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Excise guidelines for the tobacco industry

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FOOTNOTES



[1] Commonwealth of Australia Constitution Act section 90 .
[2]   Ha & Anor v. State Of New South Wales & Ors; Walter Hammond & Associates Pty Limited v. State Of New South Wales & Ors 97 ATC 4674 .
[3] Ha & Anor v. State Of New South Wales & Ors; Walter Hammond & Associates Pty Limited V State Of New South Wales & Ors 97 ATC 4674 at page 4684 per Brennan CJ, McHugh, Gummow and Kirby JJ.
[4] Gazette No. S144 of 4 June 1991
[5] See the prefatory notes to the Schedule to the Excise Tariff Act 1921
[6] For an explanation of customs and excise tariff proposals, see http://parlinfoweb.aph.gov.au
[7] Excise Act 1901 section 28
[8] Excise Act 1901 section 33
[9] Excise Act 1901 section 44
[10] Excise Act 1901 section 25
[11] Excise Act 1901 subsection 4(1) (definition of 'storage licence') and Part IV
[12] Excise Act 1901 section 61A
[13] Excise Act 1901 section 7 and Excise Tariff Act 1921 section 1A
[14] Excise Act 1901 section 31
[15] Excise Act 1901 section 68 excludes the curing process from being manufacture and the Schedule to the Excise Tariff Act defines 'tobacco' as being tobacco leaf subjected to any process other than curing the leaf as stripped from the plant.
[16] Excise Act 1901 section 36
[17] Note that the buyer or seller as applicable requires an appropriate licence
[18] Excise Act 1901 section 4 - The term 'licensed manufacturer' is defined to be 'a person or partnership who holds a manufacturer licence'.
[19] Excise Act 1901 section 24
[20] Excise Act 1901 section 39D
[21] Federal Commissioner of Taxation v. Jax Tyres Pty Ltd (1984) 58 ALR 138 ; (1984) 5 FCR 257 ; (1984) 16 ATR 97 ; 85 ATC 4001 ; M.P. Metals Pty Ltd v. Federal Commissioner of Taxation [1967-1968] 117 CLR 631 ; (1968) 40 ALJR 538 ; (1968) 14 ATD 407 ; Commissioner of Taxation v. Softex Industries Pty Ltd (2001) 107 FCR 111 ; (2001) 191 ALR 724 : (2001) 46 ATR 512 ; 2001 ATC 4184 ; [2001] FCA 397 Re Searls Ltd (1933) 33 SR (NSW) 7
[22] Excise Act 1901 section 68
[23] Customs Act 1901 section 105B
[24] Excise Act 1901 section 44
[25] Customs (Prohibited Imports) Regulations 1956 regulation 4D
[26] Excise Act 1901 section 27
[27] Excise Act 1901 section 51
[28] Excise Act 1901 subsection 4(1) definition of 'storage licence'. 
