47. Payment of duty and rate of duty applicable
(1) Subject to the provisions of this Act, duty shall be paid for the benefit of the National Revenue Fund on all imported goods, all excisable goods, all surcharge goods, all environmental levy goods, all fuel levy goods and all Road Accident Fund levy goods in accordance with the provisions of Schedule No. 1 at the time of entry for home consumption of such goods: Provided that the Commissioner may condone any underpayment of such duty where the amount of such underpayment in the case of –
(a) goods imported by post is less than fifty cents;
(b) goods imported in any other manner is less than five rand; or
(c) excisable goods is less than two rand.
[Subsection (1) substituted by section 17 of Act 105 of 1969 and section 10 of Act 112 of 1977, amended by section 9 of Act 98 of 1980, section 15 of Act 84 of 1987, section 22 of Act 59 of 1990, section 37 of Act 45 of 1995 and section 63 of Act 30 of 1998 and substituted by section 138 of Act 45 of 2003 and section 90 of Act 31 of 2005 effective on 1 April 2006]
(2) ……….
[Subsection (2) deleted by section 9 of Act 98 of 1980, inserted by section 53 of Act 53 of 1999 and deleted by section 94 of Act 60 of 2008]
(3)
(a) Any rate of duty other than the general rate specified in respect of any heading or subheading in any column of Part 1 of Schedule No. 1 shall apply to imported goods to which such heading or subheading relates if such goods qualify for the benefit of such rate in accordance with –
(i) any provision of origin contained in any part of the schedule to the General Notes of Schedule No. 1 and any other provision referred to in section 48(1A) applicable to such column, any provision relating to tariff quotas, any applicable provision in the said Part 1 and any Note to such Part or schedule; and
(ii) any rule made in terms of section 49 to give effect to any provision of origin of any agreement contemplated in the said section or in connection with any tariff quotas or any other condition or procedure that may be applicable to any goods specified in the said column;
(b) The expression “any provision of origin” includes provisions relating to “originating products”, “originating status’, “rules of origin” or like expressions, and “goods obtained, produced or manufactured” in any part of the said schedule to the General Notes of Schedule No. 1 and, unless the context otherwise indicates, any provision in this Act in respect of the origin of goods.
(c) Any reference in any agreement contemplated in section 49 or 51 to the “most-favoured-nation-rate of duty” or the “MFN tariff” or the “MFN rate of duty” or like expressions shall, unless otherwise specified in Part 1 of Schedule No. 1, for the purposes of this Act, be deemed to be a reference to the rates of duty specified in respect of any heading or subheading in the column for general rates of duty in the said Part 1 of Schedule No. 1.
[Subsection (3) substituted by section 2 of Act 7 of 1974, amended by section 9 of Act 98 of 1980 and section 4 of Act 69 of 1988 and substituted by section 53 of Act 53 of 1999]
(4) ………..
[Subsection (4) substituted by section 9 of Act 98 of 1980 and deleted by section 4 of Act 69 of 1988]
(5) Any export duty which may become payable in terms of section 48 (4) shall be paid for the benefit of the National Revenue Fund, at the time of entry for export, on such goods as may be specified in Part 6 of Schedule No. 1 in terms of the provisions of the said section.
[Subsection (5) substituted by section 17 of Act 105 of 1969, section 10 of Act 112 of 1977, section 15 of Act 84 of 1987 and section 63 of Act 30 of 1998]
(6) Any duty payable in terms of section 53, any anti-dumping duty payable in terms of section 56, any countervailing duty payable in terms of section 56A and any safeguard duty payable in terms of section 57 shall be paid for the benefit of the National Revenue Fund in accordance with the provisions of the said sections.
