The paras formerly read:
(vc)
knowingly or recklessly obtain or retain diesel fuel rebate to which the person is not entitled under section
78A
;
(vd)
knowingly or recklessly obtain or retain diesel fuel rebate to which the person is not entitled under section
164
of the
Customs Act 1901
;
(vi)
knowingly or recklessly:
(A)
make a statement to an officer that is false or misleading in a material particular; or
(B)
omit from a statement made to an officer any matter or thing without which the statement is misleading in a material particular;
S 120(1)(vd) inserted by No 25 of 2001, s 3 and Sch 2 item 89, effective 4 May 2001.
S 120(1) amended by No 137 of 2000, s 3 and Sch 2 item 181, by repealing paras (v), (va) and (vb), effective 24 May 2001.
Act No 137 of 2000 contained the following transitional provisions, effective 24 May 2001:
418 Transitional
-
pre-commencement offences
418(1)
Despite the amendment or repeal of a provision, that provision continues to apply, after the commencement of this item, in relation to:
(a)
an offence committed before the commencement of this item; or
(b)
proceedings for an offence alleged to have been committed before the commencement of this item; or
(c)
any matter connected with, or arising out of, such proceedings;
as if the amendment or repeal had not been made.
418(2)
Subitem (1) does not limit the operation of section
8
of the
Acts Interpretation Act 1901
.
419 Transitional
-
pre-commencement notices
419
If:
(a)
a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and
(b)
any or all of those other provisions are repealed; and
(c)
the first-mentioned provision is amended;
the amendment of the first-mentioned provision does not affect the validity of such a notice that was given before the commencement of this item.
Paras (v), (va) and (vb) formerly read:
(v)
Obtain any drawback which is not payable;
(va)
Obtain any refund of duty which is not payable;
(vb)
Obtain any rebate (other than diesel fuel rebate) which is not payable;
S 120(1) amended by No 115 of 2000, s 3 and Sch 1 item 54, by repealing paras (ii) and (iii), effective 7 September 2000. Paras (ii) and (iii) formerly read:
(ii)
Buy proclaimed material from any person who is not a manufacturer producer or dealer;
(iii)
Sell proclaimed material to any person who is not a manufacturer or dealer;
S 120(1) amended by No 97 of 1997, s 3 Sch 2 items 16 and 17, by inserting
"
(other than diesel fuel rebate)
"
in para (vb) and inserting para (vc), 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).
120(1A)
(Repealed by No 74 of 2006)
History
S 120(1A) repealed by No 74 of 2006, s 3 and Sch 1 item 86, effective 1 July 2006. S 120(1A) formerly read:
120(1A)
For the purposes of an offence against paragraph (1)(vc), absolute liability applies to the physical element of circumstance of the offence, the lack of entitlement under section
78A
.
Note:
For
absolute liability
, see section
6.2
of the
Criminal Code
.
S 120(1A) inserted by No 146 of 2001, s 3 and Sch 4 item 24, applicable 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.
120(1B)
(Repealed by No 74 of 2006)
History
S 120(1B) repealed by No 74 of 2006, s 3 and Sch 1 item 86, effective 1 July 2006. S 120(1B) formerly read:
120(1B)
For the purposes of an offence against paragraph (1)(vd), absolute liability applies to the physical element of circumstance of the offence, the lack of entitlement under section
164
of the
Customs Act 1901
.
Note:
For
absolute liability
, see section
6.2
of the
Criminal Code
.
S 120(1B) inserted by No 146 of 2001, s 3 and Sch 4 item 25, applicable 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.
120(2)
A person who contravenes subsection (1) commits an offence punishable upon conviction:
(a)
in the case of an offence against paragraph (1)(i), (iiia) or (ix), by a fine not exceeding 10 penalty units;
(b)
in the case of an offence against paragraph (1)(iv), by:
(i)
where the Court can determine the amount of the duty on goods the payment of which would have been evaded by the commission of the offence if the goods had been entered for home consumption on:
(A)
where the date on which the offence was committed
-
that date; or
(B)
where the date is not known to the Court
-
the date on which the prosecution for the offence was instituted;
a fine not exceeding 5 times the amount of that duty and not less than 2 times that amount; or
(ii)
where the Court cannot determine the amount of that duty, a fine not exceeding 500 penalty units;
(c)
(Repealed by No 137 of 2000)
(ca)
(Repealed by No 54 of 2003)
(d)
subject to subsections (3) and (4), in the case of an offence against paragraph (1)(vi), 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.
History
S 120(2) amended by No 4 of 2016, s 3 and Sch 4 items 1 and 161, by substituting
"
commits
"
for
"
is guilty of
"
, effective 10 March 2016.
S 120(2) amended by No 54 of 2003, s 3 and Sch 4 item 10, by repealing para (ca), effective 1 July 2003. For transitional provisions see note under s 78A. Para (ca) formerly read:
(ca)
in the case of an offence against paragraph (1)(vc), by a penalty not exceeding 3 times the amount of diesel fuel rebate that was obtained or retained in the commission of the offence;
S 120(2) amended by No 25 of 2001, s 3 and Sch 2 items 90 to 93, by substituting
"
10 penalty units
"
for
"
$1,000
"
in para (a),
"
500 penalty units
"
for
"
$50,000
"
in para (b)(ii),
"
50 penalty units
"
for
"
$5,000
"
in para (d) and inserting the note at the end, effective 4 May 2001.
S 120(2)(c) repealed by No 137 of 2000, s 3 and Sch 2 item 182, effective 24 May 2001. For transitional provisions see note under s 120(1). Para (c) formerly read:
(c)
in the case of an offence against paragraph (1) (v), (va) or (vb), by a fine not exceeding 5 times the amount of the drawback, refund or rebate that was obtained by the commission of the offence and not less than 2 times that amount; or
S 120(2)(a) amended by No 115 of 2000, s 3 and Sch 1 item 55, by omitting
"
(ii), (iii),
"
after
"
(i)
"
, effective 7 September 2000.
S 120(2) amended by No 97 of 1997, s 3 Sch 2 items 18 and 19, by inserting para (ca) and substituting
"
subsections (3) and (4)
"
for
"
subsection (3)
"
in para (d), 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).
120(3)
Where a person is convicted of an offence against paragraph (1) (vi) in relation to a statement made, or an omission from a statement made, in respect of the amount of duty payable on particular goods, a Court may, in relation to that offence, impose a penalty not exceeding the sum of 50 penalty units and twice the amount of the duty payable on those goods.
History
S 120(3) amended by No 25 of 2001, s 3 and Sch 2 item 94, by substituting
"
50 penalty units
"
for
"
$5,000
"
, effective 4 May 2001.
120(4)
(Repealed by No 54 of 2003)
History
S 120(4) repealed by No 54 of 2003, s 3 and Sch 4 item 11, effective 1 July 2003. For transitional provisions see note under s 78A. S 120(4) formerly read:
120(4)
If a person is convicted of an offence against paragraph (1)(vi) in relation to a statement made, or an omission from a statement made, in respect of an amount of diesel fuel rebate applied for under section 78A, a court may, in relation to that offence, impose a penalty not exceeding the sum of 50 penalty units and twice the amount by which the rebate applied for exceeds the rebate to which the person would have been entitled had the person not made the false or misleading statement, or the omission, to which the offence relates.
S 120(4) amended by No 25 of 2001, s 3 and Sch 2 item 94, by substituting
"
50 penalty units
"
for
"
$5,000
"
, effective 4 May 2001.
S 120(4) amended by No 97 of 1997, s 3 Sch 2 item 20, 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).
120(4A)
(Repealed by No 74 of 2006)
History
S 120(4A) repealed by No 74 of 2006, s 3 and Sch 1 item 87, effective 1 July 2006. S 120(4A) formerly read:
120(4A)
A person is guilty of an offence if the person intentionally enters designated fuel for home consumption as clean fuel, reckless as to the fact that it is designated fuel.
Penalty: 10 times the amount of excise duty, calculated at the maximum diesel rate that would have applied to the fuel at the time of the offence, or 500 penalty units, whichever is the greater.
S 120(4A) amended by No 146 of 2001, s 3 and Sch 4 item 26, by substituting
"
intentionally enters designated fuel for home consumption as clean fuel, reckless as to the fact that it is designated fuel
"
for
"
intentionally or recklessly enters designated fuel for home consumption as clean fuel
"
, applicable 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.
S 120(4A) amended by No 125 of 2000, s 3 and Sch 2 items 5 and 6, by renumbering the subsection from S 120(4) to S 120(4A) and substituting the penalty, effective 26 October 2000. The penalty formerly read:
Penalty: 10 times the amount of excise duty that would have been applicable to the fuel if it had been fuel of a kind classified to subparagraph 11(C)(2)(a) of the Schedule to the Excise Tariff or 500 penalty units, whichever is the greater.
S 120(4) inserted by No 167 of 1997, s 3 Sch 1 item 16, effective January 1998.
120(5)
(Repealed by No 74 of 2006)
History
S 120(5) repealed by No 74 of 2006, s 3 and Sch 1 item 87, effective 1 July 2006. S 120(5) formerly read:
120(5)
A person is guilty of an offence if the person intentionally enters clean fuel for home consumption as designated fuel, reckless as to the fact that it is clean fuel.
Penalty: 10 times the amount of excise duty, calculated at the maximum diesel rate that would have applied to the fuel at the time of the offence, or 500 penalty units, whichever is the greater.
