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7 2001

FINANCE ACT, 2001

Chapter 3

Offences, Penalties and Proceedings

Interpretation (Chapter 3).

118. —In this Chapter “claimant” has the meaning assigned to it by section 143 (1).

Evasion of excise duty.

119. —(1) It is an offence under this subsection for any person to take possession, custody or charge of, or to remove, transport, deposit or conceal, or to otherwise deal with, excisable products in respect of which any duty of excise is for the time being payable, with intent to defraud, either directly or indirectly, the State of such duty.

(2) It is an offence under this subsection for any person to be concerned in the evasion or attempted evasion of a duty of excise on excisable products with intent to defraud either directly or indirectly the State of such duty.

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

(a) on summary conviction, to a fine of £1,500, or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both,

(b) on conviction on indictment, to a fine of 3 times the value of the excisable products concerned, including any duty or tax chargeable thereon, or £10,000, whichever is the greater, or, at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both.

Amendment of section 34 (amendments relative to penalties) of Finance Act, 1963.

120. Section 34 of the Finance Act, 1963 , is amended—

(a) in subsection (4) by the insertion after “subsection (3) of this section” of “or section 119 of the Finance Act, 2001”,

(b) 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 , or any other provision of the Customs Acts or section 119 of the Finance Act, 2001.”

Offences generally.

121. —It is an offence under this section for any person—

(a) to contravene or fail to comply with—

(i) any provision of sections 109, 111, 112, 113, 115, 116, 117, or

(ii) any regulation made under section 153 in relation to such provision,

(b) to take possession or charge of excisable products to which any of the sections referred to in paragraph (a) applies in the knowledge that any requirement or condition specified in such sections, or in any regulations made in relation to any such sections under section 153 , has not been complied with.

Offences in relation to false returns, claims etc.

122. —It is an offence under this section for any person to deliver any incorrect return, statement or accounts or to furnish any incorrect information—

(a) in connection with a claim for relief under section 104 ,

(b) in connection with a claim for repayment of excise duty under section 105 ,

(c) in connection with a claim for remission of excise duty under section 106 , or

(d) for any other purposes in relation to any duty of excise.

Resisting, obstructing, giving false information.

123. —It is an offence under this section for any person to—

(a) resist, obstruct or impede an officer, member of the Garda Síochána, or other person in the exercise of any power conferred by Chapter 4 on such officer, member or other person,

(b) fail without lawful and sufficient excuse to comply with any requirement imposed on them under any provision of Chapter 4,

(c) fail without lawful and sufficient excuse to give—

(i) his or her name, address and date of birth, or

(ii) any other information,

when required to do so under any provision of Chapter 4, or to give any such name, address or other information which is false or misleading.

Penalty.

124. —Without prejudice to any other penalty to which a person may be liable, a person convicted of an offence under sections 121, 122 or 123 is liable on summary conviction to a fine of £1,500.

Forfeiture.

125. —(1) Any excisable products in respect of which an offence has been committed under section 119 or 121 or any goods which are packed with or used in concealing such products, are liable to forfeiture and, where any such products are found in, on, or in any manner attached to, any vehicle or other conveyance, such vehicle or other conveyance is deemed to have been made use of in the conveyance of such products and shall also be liable to forfeiture.

(2) Where a duty of excise chargeable on any excisable products is not paid at the time at which payment of such duty becomes due or within such longer period as may be permitted for payment by or under any enactment, such products are liable to forfeiture.

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

Proceedings in relation to offences.

126. —(1) This section is concerned with proceedings in relation to any offence under or by virtue of the statutes which relate to the duties of excise or to the management of such duties or under any instrument relating to the management of such duties made under statute.

(2) Where there is evidence that an offence has been committed by several persons jointly—

(a) proceedings may be instituted against such persons, jointly or severally, for the recovery of a fine or penalty, and

(b) on conviction, such persons shall jointly and severally incur every such fine or penalty.

(3) Where proceedings have been instituted or continued in the name of an officer who has ceased for any reason to be such an officer or being such officer is absent at any time during such proceedings, then such proceedings may be continued in the name of any other officer or of the officer so absent, as appropriate in the circumstances.

(4) Any summons, notice, order or other document relating to proceedings referred to in subsection (1), or relating to any appeal against a judgement pursuant to such proceedings, may be served by an officer.

(5) (a)  Notwithstanding the provisions of any other enactment but subject to paragraph (b), summary proceedings may be instituted within one year from the date of the offence.

(b)  Summary proceedings in respect of an offence under this Chapter may be so instituted within 3 years of the date of the offence.

(6) Section 1 of the Probation of Offenders Act, 1907, shall not apply to offences to which this section relates.

Condemnation.

127. —(1) If, on the expiration of the period referred to in subsection (1) of section 143 , no notice of claim 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 anything is duly given under section 143 , 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.

