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Maltese Laws |
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:-
(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.
Short title and commencement.
Cap. 382.
A 946
Substitution of article 2 of the principal Act.
Cap. 37.
"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
A 947
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;
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(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;
Amendment of article 4 of the principal Act.
"the Treaty" means the Treaty establishing the European
Community.".
(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;
A 949
(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.".
A 950
Amendment of article 8 of the principal Act.
"(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.".
A 951
"Irregularity. 8A. (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:
Addition of new articles 8A and
8B to the principal Act.
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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;
A 953
Movement of excise goods under a suspension of excise duty.
(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.
8B. (1) Excise goods may be 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:
(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.
A 954
Amendment of article 10 of the principal Act.
(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.".
(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
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(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.".
"(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.".
13 of the principal Act, there shall be added the following new paragraphs:
Amendment of article 10A of the principal Act.
Amendment of article 13 of the principal Act.
A 956
"(g) the procedure to be followed on a movement of excise goods under suspension of excise duty;
Amendment of article 14 of the principal Act.
Addition of new articles 14A to
14F to the principal Act.
(h) guide levels to determine the quantity of an article subject to excise duty.".
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.".
"Excise goods acquired by a private individual.
14A. (1) Excise duty on excise goods acquired by a private individual for his own use, and personally transported from a 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;
A 957
Excise goods already released for consumption.
(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.
14B. (1) Without prejudice to article
14D(1), excise goods which have already 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.
A 958
Excise goods released for consumption in terms of article
14B(1).
(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.
14C. (1) Excise goods which have been released for consumption in terms of article 14B(1) shall move between the 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;
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Excise goods already released for consumption in a Member State.
(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.
14D. (1) Excise goods already released for consumption in one Member State, which are purchased by a person, other
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.
A 960
Loss of excise goods during transport.
Irregularity occurring or detected in Malta.
(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.
14E. (1) In the situations referred to in article 14B(1) and article 14D(1), in the 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.
14F. (1) Where an irregularity has occurred 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, they shall be subject to excise duty.
A 961
(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.".
(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
Amendment of article 15 of the principal Act.
A 962
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.
MICHAEL FRENDO
Speaker
PAULINE ABELA
Clerk to the House of Representatives
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