66. Transaction value
(1) Subject to the provisions of this Act, the transaction value of any imported goods shall be the price actually paid or payable for the goods when sold for export to the Republic, adjusted in terms of section 67, provided –
(a) there are no restrictions as to the disposal or use of the goods by the buyer other than restrictions which –
(i) are imposed or required by law;
(ii) limit the geographical area in which the goods may be resold; or
(iii) do not substantially affect the value of the goods;
(b) the sale or such price of the goods is not subject to any term or condition for which a value cannot be determined;
(c) no part of the proceeds of any disposal, use or subsequent resale of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in terms of section 67;
(d) subject to subsection (3), the seller and the buyer are not related within the meaning of subsection (2)(a).
(2)
(a) For the purposes of subsection (1)(d), two persons shall be deemed to be related only if –
(i) they are officers or directors of one another’s businesses;
(ii) they are legally recognized partners in business;
(iii) the one is employed by the other;
(iv) any person directly or indirectly owns, controls or holds five per cent or more of the equity share capital of both of them;
(v) one of them directly or indirectly controls the other;
(vi) both of them are directly or indirectly controlled by a third person;
(vii) together they directly or indirectly control a third person; or
(viii) they are members of the same family.
(b) Persons who are associated in business with one another in that the one is the sole agent, sole distributor or sole concessionary, however described, of the other shall be deemed to be related only if they are so deemed in terms of paragraph (a).
(c) Every importer of goods which are not exempted by rule shall, when making entry of the goods, declare, in the manner prescribed by rule, whether or not he is related to the supplier of the goods within the meaning of this section.
[Paragraph (c) substituted by section 49 of Act 45 of 1995]
(3) Notwithstanding the provisions of subsection (1)(d), the fact that a buyer and a seller are related within the meaning of subsection (2)(a) shall not in itself be a ground for not accepting the transaction value, where –
(a) such relationship did not influence the price paid or payable; or
[Paragraph (a) substituted by section 49 of Act 45 of 1995]
(b) the importer proves that the transaction value closely approximates to one of the following values, namely –
(i) the transaction value of identical or similar goods sold at comparable trade and quantity levels to unrelated buyers in the Republic at or about the same time as the goods to be valued;
(ii) the value, ascertained in terms of subsection (7), of identical or similar goods imported into the Republic at or about the same time as the goods to be valued;
(iii) the value, ascertained in terms of subsection (8), of identical or similar goods imported into the Republic at or about the same time as the goods to be valued.
[Paragraph (b) amended by section 49 of Act 45 of 1995]
(4)
(a) If the transaction value of any imported goods cannot be ascertained in terms of subsection (1), it shall be the price actually paid or payable for identical goods in a sale for export to the Republic at the same commercial level and in substantially the same quantity and exported at or about the same time as the goods to be valued, adjusted, with reference to differences in any costs and charges referred to in section 67, on account of differences in distances and modes of transport to the port or place of export.
(b) Where no such sale is found, a sale of identical imported goods at either a different commercial or quantity level, or at a different commercial level and quantity level, adjusted to compensate for such differences, shall be used to ascertain the transaction value.
(c) If in the application of this subsection more than one transaction value is ascertained, the lowest such value shall be the transaction value of the goods to be valued.
(5)
(a) If the transaction value of any imported goods cannot be ascertained in terms of subsection (4), it shall be the price actually paid or payable for similar goods in a sale for export to the Republic at the same commercial level and in substantially the same quantity and exported at or about the same time as the goods to be valued, adjusted, with reference to differences in any costs and charges referred to in section 67, on account of differences in distances and modes of transport to the port or place of export.
(b) Where no such sale is found, the provisions of paragraphs (b) and (c) of subsection (4) shall mutatis mutandis apply.
(6) If the transaction value of any imported goods cannot be ascertained in terms of subsection (5), it shall be ascertained in terms of subsection (7) or, when it cannot be ascertained in terms of subsection (7), it shall be ascertained in terms of subsection (8): Provided that at the request, in writing, of the importer concerned the order of application of subsections (7) and (8) shall be reversed.
(7)
(a) If the imported goods or identical or similar imported goods are sold in the Republic in the same condition as that in which they were when imported, the transaction value of the imported goods in terms of this subsection shall be based on the unit price at which the imported goods or identical or similar imported goods are sold in the Republic in the greatest aggregate quantity, at or about the time of importation of the goods to be valued, by the importers thereof to persons not related to them, subject to deductions for –
(i) commissions usually paid or agreed to be paid or additions usually made for profit and general expenses, including the direct and indirect costs of marketing the goods relative to sales in the Republic of imported goods of the same kind or class as the goods to be valued, irrespective of the country of exportation;
(ii) the cost of transportation and the cost of loading, unloading, handling, insurance and associated costs incidental to the transportation of the goods from the port or place of export in the country of exportation to the importer’s premises in the Republic; and
(iii) any duties or taxes paid or payable in the Republic by reason of the importation of the goods or sale of the goods within the Republic.
