The Excise Goods (Holding, Movement and Duty Point) Regulations 2010

PART 1 U.K. PRELIMINARY

Citation, commencement and effect U.K.

1.  These Regulations may be cited as the Excise Goods (Holding, Movement and Duty Point) Regulations 2010.

2.  They come into force on 1st April 2010 except that—

(a) Part 4 (UK registered consignors), regulation 7(1)(g) and regulation 35(c) come into force on 1st January 2011;

(b) regulation 39(1)(a), in so far as it applies to a UK registered consignor, only has effect on or after 1st January 2011;

(c) regulation 39(1)(b), in so far as it requires compliance with the procedures in Part 6 (exports of excise goods under duty suspension arrangements) or Part 8 (movements of excise goods wholly within the United Kingdom under duty suspension arrangements) only applies to movements of excise goods that start on or after 1st January 2011.

Interpretation U.K.

3.—(1) In these Regulations—

“accompanying document” means, subject to paragraph (2), the document specified in the Annex to Commission Regulation (EEC) No. 3649/92 on a simplified accompanying document for the intra-Community movement of products subject to excise duty which have been released for consumption in the Member State of dispatch (as amended from time to time) or any document that in accordance with Article 2 of that Regulation replaces that document;

“ALDA 1979” means the Alcoholic Liquor Duties Act 1979;

“authorised warehousekeeper” means–

(a)

in relation to the United Kingdom–

(i)

the occupier of an excise warehouse who is approved in accordance with regulations made under section 93(1) of CEMA 1979;

(ii)

a person who is registered under section 41A or 47 of ALDA 1979 M1 ;

(iii)

a person who holds an excise licence under section 54(2) or 55(2) of ALDA 1979;

(iv)

a person who is registered in accordance with section 62(2) of ALDA 1979;

(v)

the occupier of premises registered for the manufacture or safe storage of tobacco products in accordance with regulations made under section 7(1)(b) or (ba) of TPDA 1979 M2 ; and

(b)

in relation to another Member State, a person authorised by the competent authorities of that Member State, in the course of that person's business, to produce, process, hold, receive or dispatch excise goods under a duty suspension arrangement in a tax warehouse;

“business day” means any day except—

(a)

Saturday, Sunday, Good Friday or Christmas Day M3 ;

(b)

a bank holiday M4 under the Banking and Financial Dealings Act 1971 M5 ;

(c)

a day appointed by Royal proclamation as a public fast or thanksgiving day M6 ;

(d)

a day declared by an order under section 2 of the Banking and Financial Dealings Act 1971 to be a non-business day M7 ;

“CEMA 1979” means the Customs and Excise Management Act 1979;

“the Commissioners” means the Commissioners for Her Majesty's Revenue and Customs;

“computerised system” means the system referred to in Article 1 of Decision No. 1152/2003/EC of the European Parliament and of the Council on computerising the movement and surveillance of excisable products M8 ;

“customs and excise Acts” has the meaning given in section 1(1) of CEMA 1979;

“customs office of exit” has the meaning given by Article 4(4d) of Council Regulation (EEC) 2913/92 establishing the Community Customs Code M9 ;

“customs suspensive procedure or arrangement” has the meaning given by article 4(6) of the Directive;

“the Directive” means Council Directive 2008/118/EC concerning the general arrangements for excise duty and repealing Directive 92/12/EEC M10 ;

“distance selling arrangement” means an arrangement where—

(a)

a person (“the vendor”), in another Member State, sells or agrees to sell excise goods that have been released for consumption in that State, to a person (“the purchaser”) in the United Kingdom;

(b)

those goods are dispatched by or to the order of the vendor to the purchaser or a person nominated by the purchaser and consigned to an address in the United Kingdom;

(c)

those goods will be charged with duty on their importation into the United Kingdom; and

(d)

the purchaser is not a revenue trader M11 .

“duty” means any excise duty;

“duty deferment arrangement” means any provision made by or under the customs and excise Acts that permits the payment of excise duty to be deferred;

“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;

“electronic administrative document” means the electronic administrative document referred to in Article 21(2) of the Directive;

“energy products” means the products mentioned in Article 2(1) of Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity M12 ;

“EU” and “territory of the EU” means the territories of the Member States;

“EU requirements” means—

(a)

in the case of an accompanying document, the requirements set out in Articles 1 to 5 of Commission Regulation (EEC) No. 3649/92 (as amended from time to time) and the explanatory notes set out on the reverse of copy 1 in the Annex;

(b)

in the case of a draft electronic administrative document and an electronic administrative document, the requirements set out in Articles 2 and 3 of, and Table 1 of Annex 1 to, Commission Regulation (EC) No. 684/2009 implementing Council Directive 2008/118/EC as regards the computerised procedures for the movement of excise goods under suspension of excise duty (as amended from time to time) and, in the case of dispatches from the United Kingdom, data elements in that Table numbered (c) and (f) of Group 9, (a) of Group 14, Group 15 and (p) of Group 17;

