customs and excise legislation amend (No2) 1996

Customs and Excise Legislation Amendment Act (No. 1) 1997

No. 97, 1997

An Act to amend legislation relating to Customs and Excise, and for related purposes

[Assented to 30 June 1997]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Customs and Excise Legislation Amendment Act (No. 1) 1997.

2 Commencement

(1) Subject to subsections (2) to (5), this Act commences on the day on which it receives the Royal Assent.

(2) The items of Schedule 1 (other than item 27) and Schedule 2 (other than item 14) commence on a day or days to be fixed by Proclamation.

(3) If an item to which subsection (2) applies does not commence within a period of 6 months after the day on which this Act receives the Royal Assent, the item commences on the first day after the end of that period.

(4) Item 27 of Schedule 1 commences immediately after the commencement of item 26 of that Schedule under subsection (2) or (3).

(5) Item 14 of Schedule 2 commences immediately after the commencement of item 13 of that Schedule under subsection (2) or (3).

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Customs Act 1901

1 Subsection 4(1)

Insert:

diesel fuel rebate means rebate payable in respect of diesel fuel under section 164.

2 Subsection 4(1)

Insert:

diesel fuel rebate application means an application for diesel fuel rebate made under section 164.

3 Subsection 4(1)

Insert:

diesel fuel records means records (including records in documentary form) that are required to be maintained, or created and maintained, under section 240A.

4 Before subsection 164(1)

Insert:

(1AA) This section makes provision for a rebate to be payable in respect of diesel fuel purchased for certain usages. In particular (but without limiting the effect of the provisions), it sets out:

(a) the particular usages of diesel fuel that would entitle a person to apply for rebate (subsection (1)); and

(b) matters relating to the making of an application for the rebate (subsections (1A) to (1D), (3) and (4)); and

(d) matters relating to the gathering of information for risk assessment purposes (subsections (1F) and (1G)); and

(e) other tests of eligibility for the rebates (subsections (2) and (4A)); and

(f) rules about calculation of the rate of rebates (subsections (5), (5A), (5AA) and (5AB)); and

(g) the application of provisions of the Acts Interpretation Act 1901 in relation to a notice under subsection (5A) declaring a rate of rebate (subsection (5B)); and

(h) a special appropriation clause for the purposes of this section (subsection (6)); and

(i) definitions of important terms used in this section (subsections (7) to (9)).

5 Subsection 164(1)

Omit “and (3)”, substitute “and (4A)”.

6 Paragraph 164(1)(a)

Omit “a road”, substitute “any”.

7 Subsection 164(1A)

Repeal the subsection, substitute:

(1A) An application for rebate to be paid in respect of diesel fuel under subsection (1) must:

(a) be made in accordance with an approved form; and

(b) include such information as is required by the form; and

(d) be given to an officer doing duty in relation to diesel fuel rebate; and

(e) if regulations made under subsection (1) provide that a rebate is not payable to an applicant under this section unless, when the application is made, the applicant gives an officer doing duty in relation to diesel fuel rebate prescribed records containing prescribed information—be accompanied by such records.

(1B) The CEO may waive the requirement under paragraph (1A)(e) if the CEO is satisfied that the applicant is unable to give the records because of circumstances beyond the applicant’s control.

(1C) The application must not be made before duty is paid on the diesel fuel concerned.

(1D) In addition to other matters that may be required to be included in the approved form, the applicant must, in the approved form:

(a) include an assessment of the applicant’s entitlement to rebate that is being applied for (including any particulars or estimates concerning the amount of diesel fuel and the use or intended use of the fuel on which the assessment is based); and

(b) certify that the information contained in the application is correct; and

(c) state that the applicant is aware of the applicant’s obligation in relation to the keeping of diesel fuel records as required under section 240A in relation to diesel fuel covered by the application and any other diesel fuel that has been, or is being, stored with that fuel; and

(d) state that the applicant is aware of the applicant’s obligations in relation to the exercise of the audit powers by an authorised officer conducting an audit under section 164AC.

(1E) Subject to this section, the CEO may, for the purposes of subsection (4B) and having regard to the outcome of any audit that relates, in whole or in part, to a particular application, adopt the whole or any part of the applicant’s assessment contained in the application as the CEO’s assessment of the applicant’s entitlement to rebate in respect of that application.

