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The declarant’s liabilities under both Customs law and excise law
Guidance on the difference between a declarant’s liabilities under Customs law and excise law
Brexit, in many ways, has increased the risks for declarants when making Customs declarations. Many more Customs entries have to be submitted and certain trades, by their very nature, attract more severe penalties. HM Revenue & Customs (HMRC) pays particular attention to excise fraud and because of the amount of wines, spirits and petroleum goods imported from the EU, such movements are carefully scrutinised. Excise goods are covered by specific legislation in addition to general Customs-related processes. This is reflected in the BIFA STC which cover all goods, not just excise goods. Clause 7 of the STC empowers any BIFA Member to act as a Direct Customs Representative. When read in conjunction with the definition of ‘Direct Customs Agent’ in clause 1, it clearly states that Direct Customs Representation is only applicable to the following legislation: “The Company acting in the name of and on behalf of the Customer and/or Owner with HM Revenue and Customs as defined by the Taxation (Cross Border Trade) Act 2018, Clause 21.1(a), or as amended.” Excise-related goods For excise-related goods, the Holding and Movement Duty Point Regulations 2010 are also applicable and Section 12 (1) is relevant and has an effect on the general position of Direct Representation. The text of this section is reproduced below. “Goods released for consumption in the United Kingdom – persons liable to pay 12 (1) The person liable to pay the duty when excise goods are released for consumption by virtue of regulation 6(1) (d) (importation of excise goods that have not been produced or are not in free circulation in the EU) is the person who declares the excise goods or on whose behalf they are declared upon importation.
(2)In the case of an irregular importation any person involved in the importation is liable to pay the duty. (3)Where more than one person is involved in the irregular importation, each person is jointly and severally liable to pay the duty.” This clause 12 imposes specific legal responsibilities on specific entities involved in the importation of excise goods. It would not be appropriate to contain a provision in the BIFA STC to cover this clause as it only relates to excise goods and not all Members deal in excise goods. The Holding and Movement Duty Point Regulations 2010 are specific regulations dealing with goods released into the UK and the duty point when tax is payable. Clause 12 (1) relates to excise goods released for consumption in the
UK and liability to pay. If the goods are not in free circulation but have been released (ie, the excise duty has not been paid when it should have been paid), then the liable party is the declarant or the party on whose behalf they act, and each party is liable to pay that duty jointly and severally – in other words both are liable together and HMRC may recover from both in shares of the sum due or one of them the total sum due. HMRC tends to pursue the party who made the declaration unless that party can show someone else is ready to pay. However, it is still important for forwarding companies to continue to obtain a Direct Representation Authorisation in relation to excise goods being declared. In law, when making a Customs declaration, the import agent must declare itself as either a direct or indirect representative, as whenever entries are made the
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January 2023
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