ACT No. XIII of 2010 AN ACT to amend the Excise Duty Act (Cap. 382) and to implement Council Directive 2008/118/EC.

I assent.

G EORGE A BELA

(L.S.)

President

20th July, 2010

ACT No. XIII of 2010

AN ACT to amend the Excise Duty Act (Cap. 382) and to implement

Council Directive 2008/118/EC.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows:-

(1) The short title of this Act is the Excise Duty Short title and

(Amendment) Act, 2010, and this Act shall be read and construed as commencement.

one with the Excise Duty Act, hereinafter referred to as "the principal Cap. 382.

Act".

(2) This Act shall come into force on such a date as the

Minister responsible for customs may by notice in the Gazette

establish, and different dates may be so established for different

provisions or different purposes of this Act.

For article 2 of the principal Act there shall be substituted

the following

"2.

In this Act unless the context otherwise requires -

"atypical mode of transport" means the transport of fuels

other than in the tanks of vehicles or in appropriate reserve fuel

canisters and the transport of liquid heating products other than

by means of tankers used on behalf of professional traders in

terms of article 14A(4);

"authorised warehouse keeper" means a natural or legal

person authorised by the Comptroller, in the course of his

business, to produce, process, hold, receive or dispatch excise

goods under a duty suspension arrangement in a tax warehouse;

"beer production" or "the production of beer" shall be

taken to mean the process whereby beer is produced from the

fermentation of the wort and any process whereby beer of lower

density or specific gravity is derived from beer, whatever its

origin, of a higher density or specific gravity. It shall also

include the mixing of beer with any non-alcoholic beverage and

on either of which no excise duty had been paid such that the

resulting admixture contains an actual alcoholic strength by

volume exceeding 0.5% vol;

"the Community" or "territory of the Community" means

the territories of the Member States;

"competent authority” means a body or authority which

has a supervisory or regulatory role in a Member State in

relation to excise goods;

"the Comptroller" has the same meaning assigned to it in

the Customs Ordinance;

"customs suspensive procedure or arrangement" means any

one of the special procedures as provided for under Regulation

(EEC) No 2913/92 relating to the customs supervision to which

non-Community goods are subjected upon their entry into the

Community customs territory, temporary storage, free zones or

free warehouses, as well as any of the arrangements referred to

in Article 84(1)(a) of that Regulation;

"Customs tariff" means the Common Customs Tariff

adopted by the European Union;

"duty" and "excise duty" mean the duty imposed by this

Act;

"duty suspension arrangement" means a tax arrangement

applied to the production, processing, holding or movement of

excise goods not covered by a customs suspensive procedure or

arrangement, excise duty being suspended;

"excise goods" means any goods of a class or description

as listed in the First Schedule;

"excise officer" means any officer charged by lawful

authority with the performance of any duty or function under

this Act;

"importation of excise goods" means the entry into the

territory of the Community of excise goods unless the goods

upon their entry into the Community are placed under a customs

suspensive procedure or arrangement, as well as their release

from a customs suspensive procedure or arrangement;

"Member State" and "territory of a Member State" means

the territory of each Member State of the Community to which

the Treaty is applicable, in accordance with Article 299 thereof,

with the exception of third territories;

"the Minister" means the Minister responsible for customs;

"non-alcoholic beverage" means a non-alcoholic beverage

falling under heading 22.02 of the Customs Tariff;

"registered consignee" means a natural or legal person

authorised by the Comptroller, in the course of his business and

under the conditions fixed by the Comptroller, to receive excise

goods moving under a duty suspension arrangement from

another Member State;

"registered consignor" means a natural or legal person

authorised by the Comptroller, in the course of his business and

under the conditions fixed by the Comptroller, to only dispatch

excise goods under a duty suspension arrangement upon their

release for free circulation in accordance with Article 79 of

Regulation (EEC) No 2913/92;