(1F) A person who has applied for, or who has been paid, an amount of diesel fuel rebate, must, if the CEO, by notice in writing, requires the person to do so, give the CEO information, in an approved form, within the time specified in the notice, concerning:

(a) the business or operations of the person in respect of which the person has made, or ordinarily makes, application for rebate; and

(b) any business circumstances or seasonal factors that might affect the volume or incidence of applications by the person for rebate.

(1G) If the CEO is satisfied that a person who is required to provide information under subsection (1F) fails to comply with that requirement, the CEO may advise the person that the CEO is so satisfied and, if he or she does so:

(a) the person ceases to have any entitlement to have any existing diesel fuel rebate application dealt with, or further dealt with, or any new diesel fuel rebate application dealt with, until the person so complies; but

(b) any rebate that has been paid in respect of a past diesel fuel rebate application is unaffected by the refusal or failure.

8 Subsection 164(2)

Repeal the subsection, substitute:

(2) A person is not entitled to be paid diesel fuel rebate, or to retain diesel fuel rebate paid to the person, in respect of diesel fuel purchased by the person for use by the person in a manner referred to in subsection (1) that is specified in the application for that rebate if, in fact, the person:

(a) uses the fuel otherwise than in that manner; or

(b) sells or otherwise disposes of the fuel; or

Note: If rebate has been paid on diesel fuel that is subsequently used in a manner other than the manner indicated, or sold or otherwise disposed of, or lost, the rebate on the fuel is repayable. (See sections 164AA and 164AD).

9 Subsections 164(4AA), (4AB), (4A), (4B), (4C) and (4D)

Repeal the subsections, substitute:

(4A) Rebate on a diesel fuel application received on or after 1 July 1994 is payable only in respect of diesel fuel purchased within 3 years before that application is so received, except where the applicant made an application, before the commencement of item 7 of Schedule 1 to the Customs and Excise Legislation Amendment Act (No. 1) 1997, on particular grounds indicated in a notice of intention to make such an application that was given to Customs by the applicant before 1 July 1994.

(4B) If a person who has applied for diesel fuel rebate is to be paid rebate in respect of some or all of the diesel fuel to which the application relates, the CEO must, by written assessment, inform the person in writing of the amount of rebate (if any) payable to the person under the application.

Note: The CEO’s assessment may be subject to amendment under section 164AD.

10 Subsection 164(7)

Insert:

gross vehicle weight, in relation to a vehicle, means the road weight specified by the manufacturer of the vehicle as the maximum design weight capacity of the vehicle, or, in the absence of such a specification, the sum of the following:

(a) the weight of the vehicle;

(b) the weight of the maximum load for which the vehicle was designed (including the weight of the driver and a full tank of fuel).

11 Subsection 164(7) (paragraphs (a) and (b) of the definition of mining operations)

Repeal the paragraphs, substitute:

(a) exploration or prospecting for minerals, or the removal of overburden and other activities undertaken in the preparation of a site to enable mining for minerals to commence; or

(b) operations for the recovery of minerals, being:

(i) mining for those minerals including the recovery of salts by evaporation; or

(ii) the beneficiation of those minerals, or of ores bearing those minerals;

Note: Paragraph (b) has a meaning that is affected by subsection (7A).

12 Subsection 164(7) (paragraph (c) of the definition of mining operations)

Repeal the paragraph, substitute:

(c) if minerals, or ores bearing minerals, are beneficiated at a place other than the mining site as an integral part of operations for their recovery:

(i) the journey undertaken for the purpose of transporting the minerals or ores from the mining site to that place except to the extent (if any) that the journey involves transportation by sea; and

(ii) the return journey of a vehicle, a locomotive or other equipment from that place to the mining site or any part of that journey if it is undertaken for the purpose of repeating a journey referred to in subparagraph (i) or for the backloading of raw materials or consumables for use in a mining operation referred to in paragraph (a) or (b); or

13 Subsection 164(7) (paragraph (g) of the definition of mining operations)

Repeal the paragraph.

14 Subsection 164(7) (paragraph (h) of the definition of mining operations)

After “ores bearing gold”, insert “if the reactivation occurs at the place where a recovery operation referred to in paragraph (b) is carried on”.

