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. Trade Practices Act 1974(TPA), Consumer Protection Notice No.10 of 1991 - Permanent Ban on Goods. This notice was made under s65C(7) of the repealed TPA. Item 3 of Schedule 7 to the Trade Practices Amendment (ACL) Act (No.2) 2010 provide that this notice remain in force from 1/1/11 as if it was made under s114 of the ACL.

[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] ATO ID 2011/48 Excise and the number of premises specified in a licence to manufacture.

[15] Excise Act 1901 section 31

[16] 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.

[17] Excise Act 1901 section 36

[18] Note that the buyer or seller as applicable requires an appropriate licence

[19] Excise Act 1901 section 117F & H make it an offence to sell or buy tobacco leaf from a person who is not licensed to manufacture or deal. Customs (Prohibited Imports) Regulations 1956 regulation 4D prohibits the importation of tobacco leaf unless the importer holds a manufacturer or dealer licence

[20] Excise Act 1901 section 4 - The term 'licensed manufacturer' is defined to be 'a person or partnership who holds a manufacturer licence'.

[21] Excise Act 1901 section 39D

[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 Regulation 2015 section 20

[36] Excise Act 1901 section 75

[37] Excise Act 1901 sections 26, 29 & 34

[38] Excise Regulation 2015 section 20

[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, 11.2A 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] Excise Act 1901 section 39E

[57] Excise Act 1901 section 39O

[58] Excise Act 1901 section 39

[59] Excise Act 1901 sections 25, 28, 33 & 117

[60] Excise Act 1901 section 6A

[61] Excise Act 1901 section 28

[62] Excise Act 1901 section 28

[63] Excise Act 1901 section 29

[64] Excise Act 1901 section 31

[65] Excise Act 1901 section 31

[66] Excise Act 1901 section 28, 29 & 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 33, 34 & 36

[72] Excise Act 1901 section 25

[73] Excise Act 1901 section 26

[74] Excise Act 1901 section 27

[75] Excise Act 1901 section 25, 26 & 27

[76] Excise Act 1901 section 30

[77] Excise Act 1901 section 30

[78] Excise Act 1901 section 35

[79] Excise Act 1901 section 35

[80] Excise Act 1901 section 117

[81] Excise Act 1901 section 117C

[82] Excise Act 1901 section 30, 35, 117 & 117C

[83] Excise Act 1901 section 120

[84] Excise Act 1901 section 51

[85] Excise Act 1901 section 117I

[86] Excise Act 1901 section 49

[87] Excise Act 1901 section 52

[88] Excise Act 1901 section 92

[89] The term used in Excise Act 1901 section 58 is 'entry for home consumption'.

[90] prefatory notes to the Schedule to the Excise Tariff Act 1921

[91] Excise Act 1901 paragraph 39A(2)(d)

[92] Excise Act 1901 paragraph 39A(2)(c)

[93] Excise Act 1901 paragraph 39A(2)(f)

[94] Excise Act 1901 sections 39B and 39C

[95] Excise Act 1901 sections 39B and 39C

[96] Excise Act 1901 section 39B

[97] Excise Act 1901 section 39C

[98] Excise Act 1901 paragraphs 39B(e) and 39B(f)

[99] Excise Act 1901 subsection 39B(f)

[100] Excise Act 1901 subsection 39A(2)(f); Income Tax Assessment Act 1997 section 995-1; Income Tax Assessment Act 1936 subsection 318(1)

[101] Income Tax Assessment Act 1997 section 995-1 for definition of Relative for this purpose

[102] Income Tax Assessment Act 1936 subsection 318(1)

[103] Income Tax Assessment Act 1936 subsection 318(7)

[104] Income Tax Assessment Act 1936 subsection 318(2)

[105] Income Tax Assessment Act 1936 subsection 318(3)

[106] Income Tax Assessment Act 1936 subsection 318(4)

[107] Excise Act 1901 paragraph 39A(2)(fa)

[108] Excise Act 1901 paragraphs 39A(2)(g) and 39A(2)(h)

[109] Excise Act 1901 paragraph 39A(2)(i)

[110] Excise Act 1901 paragraph 39A(2)(ia)

[111] Excise Act 1901 paragraph 39(2)(j)

[112] Excise Act 1901 paragraph 39A(2)(k)

[113] Excise Tariff Act 1921 section 5

[114] Excise Act 1901 paragraph 39A(2)(l)

[115] Martino v Australian Taxation Office [2002] AATA 1242

[116] Excise Act 1901 paragraph 39G(1)(k)

[117] Excise Act 1901 subsection 39D (4) & section 39DA

[118] Excise Act 1901 subsection 39D(1)

[119] Excise Act 1901 subsection 39D (3)

[120] Excise Act 1901 section 39Q

[121] Excise Act 1901 sections 16 to 22

[122] Excise Act 1901 section 39F

[123] Excise Act 1901 section 39Q

[124] Excise Act 1901 subsection 39F(4)

[125] Excise Act 1901 section 120

[126] prefatory notes to the Schedule to the Excise Tariff Act 1921

[127] 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.

