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3 2003

Finance Act 2003

PART 2

Excise

Chapter 1

Alcohol Products Tax

Interpretation (Chapter 1).

73. —(1) In this Chapter and Schedule 2 except where the context otherwise requires—

“alcohol” means pure ethyl alcohol;

“alcohol product” means beer, wine, other fermented beverage, spirits or intermediate beverage;

“authorised warehousekeeper” means a person authorised by the Commissioners under section 109 of the Finance Act 2001 to produce, process, hold, receive or dispatch alcohol products under a suspension arrangement;

“beer”, subject to section 74 , means—

(a) beer made from malt, and

(b) any beverage containing a mixture of such beer with any non-alcoholic beverage,

in either case exceeding 0.5% vol;

“beer concentrate” means a product, produced from beer, not exceeding 0.5% vol, which is intended for addition to beer as a flavourant or colourant;

“cider and perry” means a beverage exceeding 1.2% vol but not exceeding 15% vol, obtained from the fermentation of apple or pear juice and without the addition of—

(a) any other alcoholic beverage, or

(b) any other beverage or substance which imparts colour or flavour and which, by such addition in the opinion of the Commissioners significantly alters the character of the product;

“CN Code” means a Community subdivision to the combined nomenclature of the European Communities referred to in Article 1 of Council Regulation (EEC) No. 2658/87 of 23 July 19871 in force on 19 October 1992;

“Commissioners” means the Revenue Commissioners;

“denature” means to mix an alcohol product with any substance so as to render the mixture unfit for human consumption and includes to methylate and cognate words shall be construed accordingly;

“Directive” means Council Directive No. 92/83/EEC of 19 October 19922 ;

“intermediate beverage”, subject to section 74 , means any beverage other than beer, wine, or other fermented beverage, the alcoholic content of which is at least partly of fermented origin and which—

(a) in the case of a still beverage exceeds 10% vol,

(b) in the case of a sparkling beverage exceeds 13% vol,

and which in either case does not exceed 22% vol;

“materials” means any ingredient or other substance intended to be used in the production of, or for incorporation in, any alcohol product;

“medicinal product” has the same meaning as it has in Article 1 of Council Directive No. 65/65/EEC of 26 January 19653 ;

“non-alcoholic beverage” means any beverage not exceeding 0.5% vol;

“officer” means an officer of the Commissioners;

“other fermented beverage”, subject to section 74 , means a beverage other than beer and wine exceeding 1.2% vol which—

(a) has an alcoholic content which is entirely of fermented origin and does not exceed 15% vol, or

(b) has an alcoholic content which is only partly of fermented origin and which—

(i) in the case of a still beverage does not exceed 10% vol,

(ii) in the case of a sparkling beverage does not exceed 13% vol,

and includes any mixture, exceeding 1.2% vol, of such beverage with any non-alcoholic beverage;

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

“production” includes manufacturing, the blending of alcohol products and the blending of any alcohol product with any non-alcoholic beverage or with any other substance, and cognate words shall be construed accordingly;

“prohibited goods” means any machinery, apparatus, equipment, vessel, substance or other thing which is being used, or was used, or is intended to be used in the removal from any alcohol product of any denaturant;

“repealed enactments” has the meaning given in section 83 ;

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

“sparkling” in relation to any beverage means any such beverage which—

(a) is contained in bottles with mushroom stoppers held in place by ties or fastenings, or

(b) which has an excess pressure due to carbon dioxide in solution of three bar or more;

“spirits” means any product which exceeds 1.2% vol and which is—

(a) distilled ethyl alcohol,

(b) an alcoholic beverage the full alcohol content of which is the result of a process of distillation,

(c) any other product falling within CN Code 2207 or 2208, or

(d) any beverage exceeding 22% vol,

and includes any such product which contains a non-alcoholic product, whether in solution or not;

“still” means other than sparkling;

“tax warehouse” means a premises or place approved by the Commissioners under section 109 of the Finance Act 2001 where alcohol products are produced, processed, held, received or dispatched under a suspension arrangement by an authorised warehousekeeper in the course of business;

“wash” means any wort in which fermentation has begun;

“wine”, subject to section 74 , means any beverage exceeding 1.2% vol the alcoholic content of which is entirely of fermented origin—

(a) obtained from the total or partial fermentation of grapes or the must of fresh grapes,

(b) not exceeding 15% vol, or in the case of still wine produced without enrichment, not exceeding 18% vol,

and includes such wine flavoured with plants or aromatic extracts and grape must in fermentation or with fermentation prevented or arrested otherwise than by the addition of spirits;

“wort” means the liquid which is intended for fermentation as part of the process of producing spirits;

“% vol” means alcoholic strength by volume which is the ratio, expressed as a percentage, of the volume of alcohol present in a product to the total volume of the product at a temperature of 20° Celsius.

