Author: admin_kmos

Section 73 (Customs Act) – Currency conversion

Posted on by admin_kmos

73. Currency conversion

 

(1)     When the value of or the price paid or payable for any imported goods is expressed in a foreign currency, it shall, for the purpose of calculating the customs value thereof, be converted into the currency of the Republic at the selling rate at the date of shipment of the goods as determined by the Commissioner, in consultation with the South African Reserve Bank, or if no such rate is determined for such date, the latest rate determined before that date shall be used.

 

(2)     For the purposes of subsection (1) the date of shipment of –

 

(a)     non-containerized goods shall be the date of the bill of lading, air waybill, consignment note or such other document as the Commissioner may require;

(b)     containerized goods shall be the date on which the container is taken on board ship as endorsed on the bill of lading or arrival notification or, if imported otherwise than by sea, the date of the airway bill, consignment note or such other document as the Commissioner may require.

 

(3)     The Commissioner may, for the purpose of any agreement contemplated in section 49 or 51, by rule –

 

(a)     publish arrangements in connection with amounts to be used in currencies in respect of goods imported or exported between the Republic and the country or countries or group of countries concerned;

(b)     prescribe any measures applicable to the implementation of such arrangements.

[Subsection (3) added by section 62 of Act 53 of 1999]

[Section 73 substituted by section 24 of Act 112 of 1977, section 9 of Act 110 of 1979 and section 51 of Act 45 of 1995]

Section 72 (Customs Act) – Value of goods exported

Posted on by admin_kmos

72. Value of goods exported

(a)     For the purposes of this Act, the value of any goods exported from the Republic shall be the price of those goods free on board at the place of despatch from the Republic, which value shall be declared on the bill of entry export.

(b)     If there is no such free on board price, the export value shall be the value as if the goods would have been sold at a free on board price.

[Paragraph (b) substituted by section 26 of Act 34 of 2004]

(c)     If the value of any exported goods of a single denomination is, according to the provisions of this section –

(i)      in excess of one rand and includes a fraction of a rand, such value shall be calculated to the nearest rand, an amount in excess of fifty cents being regarded as one rand;

(ii)     less than one rand, such value shall be calculated as one rand.

[Paragraph (c) added by section 11 of Act 105 of 1976 and substituted by section 11 of Act 98 of 1980]

(cA)   For the purpose of this section, “free on board”, in relation to goods exported to or to be exported from the Republic, includes—

(i)      all profits, costs, charges and expenses incidental to placing goods on board a vessel, aircraft, train or vehicle in which the goods are to be transported across the border of the Republic; or

(ii)     if those goods consist of a vessel, aircraft, train or vehicle moving under its own power or on its own wheels, all profits, costs, charges and expenses up to the place where the goods leave the Republic.

[Paragraph (cA) added by section 15 of Act 24 of 2020]

Section 71 (Customs Act) – Value of certain specified goods

Posted on by admin_kmos

71. Value of certain specified goods

(1)     The value for duty purposes of any goods imported into the Republic ex customs warehouses or ex bonded warehouses within the district of Maputo shall be calculated or determined in accordance with this Chapter as if such goods were imported directly into the Republic from the territory whence they were exported to Maputo.

[Subsection (1) substituted by section 10 of Act 105 of 1976]

(2)     Where any motor vehicle is imported by a natural person for his own use and not for sale, the Commissioner may, notwithstanding the provisions of section 65(1) and (4) but with due regard to the provisions of section 66, determine a value which shall, subject to a right of appeal to the court, mutatis mutandis in accordance with the provisions of section 65(6), be deemed to be the value for duty purposes of such vehicle: Provided that where any natural person who was the owner of and has used such motor vehicle in any territory outside the Republic, imports such vehicle into the Republic, from a territory other than the territory in which it was produced or manufactured, for his own use, and not for sale, the Commissioner may determine the value for duty purposes of such vehicle as if it were imported into the Republic from the territory in which it was produced or manufactured.

