31. Ascertaining the strength of spirits for duty purposes
The strength of any spirits or spirituous preparations shall, for duty purposes, be ascertained in the manner prescribed by the Commissioner.
[Section 32 amended by section 2 of Act 103 of 1972 and substituted by section 1 of Act 7 of 1974 and section 5 of Act 98 of 1980]
33. Requirements in respect of stills
Subject to the provisions of section 63, no person shall distil spirits in a still which does not comply with the requirements prescribed by rule as to use, capacity or construction: Provided that the Commissioner may by rule exempt any person or still from all or any of the provisions of this section.
[Section 33 substituted by section 21 of Act 45 of 1995]
34. Special provisions regarding spirits manufactured by agricultural distillers
(1) The manufacture of spirits by an agricultural distiller shall be subject to such supervision by an officer as the Controller may in each case consider necessary.
[Subsection (1) substituted by section 22 of Act 45 of 1995]
(2) An allowance may be made by the Controller for natural waste and evaporation on all spirits of his own distillation stored by an agricultural distiller on his farm, to the extent specified in Schedule No. 6, if no part of such loss was wilfully or negligently caused.
[Subsection (2) substituted by section 22 of Act 45 of 1995]
(3) No agricultural distiller shall use his still for distilling spirits from any material other than produce grown on the farm of which he is the owner or occupier and which is of a kind prescribed by rule in respect of the class of agricultural distiller to which he belongs.
[Subsection (3) substituted by section 22 of Act 45 of 1995]
(4) Subject to the provisions of this Act and the Liquor Act 1989 (Act No. 27 of 1989), the provisions of section 20(4) of this Act shall mutatis mutandis apply in respect of spirits manufactured from grapes by any class of agricultural distiller specified by the Commissioner by rule, and for the purpose of such application any reference in the said subsection to a customs and excise warehouse shall be deemed to be a reference to the farm on which such spirits are manufactured.
[Subsection (4) substituted by section 3 of Act 86 of 1982 and section 22 of Act 45 of 1995]
(5) Spirits manufactured by an agricultural distiller in the Republic from any prescribed fruit shall be solely for his private use on the farm where such fruit was produced and such spirits were manufactured.
[Subsection (5) substituted by section 2 of Act 19 of 1994 and section 60 of Act 30 of 1998]
(6) Notwithstanding the provisions of subsection (5), the Commissioner may allow spirits so manufactured to be used or disposed of in such circumstances and at such places as he may deem fit and subject to such conditions as he may impose in each case.
[Subsection (6) added by section 1 of Act 69 of 1988]
35. Special provisions regarding wine
(1)
(a) The Commissioner may, subject to such conditions as he may impose in each case, license the premises of a wine-grower, wine-growers’ co-operative agricultural society, the Deciduous Fruit Board or a person who holds a licence under any law to deal in wine in wholesale quantities, as a special customs and excise warehouse for the purpose of manufacturing wine.
(b) Special warehouses licensed under this subsection shall, for the purposes of this Chapter be deemed to be customs and excise manufacturing warehouses.
(2) ……….
[Subsection (2) substituted by section 3 of Act 103 of 1972 and deleted by section 23 of Act 45 of 1995]
(1) The Commissioner may prescribe by rule-
(a) the sizes and types of containers which may be used by a manufacturer for the packing of cigarettes and cigarette tobacco;
(b) distinguishing marks or numbers in addition to the stamp impression referred to in subsection (2) which must or must not appear on containers of cigarettes and cigarette tobacco removed from a customs and excise warehouse for home consumption or for export;
(c) any other matter which is necessary to prescribe and useful to achieve the efficient and effective administration of this section.
[Subsection (1) substituted by section 24 of Act 45 of 1995 and section 135 of Act 45 of 2003]
(2) No licensee may remove any cigarettes or allow any cigarettes to be removed from a customs and excise warehouse unless-
(a) if removed for home consumption, a stamp impression determined by the Commissioner has been made on their containers; or
(b) if removed for export, such stamp impression does not appear on the containers; and
(c) the cigarettes otherwise comply in every respect with the requirements prescribed by rule.
[Subsection (2) substituted by section 135 of Act 45 of 2003]
(3) No cigarettes or cigarette tobacco shall be sold or disposed of or removed from the customs and excise manufacturing warehouse in question in partly or completely manufactured condition except in accordance with the provisions of this Act.
(4) No person shall –
(a) counterfeit or make any facsimile of any die or impression stamp determined under subsection (2);
(b) be in possession of, use or offer for sale or for use –
(i) any die or impression stamp counterfeited in contravention of paragraph (a); or
(ii) any facsimile of any die or impression stamp made in contravention of that paragraph.
