Category: Customs and Excise Act No. 91 of 1964

“Fuel” definition of section 64F of Customs Act

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‘fuel’ means any goods classifiable in any item of Section A of Part 2 of Schedule No. 1 liable to excise duty and goods classifiable in any item of Part 5 of Schedule No. 1 liable to fuel levy, used as fuel.

(2)    

(a)     No person, except a licensee of a customs and excise warehouse, who removes to any other country in the common customs area or exports any fuel, which has been entered or is deemed to have been entered shall be entitled to any refund of duty unless such person is a licensed distributor as contemplated in this section.

(b)     Application for such a licence shall be made on the form prescribed by the Commissioner by rule and the applicant shall comply with all the requirements specified therein and with any additional requirement that may be prescribed in any other rule and as may be determined by the Commissioner in each case.

(c)     Before any licence is issued the applicant must furnish security as contemplated in section 60(1)(c): Provided that the Commissioner may, on good cause shown, to the extent considered reasonable in each case, exempt any person from furnishing such security or reduce the amount of such security.

(3)    

(a)     In addition to any other provision of this Act relating to refunds of duty, any refund of duty contemplated in this section shall be subject to compliance with the requirements specified in the item of Schedule No. 6 providing for such refund and any rule prescribing any requirement in respect of the movement of such fuel to any such country or for export.

(b)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may pay any such refund at such intervals for such periods and on such conditions as may be prescribed by rule.

(4)     The Commissioner may make rules –

(a)     prescribing the forms to be completed and the procedures to be followed and other requirements to be observed for the purposes of administering the provisions of this section and the provisions for a refund of duty in Schedule No. 6;

(b)     in respect of all matters which are required or permitted in terms of this section to be prescribed by rule;

(c)     in respect of any other matter which is necessary to prescribe and useful to achieve the efficient and effective administration of this section.

(5)    

(a)    

(i)      Any person who in any application for a refund of duty in terms of the provisions of Schedule No. 6 makes a false statement shall be guilty of an offence and liable on conviction to a fine not exceeding R100 000 or double the amount of any duty refunded as a result of the false statement for refund, whichever is the greater, or to imprisonment for a period not exceeding 10 years, or both such fine and imprisonment and the fuel in respect of which the offence has been committed shall be liable to forfeiture under this Act.

(ii)     For the purposes of subparagraph (i), any forfeiture amount in respect of such fuel shall be calculated on the basis of the usual retail price thereof on the date the false statement was submitted or on the date of assessment of such amount, whichever is greater.

[Section 64F inserted by section 108 of Act 74 of 2002]

“Goods of the same class or kind” definition of section 65(9) of Customs Act

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“goods of the same class or kind”, in relation to imported goods, means goods produced by a particular industry or industry sector in the country from which the imported goods were exported, and falling within the same group or range of goods as the imported goods;

“Holder” definition of section 49 of Customs Act

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“holder” means the person in whose name the binding origin determination is issued.

(b)     A binding origin determination may be issued by the Commissioner on the written request of an applicant in respect of goods –

(i)      imported from a country or countries or group of countries with which agreements have been concluded as contemplated in this section providing for preferential rates of duty on such goods; and

(ii)     for which certificates of origin have been issued by, or invoice declarations made by an exporter approved by, the customs authorities of the country or countries or group of countries concerned.

(c)     A binding origin determination favourable to the holder shall be annulled by the Commissioner if after due enquiry he finds that it was issued on the basis of incorrect or incomplete information.

(d)     Such annulment shall take effect from the date the determination was made and the holder shall be notified of the annulment.

(e)     A binding origin determination shall be binding on the Commissioner as against the holder only in respect of –

(i)      the determination of the origin of goods for the purposes of the agreement concerned; and

(ii)     goods which are entered as required in terms of section 38(1) after the date on which such determination was supplied by the Commissioner.