(c)

in the case of an exemption certificate, the requirements set out in the explanatory notes on the reverse of the certificate in the Annex to Commission Regulation (EC) No.31/96 on the excise duty exemption certificate (as amended from time to time);

(d)

in the case of a fallback accompanying document, the requirements set out in Article 8(1) of Commission Regulation (EC) No. 684/2009 (as amended from time to time) and, in the case of dispatches from the United Kingdom, the data elements required to be displayed include the data elements numbered (c) and (f) of Group 9, (a) of Group 14, Group 15 and (p) of Group 17 of Table 1 of Annex 1 to that Regulation;

(e)

in the case of a fallback report of receipt and a fallback report of export, the requirements set out in Article 8(3) of Commission Regulation (EC) No. 684/2009 (as amended from time to time);

(f)

in the case of a report of receipt and a report of export, the requirements set out in Article 2 of, and Table 6 of Annex 1 to, Commission Regulation (EC) No. 684/2009 (as amended from time to time);

“excise duty” means—

(a)

in relation to the United Kingdom, a duty of excise charged by or under an enactment on excise goods (and, in these Regulations, “UK excise duty” shall be construed accordingly); and

(b)

in relation to a Member State other than the United Kingdom, a similar charge imposition or levy;

“excise goods” means goods falling within Article 1(1) of the Directive and chewing tobacco;

“exempt consignee” means a consignee referred to in Article 12(1) of the Directive;

“exemption certificate” means the document set out in the Annex to Commission Regulation (EC) No.31/96 or any such certificate that is adapted pursuant to Article 2 of that Regulation;

“fallback accompanying document” means the paper document referred to in Article 26(1)(a) of the Directive;

“fallback report of export” means the paper document referred to in Article 27(2) of the Directive;

“fallback report of receipt” means the paper document referred to in Article 27(1) of the Directive;

“Member State” and “territory of a Member State” means the territory of each Member State of the EU to which the Treaty on European Union M13 and the Treaty on the Functioning of the European Union M14 are applicable in accordance with Articles 52 and 355 of those Treaties respectively—

(a)

excluding the Island of Heligoland and the territory of Büsingen in the Federal Republic of Germany, Livigno, Campione d'Italia and the waters of Lake Lugano in the Italian Republic, Ceuta, Melilla and the Canary Islands in the Kingdom of Spain, the Åland Islands in the Republic of Finland, the Channel Islands, the overseas departments of the French Republic and the European territories for whose external relations a Member State is responsible; but

(b)

including the Principality of Monaco, San Marino, the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia and the Isle of Man,

and “another Member State” means a Member State other than the United Kingdom and the Isle of Man;

“own use” does not include use for the purposes of any trade or business;

“place of direct delivery” means—

(a)

in the case of a place in the United Kingdom, a place to which excise goods are consigned from another Member State and which has been designated by an authorised warehousekeeper in the United Kingdom or a UK registered consignee (other than a temporary registered consignee);

(b)

in the case of a place in another Member State, a place to which excise goods are consigned from the United Kingdom and which has been designated by an authorised warehousekeeper or a registered consignee in the Member State where the place is situated;

“place of importation” means the place where excise goods are when they are released for free circulation in accordance with Article 79 of Council Regulation 2913/92/EEC;

“registered commercial importer” has the meaning given by regulation 70(2);

“registered consignee” —

(a)

in relation to a consignee in the United Kingdom, means a person who is approved and registered in accordance with Part 3 of these Regulations; and

(b)

in relation to a consignee in another Member State, has the meaning given by Article 4(9) of the Directive;

“registered consignor” —

(a)

in relation to a consignor in the United Kingdom, means a person who is approved and registered in accordance with Part 4 of these Regulations; and

(b)

in relation to a consignor in another Member State, has the meaning given by Article 4(10) of the Directive;

“report of export” means a report completed by the competent authorities of a Member State in which the customs office of exit is situated using the computerised system certifying that excise goods have left the territory of the EU;

“report of receipt” means a report submitted by the consignee of excise goods using the computerised system to the competent authorities of the Member State of destination confirming that the goods have been received;

“tax representative” has the meaning given by regulation 76(2);

“tax warehouse” means –

(a)

in relation to a place situated in the United Kingdom—

(i)

an excise warehouse M15 ;

(ii)

any premises registered under section 41A or 47 of ALDA 1979;

(iii)

any premises in respect of which a person holds an excise licence under section 54(2) or 55(2) of ALDA 1979;

(iv)

any premises in respect of which a person is registered in accordance with section 62(2) of ALDA 1979;

(v)

any premises registered for the manufacture or safe storage of tobacco products in accordance with regulations made under section 7(1)(b) or (ba) of TPDA 1979; and

(b)

in relation to a place situated in another Member State, a place where excise goods are produced, processed, held, received or dispatched under duty suspension arrangements by an authorised warehousekeeper in that Member State in the course of that person's business;

“temporary registered consignee” means a UK registered consignee who only occasionally imports excise goods from another Member State under duty suspension arrangements and whose authorisation is limited to a single movement of a specified quantity of such goods from a single consignor for a specified period;

“tobacco products” has the meaning given in section 1(1) of TPDA 1979;

“TPDA 1979” means the Tobacco Products Duty Act 1979;

“transporter” means the person carrying out the first transportation of excise goods in a movement of such goods;

“UK registered consignee” has the meaning given by regulation 22(2);

“UK registered consignor” has the meaning given by regulation 30(2);

“unique administrative reference code” means a code assigned to an electronic administrative document;

“vendor” means the vendor in a distance selling arrangement.