[Section 35A inserted by section 5 of Act 112 of 1977]
36. Specific provisions regarding beer
(1) For the purposes of this section, “beer” means beer made from malt classified under the specified in tariff item 104.10 of Part 2 of Schedule No. 1.
[Subsection (1) substituted by section 49 of Act 53 of 1999]
(2)
(a) Every manufacturer shall, in respect of beer manufactured by the manufacturer in the Republic, register with the Commissioner the brand names whereunder such beer will be sold or disposed of for home consumption, together with the alcoholic strength by volume and the quantity which will be indicated on each container size of the beer so sold or disposed of under any such name, and no beer shall be so sold or disposed of unless so registered.
(b)
(i) The provisions of paragraph (a) shall apply mutatis mutandis if any of such registered particulars should change.
(ii) Any such change shall be registered within the time prescribed by rule.
(c) Where beer is subject to further fermentation after being packaged, the alcoholic strength by volume to be registered and indicated on the container shall be the strength which the beer is reasonably expected to have when consumed.
(d) No brew of beer shall be packaged for home consumption if the alcoholic strength by volume thereof exceeds such registered strength after deduction of any tolerance prescribed by rule.
(e) If beer in bulk is removed in bond from a customs and excise manufacturing warehouse the alcoholic strength by volume shall be tested before removal and recorded on all documents of removal and reflected in the records required to be kept in terms of the rules.
[Subsection (2) substituted by section 2 of Act 44 of 1996 and section 49 of Act 53 of 1999]
(3) No beer shall be sold or disposed of by any manufacturer for home consumption except in a container which indicates the brand name, the alcoholic strength by volume and quantity of such beer, and any invoice or other document relating to such sale or disposal of such beer shall indicate the registered brand name thereof.
[Subsection (3) substituted by section 49 of Act 53 of 1999]
(4) Any description on any container of beer bearing an indication of a brand name, alcoholic strength by volume and quantity registered with the Commissioner shall be deemed to be a declaration for the purpose of assessment of duty.
[Subsection (4) substituted by section 49 of Act 53 of 1999]
(5) The Commissioner may exempt beer of any class or kind from any or all of the provisions of subsections (2) and (3).
(6)
(a) If the actual alcoholic strength by volume of any beer in any container not intended for export as contemplated in subsection (9), bearing an indication of a name and alcoholic strength by volume registered with the Commissioner under this section is ascertained, after deduction of any tolerance prescribed by rule, to be higher than the alcoholic strength by volume registered in relation to beer of such name the manufacturer shall be liable for the duty on the full quantity of the brew or blend of brews of beer from which such container was filled according to the actual strength as ascertained in respect of the contents of such container.
[Paragraph (a) substituted by section 2 of Act 44 of 1996 and section 49 of Act 53 of 1999]
(b) If the Commissioner is unable to establish such full quantity from the records of the manufacturer he may determine a quantity which shall be deemed to be such full quantity.
(c) Any beer of any brew or blend of brews of beer referred to in paragraph (a) and not delivered from the stocks of such manufacturer shall be liable to forfeiture.
(7)
(a) Every manufacturer shall –
(i) test the alcoholic strength by volume of each brew using a method approved by the Commissioner and record the results of each test as prescribed by rule;
(ii) keep a record of the actual quantity of beer in each container size packaged for sale or disposal for home consumption.
(b)
(i) Where the average of the test results for any registered brand name over any two successive periods of three months show that the average alcoholic strength by volume, although within any tolerance prescribed by rule, exceeds the registered strength after deduction of any average allowance as may be prescribed by rule, duty shall, if the Commissioner so determines, be payable in respect of such excess strength on all the beer accounted for during such periods.
(ii) Payment of such duty shall be shown separately on, and included with, the first account presented to the Controller after the end of such period.
(iii) Where the average alcoholic strength by volume so exceeds the registered strength, the manufacturer shall change the registration within the time prescribed by rule.
(c)
(i) Where the actual total quantity of beer of each container size sold or disposed of for home consumption during any period of three months exceeds the calculated total quantity, according to the registration for such container size, and after deduction of any average allowance as may be prescribed by rule, duty shall be payable on the excess quantity.
(ii) Such excess quantity shall be shown separately on, and payment of duty thereon included with, the first account presented to the Controller after the end of such period.
(d) A manufacturer shall not be entitled to any refund of duty if the alcoholic strength referred to in paragraph (b) or the quantity referred to in paragraph (c) is less than the registered strength or quantity, as the case may be.
