Taxation Administration Act 1953

SCHEDULE 1 - COLLECTION AND RECOVERY OF INCOME TAX AND OTHER LIABILITIES  

Note: See section 3AA .

Chapter 4 - Generic assessment, collection and recovery rules  

PART 4-30 - OFFENCES AND PROSECUTIONS  

Division 308 - Offences relating to tobacco  

Subdivision 308-B - Fault-based offences of possession, production and manufacture  

SECTION 308-115   POSSESSION OF TOBACCO (100 KG OR ABOVE) - FAULT-BASED OFFENCE  

308-115(1)    
A person commits an offence if:

(a)    the person possesses a thing; and

(b)    the thing is tobacco; and

(c)    the place in which the person possesses the tobacco is in Australia but not in an external Territory; and

(d)    the tobacco is:

(i) *excisable goods; or

(ii) tobacco seed or tobacco plant; or

(iii) tobacco leaf that has not been subjected to any process, or has been subjected only to the process of curing the leaf as stripped from the plant; and

(e)    in a case where the tobacco is excisable goods:

(i) *excise duty is payable on the tobacco; and

(ii) the full amount of excise duty has not been paid on the tobacco; and

(f)    the weight of the tobacco is 100 kilograms or above.

Penalty: 5 years imprisonment or the greater of the following, or both 5 years imprisonment and the greater of the following:

(a)    1,000 penalty units;

(b)    the amount mentioned in subsection (2) multiplied by 5.

308-115(2)    
For the purposes of the penalty in subsection (1) , the amount is:

(a)    for tobacco (other than tobacco plant or tobacco leaf) - the amount of excise duty that would be payable assuming that the tobacco were *excisable goods and entered for home consumption on the day mentioned in subsection (3) ; or

(b)    for tobacco plant or tobacco leaf, if regulations have been made for the purposes of this paragraph - the amount of excise duty that would be payable, as worked out under the regulations, assuming that:

(i) for tobacco plant - the weight of the tobacco were equal to the potential weight of tobacco that could be produced from the plant if it were fully grown and it had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3) ; or

(ii) for tobacco leaf - the tobacco had been manufactured into excisable goods and entered for home consumption on the day mentioned in subsection (3) ; or

(c)    for tobacco plant or tobacco leaf, if regulations have not been made for the purposes of paragraph (b) - nil.

308-115(3)    
For the purposes of subsection (2) , the day is:

(a)    if the Court knows the day, or days, on which the offence was committed - that day, or the earliest of those days; or

(b)    otherwise - the day on which the prosecution for the offence is instituted.

308-115(4)    
Absolute liability applies to paragraph (1)(c) .

308-115(5)    
Absolute liability applies to paragraph (1)(f) .

308-115(6)    

Subsection (1) does not apply if the tobacco is kept or stored at premises for which there is in force:

(a)    a licence (within the meaning of the Excise Act 1901 ) that relates to tobacco; or

(b)    a depot licence (within the meaning of the Customs Act 1901 ), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code ).

308-115(7)    
Subsection (1) does not apply if:

(a)    the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

(b)    the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

(c)    the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901 .

Note:

A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

308-115(8)    
Subsection (1) does not apply if the person has permission (within the meaning of the Excise Act 1901 ):

(a)    to possess the tobacco; or

(b)    to move the tobacco; or

(c)    to deliver the tobacco for home consumption without entering it for that purpose.

Note:

A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code ).