"release for consumption" means

(a) any departure, including irregular departure,

from a suspension arrangement;

(b) any

manufacture,

including

irregular

manufacture, of excise goods outside a suspension

arrangement;

(c) any entry into Malta of excise goods,

including irregular entry, where those products have not

been placed under a suspension arrangement;

"tax warehouse" means a place where excise goods are

produced, processed, held, received or dispatched under duty

suspension arrangements by an authorised warehouse keeper in

the course of his business, subject to certain conditions laid

down by the Comptroller;

"third country" means any State or territory to which the Treaty

is not applicable;

"the Treaty" means the Treaty establishing the European

Community.".

Article 4 of the principal Act shall be amended as follows

(a)

in subarticle (1) thereof

(i) immediately after the words "time of their

production" there shall be added the words ", or where

applicable of their extraction,";

(ii) for the word "importation" wherever it

appears, there shall be substituted the word "entry"; and

(iii) for the words "entry into Malta" there shall be

substituted the words "arrival in Malta"; and

(b) immediately after subarticle (3) thereof, there shall

be added the following new subarticles

"(4) For the purpose of this article "release for

consumption" means

(a) the departure of excise goods, including

irregular departure, from a duty suspension

arrangement;

(b) the holding of excise goods outside a duty

suspension arrangement where excise duty has not

been levied pursuant to the applicable provisions of

Community law and national legislation;

(c) the production of excise goods, including

irregular production, outside a duty suspension

arrangement;

(d) the entry into Malta of excise goods,

including irregular entry into Malta, unless the

excise goods are placed, immediately upon entry,

under a duty suspension arrangement.

(5) For the purpose of this article where excise

goods are moved under a duty suspension arrangement

within the territory of the Community, including where the

goods are moved via a third country or a third territory, the

time of release for consumption shall be considered to be

(a) when a registered consignee receives the

excise goods from a tax warehouse;

(b) when a consignee referred to in article

14(2) receives excise goods from a tax warehouse

which have been dispatched from another Member

State.

(6) Where excise goods are imported into Malta

and the Comptroller allows such goods to be moved under

a duty suspension arrangement according to the conditions

laid down by him to be delivered to a place which has been

designated by an authorised warehouse keeper or

registered consignee, the time of release for consumption

shall be the time of receipt of the excise goods at the place

which has been approved by the Comptroller

Provided that this shall not apply when a

registered consignee receives goods on an occasional

basis.

(7) For the purpose of this article, the total

destruction or irretrievable loss of excise goods under a

duty suspension agreement, as a result of the actual nature

of the goods, of unforeseeable circumstances, as a result of

force majeure, or as a consequence of an authorisation

granted by the Comptroller, shall not be considered as a

release for consumption.

(8) The chargeable conditions and rate of excise

duty to be adopted shall be those in force on the date on

which release for consumption takes place.".

For subarticle (1) of article 8 of the principal Act, there

shall be substituted the following

"(1)

Duty on excise goods shall be paid by the following

persons

(a) in relation to the departure of excise goods,

including irregular departure from a duty suspension

arrangement, duty shall be paid

(i) by the authorised warehouse keeper, the

registered consignee or any other person releasing

the excise goods or on whose behalf the excise goods

are released from the duty suspension arrangement

and, in the case of irregular departure from the tax

warehouse, by any other person involved in that

departure;

(ii) in the case of an irregularity during a

movement of excise goods under a duty suspension

arrangement as indicated in article 8A, by the

authorised warehouse keeper, the registered

consignor or any other person who guaranteed the

payment in accordance with article 10 and any

person who participated in the irregular departure

and who was aware or who should reasonably have

been aware of the irregular nature of the departure;

(b) in relation to the holding of excise goods

outside a duty suspension arrangement where excise duty

has not been levied pursuant to the applicable provisions of

this Act, by the person holding the excise goods and any

other person involved in the holding of the excise goods;

(c) in relation to the production of excise goods,

including irregular production, outside a duty suspension

arrangement, by the person producing the excise goods

and, in the case of irregular production, by any other

person involved in their production;

(d) in relation to the importation of excise goods,

including irregular importation, unless the excise goods are

placed, immediately upon importation, under a duty

suspension arrangement, by the person who declares the

excise goods or on whose behalf they are declared upon

importation and, in the case of irregular importation, by

any other person involved in the importation.".