(b) If neither the imported goods nor identical nor similar imported goods are sold at or about the time of importation of the goods to be valued, the transaction value of the imported goods in terms of this subsection shall, subject to the provisions of paragraph (a), be based on the unit price at which the imported goods or identical or similar imported goods are sold in the Republic in the same condition as that in which they were when imported, at the earliest date after the importation of the goods to be valued, but not later than 90 days after such importation.
(c) If neither the imported goods nor identical nor similar imported goods are sold in the Republic in the same condition as that in which they were imported, then, if the importer so requests in writing, the transaction value of the imported goods in terms of this subsection shall be based on the unit price at which the imported goods, after further processing, are sold in the greatest aggregate quantity to persons in the Republic not related to the sellers of such goods, due allowance being made for the value added by such processing and the deductions referred to in paragraph (a).
(8) The transaction value of any imported goods in terms of this subsection shall be based on a computed value, computed by means of information supplied by the producer and consisting of the sum of –
(a) the cost or value of materials and manufacture or other processing in producing the goods;
(b) the cost of –
(i) packing, including that of the labour or materials concerned; and
(ii) containers which are dealt with as being for customs purposes one with the goods in question;
(c) the value, apportioned to the imported goods as deemed appropriate by the Commissioner, with due regard to any relevant request by the importer, of any of the following goods and services if supplied directly or indirectly by the importer free of charge or at reduced cost, for use in connection with the production and sale for export of the imported goods, in so far as such value has not been included in the price actually paid or payable, namely –
(i) materials, components, parts and similar articles forming part of the imported goods;
(ii) tools, dies, moulds and similar articles used in the production of the imported goods;
(iii) materials consumed in the production of the imported goods;
(iv) engineering, development work, artwork, design work, plans and sketches undertaken elsewhere than in the Republic and necessary for the production of the imported goods;
(d) the cost of transportation, loading, unloading, handling and insurance and associated costs incidental to delivery of the imported goods at the port or place of export in the country of exportation and placing those goods on board ship or on any vehicle, or in a container as defined in section 1(2), at that port or place;
[Paragraph (d) substituted by section 5 of Act 69 of 1988, section 10 of Act 68 of 1989 and section 26 of Act 59 of 1990]
(e) an amount for profit and general expenses equal to that generally applicable in sales of goods of the same class or kind as the imported goods, which are made by producers in the country of exportation.
(9) Where the transaction value of any imported goods cannot be ascertained in terms of the provisions of subsection (8), the Commissioner may determine such value under section 65(4)(a) on the basis of a previous determination or, where there is no previous determination, by such application as he may deem reasonable of any manner of ascertaining the transaction value in terms of subsection (1), (4), (5), (7) or (8), but no such determination shall be based on –
(a) the selling price in the Republic of goods produced in the Republic;
(b) a system which provides for the acceptance for customs purposes of the higher of two alternative values;
(c) the selling price of goods on the domestic market of the country of origin or of exportation of the imported goods;
(d) the cost of production, other than computed values which have been determined for identical or similar goods in accordance with subsection (8);
(e) the price of the goods for export to a country other than the Republic;
(f) a system of minimum customs values; or
(g) arbitrary or fictitious values.
[Subsection (9) amended by section 60 of Act 53 of 1999]
(10) For the purposes of subsection (7)(a)(ii) or (8)(d), goods which are exported to the Republic from any country but pass in transit through another country shall, subject to any conditions which may be prescribed by rule, be deemed to have been exported direct from the first-mentioned country.
[Subsection (10) substituted by section 49 of Act 45 of 1995]
(11) For the purposes of subsection (7)(a)(ii) or (8)(d), the port or place of export referred to therein shall be the place in the country of exportation where the goods in question –
(a) are placed on board ship or on any vehicle which conveys them from or across the border of that country; or
[Paragraph (a) substituted by section 97 of Act 60 of 2008]
(b) if they are ships or vehicles moving under their own power, finally leave that country for the Republic.
[Subsection (11) amended by section 10 of Act 68 of 1989 and substituted by section 26 of Act 59 of 1990]
[Section 66 substituted by section 21 of Act 112 of 1977, amended by section 8 of Act 110 of 1979 and substituted by section 14 of Act 86 of 1982]