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9 1992

Finance Act, 1992

PART II

Customs and Excise

Chapter I

Excise Duty on Beer

Interpretation (Chapter I).

89. —(1) In this Chapter—

% vol.” means alcoholic strength by volume;

alcohol” means pure ethyl alcohol;

alcoholic strength by volume” means the ratio of the volume of alcohol present in a product at a temperature of 20° Celsius to the total volume of the product at the same temperature, the said ratio being expressed as a percentage;

approved warehouse” means a premises approved under section 95 ;

approved warehousekeeper” means a person approved under section 95 ;

beer” includes ale, stout, porter, spruce beer and black beer, and any other description of beer, and any liquor which is made or sold as a description of beer or a substitute for beer, and which on analysis of a sample thereof at any time is found to contain more than 1.2% vol.;

brewer's licence” means a licence to brew beer issued under section 43 of the Finance (1909-10) Act, 1910;

brewer for sale” has the meaning assigned to it by section 19 of the Inland Revenue Act, 1880;

Commissioners” means the Revenue Commissioners;

container”, in relation to beer, means a tank, cask, keg, can, bottle or any other receptacle in which beer is kept;

information” includes any representation of fact, whether in words or otherwise;

information in a non-legible form” includes information on microfilm, microfiche, magnetic tape or disc;

licensed brewer” means a person who is the holder of a brewer's licence;

materials” means any substance intended to be used in the production of, or for incorporation in, beer;

offered for sale” includes an invitation to treat;

officer” means an officer of the Commissioners;

package”, in relation to beer, means to put beer into tanks, casks, kegs, cans, bottles or any other receptacles of a kind in which beer is distributed to wholesalers or retailers and cognate words shall be construed accordingly;

private brewer” means a brewer of beer, not being a brewer for sale;

prescribed” means specified in, or determined in accordance with, regulations made by the Commissioners under section 98 ;

records” includes information in a non-legible form;

standard barrel” means 36 gallons of worts of a specific gravity of 1,055 degrees or 36 gallons of beer of which the worts were, before fermentation, of a specific gravity of 1,055 degrees;

worts” means the liquid which is fermented to produce beer.

(2) References in any statute or instrument made under statute to the strength of beer shall be construed as references to its alcoholic strength by volume.

Duty of excise on beer.

90. —(1) In addition to any other duty which may be chargeable, there shall be charged, levied and paid on—

(a) beer brewed in the State and on beer imported into the State, and

(b) beer in respect of which the duty of excise referred to in section 93 may be remitted or repaid under that section by the Commissioners,

a duty of excise per hectolitre per cent. of alcohol in the beer at such rate as may be specified from time to time by Act of the Oireachtas.

(2) Subject to the provisions of this Chapter, the duty of excise on beer imposed by subsection (1) shall be charged, levied and paid in accordance with regulations under section 98 .

Exemptions from duty.

91. —(1) Subject to compliance with any conditions the Commissioners see fit to impose, the duty of excise imposed by section 90 shall not be charged or levied on beer—

(a) not exceeding 0.5% vol.;

(b) produced in the State by a private brewer, provided that the said beer is brewed by the said brewer solely for his own domestic use.

(2) (a) Beer brewed by a private brewer shall not be sold or offered for sale by any person.

(b) A person who contravenes the provisions of paragraph (a) of this subsection shall be guilty of an offence and shall be liable on summary conviction to an excise penalty of £1,000.

(3) Any beer in respect of which an offence was committed under subsection (2) and any vessels, utensils and materials for brewing in the possession of a private brewer in respect of which such an offence was committed shall be liable to forfeiture.

Remissions and repayments of duty.

92. —The Commissioners may, subject to compliance with such conditions as they may think fit to impose, remit or repay the duty of excise imposed by section 90 on beer which is shown to their satisfaction to have been—

(a) lost in an approved warehouse, provided no part of such loss was caused by illegal or improper means;

(b) used to brew or manufacture beer not exceeding 0.5% vol.;

(c) used as an ingredient in the production or manufacture of a beverage, other than beer, not exceeding 1.2% vol.;

(d) used for experimental, quality control, scientific or research purposes;

(e) in the case of beer delivered for consumption in the State, withdrawn from the market because its condition or age renders it unfit for human consumption;

(f) exported from the State as merchandise or shipped for use as stores.

