Category: Chapter V – Clearance and origin of goods; liability for and payment of duties (Customs Act)

Section 38A (Customs Act) – Special provisions in respect of storage and clearance and release of stores or spares and equipment supplied to foreign-going ships and aircraft

Posted on by admin_kmos

38A. Special provisions in respect of storage and clearance and release of stores or spares and equipment supplied to foreign-going ships and aircraft

(1)

(a)     This section applies to stores or spares and equipment –

(i)      stored in a licensed special customs and excise storage warehouse contemplated in section 21(1) and supplied by the licensee; or

(ii)     if goods in free circulation, supplied by any person, including a person who is the licensee of such warehouse (referred to in this section as the ‘exporter’), to foreign-going ships or aircraft.

(b)     Notwithstanding anything to the contrary contained in this Act, stores or spares and equipment free of duty may be stored in such a warehouse as may be prescribed by rule.

(c)     Unless otherwise specified by rule, stores or spares and equipment in such a warehouse may only be removed and delivered by the licensee.

(d)     Except as otherwise provided in this section or any rules made thereunder, any provision relating to a special customs and excise storage warehouse contemplated in section 21(1) and of sections 18A, 38, 59A, 60, 64E and 101 shall, as may be applicable, apply mutatis mutandis to the storage in, and the removal of goods from, such warehouse.

(e)

(i)      In this section and any provision of any Schedule or rule relating to stores or stores or spares and equipment for foreign-going ships or aircraft, ‘foreign-going ship’, ‘foreign-going aircraft’, ‘goods in free circulation’, ‘spares and equipment’, ‘stores’ and any other expression required to be defined shall, unless the context otherwise indicates, have the meaning assigned thereto in the rules for this section.

(ii)     In this section, unless the context otherwise indicates, ‘goods’ means the ‘stores or spares and equipment’ contemplated in this section.

(2)

(a)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may by rule permit the licensee of such a warehouse or an exporter to supply goods to foreign-going ships or aircraft on the issuing by that licensee or exporter of a dispatch and delivery note or such other document as the Commissioner may prescribe or approve by rule, if the licensee or exporter-

(i)           . . . . . . ;

[Subparagraph (i) deleted by section 13 of Act 21 of 2021 effective on 19 January, 2022]

(ii)     for the purpose of electronic communication with the Commissioner, is a registered user in accordance with the provisions of section 101A and the rules made thereunder;

(iii)    complies with such conditions as the Commissioner may prescribe generally by rule or require in a specific instance; and

(iv)    keeps such books, accounts or other documents or data created by a computer of goods received, including goods returned, and removals as the Commissioner may prescribe generally by rule or require in a specific instance.

(b)     Any document issued by the licensee or exporter as contemplated in paragraph (a) shall, for the purpose of section 20(4) and subject to paragraph (c), be deemed to be due entry for export from the time of removal of such goods from the special customs and excise storage warehouse or the place from where the goods in free circulation are exported, as the case may be.

(c)

(i)      Any licensee who removes such goods from such a warehouse, or an exporter who exports such goods, by means of the issuing of a dispatch and delivery note or other document referred to in paragraph (a) shall deliver to the Controller a validating bill of entry export declaring those goods at the time, in the manner and containing such particulars as may be specified by rule in respect of such dispatch and delivery note or other document.

(ii)     Where any goods for which such a dispatch and delivery note or other document is issued is lost, destroyed, stolen or damaged after removal the licensee or exporter must at the same time pay the duty due on the goods.

(3)     The Commissioner may –

(a)     permit the return of stores or spares and equipment supplied by the licensee or exporter as contemplated in this section to the licensed premises or other place, as the case may be;

(b)     require the submission of dispatch and delivery notes or other documents electronically by such a person or class of persons in respect of such goods, in such circumstances and on such conditions and subject to compliance with such procedures as may be prescribed by rule.

(4)     The Commissioner may by rule prescribe for the purposes of this section or section 21(1)-

(a)     definitions as contemplated in subsection (1);

(b)     goods to which this section relates and any requirement to control the storage, removal and return of such goods;

(c)

(i)      the form of and the particulars to be slated on the dispatch and delivery note, any invoice or other document;

(ii)     the documents that must accompany the movement in each case of any stores, spares and equipment when removed for delivery by the licensee or exporter;

(d)     books, accounts and other documents and data to be kept;

(e)     all matters required or permitted by this section to be prescribed by rule;

(f)     any other matter which the Commissioner may consider reasonably necessary and useful for the effective administration of the provisions contained in this section.

