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8 1995

FINANCE ACT, 1995

Chapter II

Excise Duties — Powers of Officers, Detention, Seizure and Forfeiture

Definitions (Chapter II).

85. —In this Chapter—

the Act of 1992” means the Finance Act, 1992 ;

authorised officer” means an officer of the Commissioners authorised by them to exercise the powers conferred by this Chapter on officers of the Commissioners;

the Commissioners” means the Revenue Commissioners;

excisable products” has the meaning assigned to it by section 104 of the Act of 1992;

officer” means an authorised officer;

vehicle” means a mechanically propelled vehicle or any other conveyance.

Power to stop and search vehicles.

86. —(1) An officer in uniform may stop any vehicle—

(a) in or on which excisable products or any other products chargeable with a duty of excise are being transported or in which or on which it is reasonably believed by the officer that such products are being transported, or

(b) for the purpose of examining and taking samples of any fuel in or on, or in anything attached to, the vehicle for use or capable of being used for combustion in its engine.

(2) An officer in uniform or a member of the Garda Síochána may stop any vehicle for any purpose related to vehicle registration tax or the registration of vehicles in the register maintained under Chapter IV of Part II of the Act of 1992.

(3) Any person in charge of a moving vehicle shall, at the request of an officer in uniform or a member of the Garda Síochána, stop the vehicle and shall keep it stationary for such period as is reasonably necessary in order to enable the officer to discharge his duties.

(4) Any person in charge of a vehicle shall, at the request of an officer and on production of the authorisation of the officer if so requested by any person affected—

(a) allow the officer or any officer accompanying that officer to take samples of any fuel on or in the vehicle or in anything attached to the vehicle,

(b) allow the vehicle to be examined by the officer or accompanying officer,

(c) allow the officer or accompanying officer to carry out such searches of the vehicle as appear to the officer or accompanying officer to be necessary to establish—

(i) whether any excisable products being transported in or on, or in any manner attached to, the vehicle correspond in every material respect with the description of any such products in a document referred to in paragraph (f), or

(ii) whether anything being transported is liable to forfeiture under the law relating to excise,

(d) furnish, within such time and in such form and manner as may be specified by the officer or accompanying officer, all such information in relation to the vehicle as may reasonably be required by the officer or accompanying officer and is in the possession or procurement of the person,

(e) within such time and in such manner as may be specified by the officer or accompanying officer, produce and permit his or her inspection of and taking of copies of, or of extracts from, all such books and documents relating to the vehicle and any products referred to in subsection (1) (a) being transported as aforesaid as are reasonably required by the officer or accompanying officer and are in the possession or procurement of the person, and

(f) produce to the officer or accompanying officer any accompanying document, duty document (within the meaning, in each case, of Chapter II of Part II of the Act of 1992), or other document referred to in section 111 of that Act, accompanying any excisable products being transported in or on, or in any manner attached to, the vehicle.

(5) A person who resists, obstructs or impedes an officer or a member of the Garda Síochána in the exercise of any power conferred on the officer or member or fails or refuses to comply with a request under subsection (3) or (4) shall, without prejudice to any other penalty to which he or she may be liable, be guilty of an offence and shall be liable on summary conviction to a penalty, under the law relating to excise, of £1,000.

Power to enter and search premises.

87. —(1) An officer may, at all reasonable times, on production of the authorisation of the officer if so requested by any person affected, enter a premises or other place (other than a dwelling)—

(a) in which the production, processing, holding, storage or keeping or importation, purchase, packaging or putting up for sale or sale or disposal of any product referred to in section 86 (1) (a) is being or is reasonably believed by the officer to be carried on or in which any books, accounts or other documents or records or information relating or reasonably believed by the officer to relate to such activities are kept, or

(b) in which the manufacture, distribution, storage, repair, modification, importation, dealing, delivery or disposal of vehicles is being or is reasonably believed by the officer to be carried on or in which books, accounts or other documents or records relating or reasonably believed by the officer to relate to such activities are kept,

and may there—

(i) make such search and investigation as the officer shall think proper and take account of, and without payment, take samples of, any product referred to in section 86 (1) (a) or any materials, ingredients or other substances used or to be used in the manufacture of such a product,

(ii) require any person to produce all books, accounts or other documents or records in the possession, procurement or custody of the person relating to the activities referred to in paragraphs (a) and (b) and, in the case of information in relation to those activities in a non-legible form (including such information in a computer), to produce it in a legible form or to reproduce it in a permanent legible form, and

(iii) search for, inspect, and take copies of, or of extracts from, any books, accounts or other documents or records (including, in the case of any information in a non-legible form (including such information in a computer), a copy of, or of an extract from, such information in a permanent legible form) relating or believed by the officer to relate to the activities referred to in paragraph (a) or (b),

and the officer may remove and retain the said books, accounts or other documents or records for such period as may be reasonable for their further examination, and the person shall provide to such officer all facilities and assistance necessary for the exercise by the officer of any power conferred on the officer by this subsection.

