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Does a blend of diesel and ethanol fall within the definition of 'off-road diesel fuel' as defined in regulation 9 of the Energy Grants (Credits) Scheme Regulations 2003 (the Regulations)?

Yes. A blend of diesel and ethanol falls within the definition of 'off-road diesel fuel' as defined in regulation 9 of the Regulations for the purposes of the Energy Grants (Credits) Scheme.

An entity produces a blend of diesel and ethanol for use in vehicles and equipment powered by diesel engines.

The blend produced by the entity is a blend of diesel, hydrated ethanol and an emulsifier. Hydrated ethanol is ethyl alcohol that contains approximately 5% water. The sulphur content of the blend does not exceed 50 parts per million.

The entity producing the fuel has paid excise duty on the blend at the required rate.

The Energy Grants (Credits) Scheme Act 2003 (EGCSA) sets out the circumstances under which an entity is entitled to off-road credits (which are paid in the form of energy grants).

To be entitled to an off-road credit, the entity must purchase, or import into Australia, 'off-road diesel fuel' for use in certain defined activities. 'Off-road diesel fuel' is defined in regulation 9 of the Regulations.

Subregulation 9(1) states that the following are off-road diesel fuel: (a) ...a product on which: ... (ii) excise duty has been paid at a rate that is applicable to diesel fuel, under the Schedule to the Excise Tariff Act 1921 , at the time of payment; that is capable of being used as fuel in a diesel engine ...

Subregulation 9(3) of the Regulations specifically excludes certain products from being 'off-road diesel fuel'. A blend of diesel and ethanol is not one of the specific exclusions.

Under the Schedule to the Excise Tariff Act 1921 (Excise Tariff Act), two rates are given for diesel fuel, depending on the sulphur content of the diesel. Accordingly, a blend of diesel and ethanol will be considered to be 'off-road diesel fuel' if: • excise duty has been paid on the product at either of the rates that apply to diesel fuel; and • the product is capable of being used as a fuel in a diesel engine.

Section 5 of the Excise Tariff Act imposes excise duty on those goods which are described in the Schedule to the Excise Tariff Act (the Schedule). The Schedule specifies those goods which are excisable, and the rate of duty levied on those goods.

Item 12 of the Schedule deals with blended petroleum products. The rate of duty that applies to items classified to Item 12 is calculated in accordance with section 6G of the Excise Tariff Act.

Subsection 6G(2B) of the Excise Tariff Act gives the formula for calculating the rate of duty of a product that is a blend of diesel, ethanol and any other substances. Under this formula, a product will attract excise duty at one of the rates that applies to diesel fuel where the sulphur content does not exceed 50 parts per million.

As the sulphur content of the blend does not exceed 50 parts per million, it is a product on which excise duty is payable at the diesel rate. As duty has been paid on the blend at this rate and it is capable of being used as a fuel in a diesel engine, the blend is 'off-road diesel fuel' as defined in regulation 9 of the Regulations for the purposes of the Energy Grants (Credits) Scheme.