Commonwealth Consolidated Acts

CUSTOMS AND EXCISE LEGISLATION AMENDMENT ACT 1995 - SECT 5

(1)

Despite section 8 of the Acts Interpretation Act 1901 , but subject to subsection (2):

(a)

all rebate applications made before, but not decided before, the day on which this Act receives the Royal Assent; and

(b)

all applications made to the Administrative Appeals Tribunal before, but not decided before, that day in respect of decisions relating to rebate applications;

are to be decided under the Customs Act 1901 , and the Excise Act 1901 , as in force on and after that day.

(2)

Subsection (1) does not apply to:

(a)

a rebate application made by a person in respect of diesel fuel purchased by the person for use by the person at residential premises in:

(i)

providing food and drink for; or

(ii)

providing lighting, heating, air-conditioning, hot water or similar amenities for; or

(iii)

meeting other domestic requirements of;

residents of the premises; or

(b)

a rebate application made by a person in respect of diesel fuel purchased by the person for use by the person in a mining operation:

(i)

that is referred to in a paragraph of the definition of mining operations other than paragraph (d), (e), (f), (g), (h) or (i); and

(ii)

that relates to sand, sandstone, soil, slate, clay (other than bentonite or kaolin), basalt, granite, gravel or limestone (other than agricultural use limestone); or

(c)

an application made to the Administrative Appeals Tribunal in relation to a rebate application referred to in paragraph (a) or (b).

(3)

If a person purchased diesel fuel before the day on which this Act receives the Royal Assent for use by the person at residential premises in an activity referred to in subparagraph (2)(a)(i), (ii) or (iii):

(a)

the person may make a rebate application in respect of the duty paid on that fuel; and

(b)

if that application is not made, or finally decided, before that day, then, for all purposes connected with the making and deciding of that application and making any necessary payment of rebate, the Customs Act 1901 and the Excise Act 1901 have effect as if the amendments set out in items 1, 4, 5 and 9 of Schedule 1, and Schedule 2, had not been made; and

(c)

the person is not entitled to make an application for rebate in respect of that fuel otherwise than in accordance with paragraphs (a) and (b).

(3A)

If a person purchased diesel fuel before the day on which this Act receives the Royal Assent for use by the person in a mining operation:

(a)

that is referred to in a paragraph of the definition of mining operations other than paragraph (d), (e), (f), (g), (h) or (i); and

(b)

that relates to sand, sandstone, soil, slate, clay (other than bentonite or kaolin), basalt, granite, gravel or limestone (other than agricultural use limestone);

then:

(c)

the person may make a rebate application in respect of the duty paid on that fuel; and

(d)

if that application is not made, or finally decided, before that day then, for all purposes connected with the making and deciding of that application and making any necessary payment of rebate, the Customs Act 1901 and the Excise Act 1901 have effect as if the amendment set out in item 6 (in so far as that item refers to sand, sandstone, soil, slate, clay (other than bentonite or kaolin), basalt, granite, gravel or limestone (other than agricultural use limestone)) of Schedule 1 had not been made; and

(e)

the person is not entitled to make an application for rebate in respect of that fuel otherwise than in accordance with paragraphs (c) and (d).

(4)

If, in relation to a rebate application:

(a)

legal proceedings have been brought in the Federal Court of Australia or the High Court of Australia before the day on which this Act receives the Royal Assent; and

(b)

those proceedings have not been determined before that day;

then, for the purpose of those proceedings, despite section 8 of the Acts Interpretation Act 1901 , the law governing the right to be paid such a rebate is the Customs Act 1901 as in force on and after that day and the Excise Act 1901 as so in force.

(4A)

Subsection (4) does not apply in relation to a rebate application made by a person in respect of diesel fuel purchased by the person for use by the person in a mining operation:

(a)

that is referred to in a paragraph of the definition of mining operations other than paragraph (d), (e), (f), (g), (h) or (i); and

(b)

that relates to sand, sandstone, soil, slate, clay (other than bentonite or kaolin), basalt, granite, gravel or limestone.

(5)

If:

(a)

a person has made a rebate application; and

(b)

the person has, before the day on which this Act receives the Royal Assent, been paid a rebate to which the person is entitled under the Customs Act 1901 as in force at the time of the payment and under the Excise Act 1901 as so in force;

that payment is to be treated, on and after that day, as if it were a payment properly made under the Customs Act 1901 as in force on and after the first-mentioned day and under the Excise Act 1901 as so in force.

(6)

A person may, at any time, make a rebate application in respect of diesel fuel purchased for the purpose of a particular activity or operation more than 3 years before the making of that application only if:

(a)

notice of intention to make an application was duly given before1 July 1994 under subsection 164(4AB) of the Customs Act 1901 and under subsection 78A(4AB) of the Excise Act 1901 ; and

(b)

the notice can reasonably be construed as extending to cover that activity or operation, whether it so refers in express terms or not.

(7)

In this section: