Finance Act 2010

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Amendment of Part 2 (consolidation and modernisation of general excise law) of Finance Act 2001.

93.— (1) Part 2 of the Finance Act 2001 is amended—

(a) by substituting the following for section 96:

“Interpretation (Part 2).

96.— (1) In this Part—

‘accompanying administrative document’ means the document provided for by Commission Regulation (EEC) No. 2719/92 ¹² of 11 September 1992;

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

‘authorised warehousekeeper’ means, as the case requires, either—

(a) a person in the State authorised by the Commissioners, in accordance with section 109, to produce, process, or hold excisable products in a tax warehouse, or to dispatch and receive consignments of excisable products to and from a tax warehouse, in the course of business, under a suspension arrangement, or

(b) a person in another Member State, authorised by the competent authorities of that Member State to dispatch and receive consignments of excisable products to and from a tax warehouse, in the course of business, under a suspension arrangement;

‘Commissioners’ means the Revenue Commissioners;

‘ Directive ’ means Council Directive No. 2008/118/EC ¹³ of 16 December 2008;

‘European Union’ means the territory of the Union as defined by the Treaty on the Functioning of the European Union and, in particular, Article 355 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 Åland Islands;

‘excise law’ means the statutes that relate to the duties of excise and the instruments relating to those duties made under statute;

‘exempt consignee’ means, as the case may be, either—

(a) a consignee in the State who, in respect of a consignment, qualifies for relief under section 104(1), and who has been granted a certificate to that effect by the Commissioners, or

(b) a consignee in another Member State who, in respect of a consignment, qualifies for relief in accordance with paragraph 1 of Article 12 of the Directive, and who has been granted a certificate to that effect by the competent authority of that Member State;

‘free warehouse’ has the same meaning as it has in Article 166 of Council Regulation (EEC) No. 2913/92 of 12 October 1992 ¹⁴ ;

‘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 European Union;

‘mineral oil’ has the same meaning as it has in paragraph (d) of section 97(1);

‘non-State vendor’ means a person in another Member State who sells excisable products, released for consumption in that Member State, to a private individual resident in the State, for the personal use of that private individual, and who dispatches or transports such products, directly or indirectly, to such private individual;

‘ officer ’, except in Chapter 4, means an officer of the Commissioners;

‘prescribed’ means prescribed by regulations made by the Commissioners under section 153;

‘prohibited goods’ has the same meaning as it has in either—

(a) section 94 of the Finance Act 1999 , or

(b) section 73 (as amended by the Finance Act 2005 ) of the Finance Act 2003 ;

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

‘registered consignee’ means, as the case requires, either—

(a) a person, other than an authorised warehousekeeper or an exempt consignee, authorised by the Commissioners, in accordance with section 109J(3), to receive, in the course of business, consignments of excisable products from another Member State under a suspension arrangement, or

(b) a person in another Member State, other than an authorised warehousekeeper or an exempt consignee, authorised by the competent authority of that Member State, to receive, in the course of business, consignments of excisable products from another Member State under a suspension arrange-ment;

‘registered consignor’ means, as the case requires, either—

(a) a person, other than an authorised warehousekeeper, who is authorised by the Commissioners in accordance with section 109A to consign, in the course of business, excisable products to another Member State under a suspension arrangement, upon their release for free circulation in accordance with Article 79 of Council Regulation (EEC) No. 2913/92, or

(b) a person, other than an authorised warehousekeeper, who is authorised by the competent authorities of another Member State, to consign, in the course of business, excisable products from that other Member State under a suspension arrangement, upon their release for free circulation in accordance with Article 79 of Council Regulation (EEC) No. 2913/92;

‘simplified accompanying document’ means the simplified accompanying document provided for in Commission Regulation (EEC) No. 3649/92 of 17 December 1992 ¹⁵ ;

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

‘ State vendor ’ means a person established in the State who sells excisable products, released for consumption in the State, to a private individual in another Member State for the personal use of that private individual, and who dispatches or transports such products, directly or indirectly, to such private individual;

‘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 as an agent on behalf of persons delivering excisable products from another Member State;

‘tax warehouse’ means, as the case requires, either—

(a) a premises or place approved by the Commissioners under section 109, where excisable products may be produced, processed, held, received or dispatched under a suspension arrangement by an authorised warehousekeeper in the course of business, or

(b) a premises or place approved by the competent authority of another Member State, where excisable products may be 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 (c) of section 97(1);

‘vehicle’ means a mechanically propelled vehicle or any other conveyance, and includes any container, trailer, tank or any other thing, which—

(a) is or may be used for the storage of goods in the course of carriage, and

(b) is designed or constructed to be placed on, in or attached to any such vehicle or other conveyance;

‘ wine ’ has the same meaning as it has in section 73 of the Finance Act 2003 .

(2) A word or expression that is used in this Part and which is also used in the Directive has, unless a meaning is provided by subsection (1) or section 109B or the contrary intention otherwise appears, the same meaning in this Part as it has in the Directive.”,

(b) by substituting the following for section 98:

“Importation from outside territory of European Union.