(2) A word or expression that is used in this Chapter and which is also used in Part 2 of the Finance Act 2001 has, unless a meaning is provided by subsection (1) or the contrary intention otherwise appears, the same meaning in this Chapter as it has in that Part.

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

Qualification to meanings given to certain alcohol products.

74. —Only a product which is classified—

(a) under CN Code 2203, or which is a mixture of such product with any non-alcoholic drink covered by CN Code 2206, is beer,

(b) under CN Code 2204 or 2205, is wine,

(c) under CN Code 2204, 2205 or 2206, is an other fermented beverage or intermediate beverage.

Charging and rates.

75. —(1) In addition to any other duty which may be chargeable, and subject to the provisions of this Chapter and any regulations made under it, a duty of excise, to be known as alcohol products tax, shall be charged, levied and paid at the rates specified in Schedule 2 on all alcohol products—

(a) produced in the State, or

(b) imported into the State.

(2) In the case of spirits produced in the State by a process of distillation, where the quantity of spirits produced by such a process cannot be otherwise determined to the satisfaction of an officer, the Commissioners may charge alcohol products tax on the quantity of alcohol capable of being produced from the wort or wash used in such process, on the assumption that one litre of alcohol is produced for every 8.8 degrees of attenuation, that is to say, for every 8.8 degrees of difference between the highest gravity of the wort and the lowest gravity of the wash before distillation.

Liability and payment.

76. —(1) Liability to alcohol products tax shall arise at the time such products are—

(a) produced in the State,

(b) imported into the State,

(c) cease to be held under a suspension arrangement,

whichever is the later.

(2) The Commissioners may, subject to such conditions for securing the duty as they may prescribe or otherwise impose, permit payment of the duty imposed by section 75 to be deferred to a day not later than the last day of the month succeeding the month in which the duty is payable.

Reliefs.

77. —Without prejudice to any other relief from excise duty which may apply, and subject to such conditions as the Commissioners may prescribe or otherwise impose, a relief from alcohol products tax shall be granted on any alcohol products which are shown to the satisfaction of the Commissioners—

(a) to be intended for use or to have been used in the production of—

(i) any beverage, other than beer, not exceeding 1.2% vol,

(ii) vinegar,

(iii) flavours for the preparation either of foodstuffs or of beverages not exceeding 1.2% vol,

(iv) medicinal products,

(v) foodstuffs, whether such alcohol product is used—

(I) either as a filling in such foodstuff or otherwise,

(II) either directly or as a constituent of semi-finished products for use in the production of such foodstuff,

and where the alcohol contained in such foodstuffs does not exceed 8.5 litres of alcohol per 100 kilogrammes of the product when used in the production of chocolates and 5 litres of alcohol per 100 kilogrammes of the product when used in the production of other foodstuffs, or

(vi) beer concentrate,

(b) to be intended to be denatured in accordance with their requirements, or to have been so denatured,

(c) to have been denatured in accordance with the requirements of another Member State and used in the production of a product not fit for human consumption,

(d) to have been completely denatured in accordance with the requirements of another Member State, where such requirements have been notified to the European Commission and accepted in accordance with paragraphs 3 and 4 of Article 27 of the Directive,

(e) to be intended for use or to have been used for experimental, quality control, scientific or research purposes,

(f) in the case of wine, beer, or other fermented beverage the alcoholic content of which is entirely of fermented origin, to have been produced solely by a private individual in a private premises for consumption by the producer or by the family or guests of such producer, and not to have been produced or supplied for consideration.

Repayment.

78. —(1) In any case of relief under section 77 , effect may be given to such relief by means of repayment.

(2) Subject to such conditions as may be prescribed or otherwise imposed, the Commissioners may remit or repay alcohol products tax on any alcohol products which are shown to their satisfaction—

(a) to have become spoilt, unfit for human consumption or use or unmarketable by reason of quality, and

(b) to have been destroyed or otherwise disposed of in accordance with their requirements.

(3) (a) Claims for repayment under this section shall be in such form as the Commissioners may direct and shall be in respect of alcohol products used, destroyed or disposed of, as the case may be, within a period of 3 calendar months.