Remission or repayment of certain duty chargeable before appointed day.

93. —(1) This section applies to stocks of beer, including worts, which are shown to the satisfaction of the Commissioners to lie or be stored or kept at midnight on the day preceding the day which the Minister for Finance appoints by order under section 102 for the coming into operation of section 90 , in premises owned or occupied by a licensed brewer or in an approved warehouse and to be the product of brewing carried out by a licensed brewer in whose premises or approved warehouse the said stocks lie or are stored or kept.

(2) Where it is shown to the satisfaction of the Commissioners that the duty of excise imposed by paragraph 7 of the Imposition of Duties (No. 221) (Excise Duties) Order, 1975 (S.I. No. 307 of 1975), has been charged before the day which the Minister for Finance appoints by order under section 102 for the coming into operation of section 90, in respect of stocks of beer, including worts, to which this section applies, they may, subject to compliance with subsection (3) and with such conditions as they may think fit to impose, remit or repay the said duty.

(3) A licensed brewer or an approved warehousekeeper may, not later than the 6th day following the day specified in subsection (2), make a return to the Commissioners in a form approved of by them giving such information as they may thereby require in relation to the quantity of beer, including worts, expressed in standard barrels, to which this section applies, and claiming remission or repayment of the duty of excise referred to in the said subsection and charged in respect of the said stocks before the day specified in the said subsection.

(4) A licensed brewer or an approved warehousekeeper shall—

(a) produce to any officer, if so requested by him, the trade books and all accounts and documents belonging to or in the possession of such brewer or warehousekeeper that the officer considers to be necessary for the purpose of verifying a return made or to be made under the provisions of this section, and

(b) render to such officer such reasonable assistance as may be requested of him by the officer in the taking of an account of the stocks of beer, including worts, to which the return relates.

(5) Every licensed brewer or approved warehousekeeper who makes a return under this section which is false or misleading in any material respect, or fails or refuses to comply with a request under this section, shall be guilty of an offence and shall be liable on summary conviction to an excise penalty of £1,000.

(6) Any stocks of beer, including worts, in respect of which an offence was committed under subsection (5) shall be liable to forfeiture.

Revocation of brewer's licence and offence by brewer for sale.

94. —(1) The Commissioners may, without prejudice to any other penalty to which a licensed brewer may be liable, if such brewer fails to comply with any provision of this Chapter, revoke the licence granted.

(2) If any person, other than a private brewer, shall brew beer without holding a brewer's licence for the time being in force or without having the premises in which the brewing of beer is carried out approved under section 95 , he shall be guilty of an offence and shall be liable on summary conviction to an excise penalty of £1,000.

(3) Any beer, and any vessels, utensils and materials for brewing, in respect of which an offence was committed under subsection (2), shall be liable to forfeiture.

Approval of persons and premises for the brewing, holding and packaging of beer without payment of duty.

95. —(1) A person approved by the Commissioners under this section may brew and hold, in premises approved by them under this section in relation to him, beer liable to the duty of excise imposed by section 90 without payment of that duty (and such person and such premises are hereinafter in this section referred to as an “approved warehousekeeper” and an “approved warehouse”, respectively).

(2) An approved warehousekeeper may also, without payment of duty, carry on in an approved warehouse such operations as may be prescribed on, or in relation to, such of the beer as may be prescribed.

(3) A person shall not be approved under this section unless he appears to the Commissioners to satisfy such requirements for approval as they may think fit to impose.

(4) (a) A premises shall not be approved under this section unless—

(i) it is used, or intended for use, for the brewing, holding or packaging of beer, and

(ii) where it is used, or intended for use, for the brewing of beer, it is owned or occupied by a licensed brewer, who shall in the prescribed manner deliver to an officer such information as may be required of him in relation to such premises and in relation to all rooms, places and vessels therein,

and the premises appears to the Commissioners to satisfy such requirements for approval as the Commissioners may think fit to impose.

