Excise Act 1901

DIESEL FUEL REBATE - PENALTY IN LIEU OF PROSECUTION  
78AB(1)
If the CEO has reasonable grounds to believe that a person who has made a diesel fuel rebate application (the applicant ):

(a) has contravened section 78AA in respect of some or all of the diesel fuel to which the application relates; or

(b) has contravened subsection 78AD(8) in respect of some or all of the diesel fuel to which the application relates;

the CEO may serve on the applicant a notice in writing in accordance with subsection (2).

78AB(2)
A notice under subsection (1) must:

(a) set out the CEO's amendment, under section 78AE , of the assessment of the person's rebate entitlement in respect of the fuel; and

(b) if paragraph (1)(a) applies - specify the diesel fuel whose sale, other disposal, use or loss, has not been notified in accordance with section 78AA and demand:

(i) repayment of the amount of any diesel fuel rebate paid in respect of that fuel; and

(ii) payment of a penalty equal to 20% of the amount of diesel fuel rebate applied for in respect of fuel in respect of which there was no notification; and

(c) if paragraph (1)(b) applies - specify the amount of diesel fuel rebate applied for that was not substantiated and demand:

(i) repayment of the amount of any diesel fuel rebate paid in respect of that fuel that was not substantiated; and

(ii) payment of a penalty equal to 20% of the amount of diesel fuel rebate applied for that was not substantiated; and

(d) set out the terms of, or adequate particulars of the provisions of, subsection (3); and

(e) specify the address at which payment of an amount demanded under subsection (3) may be made.

78AB(3)
If:

(a) a notice is served on the applicant under subsection (1); and

(b) the applicant pays to an officer doing duty in relation to diesel fuel rebate, at the address specified in the notice and within 21 days after the day on which the notice was served, the sum of the amounts demanded in the notice (the notice amount );

the applicant is not liable to be prosecuted under a provision of this Act for any offence in relation to the rebate to which the notice relates.

78AB(4)
If a notice is served on the applicant under subsection (1), the applicant may give the CEO, within 21 days after the day on which the notice was served, a written request (the request ) to set off some or all of the diesel fuel rebate referred to in paragraph (5)(a) (the expected rebate ) against the notice amount.

78AB(5)
If the CEO is satisfied that diesel fuel rebate is, or is likely to become, payable to the applicant within 12 months after the day on which the notice was served, the CEO may accept the request and, if he or she does so, the CEO must inform the applicant accordingly.

78AB(6)
If:

(a) the CEO rejects the request; and

(b) the applicant pays the notice amount to an officer doing duty in relation to diesel fuel rebate, at the address specified in the notice and within 21 days after the day on which that rejection was notified to the applicant;

the applicant is not liable to be prosecuted under a provision of this Act for any offence in relation to the rebate to which the notice relates.

78AB(7)
If the CEO accepts the request, then:

(a) if the expected rebate is likely to exceed the notice amount - any diesel fuel rebate that is, or that becomes, payable within 12 months after the acceptance is set off against the notice amount, to the extent that the amount demanded is unpaid; or

(b) if the expected rebate is not likely to exceed the notice amount:

(i) the amount by which the CEO believes the notice amount will exceed the expected rebate is payable within 21 days of the applicant being notified of that amount; and

(ii) any diesel fuel rebate that is, or that becomes, payable under subsection 78A(1) within 12 months after the CEO accepts the request is set off against that part of the notice amount that is not payable under subparagraph (i).

78AB(8)
If:

(a) the CEO has accepted the request; and

(b) any amount payable in respect of that request under subparagraph (7)(b)(i) has been paid within the time limit specified in that subparagraph;

the applicant is not liable to be prosecuted under a provision of this Act for any offence in relation to the rebate to which the notice relates.