(2) Where an officer enters any premises or other place under subsection (1) and a vehicle or any product referred to in section 86 (1) (a) or any materials, ingredients or other substances used or to be used in the manufacture of such a product is found by the officer therein, or any books, accounts or other documents or records or information specified in that subsection are produced or found therein, he may question any person found therein in relation to such vehicle or product or such materials, ingredients or substances or in relation to such books, accounts or other documents or records or information and any such person shall give to such officer all information required of him by such officer which is in his possession or procurement.

(3) Without prejudice to any power conferred by subsections (1) and (2), if a judge of the District Court is satisfied on the sworn information of an officer that there are reasonable grounds for suspecting that any thing that is liable to forfeiture under the law relating to excise is being kept or concealed on or at any premises or place, he may issue a search warrant.

(4) A search warrant issued under this section shall be expressed and operate to authorise a named officer accompanied by such other officers and such other persons as the officer considers necessary, at any time or times within one month of the date of issue of the warrant, to enter (if need be by force) the premises or other place named or specified in the warrant, to search such premises or other place, to examine any thing found there, to inspect any book, account, record or other document found there and, if there are reasonable grounds for suspecting that any thing found there is liable to forfeiture under the law relating to excise, or that a document found there may be required as evidence in proceedings under the law relating to excise, to detain or seize the thing as liable to forfeiture or, in the case of a document, to detain it for so long as it is reasonably required for the purpose aforesaid.

(5) An officer or other person on or in any premises or place pursuant to this section may require any person found there to give to the officer or other person his or her name and address.

(6) Any person who—

(a) fails without lawful and sufficient excuse to comply with any requirement under subsection (1) or (5) or who fails or refuses to give any information required of him under subsection (2),

(b) gives any such information which is false or misleading,

(c) resists, obstructs or impedes an officer or other person in the exercise of any power conferred on them by this section, or

(d) when required under subsection (5) to give his name and address, gives a name or address that is false or misleading,

shall be guilty of an offence and shall be liable on summary conviction to a penalty, under the law relating to excise, of £1,000.

Detention of goods and vehicles.

88. —(1) Where an officer—

(a) discovers any material discrepancy between excisable products being transported and those described in the documents referred to in section 86 (4) (f) and the officer is not satisfied with any reasons tendered for such discrepancy and suspects that the products may, therefore, be liable to forfeiture or where the officer suspects that the excisable products may be liable to forfeiture for any other reason, or

(b) reasonably suspects that any excisable products are liable to forfeiture, or

(c) reasonably suspects that a vehicle has not been registered in the register maintained under Chapter IV of Part II of the Act of 1992 or has been converted (within the meaning of the said Chapter IV) and a declaration in relation to the conversion has not been made under section 131 of that Act or any vehicle registration tax in respect of a vehicle has not been paid, or

(d) reasonably suspects that any other goods are liable to forfeiture under the law relating to excise,

all of the excisable products concerned, the vehicle concerned or the other goods concerned, as the case may be, may be detained by the said officer until such examination, enquiries or investigations as may be deemed necessary by the officer, or by another officer, have been made for the purpose of determining to the satisfaction of either such officer whether or not the products or other goods are liable to forfeiture, the vehicle has been registered, the declaration aforesaid has been made or the vehicle registration tax has been paid, as may be appropriate.

(2) Where a member of the Garda Síochána reasonably suspects that a vehicle has not been registered in the register maintained under Chapter IV of Part II of the Act of 1992 or has been converted (within the meaning of the said Chapter IV) and a declaration in relation to the conversion has not been made under section 131 of that Act or any vehicle registration tax in respect of a vehicle has not been paid, the vehicle concerned may be detained by the member until such examination, inquiries or investigations as may be deemed necessary by the member have been made for the purpose of determining to the satisfaction of the member whether or not the vehicle has been registered, the declaration aforesaid has been made or the vehicle registration tax has been paid, as may be appropriate.

(3) Subject to subsection (5), whenever any excisable products or other goods are detained by an officer under subsection (1), all of the products or other goods as well as all things being made use of in the conveyance of the products may also be detained by the officer until the examination, enquiries or investigations referred to in subsection (1) have been made.

(4) For the purpose of subsection (3), where excisable products or other goods are found in or on, or in any manner attached to, a vehicle, the vehicle shall be deemed to have been made use of in the conveyance of the products or other goods.

(5) When a determination referred to in subsection (1) or (2) has been made in respect of any excisable products or other goods or a vehicle or upon the expiry of a period of one month from the date on which the products or other goods or the vehicle were or was detained under the said subsection, whichever is the earlier, the products or other goods or the vehicle (together with any thing detained with the products or other goods under subsection (3)) shall be seized as liable to forfeiture under the Customs Acts or under section 89 or released.

(6) Any person who resists, obstructs or impedes an officer or a member of the Garda Síochána in the exercise of any power conferred on the officer or member by this section shall, without prejudice to any other penalty to which he may be liable, be guilty of an offence and shall be liable on summary conviction to a penalty, under the law relating to excise, of £1,000.

