Author: admin_kmos

Section 85 (Customs Act) – Beer of higher alcoholic strength than registered

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85. Beer of higher alcoholic strength than registered

 

Any manufacturer of beer of whom or which any container of beer not marked for export as contemplated in section 36(9) is found to contain beer of an alcoholic strength by volume higher than the strength registered in terms of section 36(2), after deduction of any tolerance provided in the rules relating to that section, shall be guilty of an offence and liable on conviction to a fine not exceeding R8 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment, and the goods in respect of which such offence was committed shall be liable to forfeiture.

[Section 85 substituted by section 4 of Act 68 of 1973, amended by section 16 of Act 52 of 1986 and section 12 of Act 105 of 1992 and substituted by section 57 of Act 45 of 1995, section 7 of Act 44 of 1996 and section 64 of Act 53 of 1999]

Section 86 (Customs Act) – Certain specified offences

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86. Certain specified offences

 

Any person who –

 

(a)     fails to advise the Controller of the receipt of any amended prescribed invoice or any credit note or debit note or of any change in the circumstances or particulars of whatever nature as declared in any prescribed invoice or in any other document or of any refund of money or deferred or secret discount, commission or other credit or debit which relates to any goods and which would increase the duty on such goods or exclude them from any rebate or refund or other privilege under this Act;

 

(b)     fails to declare in or omits from any prescribed invoice any particulars (including value and origin) in respect of the goods to which such invoice relates and which would increase the duty on such goods or exclude them from any rebate or refund or other privilege under this Act;

 

(c)     applies any money or credit received by or due to him as a commission in such a manner as to avoid or evade any duty or obligation or to obtain any rebate or other privilege in respect of any goods under this Act;

 

(d)     issues two or more different prescribed invoices or certificates in respect of the same goods or fails to issue an amended prescribed invoice or certificate where any particulars declared in any prescribed invoice or certificate in respect of any goods have changed in any manner whatever;

 

(e)     makes or attempts to make or assists in making or attempting to make any arrangement of whatever nature with any person inside or outside the Republic in connection with any goods imported or to be imported into the Republic with the object of or having the effect of defeating or evading the provisions of any agreement entered into between the Republic and any exporting territory which provides for the restriction of or control over the exportation to the Republic of any goods in any manner or any restriction of or control over the exportation of any goods to the Republic imposed by any exporting territory in any manner by arrangement with or at the instance or suggestion of or with the approval of the Republic;

 

(f)      produces to the Controller, for the purposes of section 39(1)(d), any sample which is not a sample of the goods of which it purports to be a sample or who so produces any copy of any invoice or other document or of any blueprint, illustration, drawing, plan or illustrated and descriptive literature which does not relate to the goods to which it purports to relate or which is incorrect or incomplete or misleading in any respect;

 

(g)     allocates the same identification number, code, description, character or other mark referred to in section 41(2) to goods of different classes or kinds or allocates more than one such identification number, code, description, character or other mark to goods of the same class or kind or who quotes or reproduces any such identification number, code, description, character or other mark in any invoice or document relating to goods to which such number, code, description, character or other mark has not been allocated; or

 

(h)     contravenes or fails to comply with the provisions of section 101 or of any rule made in terms of section 73 or 101,

[Paragraph (h) substituted by section 58 of Act 45 of 1995]

 

shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment, and the goods in respect of which such offence was committed shall be liable to forfeiture.

[Section 86 substituted by section 11 of Act 85 of 1968 and amended by section 17 of Act 52 of 1986 and section 13 of Act 105 of 1992]

Section 86A (Customs Act) – Publication of names of offenders

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86A.   Publication of names of offenders

 

(1)     Notwithstanding the provisions of section 4, the Commissioner may from time to time publish for general information such particulars as specified in subsection (2), relating to any offence committed by any person, where such person has been convicted of such offence in terms of –

 

(a)     sections 78 to 86, inclusive, or the rules;

(b)     the common law, where the criminal conduct corresponds materially with an offence referred to in paragraph (a),

 

after any appeal or review proceedings in relation thereto have been completed or not been instituted within the period allowed therefor.

