PART IGeneral (continued)
Recovery of Duties and Penalties (continued)
Marginal note:Dealing with articles seized
112 (1) Where any article is seized under this Act, the Minister may authorize the collector for the excise division in which the seizure is made, or a superior officer, to sell, destroy or otherwise deal with the article, as if it had been condemned.
Marginal note:Proceeds of sale
(1.1) The Minister shall hold the proceeds from the sale of any article under subsection (1) until the time for making a claim in respect of the article under section 116 has expired, or, where a claim is made under that section, until that claim has been disposed of.
Marginal note:Payment of compensation
(1.2) Where a court decides a claim under section 116 in favour of the claimant and it is not possible to return the article to the claimant, the court shall, in lieu of awarding restitution, order the Minister to pay to the claimant
(a) where the article was sold, the proceeds from the sale; and
(b) in any other case, the value of the article.
Marginal note:Article to be delivered
(2) The Minister may authorize the collector or superior officer referred to in subsection (1) to deliver up to any claimant any article seized as described in that subsection on the claimant depositing in the hands of the collector or superior officer such sum of money as will represent the full value thereof, or giving security to the satisfaction of the collector or superior officer that the value of the article and all costs shall be paid to the use of Her Majesty, if the article is condemned.
- R.S., 1985, c. E-14, s. 112
- 1994, c. 37, s. 4
113 [Repealed, 1989, c. 22, s. 10]
Marginal note:Certificate as evidence
114 In every prosecution under this Act, the certificate of analysis furnished by a departmental analyst or by a provincial analyst is evidence of the facts stated therein and of the authority of the person giving or issuing the certificate without further proof of appointment or signature.
- R.S., c. E-12, s. 112
Marginal note:Stock in trade and apparatus liable for duties
115 (1) The grain, malt, beer, tobacco, cigars or other materials or stock in trade from which any goods subject to excise are or could be wholly or in part made, and machinery, implements, articles and utensils used or capable of being used for making, manufacturing or producing any of those goods or preparing any materials therefor, or by means of which any trade, business or employment subject to excise is or has been or might be carried on, and whether so fixed as to form part of the real property or not, that are on the premises mentioned in the licence or in the custody or possession of the person carrying on the trade or business, or in the custody or possession of any factor, agent or other person in trust for or for the use of that person, at the time when any duties become due or any penalty or forfeiture is incurred under this Act,
(a) are liable for the duties and for the penalty or forfeiture incurred by the person carrying on business subject to excise on whose premises or in the custody or possession of whom or of whose factor, agent or trustee they are; and
(b) may be seized and sold in satisfaction of the duty, penalty or forfeiture under any warrant of distress, writ of execution or other process for the recovery thereof, and may be removed by the purchaser.
Marginal note:Preservation of claims of the Crown
(2) Notwithstanding subsection (1), all claims of the Crown, whether preferential or privileged, or not, on any other property of the debtor or offender, or his sureties, for any duties, penalties or forfeitures are hereby preserved.
- R.S., c. E-12, s. 113
Marginal note:Notice of information filed in court
116 (1) As soon as an information has been filed in any court for the condemnation of any goods or thing seized under this Act, notice thereof shall be posted in the office of the registrar, clerk or prothonotary of the court, and in the office of the collector or chief officer in the excise division in which the goods or thing has been seized.
Marginal note:Claims to property seized
(2) Where the owner or person claiming the goods or thing referred to in subsection (1) presents a claim to the court, gives security and complies with all the requirements of this Act in that behalf, the court at its sitting immediately after the notice referred to in that subsection has been posted during one month may hear and determine any claim that has been duly made and filed in the meantime and release or condemn the goods or thing, as the case requires, otherwise the goods or thing shall, after the expiration of that month, be deemed to be condemned and may be sold without any formal condemnation thereof.
(3) No claim on behalf of any person who has given notice of intention to claim before the posting of the notice referred to in subsection (1) shall be admitted unless it is made within one week after the posting thereof, nor shall any claim be admitted unless notice thereof has been given in writing to the collector or superior officer within one month from the seizure of the goods or thing.
- R.S., c. E-12, s. 114
Marginal note:Condemnation of property seized
117 (1) All vehicles, vessels, goods and other things seized as forfeited under this Act or any other Act relating to excise, trade or navigation, shall be deemed and taken to be condemned, and may be dealt with accordingly, unless the person from whom they were seized, or the owner thereof, within one month from the day of seizure, gives notice in writing to the seizing officer, or to the collector in the excise division in which the goods were seized, that he claims or intends to claim them.