[Subsection (2) amended by section 5 of Act 89 of 1984 and section 4 of Act 105 of 1992]

Section 69 (Customs Act) – Value for excise duty purposes on any goods manufactured in the Republic

Posted on by admin_kmos

[Paragraph (d) added by section 49(1)(c) of Act 19 of 2001 and amended by section 145(1)(a) of Act 45 of 2003, (effective date in section 145(2)(a) of Act 45 of 2003 as amended by section 96 of Act 20 of 2006) and by section 8(b) of Act 43 of 2024]

69. Value for excise duty purposes on any goods manufactured in the Republic

[Heading of section 69 substituted by section 94 of Act 35 of 2007 effective on 1 April 2012]

(1)    

(a)     For the purpose of assessing the excise duty on any goods manufactured in the Republic and specified in items 126.02, 126.03, 126.04 and 126.05 of Section B of Part 2 of Schedule No. 1, the value thereof shall, subject to the provisions of this section, be taken to be the full and final market price (before deduction of any discounts other than cash discounts) at which, at the time of sale, such or similar goods are freely offered for sale, for consumption in the Republic, for purposes of trade in the principal markets of the Republic in the ordinary course of trade, in the usual wholesale quantities and in the condition and the usual packing ready for sale in the retail trade, to any merchant wholesaler in the Republic not deemed to be related as specified in section 66(2)(a) under fully competitive conditions, plus the cost of packing and packages and all other expenses incidental to placing the goods on any vehicle for delivery to the purchaser, plus any non-rebated excise duty payable in terms of Section A of Part 2 of Schedule No. 1 on such goods, but excluding the non-rebated excise duty payable in terms of Section B of Part 2 of Schedule No. 1 or any value-added tax payable on such goods: Provided that the Commissioner may, where such goods are not sold to such merchant wholesalers in the Republic or are so sold in quantities which he considers to be insignificant in relation to the total quantities of such goods sold in the Republic, regard any other class of purchaser of such goods as such a merchant wholesaler and may make such adjustment to the price charged by the manufacturer to such class of purchaser as he considers reasonable, having regard to the wholesale functions taken over by such manufacturer and such class of purchaser and to such other factors relating to such price as he may deem relevant.

[Paragraph (a) amended by section 3(a) of Act 105 of 1992, by section 6(a) of Act 98 of 1993, by section 49(1)(a) of Act 19 of 2001 and by section 8(a) of Act 43 of 2024]

(b)     Unless the context otherwise indicates, any reference in this Act to value for excise duty purposes in relation to goods manufactured in the Republic shall be deemed to be a reference to the value for excise duty purposes contemplated in this section.

[Paragraph (b) deleted by section 3 of Act 105 of 1992 and inserted by section 94 of Act 35 of 2007 effective on 1 April 2012]

(c)     For the purpose of paragraph (a) the Commissioner may specify –

(i)      the quantity which shall be deemed to be the usual wholesale quantity;

(ii)     the packing which shall be deemed to be the usual packing ready for sale in the retail trade;

(iii)    the cost of packing or packages or any other expenses incidental to placing the goods on any vehicle.

[Subparagraph (iii) substituted by section 6 of Act 98 of 1993]

[Paragraph (c) amended by section 49 of Act 19 of 2001]

(d)     For the purposes of assessing the excise duty on any goods manufactured in the Republic and specified in any items of Section B of Part 2 of Schedule No. 1 other than those specified in paragraph (a), the value thereof shall be the ‘invoice price’ which shall mean-

(i)      the price paid or payable as contemplated in subsection (2)(b), and as the Commissioner may further prescribe by rule, for such goods when sold for home consumption in the ordinary course of trade, in the condition and the usual trade packing ready for sale in the retail trade, to any buyers not deemed to be related as specified in section 66(2)(a);or

(ii)     where the buyers are deemed to be related as specified in section 66(2)(a), the price of the goods when sold at comparable trade and quantity levels to unrelated buyers at or about the same time as the sale to such related buyers;

[Paragraph (d) added by section 49(1)(c) of Act 19 of 2001 and amended by section 145(1)(a) of Act 45 of 2003, (effective date in section 145(2)(a) of Act 45 of 2003 as amended by section 96 of Act 20 of 2006) and by section 8(b) of Act 43 of 2024]

(dA)    . . . . . . 