[Subsection (7) added by section 49 of Act 53 of 1999]
(8)
(a) An officer may take samples of any beer at any time and send such samples for analysis to a person designated under paragraph (b).
(b) The Commissioner may designate any person to analyse such samples.
[Subsection (8) added by section 49 of Act 53 of 1999]
(9) Any beer intended for export shall only be exported in containers with a distinguishing mark approved by the Commissioner.
[Subsection (9) added by section 49 of Act 53 of 1999]
(10) The Commissioner may be rule prescribe the following in relation to beer:
(a) The manner in which alcoholic strength by volume and quantity are determined for the purposes of registration;
(b) the tolerance allowable on registered alcoholic strength by volume;
(c) the average allowances for the purposes of subsection (7)(b)(i) and (c)(i);
(d) records to be kept and reports to be furnished of ingredients used, production, test results of the alcoholic strength by volume of brews, quantities manufactured and put in containers, losses and beer returned;
(e) the procedure or method for the taking of samples by an officer; the method of analysis of such sample; the form for reporting on the analysis of such sample by a designated person; the results of such analysis; and any other particulars as may be required on such form;
(f) the time and circumstances within which any change of the alcoholic strength by volume or quantity is required to be registered;
(g) any other reasonable measure for controlling the manufacturing processes or the removal of beer for home consumption or export.
[Subsection (10) added by section 49 of Act 53 of 1999]
[Section 36 amended by section 4 of Act 103 of 1972 and section 6 of Act 98 of 1980 and substituted by section 25 of Act 45 of 1995]
36A. Special provisions in respect of manufacture of goods specified in Section B of Part 2 of Schedule No. 1 and collection of excise duty specified in Section B of Part 2 of Schedule No. 1
(1) Every manufacturer of excisable goods specified in Section B of Part 2 of Schedule No. 1, and every owner of excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured for him partly or wholly from materials owned by such owner, shall license his premises as a special customs and excise warehouse for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 in terms of the provisions of this Act, and no such manufacturer or owner shall manufacture or deal in or with excisable goods specified in Section B of Part 2 of Schedule No. 1 unless he has so licensed his premises.
[Subsection (1) substituted by section 2 of Act 98 of 1993 and amended by section 26 of Act 45 of 1995]
(2) Notwithstanding anything to the contrary in this Act contained –
(a) where the value added by any process in the manufacture of excisable goods specified in Section B of Part 2 of Schedule No. 1 is, in the opinion of the Commissioner, low in relation to the manufacturer’s selling price of such goods, or where any process in the manufacture of excisable goods specified in Section B of Part 2 of Schedule No. 1 presents in his opinion exceptional difficulties in the collection of excise duty specified in Section B of Part 2 of Schedule No. 1 in respect of such goods, the provisions of subsection (1) shall apply, and due entry of such goods shall be effected, at such stage in the manufacture of the said goods as he may determine, and the processes which shall be deemed to be included for the purposes of calculating the value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods shall be as determined by him;
[Paragraph (a) substituted by section 26 of Act 45 of 1995]
(b) the Commissioner may, subject to such conditions as he may impose in each case –
(i) where the production and disposal of any excisable goods specified in Section B of Part 2 of Schedule No. 1 are performed by different persons, or under other circumstances rendering it expedient in his opinion to do so, issue one licence under the provisions of this Act in respect of the premises of two or more persons concerned, and thereupon each such person shall be jointly and severally liable for the excise duty specified in Section B of Part 2 of Schedule No. 1 on all the excisable goods specified in Section B of Part 2 of Schedule No. 1 concerned, any one paying, the other or others to be absolved pro tanto;
(ii) include in a special customs and excise warehouse licence issued under this Act in respect of the premises of any manufacturer of excisable goods specified in Section B of Part 2 of Schedule No. 1, any warehouse, depot, agency, branch or other storage place approved by the Commissioner and in which any such goods owned by such manufacturer are stored, and thereupon such goods so stored shall, for the purposes of this Act, be deemed to be in the licensed special customs and excise warehouse of such manufacturer, and the licensee concerned shall be liable as such in all respects for compliance with the requirements of this Act and for the excise duty specified in Section B of Part 2 of Schedule No. 1 on such goods so stored;
(iii) in such circumstances as he may deem expedient, license the premises of any dealer in excisable goods specified in Section B of Part 2 of Schedule No. 1 as a special customs and excise warehouse under the provisions of this Act, and thereupon such dealer shall comply with the requirements of this Act relating to the collection of excise duty specified in Section B of Part 2 of Schedule No. 1 on such excisable goods specified in Section B of Part 2 of Schedule No. 1 as the Commissioner may determine, and be liable for the excise duty specified in Section B of Part 2 of Schedule No. 1 on such goods;
(iv) make such temporary or permanent adjustment to the excise duty value of excisable goods specified in Section B of Part 2 of Schedule No. 1 as he may deem reasonable in circumstances which are in his opinion exceptional.