Seizure of goods and vehicles.

89. —(1) Any goods or vehicles that are liable to forfeiture under the law relating to excise may be seized by an officer.

(2) Where any goods or vehicles are liable to forfeiture under the law relating to excise, any thing containing, or that contained, such goods or vehicle and any thing made use of in the conveyance of the goods or vehicle shall be liable to forfeiture.

Notice of seizure.

90. —(1) Subject to subsection (2), an officer shall, give notice of the seizure of any thing as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof.

(2) Notice under subsection (1) need not be given under this section to a person if the seizure was made in the presence of the person, the person whose offence or suspected offence occasioned the seizure or in the case of any thing seized in any ship or aircraft, in the presence of the master or commander thereof.

(3) Notice under subsection (1) shall be given in writing, the notice shall include a statement of the provisions of section 91 and be deemed to have been duly given to the person concerned—

(a) if it is delivered to the person personally, or

(b) if it is addressed to the person and left or forwarded by post to the person at the usual or last known place of abode or business of the person or, in the case of a body corporate, at its registered or principal office, or

(c) if the person has no known address within the State, by publication of notice of the seizure concerned in Iris Oifigiúil.

Notice of claim.

91. —(1) A person who claims that any thing seized as liable to forfeiture is not so liable (referred to subsequently in this Chapter as “the claimant”) shall, within one month of the date of the notice of seizure or, where no such notice has been given to the claimant, within one month of the date of the seizure, give notice in writing of his claim to the Commissioners.

(2) A notice under subsection (1) shall specify the name and address of the claimant and, in the case of a claimant who is outside the State, the name and address of a solicitor in the State who is authorised to accept service of any document required to be served on the claimant and to act on behalf of the claimant.

Condemnation.

92. —(1) If, on the expiration of the period referred to in section 91 (1), no notice has been given under that section, the thing in question shall be deemed to have been duly condemned as forfeited.

(2) Subject to subsection (3), where a notice in respect of any thing is duly given under section 91 , the Commissioners shall take proceedings for the condemnation of the thing by the court, and, in case the court finds that the thing was at the time of seizure liable to forfeiture, the court shall condemn it as forfeited and, in any other case, shall order its release to its owner.

(3) Where any thing is, under the provisions of this section, condemned or deemed to have been condemned as forfeited, the forfeiture shall have effect as from the date when the liability to forfeiture arose.

Proceedings for condemnation by court.

93. —(1) Proceedings under section 92 shall be civil proceedings and may be instituted either in the High Court or (if, in the opinion of the Commissioners, the value of the thing the subject of the proceedings does not exceed £5,000) the District Court.

(2) In any proceedings under section 92 the claimant or his solicitor shall state on oath that the thing seized was, or was to the best of his knowledge and belief, the property of the claimant at the time of the seizure.

Power to deal with seizures before condemnation.

94. —(1) Where any thing has been seized by an officer as liable to forfeiture, the Commissioners may at any time, if they see fit and notwithstanding that the thing has not yet been condemned, or is not yet deemed to have been condemned, as forfeited—

(a) if a notice relating to the thing has been duly given under section 91 , deliver it up to the claimant upon his paying to the Commissioners such sum as they think proper, being a sum not exceeding that which in their opinion represents the value of the thing, including any duty or tax chargeable thereon which has not been paid, or

(b) if the thing seized is in the opinion of the Commissioners of a perishable nature, sell or destroy it.

(2) If, where any thing is delivered up, sold or destroyed under this section, it is held by the court in proceedings under this section that the thing was not liable to forfeiture at the time of its seizure, the Commissioners shall, subject to any deduction allowed under subsection (3), on demand by the claimant tender to him or her—

(a) an amount equal to any sum paid by the claimant under subsection (1),

(b) if they have sold the thing, an amount equal to the proceeds of sale, or

(c) if they have destroyed the thing, an amount equal to the market value of the thing at the time of its seizure.

(3) Where the amount to be tendered under subsection (2) includes any sum on account of any duty or tax chargeable on the thing which has not been paid before its seizure, the Commissioners may deduct from the amount so much thereof as represents the duty or tax.

(4) If the claimant accepts any amount tendered to him under subsection (2), he shall not be entitled to maintain proceedings in any court on account of the seizure, detention, sale or destruction of the thing concerned.

(5) Notwithstanding any other provision of this Chapter relating to goods seized as liable to forfeiture, an officer who seizes as liable to forfeiture any spirits or any stills, vessels, utensils, wort or other material for manufacturing, distilling or preparing spirits may at his discretion forthwith spill, break up or destroy any of those goods.

Miscellaneous amendments.

95. —Each enactment specified in column (2) of the Fifth Schedule is hereby amended to the extent specified in column (3) of that Schedule.

Repeals and revocation.

96. —(1) Each enactment specified in column (2) of the Sixth Schedule is hereby repealed to the extent specified in column (3) of that Schedule.

(2) Article 26 of the Excise Transfer Order, 1909 (S.R. & O., No. 197 of 1909), is hereby revoked.