[Paragraph (dA) inserted by section 145(1)(b) of Act 45 of 2003(effective date in section 145(2)(a) of Act 45 of 2003 as amended by section 96 of Act 20 of 2006) and deleted by section 8(c) of Act 43 of 2024]

(e)     The invoice price contemplated in paragraph (d) shall –

(i)      exclude the non-rebated excise duty payable in terms of Section B of Part 2 of Schedule No. 1 and any value-added tax payable on such goods;

(ii)     be reduced by any deduction from such price as may be prescribed by the Commissioner by rule in respect of any goods specified in any such item of Section B of Part 2 of Schedule No. 1.

[Paragraph (e) added by section 49 of Act 19 of 2001]

(2)

(a)            

(i)      For the purpose of assessing the excise duty on any goods manufactured in the Republic and specified in Section A of Part 2 of Schedule No. 1, the value thereof shall be the price paid or payable for such goods when sold for home consumption in the ordinary course of trade, in the usual trade packing, where applicable, to any buyers not deemed to be related as specified in section 66(2)(a), plus any non-rebated excise duty payable in terms of Section B of Part 2 of Schedule No. 1, but excluding the non-rebated excise duty payable in terms of Section A of Part 2 of Schedule No. 1, fuel levy or any value-added tax payable on such goods.

[Subparagraph (i) substituted by section 94 of Act 35 of 2007 effective on 1 April 2012]

(ii)     ……….

[Subparagraph (ii) deleted by section 94 of Act 35 of 2007 effective on 1 April 2012]

[Paragraph (a) substituted by section 1 of Act 111 of 91 and section 3 of Act 105 of 1992]

(b)     For the purpose of paragraph (a) “price paid or payable”, means the total payment made or to be made, either directly or indirectly, by the buyer to or for the benefit of the seller for the goods, but does not include dividends or other payments passing from the buyer to the seller which do not directly relate to the goods.

(3)    

(a)     Where goods are sold or otherwise disposed of under such conditions that the value thereof cannot be ascertained or has been incorrectly ascertained in terms of subsection (1) or (2), as the case may be, the Commissioner may, having regard to the relevant provisions of subsection (1) or (2), in writing determine a value.

(b)     Any determination made under this subsection shall operate –

(i)      only in respect of the goods mentioned therein and the person in whose name it is issued;

(ii)     subject to the provisions of sections 44(11)(c) and 76B and subsections (6) and (7), from the date the determination is issued.

(c)     Whenever any determination is made under paragraph (a) or any determination is amended or withdrawn and a new determination is made under subsection (4), any amount due in terms thereof shall, notwithstanding that such determination is being dealt with in terms of any procedure contemplated in Chapter XA or any proceedings have been instituted in any court in connection therewith, remain payable as long as such determination or amended or new determination remains in force: Provided that the Commissioner may suspend such payment until the date of any final judgment by the High Court or a judgment by the Supreme Court of Appeal.

[Paragraph (c) substituted by section 145 of Act 45 of 2003 and section 94 of Act 35 of 2007]

(d)     Such determination, amendment of a determination or new determination shall cease to be in force from the date –

(i)      of any amendment of this section or the rules with the result that the said determination, amended determination or new determination no longer conforms to the interpretation of the relevant provisions of this section or such rules.

(ii)     of a final judgment by the High Court or a judgment by the Supreme Court of Appeal; or

(iii)    any amendment of a determination or new determination is made effective under subsection (4) or as a result of the finalisation of any procedure contemplated in Chapter XA.

[Subparagraph (iii) substituted by section 145 of Act 45 of 2003 and section 94 of Act 35 of 2007]

(e)     Whenever a court amends or orders the Commissioner to amend any determination made under this subsection or subsection (4) or any determination is amended or a new determination is made under subsection (4) or as a result of the finalisation of any procedure contemplated in Chapter XA the Commissioner shall not be liable to pay interest on any amount refundable which remained payable in terms of the provisions of paragraph (c) for any period during which such determination remained in force.

