Customs and Excise Legislation Amendment Act 1987

Administered by Department of the Treasury

Legislation au C2004A03490 Not in force Act

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No. 81 of 1987

TABLE OF PROVISIONS

PART I—PRELIMINARY

Section

1. Short title

2. Commencement

3. Application

PART II—AMENDMENTS OF THE CUSTOMS ACT 1901

4. Principal Act

5. Interpretation

6. Insertion of new section:

131b. Liability of Commonwealth authorities to pay duties of Customs

7. Refunds etc. of duty

8. Rebate of duty in respect of diesel fuel used for certain purposes

9. Insertion of new sections:

164a. Diesel fuel rebate—notification of sale etc.

164aa. Diesel fuel rebate—payment of penalty in lieu of prosecution

10. Review of decisions

11. Transitional

PART III—AMENDMENTS OF THE EXCISE ACT 1901

12. Principal Act

13. Rebate of duty in respect of diesel fuel used for certain purposes

14. Insertion of new sections:

78aa. Diesel fuel rebate—notification of sale etc.

78ab. Diesel fuel rebate—payment of penalty in lieu of prosecution

15. Review of decisions

16. Transitional

Customs and Excise Legislation Amendment Act 1987

No. 81 of 1987

An Act to amend the Customs Act 1901 and the Excise Act 1901, and for related purposes

[Assented to 5 June 1987]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

PART I—PRELIMINARY

Short title

1. This Act may be cited as the Customs and Excise Legislation Amendment Act 1987.

Commencement

2. (1) Section 1 and this section shall come into operation on the day on which this Act receives the Royal Assent.

(2) Subsection 3 (1) and sections 5 and 6 shall come into operation on 1 July 1987.

(3) Sections 4 and 7 shall be deemed to have come into operation on 14 May 1987.

(4) The remaining provisions shall come into operation on a day to be fixed by Proclamation.

Application

3. (1) The amendment of the Customs Act 1901 made by section 6 does not apply in relation to goods entered for home consumption before 1 July 1987.

(2) The amendments of the Customs Act 1901 made by paragraphs 8 (a) and (b) do not apply in relation to applications for rebate made before the commencement of this subsection.

(3) The amendments of the Excise Act 1901 made by paragraphs 13 (a) and (b) do not apply in relation to applications for rebate made before the commencement of this subsection.

PART II—AMENDMENTS OF THE CUSTOMS ACT 1901

Principal Act

4. The Customs Act 19011 is in this Part referred to as the Principal Act.

Interpretation

5. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definition in its appropriate position determined on a letter-by-letter basis:

“ ‘Commonwealth authority’ means an authority or body established for a purpose of the Commonwealth by or under a law of the Commonwealth (including an Ordinance of the Australian Capital Territory);”.

6. After section 131a of the Principal Act the following section is inserted:

Liability of Commonwealth authorities to pay duties of Customs

“131b. (1) Subject to subsection (2), to the extent that, but for this section, an Act (whether enacted before, on or after 1 July 1987) would:

(a) exempt a particular Commonwealth authority from liability to pay duties of Customs; or

(b) exempt a person from liability to pay duties of Customs in relation to goods for use by a particular Commonwealth authority;

then, by force of this section, the exemption has no effect.

“(2) Subsection (1) does not apply to an exemption if:

(a) the provision containing the exemption is enacted after 30 June 1987; and

(b) the exemption expressly refers to duties of Customs (however described).”.

Refunds etc. of duty

7. Section 163 of the Principal Act is amended by inserting after subsection (1a) the following subsections:

“(1b) A Collector shall refuse to consider an application for a refund of duty paid in respect of goods if:

(a) the goods are not goods in respect of which the same entry has been given under section 36 or 37; or

(b) the fee payable under subsection (1c) in respect of the application has not been paid.

“(1c) Subject to subsection (1d), a fee of $200, or, if a higher amount is prescribed, that higher amount, is payable in respect of an application made after 13 May 1987 for a refund of duty paid in respect of goods.

“(1d) A fee is not payable under subsection (1c):

(a) in the circumstances specified in paragraphs 126 (a), (b), (c), (d), (f), (g), (ga), (h), (j), (k), or (m) of the Customs Regulations as in force at the commencement of this subsection;

(b) where an officer assisted in making up the entry in respect of which the application for a refund of duty is made;

(d) where the duty was paid under protest;

(e) where the duty was paid as a consequence of advice given, or a ruling made, by an officer;

(f) where all duty amounts were paid in good faith;

(g) where the overpayment of duty was beyond the control of the applicant for the refund; or

(h) in such other circumstances as may be specified in the regulations.”.

