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Import of lubricating oil – is a product fee and registration in BDO necessary?

When deciding to import excise goods, one has to take in mind numerous formalities provided for in tax regulations. Often, failure to comply with some of them results in penal and fiscal liability, which, in the case of excise duty, can be very severe – both due to an extensive catalogue of offences and the size of potential penalties.

Sometimes, the scope of formalities which an entrepreneur is burdened with requires not only an analysis of the act on exercise duty, but also of many other acts or regulations. Due to the lack of unambiguous regulations describing both fiscal and other administrative obligations towards entrepreneurs purchasing excise goods from abroad, they may sometimes encounter legal ‘traps’. By this phrase we men that not every obligation can be identified by the entrepreneur.

Therefore, this article will analyze several examples of product fee obligations and the register in the so-called Waste Data Base (BDO).

Product fee

Pursuant to Article 2 point 9 Act of 11 May 2001 on the obligations of entrepreneurs with respect to the management of certain waste and on a product fee (hereinafter: the Act), the product fee is understood as a fee calculated and paid in the event of failure to achieve the required level of recovery and recycling.

Who is obliged to pay the product fee? As follows from the Act, an entrepreneur who has not undertaken the obligation to carry out recovery through a recovery organization should pay the product fee. Importantly, under the Article 12 (2a) of the Act, an entrepreneur who does not fulfil the obligation to ensure recovery and recycling of waste generated from products in an independent manner is also obliged to pay the product charge.

What about, for instance, lubricating oil with PKWiU code, which correspond to CN code 2710 19 99? Note that in accordance with Appendix No. 4A to the Act, lubricating oil obtained from crude oil, preparations from heavy fractions, not elsewhere classified, the level of recovery and recycling of waste generated from products was set at 50% recovery and 35% recycling, respectively. It is worth adding that excluded from this obligation are:

  • lubricating oil for chemicals transformations other than the specific process,
  • liquid paraffin,
  • metalworking oil mixtures, oil to prevent sticking to molds, anti-corrosion oils or
  • other lubricating oils and other oil if they are intended for the manufacture of lubricating oils or lubricating preparations.

According to the above, it may be concluded that in the case of importing the above lubricants from abroad, the obligation to pay the product fee in the above situations may also be required.

BDO register

The BDO register is a register of entities introducing products, packaged products and waste management. This register enables the authorities to collect information on waste. The register is currently maintained in electronic form, which allows quick performance of registration, recording or reporting obligations.

Pursuant to Article 50 of the Waste Act of 14 December 2012, the province marshal makes an entry in the register at the request of, i.a.:

  • introducing products into the country (such as lubricating oils, tyres or packaging),
  • entities which recover or recycle waste generated from products,
  • recovery organizations.

The Commission is also obliged to notify the Polish authorities of the fact that the Polish authorities are not obliged to issue an official statement of compliance with the provisions of the Act.

According to the above regulations, one may conclude that in the case of importing lubricants the entrepreneur may be obliged not only to pay the product fee (or excise tax) but also to register in BDO. The entity importing that the registration should be obtained before the commencement of the activity, otherwise it may be held liable.

Analyzing the above, it may be concluded that the obligation to register in the BDO rests with the entrepreneur importing to Poland such products as lubricants, lubricating oils or oil mixtures for metal processing. This is regardless of whether the entrepreneur imports the product for his own needs or for production purposes. It is worth mentioning that failure to comply with the obligation in the case of failure to register, record or report in the BDO may result in a fine from PLN 100 to even PLN 1 million, as well as imprisonment imposed by courts, or even an administrative fine from PLN 5,000 to PLN 1 million imposed by the Province Inspector of Environmental Protection.

In view of such high penal and fiscal consequences, an entrepreneur, before taking a decision on the import of any excise goods, should verify and carry out an in-depth analysis whether he will be obliged to fulfil the above-mentioned duties, since the catalogue covered by these obligations is wide.