Marginal note:Release of goods on security
(2) The collector at the place where the seized goods are secured, or any superior officer, may order the delivery of the goods to the owner thereof on receiving security by bond with two sufficient sureties, to be first approved by the collector or superior officer, for double the value in case of condemnation.
Marginal note:Payment on condemnation
(3) If the seized goods are condemned, the value thereof shall be forthwith paid to the collector and the bond cancelled, otherwise the penalty of the bond shall be enforced and recovered.
Marginal note:Bond to be kept by collector
(4) The bond shall be taken to Her Majesty’s use in the name of the collector and shall be delivered to and kept by the collector.
- R.S., c. E-12, s. 115
Marginal note:Payment of penalty not to discharge any duty
118 The payment of any penalty or forfeiture incurred under this Act does not discharge the person paying the penalty or forfeiture from the obligation to pay all duties due by that person, and the duties shall be paid and may be recovered as if the penalty or forfeiture had not been paid or incurred.
- R.S., c. E-12, s. 116
Marginal note:Recovery of penalties
119 (1) Every penalty or forfeiture incurred and any term of imprisonment imposed for any offence against this Act, or any other law relating to excise, whether in conjunction with a pecuniary penalty or not, may be sued for and recovered in, or may be imposed, adjudged and ordered,
(a) by the Federal Court, or any court of record having jurisdiction in the place where the cause of prosecution arises or in which the defendant is served with process; or
(b) if the amount or value of the penalty or forfeiture does not exceed ten thousand dollars, and the term of imprisonment does not exceed twelve months, exclusive of any term of imprisonment that may be adjudged or ordered for non-payment of any pecuniary penalty, whether or not the offence in respect of which it has been incurred is declared by this Act to be an indictable offence, by summary conviction before a provincial court judge, or any two justices of the peace having jurisdiction in the place where the cause of prosecution arises, or wherein the defendant is served with process, or before any functionary, tribunal or person empowered by the proper legislative authority to perform acts usually required to be done by two or more justices of the peace and acting within the local limits of his or its jurisdiction.
(2) Every action, suit or prosecution taken under this Act, whether under the Criminal Code or before any court of competent jurisdiction, shall be inscribed on a privileged docket or roll and heard by privilege and preference.
Marginal note:May be levied by distress and sale
(3) Any pecuniary penalty referred to in subsection (1) may, if not forthwith paid, be levied by distress and sale of the goods and chattels of the offender, under the warrant of the court, judge, provincial court judge or justices having cognizance of the case, or the court, judge, provincial court judge or justices may, in its or their discretion, commit the offender to the common jail for a period not exceeding twelve months, unless the penalty and costs, including those of conveying the offender to the common jail and those stated in the warrant of committal, are sooner paid.
- R.S., 1985, c. E-14, s. 119
- R.S., 1985, c. 15 (1st Supp.), s. 49, c. 27 (1st Supp.), s. 203
Marginal note:Minimum punishment
120 Notwithstanding any other statute or law, the court, in any prosecution, suit or proceeding under this Act, has no power to impose less than the minimum punishment prescribed by this Act and has no power to suspend sentence.
- R.S., c. E-12, s. 118
Marginal note:Who may try offence
121 Where a prosecution in respect of an offence against this Act is brought before a provincial court judge, or before any two justices of the peace, no other justice of the peace shall sit or take part therein, except that in any city or district in which there is more than one provincial court judge, the prosecution may be tried before any one of the provincial court judges.
- R.S., 1985, c. E-14, s. 121
- R.S., 1985, c. 27 (1st Supp.), s. 203
Marginal note:Limitation of time for prosecution
122 Any information or complaint with respect to any offence against this Act or any other law relating to excise may, whenever the prosecution, suit or proceeding in respect of the offence is instituted under the provisions of the Criminal Code relating to summary convictions, be laid or made within two years after the time when the matter of the information or complaint arose.
- R.S., c. E-12, s. 120
Marginal note:Voluntary forfeiture of goods or payment of penalty
123 Where any article or thing is voluntarily given up or abandoned by the owner thereof to any collector as forfeited under this Act, or any sum of money is voluntarily paid to that collector as the amount of a penalty incurred under this Act, the article or thing may be dealt with as if lawfully condemned and the sum of money as if lawfully recovered.