98.— The Commissioners may require that, on the importation of excisable products from outside the territory of the European Union, the person who declares such products for free circulation in accordance with Article 79 of Council Regulation (EEC) No. 2913/92 shall provide such information as they require for the correct accounting for, and payment of, any excise duty that is payable on such products.”,

(c) by inserting the following after section 98:

“Release for consumption.

98A.— (1) In this Part ‘release for consumption’ means—

(a) any release, including irregular release, of excisable products from a suspension arrangement,

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

(c) any importation, including irregular importation, of excisable products, except where, in the case of a regular importation, the excisable products are, immediately upon importation, placed under a suspension arrangement.

(2) Where a consignment is to be delivered to a registered consignee or exempt consignee under section 109J(1), that consignment is released for consumption when it is so received by that consignee, or when it is delivered in accordance with section 109J(2).

(3) Any excisable products that are held otherwise than under a suspension arrangement have been released for consumption under subsection (1).

(4) Without prejudice to subsection (1), excisable products shall be deemed not to have been released for consumption where they are shown to the satisfaction of the Commissioners to have been lost—

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

(b) in the course of movement to, from or within the State,

under a suspension arrangement, and where such loss is shown to their satisfaction to have been—

(i) due to unforeseen circumstances or force majeure, or

(ii) a loss inherent in the nature of the excisable products, or

(iii) the result of destruction in accordance with such procedures as the Commissioners may require.

(5) For the purposes of subsection (4) excisable products are destroyed where they are rendered unusable as excisable products.

(6) Except where subsection (4) applies, a shortage or loss of excisable products under a suspension arrangement is a release for consumption, and such products are, accordingly, 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.

(7) For the purposes of subsection (1)(a), an irregular release of excisable products from a consignment under a suspension arrangement is a release for consumption in the State only where that irregular release has occurred in the State or is, in accordance with prescribed criteria, deemed to have so occurred.”,

(d) by substituting the following for section 99:

“Liability of persons.

99.— (1) An authorised warehousekeeper is liable for payment of the excise duty on excisable products released from a tax warehouse by such authorised warehousekeeper—

(a) for consumption, or

(b) for delivery under a suspension arrangement.

(2) The liability under subsection (1)(b) is fully or partly discharged where, and to the extent that, the excisable products have been (as the case may be)—

(a) received into another tax warehouse in the State,

(b) received in another Member State by a consignee referred to in section 109E(2),

(c) exported from the European Union,

and evidence to that effect is received within the prescribed time and in the prescribed manner.

(3) A registered consignor is liable for payment of the excise duty on any consignment made by such registered consignor under section 109E(1)(b), and that liability is fully or partly discharged where, and to the extent that, evidence that the consignment has ended is received within the prescribed time and in the prescribed manner.

(4) A registered consignee is liable for payment of excise duty on excisable products delivered to such consignee under a suspension arrangement.

(5) Without prejudice to the liability of any person under subsection (1), (3), or (4), where the irregular release of excisable products from a suspension arrangement gives rise to a liability to excise duty, any person who knowingly participated in that irregular release is liable for payment of that excise duty.

(6) A tax representative, acting on behalf of a non-State vendor in accordance with section 109U, is liable for the payment of the excise duty on excisable products delivered to the State by or on behalf of such non-State vendor.

(7) Where excisable products are imported into the State from outside the European Union, and the products are not then placed under a suspension arrangement, the person liable for payment of the excise duty is—

(a) the person who declares such products for free circulation, in accordance with Article 79 of Council Regulation (EEC) No. 2913/92, or

(b) where the excisable products are not declared for free circulation—

(i) any person who imports the products, and

(ii) any person who arranged for the importation of the products, or on whose behalf such importation was arranged.

(8) Where excisable products are produced, otherwise than under a suspension arrangement in a tax warehouse, the person liable for payment of the excise duty is—

(a) the producer of the excisable products, and

(b) any person who arranged for the production, or on whose behalf the production was carried out.

(9) Where any person, otherwise than under a suspension arrangement, has—

(a) sold or delivered, or

(b) kept for sale or delivery,

excisable products on which the appropriate excise duty has not been paid, then—

(i) such person,

(ii) any other person on whose behalf such excisable products have been so sold, kept, or delivered, and

(iii) any person to whom such products have been delivered,

is liable for payment of the excise duty on such excisable products.

(10) Where any person has received excisable products on which excise duty has been relieved, rebated, repaid, or charged at a rate lower than the appropriate standard rate subject to a requirement that such excisable products are used for a specific purpose or in a specific manner, and where—

(a) such requirement has not been satisfied, or

(b) any requirement of excise law in relation to the holding or delivery of such excisable products has not been complied with, and it is not shown, to the satisfaction of the Commissioners, that the excisable products have been used, or are held for use, for such purpose or in such manner,

then the person who has received such excisable products, or who holds them for sale or delivery, is liable for payment of the excise duty on such products at the rate appropriate to them, without the benefit of any such relief, rebate, repayment or lower rate.

(11) Where under subsections (1) to (10) more than one person is, in a particular case, liable for payment of an excise duty liability, such persons are jointly and severally liable.

(12) Subsections (1) to (11) are without prejudice to the liability of excisable products to excise duty, or their liability to forfeiture, under excise law.”,

(e) by substituting the following for section 100:

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

100.— (1) 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 brought into the State.