Rebate of duty in respect of diesel fuel used for certain purposes

8. Section 164 of the Principal Act is amended:

(a) by omitting from paragraph (3) (b) “1,000 litres” and substituting “2,000 litres”;

(b) by omitting subsection (4) and substituting the following subsections:

“(4) A Collector shall not refuse to consider an application made by a person for rebate under this section because only that the quantity of diesel fuel in respect of which the application is made is less than 2,000 litres if the application is the first application by the person for rebate under this section.

“(4a) .Without limiting the regulations that may be made for the purposes of subsection (1), those regulations may provide:

(a) that rebate is not payable to a person in respect of diesel fuel unless the application for the rebate is:

(i) in a form approved by the Comptroller; and

(ii) given to a Collector;

(b) that rebate is not payable to a person in respect of diesel fuel unless the application for the rebate contains particulars required by the regulations relating to any or all of the following:

(i) the sale of the fuel;

(ii) the supply of the fuel;

(iii) the quantity of fuel to which the application relates that is to be used in a particular manner;

(iv) the activities and operations in which the fuel to which the application relates is to be used, including the location of those activities or operations;

(v) the fuel, including the quantity, and dates of delivery, of the fuel, to which documents given with the application relate and the period to which those documents relate;

(vi) the diesel fuel, including the quantity of the fuel, purchased by the applicant since the applicant’s last application;

(vii) the equipment owned or used by the applicant that is operated on diesel fuel;

(viii) the disposal and acquisition by the applicant, since the applicant’s last application, of equipment operated on diesel fuel;

(ix) the persons involved in the use of diesel fuel by the applicant and any licences relating to the use of diesel fuel held by them;

(x) the vehicles, ships and equipment used by the applicant that are operated on diesel fuel and any licences or permits relating to such vehicles, ships or equipment;

(xi) leases connected with the use of diesel fuel by the applicant;

(xii) the road vehicles owned or used by the applicant that operate on diesel fuel;

(c) that a rebate is not payable to a person in respect of diesel fuel unless the application for the rebate contains estimates required by the regulations, being:

(i) estimates, or revised estimates, of the quantity of diesel fuel to be used by the applicant in a particular manner in a year; or

(ii) estimates, or revised estimates, of the percentage of the diesel fuel to be used in a year by the applicant that is represented by the diesel fuel to be used by the applicant in that year in a particular manner;

and the applicant gives a Collector any particulars required by the Collector of the methods of calculating those estimates;

(d) subject to subsection (4b), that a rebate is not payable to a person in respect of diesel fuel purchased by the person unless, when the application for the rebate is given to a Collector, the applicant gives the Collector a document prepared by the seller, and relating to the sale, of the fuel (being an invoice or similar document, or, if the seller does not usually give such a document to purchasers of diesel fuel, a document of a prescribed kind) that contains information:

(i) required by the regulations; and

(ii) of a kind usually contained in invoices; or a certified copy of the document; or

(e) that rebate is not payable to a person in respect of diesel fuel purchased by the person earlier than 12 months before the repeal of a particular regulation.

“(4b) Where regulations for the purposes of subsection (1) provide that a rebate is not payable to a person in respect of diesel fuel unless the applicant for the rebate gives a Collector a document relating to the diesel fuel, then, notwithstanding those regulations, rebate may be granted to an applicant if:

(a) a Collector is satisfied that the applicant is unable to give the document because of circumstances beyond the applicant’s control; and

(b) the applicant has given the Collector a statutory declaration verifying the matters that would be set out in the document.

“(4c) Where a Collector is not satisfied that particulars, or estimates, relating to diesel fuel set out in an application by a person for rebate are correct, the Collector may:

(a) refuse to consider an application by that person for rebate the ascertaining of whose amount could be affected by those particulars or estimates; or

(b) approve the payment, as the only rebate referred to in paragraph (a), of such amount as the Collector, without having regard to those particulars or estimates but having regard to such matters relating to the use of diesel fuel by the person as are prescribed, considers to be appropriate.”;

(d) by omitting subsection (5a) and substituting the following subsections:

“(5a) The Minister may, by notice in writing published in the Gazette, declare that the rate of rebate payable under subsection (1) to a person in respect of any diesel fuel for use in a manner referred to in a paragraph of that subsection and specified in the notice is, on and after a day specified in the notice, a rate specified in the notice, being a rate higher than the rate specified in subsection

(5) in relation to that paragraph, and, where the Minister makes such a declaration, the declaration has effect accordingly.

“(5aa) The rebate payable to a person in respect of diesel fuel purchased by the person for use in a manner referred to in a paragraph of subsection (1) is payable at a rate equal to the average of the rates of rebate in relation to that paragraph in force on the last day of each of the 6 months immediately before the month in which the application for the rebate was received by a Collector, being:

(a) in relation to months ending before the commencement of this subsection—the rates under declarations made under subsection 164 (5a) of this Act as in force immediately before the commencement of this subsection; or

(b) in relation to other months—the rates in force under declarations made under subsection (5a).

