Excise guidelines for the alcohol industry
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07 REMISSIONS, REFUNDS, DRAWBACKS & EXEMPTIONS
7.3.5 WHEN ARE EXCISABLE ALCOHOL PRODUCTS EXEMPT FROM EXCISE DUTY? |
7.1 PURPOSE
This chapter deals with:
- when you can apply for a remission, refund or drawback
- what happens if you are overpaid a refund or drawback
- when alcohol products are exempt from excise duty
- who can access alcohol products free of excise duty
- how to apply for a remission, refund or drawback, and
- penalties that can apply to offences in relation to remissions, refunds, drawbacks and exemptions.
7.2 INTRODUCTION
A remission of excise duty extinguishes the liability for duty that was created at the point of manufacture.
A refund is the repayment of duty that has already been paid.
A drawback is a repayment of duty already paid. It is similar to a refund, but applies where duty-paid goods are exported.
In some circumstances the duty you pay on goods may be subject to a complete or partial refund or drawback. [167]
7.3 POLICY AND PRACTICE
7.3.1 WHEN CAN I APPLY FOR A REMISSION OF EXCISE DUTY?
You can apply for a remission of excise duty payable on your excisable alcohol products if the following circumstances apply while the goods are subject to excise control :
Where the alcohol products have deteriorated or been damaged, pillaged, lost or destroyed, or become unfit for human consumption [168]
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Example 7A
A pallet of bottled beer is dropped inside the brewery's bond store, damaging the contents. The brewery applies for a remission of duty on the damaged goods. On receiving approval, the brewery destroys the damaged goods and retains records of the destruction.
RTDs containing milk products remain unsold in a manufacturer's licensed premises and have deteriorated to a point where they are unfit for human consumption. The manufacturer applies for a remission of duty on the RTDs. On receiving approval, the manufacturer destroys the unsaleable stock and retains records of the destruction.
Where the goods are not worth the amount of excise duty payable on the goods if delivered into home consumption [170]
Example 7B
A brewery produces an excess of product for export to Japan. Due to the labelling the excess product cannot be sold in Australia.
The brewery applies for a remission on the basis that the amount of duty payable on the leftover stock exceeds the value of the stock, because the stock has no commercial value.
On receiving approval, the brewery destroys the unsaleable stock and retains records of the destruction.
The excisable alcohol products are for sale to diplomatic or consular missions and the goods are to be delivered under your PSP. [171]
Example 7C
A manufacturer receives an order from a diplomatic mission for beer, for official use. The manufacturer delivers the beer, into the Australian domestic market (to the diplomatic mission), under the terms of their PSP. (The terms of the PSP may require the manufacturer to submit an Excise remission (NAT 4289) to us, after delivery of the beer.)
When are excisable alcohol products subject to remission without application?
You can supply excisable alcohol products exempt from duty when they are for official use but not for trade by: [192]
- the Governor-General or any member of the Governor-General's family
- State Governors or any member of a State Governor's family
- the Australian American Foundation (Australian-American Fulbright Commission)
- the Government of another country, under an agreement between that Government and the Australian Government
- persons covered by a Status of Forces Agreement, and
- the personnel of sea-going vessels of the Royal Australian Navy (RAN) or Australian Military Forces (AMF) (see below for more detail).
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Some restrictions apply to alcohol products for the RAN and AMF:
- The goods must be for consumption by the personnel of sea-going vessels of the RAN or the AMF when:
- such vessels are in full commission, and
- the products are consumed on such vessels [193]
- Only certain excisable alcoholic products are eligible for this concession, including:
- ale, porter and other beer
- brandy
- whisky
- rum
- gin, and
- liqueurs.
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To supply alcohol products under these circumstances, you must first ensure the receiver meets the relevant criteria. For example, you should only accept orders, stating that the goods are for official use, on the official stationery, or official order, of eligible people or organisations. You must keep a copy of this documentation.
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7.3.2 WHEN CAN I APPLY FOR A REFUND OF EXCISE DUTY?
You can apply for a refund of excise duty paid on excisable alcohol products if the following circumstances apply:
- Duty has been paid on excisable alcohol products, however it is later found that, while the goods were subject to excise control (i.e. while they were at the licensed site), they deteriorated or were damaged, pillaged, lost or destroyed, or become unfit for human consumption. [172]
Example 7D
A manufacturer delivers RTDs into the Australian domestic market and pays duty under its PSP. After the product has gone into the market, it is found that, due to a fault in the packaging, the product is unfit for human consumption. It is evident that the product was unfit for consumption at the time the goods were subject to excise control.