(3) Excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured in the Republic by any person for his own use and not for sale or disposal and in circumstances which in the opinion of the Commissioner do not constitute a business venture, may, subject to such conditions as he may impose in each case, be exempted by the Commissioner from the payment of excise duty specified in Section B of Part 2 of Schedule No. 1 thereon.
[Subsection (3) substituted by section 26 of Act 45 of 1995]
(4) Excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured in the Republic by any person for sale or disposal and in the circumstances which in the opinion of the Commissioner constitute a business venture, or any class or kind of such goods, may, subject to such conditions as he may impose by rule, be exempted by the Commissioner from the payment of excise duty specified in Section B of Part 2 of Schedule No. 1 thereon if –
(a) the average value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods or such class or kind of such goods has during such period or periods as the Commissioner may prescribe by rule, not exceeded such amount as he may so prescribe; or
(b) the value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods or such class or kind of such goods is in the opinion of the Commissioner not likely to exceed the amount referred to in paragraph (a) during one calendar year; or
(c) such circumstances as may be prescribed by rule apply.
[Subsection (4) substituted by section 26 of Act 45 of 1995]
[Section 36A inserted by section 11 of Act 105 of 1969, substituted by section 4 of Act 52 of 1986, amended by section 2 of Act 69 of 1988 and substituted by section 16 of Act 59 of 1990]
(1)
(a) Notwithstanding anything to the contrary in this Act contained, where –
(i) any goods are classified under and specified in any heading or subheading of Chapter 27 of Part 1 of Schedule No. 1;
(ii) such goods are also classified under and specified in any item of Part 2 and Part 5 of Schedule No. 1;
(iii) such heading or subheading has been expressly quoted in any such item; and
(iv) a free rate of duty is prescribed in respect of each such heading or subheading and such item,
such goods shall, as may be prescribed by rule, on importation into or manufacture in the Republic or on being marked, be accounted for in any customs and excise warehouse licensed in terms of this Act.
(b) For the purposes of this section the Commissioner may, on such conditions as he may impose in each case in order to ensure the proper control over the storage, marking and removal of the goods contemplated in paragraph (a), approve any such warehouse and any licensee or class of licensee of such warehouse;
(c) Unless so approved by the Commissioner, no person shall deal with any such goods in any manner contemplated in paragraph (b).
(2)
(a) If any goods are described in any heading or subheading or item referred to in subsection (1)(a) as marked, the unmarked goods concerned shall be marked by the approved licensee in the approved warehouse by the addition of such marker, in such proportion which is equal to or exceeds, and in accordance with such procedure and control measures, as may in each case be prescribed by rule.
(b) Any goods contemplated in subsection (1) shall each be stored separately from all other goods and shall be subject mutatis mutandis to the provisions of this Act relating to dutiable goods stored in and removed from a customs and excise warehouse, as may be prescribed by rule.
(c)
(i) Subject to the provisions of subparagraph (iii), any reference to “marked goods” or “marker” in this or any other section or any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 or Part 5 of Schedule No. 1 or in any note to such Chapter or Part or in any rule, shall be deemed to be a reference to unmarked goods referred to in subparagraph (ii) which have been marked and the marker which is required to be added as contemplated in paragraph (a);
(ii) Any reference to “unmarked goods” in this or any other section or in any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 or Part 5 of Schedule No. 1 or in any note to such Chapter or Part or in any rule, shall be deemed to be a reference to goods which, except for the reference to marked, are of the same description as marked goods and are specified as unmarked goods of such description in any such heading, subheading or item;
(iii) Whenever it is necessary for the purpose of establishing any contravention of any provision of this section, any goods shall be deemed to contain marked goods when such goods contain a proportion of the marker equal to or exceeding that as may be prescribed by rule.
(d) Such addition of a marker shall be deemed not to constitute mixing or blending for the purposes of –
(ii) the classification of any goods under any heading, subheading or item of Schedule No. 1, except as provided in this section.
(e) The application of the free rate of duty specified in any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 and Part 5 of Schedule No. 1 in respect of any goods described as marked goods, shall be subject to the provisions of this section.
