EXPLANATORY STATEMENT
EXCISE REGULATIONS (AMENDMENT)
STATUTORY RULES 1990 NO. 236
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS
Section 164 of the Excise Act 1901 (the Act) provides in part that “(1) The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act…”
Statutory Rules 1989 No.307 amended the Excise Regulations (the Regulations) to create a new refund circumstance to enable a refund of excise duty to be made where a product on which excise duty has been paid has been withdrawn from the market at the request of the Government.
Following the Government’s representations concerning the danger posed to young people by the “Kix” range of drinks, Carlton Wines and Spirits (Australia) Pty Ltd took the commendably responsible action of withdrawing the entire stock from the market, at a significant financial loss to the company. The new refund circumstance was specifically designed to enable the payment of a refund of excise duty which the company had already paid in respect of the withdrawn “Kix” product.
Regulation 54A confers a discretion upon the Comptroller-General to be satisfied of the destruction of any product which is withdrawn in accordance with the new refund circumstance.
The Senate Standing Committee on Regulations and Ordinances has expressed its concern that the discretion in Regulation 54A is not subject to review, and the Committee feels it should be in view of its potential to be exercised adversely to a person.
The discretion has only in fact been exercised once (in the “Kix” case), and on that occasion in a manner beneficial to the applicant. However, the Committee’s comments about the potential for abuse are acknowledged and it is now proposed to repeal the regulation.
This Statutory Rule will amend the Excise Regulations to repeal regulation 54A, and to make other minor amendments consequential upon that repeal.
The amendments are explained in greater detail in the Attachment to this Statement.
ATTACHMENT
Proposed Amendments to the Excise Regulations
Regulation 1 will amend regulation 50 of the Regulations as follows:
Paragraph 50(1)(db) and subsection 50(2A) of the Regulations both acknowledge the discretion in regulation 54A by providing that goods may be “taken to have been returned”;
The discretion is removed by Regulation 3 which repeals regulation 54A, and it is therefore appropriate to remove the above references to that discretion;
paragraph (a) omits a reference to the discretion from sub-paragraph (1)(db)(ii)(B);
paragraph (b) omits subregulation (2A).
Regulation 2 will amend regulation 54 of the Regulations which provides for the supervision of the destruction of goods required to be destroyed as a precondition for eligibility for a refund of excise duty under regulation 50;
paragraph (a) amends subregulation (1) to provide that in future goods to which paragraph 50(1)(db) of the regulations applies must be destroyed under supervision of the Australian Customs Service as a precondition for eligibility for a refund of excise duty under that paragraph;
paragraph (b) amends subregulation (2) to provide that the normal supervision fee shall not apply where such goods are destroyed the under supervision of the Australian Customs Service.
The supervision fee is waived in this circumstance to take cognisance of the fact that the goods have been destroyed at the request of the Government.
Regulation 3 repeals regulation 54A to remove the discretion commented upon by the Senate Standing Committee on Regulations and Ordinances.