(b) Notwithstanding the provisions of paragraph (a) requiring a premises used, or intended for use, for the brewing of beer to be owned or occupied by a licensed brewer, and imposing an obligation on such brewer to deliver in the prescribed manner to an officer such information as may be required of him in relation to such premises and in relation to all rooms, places and vessels therein, such brewer may be deemed to have complied with such provisions if, at midnight on the day preceding the day which the Minister for Finance appoints by order under section 102 for the coming into operation of this section, he has made entry of such premises and all rooms, places and vessels therein in accordance with the provisions of section 22 of the Inland Revenue Act, 1880.

(5) The Commissioners may approve a person or premises under this section for such periods and subject to such conditions (including the giving of security) as they may think fit to impose and the approved person or approved premises shall comply with any such conditions.

(6) The Commissioners may, as a condition of approval of a premises under this section, allow or prohibit the carrying out of specified activities in such premises or in any part or parts thereof.

(7) The Commissioners may at any time for reasonable cause—

(a) vary the terms of their approval of any person or premises under this section, or

(b) restrict the extent of the premises which are so approved.

(8) The Commissioners may, without prejudice to any other penalty to which an approved warehousekeeper may be liable—

(a) if an approved warehousekeeper contravenes or fails to comply with any condition of approval imposed by them under this section or with any provision of this Chapter or of regulations thereunder, or

(b) if an approved warehouse fails to comply with any condition of approval imposed by them under this section,

revoke the approval granted.

(9) The provisions of the Customs Acts, and of the statutes which relate to the duties of excise and the management thereof and of any instrument relating to duties of excise made under statute, relating to warehouses and warehoused goods and their deposit and storage therein and removal thereto or therefrom shall, with any necessary modifications, apply to premises approved under this section and to beer allowed to be held in such premises as if the said premises and beer were warehouses and warehoused goods within the meaning of the said provisions.

Provision of facilities by warehousekeeper and powers of inspection, etc., of officers.

96. —(1) An approved warehousekeeper of an approved warehouse shall, in respect of such warehouse—

(a) provide and maintain such appliances as are, in the opinion of the Commissioners, necessary to enable an officer to take a true and accurate account of any materials or beer;

(b) allow an officer at any time to use anything so provided and to use any other appliances in the possession of such warehousekeeper, and provide all other facilities and all assistance, as are necessary to enable such officer to take such account.

(2) An officer may, at all reasonable times, enter premises in which brewing of beer is being or is reasonably believed by the officer to be carried on or in which beer is reasonably believed by the officer to be held, stored or kept or in which any books, accounts or other documents or records relating or reasonably believed by the officer to relate to the brewing, importation, purchase, holding, storage, packaging, sale or disposal of beer are kept and may there—

(a) search for, inspect, take account of, and, without payment, take samples of any materials or beer,

(b) require any person to produce all books, accounts or other documents or records relating to the brewing, importation, purchase, holding, storage, packaging, sale or disposal of beer and, in the case of such information in a non-legible form (including such information in a computer), to produce it in a legible form, or to reproduce it in a permanent legible form, and

(c) search for, inspect, and take copies of or extracts from any books, accounts or other documents or records (including, in the case of any such information in a non-legible form, a copy of or extract from such information in a permanent legible form) relating or believed by the officer to relate to the brewing, importation, purchase, holding, storage, packaging, sale or disposal of beer,

and such officer may remove and retain the said books, accounts or other documents or records for such period as may be reasonable for their further examination, and such person shall provide to such officer all facilities and assistance necessary for the exercise by such officer of any power conferred on him by this subsection.

(3) Where an officer enters any premises under subsection (2) and any materials or beer are found therein, or any books, accounts or other documents or records specified in that subsection are produced or found therein, he may question any person found therein in relation to such materials or beer or in relation to such books, accounts or other documents or records and any such person shall give to such officer all information required of him by such officer which is in his possession or procurement.

(4) Any person who fails without lawful and sufficient excuse to comply with any requirement under subsection (1) or (2), or who fails or refuses to give any information required of him under subsection (3), or who gives any such information which is false or misleading, or who resists, obstructs or impedes an officer in the exercise of any power conferred on him by this section, shall be guilty of an offence and shall be liable on summary conviction to a penalty, under the law relating to customs or the law relating to excise (as the case may be), of £1,000.