(3)
(a) Any person who sells or disposes of in any manner, whether or not for any consideration, any marked goods at any one time in excess of the quantity prescribed by rule, shall issue an invoice to the purchaser, or to any other person to whom the goods are so disposed of, containing such particulars as may be prescribed by rule.
(b) Any person who so sells or disposes of marked goods shall keep a copy of such invoice and any person to whom such invoice is issued shall keep such invoice for such period as may be prescribed by rule.
(c) Any person referred to in paragraph (a) and any other person who is at any time in possession of or has under his control any marked goods in excess of the quantity prescribed by rule, shall complete and keep such books, accounts and other documents in such form, reflecting such particulars and for such period and shall comply with any such other requirements, as may be prescribed by rule.
(d) The provisions of paragraph (a) shall not apply to stock loan transactions between approved licensees of customs and excise warehouses.
(4)
(a) No person shall –
(i) mix any marked goods in any proportion with distillate fuel or petrol;
(ii) mix any marked goods in any proportion with any lubricity agent for use as fuel in any engine;
(iii) mix any marked goods in any proportion with any lubricity agent, or be in possession of any marked goods mixed in any proportion with any lubricity agent, or be in possession of marked goods for mixing with any lubricity agent in any circumstances or for any purpose, otherwise than in accordance with this section and the rules;
(iv) use any marked goods, whether or not mixed with any other goods in any proportion, as fuel in any engine;
(v) sell or dispose of in any manner whether or not for any consideration or acquire any marked goods or any marked goods mixed with any lubricity agent, for use as fuel in any engine;
(vi) be in possession of or sell any marked goods mixed in any proportion with distillate fuel or petrol;
[Subparagraph (vi) substituted by section 122 of Act 60 of 2001]
(vii) be in possession of any marked goods or marked goods mixed in any proportion with any lubricity agent for use as fuel in any engine;
(viii) remove or neutralise or attempt to remove or neutralise any marker in any marked goods;
(ix) add any substance to any marked goods which can prevent or impede the detection of the marker;
(x) be in possession of any marked goods or sell or dispose of in any manner whether or not for any consideration or acquire any marked goods in which is present any substance which or the colour of which can prevent or impede the detection of the marker;
(xi) mix any unmarked goods with any marked goods; or
(xii) unless approved by, and subject to such conditions as may be imposed by, the Commissioner, import any goods containing the marker.
(b) Any person who so mixes or uses or sells or disposes or acquires or possesses any marked goods or so adds any substance to any marked goods or so removes or neutralises or attempts to remove or to neutralise any marker or any person to whom any invoice referred to in subsection (3)(a) has been issued in respect of the marked goods concerned, shall, in addition to any other liability incurred in terms of this Act, be liable, as the Commissioner may determine, for the payment of an amount not exceeding the duty that may be leviable on any distillate fuel, petrol, lubricity agent or unmarked goods in accordance with the provisions of Schedule No. 1, whichever yields the greatest amount of duty, in respect of all marked goods which –
(i) are in the possession or under the control of such person or on any premises in the possession or under the control of such person; and
(ii) were previously sold or disposed of or purchased or were in the possession or under the control of such person or on any premises in the possession or under the control of such person at any time, unless it is shown within 30 days from the date of any demand for payment of any amount in terms of this section that the goods concerned have not been dealt with contrary to the provisions of paragraph (a).
(c)
(i) If different rates of duty on such distillate fuel, petrol, lubricity agents or unmarked goods were in force during any period in respect of which the duties are calculated for the purposes of the payment referred to in paragraph (b), the highest rate in force at the relevant time shall be applied for the purposes of calculating the duty payable as provided in paragraph (b).
(ii) For the purposes of calculating the duty payable on any marked goods mixed with distillate fuel, petrol, unmarked goods or lubricity agent in any tank, including the fuel tank of any engine, such duty shall be calculated, on the total quantity of such mixed goods, in accordance with the provisions of paragraph (b).
(d) Notwithstanding anything to the contrary in this Act contained, any person who, contrary to subsection (3) and the rules, fails to –
(i) keep any invoice issued or a copy thereof;
(ii) issue any invoice;
(iii) complete and keep the books, accounts and documents; or
(iv) forthwith furnish any officer at such officer’s request with such invoice or copy thereof and the books, accounts and documents, required to be completed and kept,
shall, in addition to any other liability incurred in terms of this Act, in respect of the goods to which such failure relates, be liable, as the Commissioner may determine, for the payment of an amount not exceeding the duty that may be leviable on any distillate fuel, petrol, lubricity agents or unmarked goods in accordance with the provisions of Schedule No. 1, whichever yields the greatest amount of duty, unless it is shown within 30 days of the date of any demand for payment of such amount in terms of this section that the goods concerned have not been dealt with contrary to the provisions of this section.
