Excise guidelines for the tobacco industry

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Footnotes

^[1] section 90 of the Constitution.

^[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.

^[5] See the prefatory notes to the Schedule to the Excise Tariff Act.

^[6] For an explanation of customs and excise tariff proposals, see http://parlinfoweb.aph.gov.au

^[7] section 28 of the Excise Act.

^[8] section 33 of the Excise Act.

^[9] section 44 of the Excise Act.

^[10] section 25 of the Excise Act.

^[11] Subsection 66(7) of the Excise Act.

^[12] Subsection 4(1) (definition of 'storage licence') and Part IV of the Excise Act.

^[13] section 61A of the Excise Act.

^[14] section 7 of the Excise Act and section 1A of the Excise Tariff Act.

^[15] ATO Interpretative Decision ATO ID 2011/48 Excise and the number of premises specified in a licence to manufacture .

^[16] Section 31 of the Excise Act.

^[17] Section 68 of the Excise Act 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.

^[18] Section 36 of the Excise Act.

^[19] Note that the buyer or seller as applicable requires an appropriate licence

^[20] Subdivision 308-A of Schedule 1 to the TAA make it an offence to sell or buy tobacco leaf from a person who is not licensed to manufacture or deal. Regulation 4D of the Customs (Prohibited Imports) Regulations 1956 prohibits the importation of tobacco leaf unless the importer holds a manufacturer or dealer licence.

^[21] Section 4 of the Excise Act - The term 'licensed manufacturer' is defined to be 'a person or partnership who holds a manufacturer licence'.

^[22] Section 39D of the Excise Act.

^[23] Section 68 of the Excise Act.

^[24] Regulation 4D of the Customs (Prohibited Imports) Regulations 1956.

^[25] Section 27 of the Excise Act.

^[26] Section 51 of the Excise Act.

^[27] Sections 30, 35 and 53 of the Excise Act.

^[28] Section 77AA of the Excise Act.

^[29] Section 60 of the Excise Act.

^[30] Section 62 of the Excise Act.

^[31] Sections 44 and 61A of the Excise Act.

^[32] Section 44 of the Excise Act.

^[33] Section 44 of the Excise Act and section 20 of the Excise Regulation.

^[34] Section 75 of the Excise Act.

^[35] Sections 26, 29 and 34 of the Excise Act.

^[36] Section 20 of the Excise Regulation.

^[37] Sections 58 and 66 of the Excise Act.

^[38] Section 54 of the Excise Act.

^[39] Section 49 of the Excise Act.

^[40] Section 52 of the Excise Act.

^[41] Section 76 of the Excise Act.

^[42] Section 77 of the Excise Act.

^[43] Subsection 86(2) of the Excise Act.

^[44] Section 87 of the Excise Act.

^[45] Section 6 of the Crimes Act 1914 .

^[46] Sections 11.1, 11.2, 11.2A and 11.5 of the Criminal Code.

^[47] Section 87AA of the Excise Act.

^[48] Section 91 of the Excise Act.

^[49] Section 46 of the Excise Act.

^[50] Section 106 of the Excise Act.

^[51] Section 50 of the Excise Act.

^[52] Section 39E of the Excise Act.

^[53] Section 39O of the Excise Act.

^[54] Section 39 of the Excise Act.

^[55] Sections 25, 28, 33 and 117 of the Excise Act.

^[56] Section 6A of the Excise Act.

^[57] Section 28 of the Excise Act.

^[58] Section 28 of the Excise Act.

^[59] Section 29 of the Excise Act.

^[60] Section 31 of the Excise Act.

^[61] Section 31 of the Excise Act.

^[62] Sections 28, 29 and 31 of the Excise Act.

^[63] Section 33 of the Excise Act.

^[64] Section 33 of the Excise Act.

^[65] Section 34 of the Excise Act.

^[66] Section 36 of the Excise Act.

^[67] Sections 33, 34 and 36 of the Excise Act.

^[68] Section 308-125 of Schedule 1 to the TAA.

^[69] Section 26 of the Excise Act.

^[70] Section 27 of the Excise Act.

^[71] Sections 25, 26 and 27 of the Excise Act.

^[72] Section 30 of the Excise Act.

^[73] Section 30 of the Excise Act

^[74] Section 35 of the Excise Act.

