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7 2001

FINANCE ACT, 2001

PART 2

Excise

Consolidation and Modernisation of General Excise Law

Chapter 1

Interpretation, Liability and Payment

Interpretation (Part 2).

96. —In this Part, except where the context otherwise requires or where otherwise provided—

“Appeal Commissioners” has the meaning assigned to it by section 850 of the Taxes Consolidation Act, 1997 ;

“authorised warehousekeeper” means a person authorised by the Commissioners to produce, process, hold, receive or dispatch in the course of his or her business, excisable products as defined in section 97 under a suspension arrangement;

“Commissioners” means the Revenue Commissioners;

“Community” means the territory of the Community as defined by the Treaty establishing the European Community and, in particular, Article 299 of that Treaty except for the following national territories:

(a) in the case of Germany, the Island of Heligoland and the territory of Büsingen,

(b) in the case of Italy, Livigno, Campione d'Italia and the Italian waters of Lake Lugano,

(c) in the case of the United Kingdom, the Channel Islands,

(d) in the case of Greece, Mount Athos,

(e) in the case of Spain, the Canary Islands, Ceuta and Melilla,

(f) in the case of France, the overseas Departments of the Republic, and

(g) in the case of Finland, the \?\land Islands,

and, for the purposes of this Part, transactions originating in or intended for one of the following national territories are to be treated as originating in or intended for—

(a) France, in the case of the Principality of Monaco;

(b) Germany, in the case of Jungholz and Mittelberg (Kleines Walsertal);

(c) the United Kingdom, in the case of the Isle of Man;

(d) Italy, in the case of San Marino;

“Directive” means Council Directive No. 92/12/EEC of 25 February 19921 ;

“duty document” has the meaning assigned to it by section 115 (2)(c);

“exemption certificate” has the meaning assigned to it by section 117 (3);

“free warehouse” has the same meaning as it has in Article 166 of Council Regulation (EEC) No. 2913/92 of 12 October 19922 ;

“free zone” has the same meaning as it has in Article 166 of Council Regulation (EEC) No. 2913/92 of 12 October 1992;

“information” includes any representation of fact, whether in legible form or otherwise;

“Member State” means a Member State of the Community;

“mineral oil” shall be construed in accordance with paragraphs (g) and (h) of section 97 (1);

“non-registered trader” means a person other than an authorised warehousekeeper or registered trader who may, in the course of his or her business, occasionally receive excisable products from another Member State, subject to compliance with conditions imposed by the Commissioners, under a suspension arrangement;

“non-State vendor” means a person who has his or her place of business in another Member State and who is authorised by the competent authorities of that Member State to sell excisable products which have already been released for consumption in that Member State to private individuals resident in the State for their own personal use, and who dispatches or transports such products directly or indirectly to such persons resident in the State;

“officer”, except in Chapter 4, means an officer of the Commissioners;

“Order of 1975” means the Imposition of Duties (No. 221) (Excise Duties) Order, 1975 (S.I. No. 307 of 1975);

“prescribed” means specified in, or determined in accordance with, regulations made by the Commissioners;

“records” means any books, accounts, documents or other recorded information including information in a computer or in other non-legible form;

“registered trader” means a person other than an authorised warehousekeeper, who is authorised by the Commissioners to receive, in the course of business, excisable products from another Member State under a suspension arrangement;

“release for consumption” means—

(a) any departure, including irregular departure, from a suspension arrangement,

(b) any manufacture, including irregular manufacture, of excisable products outside a suspension arrangement, or

(c) any importation of excisable products, including irregular importation, where such excisable products have not been placed under a suspension arrangement;

“small wine producer” means a person in another Member State who produces on average less than 1,000 hectolitres of wine per year and who is exempted by the competent authorities of that Member State under Article 29 of the Directive from the requirements of Titles II and III of the Directive;

“spirits” has the same meaning as it has in paragraph (a) of section 97 (1);

“State vendor” means a person who is established in the State and who is authorised by the Commissioners to sell excisable products, which have already been released for consumption in the State, for the personal use of private individuals resident in other Member States, and who dispatches or transports such products, directly or indirectly, to such persons in other Member States;

“suspension arrangement” means an arrangement under which excisable products are produced, processed, held or moved, excise duty being suspended;

“tax representative” means a person, established in the State, who is authorised by the Commissioners to act in the State as an agent on behalf of persons delivering excisable products from another Member State;

“tax warehouse” means a premises or place approved by the Commissioners, where excisable products are produced, processed, held, received or dispatched under a suspension arrangement by an authorised warehousekeeper in the course of business;

“tobacco products” has the same meaning as it has in paragraph (f) of section 97 (1);

“vehicle” means a mechanically propelled vehicle or any other conveyance;

“wine” has the same meaning as it has in paragraph (b) of section 97 (1).

