The Romanian company Bitulpetrolium, a producer and wholesaler of solid, liquid, and gaseous fuels and holder of a tax warehouse permit, was found to have issued receipts and so-called credit notes related to a total quantity of 238,383 kg of energy product intended for use as heating fuel, returned by its customers to the tax warehouse, without providing information on the marking and coloring of the product. It was also found that Bitulpetrolium had not notified in writing, in violation of the applicable customs supervision rules, that this product had been re-entered into the tax warehouse, where it remained until sold to other customers. As a result of this tax inspection, a tax assessment was made for an additional excise duty of 63,146 EUR and an additional VAT of 13,410 EUR.
According to the ECJ, Article 2(1)(a), Article 63, and Article 78(1)(a) of the VAT Directive preclude national provisions or practices under which VAT is due on energy products intended for use as heating fuel that are re-entered into the tax warehouse, based on the amount of additional excise duty determined by the tax authorities following the application of the excise duty rate for diesel fuel intended for use as motor fuel, unless a taxable transaction takes place involving the supply of the energy product for use as motor fuel.
Directive 2003/96/EC restructuring the community framework for the taxation of energy products and electricity, and the principle of proportionality, according to the ECJ, preclude national provisions or practices under which an excise duty is imposed at the higher rate for diesel fuel intended for use as motor fuel.
Source BTW jurisprudentie
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