(2) Subsection (1) shall not apply to any excisable products that have been released for consumption in another Member State and which are held on board a boat or aircraft making a sea crossing between another Member State and the State, where such excisable products are not available for sale or supply while such boat or aircraft is within the territory of the State.

(3) Subsection (1) shall not apply to excisable products that are brought into the State under cover of the simplified accompanying document, while such products remain under such cover.”,

(f) by deleting section 102,

(g) in section 104 by substituting the following for subsection (1):

“(1) Without prejudice to any other relief from excise duty that may apply, and subject to such conditions as the Commissioners may prescribe or otherwise impose, a full relief from excise duty shall be granted on any excisable products that are shown to the satisfaction of the Commissioners to be 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,

(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,

(d) for export or re-export from the State to a place outside the European Union, 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, and

(e) to a tax-free shop at an airport for supply to passengers travelling to a destination outside of the European Union.”,

(h) in section 105 by deleting paragraphs (d) and (e) of subsection (1),

(i) in section 105C (inserted by section 98 of the Finance Act 2003 ) by deleting subsection (1),

(j) in section 105D by deleting the definition of “excise law” in subsection (1),

(k) by deleting section 106,

(l) in section 108A (inserted by section 69 of the Finance Act 2008 ) by substituting the following for paragraph (b) of subsection (1):

“(b) the holding of excisable products under a suspension arrangement, or on which the appropriate rate of excise duty has not been paid.”,

(m) in section 109 by substituting the following for paragraphs (b) and (c) of subsection (7):

“(b) Without prejudice to paragraph (a) a tenant shall, at a level specified in the authorisation document, provide security for any excisable products to be received by such tenant as a consignee under a suspension arrangement,

(c) Any authorised warehousekeeper who dispatches excisable products from a tax warehouse under a suspension arrangement shall, before any such dispatch, provide security, valid throughout the European Union, at a level specified in the authorisation document, for the excise duty on such products.”,

(n) by inserting the following after section 109:

“Authorisation of registered consignors.

109A.— (1) In this section—

‘applicant’ means a person who has applied in writing for authorisation under subsection (2);

‘authorised’ means authorised as a registered consignor under this section;

‘conditions of authorisation’ means the conditions referred to in subsection (2).

(2) The Commissioners may, under this section, authorise a person who has applied to them in writing as a registered consignor—

(a) for consignments of specific types of excisable products, and

(b) for such period, and subject to such conditions as they may think fit to impose in any particular case.

(3) (a) An applicant shall only be authorised where it is shown to the satisfaction of the Commissioners that such applicant or, where the applicant is a company, any director or person having control of such company, within the meaning of section 11 of the Taxes Consolidation Act 1997 , can satisfy the conditions of authorisation.

(b) No applicant shall be authorised who does not hold a current tax clearance certificate issued under section 1094 of the Taxes Consolidation Act 1997 .

(c) No applicant shall be authorised where such applicant or, where the applicant is a company, any director or person having control of the company within the meaning of section 11 of the Taxes Consolidation Act 1997 , has in the 10 years prior to the application been convicted of any indictable offence under the Acts referred to in section 1078(1) of that Act, or any corresponding offence under the law of another Member State.

(4) Before any excisable products are consigned by a registered consignor, that registered consignor shall provide security, valid throughout the European Union, at a level specified in the authorisation document, for the excise duty on such consignment.

(5) A registered consignor shall inform an officer of any changes or proposed changes that are relevant to the conditions of authorisation.

(6) The Commissioners may at any time, following such notice as is reasonable in the circumstances, vary the conditions of authorisation.

(7) Where a registered consignor is a company, the authorisation shall expire immediately upon a change of control of such company, within the meaning of section 11 of the Taxes Consolidation Act 1997 .

(8) Authorisation under this section is at all times subject to the conditions of authorisation, and the Commissioners may revoke an authorisation where the registered consignor—

(a) contravenes or fails to comply with such conditions,

(b) contravenes or fails to comply with any provision of excise law relating to the excisable products in respect of which the authorisation has been granted, or

(c) no longer satisfies the requirements for authorisation.

(9) Where the Commissioners propose to revoke an authorisation, they shall notify the registered consignor concerned in writing of their intention, and afford such registered consignor a period of at least 15 working days from the date of that notification, to make representations to them in relation to the matter.”,

(o) by substituting the following for Chapter 2:

“Chapter 2A

Intra-European Union Movement under a Suspension Arrangement

Interpretation (Chapter 2A).