(b) A repayment may not be made unless the claim is made within 6 months following the end of each such period of 3 calendar months or within such longer period as the Commissioners may, in any particular case, allow.

Offences and penalties.

79. —(1) Except where subsection (3) or (6) applies, it is an offence under this subsection for any person to contravene or fail to comply with any provision of this Chapter or any regulation made under section 81 or any condition imposed under this Chapter or under such regulation in relation to such provision.

(2) Without prejudice to any other penalty to which a person may be liable, a person convicted of an offence under subsection (1) is liable on summary conviction to a fine of €1,900.

(3) It is an offence under this subsection—

(a) without the consent in writing of the Commissioners, to remove or to attempt to remove or to be knowingly concerned in removing or attempting to remove any denaturant from any alcohol product,

(b) to knowingly deal in any alcohol products from which any such denaturant has been removed, or

(c) to keep prohibited goods in any premises or on any land.

(4) Whenever a person, who is the owner or the occupier for the time being of premises or land in or on which prohibited goods are found, is charged in any legal proceedings with contravening subsection (3), the prohibited goods shall, until the contrary is proved, be presumed to have been kept by such person in the said premises, or on the said land (as the case may be), in contravention of that subsection.

(5) Without prejudice to any other penalty to which a person may be liable, such person convicted of an offence under subsection (3) is liable—

(a) on summary conviction to a fine of €1,900 or, at the discretion of the Court, to imprisonment for a term not exceeding 12 months, or to both, or

(b) on a conviction on an indictment, to a fine of €12,695 or, at the discretion of the Court, to imprisonment for a term not exceeding 5 years, or to both.

(6) It is an offence under this subsection for any person to record in any account, return or other record relating to alcohol products or materials which is required to be kept in accordance with any provision of this Chapter or any regulations under section 81

(a) a quantity, strength, or gravity for any alcohol product or materials which is found by an officer taking account to be greater or less than the actual quantity, strength or gravity of such alcohol product or materials, or

(b) any other particular relevant to the liability of any alcohol product to alcohol products tax which is not true and accurate.

(7) Subsection (6) does not apply where any discrepancy—

(a) is accounted for by a loss due to force majeure or by a loss inherent in the nature of the product, or

(b) is otherwise accounted for to the satisfaction of the Commissioners, and the duty due on the products in question is paid.

(8) Without prejudice to any other penalty to which a person may be liable a person guilty of an offence under subsection (6) is liable on summary conviction to a fine of €1,900.

(9) Any alcohol products, materials or prohibited goods in respect of which an offence has been committed under this section are liable to forfeiture.

(10) Where an offence under this section is committed by a body corporate and the offence is shown to have been committed with the consent or connivance of any person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate or a member of the committee of management or other controlling authority of the body corporate, that person shall also be deemed to be guilty of an offence and may be proceeded against and punished as if guilty of the first-mentioned offence.

Amendments relative to penalties.

80. Section 34 of the Finance Act 1963 is amended in subsection (6) by the substitution of the following paragraph for paragraph (c):

“(c) the application of section 13 of the Criminal Procedure Act 1967 to offences under section 186 of the Customs Consolidation Act 1876, section 3 of the Customs Act 1956 , any other provision of the Customs Acts, section 119 of the Finance Act 2001 or section 79 (3) of the Finance Act 2003.”.

Regulations.

81. —(1) The Commissioners may, for the purposes of managing, securing and collecting alcohol products tax or for the protection of the revenue derived from that tax, make regulations.

(2) In particular, but without prejudice to the generality of subsection (1), regulations made under this section may, in respect of alcohol products, make provision for—

(a) governing the production, movement, importation, treatment, sale, delivery, warehousing, keeping, storage, removal to and from storage, exportation and use of such products,

(b) governing the means to be used for determining the strength and quantity of any alcohol product,

(c) providing for the method of charging, securing, paying, collecting, remitting and repaying alcohol products tax,

(d) requiring a person who produces or processes alcohol products, or who imports such products, or who holds such products under a suspension arrangement—

(i) to keep in a specified manner and for a specified period such accounts and other records relating to such production, processing, importation, or holding as may be specified,

(ii) to furnish, at such times and in such form as may be specified, such information and returns in relation to such products as may be specified,

and

(e) governing the denaturing of alcohol products.

(3) Regulations made under this section may make different provisions for—

(a) different alcohol products and for different types of each alcohol product, and

(b) persons, premises or products of different classes or descriptions, for different circumstances and for different cases.