Immediately after article 8 of the principal Act there shall Addition of new

articles 8A and

be added the following new articles

8B to the

principal Act.

" Irregularity.

(1) When an irregularity occurs

in relation to excise goods which are moving

under a duty suspension arrangement from a

Member State to Malta or when excise goods

are in transit and pass through Malta, which

irregularity gives rise to their release for

consumption in accordance with article

4(4)(a), the Comptroller, on detecting such an

irregularity, shall inform the competent

authorities of the Member State of dispatch.

(2) When it is possible for the

Comptroller to determine where the

irregularity under subarticle (1) occurred, the

release for consumption shall take place in

the Member State where the irregularity

occurred.

(3) When it is not possible for the

Comptroller to determine where the

irregularity under subarticle (1) occurred, it

shall be presumed that it has occurred in

Malta.

(4) When excise goods moving under

a

duty

suspension

arrangement,

notwithstanding that they have Malta as their

destination, fail to arrive in Malta, and during

the movement no irregularity giving rise to

their release for consumption in accordance

with article 4(4)(a) has been detected, an

irregularity shall be deemed to have occurred

in the Member State of dispatch at the time

when the movement began, unless, within a

period of four months from when the

movement began, evidence is provided to the

satisfaction of the Member State of dispatch

of the end of the movement, or of the place

where the irregularity occurred

Provided that where the person

who guaranteed payment in accordance with

article 10 has not been, or could not have

been, informed that the goods have not

arrived at their destination, a period of one

month from the date of communication of

this information by the Comptroller shall be

granted to enable him to provide evidence of

the end of movement, or of the place where

the irregularity occurred.

(5) If before the expiry of a period of

three years from the date on which the

movement began, the Comptroller ascertains

that the irregularity referred to in subarticle

(4) actually occurred in Malta, he shall

inform the competent authorities of the

Member State where the excise duty was

levied, which shall reimburse or remit it as

soon as evidence of the levying of the excise

duty in the other Member State has been

provided.

(6) For the purpose of this article

(a)

the movement of excise

goods under a duty suspension

arrangement shall end, in the cases

referred to in article 8B(1)(a)(i), (ii),

and (iv) and article 8B(1)(b) when the

consignee has taken delivery of the

excise goods and, in the cases referred

to in article 8B(1)(a)(iii) when the

goods have left the territory of the

Community;

(b) the movement of excise

goods under a duty suspension

arrangement shall begin in the cases

referred to in article 8B(1)(a), when the

excise goods leave the tax warehouse of

dispatch, and in the cases referred to

article 8B(1)(b) upon their release for

free circulation in accordance with

Article 79 of Regulation (EEC) No.

2913/92;

(c)

"irregularity"

means

a

situation occurring during a movement

of excise goods under a duty

suspension arrangement, other than the

one referred to in article 14(5), due to

which a movement, or a part of a

movement of excise goods, has not

ended in terms of paragraph (a) of this

subarticle.

(1) Excise goods may be

Movement of

excise goods

moved under a duty suspension arrangement

under a

suspension of

within the territory of the Community,

excise duty.

including where the goods are moved via a

third country or a third territory

(a)

from a tax warehouse to

(i) another

tax

warehouse;

(ii) a

registered

consignee;

(iii) the place where the

excise goods leave the territory of

the Community;

(iv) a consignee referred

to in article 14(2), where the

goods are dispatched from another

Member State;

(b) from

the

place

of

importation to any of the destinations

referred to in paragraph (a), where the

goods are dispatched by a registered

consignor

Provided that for the purposes of

this paragraph, "place of importation"

means the place where the goods are

when they are released for free

circulation in accordance with Article

79 of Regulation (EEC) No 2913/92.