(e) Any amount of which any person is liable in terms of this section shall be payable upon demand by the Commissioner.
(f) Payment of any amount in respect of the marked goods referred to in paragraph (b)(i) shall not absolve the person concerned from compliance with the provisions of paragraph (a).
(5)
(a) For the purposes of this section an officer may –
(i) take samples of any goods in any tank or other container or in any fuel tank of any engine;
(ii) analyse such samples or send them for analysis to any person designated under paragraph (c)(ii);
(iii) stop and detain any vehicle or mobile apparatus with or without the assistance of any traffic officer or member of the South African Police Service or the South African National Defence Force;
(iv) detain any ship with or without the assistance of any member of the South African Police Service or the South African National Defence Force.
(b) The provisions of section 106 (2) shall mutatis mutandis apply to any sample taken under this subsection.
(c) The Commissioner may –
(i) by rule prescribe the form for reporting on any vehicle or mobile apparatus stopped or premises visited, or any person concerned with such vehicle, mobile apparatus or premises; or on any procedure or method for the taking or analysis of any sample by an officer; or on the results of such analysis and any other particulars as may be required on such form;
(ii) designate any person to analyse any such sample;
(iii) by rule prescribe the form for reporting on the analysis of such sample by such designated person, the results of such analysis and any other particulars as may be required on such form;
(iv) by rule prescribe the method for sealing any tank or container.
(d) Any person who is any way concerned with any marked goods or any vehicle or mobile apparatus or any premises where any tank or other container is situated, shall furnish an officer on demand with any particulars which he is able to provide for the purposes of the completion of the report referred to in paragraph (c).
(6)
(a) Whenever an officer has detained any ship, vehicle, mobile, apparatus, engine, tank or other container or goods in terms of this Act for the purposes of investigating any matter to which this section relates, he shall not, if any goods are tested for the presence of a marker, take any action to enforce any other provision of this Act, unless he is in possession of a report by the person designated under subsection (5)(c)(ii) or by any person in the employ of and authorised by such designated person, on the prescribed form, which contains particulars indicating that the goods concerned have been dealt with contrary to the provisions of this section.
(b) Any person who is any way concerned with such goods as contemplated in subsection (4)(b) shall be liable in respect thereof for payment of an amount calculated on the same basis as provided in that subsection.
(c) Any goods otherwise found by an officer to have been dealt with contrary to the provisions of this section and any goods which have been used in so dealing with those goods shall be liable to forfeiture in accordance with this Act
(d) The owner or whoever has possession or control of any goods, ship, vehicle, mobile apparatus, engine, tank or other container, shall be liable for any reasonable costs and expenses, including the costs of analysing any sample, incurred by, and charges due to, the Commissioner in the handling of and dealing with any such goods, ship, vehicle, mobile apparatus, engine, tank or other container for the purposes of this section.
(7)
(a) Notwithstanding the provisions of subsection (4) and anything to the contrary in any other provision of this Act, whenever any marked goods have become mixed with or contaminated by unmarked goods or any other goods, by an act or omission which by the exercise of reasonable care could not have been avoided, such mixing or contamination shall, in the event that the proportion of the marker present in such mixed or contaminated goods is less than the proportion prescribed by rule in terms of subsection (2)(a), but is equal to or exceeds the proportion prescribed by rule in terms of subsection (2)(c)(iii), be reported immediately to the Commissioner, unless such mixing or contamination occurs within a licensed customs and excise warehouse, and the licensee complies with the provisions of subparagraphs (i) and (ii) of paragraph (b), and a report of each such event is prepared and kept available for inspection by an officer.
(b) Such goods shall, subject to the approval of the Commissioner and to such conditions as the Commissioner may in each case impose –
(i) be mixed or blended with other goods by the licensee of a customs and excise warehouse until the proportion of the marker is less than the proportion prescribed by rule in terms of subsection (2)(c)(iii), in which case the total quantity of such mixed or blended goods shall be liable to the duty applicable to such goods in terms of Schedule No. 1 on removal from such warehouse; or
(ii) be delivered to any person who is registered as required by the rules, for mixing or blending with other goods where such mixed or blended goods are not capable of use as fuel in any engine.