The manufacturer applies for a refund of duty on the RTDs.
Example 7E
A storage licence holder, who does not have a PSP, pays the excise duty on alcohol products in accordance with a pre-payment return. They receive a Delivery authority . Before the alcohol products are removed from the licensed premises, they are destroyed by fire. As the alcohol products were still subject to excise control when they were destroyed, the licence holder can apply for a refund of duty on the alcohol products.
- Duty-paid alcohol products, while the goods are subject to excise control, are not worth the amount of excise duty paid. [173]
Example 7F
A storage licence holder who does not have a PSP pays the excise duty on RTDs in accordance with a pre-payment return. They receive a Delivery authority . Before the RTDs are removed from the licensed premises they become unsaleable, due to changed packaging requirements, and they cannot be sold (but are not unfit for human consumption). As the RTDs were still subject to excise control when they became unsaleable, the licence holder can apply for a refund of duty on the RTDs.
- Duty has been paid through manifest error of fact or patent misconception of the law. [174]
This circumstance applies to an error that is evident, obvious or apparent and also in situations where duty has been paid on goods entering the Australian domestic market that are not excisable. In both cases a refund of the duty paid would be payable.
Example 7G
A manufacturer delivers wine based RTDs that are 11% alcohol by volume into the Australian domestic market. The goods were entered under subitem 3.2 on the excise return as 'other excisable beverages exceeding 10% alcohol by volume'. The goods fit the description of wine based products and are subject to WET, but are not excisable.
The manufacturer applies for a refund of the duty paid through patent misconception of the law and pays WET on the goods.
- Duty-paid goods have been taken up as ship's stores or aircraft's stores. [175]
Ship's stores on overseas ships and aircraft's stores on international flights are not subject to excise duty. Where duty has been paid and the excisable alcohol products are subsequently re-directed for use on ships or aircraft travelling overseas, this refund circumstance may apply.
- From April 2015, duty paid goods that haven ' t been used are returned to licensed premises, or to a person authorised by the manufacturer of the goods to receive them on their behalf, and the goods are destroyed, or are subjected to further manufacture or production. [176]
The goods do not have to be returned to the licensed premises of the original manufacturer. The law provides that they may be returned to premises are licensed under section 39A of the Excise Act or to a person authorised by the manufacturer (for example, a destruction facility).
Example 7H
A retailer has cartons of cream based RTDs that have passed their use by date. The retailer returns them to the licensed manufacturer where they are destroyed. The manufacturer claims a refund of the duty that was paid on the goods when they were entered for home consumption.
- Duty paid goods are sold in the following circumstances:
[177]
- for the official use of diplomatic or consular staff of foreign countries
- for use by the Government of another country, under an agreement between that Government and the Australian Government and not for trade
- for the official use of a foreign country under a Status of Forces Agreement with the Australian Government and not for re-sale, or
- for the official use of an international organisation, or personal use of the holder of a high office of an international organisation, to which the International Organisations (Privileges and Immunities) Act 1963
- Beer is manufactured in an eligible brewery. Individual claims for refund are calculated at 60% of the duty paid up to a maximum of $30,000 [179] in any financial year (or a pro-rata amount, if the brewery became an eligible brewery after the start of the financial year). [180]
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What is an eligible brewery?
An eligible brewery is defined as a brewery that: [181]
- is operated by an entity that is legally and economically independent of any other entity that operates a brewery; and
- sells beer (whether wholesale or retail), on which excise duty has been paid, directly from the manufacturing premises of the brewery.
Legally independent
Examples of where an entity would not be considered legally independent of another entity that operates a brewery are:
- A brewery is operated by an entity that is a subsidiary of another entity that operates another brewery or breweries; or
- A brewery is operated by an entity that is related to another entity through a holding company and that other entity operates a brewery or breweries.
Economically independent
Examples of where an entity would not be considered economically independent of another entity that operates a brewery are:
- An entity that operates a brewery affects the economic or financial position of another entity that operates a brewery by providing a subsidy.
- An entity relies on another entity that operates a brewery to sustain their operations by sharing facilities.