[Subsection (1) amended by section 65 of Act 53 of 1999]

 

(2)     Every such publication may specify –

 

(a)     the name and address of the offender;

(b)     such particulars of the offence as the Commissioner may think fit;

(c)     the amount or estimated amount of duty involved;

(d)     the particulars of the fine or sentence imposed.

[Subsection (2) amended by section 65 of Act 53 of 1999]

[Section 86A inserted by section 69 of Act 30 of 1998]

Section 87 (Customs Act) – Goods irregularly dealt with liable to forfeiture

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87. Goods irregularly dealt with liable to forfeiture

(1)     Any goods imported, exported, manufactured, warehoused, removed or otherwise dealt with contrary to the provisions of this Act or in respect of which any offence under this Act has been committed (including the containers of any such goods) or any plant used contrary to the provisions of this Act in the manufacture of any goods shall be liable to forfeiture wheresoever and in possession of whomsoever found: Provided that forfeiture shall not affect liability to any other penalty or punishment which has been incurred under this Act or any other law, or liability for any unpaid duty or charge in respect of such goods.

[Subsection (1) amended by section 66 of Act 53 of 1999]

(2)     Any –

(a)     ship, vehicle, container or other transport equipment used in the removal or carriage of any goods liable to forfeiture under this Act or constructed, adapted, altered or fitted in any manner for the purpose of concealing goods;

(b)     goods conveyed, mixed, packed or found with any goods liable to forfeiture under this Act on or in any such ship, vehicle, container or other transport equipment; and

(c)     ship, vehicle, machine, machinery, plant, equipment or apparatus classifiable under any heading or subheading of Chapters 84 to 87 and 89 of Part 1 of Schedule No. 1 in which goods liable to forfeiture under this Act are used as fuel or in any other manner,

shall be liable to forfeiture wheresoever and in possession of whomsoever found.

[Subsection (2) substituted by section 66 of Act 53 of 1999]

Section 88 (Customs Act) – Seizure

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88. Seizure

(1)    


(a)     An officer, magistrate or member of the police force may detain any ship, vehicle, plant, material or goods at any place for the purpose of establishing whether that ship, vehicle, plant, material or goods are liable to forfeiture under this Act.

(b)     Such ship, vehicle, plant, material or goods may be so detained where they are found or shall be removed to and stored at a place of security determined by such officer, magistrate or member of the police force, at the cost, risk and expense of the owner, importer, exporter, manufacturer or the person in whose possession or on whose premises they are found, as the case may be.

(bA)  No person shall remove any ship, vehicle, plant, material or goods from any place where it was so detained or from a place of security determined by an officer, magistrate or member of the police force.

[Paragraph (bA) inserted by section 10 of Act 98 of 1993]

(c)     If such ship, vehicle, plant, material or goods are liable to forfeiture under this Act the Commissioner may seize that ship, vehicle, plant, material or goods.

[Paragraph (c) substituted by section 59 of Act 45 of 1995]

(d)     The Commissioner may seize any other ship, vehicle, plant, material or goods liable to forfeiture under this Act.

[Paragraph (d) substituted by section 59 of Act 45 of 1995]

[Subsection (1) substituted by section 15 of Act 68 of 1989]

(2)    


(a)            


(i)      If any goods liable to forfeiture under this Act cannot readily be found, the Commissioner may, notwithstanding anything to the contrary in this Act contained, demand from any person who imported, exported, manufactured, warehoused, removed or otherwise dealt with such goods contrary to the provisions of this Act or committed any offence under this Act rendering such goods liable to forfeiture, payment of an amount equal to the value for duty purposes or the export value of such goods plus any unpaid duty thereon, as the case may be.

(ii)     For the purposes of subparagraph (i) the value for duty purposes shall be calculated in terms of the provisions of this Act relating to such value whether or not the goods in question are subject to ad valorem duty or to a duty calculated according to a unit of quantity, volume or other measurement, as the case may be.