109B.— In this Chapter—

‘administrative reference code’ means the unique administrative reference to be assigned to the draft electronic administrative document, in accordance with Article 21(3) of the Directive;

‘Commission Regulation’ means Commission Regulation (EC) No. 684/2009 of 24 July 2009 ¹⁶ ;

‘completely denatured alcohol products’ means alcohol products that are exempt from excise duty under Article 27(1)(a) of Council Directive No. 92/83/EEC;

‘ computerised system ’ means the system referred to in Article 1 of Decision No. 1152/2003/EC of the European Parliament and of the Council of 16 June 2003 ¹⁷ ;

‘consignment’ means the single movement of a specific quantity of excisable products under a suspension arrangement;

‘consignor’ means, as the case requires, either—

(a) an authorised warehousekeeper or registered consignor in the State who dispatches a consignment under section 109E(1), or

(b) an authorised warehousekeeper or registered consignor in another Member State who dispatches a consignment;

‘ customs electronic data ’ in respect of a consignment, means the export data that, under Chapter 3 of Title IV of Commission Regulation (EEC) No. 2454/93 of 2 July 1993 ¹⁸ , are to be exchanged between customs authorities using information technology and computer networks;

‘customs office of exit’ means the customs office of exit referred to in Article 793(2) of Commission Regulation (EEC) No. 2454/93;

‘customs office of export ’ means the customs office of export where an export declaration is lodged in accordance with Article 161(5) of Council Regulation (EEC) No. 2913/92;

‘customs suspensive arrangement’ means any one of the special procedures provided for under Council Regulation (EEC) No. 2913/92 relating to the customs supervision to which non-European Union goods are subjected upon their entry into the European Union customs territory, temporary storage, free zones or free warehouses, as well as any of the arrangements referred to in Article 84(1)(a) of that Regulation;

‘designated consignee’ means the authorised warehousekeeper, registered consignee, or exempt consignee, identified as the consignee in the electronic administrative document, or any other document under cover of which a consignment is dispatched;

‘destination Member State’, in respect of a consignment, means the Member State where, as the case may be, the designated consignee, or place of exportation for that consignment, is located;

‘electronic administrative document’ means the electronic administrative document referred to in Article 21(2) of the Directive;

‘exemption certificate’ means, as the case requires, the certificate referred to in paragraph (a) or (b) of the definition of ‘exempt consignee’ in section 96;

‘Member State of dispatch’ means the Member State from which a consignment is dispatched;

‘ paper confirmation of export ’ has the meaning given by section 109N(4);

‘paper confirmation of receipt’ has the meaning given by section 109N(1);

‘ place of exportation ’ means a place where, in accordance with customs procedures, excisable products leave the territory of the European Union;

‘ place of importation ’ means a place where excisable products are released for free circulation in accordance with Article 79 of Council Regulation (EEC) No. 2913/92;

‘ place of direct delivery ’ has the same meaning as it has in Article 17(2) of the Directive;

‘ report of export ’ means a report by means of the computerised system, in accordance with Article 25(1) of the Directive, certifying that a consignment has been exported from the territory of the European Union;

‘ report of receipt ’ means a report by means of the computerised system, in accordance with Article 24(1) of the Directive, certifying that a consignment has been received by a designated consignee;

‘ 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, under Article 40 of the Directive, exempted by the competent authorities of that Member State from the requirements of Chapters III and IV of the Directive;

‘ temporary registered consignee ’ means a registered consignee who receives consignments only occasionally, and whose registration is limited accordingly under section 109J(3).

Product scope (Chapter 2A).

109C.— (1) Subject to subsections (2) and (3), this Chapter applies to all excisable products.

(2) This Chapter applies only to—

(a) those mineral oils specified in paragraph (1) of Article 20of Council Directive No. 2003/96/EC of 27 October 2003 ¹⁹ , or which have, by a decision under paragraph (2) of that Article, been made subject to Chapters III, IV, and Vof Council Directive No. 2008/118/EC,

(b) consignments from small wine producers to the extent provided for in section 109O(2),

(c) consignments of completely denatured alcohol products to the extent provided for in section 109O(1).

(3) This Chapter does not apply to any excisable products that are under a customs suspensive arrangement.

Member State territories, exceptional arrangements (Chapter 2A).

109D.— Without prejudice to the definition of ‘ European Union’ in section 96, a consignment under a suspension arrangement to or from—

(a) the Principality of Monaco shall be treated as a movement to or from France,

(b) San Marino shall be treated as a movement to or from Italy,

(c) the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia shall be treated as a movement to or from Cyprus,

(d) the Isle of Man shall be treated as a movement to or from the United Kingdom,

(e) Jungholz and Mittelberg (Kleines Walsertal) shall be treated as a consignment to or from Germany.

Consignments to another Member State under a suspension arrangement.

109E.— (1) A consignment under a suspension arrangement from a place in the State to another Member State begins when that consignment is dispatched from—

(a) a tax warehouse, where the consignor is an authorised warehousekeeper, or

(b) a place of importation, where the consignor is a registered consignor.

(2) Subject to the relevant provisions of this Chapter, a consignor may dispatch a consignment to—

(a) a tax warehouse, where the designated consignee is an authorised warehousekeeper,

(b) a registered consignee,

(c) a place of exportation, or

(d) an exempt consignee,

in another Member State.

(3) Except where—

(a) in accordance with section 109I(1)(b), a consignment is under cover of a paper document, or

(b) in accordance with section109P, a consignment is dispatched under cover of an accompanying administrative document,

a consignment from a place in the State to another Member State shall be dispatched under the computerised system, and under cover of an electronic administrative document.

(4) The consignor shall ensure that a consignment under cover of the electronic administrative document is accompanied at all times by—

(a) a printed copy of that document, or a commercial document with the same information, and

(b) in the case of a consignment to an exempt consignee, an exemption certificate,

and that such document, and where applicable such certificate, is made available on request to an officer.