[29] Excise Act 1901 sections 30 , 35 & 53
[30] Excise Act 1901 section 77AA
[31] Excise Act 1901 section 60
[32] Excise Act 1901 section 62
[33] Excise Act 1901 sections 44 & 61A
[34] Excise Act 1901 section 44
[35] Excise Act 1901 section 44 and Excise Regulations 1925 regulation 33
[36] Excise Act 1901 section 75
[37] Excise Act 1901 sections 26 , 29 & 34
[38] Excise Regulations 1925 subregulation 33(1)
[39] Excise Act 1901 section 58 and section 61C
[40] Excise Act 1901 section 54
[41] Excise Act 1901 section 49
[42] Excise Act 1901 section 52
[43] Excise Act 1901 section 76
[44] Excise Act 1901 section 77
[45] Excise Act 1901 section 58 and section 61C
[46] Excise Act 1901 section 54
[47] Excise Act 1901 subsection 86(2)
[48] Excise Act 1901 section 87
[49] Crimes Act 1914 section 6
[50] Criminal Code Act 1995 sections 11.1 , 11.2, and 11.5
[51] Excise Act 1901 section 87AA
[52] Excise Act 1901 section 91
[53] Excise Act 1901 section 46
[54] Excise Act 1901 section 106
[55] Excise Act 1901 section 50
[56] The record book created by the Tax Office is available from the Tobacco Industry Group (TIG) - phone 1300 137 295 or online at the Tax Office website www.ato.gov.au
[57] Excise Act 1901 section 39E
[58] Excise Act 1901 section 39O
[59] Excise Act 1901 section 39
[60] Excise Act 1901 sections 25 , 28 , 33 & 117
[61] Excise Act 1901 section 6A
[62] Excise Act 1901 section 28
[63] Excise Act 1901 section 28
[64] Excise Act 1901 section 29
[65] Excise Act 1901 section 31
[66] Excise Act 1901 section 31
[67] Excise Act 1901 section 33
[68] Excise Act 1901 section 33
[69] Excise Act 1901 section 34
[70] Excise Act 1901 section 36
[71] Excise Act 1901 section 25
[72] Excise Act 1901 section 26
[73] Excise Act 1901 section 27
[74] Excise Act 1901 section 30
[75] Excise Act 1901 section 30
[76] Excise Act 1901 section 35
[77] Excise Act 1901 section 35
[78] Excise Act 1901 section 117
[79] Excise Act 1901 section 120
[81] Excise Act 1901 section 51
[82] Excise Act 1901 section 117I
[83] Excise Act 1901 section 76
[84] Excise Act 1901 section 49
[85] Excise Act 1901 section 52
[86] Excise Act 1901 section 92
[87] Excise Act 1901 section 92
[88] The term used in Excise Act 1901 section 58 is 'entry for home consumption'.
[89] prefatory notes to the Schedule to the Excise Tariff Act 1921
[90] Excise Act 1901 sections 39B and 39C
[91] Excise Act 1901 paragraphs 39B(e) and 39B(f)
[92] Excise Act 1901 paragraph 39B(f)
[93] Excise Act 1901 subsection 39A(2)(f) ; Income Tax Assessment Act 1997 section 995-1 ; Income Tax Assessment Act 1936 subsection 318(1)
[94] Income Tax Assessment Act 1997 section 995-1 for definition of Relative for this purpose
[95] Income Tax Assessment Act 1936 subsection 318(1)
[96] Income Tax Assessment Act 1936 subsection 318(7)
[97] Income Tax Assessment Act 1936 subsection 318(2)
[98] Income Tax Assessment Act 1936 subsection 318(3)
[99] Income Tax Assessment Act 1936 subsection 318(4)
[100] Excise Act 1901 paragraph 39A(2)(fa)
[102] Excise Act 1901 paragraph 39A(2)(i)
[103] Excise Act 1901 paragraph 39A(2)(ia)
[104] Note this does not indicate that a licence would be granted to produce or manufacture for personal use as other factors may result in refusal to grant a licence.
[105] Excise Act 1901 paragraph 39A(2)(j)
[106] Excise Act 1901 paragraph 39A(2)(k)
[107] Excise Tariff Act 1921 section 5
[108] Excise Act 1901 paragraph 39A(2)(l)
[109] Martino v Australian Taxation Office [2002] AATA 1242
[110] Excise Act 1901 paragraph 39G(1)(k)
[112] Excise Act 1901 subsection 39D(1)
[113] Excise Act 1901 subsection 39D(3)
[114] Excise Act 1901 section 39Q
[115] Excise Act 1901 sections 16 to 22
[116] Excise Act 1901 section 39Q
[117] Excise Act 1901 subsection 39F(4)
[118] Excise Act 1901 section 120
[119] prefatory notes to the Schedule to the Excise Tariff Act 1921
[120] Note that this is different to the consideration for granting a licence. In granting a licence we can take into account any misleading statement, or if you knowingly made a false statement, in your application . For suspension or cancellation we can consider any statement you make to us in relation to excise matters.