Treatment of excess or deficiency in stocks and fraudulent evasion of duty.

97. —(1) If, whenever an officer takes an account of beer in an approved warehouse in accordance with subsection (2) of section 96 , the quantity, or strength, or both, of the beer is found to be greater or less than the quantity, or strength, or both, of the beer which, according to any accounts the approved warehousekeeper is required to keep in accordance with regulations under section 98 , ought to be therein, the approved warehousekeeper shall be guilty of an offence and shall be liable on conviction to a penalty, under the law relating to customs or the law relating to excise (as the case may be), of double the duty of excise imposed by section 90 which would be charged on a quantity and strength of beer equal to the excess or the deficiency, whichever the case may be, if such a quantity and strength of beer were charged with the duty imposed by the said section, or £1,000, whichever is the greater.

(2) Notwithstanding subsection (1), the approved warehousekeeper shall not be liable to any penalty under the said subsection if he can satisfactorily account to the Commissioners for the excess or deficiency, whichever the case may be, but where there is an excess and the approved warehousekeeper is not prosecuted in respect thereof, he shall pay duty on the excess.

(3) If any person is knowingly concerned in the taking of any steps with a view to the fraudulent evasion, whether by himself or by another, of the duty of excise imposed by section 90 , he shall be guilty of an offence and shall be liable—

(a) on summary conviction to a penalty, under the law relating to customs or the law relating to excise (as the case may be), of three times the amount of the duty concerned, or £1,000, whichever is the greater, or to imprisonment for a term not exceeding six months, or to both, or

(b) on conviction on indictment to a penalty, under the lawrelating to customs or the law relating to excise (as the case may be), of three times the amount of the duty concerned, or £10,000, whichever is the greater, or to imprisonment for a term not exceeding 5 years, or to both.

(4) (a) The beer in excess (if any) found following the account taken under subsection (1) shall be liable to forfeiture.

(b) Any beer in respect of which an offence was committed under subsection (3) and any conveyances, containers or other articles used in connection, or associated in any way whatsoever, with such beer shall be liable to forfeiture.

(5) For the purposes of this section, where the strength of beer cannot be established to the satisfaction of an officer, such strength shall be assumed to be 7 per cent. unless or until the person concerned furnishes to the officer proof to the contrary.

Regulations (Chapter I).

98. —(1) The Commissioners may, with a view to managing, securing and collecting the duty of excise on beer imposed by section 90 or to the protection of the revenue derived from such duty, make regulations.

(2) In particular, but without prejudice to the generality of subsection (1), regulations under this section may—

(a) govern the production (including determining when the production of beer begins and when it is completed), importation, treatment, packaging, keeping, holding, storage, removal from storage and exportation of materials and beer;

(b) require a licensed brewer to furnish, at such times and in such form as may be specified, a true and accurate return accounting for all materials received or produced by him, or used by him in the brewing of beer, and containing a reconciliation between such materials and beer brewed;

(c) regulate and, in such circumstances as may be prescribed, prohibit the addition of substances to, the mixing of, or the carrying out of other operations on or in relation to beer;

(d) provide for securing, paying, collecting, remitting and repaying the duty;

(e) determine the duty chargeable, the person liable to pay it and, in that connection, prescribe the method of charging the duty, the due date for payment and the method of payment, and any such regulations may provide that duty shall be charged according to the volume and strength of the beer declared by the warehousekeeper or importer or that ascertained by an officer, whichever is the greater;

(f) provide for charging duty, in such circumstances as may be prescribed, by reference to a strength which the beer might reasonably be expected to have, or the rate of duty in force, at a time other than that at which the beer becomes chargeable;

(g) provide for charging duty by reference to a strength and volume which the beer might reasonably be expected to have by reference to the strength and the volume ascertained in respect of a representative sample of such beer;

(h) prescribe the method for ascertaining the strength and the volume of beer, and any such regulations may provide that for the purpose of charging duty on beer the strength and the volume of the beer may be ascertained by reference to any information given on the container by means of a label or otherwise or to any documents relating to the container;

