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7 2001

FINANCE ACT, 2001

Chapter 5

Miscellaneous

Appeals to Commissioners.

145. —(1) Any person who has paid or who, in the opinion of the Commissioners, is liable to pay a duty of excise and is called on by them to pay an amount of such duty may appeal in accordance with this section against the decision concerned in respect of the liability or the amount of the duty.

(2) Any person who has claimed or received a repayment of a duty of excise may appeal to the Commissioners against the decision concerned in respect of the amount of such repayment or the refusal of such repayment.

(3) Any person who is the subject of any of the following acts of the Commissioners:

(a) a refusal to approve a person as an authorised warehousekeeper or a premises as a tax warehouse under section 109 , or a revocation, under that section, of any such approval that has been granted,

(b) a refusal to approve a person as a tax representative under section 113 , or a revocation, under that section, of any such approval that has been granted,

(c) a refusal to grant registration of a trader under section 116 , or a revocation, under that section, of any such registration that has been granted,

(d) a decision in relation to the registration of a vehicle, or the amendment of an entry in or the deletion of an entry from, the register referred to in section 131 of the Finance Act, 1992 , by the Commissioners, or on their behalf, under that section 131,

(e) a determination of an open market selling price of a vehicle under section 133(2) of the Finance Act, 1992 , or

(f) a granting, refusal or revocation of an authorisation under section 136 of the Finance Act, 1992 , or a decision in relation to the arrangements for payment of vehicle registration tax under that section 136,

may appeal against such an act to the Commissioners.

(4) An appeal under subsection (1), (2) or (3) shall be in writing and shall set forth in detail the grounds of appeal.

(5) An appeal is to be lodged by the person concerned with the Commissioners within the period of 2 months from the date of—

(a) the payment of a duty of excise,

(b) the notification by the Commissioners on being called on by them to pay an amount of a duty of excise,

(c) the repayment of a duty of excise,

(d) the notification by the Commissioners of a refusal of a repayment by them of a duty of excise, or

(e) the notification by the Commissioners of the doing by them of an act referred to in subsection (3),

or within such longer period as the Commissioners may, in exceptional cases, allow.

(6) An appeal shall, subject to subsection (12), be determined by the Commissioners within a period of 30 days from its lodgement with the Commissioners.

(7) The Commissioners may appoint one or more of their officers for the purposes of carrying out their functions under this section but no such officer shall determine an appeal under this section in respect of a decision he or she has made.

(8) The Commissioners shall notify in writing an appellant concerned of their determination of an appeal and the reasons for their determination.

(9) Where the Commissioners determine on appeal that the amount due is less than the amount paid, they shall repay the amount overpaid to the appellant concerned.

(10) Where the Commissioners determine on appeal that the amount due is greater than the amount paid, the appellant concerned shall pay the amount underpaid.

(11) For the purpose of determination of an appeal any goods or vehicles to which the appeal relates are to be produced to the Commissioners for inspection, if so required.

(12) Where an appeal has been lodged but not determined in accordance with subsection (6) there shall be deemed to have been a determination by the Commissioners on the last day of the period of 30 days from the date the appeal was lodged that the appeal was not upheld but such deeming shall cease to have effect if a determination is subsequently made by the Commissioners before a determination is made by the Appeal Commissioners under section 146 in respect of the matter concerned.

(13) The provisions of the Customs Acts or of any instruments made under those Acts, in so far as they apply to appeals concerning duties of excise, shall not apply in relation to any amount of excise duty capable of being the subject of an appeal under this section.

Appeals to Appeal Commissioners.

146. —(1) A person who is aggrieved by a determination of the Commissioners under section 145 may, in accordance with this section, appeal to the Appeal Commissioners against such determination and the appeal is to be heard and determined by the Appeal Commissioners whose determination is final and conclusive unless a case is required to be stated in relation to it for the opinion of the High Court on a point of law.

(2) A person who intends to appeal under this section against a determination of the Commissioners shall—

(a) within 30 days of the notification of such determination, or

(b) within 30 days of the expiry of the time limit for such determination,

whichever is the earlier, give notice in writing to them of such intention.