(2) By way of derogation from

subarticle 1(a)(i) and (ii) and (b) hereof, and

except in the situations referred to in the

proviso to article 10A(3), the Comptroller

may, under the conditions which he lays

down, allow excise goods to be moved under

a duty suspension arrangement to a place of

direct delivery, where that place has been

designated by the authorised warehouse

keeper or by the registered consignee. The

authorised warehouse keeper or the

registered consignee shall remain responsible

for submitting the report of receipt referred to

in regulation 10 to Part H of the Sixth

Schedule.

(3) subarticles (1) and (2) shall also

apply to movements of excise goods at a zero

rate which have not been released for

consumption.

(4) A movement of excise goods shall

be considered to take place under a duty

suspension arrangement only if it takes place

under cover of an electronic administrative

document process in accordance with the

procedure contemplated under Part H of the

Sixth Schedule to this Act.".

6. Article 10 of the principal Act shall be amended as

(a) the whole article shall be renumbered as subarticle

(1) thereof, and in paragraph (e) thereof, for the words "stock

checks." there shall be substituted the words "stock checks:";

(b) immediately at the end of subarticle (1) thereof as

renumbered, there shall be inserted the following proviso

"Provided that the Comptroller, under the

conditions set by him, may allow the guarantee referred in

paragraph (a) to be provided by the transporter or carrier,

the registered consignor, the owner of the excise goods, the

consignee, or jointly by two or more of the said persons

herein mentioned."; and

(c) immediately after the proviso to subarticle (1)

thereof, as renumbered, there shall be added the following new

subarticles

"(2) The guarantee mentioned in the previous

subarticle shall be valid throughout the Community and its

detailed rules shall be laid down by the Comptroller.

(3) The Comptroller may waive the obligation to

provide a guarantee in respect of the following movements

of excise goods under a duty suspension arrangement

(a)

movements which take place entirely in

Malta;

(b) where the other Member States concerned

so agree, movements of energy products within the

Community by sea or by fixed pipeline.".

7. For subarticle (3) of article 10A of the principal Act, there Amendment of

article 10A of

shall be substituted the following

the principal

Act.

"(3) A registered consignee shall comply with the

following requirements

(a) before dispatch of the excise goods, guarantee

payment of excise duty under the conditions fixed by the

Comptroller;

(b) at the end of the movement, enter in his

accounts excise goods received under a duty suspension

arrangement;

(c) consent to all monitoring and stock checks

enabling the Comptroller to verify that the goods have

actually been received

Provided that where a registered consignee receives

excise goods only occasionally, the authorisation granted by the

Comptroller shall be limited to a specified quantity of excise

goods, a single consignor and a specified period of time or to a

single movement. The Comptroller may limit the authorisation

for one movement.".

8. Immediately after paragraph (f) of subarticle (1) of article Amendment of

13 of the principal Act, there shall be added the following new article

principal Act.

paragraphs

"(g) the procedure to be followed on a movement of

excise goods under suspension of excise duty;

(h) guide levels to determine the quantity of an article

subject to excise duty.".

Immediately after paragraph (c) of subarticle (2) of article

14 of the principal Act, there shall be added the following

"(d) excise goods intended to be used by

international organizations recognized by the host Member

State, and by members of such organizations, within the

limits and under the conditions laid down by the

international conventions establishing such organizations

or by headquarters agreements;

(e) excise goods intended to be used for

consumption under an agreement concluded with third

countries or international organizations provided that such

an agreement is allowed or authorised with regard to an

exemption from value added tax

Provided that excise goods moving under a duty

suspension arrangement to a person referred to in this subarticle

shall be accompanied by an exemption certificate in the form

and content established by the Comptroller.".