7.3.3 WHEN CAN I APPLY FOR A DRAWBACK OF EXCISE DUTY?
You can apply for a drawback if you export alcohol products that have had excise duty paid on them. [183]
We will only pay a drawback if: [184]
- prior to the exportation, you advise us that you intend to claim a drawback. (We can exempt you from this requirement, in writing, either on all claims for drawback or any particular claim. [185] )
- before exportation of the excisable alcohol products on which duty has been paid, the goods are available for inspection by us, and
- you keep records that show:
- that duty was paid on the alcohol products (for example invoices), and
- the alcohol products were exported (for example, an export declaration number or bill of lading)
- you lodge a drawback claim in the approved form no later than 12 months after the alcohol products were exported,
- the claim sets out the amount of the drawback and a statement that the goods have not been, or are not intended to be, re-landed in Australia, and
- the amount of the claim or an aggregate of the claims is at least $50.
The amount of the drawback will not exceed the amount of excise duty that was paid. [186]
Example 7I
A liquor distributor purchases a quantity of duty-paid beer and spirits which it supplies to an entity overseas.
The liquor distributor applies for a drawback of the duty component of the beer and spirits. To support the application, the company provides the ATO with copies of invoices of purchase and the bills of lading, which will include details of the export declaration notice (EDN) number.
7.3.4 WHAT HAPPENS IF I AM OVERPAID A REFUND OR DRAWBACK?
If we overpay you by way of a refund or drawback then you must pay the overpaid amount back. We can demand that you pay back the amount and if you do not repay the amount within the time we specify in the demand we can recover the amount through the courts as a debt due to the Commonwealth. [187]
7.3.5 WHEN ARE EXCISABLE ALCOHOL PRODUCTS EXEMPT FROM EXCISE DUTY?
Excisable alcohol products are exempt from duty if they are:
- exported
- sold for use as ship's or aircraft's stores [188]
- with our approval, delivered as small samples, [189] or
- subject to remission without application. [190]
What are ship's and aircraft's stores?
Ship's and aircraft's stores are goods for the use of passengers or crew on international journeys (e.g. alcohol for sale to passengers on board a cruise liner).
There are limits on the quantities of excisable alcohol products that are not liable to excise duty as ship's stores: [191]
- alcoholic beverages (other than beer) must be sold to passengers or crew by the glass or nip.
If you supply ship's or aircraft's stores underbond , you must obtain a movement permission to move the goods from the licensed premises to the place of export.
Can I deliver samples without payment of duty?
Yes, you may be able to deliver small samples of excisable alcohol products without payment of duty and without entry. You must apply to us for approval to deliver any sample without the payment of duty. Your application must:
- be in writing
- specify who the sample is for
- specify the quantity for approval, and
- specify the purpose of the sample.
A small sample would normally consist of less than a saleable amount or an amount that is suitable for the purpose for which the sample is required e.g. testing and evaluation. Samples of product provided to customers in order to secure an order for that product (pre-delivery samples i.e. samples that arrive separately to the bulk goods), are not considered to be 'samples' that can be approved for delivery without the payment of duty.
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To apply for approval, send your application to us via:
the Business Portal
fax at 1300 130 916 ,
mail toAustralian Taxation OfficePO Box 3514ALBURY NSW 2640
7.4 PROCEDURES
7.4.1 HOW DO I APPLY FOR A REMISSION OR REFUND?
An application for a remission (excluding automatic remissions in clause 2 of Schedule 1) or a refund of excise duty must be submitted in writing. However, Schedule 1, subclause 1(1), paragraph (b) of the Excise Regulation provides that where a remission may be allowed and the goods have been totally lost or destroyed or otherwise ceased to exist an application is not required. Records to substantiate your claims must be maintained and produced when requested. [194]
An application for a refund must be lodged within 12 months after the day when the excise duty was paid for the following refund circumstances: [195]
- goods that, while subject to the CEO's control, has deteriorated, been damaged, pillaged, lost or destroyed, or become unfit for human consumption
- goods that, while subject to the CEO's control, is no longer worth the amount of duty paid on it
- duty was paid on goods through manifest error or fact or patent misconception of the law.
For all other items listed in the table at clause 1 of Schedule 1 there is no time limit for lodging your application for refund. To ensure the excisable alcohol products do not find their way into the Australian domestic market we may wish to inspect or supervise the disposal of the goods. If underbond goods must be destroyed off site, you must apply for a movement permission to move them from the licensed premises to the place of destruction.
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You can elect to have a refund credited to your excise account or paid directly into your bank account.
