Commonwealth Numbered Regulations - Explanatory Statements

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EXCISE REGULATIONS (AMENDMENT) 1991 NO. 383

EXPLANATORY STATEMENT

STATUTORY RULES 1991 No. 383

EXCISE ACT 1901

EXCISE REGULATIONS (AMENDMENT)

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 "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 or for the conduct of any business relating to the Excise and ..."

The Statutory Rules amend the Excise Regulations ("the Regulations") by inserting a new refund circumstance to enable persons covered by a Status of Forces Agreement (SOFA) to be eligible for a refund of duty on goods used by then, or sold to them.

Background

Section 78 of the Act provides, in part, that refunds of excise duty may be allowed in respect of excisable goods in such circumstances and subject to such conditions and restrictions as are prescribed. Regulation 50 then lists the prescribed circumstances where a refund of excise duty may be obtained.

Item 13(B) of the Excise Tariff Act 1921 currently permits the duty-free entry of excisable goods which are for use by or for sale to persons covered by a Status of Forces Agreement between Australia and another country, as prescribed by Departmental By-Laws. The relevant By-Law, By-Law No. 112 (copy attached) provides that the goods must be for the use of such persons only and are not to be resold in Australia to persons not covered by a SOFA.

       By-Law 112 was gazetted on 19 November 1991.

British Petroleum (BP) has supplied duty-paid fuel to the United States Navy at Exmouth in Western Australia since 1 July 1989. Some of the fuel is for official government use and some is for use by US Navy personnel who operate under SOFA.

The fuel supplied for the official use of the US Navy is eligible for duty-free entry under Item 13(A) of the Excise Tariff Act 1921 and is therefore eligible for a refund under paragraph 50(1)(u) of the Regulations. The fuel supplied for use by US Navy personnel who operate under SOFA is eligible for duty-free entry under Item 13(B) of the Excise Tariff Act 1921, but previously there was no refund circumstance to enable a refund on this duty-paid fuel.

The regulations remedied this anomaly as follows:

Regulation 1 - Commencement

Subregulation 1.1 provides that the regulations shall be taken to have commenced on 1 July 1989, which was the date when BP first supplied duty-paid fuel to the US Navy at Exmouth.

       This retrospectivity does not offend sub-section 48(2) of the Acts Interpretation Act 1901 as it confers a benefit upon BP and does not impose any liabilities on any person.

Regulation 2 - Amendment

Subregulation 2.1 is a formal provision which provides that the Excise Regulations are amended as set out in these regulations.

Regulation 3 - Regulation 50 (Circumstances under which remissions, rebates and refunds are made)

Subregulation 3.1 provides for a minor technical amendment to sub-regulation 50(1) by adding 'or' to the end paragraphs 50(1)(a) to 50(1)(t) to ensure subregulation 50(1) conforms with modern drafting style.

Subregulation 3.2 inserts a new refund circumstance to enable a refund of excise duty where duty has been paid on excisable goods which are eligible for duty-free entry under Item 13(B) of the Excise Tariff Act 1921.

EXCISE ACT 1901

EXCISE BY-LAW NO. 112

I, KEITH OWEN STILLING, delegate of the Comptroller-General of Customs, hereby make the following By-law under the Excise Act 1901.

Citation

1.       This By-law may be cited as Excise By-law No. 112.

Commencement

2.       This By-law shall take effect on and from 1 July 1989.

Item 13B of the Schedule to the Excise Tariff Act 1921

3.       Item 13B of the Schedule to the Excise Tariff Act 1921 applies to goods for sale to, or for use by a person covered by an Agreement as specified in that item provided that the goods are for the use of such a person only and are not to be resold in Australia to a person not covered by such an Agreement.

4.       Excise By-law No. 35 is repealed.

Dated this                     day of November 1991.

K.O. STILLING
Delegate of the Comptroller-General of Customs


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