[128] Excise Act 1901 subsection 39L(2)

[129] Excise Act 1901 subsection 39L(4)

[130] Excise Act 1901 subsection 39L(3)

[131] Excise Act 1901 paragraph 39L(4)(b)

[132] Excise Act 1901 subsections 39G(1) and 39L (1)

[133] Excise Act 1901 subsection 39G(1)

[134] Excise Act 1901 section 26

[135] Excise Act 1901 section 39K

[136] Excise Act 1901 subsection 39K(6)

[137] Excise Act 1901 section 39Q

[138] Excise Act 1901 subsection 39L(4)

[139] Excise Act 1901 subsection 39N(2)

[140] Excise Act 1901 section 39M

[141] Excise Act 1901 Part IX, Division 1A Subdivision F

[142] Excise Act 1901 section 39Q

[143] Excise Act 1901 subsections 39J(2) and 39L(5)

[144] Excise Act 1901 section 39P

[145] Excise Act 1901 subsection 39K(2)

[146] Excise Act 1901 subsection 39K(2)

[147] Excise Act 1901 subsection 39K(2)

[148] Excise Act 1901 subsection 39K(2)

[149] Excise Act 1901 subsection 39K(1)

[150] Excise Act 1901 subsection 39K(1)

[151] Excise Act 1901 subsection 39K(3)

[152] Excise Act 1901 subsection 39M(1)

[153] Excise Act 1901 subsection 39M(2)

[154] Excise Act 1901 subsection 39M(2)

[155] Excise Act 1901 subsections 39K(4) & 39M(3)

[156] prefatory notes to the Schedule to the Excise Tariff Act 1921

[157] Excise Act 1901 sections 44 and 61A

[158] This does not mean movements within your licensed premises, rather movements from licensed premises to another place.

[159] Excise Act 1901 section 61A(3)

[160] Excise Act 1901 subsection 44(2)

[161] Excise Act 1901 section 75 - this includes waste such as stalks and clippings arising from the manufacture of tobacco products

[162] Excise Act 1901 sections 16 to 22

[163] Excise Act 1901 section 60 for excisable goods and section 77AA for tobacco leaf

[164] 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

[165] Excise Act 1901 section 117D

[166] Excise Act 1901 section 117D

[167] Excise Act 1901 section 117A

[168] Excise Act 1901 subsection 44(4)

[169] Excise Act 1901 subsection 44(4)

[170] Excise Act 1901 section 61A

[171] Excise Act 1901 subsections 117D(2), 117A(2), 44(5) & 61A(6),

[172] prefatory notes to the Schedule to the Excise Tariff Act 1921

[173] Excise Tariff Act 1921 subsection 5(1)

[174] Excise Act 1901 section 61

[175] Excise Act 1901 section 61C

[176] Excise Act 1901 paragraph 58(1)(a)

[177] Excise Act 1901 section 61C

[178] As defined by section 328-110 (other than subsection 328-110(4)) of the Income Tax Assessment Act 1997.

[179] Excise Act 1901 paragraphs 162C(1)(d), 162C(1)(e) or 162C(1)(f)

[180] Excise Act 1901 paragraph 61C(3)(a). ATO Interpretative Decision 2004/114: Excise Payment of excise duty: lodgement of periodic settlement permissions - public holidays. Paragraph 1.21 of the Explanatory Memorandum to the Excise Amendment (Reducing business Compliance Burden) Bill 2011

[181] Excise Act 1901 section 58

[182] ATOID 2011/61 Excise: Tobacco content

[183] Excise Tariff Act 1921 section 6AA

[184] Excise Act 1901 section 59

[185] For an explanation of customs and excise tariff proposals, see www.parlinfoweb.aph.gov.au.

[186] Excise Act 1901 subsections 59A(1) & (2)

[187] Excise Act 1901 subsections 59A(1) & (2)

[188] Excise Act 1901 subsection 59A(5)

[189] 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.

[190] Excise Act 1901 section 154

[191] Excise Act 1901 section 155 and Taxation Administration Act 1953 section 359-60

[192] Excise Act 1901 section 77AA

[193] Excise Act 1901 section 60

[194] Excise Act 1901 subsection 60 (4) and 77AA(4)

[195] ATO Interpretative Decision ATOID 2004/61; but see 'How do I deliver samples?' in chapter 7 - Remissions, refunds, drawbacks and exemptions

[196] ATO Interpretative Decision ATOID 2001/595 Excise: Liability to pay an amount equal to the duty on excisable goods stolen from a licensed premise

[197] ATO Interpretative Decision ATOID 2004/62 Excise: goods sold without payment of excise duty

[198] For tobacco leaf, the amount is calculated by assuming the leaf had been manufactured into an equivalent amount of excisable tobacco product.

[199] Excise Act 1901 section 162C

[200] Excise Act 61C(7), (8) & (9)

[201] The settlement period usually specified in a PSP is seven days with lodgement of your excise return required by 4:00 pm on the first working day after the end of your settlement period.