78AB(9)
If:

(a) the CEO has accepted the request; and

(b) any amount payable in respect of the request under subparagraph (7)(b)(i) has been paid within the time limit specified in that subparagraph; and

(c) the notice amount has not been paid or set off under this section within 12 months after the CEO accepted the request;

the notice amount, or so much of the notice amount as remains unpaid, may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

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History

S 78AB substituted 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 1 August 1997 (whether the fuel was purchased before or after 1 August 1997). S 78AB formerly read:

78AB(1)
Where a person:

(a) knowingly or recklessly obtains rebate referred to in subsection 78A(1) which is not payable; or

(b) in contravention of section 78AA , fails to notify a Collector of the sale or other disposal of diesel fuel, or of the use of the fuel for a purpose other than the purpose for which he or she purchased the fuel;

an officer may serve on the person a notice in writing:

(c) where paragraph (a) applies - specifying the amount of rebate that was not payable and demanding:

(i) repayment of that amount; and

(ii) payment of a penalty equal to 3 times that amount;

(d) where paragraph (b) applies - specifying the diesel fuel of whose sale, other disposal or use there has been a failure to notify the Collector and demanding:

(i) repayment of the amount of any rebate that has been paid under subsection 78A (1) in relation to that fuel and that was not payable; and

(ii) payment of a penalty equal to 3 times the amount of rebate applied for in respect of that fuel;

(e) setting out the terms of, or adequate particulars of the provisions of, subsection (2); and

(f) specifying the address at which payment of the amount demanded may be made under subsection (2).

78AB(1A)
Where a person, in an application for rebate under section 78A :

(a) makes a statement that is false or misleading in a material particular; or

(b) omits from a statement any matter or thing without which the statement is misleading in a material particular;

an officer may serve on the person a notice in writing:

(c) setting out particulars of the false or misleading statement or of the omission by reason of which the statement is misleading;

(d) if any rebate has been paid - demanding repayment of so much of the rebate paid as exceeds the rebate that would have been paid but for the statement or omission;

(e) demanding payment of a penalty of:

(i) unless subparagraph (ii) or (iii) applies - 3 times the amount by which the rebate applied for exceeds the rebate for which application might properly have been made;

(ii) if 3 times the excess referred to in subparagraph (i) would be less than $100-$100; or

(iii) if 3 times the excess referred to in subparagraph (i) would be more than $5,000-$5,000;

(f) setting out the terms of subsection (2); and

(g) specifying the address at which payment of the amount may be made under subsection (2).

78AB(2)
Where:

(a) a notice is served on a person:

(i) under subsection (1), in relation to obtaining rebate or failing to notify a Collector of the sale or other disposal of diesel fuel, or of the use of the fuel for a purpose other than the purpose for which he or she purchased the fuel; or

(ii) under subsection (1A), in relation to the making of a statement or the omission of any matter or thing from a statement; and

(b) the person pays to a Collector, at the address specified in the notice and within 21 days after the day on which the notice was served, the amounts demanded in the notice;

proceedings shall not be brought for an offence against this Act in relation to the obtaining of the rebate, the failure to notify, the making of a statement or the omission from a statement of a matter or thing, as the case requires.

78AB(3)
Where:

(a) a notice is served on a person under subsection (1) or (1A);

(b) an amount of rebate under subsection 78A(1) is, or is likely to become, payable to the person within 12 months after the day on which the notice was served;

(c) the person gives to a Collector, at the address specified in the notice and within 21 days after that day, a written waiver of:

(i) where the amount referred to in paragraph (b) does not exceed the amounts demanded in the notice - the right to receive as rebate under subsection 78A(1) the whole of the amount referred to in paragraph (b); or

(ii) in any other case - the right to receive as rebate under subsection 78A(1) so much of the amount referred to in paragraph (b) as is equal to the amounts demanded in the notice; and

(d) the amount to which the waiver relates would, but for this subsection, have been paid;

then:

(e) the person shall be deemed to have paid to the Collector in accordance with paragraph (2) (b) an amount equal to the amount of rebate under subsection 78A(1) the entitlement to which has been so waived; and

(f) the person's entitlement to be paid rebate under subsection 78A (1) is reduced by that amount.