(3) Subject to this section—

(a) Part 40, other than sections 942, 943 and (in so far as it relates to those sections) 944 of the Taxes Consolidation Act, 1997 , and

(b) section 957 of that Act,

shall, with any necessary modifications, apply as they apply for the purpose of income tax.

(4) (a) Subject to paragraph (c), where a notice or other document which is required or authorised to be served by this section falls to be served on a body corporate, such notice is to be served on the secretary or other officer of the body corporate.

(b) Any notice or other document which is required or authorised by this section—

(i) to be served by the Commissioners or by an appellant may be served by post, and

(ii) in the case of a notice or other document addressed to the Commissioners, shall be addressed and sent to the Revenue Commissioners, Dublin Castle, Dublin 2.

(c) Any notice or other document which is required or authorised to be served by the Commissioners on an appellant under this section may be sent to the solicitor, accountant or other agent of the appellant and a notice so served is deemed to have been served on the appellant unless the appellant proves to the satisfaction of the Appeal Commissioners, that he or she had, before the notice or other document was served, withdrawn the authority of such solicitor, accountant or other agent to act on his or her behalf.

(5) Prima facie evidence of any notice given under this section by the Commissioners or by an officer of the Commissioners may be given in any proceedings by production by an officer of the Commissioners of a document purporting to be a copy of the notice and it shall not be necessary to prove the official position of the person by whom the notice purports to be given or, if it is signed, the signature, or that the person signing and giving it was authorised so to do.

Payment of duty pending appeal.

147. —Where an appeal has been made under section 145 or 146 in respect of an amount of duty which a person is called on by the Commissioners to pay, such appeal, shall not be determined by the Commissioners or the Appeal Commissioners, as the case may be, unless such amount of duty has been paid.

Exclusion of criminal matters.

148. —Where liability for a duty of excise is the subject of criminal proceedings or a decision is pending on whether to initiate criminal proceedings in respect of such liability, then such liability or the amount of such liability or repayment connected with or sought in respect of such liability may not be appealed under section 145 or 146 until the determination of such criminal proceedings or a decision is duly taken not to initiate criminal proceedings.

Repeals and revocations (Part

149. —The enactments set out in Part 1 and Part 2 of Schedule 3 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.

Saver.

150. —(1) In this section and section 151 “repealed enactments” means the enactments repealed or revoked under section 149 .

(2) If, and in so far as a provision of this Part operates, as and from the day appointed under section 152 , in substitution for a provision of the repealed enactments, any order or regulation made or having effect as if made, and anything done or having effect as if done, under the substituted provision before that day is to be treated on and from that day as if it were an order or regulation made or a thing done under the provision of this Part which so operates.

Continuity.

151. —(1) The provisions of this Part 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 Part, and

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

(2) The continuity of the operation of the law relating to excise duties shall not be affected by the substitution of this Part for the repealed enactments.

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

(a) to any provision of this Part, or

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

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.

(4) 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 Part 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.

(5) All officers who stood authorised or nominated for the purposes of any provision of the repealed enactments are deemed to be authorised or nominated, as the case may be, for the purposes of the corresponding provision of this Part.

(6) All instruments, documents, authorisations and letters or notices of appointment made or issued under the repealed enactments and in force immediately before the commencement of this provision shall continue in force as if made or issued under this Part.

Commencement.

152. —This Part shall come into operation on such day as the Minister may appoint by order, and different days may be so appointed for different provisions or for different purposes.

Regulations.

153. —(1) The Commissioners, for the purposes of giving effect to this Part and of managing, securing and collecting excise duties or for the protection of the revenues derived from such duties may make regulations.

(2) In particular, but without prejudice to the generality of subsection (1), regulations under this section may, in respect of the excisable products referred to in section 97 (1), make provision—

(a) governing the securing, paying, collecting, remitting and repaying of excise duty,

(b) governing the production, processing and holding of such products under a suspension arrangement,

(c) governing the approval and the conditions to be attached to the approval of an authorised warehousekeeper and of a tax warehouse.