S 120(5) amended by No 146 of 2001, s 3 and Sch 4 item 27, by substituting
"
intentionally enters clean fuel for home consumption as designated fuel, reckless as to the fact that it is clean fuel
"
for
"
intentionally or recklessly enters clean fuel for home consumption as designated fuel
"
, applicable 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.
S 120(5) amended by No 125 of 2000, s 3 and Sch 2 item 7, by substituting the penalty, effective 26 October 2000. The penalty formerly read:
Penalty: 10 times the amount of excise duty that would have been applicable to the fuel if it had been fuel of a kind classified to subparagraph 11(C)(2)(a) of the Schedule to the Excise Tariff or 500 penalty units, whichever is the greater.
S 120(5) inserted by No 167 of 1997, s 3 Sch 1 item 16, effective January 1998.
120(6)
(Repealed by No 74 of 2006)
History
S 120(6) repealed by No 74 of 2006, s 3 and Sch 1 item 87, effective 1 July 2006. S 120(6) formerly read:
120(6)
A person is guilty of an offence if the person enters designated fuel for home consumption as clean fuel.
Penalty: 2 times the amount of excise duty, calculated at the maximum diesel rate that would have applied to the fuel at the time of the offence, or 100 penalty units, whichever is the greater.
S 120(6) amended by No 146 of 2001, s 3 and Sch 4 item 28, by repealing the note, applicable 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. The note formerly read:
Note:
An offence against subsection (6) is a strict liability offence.
S 120(6) amended by No 125 of 2000, s 3 and Sch 2 item 8, by substituting the penalty, effective 26 October 2000. The penalty formerly read:
Penalty: 2 times the amount of excise duty that would have been applicable to the fuel if it had been fuel of a kind classified to subparagraph 11(C)(2)(a) of the Schedule to the Excise Tariff or 100 penalty units, whichever is the greater.
S 120(6) inserted by No 167 of 1997, s 3 Sch 1 item 16, effective January 1998.
120(7)
(Repealed by No 74 of 2006)
History
S 120(7) repealed by No 74 of 2006, s 3 and SCh 1 item 87, effective 1 July 2006. S 120(7) formerly read:
120(7)
A person is guilty of an offence if the person enters clean fuel for home consumption as designated fuel.
Penalty: 2 times the amount of excise duty, calculated at the maximum diesel rate that would have applied to the fuel at the time of the offence, or 100 penalty units, whichever is the greater.
S 120(7) amended by No 146 of 2001, s 3 and Sch 4 item 29, by repealing the note, applicable 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. The note formerly read:
Note: An offence against subsection (7) is a strict liability offence.
S 120(7) amended by No 125 of 2000, s 3 and Sch 2 item 9, by substituting the penalty, effective 26 October 2000. The penalty formerly read:
Penalty: 2 times the amount of excise duty that would have been applicable to the fuel if it had been fuel of a kind classified to subparagraph 11(C)(2)(a) of the Schedule to the Excise Tariff or 100 penalty units, whichever is the greater.
S 120(7) inserted by No 167 of 1997, s 3 Sch 1 item 16, effective January 1998.
120(7A)
(Repealed by No 74 of 2006)
History
S 120(7A) repealed by No 74 of 2006, s 3 and Sch 1 item 87, effective 1 July 2006. S 120(7A) formerly read:
120(7A)
An offence under subsection (6) or (7) is an offence of strict liability.
Note:
For
strict liability
, see section
6.1
of the
Criminal Code
.
S 120(7A) inserted by No 146 of 2001, s 3 and Sch 4 item 30, applicable 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.
120(8)
(Repealed by No 74 of 2006)
History
S 120(8) repealed by No 74 of 2006, s 3 and Sch 1 item 87, effective 1 July 2006. S 120(8) formerly read:
120(8)
For the purposes of subsections (4) to (7), fuel is
entered for home consumption
when:
(a)
the entry of the fuel (other than fuel to which paragraph (b) applies) for home consumption under section
58
of this Act is lodged under this Act; or
(b)
the fuel is delivered for home consumption in accordance with a permission given under section
61C
of this Act.
S 120(8) inserted by No 167 of 1997, s 3 Sch 1 item 16, effective January 1998.
120(9)
(Repealed by No 74 of 2006)
History
S 120(9) repealed by No 74 of 2006, s 3 and Sch 1 item 87, effective 1 July 2006. S 120(9) formerly read:
120(9)
In this section:
maximum diesel rate
means the maximum rate of excise duty applicable to diesel classified to item 11 of the
Schedule
to the
Excise Tariff Act 1921
, whether one or more categories of diesel attract that rate.
S 120(9) inserted by No 125 of 2000, s 3 and Sch 2 item 10, effective 26 October 2000.
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