[Paragraph (e) substituted by section 145 of Act 45 of 2003 and section 94 of Act 35 of 2007]

[Subsection (3) substituted by section 6 of Act 98 of 1993, section 49 of Act 19 of 2001 and section 129 of Act 60 of 2001]

(4)    

(a)     The Commissioner shall-

(i)      amend any determination or withdraw it and make a new determination with effect from the date it is no longer in force as provided in subsection (3)(d)(i) or (ii);

(ii)     except where a determination is being dealt with in terms of any procedure contemplated in Chapter XA, amend any determination or withdraw it and make a new determination if it was made in error or any condition or obligation on which it was issued is no longer fulfilled or on any other good cause shown including any relevant ground for review contemplated in section 6 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

[Subparagraph (ii) substituted by section 145 of Act 45 of 2003 and section 94 of Act 35 of 2007]

(b)     Any such amendment or new determination contemplated in paragraph (a)(ii) may be made with effect from –

(i)      subject to the provisions of section 44(11)(c), the date of first entry of the goods in question in circumstances where a false declaration is made for the purposes of this Act;

(ii)     the date of first entry, if the determination was made –

(aa)    by an officer who was biased or reasonably suspected of bias; or

(bb)   for an ulterior purpose or motive, arbitrarily or capriciously or in bad faith;

(iii)    the date of the determination made under subsection (3)(a) in circumstances where such determination was made in bona fide error of law or of fact;

(iv)    the date of the amendment of the previous determination or the date of the new determination:

Provided that whenever any amendment of a determination or a new determination is effective from a date resulting in the person to whom the determination was issued-

(a)     being entitled to a refund of duty, such refund shall be subject to the provisions of section 76B;

(b)     retrospectively incurring an increased liability for duty, such liability shall, subject to the provisions of section 44(11)(c), be limited to goods entered for home consumption during a period of two years immediately preceding the date of such amendment or new determination.

[Subsection (4) substituted by section 129 of Act 60 of 2001]

(5)    

(a)     An appeal against any such determination shall lie to the division of the High Court of South Africa having jurisdiction to hear appeals in the area in which the determination was made, or the goods in question were entered for home consumption.

[Paragraph (a) amended by section 61 of Act 53 of 1999]

(b)     Such appeal shall, subject to section 96(1), be prosecuted within a period of one year from the date of the determination.

(6)     Save where-

(a)     a determination has been made under subsection (3)(a) or (4); or

(b)     subject to section 44(11)(c), any underpayment arises from the circumstances contemplated in the proviso to section 44(11)(a),

[Paragraph (b) substituted by section 71 of Act 32 of 2004]

there shall be no liability for any underpayment in duty on any goods, where such underpayment is due to the acceptance of a bill of entry bearing an incorrect value for excise duty purposes, after a period of two years from the date of entry of such goods.

[Subsection (6) added by section 61 of Act 53 of 1999 and substituted by section 129 of Act 60 of 2001]

(7)    

(a)     Notwithstanding the provisions of subsection (6), any determination made under subsection (3)(a) as a result of or during the course of or following upon an inspection of the books, accounts and other documents of any manufacturer, wholesaler or purchaser or any seller or buyer contemplated in subsection (1) or (2) shall, subject to the provisions of section 44(11)(c), be deemed to have come into operation in respect of the goods in question entered for the purposes of this Act two years prior to the date on which the inspection commenced.

(b)     The expression “inspection of any books, accounts and other documents”, or any other reference to an inspection in this Act shall be taken to include any act done by an officer in the exercise of any duty imposed or power conferred by this Act for the purposes of the physical examination of goods and documents upon or after or in the absence of entry, the issue of stop notes or other reports, the making of assessments and any pre- or post-production audit, investigation, inspection or verification of any such books, accounts and other documents required to be kept under this Act.

[Subsection (7) added by section 61 of Act 53 of 1999 and substituted by section 129 of Act 60 of 2001]

[Section 69 amended by section 22 of Act 105 of 1969, section 6 of Act 93 of 1978, section 9 of Act 101 of 1985 and section 7 of Act 69 of 1988 and substituted by section 12 of Act 68 of 1989 and section 6 of Act 44 of 1996]

70. ……….