Consignment to consignee in another Member State under computerised system.

109F.— (1) For a consignment to a designated consignee in another Member State, a consignor shall submit a draft electronic administrative document, completed in accordance with Article 3 of the Commission Regulation, to the Commissioners.

(2) The Commissioners shall carry out an electronic verification of the data in the draft electronic administrative document by reference to the requirements of the Commission Regulation.

(3) Where the data in the draft electronic administrative document are verified in accordance with subsection (2), the Commissioners shall assign an administrative reference code to it, and forward it without delay to the consignor and to the competent authority of the destination Member State.

(4) Where the data in the draft electronic administrative document cannot be verified in accordance with subsection (2), the Commissioners shall, without delay, advise the consignor accordingly by means of the computerised system.

(5) Where in respect of an electronic administrative document that has, under subsection (3), been forwarded to the competent authority of the destination Member State, the Commissioners receive a report of receipt from that authority, they shall forward that report to the consignor.

Consignment to place of exportation in another Member State under computerised system.

109G.— (1) For a consignment to a place of exportation in another Member State, a consignor shall submit a draft electronic administrative document, completed in accordance with Article 3 of the Commission Regulation, to the Commissioners.

(2) The Commissioners shall carry out an electronic verification of the data in the draft electronic administrative document by reference to the requirements of the Commission Regulation.

(3) (a) Where the data in the draft electronic administrative document are verified in accordance with subsection (2), the Commissioners shall assign an administrative reference code to it, and forward it without delay to the consignor.

(b) Where the data in the draft electronic administrative document cannot be verified in accordance with subsection (2), the Commissioners shall, without delay, advise the consignor accordingly by means of the computerised system.

(4) Where an administrative reference code has been assigned in accordance with subsection (3)(a), and where the export declaration for the consignment is lodged at a customs office of export in another Member State, the Commissioners shall without delay forward the electronic administrative document to the competent authority of that Member State.

(5) Where in respect of a consignment for which an administrative reference code has been assigned in accordance with subsection (3)(a), the Commissioners find that the data in the electronic administrative document do not accord with the customs electronic data for that consignment—

(a) the Commissioners shall advise the consignor accordingly, and

(b) the consignor shall, where required by the Commissioners, ensure that the consignment is halted until such time as the discrepancy is resolved.

(6) Where in respect of an electronic administrative document that has, under subsection (4), been forwarded to the competent authority of another Member State the Commissioners receive a report of export from that authority, they shall forward that report to the consignor.

(7) This section does not apply to any consignment for which customs electronic data are not available.

Cancellation or amendment of electronic administrative document.

109H.— (1) A consignor may only cancel an electronic administrative document where the consignment has not yet been dispatched from (as the case may be) the tax warehouse or place of importation.

(2) Where a consignment has been dispatched, the consignor may by means of the computerised system, in accordance with Article 4 of the Commission Regulation, and subject to verification under (as the case may be) section 109F(2) or 109G(2), amend the destination of the consignment as recorded in the electronic administrative document to any other destination that is allowable under section 109E(2).

(3) Subsection (2) does not apply to any consignment to an exempt consignee.

(4) (a) In the case of a consignment of mineral oil by sea, the Commissioners may, subject to such conditions as they may prescribe or otherwise require, permit the consignor to omit the data concerning the designated consignee from the draft electronic administrative document, where those data have not been determined at the time that document is submitted.

(b) Where paragraph (a) applies, the consignor shall, by means of the computerised system, submit the relevant data to the Commissioners as soon as they are determined, and at the latest when the consignment ends.

Consignment to another Member State where computerised system is unavailable.

109I.— (1) Where the computerised system is unavailable to a consignor, that consignor may, in accordance with subsections (1) and (2) of section 109E, dispatch a consignment where—

(a) the consignor informs the Commissioners in advance, in accordance with such procedures as they may prescribe or otherwise require, of the intention to dispatch and the reason for the unavailability,

(b) the consignment is accompanied by a paper document (referred to as such in this section) containing all the data required for an electronic administrative document.

(2) The Commissioners may prescribe—

(a) the circumstances and situations in which, for the purposes of subsection (1), the computerised system may be considered to be unavailable to a consignor,

(b) the form of the paper document.

(3) The Commissioners may, in any particular case, require that—

(a) a copy of the paper document is sent to them,

(b) the unavailability of the computerised system, and the validity of the paper document, are established to their satisfaction before the consignment is dispatched.

(4) (a) A consignor who has consigned in accordance with subsection (1) shall, as soon as the computerised system is available to that consignor, submit a draft electronic administrative document for the consignment concerned.

(b) From such time as an administrative reference code is assigned to the draft electronic administrative document submitted in accordance with paragraph (a), the consignment is under cover of that document, and subject to the provisions of this Chapter that relate to the computerised system.

(5) Where a consignment is under cover of a paper document, the consignor may, in accordance with such procedures as the Commissioners may prescribe, change the destination for that consignment, as recorded in that paper document, to any other destination that is allowable under section 109E(2).

Consignments to the State under suspension arrangement.

109J.— (1) A consignment from another Member State may be delivered to—

(a) a tax warehouse, where the designated consignee is an authorised warehousekeeper,

(b) a registered consignee, subject to subsection (3),

(c) an exempt consignee, or

(d) a place of exportation,

in the State.