Excisable products (Part 2).

97. —(1) For the purposes of this Part the following are excisable products:

(a) spirits chargeable with the duty of excise imposed by paragraph 4(2) of the Order of 1975;

(b) wine chargeable with the duty of excise imposed by paragraph 5(2) of the Order of 1975;

(c) made wine chargeable with the duty of excise imposed by paragraph 6(2) of the Order of 1975;

(d) beer chargeable with the duty of excise imposed by section 90 of the Finance Act, 1992 ;

(e) cider and perry chargeable with the duty of excise imposed by paragraph 8(2) of the Order of 1975;

(f) tobacco products chargeable with the duty of excise imposed by section 2 of the Finance (Excise Duty on Tobacco Products) Act, 1977 ;

(g) until such day as the Minister for Finance may appoint by order under section 109 of the Finance Act, 1999 , for the coming into operation of section 95 of that Act—

(i) mineral hydrocarbon light oil chargeable with the duty of excise imposed by paragraph 11(1) of the Order of 1975,

(ii) hydrocarbon oil, not otherwise liable to a duty of excise, chargeable with the duty of excise imposed by paragraph 12(1) of the Order of 1975,

(iii) gaseous hydrocarbons in a liquid form chargeable with the duty of excise imposed by section 41(1) of the Finance Act, 1976 ,

(iv) additives chargeable with the duty of excise imposed by Regulation 23(1) of the European Communities (Customs and Excise) Regulations, 1992 (S.I. 394 of 1992),

(v) substitute motor fuels chargeable with the duty of excise imposed by section 116(2) of the Finance Act, 1995 ;

(h) from such day as the Minister for Finance may appoint by order under section 109 of the Finance Act, 1999 , for the coming into operation of section 95 of that Act, mineral oil chargeable with the duty of excise imposed by the said section 95.

(2) Without prejudice to sections 145 and 146, in the event of any question or dispute the Commissioners shall determine whether a product—

(a) is properly classified as an excisable product under paragraphs (a) to (h) of subsection (1), or

(b) while prima facie chargeable with a duty of excise, qualifies in whole or in part for any relief from duty under any provision of the law relating to excise.

Application of enactments.

98. —(1) (a)  Subject to paragraph (b) and subsection (2), the provisions of the Customs Acts and of any instrument relating to duties of customs made under statute and not otherwise applied by this Part shall, with any necessary modifications, apply in relation to this Part, in respect of excisable products imported into the State, as they apply in relation to duties of customs.

(b)  Where there is a provision in this Part corresponding to a provision of the Customs Acts or of any instrument relating to duties of customs made under statute, the latter provision shall not apply.

(2) (a)  Subject to paragraph (b), the provisions of the statutes which relate to the duties of excise and the management of such duties and of any instrument relating to the duties of excise made under statute and not otherwise applied by this Part shall, with any necessary modifications, apply in relation to the provision of this Part in respect of excisable products produced in the State as they apply to duties of excise.

(b)  Where there is a provision in this Part corresponding to a provision of the statutes which relate to the duties of excise or of any instrument relating to the duties of excise made under statute, the latter provisions shall not apply.

Suspension arrangements. liability and payment.

99. —(1) Without prejudice to any other provision of the statutes which relate to the duties of excise and of any instrument relating to the duties of excise made under statute concerning the liability of persons to excise duty and the payment of such duty—

(a) an authorised warehousekeeper shall be liable, subject to the procedure for discharge of such liability provided for in subsection (3), for payment of excise duty on excisable products released from a tax warehouse, approved in relation to such warehousekeeper, for delivery to another Member State including delivery to another Member State for export outside the Community,

(b) a registered trader or a non-registered trader shall be liable for payment of excise duty on products received by such a trader under a suspension arrangement and such excise duty shall be chargeable on receipt of such products, and

(c) a tax representative, acting on behalf of persons referred to in paragraph (a) or (b) of subsection (1) of section 113 , shall be liable for the payment of excise duty on excisable products delivered to the State by or on behalf of such persons.

