ATO ID 2015/20: Excise: Petroleum: Fuel blends that can be used as fuel in an internal combustion engine
Date of decision: 20 July 2015
Business line: Indirect Tax

Issue
Does a blend of fuels fall within subitem 10.30 of the Schedule to the Excise Tariff Act 1921 (Tariff Act) where that blend is of a low quality and can only be used in a robust internal combustion engine such as a heavy haulage vehicle or a marine diesel engine?

Decision
Yes. So long as a blend of fuels (with or without other substances) can be used as fuel in at least one type of internal combustion engine, then irrespective of the fuel's quality the blend falls within subitem 10.30 of the Tariff Act.

Facts
A licensed excise manufacturer blends excisable fuel with other substances. The blended product cannot be used as fuel in the internal combustion engine of a light high performance vehicle as it will damage the engine and compromise the engine warranty. The blended product can be used as fuel in the internal combustion engines of heavy haulage diesel vehicles or slow turning marine engines.

Reasons for decision
Summary: Goods which fall within subitem 10.30 are: Blends of 1 or more of the above goods (with or without other substances) not elsewhere included that can be used as fuel in an internal combustion engine (other than goods covered by section 77J of the Excise Act 1901). Goods that may be blended for the purpose of subitem 10.30 include, petroleum condensate and oil, liquid hydrocarbon products, liquefied petroleum gas, liquefied natural gas and biodiesel. These goods may also be blended with other substances. Section 77J of the Excise Act is not relevant in these circumstances as it deals with goods reused as a solvent following a recycling process. The description of goods which fall within subitem 10.30 states only that the blend 'can' be used as fuel in an internal combustion engine. Relevantly, the term 'can' is defined in the Macquarie Dictionary as, amongst other things, 'to be able to'. In turn, the term 'able' is defined as: 1. having sufficient power, strength, or qualifications; qualified: she is ready, willing, and able. ... -phrase 4. be able to, to have the capability or capacity to... Therefore, if a fuel blend, when used in an internal combustion engine, enables the engine in which it is used to operate as intended, it can be said that the fuel blend 'can be used as fuel in an internal combustion engine' for the purpose of subitem 10.30. The quality of the fuel and the specifications of the engine are only relevant to this extent. It will always be a question of fact whether use of a particular blend of fuel will enable the internal combustion engine in which it is used to operate as intended. This conclusion is supported by the explanatory memorandum to the Excise Tariff Amendment (Fuel Tax Reform and Other Measures) Bill 2006, under which subitem 10.30 was inserted into the Schedule to the Tariff Act. Paragraph 1.113 of the explanatory memorandum explains the phrase 'can be used', for the purpose of subitem 10.30 as: This test is a practical, objective test of whether the blend can be used in an internal combustion engine, not whether the blend is designed or intended to be used in that way. For example, paint can be manufactured by blending toluene (subitem 10.25) with other substances including pigments. An objective test says that paint cannot be used in an internal combustion engine. Paint is therefore not classified to subitem 10.30 (or any other item). The above discussion refers to the ability of a blend of excisable fuel products, with or without other substances, to be used as a fuel in an internal combustion engine. It does not infer that the fuel must be of a certain quality or that the internal combustion engine is for a particular use. In this case, the fuel blend cannot be used as fuel in the internal combustion engine of a high performance vehicle. It would damage the engine and compromise the engine warranty. However, the same blend may be used as fuel in a more robust internal combustion engine such as a heavy haulage vehicle or a marine diesel engine. Consequently, the fuel blend can be used as a fuel in an internal combustion engine for the purpose of subitem 10.30.

Legislative references: Excise Tariff Act 1921 Schedule item 10 subitem 10.30
Other references: Explanatory Memorandum to the Excise Tariff Amendment (Fuel Tax Reform and Other Measures) Bill 2006
Subject references: Excisable goods manufacturer Fuel blending