(2) Without prejudice to subsection (1), the Commissioners may, subject to such conditions as they may prescribe or otherwise require, in the case of any consignment for—

(a) a tax warehouse, or

(b) a registered consignee other than a temporary registered consignee,

allow that consignment to be delivered to a place of direct delivery.

(3) For the purposes of subsection (1)(b) a registered consignee shall—

(a) be registered as such by the Commissioners for such periods and subject to such conditions as the Commissioners may prescribe, and in any case where consignments are to be delivered only occasionally, such authorisation may be limited to—

(i) a specified quantity of excisable products,

(ii) a single consignment,

(iii) a single consignor, or

(iv) a specified period,

(b) provide security for the excise duty on every consignment to be received, before such consignment is dispatched,

(c) keep such records as the Commissioners may require.

(4) (a) The Commissioners may at any time for reasonable cause revoke any registration under subsection (3), or vary its terms.

(b) Where the Commissioners propose to revoke a registration under paragraph (a), they shall notify the registered consignee accordingly in writing of their intention, and afford such registered consignee a period of at least 15 working days from the date of that notification, to make representations to them in relation to the matter.

(5) Where, in respect of any consignment under the computerised system to an authorised warehousekeeper or registered consignee, the Commissioners receive an electronic administrative document from the competent authority of the Member State of dispatch, they shall forward that electronic administrative document to that authorised warehousekeeper or registered consignee.

(6) The consignments referred to in subsection (1), and any other consignment from another Member State that enters the territory of the State, shall at all times be under cover of—

(a) an electronic administrative document,

(b) in any case where the computerised system was unavailable at the time of consignment, and Article 26(3) of the Directive applied for the time being, a paper document containing all the data required for an electronic administrative document, or

(c) in any case where section 109P(1) applies, an accompany-ing administrative document.

(7) In the case of a consignment to an exempt consignee under section 109J(1)(c), that consignee shall take all reasonable steps to ensure that, in addition to the document required for that consignment under subsection (6), the consignment is accompanied by a copy of the exemption certificate of the exempt consignee.

Completion of consignment.

109K.— (1) A consignment shall end—

(a) in the case of a consignment to a designated consignee, when that designated consignee has taken delivery of the consignment, and

(b) in the case of a consignment to a place of exportation, when that consignment has left the territory of the European Union.

(2) (a) A report of receipt, report of export, paper confirmation of receipt or paper confirmation of export shall, unless and until there is evidence to the contrary, be evidence that a consignment has ended.

(b) Without prejudice to paragraph (a), the Commissioners may, in any case where evidence under that paragraph is unavailable, accept alternative evidence that a consignment has ended.

Report of receipt.

109L.— (1) (a) Except where section 109N applies, and subject to paragraph (b), where a consignment has been delivered to a designated consignee in accordance with section 109J(1), that designated consignee shall, without delay and no later than 5 working days after the consignment has been received, submit a report of receipt to the Commissioners.

(b) Where a consignment has been delivered to an exempt consignee in accordance with section 109J(1)(c), the Commissioners shall, in accordance with such procedure as they may prescribe or otherwise require, prepare a report of receipt.

(2) The Commissioners shall, by reference to the requirements of the Commission Regulation, carry out a verification of the data in each report of receipt submitted to them.

(3) (a) Where the data in the report of receipt are verified in accordance with subsection (2), the Commissioners shall, by means of the computerised system confirm the registration of that report to the designated consignee, and forward it to the competent authority of the Member State of dispatch.

(b) Where the data in the report of receipt cannot be verified in accordance with subsection (2), the Commissioners shall advise the designated consignee accordingly without delay.

Report of export.

109M.— (1) Where, in the case of a consignment to a place of exportation, the export declaration is lodged at a customs office of export in the State, and where an electronic administrative document has been forwarded to the Commissioners from—

(a) a consignor in the State, in accordance with section 109G and verified in accordance with subsection (2) of that section, or

(b) the competent authority of a Member State of dispatch, in accordance with Article 21.5 of the Directive,

the Commissioners shall, on receipt of an electronic confirmation from the customs office of exit that the consignment has left the territory of the European Union, carry out an electronic verification of the data in that confirmation and, subject to such verification, complete a report of export.

(2) The Commissioners shall forward the report of export—

(a) where paragraph (a) of subsection (1) applies, to the consignor,

(b) where paragraph (b) of subsection (1) applies, to the competent authority of the Member State of dispatch.

Confirmation of receipt and export by alternative means.

109N.— (1) Where a report of receipt cannot be submitted in accordance with section 109L(1), either because—

(a) the computerised system is unavailable to the designated consignee, or

(b) the consignment remains, for the time being under cover of the paper document in accordance with section 109J(6)(b),

the designated consignee shall, between the 15th and 30th day after the consignment has ended, submit to the Commissioners a paper confirmation of receipt containing all the data required for a report of receipt, stating that the consignment has been received.

(2) Where a paper confirmation of receipt has been submitted in accordance with subsection (1), and as soon as paragraph (a) or (b) (as the case may be) of subsection (1) no longer applies, the designated consignee shall submit a report of receipt for the consignment by means of the computerised system in accordance with section 109L(1).