[Paragraph (a) substituted by section 30 of Act 112 of 1977 and section 28 of Act 84 of 1987]

(b)     If the amount demanded is not paid within a period of fourteen days after the demand for payment was made it may be recovered in terms of the provisions of this Act as if it were a forfeiture incurred under this Act.

(c)     The provisions of this Act shall, in so far as they can be applied, apply mutatis mutandis in respect of any amount paid to the Commissioner or recovered in terms of this subsection, as if such amount were the goods in question and as if such amount had been seized under subsection (1).

[Subsection (2) added by section 12 of Act 85 of 1968]

Section 89 (Customs Act) – Notice of claim by owner in respect of seized goods

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89. Notice of claim by owner in respect of seized goods

(1)     Whenever any proceedings are instituted to claim any ship, vehicle, container or other transport equipment, plant, material or goods (in this section, section 43 and section 90 referred to as “goods”), which have been seized under this Act, such claim must be instituted by the person from whom they were seized or the owner or the owner’s authorised agent (in this section referred to as “the litigant”).

(2)    

(a)     Any litigant must give notice to the Commissioner in writing before serving any process for instituting any proceedings as contemplated in section 96(l)(a) within 90 days after the date of seizure.

[Subsection (2) substituted by section 149 of Act 45 of 2003]

(3)     Any proceedings must be instituted within 90 days of such notice.

(4)     Whenever goods are seized and in consequence of the seizure-

(a)     delivery thereof under section 93 is refused or the terms of delivery thereunder are not accepted; or

(b)     no proceedings are instituted as contemplated in this section or have been instituted and have been dismissed in a final judgment of the High Court or a judgment by the Supreme Court of Appeal,

the goods concerned shall, subject to the provisions of section 90, be deemed to be condemned and forfeited.

[Subsection (4) substituted by section 149 of Act 45 of 2003]

(5)     The provisions of section 96(1)(c) shall apply mutatis mutandis to any period contemplated in subsections (2) and (3).

[Section 89 amended by section 13 of Act 85 of 1968 and substituted by section 131 of Act 60 of 2001]

Section 90 (Customs Act) – Disposal of seized goods

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90. Disposal of seized goods

 

(a)     Whatever is seized as being liable to forfeiture under this Act, shall forthwith be delivered to the Controller at the customs and excise office nearest to the place where it was seized or it may be secured by the Controller by sealing, marking, locking, fastening or otherwise securing or impounding it on the premises where it is found or by removing it to a place of security determined by the Controller.

 

(b)     Where any seized goods are of a perishable or dangerous nature, the Commissioner may, whenever it is not reasonably possible to obtain storage or according to the circumstances not possible to obtain storage at a reasonable cost for the preservation or safe keeping of such goods, cause such goods before being condemned and forfeited as contemplated in section 89(4) to be sold by any appropriate procedure or destroyed, whichever is, and at the time is, reasonably practicable in the circumstances.

[Paragraph (b) substituted by section 132 of Act 60 of 2001]

 

(c)     Notwithstanding the provisions of section 89, the provisions of section 43(5), (6), (7) and (8) shall mutatis mutandis apply in respect of goods which are imported, exported, manufactured or used, or otherwise dealt with in contravention of this Act and any other law: Provided that such goods shall be deemed to be condemned and forfeited in accordance with the relevant provisions of section 43(5) or (6) and the provisions of section 89(4).

[Paragraph (c) inserted by section 132 of Act 60 of 2001]

 

(d)     Any person claiming the goods which were imported, exported or manufactured in contravention of any other law shall, for the purposes of sections 43, 89 and 96, join the authority administering such law in any proceedings.

[Paragraph (d) inserted by section 132 of Act 60 of 2001]

 

(e)     The provisions of section 43(7) shall mutatis mutandis apply in respect of goods which are condemned and forfeited as contemplated in section 89(4).

[Paragraph (e) inserted by section 132 of Act 60 of 2001]

 

(f)      The provisions of section 89(4) shall not affect the operation of section 93 in respect of the goods concerned which are condemned and forfeited as contemplated in that section.