^[75] Section 35 of the Excise Act.

^[76] Section 308-110 of Schedule 1 to the TAA.

^[77] Section 308-110 of Schedule 1 to the TAA, section 64A of the Taxation Administration Regulations 2017, and section 21 of the Excise Regulation.

^[78] Section 308-110 of Schedule 1 to the TAA, section 64A of the Taxation Administration Regulations 2017, and section 21 of the Excise Regulation.

^[79] Sections 30, 35 and 117 of the Excise Act.

^[80] Section 120 of the Excise Act.

^[81] Section 51 of the Excise Act.

^[82] Section 117I of the Excise Act.

^[83] Section 49 of the Excise Act.

^[84] Section 52 of the Excise Act.

^[85] Section 92 of the Excise Act.

^[86] Paragraph 39A(2)(d) of the Excise Act.

^[87] Paragraph 39A(2)(c) of the Excise Act.

^[88] Paragraph 39A(2)(f) of the Excise Act.

^[89] Sections 39B and 39C of the Excise Act.

^[90] Sections 39B and 39C of the Excise Act.

^[91] Section 39B of the Excise Act.

^[92] Section 39C of the Excise Act.

^[93] Paragraphs 39B(e) and 39B(f) of the Excise Act.

^[94] Paragraph 39B(f) of the Excise Act.

^[95] Subsection 39A(2)(f) of the Excise Act; section 995-1 of the Income Tax Assessment Act 1997 ; subsection 318(1) of the Income Tax Assessment Act 1936.

^[96] Section 995-1 of the Income Tax Assessment Act 1997 for definition of Relative for this purpose.

^[97] Subsection 318(1) of the Income Tax Assessment Act 1936 .

^[98] Subsection 318(7) of the Income Tax Assessment Act 1936 .

^[99] Subsection 318(2) of the Income Tax Assessment Act 1936 .

^[100] Subsection 318(3) of the Income Tax Assessment Act 1936 .

^[101] Subsection 318(4) of the Income Tax Assessment Act 1936 .

^[102] Paragraph 39A(2)(fa) of the Excise Act.

^[103] Paragraphs 39A(2)(g) and 39A(2)(h) of the Excise Act.

^[104] Paragraph 39A(2)(i) of the Excise Act.

^[105] Paragraph 39A(2)(ia) of the Excise Act.

^[106] Paragraph 39A(2)(j) of the Excise Act.

^[107] Paragraph 39A(2)(l) of the Excise Act.

^[108] Re Martino and Australian Taxation Office (No 2) [2002] AATA 1242.

^[109] Paragraph 39G(1)(k) of the Excise Act.

^[110] Subsection 39D(4) and section 39DA of the Excise Act.

^[111] Subsection 39D(1) of the Excise Act.

^[112] Subsection 39D(3) of the Excise Act.

^[113] Section 39Q of the Excise Act.

^[114] Sections 16 to 22 of the Excise Act.

^[115] Section 39F of the Excise Act.

^[116] Section 39Q of the Excise Act.

^[117] Subsection 39F(4) of the Excise Act.

^[118] Section 120 of the Excise Act.

^[119] 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.

^[120] Subsection 39L(2) of the Excise Act.

^[121] Subsection 39L(4) of the Excise Act.

^[122] Subsection 39L(3) of the Excise Act.

^[123] Paragraph 39L(4)(b) of the Excise Act.

^[124] Subsections 39G(1) and 39L(1) of the Excise Act.

^[125] Subsection 39G(1) of the Excise Act.

^[126] Section 26 of the Excise Act.

^[127] Section 39K of the Excise Act.

^[128] Subsection 39K(6) of the Excise Act.

^[129] Section 39Q of the Excise Act.

^[130] Subsection 39L(4) of the Excise Act.

^[131] Subsection 39N(2) of the Excise Act.

^[132] Section 39M of the Excise Act.

^[133] Part IX, Division 1A Subdivision F of the Excise Act.

^[134] Section 39Q of the Excise Act.

^[135] Subsections 39J(2) and 39L(5) of the Excise Act.

^[136] Section 39P of the Excise Act.

^[137] Subsection 39K(2) of the Excise Act.

^[138] Subsection 39K(2) of the Excise Act.

^[139] Subsection 39K(2) of the Excise Act.

