Cap. 382 Art. 16Offences and penalties.

(1) Any person who -

(a) produces excisable goods by a process which is not permitted in terms of this Act or of any regulations made thereunder; or

(b) produces excisable goods in any establishment other than a authorised tax warehouse; or

(c) makes any alterations in the productive facilities and storage areas in a authorised tax warehouse or affecting the security of a authorised tax warehouse without the prior notification thereof to the

Commissioner; or

(d) forges a die, stamp, mark or other device used by the Government, or under its authority, for making excise revenue bands or stamping or marking such bands for the purposes of this Act or any regulations made thereunder; or

(e) makes with such forged die, stamp, mark or other device an impression on any material; or

(f) sells or exposes for sale or utters or uses any forged die, stamp, mark or device or any impression made therewith; or

(g) knowingly and without lawful excuse (the proof whereof shall lie on the accused) has in his possession any forged die, stamp, mark or device or impression made therewith; or

(h) makes fraudulent use of any genuine die, stamp, mark or device or commits any of the acts contemplated in paragraphs (e), (f), and (g) with regard to impressions fraudulently made with genuine instruments; or

(i) makes or gives or submits or is instrumental in the making or the giving of any declaration, document or information to the Commissioner, which to his knowledge is false in any detail:

Provided that a person who makes an incorrect declaration and requests the Commissioner in writing to amend it:

(i) before the Commissioner informs the person that the particulars of the customs declaration are not correct; and

(ii) (aa) during the period when it is not yet established, in the systems relating to the processing of customs declarations, whether manual or electronic, if there is going to be control of the goods; or

(bb) within ten (10) working days from the date of release of the goods, which goods were released without control; and

(iii) such amendment does not tend to make the declaration applicable to other goods, other than those which were originally declared, in the sense that the only amendment that may take place in the declaration is one (1) or more amendments from those listed in the Ninth Schedule, that person shall be deemed not to have committed the offence under this paragraph; or'

(j) is in any way knowingly concerned in any evasion or attempt at evasion of the duty leviable under the Act; or

(k) obstructs the Commissioner or any Customs official or other persons duly charged with the prevention and detection of offences against this Act with the carrying out of any of the provisions of this Act or of any regulations made thereunder; or

(l) recommends a retail price for cigarettes in excess of the established retail price on the basis of which excise duty has been computed in terms of the relevant Schedule to the Act; or

(m) sells cigarettes at a price in excess of the retail price established by the local manufacturer, or importer, and on which excise duty has been computed in terms of the relevant Schedule to this Act; or

(n) knowingly aids, abets or assists in the commission of any of the foregoing offences; or

(o) is the person in whose name a authorised tax warehouse is registered and fails to report, within the time prescribed by regulations made under this Act, any quantity of excisable goods released for consumption or for free circulation, and fails to show to the satisfaction of the court that any such act or thing done or omitted to be done by any person in his employment or subject to his authority or control, was done or omitted without his knowledge, and that he could not with reasonable diligence have obtained knowledge thereof; or

(p) stores and, or offers for sale containers of alcohol or wine to which there is affixed an excise stamp that was already affixed to another alcohol or wine container; or

(q) imports for the purpose of sale or stores for the purpose of sale or prepares for the purpose of sale or offers for sale or offers for free water-pipe tobacco (also known as shisha tobacco) when not authorised as a registered consignor, registered consignee or an authorised tax warehouse keeper: Provided that whoever shows that he has acquired water-pipe tobacco from a registered consignor, registered consignee or an authorised tax warehouse keeper shall be deemed not to have committed a crime; or

(r) stores for the purpose of sale or prepares for the purpose of sale or offers for the purpose of sale or offers for free, water-pipe tobacco (also known as shisha tobacco) while the tobacco is neither in its box, packet or container with the excise stamp still affixed to it, nor is it in the water-pipe itself; or

(s) is a wholesaler of tobacco, a distributor of tobacco or is a first retail outlet of tobacco and is not authorised or registered in the system of Track and Trace; or