(2) The excise duty referred to in paragraphs (a) to (c) of subsection (1) shall be paid at such time and in such manner as may be prescribed under section 153 .

(3) The liability to excise duty under subsection (1)(a) shall be fully or partly discharged and satisfied and excise duty shall not be payable where, and to the extent that, such excisable products have been fully or partly received by a person or trader referred to in section 115 (2) or have been exported from the Community, and evidence to this effect is received within the prescribed time and in the prescribed manner.

(4) For the purpose of subsection (3), evidence of receipt shall be provided by means of a copy of the accompanying document, referred to in subsection (1) of section 117 , returned duly endorsed—

(a) (i) by such person or trader, and

(ii) in the case of such Member State, as may be specified by the Commissioners in regulations under section 153 , by the authorities of such Member State in which such person or trader has his or her place of business,

or

(b) in the case of exports from the Community, by the authorities of the Member State based at the customs office at the point of departure from the Community,

to the effect that such excisable products have been duly received or exported.

Duties to apply to excisable products released for consumption in another Member State.

100. —Subject to section 104 (2), the duties of excise imposed by the provisions referred to in section 97 shall apply in relation to excisable products released for consumption in another Member State and imported into the State.

All excisable products are liable for all liabilities, penalties and forfeitures of a warehousekeeper.

101. —(1) Where any duty of excise has been charged or become chargeable on any excisable product, and where an authorised werehousekeeper is liable for such duty then—

(a) all excisable products and all ingredients and materials used in the manufacture or processing of such products,

(b) all articles and equipment used either in the manufacture or processing of such excisable products or in the course of business relating to them,

which are in the possession or custody of such authorised warehousekeeper or any other person acting on his or her behalf, shall be subject and liable to and chargeable with any duty of excise which has been so charged or become chargeable during the time of any such custody or possession.

(2) The products, ingredients, materials, articles and equipment referred to in paragraphs (a) and (b) of subsection (1) shall be subject and liable to all excise penalties and forfeitures incurred by such authorised warehousekeeper during the time of custody and possession referred to in that subsection.

Treatment of excisable products released for consumption.

102. —(1) The liability to excise duty arising when products are released for consumption is to be calculated at the rate applicable to such products at the date of such release for consumption.

(2) Losses, other than those referred to in section 106 , and any shortages of excisable products under a suspension arrangement are liable to excise duty at the rate applicable—

(a) at the time such losses or shortages occurred, where such time can be established to the satisfaction of an officer, or

(b) where such time cannot be so established, at the time such losses or shortages came to the notice of an officer.

and such duty is payable immediately by the person authorised to produce, process, hold, transport, deliver, or receive (as the case may be) such excisable products.

(3) The excise duty referred to in subsections (1) and (2) is to be charged, levied, and paid in the prescribed manner.

Payment.

103. —(1) Except where otherwise required by any provision of the statutes which relate to the duties of excise or any instrument relating to the duties of excise made under statute, any person liable for payment of any duty of excise shall account for and pay such duty at such time and place and to such person as shall from time to time be directed by the Commissioners.

(2) Any person who does not account for and pay any amount of excise duty as required under subsection (1) or under any other provision of the statutes which relate to the duties of excise, or any instrument relating to the duties of excise made under statute, shall forfeit and lose double such amount of excise duty.

Reliefs.

104. —(1) Subject to compliance with any conditions or limitations the Commissioners see fit to impose, the duties of excise imposed by the provisions referred to in section 97 shall not be charged or levied on excisable products delivered—

(a) under diplomatic arrangements in the State,

(b) to international organisations recognised as such by the State, and the members of such organisations based in the State, within the limits and under the conditions laid down by international conventions establishing such organisations or by other agreements, and

(c) for consumption under any agreement entered into between the State and a country other than a Member State where such agreement also provides for exemption from value-added tax.

(2) (a)  Excise duty shall not be chargeable in the State on excisable products released for consumption in another Member State which—

(i) have been acquired by a private individual in such another Member State for his or her own use and not for commercial purposes, and

(ii) are transported into the State by such private individual, and accompanied by him or her during such transportation.

(b)  With the exception of mineral oil imported into the State in the fuel tank of a vehicle or in a portable container with a capacity of not more than 10 litres, subsection (a) shall not apply to mineral oil.

(3) For the purpose of subsection (2) the question of whether excisable products referred to in that subsection are for a private individual's own use or are for commercial purposes shall be determined in accordance with regulations under section 153 .

