Issue
Is a person who holds a permission to deliver excisable fuel without entry under section 61C of the Excise Act 1901 (61C permission) a 'licensed person for the fuel' for the purposes of subsection 4(1) of the Energy Grants (Cleaner Fuels) Scheme Act 2004 (EGCFSA) if they obtain duty paid 'cleaner fuel' of the same type specified in their permission from premises that are not listed on their permission?
Decision
No. A person who obtains duty paid 'cleaner fuel' from premises other than those listed on their section 61C permission is not a 'licensed person for the fuel'.
Facts
A person holds a 61C permission which authorises them to deliver certain excisable fuel without entry. The permission specifies certain premises from which the person is permitted to deliver the fuel.
The fuel is a cleaner fuel as defined by subsection 4(1) of the EGCFSA.
The person obtains duty paid 'cleaner fuel' of the same type specified in their permission from premises that are not listed on their section 61C permission.
The person does not hold a manufacturer's licence or a storage licence.
Reasons for Decision
The cleaner fuels grants scheme provides for the payment of grants to certain entities that have particular dealings with cleaner fuels.
A cleaner fuel is a fuel that is defined within subsection 4(1) of the EGCFSA.
Section 5 of the EGCFSA contains the legislative requirements for provisional entitlement to a cleaner fuel grant and section 7 of the EGCFSA contains the disqualifying circumstances.
These provisions refer to the term 'licensed person for the fuel'. Specifically, this term occurs in subparagraph 5(1)(b)(iv), subparagraph 5(1)(g)(i), paragraph 5(4)(b) and paragraph 7(1)(a) of the EGCFSA.
Subsection 4(1) of the EGCFSA contains the following definition: licensed person , for a fuel, means: (a) a person who is: (i) a licensed manufacturer (as defined in the Excise Act 1901 ); or (ii) a holder of a storage licence (as defined in the Excise Act 1901 ); or (iii) a person specified in a permission given under section 61C of the Excise Act 1901 ; or (iv) a person to whom a permission has been granted under section 69 of the Customs Act 1901 .
In the drafting of the entitlement/disqualifying provisions, by using the phrase 'licensed person for the fuel', rather than merely referring to 'licensed person', the drafter has consistently linked the concept of a 'licensed person' with 'the fuel'. The phrase 'the fuel' clearly refers to a particular quantity of fuel which attracts a provisional entitlement to a grant under section 5 of the EGCFSA or is disqualified from provisional entitlement under section 7 of the EGCFSA.
Consequently, the term 'licensed person for the fuel' must be considered in the context of the particular fuel which is the subject of a provisional entitlement to a cleaner fuels grant. In addition, in determining whether the holder of a 61C permission is a licensed person for the fuel, one must consider whether the person has permission to deliver goods without entry from the premises where the particular fuel is being held. It follows that if a person holds a 61C permission, but the permission does not relate to the premises from which the fuel is obtained, the person will not be a licensed person for the fuel.