- R.S., c. E-12, s. 121
Marginal note:Seizures made under error
124 Where in any case it appears to the Minister that a seizure has been made through an error in judgment by an officer and that the retention of the seized property would result unfairly in pecuniary loss to the person from whom the property was seized, the seizure may be released by the Minister without reference of the matter to the Governor in Council.
- R.S., c. E-12, s. 122
Appropriation of Penalties and Forfeitures
Marginal note:Penalties belong to Crown
125 (1) Subject to this section, all penalties and forfeitures under this Act belong to Her Majesty.
Marginal note:Division among persons seizing
(2) The proceeds of any penalties and forfeitures under this Act may, under such regulations as the Governor in Council may prescribe in that behalf, be distributed in whole or in part and may be divided between and paid to any officer and any person giving information or otherwise aiding in effecting a seizure resulting in the penalties or forfeitures.
(3) The Governor in Council may by regulation prescribe the manner in which the proceeds of penalties and forfeitures under this Act shall be distributed and may provide for payment of awards forthwith after seizure of goods or the preferring of charges where goods are not seized, based on the value of the goods seized, the amount of excise duty evaded or the penalties imposable on any person guilty of any contravention of this Act, as the case may be, and not dependent on forfeiture or the proceeds of forfeiture.
(4) Nothing in this section shall be construed to limit or affect any power vested in the Governor in Council by this Act or any other law with regard to the remission of penalties or forfeitures.
- R.S., c. E-12, s. 123
Marginal note:Penalties belong to C.R.F.
126 All sums of money paid or recovered for any penalty or forfeiture under this Act, or any part thereof belonging to Her Majesty, shall be paid to the collector at the port within the jurisdiction of which the offence is committed or to the Commissioner of the Royal Canadian Mounted Police, or any officer commanding a Division of the Royal Canadian Mounted Police, for deposit in either case to the credit of the Receiver General, and shall form part of the Consolidated Revenue Fund.
- R.S., 1985, c. E-14, s. 126
- 1999, c. 17, s. 142(E)
126.1 to 126.3 [Repealed, 2001, c. 32, s. 64]
127 The Governor in Council may make regulations
(a) prescribing what shall be special excise services for the performance of which charges shall be payable to Her Majesty, and prescribing those charges; and
(b) prescribing anything that by this Act is to be prescribed by the regulations.
- R.S., c. E-12, s. 125
- R.S., c. 15(1st Supp.), s. 13
Marginal note:Ministerial regulations
127.1 The Minister may make regulations for the purposes of any provision of this Act that provides for ministerial regulations.
- R.S., 1985, c. 15 (1st Supp.), s. 50
- 1993, c. 25, s. 39(F)
- 1999, c. 17, s. 144(E)
Marginal note:Drawbacks on export
128 The Governor in Council may, under regulations made for that purpose, allow on the exportation in bond of goods manufactured from, or a product or result of the process of manufacture of, articles subjected to a duty of excise, and on which the duty of excise has been paid, a drawback equal to the duty so paid, with such deduction therefrom as is provided in the regulations.
- R.S., c. E-12, s. 126
Marginal note:Provisions additional to Part I
129 The provisions of this Part are to be construed as additional or supplemental to the provisions of Part I applicable to distilleries and their products.
- R.S., c. E-12, s. 128
Marginal note:Licences to distillers
130 (1) A licence to carry on the trade or business of a distiller may, with the approval of the district inspector of the district or excise division in which the trade or business is to be carried on, be granted to any person who has complied with the requirements of this Act if that person has, jointly with a guarantee company approved by the Minister, entered into a bond to Her Majesty in right of Canada in an amount determined by the Minister that is not less than two hundred thousand dollars, and in such form that the proposed licensee and the guarantee company are both bound to the full amount of the bond.
Marginal note:Conditions of bond
(2) The bond entered into under subsection (1) shall be conditioned on the rendering of all accounts, inventories, statements and returns prescribed by law and the payment of all duties and penalties that the person to whom the licence is to be granted becomes liable to render or pay under this Act, and on the person faithfully complying with all the requirements of this Act according to their true intent and meaning, with regard to the accounts, inventories, statements, returns, duties and penalties, as well as to all other matters and things whatever.
- R.S., c. E-12, s. 129
- R.S., c. 15(1st Supp.), s. 14
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