15 Subsection 164(7) (paragraph (l) of the definition of mining operations)

Omit “or at a place adjacent to that place”.

16 Subsection 164(7) (paragraph (p) of the definition of mining operations)

Repeal the paragraph, substitute:

(p) the construction or maintenance of:

(i) tailings dams for use in a mining operation referred to in paragraph (a) or (b); or

(ii) dams, or other works, to store or contain water that has been used in, or obtained in the course of conducting, a mining operation referred to in paragraph (a) or (b) and that contains contaminants that preclude its release into the environment;

if the construction or maintenance:

(iii) occurs at the place where the mining operation is carried on or at a place adjacent to that place; and

(iv) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or

(pa) the construction or maintenance of dams for the storage of uncontaminated water for use in a mining operation referred to in paragraph (a) or (b) if the construction or maintenance:

(i) occurs at the place where the mining operation is carried on; and

(ii) is carried out by the person who carries on the mining operation or by a person contracted by that person to carry out the construction or maintenance; or

17 Subsection 164(7) (paragraph (v) of the definition of mining operations)

Omit “transport networks,”.

18 Subsection 164(7) (after paragraph (v) of the definition of mining operations)

Insert:

(va) the service, maintenance or repair of transport networks that are employed solely for use in a mining operation referred to in paragraph (c) to the extent that the service, maintenance or repair:

(i) is carried out on so much of the network as is located at the place where a mining operation referred to in paragraph (a) or (b) is carried out; and

(ii) is carried out by the person who carries on the mining operation referred to in paragraph (c) or by a person contracted by that person to carry out the service, maintenance or repair; or

19 Subsection 164(7) (definition of mining operations)

Omit all the words from and including “but does not include”, substitute:

but does not include:

(x) quarrying or dredging operations to the extent that the purpose of the operations is to obtain materials for use in building, road making, landscaping, construction or similar purposes; or

(y) the use of a vehicle (other than a fork-lift, front-end loader, tractor or other similar prescribed vehicle) not exceeding 3.5 tonnes gross vehicle weight, other than such a vehicle that is extensively modified for use underground while it is so used; or

(z) the transport, by any means, of people, equipment or goods to or from a place where a mining operation referred to in any of paragraphs (a) to (w) is, or is to be, carried on, or to or from a place adjacent to that place, other than such transport to the extent that it constitutes the activity described in paragraph (c), (n) or (s).

Note: Examples of quarrying or dredging operations that are covered by paragraph (x) include operations for obtaining materials for use as concrete aggregate, road base materials, railway ballast, fill materials, building stone or monumental stone.

20 Subsection 164(7) (at the end of the definition of use)

Add “or the loss of the diesel fuel by the person”.

21 After subsection 164(7)

Insert:

(7A) For the purposes of the definition of mining operations, operations for the recovery of a mineral cease:

(a) when the process of beneficiation ceases; or

(b) in the absence of a beneficiation process—when the mineral, or ores bearing the mineral:

(i) are first stockpiled or otherwise stored at the place at which the mining operation is carried on; or

(ii) if subparagraph (i) does not apply—are removed from the ore body or deposit.

(7B) The beneficiation of ores bearing manganese minerals ceases when manganese-mineral concentrates are last deposited in a holding bin, or in a stockpile, at the place where the concentration is carried on, before transportation of those concentrates.

(7C) In determining whether a particular process to which a mineral, or ores bearing a mineral, are subjected constitutes beneficiation of that mineral or those ores, regard is to be had to the nature of the technical process involved but no regard is to be had to any market considerations that might affect the decision to subject that mineral or those ores to that process.

22 Subsection 164(9)

Repeal the subsection, substitute:

(9) For the purposes of determining whether an operation is a mining operation:

(a) the operations referred to in paragraph (i), (k), (ka), (l), (m), (n), (o), (p), (pa) (q), (r), (u) (v) or (va) of the definition of mining operations include such operations when they are carried out by a subcontractor of a person contracted to carry out the operations; and

(b) the paragraphs occurring after paragraph (b) of the definition of mining operations are, subject to subsections (7A), (7B), (7C) and (8) and paragraph (9)(a), to be construed in their own terms and not by reference to paragraph (a) or (b) of the definition.