^[140] Subsection 39K(2) of the Excise Act.

^[141] Subsection 39K(1) of the Excise Act.

^[142] Subsection 39K(3) of the Excise Act.

^[143] Subsection 39M(1) of the Excise Act.

^[144] Subsection 39M(2) of the Excise Act.

^[145] Subsection 39M(2) of the Excise Act.

^[146] Subsections 39K(4) and 39M(3) of the Excise Act.

^[147] Sections 44 and 61A of the Excise Act.

^[148] This does not mean movements within your licensed premises, rather movements from licensed premises to another place.

^[149] Section 66 of the Excise Act.

^[150] Subsection 44(3) of the Excise Act.

^[151] Subsection 44(2) of the Excise Act.

^[152] Section 75 of the Excise Act - this includes waste such as stalks and clippings arising from the manufacture of tobacco products.

^[153] Sections 16 to 22 of the Excise Act.

^[154] Section 77AA of the Excise Act for tobacco leaf.

^[155] 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.

^[156] Section 117D of the Excise Act.

^[157] Section 117D of the Excise Act.

^[158] Subsection 44(4) of the Excise Act.

^[159] Subsection 44(4) of the Excise Act.

^[160] Subsections 117D(2), 117A(2), 44(5) and 61A(6) of the Excise Act.

^[161] Subsection 5(1) of the Excise Tariff Act.

^[162] Subsection 66(7) of the Excise Act.

^[163] Paragraphs 162C(1)(d), 162C(1)(e) or 162C(1)(f) of the Excise Act.

^[164] Subsection 66(3) of the Excise Act. ATO Interpretative Decision ATO ID 2004/114 (Withdrawn) Payment of excise duty: lodgment of periodic settlement permissions - public holidays . Paragraph 1.21 of the Explanatory Memorandum to the Excise Amendment (Reducing business Compliance Burden) Bill 2011.

^[165] Subsection 4(6) of the Excise Act.

^[166] Section 6AA of the Excise Tariff Act.

^[167] Subsection 66(7) of the Excise Act.

^[168] For an explanation of customs and excise tariff proposals, see www.parlinfoweb.aph.gov.au.

^[169] Subsections 59A(1) and (2) of the Excise Act.

^[170] Subsections 59A(1) and (2) of the Excise Act.

^[171] Subsection 59A(5) of the Excise Act.

^[172] 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.

^[173] Section 154 of the Excise Act.

^[174] Section 155 of the Excise Act and section 359-60 of Schedule 1 to the TAA.

^[175] Section 154 of the Excise Act.

^[176] Section 77AA of the Excise Act.

^[177] Section 60 of the Excise Act.

^[178] Section 77AA of the Excise Act.

^[179] Subsections 60(4) and 77AA(4) of the Excise Act.

^[180] ATO Interpretative Decision ATO ID 2004/61 Excise: goods given away without payment of excise duty ; but see 'How do I deliver samples?' in chapter 7 - Remissions, refunds, drawbacks and exemptions .

^[181] ATO Interpretative Decision ATO ID 2001/595 Excise: Liability to pay an amount equal to the duty on excisable goods stolen from a licensed premise .

^[182] ATO Interpretative Decision ATO ID 2004/62 Excise: goods sold without payment of excise duty .

^[183] For tobacco leaf, the amount is calculated by assuming the leaf had been manufactured into an equivalent amount of excisable tobacco goods.

^[184] Section 162C of the Excise Act.

^[185] The settlement period usually specified in a licence is seven days with lodgment of your excise return required by 4:00 pm on the first working day after the end of your tobacco excise period.

^[186] You are required to lodge a return even if you do not manufacture any excisable tobacco goods during the period.

^[187] ATO Interpretative Decision ATO ID 2004/114 (Withdrawn) Payment of excise duty: lodgment of periodic settlement permissions - public holidays . Paragraph 1.21 of the Explanatory Memorandum to the Excise Amendment (Reducing Business Compliance Burden) Bill 2011.

^[188] ATO Interpretative Decision ATO ID 2004/113 (Withdrawn) Payment of Excise Duty: Periodic settlement permission returns .

^[189] section 67 of theExcise Act.

^[190] Section 61 of the Excise Act.

^[191] Paragraphs 120(1)(iv) and 120(2)(b) of the Excise Act.