[Section 38A inserted by section 28 of Act 18 of 2009]

Section 38 (Customs Act) – Entry of goods and time of entry

Posted on by admin_kmos

38. Entry of goods and time of entry

(1)    

(a)     Every importer of goods shall within seven days of the date on which such goods are, in terms of section ten deemed to have been imported except in respect of goods in a container depot as provided for in section 43(1)(a) or within such time as the Commissioner may prescribe by rule in respect of any type of cargo, means of carriage or any person having control thereof after landing, make due entry of those goods as contemplated in section 39: Provided that, subject to the permission of the Controller-

(i)      containers temporarily imported;

(ii)     human remains;

(iii)    goods which in the opinion of the Commissioner are of no commercial value;

(iv)    goods imported under an international carnet; and

(v)     goods of a value for duty purposes not exceeding R500, and on which no duty is payable in terms of Schedule No. 1,

[Paragraph (a) amended by section 5 of Act 71 of 1975, by section 123(a) of Act 60 of 2001 and by section 9 of Act 16 of 2022]

need not be so entered.

[Paragraph (a) amended by section 5 of Act 71 of 1975 and section 123 of Act 60 of 2001]

(aA)  The Commissioner may, in respect of dutiable goods imported by air of a value for duty purposes not exceeding R500 and for which immediate clearance is requested, allow a licensee of any premises licensed under the provisions of this Act to remove such goods for home consumption and to pay the duties due at such time on compliance with such conditions as the Commissioner may specify by rule and impose in each case.

[Paragraph (aA) inserted by section 123 of Act 60 of 2001]

(b)    

(i)      Any importer may, at any place appointed under the provisions of this Act for the entry of goods, make such entry of goods which have been loaded on a ship or delivered to the carrier which conveys the goods by vehicle to the Republic for discharge at that place, notwithstanding the fact that such ship or vehicle has not yet arrived at that place.

(ii)     If any goods referred to in subparagraph (i) have not been so loaded at the time of entry as provided in section 45(2), the importer shall be guilty of an offence and those goods shall be deemed not to have been entered.

[Paragraph (b) substituted by section 18 of Act 59 of 1990]

(2)     ……….

[Subsection (2) substituted by section 18 of Act 59 of 1990 and deleted by section 123 of Act 60 of 2001]

(3)    

(a)     Every exporter of any goods shall, before such goods are exported from the Republic, deliver, during the hours of any day prescribed by rule, to the Controller a bill of entry in the prescribed form, but the Commissioner may –

(i)      if no export duty is payable on and no obligation or condition is to be fulfilled or complied with under any law in respect of such goods; or

(ii)     in the case of goods to be exported overland by way of a vehicle (excluding an aircraft and a train) which are loaded for export at a place other than a place appointed under section 6 where goods may be entered for customs and excise purposes,

allow such a bill of entry to be delivered at such time as he deems reasonable.

[Paragraph (a) amended by section 18 of Act 59 of 1990 and section 28 of Act 45 of 1995]

(b)     For the purposes of paragraph (a), in relation to the delivery of a bill of entry, the goods referred to therein shall be deemed to have been exported from the Republic –

(i)      in the case of goods to be exported in a ship, at the time when such goods are delivered to the port authority, a depot operator, the master of the ship concerned or a container operator, as the case may be;

[Subparagraph (i) substituted by section 28 of Act 45 of 1995]

(ii)     in the case of goods to be exported in an aircraft, at the time when such goods are delivered to the pilot of the aircraft concerned or are brought within the control area of the airport authority concerned, as the case may be;

(iii)    in the case of goods to be exported in a train, at the time when such goods are delivered to the railway authority;

[Subparagraph (iii) substituted by section 28 of Act 45 of 1995]

(iv)    in the case of goods to be exported overland in a vehicle (excluding an aircraft and a train), subject to the provisions of paragraph (a), at the time when such goods are loaded on the vehicle concerned.

[Subsection (3) substituted by section 2 of Act 89 of 1983]

(4)    

(a)     The Commissioner may by rule permit any excisable goods or fuel levy goods and any class or kind of imported goods, which he may specify by rule, to be removed from a customs and excise warehouse on the issuing by the owner of such goods of a prescribed certificate or an invoice or other document prescribed or approved by the Commissioner, and the payment of duty on such goods at a time and in a manner specified by rule, and such certificate, invoice or other document, shall for the purposes of section 20(4), and subject to the provisions of section 39(2A), be deemed to be a due entry from the time of removal of those goods from the customs and excise warehouse.