[Paragraph (f) inserted by section 132 of Act 60 of 2001]

Section 91 (Customs Act) – Administrative penalties

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91. Administrative penalties

[Heading substituted by section 25 of Act 32 of 2005]

 

(1)    

 

(a)     If any person –

(i)      has contravened any provision of this Act or failed to comply with any such provision with which it was his duty to comply; and

[Subparagraph (i) substituted by section 12 of Act 105 of 1976 and section 60 of Act 45 of 1995]

(ii)     agrees to abide by the Commissioner’s decision; and

(iii)    deposits with the Commissioner such sum as the Commissioner may require of him but not exceeding the maximum fine which may be imposed upon a conviction for the contravention or failure in question or makes such arrangements or complies with such conditions with regard to securing the payment of such sum as the Commissioner may require,

the Commissioner may, after such enquiry as he deems necessary, determine the matter summarily and may, without legal proceedings, order forfeiture by way of penalty of the whole or any part of the amount so deposited or secured.

(b)     Anything done for the purposes of paragraph (a) by an agent generally or specially authorized thereto by any person, shall be deemed to have been duly done by that person in terms of that paragraph.

[Subsection (1) substituted by section 14 of Act 85 of 1968]

 

(2)     ………..

[Subsection (2) substituted by section 12 of Act 105 of 1976, amended by section 29 of Act 84 of 1987, substituted by section 60 of Act 45 of 1995 and deleted by section 133 of Act 60 of 2001]

 

(3)     Subject to the provisions of subsection (4) of section 62, the imposition of a penalty under subsection (1) shall not be regarded as a conviction in respect of a criminal offence, but no prosecution for the relevant offence shall thereafter be competent.

 

(4)     Nothing in this section shall in any way affect liability to forfeiture of goods or payment of duty or other charges thereon.

Section 92 (Customs Act) – Payment and disposal of fines and penalties

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92. Payment and disposal of fines and penalties

(1)     Any penalty recovered under this Act shall be paid to the Controller in the area where such penalty is recovered, and shall be paid by him into the national Revenue Fund, and the proceeds of sale of anything forfeited, or seized and condemned under this Act shall also be paid into the said fund.

[Subsection (1) amended by section 11 of Act 98 of 1993 and section 61 of Act 45 of 1995 and substituted by section 70 of Act 30 of 1998 and section 96 of Act 35 of 2007]

Section 93 (Customs Act) – Remission or mitigation of penalties and forfeiture

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93. Remission or mitigation of penalties and forfeiture

(1)     The Commissioner may, on good cause shown by the owner thereof, direct that any ship, vehicle container or other transport equipment, plant, material or other goods detained or seized or forfeited under this Act be delivered to such owner, subject to-

(a)     payment of any duty that may be payable in respect thereof;

(b)     payment of any charges that may have been incurred in connection with the detention or seizure or forfeiture thereof; and

(c)     such conditions as the Commissioner may determine, including conditions providing for the payment of an amount not exceeding the value for duty purposes of such ship, vehicle container or other transport equipment, plant, material or goods plus any unpaid duty thereon.

(2)     The Commissioner may, on good cause shown mitigate or remit any penalty incurred under this Act on such conditions as the Commissioner may determine.

(3)    


(a)     Any person who, for the purposes contemplated in this section alleges ownership of any ship, vehicle, container or other transport equipment, plant material or other goods shall have the burden of proving such ownership to the satisfaction of the Commissioner; and

(b)     Where two or more persons claim ownership of the same ship, vehicle, container or other transport equipment, plant, material or other goods, ownership must be decided by a competent court and the Commissioner shall only grant release thereof to the person or persons as ordered by such court.

[Section 93 substituted by section 14 of Act 95 of 1965 and section 15 of Act 85 of 1968, amended by section 31 of Act 112 of 1977 and substituted by section 67 of Act 53 of 1999 and section 150 of Act 45 of 2003]