(3) Where—

(a) a paper confirmation of receipt has been submitted to the Commissioners, and

(b) within 30 days of the ending of the consignment, the consignee cannot submit a report of receipt by means of the computerised system,

then the Commissioners shall forward a copy of the paper confirmation of receipt to the competent authorities of the Member State of dispatch.

(4) Where because—

(a) the computerised system is unavailable, or

(b) the consignment remains, for the time being under cover of the paper document in accordance with section 109J(6)(b),

a report of export cannot be forwarded in accordance with section 109M, the Commissioners shall, between the 15th day and 30th day after the consignment has ended, complete a paper confirmation of export containing all the data required for a report of export and forward it, as appropriate to the circumstances of section 109M(2), to the consignor in the State or the competent authority of the Member State of dispatch.

(5) Where, in respect of any consignment to another Member State, the Commissioners receive, otherwise than by means of a report of receipt or a report of export, confirmation from the competent authority of another Member State that a consignment has ended, they shall forward that confirmation to the consignor.

Exceptional procedures.

109O.— (1) Without prejudice to the generality of this Chapter, the provisions of this Chapter that relate to the computerised system shall not apply to consignments under a suspension arrangement of completely denatured alcohol, and such consignments shall, in accordance with Article 5 of Commission Regulation (EEC) No. 3649/92, be under cover of the simplified accompanying document.

(2) Without prejudice to the generality of this Chapter, the provisions of this Chapter that relate to the computerised system shall not apply to consignments of wine produced and dispatched by a small wine producer, and any such consignment shall be in accordance with Commission Regulation (EC) No. 884/2001 of 24 April 2001 ²⁰ , and such procedures as the Commissioners may prescribe.

(3) For any consignment of wine referred to in subsection (2), the designated consignee shall—

(a) in advance of the dispatch of the consignment, inform an officer in writing of the intention to receive it,

(b) provide such evidence as the officer may require that the consignment is from a small wine producer, and

(c) on receipt of the consignment, advise the Commissioners in accordance with such procedures as they may specify.

Transitional arrangements.

109P.— (1) From 1 April 2010 until 31 December 2010, or until such other day as the Minister for Finance may appoint by order—

(a) a consignment to another Member State in accordance with section 109E,

(b) a consignment to the State in accordance with section 109J, or

(c) any other consignment from another Member State that enters the territory of the State,

may be under cover of the accompanying administrative document.

(2) The Commissioners may prescribe—

(a) the circumstances in which a consignment may be dispatched under paragraph (a) of subsection (1),

(b) the procedure for the dispatch of a consignment under the accompanying administrative document,

(c) the procedure for receiving a consignment under the accompanying administrative document.

(3) A consignor shall only dispatch a consignment under cover of the accompanying administrative document to a temporary registered consignee in another Member State, where that temporary registered consignee, in advance of the dispatch, provides such consignor with a document certifying that such temporary registered consignee—

(a) has declared to the competent authority of the destination Member State the intention to receive such consignment, and

(b) has paid or secured the excise duty on such consignment in that Member State.

Chapter 2B

Intra-European Union Movement of Duty-Paid Excisable Products

Interpretation (Chapter 2B).

109Q.— In this Chapter ‘consignment’ means the single movement to a Member State of a specific quantity of excisable products that have been released for consumption in another Member State.

Product scope (Chapter 2B).

109R.— (1) Subject to subsection (2), this Chapter applies to all excisable products.

(2) This Chapter applies only to those mineral oils specified in paragraph (1) of Article 20 of Council Directive No. 2003/96/EC of 27 October 2003 or which have, by a decision under paragraph (2) of that Article, been made subject to Chapters III, IV, and V of Council Directive No. 2008/118/EC.

Member State territories, exceptional arrangements (Chapter 2B).

109S.— Without prejudice to the definition of ‘European Union’ in section 96, a consignment to or from—

(a) the Principality of Monaco shall be treated as a consignment to or from France,

(b) San Marino shall be treated as a consignment to or from Italy,

(c) the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia shall be treated as a consignment to or from Cyprus,

(d) the Isle of Man shall be treated as a consignment to or from the United Kingdom,

(e) Jungholz and Mittelberg (Kleines Walsertal) shall be treated as a consignment to or from Germany.

Consignment to the State of excisable products released for consumption in another Member State.

109T.— (1) Subject to subsection (2), a consignment may be brought into the State only where the person who brings it, or any other person who arranges for it to be so brought—

(a) in advance of the dispatch of the consignment, declares to an officer the intention to bring the consignment, and secures the excise duty,

(b) pays the excise duty on the excisable products consigned,

(c) complies with such conditions as may be prescribed.

(2) Any consignment under subsection (1) shall be accompanied by a simplified accompanying document, and be delivered to the person designated as the recipient in that document.

(3) This section does not apply to any excisable products that are—

(a) relieved from excise duty under section 104(2), or

(b) acquired from a non-State vendor in accordance with section 109U.

Distance selling from another Member State.

109U.— (1) Before the dispatch of a consignment to a private individual in the State, a non-State vendor shall appoint a person established in the State as a tax representative who, under section 99(6), is liable for the excise duty on that consignment.

