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7 2001

FINANCE ACT, 2001

Chapter 4

Powers of Officers

Interpretation (Chapter 4).

133. —In this Chapter, except where the context otherwise provides, “officer” means an officer of the Commissioners authorised by them to exercise the powers conferred on officers by this Chapter.

Power to stop vehicles.

134. —(1) An officer in uniform may stop any vehicle in order—

(a) that such officer, or any officer accompanying such officer, may exercise any power conferred on them by section 135 in relation to excisable products or any other products chargeable with a duty of excise, where there are reasonable grounds to believe that such products are being transported in or on such vehicle, or

(b) to examine and take samples of mineral oil under section 135 (2)(a).

(2) An officer in uniform or a member of the Garda Síochána may stop any vehicle for any purpose related to vehicle registration tax or the registration of vehicles in any of the registers established and maintained under Chapter IV of Part II of the Finance Act, 1992 .

(3) Any person in charge of a moving vehicle shall, at the request of an officer in uniform or a member of the Garda Síochána, stop such vehicle.

(4) Any person in charge of a vehicle shall, whether such vehicle has been stopped by an officer or member of the Garda Síochána under this section, or is already stationary, at the request of an officer or member of the Garda Síochána—

(a) keep such vehicle stationary for such period as is reasonably required to enable an officer or member to exercise any power conferred on such officer or member by section 135 , or

(b) where such vehicle is in the opinion of such officer or member situated in a place unsuitable for the exercise of any power conferred on such officer or member by section 135 , take such vehicle or cause it to be taken to such place as such officer or member may consider suitable for the exercise of such power.

Power to examine and search vehicles and to take samples.

135. —(1) An officer, on production of the authorisation of such officer if so requested by any person affected, or any officer accompanying such officer, may—

(a) examine a vehicle,

(b) carry out such searches of a vehicle as may appear to the officer to be necessary to establish whether—

(i) anything on or in the vehicle or in any manner attached to the vehicle is liable to forfeiture under the law relating to excise, or

(ii) any excisable products being transported in or on, or in any manner attached to, the vehicle correspond in every material respect with the description of any such products in a document referred to in paragraph (d) (iii),

(c) take samples, without payment, of any excisable products in or on, or in any manner attached to the vehicle, and

(d) question the person in charge of the vehicle in relation to the vehicle or anything on or in any manner attached to the vehicle, and require such person—

(i) to give, within such time and in such form and manner as may be specified by the officer or accompanying officer, all such information in relation to the vehicle as may reasonably be required by the officer or accompanying officer and is in the possession or procurement of such person,

(ii) within such time and in such manner as may be specified by the officer or accompanying officer, to produce and permit the inspection of and the taking of copies of, or of extracts from, all such records relating to the vehicle and any products being so transported, as are reasonably required by the officer or accompanying officer and are in the possession or procurement of the person, and

(iii) to produce to the officer or accompanying officer any accompanying document, duty document or exemption certificate accompanying any excisable products being transported in or on, or in any manner attached to, the vehicle.

(2) An officer, on production of the authorisation of such officer if so requested by any person affected, or a member of the Garda Síochána, may—

(a) examine and take samples of any mineral oil in any fuel tank or otherwise present on or in any vehicle, or anything attached to any vehicle, for use or capable of being used for combustion in the engine of the vehicle, whether or not the vehicle is attended,

(b) examine or inspect any vehicle or anything attached to any vehicle for the purposes of paragraph (a),

(c) question—

(i) the owner of any vehicle,

(ii) any person who for the time being stands registered as the owner of any vehicle in any of the registers established and maintained under Chapter IV of Part II of the Finance Act, 1992 ,

(iii) any director, manager or principal officer of such owner where the registered owner is not one or more individuals, or

(iv) the person in charge of any vehicle,

in relation to such mineral oil, and require such owner, person, director, manager or principal officer to give to him or her any information in relation to such mineral oil as may reasonably be required and which is in the possession or procurement of such owner, person, director, manager or principal officer, as the case may be.