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To apply for a refund, send us a completed Excise refund (NAT 4288). You can use the Excise refund instructions to help you complete this form. Applications can also be made on company letterhead as long as all the relevant information is provided. |
If you are not satisfied with our decision to refuse your refund or remission, you can request a review of our decision by lodging an objection within 60 days.
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7.4.2 HOW DO I APPLY FOR A DRAWBACK?
To apply for a drawback of duty, send us a completed Excise drawback (NAT 4287) or an application on your business letterhead. You can use the Excise drawback instructions to help you complete NAT 4287.
Your drawback application must be received not later than 12 months after the day on which the goods were exported. [195A]
If we refuse to pay your drawback and you are not satisfied with our decision you can request a review of our decision by lodging an objection within 60 days.
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7.4.3 WHAT DO I DO IF I NEED MORE INFORMATION?
If you need more information on remissions, refunds, drawbacks and exemptions contact us via:
the Business Portal
phone on 1300 137 290
fax at 1300 130 916 ,
email at alcohol@ato.gov.au , or
mail toAustralian Taxation OfficePO Box 3514ALBURY NSW 2640
We will ordinarily respond to written information requests within 28 days. If we cannot respond within 28 days, we will contact you within 14 days to obtain more information or negotiate an extended response date.
7.5 WHAT PENALTIES CAN APPLY TO OFFENCES IN RELATION TO REMISSIONS, REFUNDS, DRAWBACKS AND EXEMPTIONS?
The following are the penalties that may apply after conviction for an offence.
Evade
If you evade payment of any duty which is payable, the maximum penalty is five times the amount of duty on the excisable alcohol products or where a court cannot determine the amount of that duty the penalty is a maximum of 500 units. [196]
False or misleading statements
If you make a false or misleading statement, or an omission from a statement in respect of duty payable on particular goods, to us, a penalty not exceeding the sum of 50 penalty units and twice the amount of duty payable on those goods. [197]
7.6 TERMS USED
Excisable alcohol products
Excisable goods are goods on which excise duty is imposed. Excise duty is imposed on goods that are manufactured or produced in Australia and listed in the Schedule to the Excise Tariff Act.
As these guidelines deal with alcohol products, we have used the term excisable alcohol products.
Excisable alcohol products include:
- beer
- spirits
- premixed drinks known as ready-to-drink (RTD) beverages
- brewed beverages that are not beer, and
- high strength spirit for non-beverage use, including denatured spirit.
Excise control
Goods are subject to excise control from the point of manufacture until they have been delivered into the Australian domestic market or for export.
Goods subject to excise control cannot be moved, altered or interfered with except as authorised by the Excise Act.
Excise return
An excise return [198] is the document that you use to advise us:
- the volume of excisable alcohol products that you have delivered into the Australian domestic market during the period designated on your PSP, or
- the volume of excisable alcohol products that you wish to deliver into the Australian domestic market following approval.
Penalty units
Refer to section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Underbond
This is an expression not found in excise legislation but it is widely used to describe goods that are subject to excise control. Excisable goods that are subject to excise control are commonly referred to as 'underbond goods' or as being 'underbond'. This includes goods that have not yet been delivered into the Australian domestic market and goods moving between premises under a movement permission.
7.7 LEGISLATION (quick reference guide)
In this chapter we have referred to the following legislation:
Section 24 - Excisable goods and goods liable to duties of Customs may be used in manufacturing excisable goods
Section 58 - Entry for home consumption etc.
Section 61A - Permission to remove goods that are subject to CEO's control
Section 64 - Delivery of samples free of duty
Section 78 - Remissions, rebates and refunds
Section 79 - Drawbacks
Section 80 - Recovery of overpayments of refunds, rebates, and drawbacks
Section 120 - Offences
Section 160A - Ship's stores and aircraft's stores
Section 10 - Application for remission, rebate or refund of excise duty
Section 11 - Period for making an application for refund or rebate of excise duty
Section 12 - Amount of remission, rebate or refund of excise duty
Section 14 - Drawback of excise duty on goods
Section 15 - When drawback of excise duty is not payable
Section 16 - Conditions relating to drawback of excise duty - general
Clause 1 of Schedule 1- Circumstances in which remission, rebate or refund may be made on application
Clause 2 of Schedule 1 - Circumstances in which remission, rebate or refund may be made without application
Section 4AA - Penalty units
Section 46 - What is a subsidiary
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| 1 July 2013 | Original document | |
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| 1 July 2024 | Current document |
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