Case: Moama Refinery v Chief Executive Officer of Customs [2001] FCA 1287 ; (2001) 115 FCR 205 
Outcome: followed
As an extension of this argument, Caltex said that s 61 which renders excisable goods subject to the Commissioner's control "until delivered for home consumption or exportation" demonstrates that "delivery" occurs only upon an entry pursuant to s 58 or a "deemed delivery", as it put it, pursuant to s 61C. It referred to the fact that s 61 contains penalty provisions which prohibit interference with goods that are subject to control, and said that delivery for home consumption, which brings that control to an end, can only occur in a manner provided for by the Excise Act . Reliance was placed on Moama Refinery v Chief Executive Officer of Customs [2001] FCA 1287 ; (2001) 115 FCR 205 ( Moama ) where Ryan J referred to the regime in ss 58 , 59 , 60 and 61 and stated at [22]: There can be no suggestion, on the facts of the present case, that the subject fuel had ever been "entered" for home consumption as contemplated by s 58(1)(a) of the Act. Without such entry, or authorisation, they could not have been "delivered" for home consumption and, accordingly, by force of s 61(1) they remained subject to Customs control. 138 As the final step in its argument, Caltex submitted that s 61C (there here being no "entry" of the residual oils) makes it clear that excisable goods can only be delivered for home consumption upon being removed from the manufacturer's relevant premises. This was said to be because s 61C permits a manufacturer to "deliver for home consumption from a place specified in the permission" (emphasis added). 161 In my view there was no doubt about the whereabouts of the residual oils or whether they had been, at least on the Commissioner's construction of s 60(1)(a) , kept safely. This is not a case where the location of the goods (and therefore whether they had gone into home consumption) was unknown (cf. Moama [2001] FCA 1287 ; 115 FCR 205) , or a case where the Commissioner only had "evidence which might lead him to form the opinion that excisable goods were not kept safely" (see Sidebottom [2000] FCA 607 ; 98 FCR 579 at [16] ). The facts here were clear the residual oils had been consumed by Caltex at its premises without the payment of any duty. 165 A similar situation arose in Moama [2001] FCA 1287 ; 115 FCR 205. The Commissioner in that case issued a demand on the basis of s 60(1)(b) only, but sought at the hearing, as an alternative, to validate the demand in reliance on s 60(1)(a). After referring to Revlon Manufacturing Limited v Commissioner of Taxation (1995) 63 FCR 535 and Federal Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105 , Ryan J found that the demand could be justified on the basis of s 60(1)(a) , even if s 60(1)(b) had not been available. His Honour stated at [40]: In my view, the amenability of Moama to the issue of a demand under s 60(1) did not depend on the exercise of any power by Customs (other than the issuing of the demand itself). It arose, as Wilcox J said in Revlon out of the operation of the Act itself. There was, accordingly, no scope for Moama to be under any misapprehension as to the basis upon which it was asked to pay duty on the subject fuel.