Entry and search of premises.

136. —(1) An officer may, at all reasonable times, on production of the authorisation of such officer if so requested by any person affected, enter a premises or other place (other than a dwelling) in which—

(a) the production, processing, holding, storage, keeping, importaction, purchase, packaging, offering for sale, sale or disposal of any product referred to in section 97 (1) is being or is reasonably believed by the officer to be carried on,

(b) the manufacture, distribution, storage, repair, modification, importation, dealing, delivery or disposal of mechanically propelled vehicles is being, or is reasonably believed by the officer to be carried on, or

(c) any records relating to, or reasonably believed by the officer to relate to, the products or activities referred to in paragraphs (a) and (b) are being kept or are reasonably believed by the officer to be kept.

(2) An officer, on production of the authorisation of such officer if so requested by any person affected, or a member of the Garda Síochána, may—

(a) enter and inspect any premises or other place (other than a dwelling) for the purposes of section 135 (2) and bring onto those premises any vehicle being used in the course of his or her duties,

(b) make such search and investigation of such premises or place as he or she may consider to be proper.

(3) An officer in or on any premises or place pursuant to subsection (1) may there—

(a) carry out such search and investigation as such officer may consider to be proper,

(b) take account of, and without payment, take samples of any product referred to in section 97 (1) and of any materials, ingredients and substances used or to be used in the manufacture of such product,

(c) in relation to any records referred to in subsection (1) (c)

(i) search for, inspect and take copies of or extracts from any such records (including, in the case of any information in a non-legible form, a copy of, or an extract from, such information in a permanent legible form),

(ii) remove and retain such records for such period as may reasonably be required for their further examination, and

(iii) require any person to produce any such records which are in that person's possession, custody or procurement and in the case of information in a non-legible form, to produce it in a legible form or to reproduce it in a permanent legible form,

(d) question any person present in relation to—

(i) any product referred to in subsection (1)(a) or any materials, ingredients or other substances used or intended to be used in the manufacture of such product,

(ii) any vehicle,

(iii) any records referred to in subsection (1)(c),

produced or found in or on such premises or place, and such person shall give to such officer all information required of such person which is in his or her possession, custody or procurement.

(4) An officer in or on any premises or place pursuant to this section, or any person accompanying an officer pursuant to subsection (5), may require any person present to give to such officer or such other person his or her name and address.

(5) Without prejudice to any power conferred by subsections (1) to (4), a judge of the District Court may, if satisfied on the sworn information of an officer that there are reasonable grounds for suspecting that—

(a) anything liable to forfeiture under the law relating to excise, or

(b) any records relating to transactions in contravention of the laws relating to excise,

are kept or concealed on or at any premises or place, issue a search warrant.

(6) A search warrant issued under this section shall be expressed and to operate to authorise a named officer accompanied by such other officers and such other persons as the officer considers necessary, at any time or times within one month of the date of issue of the warrant, to enter (if need be by force) the premises or other place named or specified in the warrant, to search such premises or other place, to examine anything found there, to inspect any record found there and, if there are reasonable grounds for suspecting that anything found there is liable to forfeiture under the law relating to excise, or that a record found there may be required as evidence in proceedings under the law relating to excise, to detain or seize the thing as liable to forfeiture or, in the case of a record, to detain it for so long as it is reasonably required for such purpose.

General provision concerning samples.

137. —(1) The provisions of section 6 of the Customs and Inland Revenue Act, 1888, shall apply to the taking of samples of excisable products, except where section 135 (1)(c) or 136(3)(b) applies.

(2) The provisions of sections 101 and 102 of the Finance Act, 1998 , shall apply to samples of excisable products or other samples taken under the laws relating to excise.

Obligation to answer certain questions, in respect of certain tobacco products.