(f)     A binding origin determination shall be valid for a period of three years from the date of issue, but shall cease to be valid where –

(i)      the binding determination no longer conforms to the provisions of the agreement or this Act on which it is based as a result of any amendment of such provisions;

(ii)     subject to the right of appeal in terms of subsection (7), the Commissioner withdraws it as provided in paragraph (b)(ii) of the said subsection;

(iii)    it is no longer compatible with –

(aa)   any interpretation of the provisions of such agreement in respect of the goods in question in the originating country;

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

(iv)    provided the holders is informed in advance, it is revoked or amended in the following circumstances:

(aa)   Except in the case referred to in paragraph (c), the Commissioner shall revoke or amend any determination favourable to the holder if any one or more of the conditions imposed for its issue were not or are no longer fulfilled;

(bb)   the Commissioner may revoke any determination favourable to the holder if such holder fails to fulfil any obligation imposed under such determination;

(cc)    the Commissioner may revoke or amend any determination –

(i)      if it was issued in error; or

(ii)     if it is unfavourable to the holder and for any reason the goods are subsequently proved to qualify for a favourable determination.

(g)     The date on which binding determination ceases to be valid shall be –

(i)      in the case of paragraph (f)(i), the date any amendment to such agreement is enacted in this Act or in the case of any other provision of this Act, such provision is so amended; or

(ii)     in the case of paragraph (f)(iii)(bb), the date of the judgement and in the case of paragraph (f)(iii)(aa) the date of publication of such interpretation.

(h)    

(i)      Notwithstanding the provisions of paragraphs (f) and (g), if the Commissioner so permits, the holder of a binding origin determination may still use such determination for a period of six months from the date specified therein, or until the period of three years expires, whichever is the earlier date provided –

(aa)   such holder concluded binding contracts for the purchase or sale of the goods in question on the basis of such determination before any such date; and

(bb)   such determination is used solely for determining import duties.

(ii)     Any holder who wishes to make use of the possibility of invoking such determination as provided in subparagraph (i), shall notify the Commissioner and provide the necessary supporting documents to enable a check to be made whether the conditions specified in the said subparagraph (i) have been satisfied.

(9)     Notwithstanding anything to the contrary in this Act contained –

(a)     where any importer who imports any goods which are claimed to have the originating status to qualify for any preferential rate of duty specified in Part 1 of Schedule No. 1 is for any reason unable to produce at the time of entry as contemplated in section 39 any certificate of origin or invoice declaration or other document confirming the originating status of such goods as provided in any agreement contemplated in this section, such goods shall, irrespective of whether a binding origin determination has been issued in respect thereof –

(i)      be entered for storage in a licensed customs and excise storage warehouse; or

(ii)     with the prior approval of the Controller and on such conditions as the Controller may impose, be entered for customs duty purposes as if such preferential rate applies, subject to the furnishing of a provisional payment or other security approved by the Controller for the amount of the general rate of duty specified in the said Part 1 payable thereon,

pending production of such certificate of origin or invoice declaration or other document confirming the originating status of such goods;

(b)     if such certificate of origin or invoice declaration or other document confirming originating status is not furnished within the time specified by the Controller, duty shall be payable at the general rates of duty specified in Part 1 of Schedule No. 1 in respect of the goods concerned.

(10)   Notwithstanding anything to the contrary contained in this Act, the Commissioner may, for the purposes of administering any provision of any agreement relating to customs administration which is not enacted into law as contemplated in this section –

(a)   decide on or determine any matter, perform any duty or function, exercise any power or impose any condition in connection with a provision so administered; and

(b)    make rules concerning any matter contemplated in paragraph (a);

[Subsection (10) added by section 12 of Act 9 of 2007]

[Section 49 substituted by section 3 of Act 7 of 1974, section 12 of Act 27 of 1997, section 65 of Act 30 of 1998 and section 55 of Act 53 of 1999]

“Identical goods” definition of section 65(9) of Customs Act

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“identical goods”, in relation to imported goods, means goods produced in the same country and by the same or a different producer as the imported goods and which are the same in all respects, including physical characteristics, quality and reputation but excluding minor differences in appearance, as the imported goods, but does not include goods incorporating or reflecting engineering, development work, art work, design work, plans or sketches undertaken in the Republic;

“Licensed distributor” definition of section 64F of Customs Act

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‘licensed distributor’ means any person who –

(a)     is licensed in accordance with the provision of section 60 and this section;

(b)     obtains at any place in the Republic for delivery to a purchaser in any other country of the common customs area for consumption in such country or for export (including supply as ships’ or aircraft stores), fuel, which has been or is deemed to have been entered for payment of excise duty and fuel levy, from stocks of a licensee of a customs and excise manufacturing warehouse; and

(c)     is entitled to a refund of duty in terms of any provision of Schedule No. 6 in respect of such fuel which has been duly delivered or exported as contemplated in paragraph (b);