Repayments.

105. —(1) The Commissioners may, subject to such conditions as they may prescribe under section 153 or otherwise impose, repay or remit any such duties on excisable products where such products—

(a) are released for consumption in the State and are intended for delivery for commercial purposes to another Member State.

(b) are released for consumption in the State and are purchased by a person in another Member State from a State vendor,

(c) cease to be covered by a suspension arrangement, and the duty chargeable on such products on the date of such cessation is less than an amount of duty paid in advance of that date, on such products,

(d) are subject to section 115 and it is shown to the satisfaction of the Commissioners that excise duty has been paid in respect of such products, or

(e) are shown to the satisfaction of the Commissioners to have been exported or re-exported from the State to a place outside the Community or shipped for use as stores on board a ship or aircraft on a voyage or a flight, as the case may be, from a place in the State to a place outside the State.

(2) In any case of relief under section 104 , effect may be given to such relief by means of repayment.

Remission of losses.

106. —The Commissioners may, in respect of the duties of excise imposed by the provisions referred to in section 97 and, subject to compliance with such conditions as may be prescribed, remit such duties on excisable products under a suspension arrangement which are shown to their satisfaction to have been lost—

(a) during production, processing or holding in the State or transportation to a destination in the State, or

(b) in the course of transportation to the State,

and that such loss was—

(i) due to fortuitous events or force majeure, or

(ii) a loss inherent in the nature of the excisable products in the course of their production, processing, holding or transportation.

General mutual assistance.

107. —(1) In this section—

“authorised officer” means an officer authorised in writing by the Commissioners for the purposes of this section;

“Council Directive” means Council Directive No. 77/799/EEC of 19 December 19771 , as amended by Council Directive No. 79/1070/EEC of 6 December 19792 and Council Directive No. 92/12/EEC of 25 February 19923 .

(2) (a)  The Commissioners and authorised officers may disclose to the competent authorities of another Member State any information concerning excise duties required to be so disclosed by virtue of the Council Directive.

(b)  Neither the Commissioners nor an authorised officer shall disclose any information in pursuance of the Council Directive unless satisfied that the competent authorities of the other Member State concerned are bound by, or have undertaken to observe, rules of confidentiality with respect to the information which are not less strict than those applying to it in the State.

Mutual assistance for the recovery of claims.

108. —(1) (a)  In this section—

“Commission Directive” means Commission Directive No. 77/794/EEC of 4 November 19771 ;

“Council Directive” means Council Directive No. 76/308/EEC of 15 March 19762 , as amended by Council Directive No. 79/1071/EEC of 6 December 19793 and Council Directive No. 92/12/EEC of 25 February 1992.

(b)  A word or expression that is used in this section and is also used in the Council Directive or in the Commission Directive has, unless the contrary intention appears, the same meaning in this section as it has in the Council Directive or the Commission Directive, as the case may be.

(2) The amount of excise duty specified in any request duly made pursuant to the Council Directive by an authority in another Member State, for the recovery in the State of any amount claimed by such an authority pursuant to a claim referred to in Article 2 of the Council Directive, is recoverable in any court of competent jurisdiction by the Minister for Finance and for the purposes of the foregoing the amount is to be regarded as being a debt due to that Minister, by the person against whom the claim is made by such an authority, in respect of a duty or tax under the care and management of the Commissioners or a simple contract debt due by such person to that Minister, as may be appropriate.

(3) The rules laid down in—

(a) Articles 4 to 12 and 14 to 17 of the Council Directive, and

(b) Articles 2 to 21 of the Commission Directive,

shall apply in relation to claims in respect of excise duty referred to in Article 2 of the Council Directive which arise in another Member State and which are the subject of legal proceedings instituted under this section.

(4) In any legal proceedings instituted under this section, any document which is in the form specified in Annex III to the Commission Directive and which purports to be authenticated in the manner specified in Article 11 of that Directive is to be received in evidence without proof of any seal or signature or that any signatory to such document was the proper person to sign it, and such document shall, until the contrary is shown, be sufficient evidence of the facts stated in it.

(5) (a)  Legal proceedings instituted under this section for the recovery of any sum are to be stayed if the defendant satisfies the court that legal proceedings relevant to his or her liability on the claim to which the proceedings so instituted relate are pending, or are about to be instituted, before a court, tribunal or other competent body in another Member State, but any such stay may be removed if the legal proceedings in such Member State are not prosecuted or instituted with reasonable expedition.