(10) The regulations may provide that, without otherwise affecting the ordinary meaning of beneficiation, a particular process, or a particular process in respect of a particular mineral or of ores bearing a particular mineral, is, for the purposes of this Act, a beneficiation process, or a beneficiation process in respect of that mineral or those ores, as the case requires.

23 Sections 164A and 164AA

Repeal the sections, substitute:

164A Diesel fuel rebate—notification of sale etc.

(1) If a person who has made a diesel fuel rebate application in respect of diesel fuel purchased by the person (whether or not the rebate has been paid):

(a) sells or otherwise disposes of the fuel; or

(b) uses the fuel in a manner other than the manner indicated in the application; or

the person must, within 21 days after the sale, other disposal or use of the fuel, or within 21 days after the loss of the fuel became known to the person, give particulars in writing of the sale, other disposal, use or loss to the CEO, to the Regional Director for a State or Territory or to an officer doing duty in relation to diesel fuel rebate.

Penalty: An amount not exceeding the amount of the diesel fuel rebate applied for in respect of the fuel for whose sale, other disposal, use or loss, particulars were required to be, but were not, given.

(2) An offence against subsection (1) is an offence of strict liability.

164AA Diesel fuel rebate—penalty in lieu of prosecution

(1) If the CEO has reasonable grounds to believe that a person who has made a diesel fuel rebate application (the applicant):

(a) has contravened section 164A in respect of some or all of the diesel fuel to which the application relates; or

(b) has contravened subsection 164AC(8) in respect of some or all of the diesel fuel to which the application relates;

the CEO may serve on the applicant a notice in writing in accordance with subsection (2).

(2) A notice under subsection (1) must:

(a) set out the CEO’s amendment, under section 164AD, of the assessment of the person’s rebate entitlement in respect of the fuel; and

(b) if paragraph (1)(a) applies—specify the diesel fuel whose sale, other disposal, use or loss, has not been notified in accordance with section 164A and demand:

(i) repayment of the amount of any diesel fuel rebate paid in respect of that fuel; and

(ii) payment of a penalty equal to 20% of the amount of diesel fuel rebate applied for in respect of fuel in respect of which there was no notification; and

(c) if paragraph (1)(b) applies—specify the amount of diesel fuel rebate applied for that was not substantiated and demand:

(i) repayment of the amount of any diesel fuel rebate paid in respect of that fuel that was not substantiated; and

(ii) payment of a penalty equal to 20% of the amount of diesel fuel rebate applied for that was not substantiated; and

(d) set out the terms of, or adequate particulars of the provisions of, subsection (3); and

(e) specify the address at which payment of an amount demanded under subsection (3) may be made.

(3) If:

(a) a notice is served on the applicant under subsection (1); and

(b) the applicant pays to an officer doing duty in relation to diesel fuel rebate, at the address specified in the notice and within 21 days after the day on which the notice was served, the sum of the amounts demanded in the notice (the notice amount);

the applicant is not liable to be prosecuted under a provision of this Act for any offence in relation to the rebate to which the notice relates.

(4) If a notice is served on the applicant under subsection (1), the applicant may give the CEO, within 21 days after the day on which the notice was served, a written request (the request) to set off some or all of the diesel fuel rebate referred to in subsection (5) (the expected rebate) against the notice amount.

(5) If the CEO is satisfied that diesel fuel rebate is, or is likely to become, payable to the applicant within 12 months after the day on which the notice was served, the CEO may accept the request and, if he or she does so, the CEO must inform the applicant accordingly.

(6) If:

(a) the CEO rejects the request; and

(b) the applicant pays the notice amount to an officer doing duty in relation to diesel fuel rebate, at the address specified in the notice and within 21 days after the day on which that rejection was notified to the applicant;

the applicant is not liable to be prosecuted under a provision of this Act for any offence in relation to the rebate to which the notice relates.

(7) If the CEO accepts the request, then:

(a) if the expected rebate is likely to exceed the notice amount—any diesel fuel rebate that is, or that becomes, payable within 12 months after the acceptance is set off against the notice amount, to the extent that the notice amount is unpaid; or

(b) if the expected rebate is not likely to exceed the notice amount:

(i) the amount by which the CEO believes the notice amount will exceed the expected rebate is payable within 21 days of the applicant being notified of that amount; and

(ii) any diesel fuel rebate that is, or that becomes, payable under subsection 164(1) within 12 months after the CEO accepts the request is set off against that part of the notice amount that is not payable under subparagraph (i).