138. —An officer or a member of the Garda Síochána may require any person whom such officer or member has reasonable cause to believe to be guilty of an offence under section 10A (inserted by the Finance Act, 1994 ), of the Finance (Excise Duty on Tobacco Products) Act, 1977 , to furnish to such officer or member of the Garda Síochána—

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

(b) all such information in relation to the tobacco products in question as may be reasonably required by such officer or member and which is in the possession or procurement of the person.

Power of arrest and detention of persons.

139. —(1) Where an officer or a member of the Garda Síochána has reasonable grounds to suspect that a person is committing or has committed an offence under—

(a) section 119 , or

(b) section 102(3) of the Finance Act, 1999 ,

then such officer or member may arrest such person without warrant.

(2) (a) Where an officer has reasonable grounds to believe that a person is committing or has committed an offence under section 10A (inserted by the Finance Act, 1994 ) of the Finance (Excise Duty on Tobacco Products) Act, 1977 , then such officer may detain the person and, as soon as practicable thereafter—

(i) present the person, or

(ii) bring and present the person,

to a member of the Garda Síochána.

(b) Where a member of the Garda Síochána has reasonable grounds to believe—

(i) that a person is committing or has committed an offence under section 10A of the Finance (Excise Duty on Tobacco Products) Act, 1977 , or

(ii) in case of a person presented or brought and presented to such member by an officer, that an offence under the said section 10A was or had been committed by the person and the person was duly detained by an officer under paragraph (a) for the offence and was either presented or brought and presented to such member in accordance with that paragraph,

then, such member may arrest the person without warrant.

Detention of goods and vehicles.

140. —(1) Where an officer reasonably suspects that any excisable products, or any other goods, are liable to forfeiture under the law relating to excise then—

(a) all such excisable products or other goods,

(b) any other thing being made use of in the conveyance of such products or goods, and

(c) any vehicle in or on which or attached to which in any manner any such excisable products or goods are found,

may be detained by such officer until such examination, enquiries or investigations as may be deemed necessary by such officer or another officer, have been made for the purposes of determining whether or not such products, goods, thing or vehicle are liable to forfeiture.

(2) Where a member of the Garda Síochána reasonably suspects that any excisable products, other goods or other thing or any vehicle is liable to forfeiture under section 10A (inserted by the Finance Act, 1994 ) of the Finance (Excise Duty on Tobacco Products) Act, 1977 , such products, goods, other thing or vehicle may be detained by such member until such examination, enquiries or investigations as may be deemed necessary by such member or another member, or by an officer, have been made for the purposes of determining whether or not such products, goods, other thing or vehicle are liable to forfeiture.

(3) Where an officer or a member of the Garda Síochána reasonably suspects—

(a) that a vehicle has not been registered in any of the registers established and maintained under Chapter IV of Part II of the Finance Act, 1992 ,

(b) that a vehicle has been converted (within the meaning of that Chapter) and a declaration in relation to such conversion has not been made under section 131 of the Finance Act, 1992 , or

(c) that vehicle registration tax has not been paid in respect of a vehicle,

then such officer or member may detain such vehicle for such period as is required to carry out such examination, enquiries or investigations as may be deemed necessary by such officer or member to determine to his or her satisfaction whether or not—

(i) such vehicle has been registered,

(ii) such declaration has been made, or

(iii) such vehicle registration tax has been paid.

(4) When a determination referred to in subsection (1), (2) or (3) has been made in respect of any excisable products, other goods, other thing or a vehicle or on the expiry of a period of one month from the date on which such products, goods, other thing or vehicle were or was detained under that subsection, whichever is the earlier, such products, goods, other thing or vehicle are to be either seized as liable to forfeiture under the Customs Acts or under section 141 , or released.

Seizure of goods and vehicles.

141. —(1) Any goods or vehicles that are liable to forfeiture under the law relating to excise may be seized by an officer.