(2) In any case where, under an exemption granted in accordance with Article 40 of the Directive, a person is entitled to use, and uses, a document specified by Commission Regulation (EC) No. 436/2009 laying down detailed rules for the application of Council Regulation (EC) No 479/2008 as regards the vineyard register, compulsory declarations and the gathering of information to monitor the wine market, the documents accompanying consignments of wine products and the wine sector registers to be kept (as amended from time to time)—

(a) in substitute for an accompanying document—

(i) references in these Regulations to an accompanying document are to be treated as references to a document specified by that Regulation, and

(ii) references in these regulations to EU requirements are to be treated as references to the requirements set out in Articles 23, 26 to 30, 32 and 35 of, and the instructions for completion in Annex VI to, that Regulation;

(b) in substitute for an electronic administrative document—

(i) provisions in these Regulations that relate to electronic administrative documents and the computerised system shall not apply, and

(ii) the document accompanying the goods must comply with the requirements of that Regulation.

(3) For the purposes of these Regulations a movement of excise goods under a duty suspension arrangement—

(a) starts when the goods–

(i) leave a tax warehouse (where the consignor is an authorised warehousekeeper), or

(ii) are released for free circulation in accordance with Article 79 of Regulation (EEC) 2913/92 (where the consignor is a registered consignor), and

(b) ends-

(i) except where sub-paragraph (ii) applies, when the consignee takes delivery of the goods, or

(ii) in a case where the goods were dispatched to a place from where they will leave the territory of the EU, when they have so left.

(4) In these Regulations references to chewing tobacco are references to the product described in regulation 8 of the Tobacco Products (Descriptions of Products) Order 2003 M16 .

Modifications etc. (not altering text)

C1 Reg. 3(1) modified as it applies in a control zone (1.4.2010) by The Channel Tunnel (Alcoholic Liquor and Tobacco Products) Order 2010 (S.I. 2010/594), art. 1, 2, Sch. para. 1

C2 Reg. 3 modified as it applies in a control zone (1.4.2010) by The Channel Tunnel (Alcoholic Liquor and Tobacco Products) Order 2010 (S.I. 2010/594), art. 1, 2, Sch. para. 2

Marginal Citations

M1 Section 47 was substituted by the Finance Act 1991 (c. 31), section 7(3) and amended by the Finance Act 1994 (c. 9), Schedule 4, paragraph 32 and the Finance Act 2008 (c. 9), Schedule 41, paragraph 25(c)(i).

M2 1979 c. 7; section 7(ba) was inserted by the Finance Act 2000 (c. 17), section 15(6).

M3 This follows the Bills of Exchange Act 1882 (c. 61) section 92(a) as read with the Banking and Financial Dealings Act 1971 (c.80), section 3 (1).

M4 This follows the Bills of Exchange Act 1882 (c. 61) section 92(b), which was amended by the Banking and Financial Dealings Act 1971 (c. 80), section 4 (4).

M5 1971 c.80: section 1 of and Schedule 1 to that Act relate to bank holidays. Schedule 1 was amended by the St Andrew's Day Bank Holiday (Scotland) Act 2007 (asp 2).

M6 This follows the Bills of Exchange Act 1882 (c.61), section 92(c).

M7 This follows the Bills of Exchange Act 1882 (c.61), section 92(d), which was inserted by the Banking and Financial Dealings 1971 (c.80). Section 4(3) of the latter Act makes further provision about such orders.

M8 OJ No L 162, 1.7.2003, p 5.

M9 OJ No L.302, 19.10.1992, p1; article 4(4d) was inserted by article 1(1) of European Parliament and Council Regulation (EC) 648/2005 (OJ No L 117, 4.5.2005, p 13).

M10 OJ No L 9, 14.1.2009, p 12.

M11 “Revenue trader” is defined in section 1(1) of the Customs and Excise Management Act 1979.

M12 OJ No L 283, 31.10.2003, p 51.

M13 OJ No C 115, 09.05.08 p.1

M14 OJ No C 115, 09.05.08 p.1

M15 “Excise warehouse” is defined in section 1(1) of the Customs and Excise Management Act 1979.

M16 S.I. 2003/1471.

Application to energy products U.K.

4.  In the case of energy products, Parts 6, 7, 10 and 11 of these Regulations only apply to the energy products mentioned in Article 20(1) of Council Directive 2003/96/EC.