[Paragraph (a) substituted by section 9 of Act 84 of 1987, section 18 of Act 59 of 1990 and section 28 of Act 45 of 1995]

(b)     No such goods may be removed from a customs and excise warehouse or appropriated for use by the owner prior to or without the issuing of such certificate, invoice or other document.

[Subsection (4) substituted by section 13 of Act 105 of 1969]

(5)

(a)     Notwithstanding anything to the contrary contained in this Act, the Commissioner may by rule permit the removal of any dutiable imported goods from a licensed customs and excise storage warehouse on the issuing by the licensee of such warehouse of a certificate, an invoice or such other document as the Commissioner may prescribe or approve by rule, if-

(i)      both the licensee of the customs and excise storage warehouse and the importer of the goods are accredited in terms of section 64E;

(ii)     the licensee of the storage warehouse and the importer of the goods both comply with such conditions as the Commissioner may prescribe generally by rule or determine in a specific instance;

(iii)    the licensee of the warehouse keeps such accounts or records of such receipts and removals as the Commissioner may require;

(iv)    the goods are removed from the warehouse for home consumption or such other purpose as the Commissioner may allow; and

(v)     the duty on such goods is paid at the time and in a manner specified by rule.

(b)     Any document referred to in paragraph (a) and issued by a licensee contemplated in that paragraph shall, for the purposes of section 20(4), and subject to the provisions of section 39(2A), be deemed to be a due entry from the time of removal of those goods from the customs and excise storage warehouse.

[Subsection (5) inserted by section 38 of Act 60 of 2008 – commencement date of subsection (5) to be proclaimed]

(6)

(a)     Notwithstanding anything to the contrary contained in this Act, if liquid bulk goods, as may be prescribed by rule, are stored in a special customs and excise storage warehouse licensed as contemplated in section 21(3), the licensee of that warehouse may, subject to compliance with such conditions and procedures as the Commissioner may prescribe by rule, deduct from the quantity received in the warehouse, the actual losses arising from the storage in or removal of goods from that warehouse.

(b)     Notwithstanding paragraph (a), the Minister may determine a maximum percentage loss in respect of any class or kind of such goods by notice in the Gazette.

[Subsection (6) inserted by section 38 of Act 60 of 2008 – commencement date of subsection (6) to be proclaimed]

Section 54 (Customs Act) – Special provisions regarding the importation of cigarettes

Posted on by admin_kmos

54. Special provisions regarding the importation of cigarettes

 

(1)     The Commissioner may prescribe by rule-

 

(a)     the sizes and types of containers in which cigarettes may be imported into the Republic;

(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 imported cigarettes;

(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 43 of Act 45 of 1995 and section 141 of Act 45 of 2003]

 

(2)     No person may import any cigarettes unless-

 

(a)     if entered for home consumption, a stamp impression determined by the Commissioner has been made on their containers; or

(b)     if entered for storage in a customs and excise warehouse for export such stamp impression does not appear on the containers; and

(c)     the cigarettes otherwise comply with the requirements prescribed by rule.

[Subsection (2) substituted by section 141 of Act 45 of 2003]

 

(3)     No imported cigarettes shall be sold or disposed of or removed from the customs and excise warehouse concerned except in accordance with the provisions of this Act.

 

(a)     No cigarettes in containers bearing the stamp impression referred to in subsection (2), may be entered for removal in bond as contemplated in section 18 for transit through the Republic.

(b)     Any cigarettes in containers bearing such stamp impression so entered for removal in bond shall be liable to forfeiture in accordance with the provisions of this Act.

[Subsection (4) inserted by section 19 of Act 32 of 2005]

[Section 54 amended by section 3 of Act 85 of 1968 and substituted by section 13 of Act 112 of 1977]

Section 50 (Customs Act) – Provisions relating to the disclosure of information in terms of agreements

Posted on by admin_kmos

50. Provisions relating to the disclosure of information in terms of agreements

 

(1)     Notwithstanding the provisions of section 4(3) or any other law relating to confidentiality or secrecy, but subject to section 101B, the Commissioner may, in accordance with-

 

(a)     any international agreement in respect of mutual administrative assistance and cooperation or exchange of information in customs matters which is in force and binds the Republic in terms of section 231 of the Constitution of the Republic of South Africa, 1996, hereinafter referred to as the ‘Constitution’; or

(b)     any other international agreement which is in force and binds the Republic in terms of section 231 of the Constitution, and in circumstances where the Commissioner is on good cause shown, satisfied that the international or regional interest or national public interest in the disclosure of information outweighs any potential harm to the person, firm or business to whom or to which such information relates-

(i)      disclose, or for the purpose of paragraph (a), in writing authorise any officer to disclose, any information relating to any person, firm or business acquired by an officer in carrying out any duty under this Act;

(ii)     render mutual and technical assistance in accordance with any agreement contemplated in paragraph (a); and

(iii)    in writing authorise any officer to exercise any power under this Act which may be considered necessary for the purpose of rendering such assistance or obtaining such information.

