HMAG151701 - Excise duty points: irregular dispatch of excise duty-suspended goods from a warehouse in Northern Ireland to an EU member state

The relevant provisions are contained in The Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (as amended) in force immediately before 11pm on 31 December 2020 as modified and applied in relation to excise goods in Northern Ireland by Part 1 of the Excise Duties (Northern Ireland Miscellaneous Modifications and Amendments) (EU Exit) Regulations 2020 (as amended) (commonly known as NI HMDP)).

This section applies when there is a failure to consign excise goods under duty-suspension arrangements from a warehouse in Northern Ireland to a legitimate destination in an EU Member State (as specified in regulation 35(a)) and/or a failure to comply with the movement conditions (as specified in regulation 39). This breach is commonly known as an 'unlawful' or 'illegal' removal.

Goods dispatched under duty-suspension arrangements from a warehouse in Northern Ireland can only be consigned to:

  • another tax warehouse approved in relation to excise goods of that class or description;
  • a registered consignee who has been registered in relation to excise goods of that class or description;
  • a place where they will leave the territory of Northern Ireland or the EU;
  • an exempt consignee where the goods are dispatched from Northern Ireland to an EU Member State or are dispatched from an EU Member State to Northern Ireland;
  • a customs office of exit, where provided for in Article 329(5) of Implementing Regulation (EU) 2015/2447, which is at the same time the customs office of departure for the external transit procedure, where provided for in Article 189(4) of Delegated Regulation (EU) 2015/2446, in relation to those goods.

    Excise goods may not be moved under duty-suspension arrangements unless:
  • there is a movement guarantee in place, provided by someone with an approved connection with the goods, and
  • the procedures in Part 6 of the NI HMDP regulations are complied with.

This section also applies in cases where it later transpires that the movement guarantee recorded on EMCS or Fallback document for a particular duty-suspended movement was not valid. For example, if the person shown as providing the guarantee was not eligible to provide that guarantee (was not one of the parties eligible to provide the guarantee) or that person is able to demonstrate that they did not give their permission for their guarantee to be used for that movement.  

Where there is an unlawful removal of excise goods from a warehouse located in Northern Ireland which are consigned to an EU Member State, there is a release for consumption under regulations 6(1)(a) and 7(1)(a), with an excise duty point arising under regulation 5.

Excise duty point

Where there is a release for consumption under regulations 6(1)(a) and 7(1)(a), an excise duty point arises under regulation 5. The excise duty point for failing to comply with the excise duty-suspension arrangements is the time when the goods leave the duty-suspension arrangement. In most cases this will be the time when the goods left the warehouse.

Person/s liable to pay the duty

The person/s liable to pay the duty when excise goods are released for consumption under regulations 6(1)(a) and 7(1)(a) are shown in regulation 8. 

Under regulation 8(1) the person liable to pay the duty is the authorised warehousekeeper or any other person releasing the excise goods or on whose behalf the excise goods are released from the duty-suspension arrangement. Where there is an irregular departure from a warehouse following a contravention of the provisions in regulation 7(1)(a)(i) and (ii) the person liable to pay the duty would be the authorised warehousekeeper. In other words, the goods were not consigned to someone authorised to receive them or a fundamental movement condition has not been met.

Under regulation 8(2), any person who was involved in the irregular departure of those goods from the warehouse is jointly and severally liable to pay the duty. For example, if the authorised warehousekeeper employs a management company to undertake certain duties, including control over the release of the goods, then the management company could be jointly and severally liable for the duty.