Immediately after article 14 of the principal Act, there

shall be inserted the following new articles

" Excise goods

(1) Excise duty on excise goods

acquired by a

acquired by a private individual for his own

private

use, and personally transported from a

individual.

Member State to Malta, shall be charged in

the Member State in which the excise goods

are acquired.

(2)

To determine whether the excise

goods referred to in subarticle (1) are

intended for the own use of a private

individual, the Comptroller shall take

account of the following

(a)

the commercial status of the

holder of the excise goods and his

reasons for holding them;

(b) the place where the excise

goods are located or, if appropriate, the

mode of transport used;

(c)

any document relating to

the excise goods;

(d) the nature of the excise

goods; and

(e)

the quantity of the excise

goods.

(3)

For the purposes of applying

subarticle (2)(e), the Minister may make

regulations laying down guide levels, solely

as a form of evidence.

(4)

The Minister may, by notice in the

Gazette, also provide that excise duty shall

become due on the acquisition of mineral oils

already released for consumption in another

Member State if such products are

transported by a private individual using

atypical modes of transport.

(1) Without prejudice to article

Excise goods

already released

14D(1), excise goods which have already

for consumption.

been released for consumption in one

Member State and are held for commercial

purposes in Malta in order to be delivered or

used in Malta, shall be subject to excise duty

in Malta

Provided that for the purpose of

this subarticle, holding for commercial

purposes shall mean the holding of excise

goods by a person other than a private

individual or by a private individual for

reasons other than his own use and

transported by him.

(2)

Excise duty due in terms of

subarticle (1) shall be paid by the person

making the delivery or holding the goods

intended for delivery, or to whom the goods

are delivered in the other Member State, as

the case may be.

(3)

Without prejudice to article 14F,

excise goods which have already been

released for consumption in one Member

State and move within the Community for

commercial purposes shall not be regarded as

being held for such purposes until they reach

the Member State of destination, provided

that they are moving under cover of the

formalities set out at Part H of the Sixth

Schedule.

(4)

Excise goods which are held on

board a boat or aircraft making sea-crossings

or flights between Malta and another

Member State but which are not available for

sale when the boat or aircraft is in the

Maltese territory shall not be regarded as

held for commercial purposes in Malta.

(5)

When excise duty for excise goods

which were released for consumption in

Malta had become chargeable and collected

in another Member State, the Comptroller

may request the authorities of the other

Member State for a reimbursement or

remittance of the duty paid.

(1) Excise goods which have

Excise goods

released for

been released for consumption in terms of

consumption in

terms of article

article 14B(1) shall move between the

14B(1).

territories of the various Member States

under cover of an accompanying document

listing the main data from the document

referred to at Part H of the Sixth Schedule.

(2)

The persons referred in article

14B(2) shall comply with the following

requirements

(a)

before the goods are

dispatched they shall submit a

declaration to the Comptroller and

guarantee payment of the excise duty;

(b) pay the excise duty to the

Comptroller after the excise goods

arrive;

(c)

consent to any checks by an

excise officer to satisfy himself that the

excise goods have actually been

received and that the excise duty

chargeable on them has been paid.

(1) Excise

goods

already

Excise goods

already released

released for consumption in one Member

for consumption

in a Member

State, which are purchased by a person, other

State.

than an authorised warehouse keeper or a

registered consignee, established in another

Member State who does not carry out an

independent economic activity, and which

are dispatched or transported to Malta

directly or indirectly by the vendor or on his

behalf, shall be subject to excise duty.

(2)

In the case referred to in subarticle

(1), the excise duty shall become chargeable

at the time of delivery of the excise goods.

The chargeability conditions and rate of

excise duty to be applied shall be those in

force on the date on which the duty becomes

chargeable.