^[192] Subsection 120(3) of the Excise Act.

^[193] Section 54 of the Excise Act.

^[194] Section 78 of the Excise Act.

^[195] Clause 2 of Schedule 1 to the Excise Regulation.

^[196] Item 1 of the table in clause 2 of Schedule 1 to the Excise Regulation.

^[197] Item 2 of the table in clause 2 of Schedule 1 to the Excise Regulation.

^[198] Item 5 of the table in clause 2 of Schedule 1 to the Excise Regulation.

^[199] Item 6 of the table in clause 2 of Schedule 1 to the Excise Regulation.

^[200] Item 6(b) of the table in clause 2 of Schedule 1 to the Excise Regulation.

^[201] Item 3 of the table in subclause 1(1) of Schedule 1 to the Excise Regulation.

^[202] Item 5 of the table in subclause 1(1) of Schedule 1 to the Excise Regulation.

^[203] Subsection 160A(1) of the Excise Act.

^[204] Item 7 of the table in subclause 1(1) of Schedule 1 to the Excise Regulation.

^[205] Subsection 10(2) of the Excise Regulation.

^[206] Item 13 of the table in subclause 1(1) of Schedule 1 to the Excise Regulation.

^[207] Section 11 of the Excise Regulation.

^[208] Section 79 of the Excise Act and Part 3 of the Excise Regulation.

^[209] Subsection 16(1) of the Excise Regulation.

^[210] Subsection 16(2) of the Excise Regulation.

^[211] Subsection 16(3) of the Excise Regulation.

^[212] Section 80 of the Excise Act.

^[213] Section 160A of the Excise Act.

^[214] Section 64 of the Excise Act.

^[215] Clause 2 of Schedule 1 to the Excise Regulation.

^[216] Section 55 of the Excise Regulation.

^[217] Section 10 of the Excise Regulation.

^[218] Section 11 of the Excise Regulation.

^[219] Section 20 of the Excise Regulation.

^[220] Item 2 of the table in subsection 16(1) of the Excise Regulation.

^[221] Item 3 of the table in subsection 16(1) of the Excise Regulation.

^[222] Paragraph 120(1)(iv) and 120(2)(b) of the Excise Act.

^[223] Paragraph 120(1)(vi) of the Excise Act.

^[224] For example, a decision not to issue a movement permission under section 61A of the Excise Act.

^[225] Objections are governed by Part IVC of the TAA.

^[226] These are conducted in the Administrative Appeals Tribunal or the Federal Court.

^[227] Section 39Q of the Excise Act.

^[228] Paragraph 162C(1)(c) of the Excise Act.

^[229] Paragraph 162C(1)(i) of the Excise Act.

^[230] Paragraph 162C(1)(j) of the Excise Act. And subsection 14(3) of the Excise Regulation.

^[231] Section 14ZU of the TAA.

^[232] Section 359-5 of Schedule 1 to the TAA.

^[233] Section 359-10 of Schedule 1 to the TAA.

^[234] Section 357-60 of Schedule 1 to the TAA.

^[235] Section 359-25 of Schedule 1 to the TAA.

^[236] Section 359-55 of Schedule 1 to the TAA.

^[237] Section 359-60 of Schedule 1 to the TAA and section 155 of the Excise Act.

^[238] Section 5 of the Excise Act and section 4D of the Crimes Act 1914.

^[239] Section 127A of the Excise Act.

^[240] Section 116 of the Excise Act.

^[241] Section 151 of the Excise Act.

^[242] Section 129B of the Excise Act.

^[243] Subsections 117(2) and 117B(2) of the Excise Act.

^[244] Section 129B of the Excise Act.

^[245] Section 129D of the Excise Act.

^[246] Section 129F of the Excise Act.

^[247] Section 6B of the Excise Act.

^[248] Note the legislation uses the term 'delivered for home consumption' (see, for example, sections 61 and 61C of the Excise Act).

^[249] See R v Lyons [1906] HCA 17; Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20 ( Southern Shipping ); Carmody v FC Lovelock Pty Ltd [1970] HCA 35; Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2008] FCA 1951.

^[250] The term used in section 58 of the Excise Act is 'entry for home consumption'.

^[251] Prefatory notes to the Schedule to the Excise Tariff Act.

^[252] Subsection 4(6) of the Excise Act.