General provisions.

82. —(1) (a) Subject to paragraph (b) and to 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 Chapter apply, with any necessary modifications, in relation to alcohol products tax imposed by section 75 on alcohol products imported into the State as they apply in relation to duties of customs.

(b) Where there is a provision in this Chapter corresponding to a provision of the Customs Acts or of any instrument relating to duties of customs made under statute, the provision of the Customs Acts or of any such instrument does not apply in relation to alcohol products tax.

(2) (a) Subject to paragraph (b), the provisions of the statutes which relate to the duties of excise and the management of those duties and of any instrument relating to the duties of excise made under statute and not otherwise applied by this Chapter apply, with any necessary modifications, in relation to alcohol products tax imposed by section 75 on alcohol products produced in the State or exported to or imported from another Member State, as they apply to duties of excise.

(b) Where there is a provision in this Chapter corresponding to a provision of the statutes which relate to the duties of excise or of any other instrument relating to the duties of excise made under statute, the provision of those statutes or of any such instrument does not apply in relation to alcohol products tax.

(3) This Chapter shall be construed—

(a) so far as it relates to alcohol products tax on such products made in the State or exported to or imported from a Member State, together with the statutes which relate to the duties of excise and the management of those duties and any instruments relating to the duties of excise and the management of those duties made under statute,

(b) so far as it relates to alcohol products tax on imported products, together with the Customs Acts and any instrument relating to duties of customs made under statute.

Repeals and revocations.

83. —(1) The enactments set out in Part 1 and Part 2 of Schedule 1 (in this Chapter referred to as the “repealed enactments”) are repealed in the case of those set out in Part 1, and revoked in the case of those set out in Part 2, to the extent mentioned in the third column of those Parts opposite the reference to the enactment concerned.

(2) If and in so far as a provision of this Chapter operates, as from the day appointed under section 86 , in substitution for a provision of the repealed enactments, any order or regulation made or having effect as if made, and any thing done or having effect as if done, under the substituted provision before that day shall be treated as from that day as if it were an order or regulation made or a thing done under such provision of this Chapter.

Continuity.

84. —(1) The provisions of this Chapter shall apply subject to so much of any Act which contains provisions relating to or affecting excise duties as—

(a) is not repealed by this Chapter, and

(b) would have operated in relation to these duties if this Chapter had not been substituted for the repealed enactments.

(2) The Commissioners shall have all the jurisdictions, powers and duties in relation to alcohol products tax which they had in relation to the corresponding excise duties.

(3) The continuity of the operation of the law relating to excise duties on alcohol products shall not be affected by the substitution of this Chapter for the repealed enactments.

(4) Any reference, whether express or implied, in any enactment (including this Chapter) or document—

(a) to any provision of this Chapter, or

(b) to things done or to be done under or for the purposes of any provision of this Chapter,

shall, if and in so far as the nature of the reference permits, be construed as including, in relation to the times, years or periods, circumstances or purposes in relation to which the corresponding provision in the repealed enactments applied or had applied, a reference to, or, as the case may be, to things done or to be done under or for the purposes of, that corresponding provision.

(5) Any reference, whether express or implied, in any enactment or document (including the repealed enactments and enactments passed and documents made)—

(a) to any provision of the repealed enactments, or

(b) to things done or to be done under or for the purposes of any provision of the repealed enactments,

shall, if and in so far as the nature of the reference permits, be construed as including, in relation to the times, years or periods, circumstances or purposes in relation to which the corresponding provision of this Chapter applies, a reference to, or as the case may be, to things done or deemed to be done or to be done under or, for the purposes of, that corresponding provision.

(6) Every officer who immediately before the commencement of this provision, stood authorised or nominated for the purposes of any provision of the repealed enactments is, upon such commencement, deemed to be authorised or nominated, as the case may be, for the purposes of the corresponding provision of this Chapter.

(7) Every instrument, document, authorisation and letter or notice of appointment made or issued under the repealed enactments and in force immediately before the commencement of this provision continues, upon such commencement, in force as if made or issued under this Chapter.

Care and management of alcohol products tax.

85. —Alcohol products tax imposed by section 75 is placed under the care and management of the Commissioners.

Commencement.

86. —This Chapter comes into operation on such day as the Minister for Finance may appoint by order, and different days may be so appointed for different provisions or for different purposes.

1 OJ No. L256 of 7 September, 1992, p.1

2OJ No. L316 of 31 October, 1992, p.21

3OJ S. Edn. 1965-66, p.20