(3)

The person liable to pay the excise

duty is the vendor who shall comply with the

following requirements

(a)

before

dispatching

the

excise goods, he shall register his

identity and guarantee payment of the

excise duty with the Comptroller and be

subject to the conditions laid down by

the Comptroller;

(b) pay the excise duty to the

Comptroller after the excise goods

arrive;

(c)

keep accounts of deliveries

of the excise goods

Provided that the Minister may

enter into bilateral agreements with other

Member States in order to simplify these

requirements.

(4)

In the case referred to in subarticle

(1), the excise duty levied shall be

reimbursed or remitted by the Comptroller at

the vendor’s request, where the vendor has

followed the procedures laid down in

subarticle (3).

(5)

The Minister may, by a notice in

the Gazette, lay down specific rules for

applying subarticles (1) to (4) to excise goods

that are covered by special national

distribution arrangements.

(1) In the situations referred to

Loss of excise

goods during

in article 14B(1) and article 14D(1), in the

transport.

event of the total destruction or irretrievable

loss of the excise goods, during their

transport, which were not released for

consumption in Malta, as a result of the

actual nature of the goods, or unforeseeable

circumstances, or force majeure, or as a

consequence of authorisation by the

Comptroller, the excise duty shall not be

chargeable in Malta

Provided that the total destruction

or irretrievable loss of the excise goods in

question shall be proven to the satisfaction of

the Comptroller. Furthermore, the guarantee

lodged pursuant to article 14C(2)(a) or article

14D(4)(a) shall be released.

(2)

The Minister may, after consulting

the Comptroller, by notice in the Gazette, lay

down the rules and conditions under which

the losses referred to in subarticle (1) are

determined.

(1) Where an irregularity has

Irregularity

occurring or

occurred in Malta during a movement of

detected in

Malta.

excise goods under article 14B(1) or article

14D(1), and such excise goods were released

for consumption in another Member State,

they shall be subject to excise duty.

(2)

Where an irregularity has been

detected in Malta during a movement of

excise goods under article 14B(1) or article

14D(1), and such excise goods were released

for consumption in another Member State,

and it is not possible to determine where the

irregularity occurred, the irregularity shall be

deemed to have occurred in Malta

Provided that if, before the expiry

of a period of three years from the date on

which the excise goods were acquired, it is

ascertained in which Member State the

irregularity actually occurred, the provisions

of subarticle (1) shall apply.

(3)

The excise duty shall be due from

the person who guaranteed payment thereof

in accordance with article 14C(2)(a) or

article 14D(4)(a) and from any person who

participated in the irregularity

Provided that, if the excise goods

were released for consumption, the

Comptroller shall, upon request, reimburse or

remit the excise duty in the Member State

where the irregularity occurred or was

detected. Furthermore, the Comptroller shall

release the guarantee lodged pursuant to

article 14(C)(2)(a) or article 14D(4)(a).

(4)

For the purposes of this article,

"irregularity" means a situation occurring

during a movement of excise goods under

article 14B(1) or article 14D(1), not covered

by article 14E, due to which a movement, or

a part of a movement, of excise goods has not

duly ended.".

11. Subarticle (1) of article 15 of the principal Act shall be Amendment of

article 15 of the

amended as follows

principal Act.

(a) for the words "No excise duty" there shall be

substituted the words "Unless otherwise specified in this Act, no

excise duty"; and

(b) in the first proviso thereto, for the words "duty has

been paid:" there shall be substituted the words "duty has been

paid and excise duty on excise goods which have been released

for consumption may, at the request of the person concerned, be

reimbursed or remitted by the Minister where those goods were

released for consumption in the situations identified by the

Minister and in accordance with the conditions that the Minister

shall lay down by a notice in the Gazette for the purpose of

preventing any possible evasion or abuse. Such reimbursement

or remission may not give rise to exemptions other than those

provided in article 14:".

Passed by the House of Representatives at Sitting No. 255 of the

14th July, 2010.

M ICHAEL F RENDO

Speaker

P AULINE A BELA

Clerk to the House of Representatives