(2) Anything liable to forfeiture under section 10A (inserted by the Finance Act, 1994 ) of the Finance (Excise Duty on Tobacco Products) Act, 1977 , may be seized by a member of the Garda Síochána and shall be delivered to an officer.

Notice of seizure.

142. —(1) Subject to subsection (2), an officer shall give notice of the seizure of anything as liable to forfeiture and of the grounds for seizure to any person who to the officer's knowledge was at the time of the seizure the owner or one of the owners of the thing seized.

(2) Notice under subsection (1) need not be given under this section to a person if the seizure was made in the presence of the person, the person whose offence or suspected offence occasioned the seizure or in the case of anything seized in any ship or aircraft, in the presence of the master or commander of such ship or aircraft.

(3) Notice under subsection (1) shall be given in writing and the notice shall include a statement of section 143 and be deemed to have been duly given to the person concerned—

(a) if it is delivered to the person personally, or

(b) if it is addressed to the person and left or forwarded by post to the person at the usual or last known place of abode or business of the person or, in the case of a body corporate, at its registered or principal office, or

(c) if the person has no known address in the State, by publication of notice of the seizure concerned in Iris Oifigiúil.

Notice of claim.

143. —(1) A person who claims that anything seized as liable to forfeiture is not so liable (referred to in this section as the “claimant”) shall, within one month of the date of the notice of seizure or, where no such notice has been given to the claimant, within one month of the date of the seizure, give notice in writing of such claim to the Commissioners.

(2) A notice under subsection (1) shall specify the name and address of the claimant and, in the case of a claimant who is outside the State, the name and address of a solicitor in the State who is authorised to accept service of any document required to be served on the claimant and to act on behalf of the claimant.

Power to deal with seizures, before and after condemnation.

144. —(1) In this section “claimant” has the same meaning as it has in section 143 .

(2) The Commissioners may, in their discretion, restore anything seized as liable to forfeiture under the law relating to excise, and the Minister for Finance may order such restoration.

(3) Without prejudice to subsection (2), where a notice relating to the thing seized has been duly given under section 143 , the Commissioners may as they think fit and notwithstanding that such thing seized has not yet been condemned—

(a) if a notice relating to the thing has been duly given under section 143 , deliver it up to the claimant on payment to the Commissioners of such sum as they think proper, being a sum not exceeding that which in their opinion represents the value of the thing, including any duty or tax chargeable on it which has not been paid, or

(b) if the thing seized is in the opinion of the Commissioners of a perishable nature, sell or destroy it.

(4) If, where anything is delivered up, sold or destroyed under this section, it is held by the court in proceedings under this section that the thing was not liable to forfeiture at the time of its seizure, the Commissioners shall, subject to any deduction allowed under subsection (5), on demand tender to such claimant—

(a) an amount equal to any sum paid by the claimant under subsection (2),

(b) if they have sold the thing, an amount equal to the proceeds of sale, or

(c) if they have destroyed the thing, an amount equal to the market value of the thing at the time of its seizure.

(5) Where the amount to be tendered under subsection (4) includes any sum on account of any duty or tax chargeable on the thing which has not been paid before its seizure, the Commissioners may deduct from the amount so much of it as represents the duty or tax.

(6) If the claimant accepts any amount tendered under subsection (4), such claimant shall not be entitled to maintain proceedings in any court on account of the seizure, detention, sale or destruction of the thing concerned.

(7) All goods seized by an officer or by a member of the Garda Síochána as liable to forfeiture shall after condemnation of such goods be either—

(a) sold or destroyed, or

(b) otherwise disposed of in accordance with regulations made under section 153 .

(8) Notwithstanding any other provision of this Chapter relating to goods seized as liable to forfeiture, an officer who seizes as liable to forfeiture any spirits or any stills, vessels, utensils, wort or other material for manufacturing, distilling or preparing spirits may at the discretion of such officer forthwith spill, break up or destroy any of those goods.