(8) If:

(a) the CEO has accepted the request; and

(b) any amount payable in respect of that request under subparagraph (7)(b)(i) has been paid within the time limit specified in that subparagraph;

the applicant is not liable to be prosecuted under a provision of this Act for any offence in relation to the rebate to which the notice relates.

(9) If:

(a) the CEO has accepted the request; and

(b) any amount payable in respect of that request under subparagraph (7)(b)(i) has been paid within the time limit specified in that subparagraph; and

(c) the notice amount has not been paid or set off under this section within 12 months after the CEO accepted the request;

the notice amount, or so much of the notice amount as remains unpaid, may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

164AB Voluntary notification of error

(1) If:

(a) at any time before a person is notified by the CEO under subsection 164AC(1) of an audit in respect of a particular diesel fuel rebate application, the person notifies an officer doing duty in relation to diesel fuel rebate in writing that, because of an error or errors in the application, the person has applied for an amount of diesel fuel rebate to which the person is not entitled; and

(b) the CEO, under section 164AD, amends the assessment in respect of that application to take account of the error or errors; and

(c) the person repays to the Commonwealth the amount of any diesel fuel rebate (the overclaimed rebate) that was paid to the person on that application and to which the person was not entitled in accordance with the CEO’s amendment of the assessment;

the person is not liable to be prosecuted or penalised under a provision of this Act in relation to the overclaimed rebate.

(2) Subsection (1) does not affect the person’s liability under another Act in respect of any error or errors in the application.

164AC Audit of diesel fuel rebate applications

(1) For the purposes of auditing a particular diesel fuel rebate application, the CEO may, by notice in writing given to the person who made that application (the applicant) before the end of 5 years after the making of that application, inform the applicant:

(a) that he or she is required to substantiate the entitlement to any rebate applied for under the application; and

(b) that, for the purposes of the audit, an authorised officer may wish to exercise all or any of the audit powers conferred by this section.

(2) For the purposes of subsection (1), the audit powers of an authorised officer in relation to a particular diesel fuel rebate application are powers to do all or any of the following:

(a) to require the applicant to demonstrate to the authorised officer the method, or the operation of any record keeping or accounting system, employed in arriving at the particulars or estimates included in the application and in the related diesel fuel records;

(b) to conduct testing of the record keeping or accounting system referred to in paragraph (a) in order to determine the accuracy of the system in arriving at those particulars or estimates;

(c) to require the applicant, within a period notified by the authorised officer (whether in a notice under subsection (1) or otherwise), to make available for inspection by the officer diesel fuel records that substantiate the entitlement to rebate applied for under the application;

(d) to examine, make and retain copies of, or take and retain extracts from, any records made available in accordance with a requirement under paragraph (c);

(e) subject to subsections (4) and (5), to examine any premises, whether indicated by the records themselves or by the applicant, where diesel fuel the subject of the application has been, or is, used or stored;

(f) to examine any receptacle in which diesel fuel the subject of the application has been stored, or is stored, and to inspect, take and retain samples of, any fuel stored in it;

(g) subject to subsection (6), to board and examine any vessel, or to examine any vehicle or machine, in the control of the applicant, in which diesel fuel the subject of the application has been used or is used, and to examine, take and retain samples of, any fuel in that vessel, vehicle or machine;

(h) to require the applicant to answer any questions concerning the diesel fuel the subject of the application.

(3) An applicant may comply with a requirement to make diesel fuel records available to authorised officers:

(a) by sending or giving the records to the authorised officer for examination; or

(b) if the records are maintained at the residential premises of the applicant—by consenting to their examination, at any reasonable time, by the authorised officer at those premises; or

(c) if the records are maintained at premises that are not residential premises—by notifying the authorised officer that the records may be examined, at any reasonable time, by the authorised officer at those premises.

(4) The power of an authorised officer under paragraph (2)(e) extends to a power to examine residential premises only if:

(a) the application relates to diesel fuel that was purchased for use at those premises in a manner that falls within paragraph 164(1)(b); and

(b) the occupant or person in charge of those premises consents to the entry of the authorised officer for the purpose of exercising that power.