[Section 70 repealed by section 7 of Act 85 of 1968, inserted by section 23 of Act 105 of 1969, amended by section 9 of Act 105 of 1976, section 23 of Act 112 of 1977, section 7 of Act 93 of 1978 and section 16 of Act 86 of 1982 and repealed by section 28 of Act 59 of 1990]

Section 66 (Customs Act) – Transaction value

Posted on by admin_kmos

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]

Section 65 (Customs Act) – Value for duty purposes on any goods imported into the Republic

Posted on by admin_kmos

65. Value for duty purposes on any goods imported into the Republic

[Heading of section 65 substituted by section 93 of Act 35 of 2007 effective on 1 April 2012]

(1)     Subject to the provisions of this Act, the value for customs duty purposes of any imported goods shall, at the time of entry for home consumption, be the transaction value thereof, within the meaning of section 66.

(2)     If such value of any imported goods of a single denomination is –

(a)     in excess of one rand, such value shall for the purpose of assessing the amount of duty payable, be calculated to the nearest rand, an amount of 50 cents being regarded as less than one half of one rand;

(b)     less than one rand, such value shall be calculated as one rand.

(3)     Subject to subsection (8), any reference in this Act to customs value or to value for duty purposes, in relation to imported goods, shall be deemed to be a reference to value for customs duty purposes contemplated in subsection (1).

[Subsection (3) substituted by section 93 of Act 35 of 2007 effective on 1 April 2012]

(4)    

(a)            

(i)      The Commissioner may in writing determine the transaction value of any imported goods, which is required to be ascertained or may be determined as provided in section 66.

[Subparagraph (i) substituted by section 96 of Act 60 of 2008]

(ii) Any determination made under paragraph (a) or subsection (5) shall operate-

(aa)   in respect of the person in whose name it is issued and the goods mentioned therein, entered by that person before or after the date when the determination is issued; and

(bb)   subject to the provisions of sections 44(11)(c) and 76B and subsections (7) and (7A).

[Sub­paragraph (ii) substituted by section 16 of Act 33 of 2019]

[Paragraph (a) substituted by section 48 of Act 45 of 1995, by section 59(a) of Act 53 of 1999 and by section 128(a) of Act 60 of 2001]

(b)     The acceptance by any officer of a bill of entry or the release of any goods as entered shall not be deemed to be any such determination.

(c)    

(i)      Whenever any determination is made under paragraph (a) or any determination is amended or withdrawn and a new determination is made under subsection (5), any amount due in terms thereof shall, notwithstanding that such determination is being dealt with in terms of any procedure contemplated in Chapter XA or any proceedings have been instituted in any court in connection therewith, remain payable as long as such determination or amended or new determination remains in force: Provided that the Commissioner on good cause shown may suspend such payment until the date of any final judgment by the High Court or a judgment by the Supreme Court of Appeal.

[Subparagraph (i) substituted by section 144 of Act 45 of 2003 and section 93 of Act 35 of 2007]

(ii)     Such determination, amendment of a determination or new determination shall cease to be in force from the date –

(aa)    of any amendment of this section or sections 66 and 67 or any instrument contemplated in section 74A with the result that the said determination, amended determination or new determination no longer conforms to the interpretation of the relevant provisions of such section or sections or such instrument;

(bb)   of a final judgment by the High Court or a judgment by the Supreme Court of Appeal; or

(cc)    any amendment of a determination or new determination is made effective under subsection (5) or as a result of the finalisation of any procedure contemplated in Chapter XA.

[Item (cc) substituted by section 144 of Act 45 of 2003 and section 93 of Act 35 of 2007]

(iii)    Whenever a court amends or orders the Commissioner to amend any determination made under this subsection or subsection (5) or any determination is amended or a new determination is made under subsection (5) or as a result of the finalisation of any procedure contemplated in Chapter XA, the Commissioner shall not be liable to pay interest on any amount refundable which remained payable in terms of the provisions of subparagraph (i) for any period during which such determination remained in force.