 

(2)

 

(a)

(i)      If any agreement referred to in subsection (1)(a) provides for the automatic exchange of information of the cross-border movement of means of transport, goods and persons the Commissioner may determine the information, including the  contents of any documents relating to clearance declarations for such movement, that will be allowed to be disclosed as contemplated in subsection(1)(b)(i).

(ii)     Notwithstanding subsection (1) and subparagraph (i), the Commissioner may not disclose information in terms of this section where any of the grounds for refusal referred to in Chapter 4 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), applies except if disclosure is authorised for the purposes contemplated in section 46 of that Act.

(b)     For the purposes of this subsection automatic exchange of information may include the systematic supply of clearance information in terms of the agreement by the customs authority of the sending party to the customs authority of the receiving party in an agreed electronic or other structured format in advance of the arrival of the persons, goods or means of transport in the territory of the receiving party.

(c)     Any information automatically exchanged shall be treated as confidential by the receiving party and may only be used for the purposes of risk analysis by the customs authority of that party except if the party providing the information in writing authorises its use for other purposes or by other authorities in terms of the provisions of the agreement regulating the exchange of such information.

(d)     The Commissioner may, in respect of the automatic exchange of information-

(i)      authorise the use for other purposes or by other authorities of the information provided by the other party to the agreement as contemplated in paragraph (c);

(ii)     specify conditions on which any information will be exchanged and on which it may be used for any other purpose or by any other authority;

(iii)    refuse the exchange of information with a party to any agreement if the information will not be afforded in the territory of that party a level of protection that satisfies the requirements of this Act.

(e)     For the purposes of this subsection any reference to the ‘Commissioner’ includes any officer contemplated in subsection (1)(b).

 

(3)     The Commissioner may for the purposes of subsection (1)(b)-

 

(a)     disclose information or authorise disclosure to a person authorised to act on behalf of any international agency, institution or organisation with which an agreement has been entered into with the Republic; and

(b)     specify the purpose for which such disclosure is authorised and the manner in which or the conditions under which such disclosure is to be made.

 

(4)     The Commissioner may make rules in respect of any matter which the Commissioner reasonably considers to be necessary and useful to achieve the efficient and effective administration of this section.

[Section 50 repealed by section 4 of Act 7 of 1974, inserted by section 66 of Act 30 of 1998 and substituted by section 105 of Act 74 of 2002 and section 50 of Act 44 of 2014 effective on 20 January 2015]

Section 45 (Customs Act) – Determination of duty applicable

Posted on by admin_kmos

45. Determination of duty applicable

 

(1)    

 

(a)     Notwithstanding anything to the contrary in this Act contained, all goods consigned to or imported into the Republic or stored or manufactured in a customs and excise warehouse or removed in bond shall upon being entered for home consumption be liable to such duties (including anti-dumping duties, countervailing duties and safeguard duties specified in Schedule No. 2 and new or increased duties referred to in section 58(1) and duties imposed under the provisions of section 53 as may at the time of such entry be leviable upon such goods.

[Paragraph (a) substituted by section 1 of Act 61 of 92]

 

(b)     Notwithstanding the provisions of paragraph (a) but subject to the provisions of section 40, any dutiable goods imported into or manufactured in the Republic and which were removed, taken or delivered without due entry for home consumption having been made in respect of such goods, shall be liable to such duties as may be leviable upon such goods at the time of such removal, taking or delivery or at the time of assessment by an officer, whichever yields the greater amount of duty.

[Subsection (1) substituted by section 9 of Act 112 of 1977 and section 6 of Act 101 of 1985]

 

(2)     For the purposes of this section, the time of entry for home consumption of –

 

(a)     goods imported by post (and not entered at a customs and excise office before a Controller) shall be deemed to be the time when such goods are assessed for duty; and

(b)     goods imported otherwise shall be deemed to be the time when the bill of entry concerned is delivered to the Controller in terms of section 39 (1)(a) and at a place indicated by the Controller, irrespective of whether that bill of entry is returned by the Controller in order to be adjusted as required by the Controller, provided it is redelivered, so adjusted, to the Controller within five days calculated as prescribed by rule, after the day on which it was so returned by the Controller.

[Paragraph (b) substituted by section 35 of Act 45 of 1995]

 [Subsection (2) substituted by section 7 of Act 86 of 1982]