(5) The power of an authorised officer under paragraph (2)(e) extends to a power to examine the residential areas of premises described in paragraph 164(1)(c) or (d) only if:

(a) the application relates to diesel fuel that was purchased for use at those premises in a manner that falls within that paragraph; and

(b) the occupant or person in charge of those premises consents to the entry of the authorised officer for the purpose of exercising that power.

(6) The power of an authorised officer under paragraph (2)(g) extends to a power to examine a part of a vessel that comprises the living quarters for any of the crew of the vessel only if:

(a) the application relates to diesel fuel that was purchased for use in the vessel in a manner that falls within paragraph 164(1)(b); and

(b) the person in charge of the vessel consents to the entry of the authorised person for the purpose of exercising that power.

(7) The power of an authorised officer to examine a vessel, vehicle or machine includes a power to conduct, or supervise the conducting of, a test of the vessel, vehicle or machine in order to determine its rate of diesel fuel consumption.

(8) The applicant who has received a notice requiring that applicant to make available diesel fuel records that substantiate the entitlement to rebate applied for must not refuse or fail to make such records available for inspection.

Penalty: An amount not exceeding the amount of the rebate applied for and not substantiated.

(9) An offence against subsection (8) is an offence of strict liability.

(10) In determining whether diesel fuel records substantiate a person’s entitlement to rebate applied for in respect of particular fuel, any particulars relating to the use or intended use of the fuel that are established in the exercise of an authorised officer’s powers under this section may be taken into account.

(11) For the purposes of this section, the CEO may, by notice published in the Gazette, specify a rate of diesel fuel consumption as the standard rate of diesel fuel consumption for a specified kind of vessel, vehicle or machine.

(12) If:

(a) a standard rate of diesel fuel consumption for a specified kind of vessel, vehicle or machine is specified under subsection (11); and

(b) an applicant applies for diesel fuel rebate in respect of diesel fuel used or to be used in a particular vessel, vehicle or machine that falls within that specified kind of vessel, vehicle or machine (as the case may be); and

(c) the amount of rebate applied for is based on a rate of diesel fuel consumption (the claimed rate) that is greater than the standard rate;

then, the applicant’s diesel fuel records are not to be taken to substantiate the applicant’s entitlement to the rebate unless the records establish, or it is otherwise established, that the particular vessel, vehicle or machine in fact consumes diesel fuel at the claimed rate in circumstances similar to circumstances to which the application relates.

(13) If an authorised officer proposes, under this section, to enter any premises or to board any vessel, the officer must, if requested to do so by the occupier or person in charge of the premises, or the person in control of the vessel, produce for inspection written evidence of the fact that he or she is an authorised officer, and, if the officer fails to do so, he or she is not authorised to enter the premises or board the vessel.

(14) The occupier or person in charge of premises entered, or the person in control of a vessel boarded, must provide the authorised officer with all reasonable facilities and assistance for the effective exercise of the officer’s powers.

Penalty: 10 penalty units.

(15) A person is not excused from making available a record when required to do so under subsection (2) on the grounds that the making available of the record makes the person liable to a penalty, but any records so made available are not admissible in evidence against the person in proceedings other than proceedings for an offence against section 164A, subsection (8) of this section or paragraph 234(1)(c) or (d), in relation to diesel fuel rebate.

(16) Nothing in this section prevents the CEO from auditing, at a particular time, a number of diesel fuel rebate applications made by the same person if each of the applications may be audited by the CEO under subsection (1) at that time.

164AD CEO may amend the assessment of a person’s rebate entitlement

(1) Subject to subsection (5), within 5 years after the making of a diesel fuel rebate application, the CEO may, under subsection (2), (3) or (4), amend the assessment of the rebate payable on the application (whether or not the assessment has previously been amended under this section).

(2) The CEO may amend the assessment of rebate payable on a diesel fuel rebate application if:

(a) the applicant notifies an officer doing duty in relation to diesel fuel rebate, under section 164A, of particulars of the sale, other disposal, use or loss of diesel fuel in respect of which rebate was applied for; or

(b) the CEO otherwise becomes aware of such a sale, other disposal, use or loss.