[202] You may be required to lodge a return even if you do not deliver any excisable tobacco products during the period.

[203] ATO Interpretative Decision ATOID 2004/114 Excise Payment of excise duty: lodgement of periodic settlement permissions - public holidays. Paragraph 1.21 of the Explanatory Memorandum to the Excise Amendment (Reducing Business Compliance Burden) Bill 2011.

[204] ATO Interpretative Decision ATOID 2004/113 Excise Payment of Excise Duty: Periodic settlement permission returns.

[205] Excise Act 1901 section 61

[206] Excise Act 1901 section 61C

[207] Excise Act 1901 paragraph 120(1)(iv) & 120(2)(b)

[208] Excise Act 1901 section 120(3)

[209] Excise Act 1901 section 54

[210] Note the legislation uses the term 'delivered for home consumption' (see for example sections 61 and 61C)

[211] 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; Caltex Australia Petroleum Pty Ltd v. Commissioner of Taxation [2008]

[212] The term used in Excise Act 1901 section 58 is 'entry for home consumption'.

[213] prefatory notes to the Schedule to the Excise Tariff Act 1921

[214] Excise Act 1901 section 78

[215] Excise Regulation 2015 table item 1, subclause 1(1) of Schedule 1

[216] Excise Regulation 2015 table item 2, subclause 1(1) of Schedule 1

[217] Excise Regulation 2015 table item 8, clause 2 of Schedule 1

[218] Excise Regulation 2015 table item 1, clause 2 of Schedule 1

[219] Excise Regulation 2015 table item 2, clause 2 of Schedule 1

[220] Excise Regulation 2015 table item 6, clause 2 of Schedule 1

[221] Excise Regulation 2015 table item 1, subclause 1(1) of Schedule 1

[222] Excise Regulation 2015 table item 2, subclause 1(1) of Schedule 1

[223] Excise Regulation 2015 table item 3, subclause 1(1) of Schedule 1

[224] Excise Regulation 2015 table item 5, subclause 1(1) of Schedule 1

[225] Excise Act 1901 subsection 160A(1)

[226] Excise Regulation 2015 table item 7, subclause 1(1) of Schedule 1

[227] Excise Regulation 2015 table item 13, subclause 1(1) of Schedule 1

[228] Excise Regulation 2015 table tem 1, section 11

[229] Excise Act 1901 section 79 and Excise Regulation 2015 subsection 14(1)

[230] Excise Regulation 2015 subsection 16(1)

[231] Excise Regulation 2015 subsection 16(2)

[232] Excise Regulation 2015 subsection 16(3)

[233] Excise Act 1901 section 80

[234] Excise Act 1901 section 160A

[235] Excise Act 1901 section 64

[236] Excise Regulation 2015 clause 2 of Schedule 1

[237] Excise Regulation 2015 section 55

[238] Excise Regulation 2015 clause 2, of Schedule 1

[239] Excise Regulation 2015 section 20 and table item 1, clause 2 of Schedule 1

[240] Excise Regulation 2015 table item 6, clause 2 of Schedule 1

[241] Excise Regulation 2015 section 10

[242] Excise Regulation 2015 table item 1, section 11

[243] Excise Regulation 2015 subsection 16(1)

[244] Excise Regulation 2015 table item 3, subsection 16(1)

[245] Excise Act 1901 paragraph 120(1)(iv)

[246] Excise Act 1901 paragraph 120(1)(vi)

[247] The term used in Excise Act 1901 section 58 is 'entry for home consumption'.

[248] For example, a decision not to issue a movement permission under Excise Act 1901 section 61A

[249] Objections are governed by Part IVC of the Taxation Administration Act 1953 (TAA)

[250] These are conducted in the Administrative Appeals Tribunal or the Federal Court.

[251] Excise Act 1901 section 39Q

[252] Excise Act 1901 paragraph 162C(1)(c)

[253] Excise Act 1901 paragraph 162C(1)(i)

[254] Excise Act 1901 paragraph 162C(1)(j)

[255] Taxation Administration Act 1953 section 14ZU

[256] Taxation Administration Act 1953 section 359-5

[257] Taxation Administration Act 1953 section 359-10

[258] Taxation Administration Act 1953 section 357-60

[259] Taxation Administration Act 1953 section 359-25

[260] Taxation Administration Act 1953 section 359-55

[261] Taxation Administration Act 1953 section 359-60 and Excise Act 1901 section 155

[262] Excise Act 1901 section 5 and Crimes Act 1914 section 4D

[263] Excise Act 1901 section 127A

[264] Excise Act 1901 section 116.

[265] Excise Act 1901 section 151

[266] Excise Act 1901 129B

[267] Excise Act 1901 subsection 117(2) and 117B(2)

[268] Excise Act 1901 section 129B

[269] Excise Act 1901 section 129D

[270] Excise Act 1901 section 129F

[271] Excise Act 1901 section 6B