(3) Where anything is condemned or deemed to have been condemned as forfeited under this section, the forfeiture shall apply as from the date when the liability to forfeiture arose.

Proceedings for condemnation by court.

128. —(1) Proceedings under section 127 are civil proceedings and may be instituted either in the High Court or, if, in the opinion of the Commissioners, the value of the thing which is the subject of the proceedings does not exceed £5,000, the District Court.

(2) In any proceedings under section 127 the claimant, or any solicitor acting on behalf of such claimant, shall state on oath that the thing seized was, or was to the best of their knowledge and belief, the property of the claimant at the time of the seizure.

(3) The Commissioners may in their discretion stay or compound any proceedings under section 127 , and may restore anything seized which is subject to such proceedings, and the Minister for Finance may order any such restoration.

(4) The provisions of section 126 (3) shall also apply to proceedings under section 127 .

(5) In any proceedings under section 127 , if judgement is given for the claimant, no officer or person who made or assisted in making the seizure is liable to any civil or criminal proceedings on account of seizure or detention of the goods, provided that the court or judge certifies that there was probable cause for making such seizure or detention.

Damages.

129. —Where, in any civil or criminal proceedings against any officer or person on account of the seizing or detention of any thing, judgement is given against the defendant, and where the court or justice certifies that there was probable cause for such seizure or detention, the plaintiff shall not be entitled to any damages, besides the goods seized or the value of such thing, nor to any costs, and the defendant shall not be liable for any punishment or penalty.

Mitigation.

130. —(1) The Commissioners may in their discretion, in relation to any offence under or by virtue of the statutes which relate to the duties of excise or to the management of such duties or under any instrument relating to the management of such duties made under statute—

(a) mitigate any fine or penalty,

(b) stay or compound any proceedings.

(2) Section 1065(1)(b) of the Taxes Consolidation Act, 1997 , shall apply to any such fine or penalty.

(3) A trial judge may in his or her discretion, mitigate any fine or penalty incurred for any offence referred to in subsection (1), provided that the amount so mitigated is not greater than 50 per cent of the amount of such fine or penalty.

(4) Notwithstanding subsections (1) and (2), where a fine or penalty is mitigated or further mitigated, as the case may be, by virtue of either of those subsections, after judgement, the total amount or amounts mitigated under this section shall not be greater than 50 per cent of the amount of such fine or penalty.

Presumptions.

131. —(1) Where in proceedings, any dispute arises as to—

(a) whether any excise duty has been paid in respect of any excisable products or other goods which are the subject of such proceedings,

(b) whether any such excisable products or other goods are of such kind or sort as is alleged in evidence,

(c) the place from where any excisable products were brought,

the burden of proof in such dispute shall rest—

(i) in the case of proceedings referred to in subsection (1) of section 126 , with the defendant,

(ii) in the case of proceedings referred to in subsection (2) of section 127 , with the claimant,

(iii) in the case of proceedings commenced by a person claiming any thing seized as liable to forfeiture under the law relating to excise, against the Commissioners, or any officer, or any member of the Garda Síochána involved in such seizure, with the plaintiff.

(2) In any proceedings referred to in section 126 (1) involving tobacco products, it shall be presumed until the contrary is shown that a thing is a cigarette or other tobacco product where, in the opinion of an officer, it is contained in any form of packaging which, by virtue of any wording on it, its shape and other characteristics, is indicative of the contents consisting of one or more than one cigarette or other tobacco product and the officer so states that opinion.

(3) In proceedings under section 121

(a) any person who, otherwise than in a tax warehouse, produces, processes or holds excisable products on which excise duty has not been paid, or who does not comply with any of the conditions imposed by section 109 , is presumed, until the contrary is proved, to have contravened or failed to comply with (as the case may be) that section,

(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 paragraph (a), (b) or (c) of section 111 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) that section,

(c) where excisable products to which subsection (3) of section 112 applies are found in the State and a requirement specified in paragraph (a), (b), (c) or (d) of 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 (as the case may be) that subsection,

(d) where excisable products to which section 116 applies are found in the State and a requirement or condition specified in subsection (4), (5) or (7) or in any regulations made under section 153 has not been complied with in respect of these excisable products, any person in whose possession or charge these excisable products are found is presumed, until the contrary is proved, to have contravened or failed to comply with (as the case may be) subsection (4), (5) or (7), or any regulations made under section 153 , as appropriate.

False evidence, punishment as for perjury.

132. —If any person in any proceedings under section 126 or 127, on any examination on oath, or in any affidavit or deposition authorised by the statutes which relate to the duties of excise, wilfully and corruptly gives false evidence, or wilfully and corruptly swears any matter or thing which is false or untrue, that person shall be guilty of an offence and on conviction be subject and liable to such punishment as persons convicted of perjury are subject and liable to.