(d) governing the conditions to be complied with by a non-State vendor in relation to excisable products being dispatched by or on behalf of such vendor to the State,

(e) governing the registration, and the conditions to be attached to such registration, of a registered trader, including the provision of security, the accounts and records to be kept and the control requirements to be complied with,

(f) governing the conditions to be imposed on a non-registered trader, including the provision of security, the form and content of the declaration to be given in advance of the dispatch of excisable products from another Member State under a suspension arrangement and the control requirements to be complied with,

(g) governing the approval and the conditions to be attached to the approval of a tax representative, including the provision of security, the keeping of accounts and records and notification of the place of delivery of excisable products,

(h) specifying in relation to an accompanying document referred to in section 117

(i) the form of the document to be used,

(ii) the person responsible for completion of that document,

(iii) the completion of that document and its proper content, and the correct procedures for issue of that document, including the number of copies to be issued and the persons to whom they are to be issued,

(iv) the form of endorsement which is to be accepted as evidence that excisable products have been received in another Member State, including whether such endorsement is to include certification of receipt by the authorities of particular Member States,

(v) cases where evidence of receipt of excisable products in another Member State is not received, including the nature of any action to be taken within specified time limits,

(i) specifying, in relation to such accompanying document, the obligations, requirements and procedures to be complied with by persons resident or established in the State receiving excisable products under a suspension arrangement from another Member State including the obligations, requirements and procedures to be complied with—

(i) on receipt of a copy or copies of that document from another Member State, or

(ii) where a copy or copies of that document are not received or where any such copy is incomplete or where it does not accompany excisable products received,

(j) specifying in relation to such accompanying document, the obligations, requirements and procedures to be complied with by persons—

(i) receiving or intending to receive from another Member State excisable products released for consumption in that Member State, or

(ii) dispatching or intending to dispatch to another Member State excisable products released for consumption in the State,

(k) specifying, in relation to a duty document referred to in section 117 , the form of that document and any necessary control requirements relating to its authentication,

(l) specifying, in relation to the exemption certificate referred to in section 117 , the form of that certificate and any necessary control requirements relating to its authentication,

(m) governing the conditions to be complied with by a person who acquires excisable products released for consumption in another Member State for importation into the State,

(n) establishing rules and criteria in relation to excisable products released for consumption in another Member State and imported into the State by a private individual whereby such products may be regarded as being imported for commercial purposes,

(o) providing for the conditions to be attached to, and the procedures to be complied with, in any case where repayment of excise duty is claimed on the delivery for commercial purposes of excisable products on which excise duty has been paid in the State to another Member State or on the purchase of such products from a State vendor by a person in another Member State,

(p) governing any conditions to be complied with in relation to the remission of excise duty on losses of excisable products incurred during the production, processing, holding or transportation of such products under a suspension arrangement, or on losses incurred in the course of transportation of such products to the State under a suspension arrangement,

(q) requiring that excisable products be packaged, marked, or put up in sealed containers in order to facilitate identification of products being moved under suspension,

(r) requiring that excisable products released for consumption in the State be marked, stamped or made otherwise identifiable as being duty paid,

(s) specifying the obligations, requirements and procedures to be complied with by a person in the State receiving wine under a suspension arrangement from a small wine producer, and

(t) prescribing the conditions to be fulfilled and the procedures to be followed by any person claiming repayment of excise duty under section 105 , and, in particular—

(i) the form, manner and time of making an application for repayment of the duty,

(ii) the nature of the evidence of payment of duty in the State to be provided with such application,

(iii) the requirement of evidence of payment or securing of the excise duty in the Member State to which the excisable products are to be delivered,

(iv) the requirement of the use of an accompanying document, as provided for in section 117 ,

(v) the nature of the evidence of delivery of the excisable products where delivered from the State to be provided with such application, and

(vi) any other such conditions and requirements as appear to the Commissioners to be necessary.