[Subparagraph (iii) substituted by section 144 of Act 45 of 2003 and section 93 of Act 35 of 2007]

[Paragraph (c) substituted by section 128 of Act 60 of 2001]

(5)    

(a)     the Commissioner shall –

(i)      amend any determination or withdraw it and make a new determination with effect from the date it is no longer in force as provided in subsection (4)(c)(ii)(aa) or (bb);

(ii)     except where a determination is being dealt with in terms of any procedure contemplated in Chapter XA, amend any determination or withdraw it and make a new determination if it was made in error or any condition or obligation on which it was issued is no longer fulfilled or on any other good cause shown including any relevant ground for review contemplated in section 6 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

[Subparagraph (ii) substituted by section 144 of Act 45 of 2003 and section 93 of Act 35 of 2007]

(b)     Any such amendment or new determination contemplated in paragraph (a)(ii) may be made with effect from –

(i)      subject to the provisions of section 44(11)(c), the date of first entry of the goods in question in circumstances where a false declaration is made for the purposes of this Act;

(ii)     the date of first entry, if the determination was made –

(aa)   by an officer who was biased or reasonably suspected of bias; or

(bb)   for an ulterior purpose or motive, arbitrarily or capriciously or in bad faith;

(iii)    the date of the determination made under subsection (4) in circumstances where such determination was made in bona fide error of law or of fact;

(iv)    the date of the amendment of the previous determination or the date of the new determination:

Provided that whenever any amendment of a determination or a new determination is effective from a date resulting in the person to whom the determination was issued –

(a)     being entitled to a refund of duty, such refund shall be subject to the provisions of section 76B;

(b)     retrospectively incurring an increased liability for duty, such liability shall, subject to the provisions of section 44(11)(c), be limited to goods entered for home consumption during a period of two years immediately preceding the date of such amendment or new determination.

[Subsection (5) substituted by section 128 of Act 60 of 2001]

(6)    

(a)     An appeal against any such determination shall lie to the division of the High Court of South Africa having jurisdiction to hear appeals in the area wherein the determination was made, or the goods in question were entered for home consumption.

[Paragraph (a) amended by section 59 of Act 53 of 1999]

(b)     Such appeal shall, subject to section 96(1), be prosecuted within a period of one year from the date of the determination.

[Paragraph (b) substituted by section 5 of Act 44 of 1996]

(7)     Save where –

(a)     a determination has been made under subsection (4)(a) or (5); or

(b)     subject to section 44(11)(c), any underpayment arises from the circumstances contemplated in the proviso to section 44(11)(a),

[Paragraph (b) substituted by section 70 of Act 32 of 2004]

there shall be no liability for any underpayment of customs duty or excise duty on any goods imported into the Republic, where such underpayment is due to the acceptance of a bill of entry bearing an incorrect value for duty purposes, after a period of two years from the date of entry of such goods.

[Words following paragraph (b) substituted by section 93 of Act 35 of 2007 effective on 1 April 2012]

[Subsection (7) substituted by section 128 of Act 60 of 2001]

(7A) 

(a)     Notwithstanding the provisions of subsection (7), any determination made under subsection (4)(a) as a result of or during the course of or following upon an inspection of the books, accounts and other documents of any importer shall, subject to the provisions of section 44(11)(c), be deemed to have come into operation in respect of the goods in question entered for the purposes of this Act two years prior to the date on which the inspection commenced.

(b)     The expression “inspection of any books and documents”, or any other reference to an inspection in this Act shall be taken to include any act done by an officer in the exercise of any duty imposed or power conferred by this Act for the purposes of the physical examination of goods and documents upon or after or in the absence of entry, the issue of stop notes or other reports, the making of assessments and any pre- or post-importation audit, investigation, inspection or verification of any such books, accounts and other documents required to be kept under this Act.

[Subsection (7A) inserted by section 8 of Act 52 of 1986 and substituted by section 128 of Act 60 of 2001]

(8)     Notwithstanding the provisions of subsections (1) and (4), the value for the purposes of the duty specified in Section B of Part 2 of Schedule No. 1 shall, in respect of imported goods, be the transaction value thereof plus 15 per cent of such value, plus any non-rebated customs duty payable in terms of Part 1 and any excise duty payable in terms of Section A of Part 2 of Schedule No. 1 on such goods, but excluding the duty specified in the said Section B of Part 2 of Schedule No. 1 on such goods.

[Subsection (8) substituted by section 8 of Act 101 of 1985, amended by section 8 of Act 52 of 1986 and section 9 of Act 68 of 1989 and substituted by section 93 of Act 35 of 2007 effective on 1 April 2012]

Section 64E (Customs Act) – Accredited clients

Posted on by admin_kmos

64E.    Accredited clients

(1)    

(a)     The Commissioner may-

(i)      confer accredited client status on any applicant therefore who is licensed or registered under any provision of this Act; and

(ii)     determine by rule levels of accredited client status and specific criteria applicable to each level.