(c) If the Commissioner for any reason finds that such mixed or contaminated marked goods cannot be dealt with as contemplated in paragraph (b) within any reasonable period determined by the Commissioner, such goods shall on expiry of such period be regarded as having been abandoned to the Commissioner and may thereafter be disposed of in such manner as the Commissioner considers reasonable in the circumstances.
(d) The licensee of the customs and excise warehouse, the purchaser or any other person to whom the marked goods were disposed of or whoever had control thereof when such mixing or contamination occurred shall be liable for any reasonable costs and expenses incurred by and charges due to the Commissioner in respect of any handling of and dealing with such goods in accordance with the provisions of paragraph (b) or (c).
(e) Any person who deals with such mixed or contaminated goods contrary to the provisions of paragraph (b), shall, in addition to any other liability incurred in terms of this Act, be liable in respect of the total quantity of such goods for payment of an amount calculated on the same basis as provided in subsection (4)(b).
(8)
(a) Where any goods may be disposed of in terms of section 90, the Commissioner may, notwithstanding the provisions of that section, but subject to such conditions as the Commissioner may in each case impose, which may include conditions requiring payment of any amount determined by the Commissioner –
(i) dispose of such goods for mixing or blending with other goods as contemplated in subsection (7)(b);
(ii) dispose of such goods in any other manner which the Commissioner considers reasonable in the circumstances; or
(iii) order the destruction of such goods.
(b) The person from whom the goods were seized shall be liable for any reasonable costs and expenses incurred by and charges due to the Commissioner in respect of the handling of and dealing with such good as contemplated in paragraph (a).
(9)
(a) No person may acquire or sell or dispose of in any manner, whether or not for any consideration, or be in possession of or have under his control or use –
(i) any goods, other than marked goods, for which provision is made free of duty in Schedule No. 1 as contemplated in subsection (1)(a); or
(ii) any marked goods mixed with any lubricity agent,
except in accordance with the provisions of this section and the rules.
(b) In addition to the provisions of this subsection and any rule made thereunder, except as otherwise provided in any rule, any marked goods mixed or intended to be mixed with any lubricity agent shall be subject to the provisions of this section and the rules relating to marked goods.
(c) Where any person is required by any rule made under paragraph (d) to register with the Commissioner, the Commissioner may –
(i) require before registration that such person furnishes security in such form, nature or amount as the Commissioner may determine;
(ii) at any time require that such security be altered or renewed in such manner as the Commissioner may determine;
(iii) determine the particulars to be furnished on application for registration and the requirements to be complied with before such application is considered;
(iv) register such person subject to such conditions as the Commissioner may in each case impose;
(v) refuse to register any person or class of persons and cancel the registration of any person who has dealt with any goods contrary to the provisions of this section or the rules or any other provision of this Act and refuse re-registration of such person.
(d) The Commissioner may for the purposes of this section, by rule, prescribe the following:
(i) The persons who are required to register and the goods and activities in respect of which they are required to register;
(ii) quantities which shall be subject to any such rule;
(iii) the conditions on which and the purposes for which any marked goods may be mixed with any lubricity agent;
(iv) the conditions on which and the purposes for which any person may sell or dispose of in any manner, whether or not for any consideration, or be in possession of or use, any goods contemplated in this section;
(v) any invoice to be issued, the particulars on such invoice, the person who shall keep such invoice or copy thereof, the persons who are required to complete and keep books, accounts and other documents, the form in which they shall be kept, the particulars to be reflected therein and the period for which they are required to be kept;
(vi) restrictions in respect of the removal and export of any goods to which this section applies;
(vii) all matters which are required or permitted in terms of this section to be prescribed by rule;
(viii) any other matter which the Commissioner may consider necessary and useful to regulate the lawful and prevent the unlawful distribution and consumption of any goods to which this section applies.
(e)
(i) No goods referred to in paragraph (a)(i) shall be used for any other purpose than that for which they are removed from a customs and excise warehouse and in accordance with the conditions imposed by the Commissioner and those prescribed in the rules, except with the prior permission of the Commissioner and on payment of the duties leviable in terms of Schedule No. 1 in respect of unmarked goods: Provided that if the Commissioner so permits, the goods may be mixed or blended with other goods in which case the provisions of subsection (7) shall mutatis mutandis apply to such goods.
(ii) If any goods referred to in paragraph (a)(i) are dealt with contrary to the provisions of this section and the rules, any person who had possession or control of such goods at the time they were so dealt with, shall, in addition to any other liability incurred in terms of this Act, be liable in respect of such goods for payment of an amount calculated on the same basis as provided in subsection (4)(b).