(t) imports or brings into Malta, or has in his possession, or disposes of, tobacco which is not listed in the Third Schedule, without the permission of the Commissioner; or,

(u) comes into possession of excisable goods or excise stamps or bands in breach of the law; or

(v) fails to register himself with the Commissioner, or his business or the property which he manages, in breach of this Act or its subsidiary laws, shall be guilty of an offence and shall for every such offence be liable on conviction to a fine (multa) of not less than five hundred euro (€500) and not more than twenty-five thousand euro (€25,000): Provided that in the case of conviction for an offence related to manufactured tobacco mentioned in the Third Schedule to this Act, the offender shall be liable to a fine (multa) of not less than three thousand five hundred euro (€3,500) and not more than twenty five thousand euro (€25,000): Provided further that in the case of a conviction relating to the evasion or attempted evasion of excise duty, the offender shall be liable to a fine (multa) equivalent to three times the excise duty due on goods or five times the endangered duty, whichever is the lesser, but in any case not less than six hundred euro (€600) which fine may exceed twenty-five thousand euro (€25,000): Provided further that in the case of a conviction relating to the evasion or attempted evasion of excise duty related to manufactured tobacco mentioned in the Third Schedule to this Act, the offender shall be liable to a fine (multa) equivalent to three times the excise duty due on goods or five times the endangered duty, whichever is the lesser, but in any case not less than four thousand euro (€4,000) which fine may exceed twenty-five thousand euro (€25,000): Provided further that in the case of importation or bringing into Malta or possession or disposal of tobacco that is not listed in the Third Schedule, the offender shall be liable, upon conviction, to a fine (multa) equivalent to twice the value of the tobacco:

Provided further that in the case of a conviction relating to the evasion or attempted evasion of excise duty by means of an item of excise duty found in the Seventh Schedule, the offender shall be liable to the fine (multa) provided for in the relevant provisos of this article as the case may be together with imprisonment for a term not exceeding three (3) years: Provided further that one-third of the fine (multa) shall be deemed as a civil debt owed and payable to the Department of Customs.

(2) (Deleted by Act I. 2010.56.).

(3) In the case of a second or subsequent conviction under this article, the offender shall be liable, at the discretion of the court, to be sentenced to imprisonment for a term not exceeding six months in addition to the penalties herein prescribed.

(4) In the case of a conviction for an offence against the provisions of paragraph (a) or (b), the stock of excisable goods to which the conviction relates shall be forfeited in favour of the Government, and such forfeiture shall be executed without the necessity of any express order of the court for the purpose.

(5) In the case of a second or subsequent conviction under sub-article (1)(a) or (b), it shall be lawful for the Commissioner to seize and take possession of any machinery, equipment, receptacles, utensils, materials and ingredients used in the production of excisable goods, and to dispose of the same as provided in article 38.

(6) In the case of a conviction for an offence against the provisions of sub-article (1)(d), (e), (f), (g) or (h) the offender shall, in addition to the penalties laid down in sub-article (1), be liable to a term of imprisonment from one to four years.

(7) Any person who negligently makes or gives or submits or causes to be made or given any declaration, document or information to a Customs official which is false in any detail shall be liable, on conviction, for every such offence, to a fine (multa) equivalent to three (3) times the duty endangered, but not less than three-hundred and fifty euro (€350):

Provided that a person who makes an incorrect declaration and requests the Commissioner in writing to amend it:

(i) before the Commissioner informs the person that the particulars of the customs declaration are not correct; and

(ii) (aa) during the period when it is not yet established, in the systems relating to the processing of customs declarations, whether manual or electronic, if there is going to be control of the goods; or

(bb) within ten (10) working days from the date of release of the goods, which goods were released without control; and

(iii) such amendment does not tend to make the declaration applicable to other goods, other than those which were originally declared, in the sense that the only amendment that may take place in the declaration is one (1) or more amendments from those listed in the Ninth Schedule, that person shall be deemed not to have committed the offence under this paragraph.