[Paragraph (a) substituted by section 36 of Act 61 of 2008 effective on 1 August 2011]

(b)     Every applicant for accredited client status shall apply for a specific level thereof and, in addition to the criteria prescribed for that level by rule or that may be determined by the Commissioner, prove, as may be applicable, the following:

[Words preceding subparagraph (i) substituted by section 36 of Act 61 of 2008 effective on 1 August 2011 and section 19 of Act 39 of 2013 effective on 16 January 2014]

(i)      an appropriate record of compliance with customs and excise procedures;

(ii)     that the accounting records and other documents kept for providing evidence of compliance with customs and excise procedures utilise information prepared in a manner consistent with general accounting principles appropriate to the procedure concerned;

[Subparagraph (ii) substituted by section 19 of Act 39 of 2013 effective on 16 January 2014]

(iii)    that an effective computer system is in operation capable of performing the functions, and in respect of which an agreement has been concluded, as contemplated in section 101A;

(iv)    that the person who will administer the accredited client requirements has sufficient knowledge of customs and excise laws and procedures to implement and maintain an efficient and effective accredited client compliance system;

[Subparagraph (iv) substituted by section 19 of Act 39 of 2013 effective on 16 January 2014]

(v)     that the business in respect of which application is made for accredited client status has sufficient financial resources;

(vi)    any other measurable requirements which the Commissioner may require in support of the application.

(c)     The Commissioner may determine such separate criteria for accredited client status in respect of customs or excise clients as may be prescribed by rule.

[Paragraph (c) added by section 19 of Act 39 of 2013 effective on 16 Jnuary 2014]

(2)     The Commissioner may –

(a)     conduct such investigation as may be reasonably necessary to verify any statements in the application;

(b)     enter into any agreement with the applicant which may include, notwithstanding any other provisions of this Act, deferment of payment of any duty or value-added tax payable on the importation of any goods into the Republic and payment thereof as may be specified in such agreement;

(c)     prescribe by rule the following:

(i)      the application form to be completed and the supporting documents to be furnished by each applicant according to the customs and excise procedures applicable to the activities of the applicant;

(ii)     the form of agreement to be entered into between the applicant and the Commissioner;

(iii)    standards of conduct which may include procedures to be followed in respect of –

(aa)    the entry of goods;

(bb)   the payment of duty;

(cc)    the documents to be processed;

(dd)   the control of goods; or

(ee)    goods carried or removed; and

(iv)    the benefits conferred upon an accredited client;

[Subparagraph (iv) substituted by section 50 of Act 30 of 2002]

(v)     any other matter that is necessary in order to regulate the benefits provided in terms of this section;

[Subparagraph (v) added by section 50 of Act 30 of 2002]

(d)     delegate, by rule, subject to section 3(2), any power which may be exercised or assign the duties that shall be performed by the Commissioner in accordance with the provisions of this Act to any officer or other person.

(3)    

(a)     The Commissioner may refuse any application for accredited client status or any level of accredited client status or cancel or suspend such status.

[Paragraph (a) substituted by section 36 of Act 61 of 2008 effective on 1 August 2011]

(b)     The provisions of section 60(2) shall apply mutatis mutandis for the purposes of paragraph (a).

(c)     Any accredited client status conferred by the Commissioner shall remain valid for a period prescribed by rule.

[Paragraph (c) added by section 36 of Act 61 of 2008 effective on 1 August 2011]

(4)     . . . . . .

[Subsection (4) added by section 36(1)(e) of Act 61 of 2008 and repealed by section 15 of Act 21 of 2021 effective on 19 January, 2022]

[Section 64E inserted by section 48 of Act 19 of 2001]

Section 64F (Customs Act) – Licensing of distributors of fuels obtained from the licensee of a customs and excise manufacturing warehouse

Posted on by admin_kmos

64F.  Licensing of distributors of fuels obtained from the licensee of a customs and excise manufacturing warehouse

(1)     For the purposes of this Act, unless the context otherwise indicates –