(i) regulate the movement and transportation of beer in such circumstances as may be prescribed;

(j) require an approved warehousekeeper and a person who imports beer to keep in a specified manner, and to preserve for a specified period, such accounts and records relating to the production, importation, purchase, receipt, keeping, holding, storage, packaging, sale, disposal or use by him of materials and beer as may be specified, and to keep for a specified period any other books, documents or records relating to any of the matters aforesaid and to allow an officer to inspect and take copies of such accounts and records and of any other books, documents or records kept by him relating to any of the matters aforesaid;

(k) require an approved warehousekeeper and a person who imports beer to furnish at such times and in such form as may be specified returns in relation to such matters as may be specified.

(3) As respects beer chargeable with the duty of excise imposed by section 90 and which has not been paid, regulations under this section may, without prejudice to the generality of subsection (1), make provision—

(a) regulating the approval of persons and premises under section 95 ;

(b) regulating the brewing, holding or packaging of, or the carrying out of other operations on or in relation to, any such beer in an approved warehouse without payment of the duty;

(c) for securing and collecting the duty on any such beer held in an approved warehouse;

(d) permitting the removal of any such beer from an approved warehouse without payment of the duty, in such circumstances and subject to such conditions as may be prescribed;

(e) for such persons as may be prescribed to be liable to pay the duty on any such beer held on, or removed without payment of duty from, an approved warehouse, and for the circumstances in which, and the time at which, they are liable to do so.

(4) Regulations under this section may make different provision for persons, premises or beer of different classes or descriptions, for different circumstances and for different cases.

(5) Regulations under this section shall be laid before Dáil Éireann as soon as may be after they are made and, if a resolution annulling the regulations is passed by Dáil Éireann within the next 21 days on which Dáil Éireann has sat after the regulations have been laid before it, the regulations shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Offences (Chapter I).

99. —(1) A person who contravenes or fails to comply with any of the provisions of this Chapter (other than subsection (2) (b) of section 91 , section 93 (5), section 94 (2), section 96 (4), and subsections (1) and (3) of section 97 ) or of regulations under section 98 shall, without prejudice to any other penalty to which he may be liable, be guilty of an offence and shall be liable on summary conviction to a penalty, under the law relating to customs or the law relating to excise (as the case may be), of £1,000.

(2) Any beer in respect of which an offence was committed under subsection (1), and any materials or articles in respect of which the offence was committed, shall be liable to forfeiture.

Application of enactments (Chapter I).

100.—(1) (a) Subject to paragraph (b) of this subsection, the provisions of the Customs Acts and of any instrument relating to duties of customs made under statute, and not otherwise applied by this Chapter, shall, with any necessary modifications, apply in relation to the duty of excise imposed by section 90 on beer imported into the State as they apply in relation to duties of customs.

(b) Where, in relation to the duty of excise imposed by section 90 , there is a provision in this Chapter corresponding to a provision of the Customs Acts or of any instrument relating to duties of customs made under statute, the latter provision shall not apply in relation to that duty of excise.

(2) (a) Subject to paragraph (b), the provisions of the statutes which relate to the duties of excise and the management thereof and of any instrument relating to duties of excise made under statute, and not otherwise applied by this Chapter, shall, with any necessary modifications, apply in relation to the duty of excise imposed by section 90 on beer brewed in the State as they apply to duties of excise.

(b) Where, in relation to the duty of excise imposed by section 90 , there is a provision in this Chapter corresponding to a provision of the statutes which relate to the duties of excise or of any instrument relating to the duties of excise made under statute, the latter provision shall not apply in relation to that duty of excise.

Repeals and revocations (Chapter I).

101. —(1) Each enactment specified in column (2) of Part I of the Third Schedule is hereby repealed to the extent specified in column (3) of that Part.

(2) Paragraph 7 of the Imposition of Duties (No. 221) (Excise Duties) Order, 1975, is hereby revoked.

Commencement (Chapter I).

102. —This Chapter and Part I of the Third Schedule shall come into operation on such day as the Minister for Finance may appoint by order, and different days may be so appointed for different provisions or for different purposes.