(3) The CEO may amend the assessment of rebate payable on a diesel fuel rebate application if:

(a) either:

(i) the applicant notifies an officer doing duty in relation to diesel fuel rebate in writing of an error or errors in the application before the applicant is notified by the CEO under subsection 164AC(1) of an audit of that particular application; or

(ii) the CEO otherwise becomes aware of an error or errors in the application; and

(b) the CEO is satisfied that the assessment should be amended to take account of the error or errors.

(4) The CEO may amend the assessment of rebate payable on a diesel fuel rebate application if:

(a) Customs conducts an audit under section 164AC in relation to the rebate applied for; and

(b) having regard to the results of the audit, the CEO is satisfied that the assessment should be amended.

(5) If:

(a) a court or the Administrative Appeals Tribunal has decided that diesel fuel rebate is or is not payable in relation to a person in particular circumstances; and

(b) the CEO is proposing, under subsection (2), (3) or (4), to amend an assessment of diesel fuel rebate payable on an application made by another person who was in similar circumstances; and

the CEO must not, in amending that assessment, vary the amount of the rebate in a manner that would, but for the operation of this subsection, be required having regard to that decision.

(6) If the CEO amends an assessment:

(a) the CEO must notify the applicant for the rebate to which the assessment relates in writing of the amendment; and

(b) if the CEO does not give the applicant a notice under section 164AA in respect of some or all of the rebate to which the original assessment related—the notice must inform the applicant that he or she may apply to have the amended assessment reviewed by the Administrative Appeals Tribunal.

(7) Subject to subsection (9), if, in accordance with the amended assessment, the person was not entitled to the whole or a part of diesel fuel rebate that was paid to the person:

(a) the person must repay the whole or that part (as the case may be) of the amount of the rebate; and

(b) if the person fails to repay an amount that should be repaid under paragraph (a), the amount that should be repaid may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

(8) If, in accordance with the amended assessment, the person was entitled to an amount of diesel fuel rebate exceeding the amount of the rebate that was paid to the person, the CEO must pay to the person the amount of the excess as soon as practicable after the making of the amendment.

(9) Subsection (7) does not apply if a person is required to repay an amount of diesel fuel rebate because of an amended assessment made in circumstances described in section 164AA.

164AE CEO’s power to seek information

The CEO may, by written notice given to:

(a) the head of a Department or an authority of the Commonwealth, a State or Territory or the head of a local government authority; or

(b) any other person;

request the head of the Department or authority or the person (as the case may be) to provide the CEO with information in connection with diesel fuel the subject of a diesel fuel rebate application.

24 Subsection 165(3)

After “rebate of duty”, insert “(other than diesel fuel rebate)”.

25 Subsection 165(4)

Repeal the subsection.

26 Section 165A

Omit “subsection 164(2) or 165(3)” (wherever occurring), substitute “subsection 164AD(7)”.

27 Section 165A

Move to immediately before section 164B and renumber as section 164AF.

28 Section 214A

Repeal the section.

29 Paragraph 234(1)(b)

After “rebate”, insert “(other than diesel fuel rebate)”.

30 After paragraph 234(1)(b)

Insert:

31 After paragraph 234(2)(b)

Insert:

(ba) in the case of an offence against paragraph (1)(c), by a penalty not exceeding 3 times the amount of diesel fuel rebate that was obtained or retained in the commission of the offence;

32 Paragraph 234(2)(c)

Omit “subsection (3)”, substitute “subsections (3) and (4)”.

33 At the end of section 234

Add:

(4) If a person is convicted of an offence against paragraph (1)(d) in relation to a statement made, or an omission from a statement made, in respect of an amount of diesel fuel rebate applied for under section 164, a court may, in relation to that offence, impose a penalty not exceeding the sum of $5,000 and twice the amount by which the rebate applied for exceeds the rebate to which the person would have been entitled had the person not made the false or misleading statement, or the omission, to which the offence relates.

34 Subsections 240A(1) and (2)

Repeal the subsections, substitute:

(1) A person (the applicant) who makes a diesel fuel rebate application in respect of particular diesel fuel (application fuel) must maintain, or create and maintain, diesel fuel records in relation to:

(a) the application fuel; and

(b) any fuel that has been or is stored with the application fuel;

until the end of the retention period in relation to those records worked out under subsection (2A).