“(5ab) Where an average of rates referred to in subsection (5aa) has more than 5 decimal places, the rate equal to that average shall, for the purposes of that subsection, be taken to be:

(a) if the average calculated to 6 decimal places would end in a number less than or equal to 4—a rate equal to the average calculated to 5 decimal places; or

(b) if the average calculated to 6 decimal places would end in a number greater than 4—a rate equal to the average calculated to 5 decimal places increased by 0.00001.”.

9. The Principal Act is amended by inserting after section 164 the following sections:

Diesel fuel rebate—notification of sale etc.

“164a. Where a person who has made an application for rebate under subsection 164 (1) in respect of diesel fuel purchased by the person (whether or not the rebate has been paid) sells or otherwise disposes of the fuel, the person shall, within 21 days after the sale or disposal of the fuel, give a Collector particulars in writing of the sale or disposal.

Penalty: A fine not exceeding 5 times the amount of the rebate applied for in respect of the fuel of whose sale or other disposal particulars were required to be, and were not, given and not less than 2 times that amount.

Diesel fuel rebate—payment of penalty in lieu of prosecution

“164aa. (1) Where a person:

(a) knowingly or recklessly obtains rebate referred to in subsection 164 (1) which is not payable; or

(b) in contravention of section 164a, fails to notify a Collector of the sale or other disposal of diesel fuel;

an officer may serve on the person a notice in writing:

(i) repayment of that amount; and

(ii) payment of a penalty equal to 3 times that amount;

(d) where paragraph (b) applies—specifying the diesel fuel of whose sale or other disposal there has been a failure to notify the Collector and demanding:

(i) repayment of the amount of any rebate that has been paid under subsection 164 (1) in relation to that fuel and that was not payable; and

(ii) payment of a penalty equal to 3 times the amount of rebate applied for in respect of that fuel;

(e) setting out the terms of, or adequate particulars of the provisions of, subsections (2) and (3); and

(f) specifying the address at which payment of the amount demanded may be made under subsection (2).

“(2) Where:

(a) a notice is served on a person under subsection (1) in relation to obtaining rebate or failing to notify a Collector of the sale or other disposal of diesel fuel; and

(b) the person pays to the Collector, at the address specified in the notice and within 21 days after the day on which the notice was served, the amounts demanded in the notice;

proceedings shall not be brought for an offence against this Act in relation to obtaining the rebate or failing to notify, as the case may be.

“(3) Where:

(a) a notice is served on a person under subsection (1);

(b) an amount of rebate under subsection 164 (1) is, or is likely to become, payable to the person within 12 months after the day on which the notice was served;

(c) the person gives to a Collector, at the address specified in the notice and within 21 days after that day, a written waiver of:

(i) where the amount referred to in paragraph (b) does not exceed the amounts demanded in the notice—the right to receive as rebate under subsection 164 (1) the whole of the amount referred to in paragraph (b); or

(ii) in any other case—the right to receive as rebate under subsection 164 (1) so much of the amount referred to in paragraph (b) as is equal to the amounts demanded in the notice; and

(d) the amount to which the waiver relates would, but for this subsection, have been paid;

then:

(e) the person shall be deemed to have paid to the Collector in accordance with paragraph (2) (b) an amount equal to the amount of rebate under subsection 164 (1) the entitlement to which has been so waived; and

(f) the person’s entitlement to be paid rebate under subsection 164 (1) is reduced by that amount.”.

Review of decisions

10. Section 273ga of the Principal Act is amended by inserting after paragraph (1) (ha) the following paragraph:

“(hb) a decision of a Collector for the purposes of subsection 164 (4c);”.

Transitional

11. Notwithstanding the Principal Act or the amendments made by this Act, where an application for a rebate payable under subsection 164 (1) of the Principal Act in respect of diesel fuel purchased for use in a manner referred to in a paragraph of that subsection was made, and not disposed of, before the commencement of this section, the rate of the rebate is the rate in relation to that paragraph under subsection 164 (5) or a declaration made under subsection 164 (5a) of the Principal Act that was the rate in force on the day shown on the invoice or other document relating to the sale of the fuel as the day of purchase of the fuel.

PART III—AMENDMENTS OF THE EXCISE ACT 1901

Principal Act

12. The Excise Act 19012 is in this Part referred to as the Principal Act.

Rebate of duty in respect of diesel fuel used for certain purposes

13. Section 78a of the Principal Act is amended:

(a) by omitting from paragraph (3) (b) “1,000 litres” and substituting “2,000 litres”;

(b) by omitting subsection (4) and substituting the following subsections:

“(4a) Without limiting the regulations that may be made for the purposes of subsection (1), those regulations may provide: