(12) For the purposes of this section –
“engine” referred to in subsection (4)(a) and (c)(ii), (5)(a)(i) and (6)(a) means any engine in any machine, machinery, plant, equipment, apparatus, vehicle or ship, classifiable under any heading or subheading of Chapters 84 to 87 and 89 of Part 1 of Schedule No. 1;
[Definition of “engine” substituted by section 122 of Act 60 of 2001]
“enactment” includes the provisions of any legislative act by a government of a country providing for preferential tariff treatment, any administrative requirements of the customs administration of such country, any legislation or agreement incorporated by reference in such provisions and any amendment to such provisions, requirements, legislation or agreement, kept by the Commissioner as contemplated in subsection (2);
“obtained”, “produced” or “manufactured”, and any cognate expression in respect of any goods, includes those goods supplied by a supplier;
[Definition of “obtained” inserted by section 10 of Act 36 of 2007]
“preferential tariff treatment” means the non-reciprocal preferential tariff treatment of goods exported from the Republic allowed on importation into any country in terms of and on compliance with the requirements of any enactment of the government of such country;
“producer” or “manufacturer” of goods includes a supplier of those goods;
[Definition of “producer” inserted by section 10 of Act 36 of 2007]
“supplier” means a supplier of goods as prescribed in the rules and includes, where any such rule so provides, a producer or manufacturer of goods;
[Definition of “supplier” inserted by section 10 of Act 36 of 2007]
“transshipment” has the meaning assigned thereto in section 113 (b)(4) of the African Growth and Opportunity Act contained in the Trade and Development Act of 2000 of the United States of America, kept by the Commissioner as contemplated in subsection (2).
(2)
(a) Commissioner shall –
(i) keep two copies of any enactment and any amendment thereto received from the customs administration of the country allowing preferential tariff treatment;
(ii) record the date advised by such administration on which any such enactment or amendment becomes or became effective in such country for the purposes of such treatment; and
(iii) effect any such amendment to the enactment.
(b) Any enactment or amendment thereto shall for the purposes of this Act be effective from the date so recorded.
(c) Wherever in any legal proceedings any question arises as to the contents of any enactment or as to the date upon which any enactment or any amendment thereto became effective, a copy of the enactment or the enactment as amended and any date so recorded shall be accepted as prima facie proof of the contents thereof and of the effective date of the enactment or the amendment thereto.
(d) Any such copy kept by the Commissioner shall be accessible to any interested person during official working hours.
(e) The Commissioner may publish any enactment or part thereof or amendment thereto in the Gazette.
(3)
(a) Notwithstanding anything to the contrary in this Act contained, the application of any provision of this Act relating to any importer, producer, manufacturer, exporter, licensee or other principal or any agent or the importation or exportation of goods, the preferential tariff treatment of goods, goods obtained, produced or manufactured, due entry or any other provision or customs procedure or any power, duty or function in connection therewith, shall, unless otherwise provided in, or in any rule made in terms of, this section for the purposes of giving effect to any enactment, be subject to compliance with the provisions of such enactment or any part or provision thereof, as the case may be.
(b) The provisions of section 4(12A) shall apply mutatis mutandis in respect of any goods exported from the Republic for the purpose of benefiting from the preferential tariff treatment contemplated in an enactment and any person referred to in section 4(12A)(a) shall be deemed to have agreed to comply with the requirements governing the allowing of such treatment by the government of the country to which the goods are exported, including requirements relating to –
(i) maintaining complete books, accounts and other documents in respect of –
(aa) the production or manufacture and any materials used in the production or manufacture of the goods exported;
(bb) the purchase of, cost of, value of and payment for the goods exported and all materials, including indirect materials used in the production or manufacture of the goods exported;
(cc) proof of the originating status of such goods in accordance with the relevant rules of origin; and
(dd) the exportation of the goods;
(ii) permitting and assisting customs officers of the country of importation to investigate –
(aa) such books, accounts and other documents; and
(bb) any circumvention contemplated in subsection (8).
(4) In administering the provisions of any enactment or any part or provision thereof and the application of any provisions of this Act to give effect thereto the Commissioner may, notwithstanding anything to the contrary in this Act contained-
(a) decide on or determine any matter or perform any duty or function or impose any condition in connection with the provisions so administered, including any decision or determination or the performance of any duty or function or the imposing of any condition in respect of –
(i) any heading in Part 1 or any item of any other Part of Schedule No. 1 applicable to any goods imported or produced, obtained, manufactured, exported or used in the production or manufacture of any goods, or the customs value of any such imported goods;
(ii) any action or procedure concerning –
(aa) the origin or proof of origin of goods imported or exported;
(bb) the importation or production or manufacture or exportation of goods and the ex-factory price of goods or the cost or value of materials;
(cc) tariff quotes;
(dd) any circumvention and any action taken in respect thereof;
(ee) rendering mutual and technical assistance in respect of any customs co-operation, including any investigation, as required by any enactment, by any officer of the customs administration of the country allowing such preferential tariff treatment;
(ff) the keeping and the production of books, accounts and other documents and the furnishing of information in respect of any matter to which this section relates;
(gg) requirements in connection with any agency where any person is represented in the exportation of any goods involving proof of origin;
(hh) furnishing of a certificate of origin including in respect of multiple shipments of identical goods over a specified period;
(ii) any document relating to origin issued retrospectively;
(jj) the issue of or refusal to issue a visa;
(iii) any other power, duty or function or procedure provided in any enactment or part or provision thereof contemplated in subsection (1) which requires either expressly or by implication customs administrative action in respect of goods produced, manufactured or exported for the purposes of such enactment;
(b) make rules –
(i) concerning any matter referred to in paragraph (a);
(ii) where reference is made to customs or competent authorities, to domestic, national or customs law or any like reference or any other matter which requires either expressly or by implication application of customs legislation;
(iii) in connection with the entry of goods imported or exported and documents to be produced in support thereof;
(iv) prescribing forms or procedures or specifying any condition or provision of this Act to be complied with for the purposes of such enactment;
(v) to delegate or assign subject to section 3(2), any power, duty or function to any officer or other person;
(vi) regarding any other matter which may be reasonably necessary for the purposes of administering such provisions;
(c) subject to such conditions as the Commissioner may in each case impose, enter into any agreement with any person, with the concurrence of any producer, manufacturer or exporter, as the case may be, to perform any function or provide any service for the purposes of establishing and reporting on the origin of goods or issuance of any proof of origin.
(5) Whenever any report is required by the importing country from time to time in terms of any enactment of such country in connection with the producer, manufacturer or exporter or any other person concerned with the export of goods for the purposes of preferential tariff treatment or the production, manufacture or export of such goods and the furnishing of such report is authorised by the Minister, the Commissioner shall, notwithstanding anything to the contrary in this Act or any other law contained, furnish to the customs administration of such country such report containing such particulars as may be required in terms of any enactment kept by the Commissioner as contemplated in subsection (2).
(6)
(a)
(i) Every producer, manufacturer or exporter of goods to which this section relates, shall be registered with the Commissioner for the purposes of this section.
(ii) No such goods may, from a date to be specified by rule, be exported unless the producer, manufacturer or exporter thereof is registered.
(b) Application for such registration shall be made on the form prescribed by the Commissioner by rule and the applicant shall comply with all the requirements specified therein and any additional requirements that may be prescribed in any other rule and as may be determined by the Commissioner in each case.
(c) Any registered producer, manufacturer or exporter of such goods shall comply with such requirements as the Commissioner may prescribe by rule and determine in each case.
(d) The Commissioner may –
(i) refuse to register any applicant and for that purpose the provisions of section 60(2) shall apply mutatis mutandis to such application for registration;
(ii) cancel the registration of any producer, manufacturer or exporter of such goods –
(aa) if any books, accounts or other documents are not kept or produced as required by or in terms of this Act; or
(bb) who is convicted of an offence or where forfeiture of any amount deposited or secured by such person is ordered by way of penalty under the provisions of section 91 in respect of any circumvention or contravention contemplated in subsection (8);
(iii) subject to any prohibition imposed for the purposes of subsection 8 (b), reregister any person at any time after such cancellation on such conditions as the Commissioner may impose in each case.
(7) No goods shall be exported with the object of obtaining any benefit of preferential tariff treatment in terms of an enactment unless the goods comply with the provisions of origin or any other provision of such enactment or of this Act governing the acquisition of origin or any other requirement which is to be complied with for the purposes of giving effect to such provisions.
(8)
(a) Any person who, in connection with any goods produced or manufactured or exported for the purposes of obtaining any preferential tariff treatment therefor in the country of importation in terms of any enactment –
(i) makes any false statement or makes use of any declaration or document containing such statement or performs any other act for the purposes of circumvention of any provision of such enactment relating to the origin, production, manufacture or exportation of such goods;
(ii) contravenes or fails to comply with any other provision of this Act; or
(iii) attempts to circumvent or contravene any provision contemplated in subparagraphs (i) and (ii), as the case may be,
shall be guilty of an offence and liable on conviction to a fine not exceeding R100 000 or three times the export value of the goods in respect of which the offence was committed, whichever is the greater, or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment and the goods in respect of which the offence was committed shall be liable to forfeiture in accordance with this Act.
(b) The Commissioner may on conviction of any exporter or where forfeiture of any amount deposited or secured by such exporter is ordered by way of penalty under the provisions of section 91 in respect of any circumvention contemplated in paragraph (a) prohibit, for a period not exceeding 5 years from the date of such conviction or order of forfeiture for any such circumvention involving transshipment, such exporter, any successor of such exporter and any other entity, owned or operated by the principal of the exporter, from exporting any goods for the purposes of obtaining any benefit in terms of any enactment.
(9) The Commissioner may make any rules under this section with retrospective effect as from 1 October 2000 or any date thereafter.
[Section 46A inserted by section 61 of Act 59 of 2000 with effect from 1 October, 2000, except in so far as any offence is created by section 46A(8)]
“circumvention” includes any circumvention of any provision of an enactment by –
(a) trans-shipment, rerouting, false declaration concerning the country or place of origin or falsification of official documents; or
(b) making any false declaration concerning fibre content, quantities, description or classification of goods;
[Definition of “circumvention” substituted by section 18 of Act 32 of 2005]
(2) Notwithstanding anything to the contrary contained in this Act, the Commissioner may, in accordance with the provisions of this section, generally and for a specific period or in a specific instance allow an importer or exporter to deliver a provisional or an incomplete bill of entry where the said person does not have all the information or documents required to make due entry.
(3) An application for a provisional or an incomplete bill of entry may be made in respect of-
(a) any imported goods to be entered for-
(i) home consumption (including entry under any item of Schedule No. 3, 4 or 6);
(ii) removal in bond; or
(iii) placing in a licensed customs and excise warehouse; or
(b) goods intended to be exported from the Republic.
(4) Notwithstanding anything to the contrary contained in this Act, any approval by the Commissioner for the use of a provisional or an incomplete bill of entry in respect of goods to be removed in bond, shall be subject to such special procedures and conditions as the Commissioner may specify by rule or determine in a specific instance.
(5)
(a) Except where the Commissioner otherwise determines, an incomplete bill of entry shall-
(i) contain at least-
(aa) the purpose for which the goods are being entered according to the prescribed purpose code;
(bb) the name of the consignor, consignee and any applicable learing agent;
(cc) the value of the goods;
(dd) the origin of the goods;
(ee) the quantity of the goods;
(ff) a sufficiently precise description of the goods to determine the tariff heading and whether the importation or exportation thereof is prohibited or restricted under any law and, if so restricted, shall be accompanied by the required documentation authorising the importation or exportation of the goods concerned;
(gg) applicable marks and numbers;
(hh) container numbers;
(ij) container seal numbers;
(kk) cargo reference or cargo tracking numbers;
(ll) Unique Consignment Reference (UCR) numbers referred to in the rules for section 38; and
(mm) the transport document number and date; and
(ii) contain such other particulars as the Commissioner may prescribe by rule and that are required to-
(aa) calculate the amount of security that may be required to be lodged in respect of such goods;
(bb) identify the consignment and achieve effective customs control over the goods concerned; and
(cc) release the goods.
(b) The Commissioner may, on good cause shown, allow an importer or exporter, who is not able to declare the correct value of the goods, to declare a provisional value considered reasonable by the Commissioner.
(c) The Commissioner may prescribe generally by rule or determine in a specific instance the supporting documentation that must accompany an application for an incomplete bill of entry.
(6) A provisional bill of entry shall set forth the full particulars as indicated on the form and shall-
(a) reflect the purpose for which the goods are being entered according to the prescribed purpose code;
(b) contain a declaration by the importer or exporter stating the particulars that are only provisional;
(c) be supported by the documents referred to in section 39 and, where applicable, by any documentation required under any other law authorising the importation or exportation of the goods.
(7) An importer or exporter must, unless the Commissioner grants an extension under section 38(1)(a)(iii) or (3)(a)(ii), deliver any application for a provisional or an incomplete bill of entry within the periods contemplated in section 38(1)(a) or (3)(a).