(b)  In any legal proceedings instituted under this section—

(i) it is a defence for the defendant to show that a final decision on the claim to which the proceedings relate has been given in favour of such defendant by a court, tribunal or other body of competent jurisdiction in another Member State, and

(ii) in relation to any part of a claim to which such legal proceedings relate, it is a defence for the defendant to show that such a decision has been given in relation to that part of the claim.

(c)  No question shall be raised in any legal proceedings instituted under this section as to the defendant's liability on the claim to which the proceedings relate except as provided in paragraph (b) of this subsection.

(d)  For the purposes of this section, legal proceedings shall be regarded as pending so long as an appeal may be brought against any decision in the proceedings, and for these purposes a decision against which no appeal lies, or against which an appeal lies within a period which has expired without an appeal having been brought, is to be regarded as being a final decision.

Warehousing.

109. —(1) Subject to subsections (2) and (3) the following shall take place only in a tax warehouse—

(a) producing and processing of excisable products, and

(b) holding of excisable products where the proper excise duty has not been paid or remitted.

(2) The provisions of subsection (1)(a) do not apply to—

(a) operations by which a user of a mineral oil makes its re-use possible in his or her own undertaking, provided that the excise duty already paid on such mineral oil is not less than the excise duty which would be due if the re-used mineral oil were again to be liable to excise duty,

(b) operations consisting of mixing or blending of excisable products with other excisable products or other materials, provided—

(i) that the proper excise duty on such excisable products has been paid previously, and

(ii) that the amount paid is not less than the amount of the excise duty which would be chargeable on the mixture or blend.

(3) The Commissioners may, on written application from the person concerned, grant an exemption from subsection (1)(a)

(a) in respect of operations during which small quantities of excisable products are obtained incidentally, and

(b) in such other cases of production or processing of excisable products and subject to such conditions as they may deem fit to impose, but only where—

(i) the proper excise duty on such products has been paid previously, and

(ii) the amount paid is not less than the amount of the excise duty which would be chargeable following such production or processing.

(4) (a)  A person shall only be approved as an authorised warehousekeeper under this section where such person appears to the Commissioners to be able to satisfy such requirements for approval as they may think fit to impose.

(b)  A premises or place shall only be approved as a taxwarehouse—

(i) where such premises or place are used or intended for use for the production, processing, holding, receipt or dispatch of excisable products,

(ii) where such premises or place are used or intended for use for such production or processing and it is owned or occupied by a person licensed for such production or processing under any provision of the statutes relating to the duties of excise and the management of such duties and any instrument relating to the duties of excise made under statute,

(iii) where there has been given to an officer such information as may be required of the warehousekeeper in relation to such premises or place and in relation to all rooms, areas, plant, equipment, machinery and vessels in such premises or place, and

(iv) where such premises or place appears to the Commissioners to satisfy such requirements for approval as they may think fit to impose.

(5) The Commissioners may approve a person, premises or place under this section for such periods, and subject to such conditions (including the giving of security) as they may think fit to impose and the approved person shall comply with any such conditions.

(6) The Commissioners may, at any time for reasonable cause and following such notice as is reasonable in the circumstances—

(a) vary the terms of their approval of any person, premises or place under this section.

(b) amend the extent of the premises or place which is so approved, or

(c) revoke the approval granted if—

(i) an authorised warehousekeeper contravenes or fails to comply with any condition of approval imposed by them under this section, or with any provision of this Part or of regulations made under or for the purposes of such provisions, or

(ii) an approved warehouse fails to comply with any condition of approval imposed by them under this section.

(7) Any person approved as or deemed to be an authorised warehousekeeper and any premises or place approved as or deemed to be a tax warehouse under section 105 of the Finance Act, 1992 , shall be deemed by the Commissioners to be approved as an authorised warehousekeeper or a tax warehouse respectively for the purposes of this section.

1 O.J. No. L76 of 23 March, 1992, p.1

2 O.J. No. L302 of 19 October, 1992, p.32

1 O.J. No. L336 of 27 December, 1977, p.15

2 O.J. No. L331 of 27 December, 1979, p.8

3 O.J. No. L76 of 23 March, 1992, p.1

1 O.J. No. L333 of 24 December, 1977, p.11

2 O.J. No. L73 of 19 March, 1976, p.18

3 O.J. No. L331 of 27 December, 1979, p.10