(2) (a) A tax representative shall be approved as such by the Commissioners for such periods and subject to such conditions, including the level of security to be provided, as the Commissioners may think fit to impose in any particular case.

(b) The Commissioners may at any time for reasonable cause revoke any approval granted under paragraph (a), or vary its terms.

(c) Where the Commissioners propose to revoke an approval under paragraph (b), they shall notify the tax representative concerned in writing of their intention, and afford such tax representative a period of at least 15 working days from the date of that notification, to make representations to them in relation to the matter.

(3) A tax representative shall ensure that—

(a) prior to the dispatch of a consignment, a declaration, in such form as the Commissioners may prescribe, is made to an officer, describing the consignment and designating a premises or place to which it is to be delivered,

(b) prior to the dispatch of a consignment, security is provided for the excise duty on it,

(c) as soon as the consignment is delivered, any excise duty outstanding is paid,

(d) such other requirements, including the keeping of records, as the Commissioners may prescribe, are complied with.

Consignment of excisable products, duty-paid in the State, to another Member State.

109V.— Any person other than a State vendor who dispatches a consignment from the State to another Member State shall—

(a) before the consignment is dispatched—

(i) make a declaration to the Commissioners in such form as they may prescribe or otherwise require, and

(ii) ensure that the consignment is under cover of the simplified accompanying document,

(b) comply with such other requirements, including the keeping of records, as the Commissioners may prescribe.

Distance selling to another Member State.

109W.— A State vendor shall, for any excisable products sold by such State vendor and dispatched to a private individual in another Member State—

(a) before the dispatch—

(i) have registered his or her identity with the office designated by the competent authority of that other Member State for that purpose, and

(ii) guarantee payment of the excise duty due in that other Member State on the consignment,

(b) pay any excise duty outstanding in respect of any such consignment, in that other Member State as soon as the consignment is delivered,

(c) keep records, and provide such information as the Commissioners may require to determine that any such consignment has been in accordance with paragraphs (a) and (b), and to establish an entitlement to a repayment under section 105(1)(b).

Additional requirements.

109X.— (1) In addition to any other requirement of this Chapter or Chapter 2A for use of the simplifying accompanying document, any consignment, other than a consignment from a State vendor or a non-State vendor shall, at all times while within the territory of the State, be under cover of that document.

(2) The Commissioners may prescribe requirements for consignments—

(a) between 2 places in another Member State, by way of the territory of the State,

(b) between 2 places in the State, by way of another Member State.”,

(p) in section 121 by substituting the following for subparagraph (i) of paragraph (a):

“(i) any provision of section 108A, 109, or 109A, or any provision of Chapter 2A, or 2B, or,”,

(q) in section 131 by substituting the following for paragraphs (b), (c) and (d) of subsection (3):

“(b) without prejudice to section 104(2), where excisable products which have been released for consumption in another Member State are found in the State and a requirement specified in subsection (1) of section 109T has not been complied with in respect of such excisable products, any person in whose possession or charge such excisable products are found is presumed, until the contrary is proved, to have contravened or failed to comply with that subsection,

(c) where excisable products to which subsection (3) of section 109U applies are found in the State, and a requirement specified in that subsection has not been complied with in respect of such excisable products, any person in whose possession or charge such excisable products are found is presumed, until the contrary is proved, to have contravened or failed to comply with that subsection,

(d) where excisable products to which section 109J applies are found in the State and a requirement or condition specified in that section or in regulations made under section 153 has not been complied with in respect of such excisable products, any person in whose possession or charge such excisable products are found is presumed, until the contrary is proved, to have contravened or failed to comply with (as the case may be) the requirement or condition concerned.”,

(r) in section 144A by substituting the following for subsection (2):

“(2) Any power, function or duty conferred or imposed on the Commissioners by any provision of section 108A, 109, or 109A, or of Chapter 2A or Chapter 2B, may be exercised or performed on their behalf, and subject to their direction and control, by an officer authorised by them in writing for the purposes of the provision concerned.”,

(s) in subsection (3) of section 145 by substituting the following for paragraphs (b) and (c):

“(b) a refusal to approve a person as a tax representative under section 109U(2), or a revocation under that section of any such approval that has been granted,

(c) a refusal to register a person as a registered consignee under section 109J(3) or a revocation under that section of any such authorisation that has been granted,”,

and

(t) in subsection (3) of section 145 by inserting the following after paragraph (f):

“(g) a refusal to approve a person as a registered consignor under section 109A, or a revocation under that section of any such approval that has been granted,”.

(2) This section comes into operation on 1 April 2010.

¹² OJ No. L276 of 19 September 1992, p.1

¹³ OJ No. L9 of 14 January 2009, p.12

¹⁴ OJ No. L302 of 19 October 1992, p.1

¹⁵ OJ No. L369 of 18 December 1992, p.17

¹⁶ OJ No. L197 of 29 July 2009, p.24

¹⁷ OJ No. L162 of 1 July 2003, p.1

¹⁸ OJ No. L253 of 11 October 1993, p.1

¹⁹ OJ No. L283 of 31 October 2003, p.51

²⁰ OJ No. L128 of 10 May 2001, p.32