[121] Excise Act 1901 subsection 39L(4)
[122] Excise Act 1901 subsection 39L(3)
[123] Excise Act 1901 subsections 39G(1) and 39L(1)
[124] Excise Act 1901 section 26
[125] Excise Act 1901 section 39K
[126] Excise Act 1901 subsection 39K(6)
[127] Excise Act 1901 subsection 39N(2)
[128] Excise Act 1901 section 39M
[129] Excise Act 1901 section 39Q
[130] Excise Act 1901 subsections 39J(2) and 39L(5)
[131] Excise Act 1901 section 39P
[132] Excise Act 1901 subsection 39K(2)
[133] Excise Act 1901 subsection 39K(2)
[134] Excise Act 1901 subsection 39K(2)
[135] Excise Act 1901 subsection 39K(2)
[136] Excise Act 1901 subsection 39K(1)
[137] Excise Act 1901 subsection 39K(1)
[138] Excise Act 1901 subsection 39K(3)
[139] Excise Act 1901 subsection 39M(1)
[140] Excise Act 1901 subsection 39M(2)
[141] Excise Act 1901 subsection 39M(2)
[142] prefatory notes to the Schedule to the Excise Tariff Act 1921
[143] Excise Act 1901 sections 44 and 61A
[144] This does not mean movements within the bounds of your licensed premises, rather movements from licensed premises to another place.
[145] Excise Act 1901 section 44
[146] Excise Act 1901 section 75 - this includes waste such as stalks and clippings arising from the manufacture of tobacco products
[147] Excise Act 1901 sections 16 to 22
[148] Excise Act 1901 section 60 for excisable goods and section 77AA for tobacco leaf
[149] While there is no specific provision in the Excise Act which allows permissions to be cancelled (unlike licences), in accordance with subsection 33(3) of the Acts Interpretations Act 1901 the power to grant the permission provides the power to cancel the permission
[150] Excise Act 1901 section 117D
[151] Excise Act 1901 section 117D
[152] Excise Act 1901 section 117A
[153] Excise Act 1901 subsection 44(4)
[154] Excise Act 1901 subsection 44(4)
[155] Excise Act 1901 section 61A
[156] prefatory notes to the Schedule to the Excise Tariff Act 1921
[157] Excise Tariff Act 1921 subsection 5(1)  
[158] Excise Act 1901 section 61
[159] Excise Act 1901 section 61C
[160] Excise Act 1901 paragraph 58(1)(a)
[161] Excise Act 1901 section 61C
[162] Excise Act 1901 section 58
[163] Excise Tariff Act 1921 section 6A
[164] Excise Act 1901 section 59
[165] For an explanation of customs and excise tariff proposals, see www.parlinfoweb.aph.gov.au.
[166] Excise Act 1901 subsections 59A(1) & (2)
[167] Excise Act 1901 subsection 59A(5)
[168] This allocation considers your normal delivery activity over a period of time. This period will take into account any aberrations and will be long enough to allow a representative average to be calculated.
[169] Excise Act 1901 subsection 59A(8)
[170] Excise Act 1901 subsection 61C(5)
[171] Excise Act 1901 section 154
[172] Excise Act 1901 section 77AA
[173] Excise Act 1901 section 60
[174] For tobacco leaf, the amount is calculated by assuming the leaf had been manufactured into an equivalent amount of excisable tobacco product.
[175] ATO Interpretative Decision ATOID 2004/61 ; but see 'How do I deliver samples?' in chapter 7 - Remissions, refunds, drawbacks and exemptions
[176] ATO Interpretative Decision ATOID 2001/595
[177] ATO Interpretative Decision ATOID 2004/50
[178] Excise Act 1901 section 162C
[179] ATO Interpretative Decision ATOID 2005/226
[180] The settlement period usually specified in a PSP is seven days with lodgment of your excise return required by 4:00 pm on the first working day after the end of your settlement period.
[181] You may be required to lodge a return even if you do not deliver any excisable tobacco products during the period.
[182] ATO Interpretative Decision ATOID 2004/114
[183] ATO Interpretative Decision ATOID 2004/113
[184] Excise Act 1901 section 61
[185] Excise Act 1901 section 61C
[186] Excise Act 1901 paragraph 120(1)(iv)
[187] Excise Act 1901 section 120
[188] Note the legislation uses the term 'delivered for home consumption' (see for example sections 61 and 61C )
[189] See R v. Lyons (1906) 3 CLR 770 ; Collector of Customs (NSW) v. Southern Shipping Co Ltd (1962) 107 CLR 279 ; Carmody v. F C Lovelock Pty Ltd (1970) 123 CLR 1
[190] The term used in Excise Act 1901 section 58 is 'entry for home consumption'.
[191] prefatory notes to the Schedule to the Excise Tariff Act 1921
[192] Excise Act 1901 section 78
[193] Excise Regulations 1925 paragraph 50(1)(a)
[194] Excise Regulations 1925 paragraph 50(1)(b)
[195] Excise Regulations 1925 paragraph 50(1)(ta)
[196] Excise Regulations 1925 paragraph 50(1)(a)
[197] Excise Regulations 1925 paragraph 50(1)(b)
[198] Excise Regulations 1925 paragraph 50(1)(c)
[199] Excise Regulations 1925 paragraph 50(1)(d)
[200] Minister of State does not include State Ministers
[201] Excise Regulations 1925 paragraph 50(1)(db)
[202] Excise Regulations 1925 paragraph 50(1)(h) and regulation 55
[203] Excise Regulations 1925 paragraph 55(1)(b)
[204] Excise Regulations 1925 paragraph 50(1)(tb)
[205] Excise Act 1901 section 79 and Excise Regulations 1925 subregulation 76(2)
[206] Excise Regulations 1925 subregulation 78A(1)
[207] Excise Regulations 1925 subregulation 78A(4)
[208] Excise Regulations 1925 regulation 78B
[209] Excise Act 1901 section 80
[210] Excise Act 1901 section 160A
[211] Excise Act 1901 section 64
[212] Excise Regulations 1925 regulation 50A
[213] Excise Regulations 1925 regulation 186
[214] Excise Regulations 1925 regulation 50A and Schedule 1
[215] Excise Regulations 1925 subregulation 33(1)
[216] Excise Regulations 1925 Schedule 1, item 6
[217] Excise Regulations 1925 regulation 51 and 52
[218] Excise Regulations 1925 regulation 53
[219] Excise Act 1901 section 120(1)(iv)
[220] Excise Act 1901 section 120
[221] The term used in Excise Act 1901 section 58 is 'entry for home consumption'.
[222] For example, a decision not to issue a movement permission under Excise Act 1901 section 61A
[223] Objections are governed by Part IVC of the Taxation Administration Act 1953 (TAA)
[224] These are conducted in the Administrative Appeals Tribunal or the Federal Court.
[225] Excise Act 1901 section 39Q
[226] Excise Act 1901 paragraph 162C(1)(e)
[227] Excise Act 1901 paragraph 162C(1)(ea) and (faaa)
[228] Excise Regulations 1925 regulation 247
[229] Taxation Administration Act 1953 section 14ZU
[230] Excise Act 1901 section 5 and Crimes Act 1914 section 4D
[231] Excise Act 1901 section 127A
[232] Excise Act 1901 section 116
[233] Excise Act 1901 section 151
[234] Excise Act 1901 Part XA
[235] Excise Act 1901 subsection 117(2) and 117B(2)
[236] Excise Act 1901 section 129B
[237] Excise Act 1901 section 6B
Excise guidelines for the tobacco industry
  Date: Version:
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