(8)
(a) The Commissioner may require any person applying for a provisional or an incomplete bill of entry to furnish the amount of security that the Commissioner may require in respect of any duties that may be payable, or become payable on such goods, pending the delivery of the supplementary bill of entry.
(b) Notwithstanding anything to the contrary contained in this Act, any goods entered on a provisional or an incomplete bill of entry, shall be subject to-
(i) the duty leviable thereon at the time; and
(ii) the fulfilment of any obligation in terms of this Act in respect of any procedure under which the goods are entered, from the time of entry of those goods.
(c) For the purposes of this section ‘time of entry’ shall be deemed to be the time when the provisional or incomplete bill of entry is delivered as contemplated in subsection (12), and where the goods concerned are released in terms of that subsection.
(9)
(a) An importer shall, within seven days from the date of the delivery of a provisional or an incomplete bill of entry, and an exporter before the goods are exported unless exempted as contemplated in section 38(3)(a), deliver a supplementary bill of entry and pay any duty that may be due in respect thereof in compliance with the requirements of section 39(1) and (2), but any document authorising the importation or exportation of goods and presented with the application for a provisional or an incomplete bill of entry need not again be produced unless the Controller so requires.
(b) A supplementary bill of entry shall include a reference to the relevant provisional or incomplete bill of entry.
(c) A supplementary bill of entry shall be delivered to the same office where the provisional or incomplete bill of entry to which it relates was delivered.
(d) The Commissioner may, on application by the importer or exporter before expiry of the period specified in paragraph (a), extend that period by not more than seven days where the Commissioner is satisfied that reasonable grounds exist on which the importer or exporter is not able to obtain the necessary information or documents in order to deliver the supplementary bill of entry.
(10) Any supplementary bill of entry and any provisional or incomplete bill of entry preceding it and in respect of which it is made, shall be deemed to constitute a single indivisible bill of entry taking effect on the date of delivery of the provisional or incomplete bill of entry and shall on acceptance of the supplementary bill of entry for the purposes of this Act, be deemed to be due entry made of the goods concerned from that date.
(11)
(a) The Commissioner may refuse an application for a provisional or an incomplete bill of entry in terms of this section where-
(i) the importer or exporter concerned-
(aa) has been convicted of a serious offence or repeated less serious offences under this Act;
(bb) has failed to provide valid reasons for not being in possession of the information or documents contemplated in section 39 and any other provision of this Act;
(cc) is not able to comply with subsection (5);
(dd) is not registered as an importer or exporter as contemplated in section 59A and the rules made thereunder; or
(ee) has failed to lodge the amount of security required by the Commissioner;
(ii) the importation or exportation of the goods concerned is restricted under any other law and the importer or exporter is not in possession of the required documentation authorising the importation or exportation of the goods;
(iii) the importer or exporter has not applied for a provisional or an incomplete bill of entry within the period specified in subsection (7).
(b) Where the Commissioner has refused an application for a provisional or an incomplete bill of entry, the importer or exporter concerned shall, where the relevant period prescribed in section 38(1)(a) or (3)(a)-
(i) has not yet expired, make due entry of the goods before the expiry of such a period;
(ii) has expired, or will expire within three days from the date of refusal, make due entry of the goods within five days from the date of refusal and such period shall be deemed to be an extension granted by the Commissioner as contemplated in section 38(1)(a) or (3)(a).
(12) The delivery of a provisional or an incomplete bill of entry to the Commissioner or a Controller, as appropriate, shall be deemed for the purposes of this section to be a finalised application for a provisional or an incomplete bill of entry by the importer or exporter concerned and the release of the goods entered on such a bill of entry by the Commissioner or a Controller shall be deemed to be the authorisation contemplated in subsection (2).
(13) The Commissioner may by rule-
(a) designate the customs offices authorised to accept applications for provisional or incomplete bills of entry;
(b) limit the application of the provisions of this section to a certain class or kind of goods or exclude certain classes or kinds of goods if such goods-
(i) present an undue risk to revenue;
(ii) are entered for a purpose that will not be facilitated by the subsequent delivery of a supplementary bill of entry;
(iii) are of a nature not suitable for control by a supplementary bill of entry or post-importation audit;
(c) prescribe the manner in which the release of goods entered on a provisional or an incomplete bill of entry may be authorised; and
(d) prescribe any other matter which the Commissioner may reasonably consider to be necessary and useful to achieve the efficient and effective administration of this section.
[Section 39B inserted by section 34 of Act 61 of 2008 – commencement date of section 39B to be proclaimed]