(2) Without limiting subsection (1), the diesel fuel records in relation to application fuel, or fuel that has been or is stored with that particular application fuel, are records of:

(a) particulars of the purchase of that fuel; and

(b) if the fuel is stored by the person who purchased it pending its use—particulars of the place at which, and of the facility in which, the fuel is or was stored; and

(i) the place at which, or the vessel, vehicle or machine in which, the fuel was so used; and

(ii) when the fuel was so used; and

(iii) the actual nature of the use; and

(d) if the fuel has been sold or otherwise disposed of by the person who purchased it—particulars of that sale or other disposal; and

(e) if the fuel has been lost for a reason that is known to the person who purchased it—particulars of that loss; and

(f) if the application fuel is stated to be a portion only of fuel purchased—particulars of the basis on which the apportionment is made; and

(g) such other records as the regulations prescribe.

(2A) For the purpose of this section, the retention period for diesel fuel records is:

(a) in so far as the records relate to application fuel—5 years from the making of the application in respect of that fuel; and

(b) in so far as the records relate to fuel that is not application fuel but that has been or is stored with application fuel—5 years from the making of the application in respect of that application fuel.

(2B) If diesel fuel purchased for a purpose for which diesel fuel rebate is payable is stored with other diesel fuel purchased for such a purpose so that particular fuel loses its identity, then, to the extent that fuel purchased for such a purpose is no longer so stored, it is presumed to have been drawn off in the order of its purchase.

(2C) If diesel fuel purchased for a purpose for which diesel fuel rebate is payable (rebateable fuel) is stored with other diesel fuel purchased for any other purpose (non-rebateable fuel) so that both kinds of fuel lose their particular identity:

(a) rebateable fuel, to the extent that it is no longer stored, is presumed to have been drawn off in the order of its purchase; and

(b) non-rebateable fuel, to the extent that it is no longer stored, is presumed to have been drawn off in the order of its purchase.

35 Subsection 240A(3)

Omit “document” (wherever occurring), substitute “record”.

36 Subsections 240A(4) and (5)

Repeal the subsections, substitute:

(4) If an applicant is required to surrender a record for a reason set out in subsection (3):

(a) the applicant may make a true copy of the record; and

(b) the copy must be treated by the CEO, and is admissible in all courts, as if it were the original record.

37 Subsections 240A(6) and (7)

Repeal the subsections.

38 Subsection 240A(8)

Omit “documents” (wherever occurring), substitute “records”.

39 Paragraphs 273GA(1)(haa) and (hb)

Repeal the paragraphs, substitute:

(hb) a decision of the CEO under subsection 164(1G) that the CEO is satisfied of the matter referred to in that subsection;

(hba) a decision by the CEO not to amend an assessment when subparagraph 164AD(3)(a)(i) applies (in the case where an applicant has notified an officer doing duty in relation to diesel fuel rebate of an error, or errors, in accordance with paragraph 164AB(1)(a));

(hc) a decision of the CEO under section 164AD to amend the assessment of a person’s rebate entitlement (other than such a decision that is made in conjunction with the issuing by the CEO of a notice under section 164AA in respect of that rebate entitlement);

40 Application provision for eligibility items

The amendments of the Customs Act 1901 made by items 6, 10 to 19, 21 and 22 of this Schedule apply only in relation to diesel fuel:

(a) that is purchased before the day on which those items commence and in respect of which an application for diesel fuel rebate is not received under section 164 of that Act before, on, or within 3 months after, that day; or

(b) that is purchased on or after that day.

41 Application provision for modernisation items

The amendments of the Customs Act 1901 made by the items of this Schedule, other than items 6, 10 to 19, 21 and 22, apply only in relation to diesel fuel in respect of which an application for diesel fuel rebate is made under section 164 of that Act on or after the day on which those first‑mentioned items commence (whether the fuel was purchased before or after that day).

Schedule 2—Amendment of the Excise Act 1901

1 Subsection 4(1)

Insert:

diesel fuel rebate means rebate payable in respect of diesel fuel under section 78A.

2 Subsection 4(1)

Insert:

diesel fuel rebate application means an application for diesel fuel rebate made under section 78A.

3 Subsection 4(1)

Insert:

diesel fuel records means records (including records in documentary form) that are required to be maintained, or created and maintained, under section 128A.

4 Before subsection 78A(1)