(10) No person shall be entitled to any compensation for any loss or damage arising out of any bona fide action of an officer or any person who assists him under the provisions of this section.
(11) The provisions of section 44A shall mutatis mutandis apply in respect of the liability incurred by any person in terms of this section.
37B. Provisions relating to the manufacture, storage, disposal and use of biofuel, biodiesel or bioethanol
(1) For the purposes of this Act, unless the context otherwise indicates –
39. Importer and exporter to produce documents and pay duties
(1)
(a) The person entering any imported goods for any purpose in terms of the provisions of this Act shall deliver, during the hours of any day prescribed by rule, to the Controller a bill of entry in the prescribed form, setting forth the full particulars as indicated on the form and as required by the Controller, and according to the purpose (to be specified on such bill of entry) for which the goods are being entered, and shall make and subscribe to a declaration in the prescribed form, as to the correctness of the particulars and purpose shown on such bill of entry.
[Paragraph (a) substituted by section 4 of Act 110 of 1979, section 19 of Act 59 of 1990 and section 29 of Act 45 of 1995]
(b) At the same time the said person shall deliver such duplicates of the bill of entry as may be prescribed or as may be required by the Controller and shall pay all duties due on the goods: Provided that the Commissioner may, on such conditions, including conditions relating to security, as may be determined by him, allow the deferment of payment of duties due in respect of such relevant bills of entry and for such periods as he may specify.
[Paragraph (b) amended by section 10 of Act 84 of 1987]
(c) The said person shall further produce the transport document or such other document in lieu thereof as may be approved by the Commissioner, invoices as prescribed, shipper’s statement of expenses incurred by him, copy of the confirmation of sale or other contract of purchase and sale, importer’s written clearing instructions, unless exempted by rule, and such other documents relating to such goods as the Controller may require in each case and answer all such questions relating to such goods as may be put to him by the Controller, and furnish in such manner as the Commissioner may determine such information regarding the tariff classification of such goods as the Commissioner may require.
[Paragraph (c) substituted by section 1 of Act 85 of 1968, section 1 of Act 93 of 1978, section 4 of Act 110 of 1979 and section 29 of Act 45 of 1995]
(cA) The Commissioner may, subject to such conditions as he may determine, allow the said person to produce in lieu of any document required to be produced in terms of paragraph (c), a document purporting to be a copy of any such document and obtained by means of microfilming or any other process, and which shall, subject to compliance with such conditions, for all purposes have all the effects of the original document concerned.
[Paragraph (cA) inserted by section 8 of Act 98 of 1980]
(d) The said person shall also, in respect of any such class or kind of goods as may be specified by the Commissioner by rule or any goods to which circumstances so specified apply, produce to the Controller for retention by him, such a sample as may be so specified and a true copy of any invoice or other document relating to such goods or of any blueprint, illustration, drawing, plan or illustrated and descriptive literature so specified in respect of such goods and relating to such goods.
[Paragraph (d) substituted by section 1 of Act 85 of 1968]
(2)
(a) If any goods intended for export are liable to any export duty under this Act, the amount thereof shall be stated in the bill of entry relating to such goods and shall be payable upon presentation of such entry to the Controller.
(b) No such bill of entry shall be valid, nor shall any person export such goods, until the duty has been paid to the Controller.
(2A)
(a) Any person who removes goods from a customs and excise warehouse by means of the issuing of a certificate, invoice or other document referred to in section 38(4) shall present to the Controller a validating bill of entry in the prescribed form at the time and in the manner specified by rule in respect of any such certificate, invoice or other document, and shall pay at the prescribed time to the Controller the duty due on the goods to which such certificate, invoice or other document relates.
[Paragraph (a) substituted by section 29 of Act 45 of 1995]
(b) The said person shall present to the Controller such validating bill of entry setting forth the full particulars indicated thereon, and the declaration shall be duly signed by the prescribed person and there shall be as many duplicates and such supporting documents as may be prescribed or as may be required by the Controller.
[Subsection (2A) inserted by section 14 of Act 105 of 1969]
(2B) The Commissioner may specify the documents to be produced by the exporter upon entry for exportation in respect of any goods exported or any class or kind of goods exported or any goods exported in circumstances or to a destination specified by him.
[Subsection (2B) inserted by section 3 of Act 69 of 1988]
(3) The Commissioner may by rule specify the manner in which bills of entry for goods of any such class or kind as may be specified in such rule, or goods imported or exported in such manner or such circumstances as may be so specified, shall be delivered.
[Subsection (3) substituted by section 1 of Act 85 of 1968]