Excise Laws Amendment (Fuel Tax Reform and Other Measures) Act 2006 (74 of 2006)

Schedule 1   Amendments

Part 1   Amendments

Excise Act 1901

73   After Part VIIA

Insert:

Part VIIAA - Special provisions relating to spirits

77FD Spirit for fortifying Australian wine or Australian grape must

Grant of approval

(1) For the purposes of subitem 3.5 of the Schedule to the Excise Tariff Act 1921, the CEO may grant a person a written approval to use spirit for fortifying Australian wine or Australian grape must.

(2) The approval must be for:

(a) the use of a one-off specified quantity of spirit; or

(b) the use of a specified quantity of spirit in a calendar month or a calendar year.

Note: See also section 77FH (about payment of duty equivalent if the spirit is not used for the approved purpose).

Conditions

(3) The CEO must specify in an approval any conditions to which the approval is subject.

Approval not a legislative instrument

(4) An approval under subsection (1) is not a legislative instrument.

77FE Spirit for an industrial, manufacturing, scientific, medical, veterinary or educational purpose - class determinations

(1) The CEO may, by legislative instrument, determine a class of persons for the purposes of subitem 3.6 of the Schedule to the Excise Tariff Act 1921.

(2) For the purposes of that subitem, the determination may also specify a quantity of spirit that a person included in the class may use in a calendar month or a calendar year.

Note: See also section 77FH (about payment of duty equivalent if spirit is delivered to a person included in such a class and the person does not use the spirit for an industrial, manufacturing, scientific, medical, veterinary or educational purpose).

77FF Spirit for an industrial, manufacturing, scientific, medical, veterinary or educational purpose - specific approvals

Grant of approval

(1) For the purposes of subitem 3.7 of the Schedule to the Excise Tariff Act 1921, the CEO may grant a person a written approval to use spirit for a specified industrial, manufacturing, scientific, medical, veterinary or educational purpose.

(2) The approval must be for:

(a) the use of a one-off specified quantity of spirit; or

(b) the use of a specified quantity of spirit in a calendar month or a calendar year.

Note: See also section 77FH (about payment of duty equivalent if the spirit is not used for the approved purpose).

Conditions

(3) The CEO must specify in an approval any conditions to which the approval is subject.

Approval not a legislative instrument

(4) An approval under subsection (1) is not a legislative instrument.

Guidelines

(5) The CEO must, by legislative instrument, develop guidelines that he or she must have regard to when deciding whether or not to grant an approval under subsection (1).

77FG Denatured spirits

(1) For the purposes of subitem 3.8 of the Schedule to the Excise Tariff Act 1921, the CEO may, by legislative instrument, determine a formula for the denaturing of spirits.

(2) The CEO must give the greatest weight to the protection of the revenue in determining a formula under subsection (1).

77FH When an amount is payable on spirit covered by section 77FD, 77FE or 77FF

(1) If spirit classified to subitem 3.5 or 3.7 of the Schedule to the Excise Tariff Act 1921 is delivered for home consumption, a Collector may request, in writing, the person holding the approval concerned to account to the satisfaction of the Collector that the spirit has been used for the purpose specified in the approval.

(2) If spirit classified to subitem 3.6 of the Schedule to the Excise Tariff Act 1921 is:

(a) delivered for home consumption; and

(b) delivered to a person who is included in a class determined under section 77FE of this Act;

a Collector may request, in writing, the person to account to the satisfaction of the Collector that the spirit has been used for an industrial, manufacturing, scientific, medical, veterinary or educational purpose.

Payment of duty equivalent

(3) If a person does not account as requested under subsection (1) or (2), the person must, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the duty that would have been payable on the spirit if:

(a) there had been no approval or determination (as the case requires); and

(b) the spirit had been entered for home consumption on the day on which the Collector made the demand.

Note 1: Subitems 3.1, 3.2 and 3.10 of the Schedule to the Excise Tariff Act 1921 set out the non-free rates of duty for spirit.

Note 2: For provisions about collection and recovery of the amount, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.

No effect on other liabilities

(4) This section does not affect the liability of a person arising under or because of:

(a) any other provision of this Act; or

(b) a security given under this Act.

Request or demand not a legislative instrument

(5) The following are not legislative instruments:

(a) a request under subsection (1) or (2);

(b) a demand under subsection (3).

77FI Delivery from CEO's control of brandy, whisky or rum

(1) Brandy, whisky or rum manufactured in Australia must not be delivered from the CEO's control unless it has been matured by storage in wood for at least 2 years.

(2) In this section:

brandy means a spirit distilled from grape wine in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to brandy.

grape wine has the same meaning as in Subdivision 31-A of the A New Tax System (Wine Equalisation Tax) Act 1999.

rum means a spirit obtained by the distillation of a fermented liquor derived from the products of sugar cane, being distillation carried out in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to rum.

whisky means a spirit obtained by the distillation of a fermented liquor of a mash of cereal grain in such a manner that the spirit possesses the taste, aroma and other characteristics generally attributed to whisky.

77FJ Person must not abstract denaturing substances in spirit classified to subitem 3.8

(1) A person commits an offence if:

(a) spirit classified to subitem 3.8 of the Schedule to the Excise Tariff Act 1921 is delivered for home consumption; and

(b) the person abstracts the whole or a part of a denaturing substance from the spirit; and

(c) the person has not been given permission by the CEO to abstract the whole or the part of the denaturing substance.

Penalty: 50 penalty units.

(2) The CEO may, in writing, give a person permission to abstract the whole or a part of a denaturing substance for the purposes of paragraph (1)(c).

(3) A permission under subsection (2) is not a legislative instrument.

77FK Offence in relation to stills

(1) A person commits an offence if:

(a) the person does any of the following things:

(i) makes or commences to make any still;

(ii) removes, sets up or erects any still;

(iii) sells or otherwise disposes of, or purchases or otherwise acquires any still, either by itself or with other property, or as part of any premises;

(iv) imports any still;

(v) has possession, custody or control of any still; and

(b) the still is of a capacity exceeding 5 litres; and

(c) the person is not a licensed manufacturer; and

(d) the person has not been given permission by the CEO to do the thing.

Penalty: 50 penalty units.

(2) Subsection (1) does not apply to an act done by an officer in the course of performing a function or exercising a power under this Act or the Excise Tariff Act 1921.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) The CEO may, in writing, give a person permission to do a thing mentioned in paragraph (1)(a).

(4) A permission under subsection (3) is not a legislative instrument.

77FL Offence in relation to describing spirits as "old" or "very old"

(1) A person commits an offence if the person:

(a) does either of the following:

(i) describes any spirit as "old", or in a way which could reasonably lead to the belief that the spirit has been matured for at least 5 years;

(ii) describes any spirit as "very old", or in a way which could reasonably lead to the belief that the spirit has been matured for at least 10 years; and

(b) does so in relation to trade or commerce between Australia and another country, between 2 States, between a State and a Territory or between 2 Territories.

Penalty: 10 penalty units.

(2) Subparagraph (1)(a)(i) does not apply if the spirit has been matured by storage in wood for at least 5 years.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) Subparagraph (1)(a)(ii) does not apply if the spirit has been matured by storage in wood for at least 10 years.

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

(4) Absolute liability applies to paragraph (1)(b).


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