[Subsection (6) substituted by section 8 of Act 86 of 1982, section 3 of Act 61 of 1992 and section 63 of Act 30 of 1998]
(7) To the extent that any goods, classifiable under any tariff heading or subheading of Part 1 of Schedule No. 1 that is expressly quoted in any tariff item, environmental levy item, fuel levy item, Road Accident Fund levy item or item of Part 2, 3, 5A, 5B or 6 of the said Schedule or in any item in Schedule No. 2, are specified in any such tariff item, environmental levy item, fuel levy item, Road Accident Fund levy item or item, the item concerned shall be deemed to include only such goods classifiable under such tariff heading or subheading.
[Subsection (7) substituted by section 17 of Act 105 of 1969, section 10 of Act 112 of 1977, section 15 of Act 84 of 1987, section 22 of Act 59 of 1990, section 126 of Act 60 of 2001, section 138 of Act 45 of 2003 and section 90 of Act 31 of 2005 effective on 1 April 2006]
(8)
(a) The interpretation of –
(i) any tariff heading or tariff subheading in Part 1 of Schedule No. 1;
(ii)
(aa) any tariff item or fuel levy item or item specified in Part 2, 3, 5, 6 or 7 of the said Schedule, and
[Item (aa) subtituted by section 16 of Act 14 of 2017 effective on 1 April 2018]
(bb) any item specified in Schedule No. 2, 3, 4, 5 or 6;
(iii) the general rules for the interpretation of Schedule No. 1; and
(iv) every section note and chapter note in Part 1 of Schedule No. 1,
shall be subject to the International Convention on the Harmonized Commodity Description and Coding System done in Brussels on 14 June 1983 and to the Explanatory Notes to the Harmonised System issued by the Customs Co-operation Council, Brussels (now known as the World Customs Organisation) from time to time: Provided that where the application of any part of such Notes or any addendum thereto or any explanation thereof is optional the application of such part, addendum or explanation shall be in the discretion of the Commissioner.
(b) The Commissioner shall obtain and keep in his office two copies of such Explanatory Notes and shall effect thereto any amendment of which he is notified by the said Council from time to time and shall record the date of effecting each such amendment and any such amendment shall, for the purposes of this Act, be effective from the date so recorded.
[Paragraph (b) added by section 3 of Act 10 of 2005 with effect from 12 December 2001]
(c) Whenever in any legal proceedings any question arises as to the contents of such Explanatory Notes or as to the date upon which any amendment thereto was effected, a copy of such Explanatory Notes as amended in terms of this subsection shall be accepted as sufficient evidence of the contents thereof and of the effective date of any amendment thereto.
[Paragraph (c) added by section 3 of Act 10 of 2005 with effect from 12 December 2001]
[Subsection (8) amended by section 11 of Act 95 of 1965, section 7 of Act 105 of 1976 and section 15 of Act 84 of 1987, substituted by section 126 of Act 60 of 2001 and amended by section 104 of Act 74 of 2002]
(9)
(a)
(i) The Commissioner may in writing determine –
(aa) the tariff headings, tariff subheadings or tariff items or other items of any Schedule under which any imported goods, goods manufactured in the Republic or goods exported shall be classified; or
(bb) whether goods so classified under such tariff headings, tariff subheadings, tariff items or other items of Schedule No. 3, 4, 5 or 6 may be used, manufactured, exported or otherwise disposed of or have been used, manufactured, exported or otherwise disposed of as provided in such tariff items or other items specified in any such Schedule.
[Subparagraph (i) substituted by section 6 of Act 68 of 1989 and section 126 of Act 60 of 2001]
(ii) The acceptance by any officer of a bill of entry or the release of any goods as entered shall be deemed not to be any such determination.
(iii) ………
[Subparagraph (iii) inserted by section 126(1)(c) of Act 60 of 2001 and deleted by section 14(a) of Act 33 of 2019]
(iv)
(aa) For the purposes of this subparagraph ‘alcoholic beverages’ means alcoholic beverages as contemplated in Chapter 22 of Part 1 of Schedule No. 1.
(bb) Notwithstanding anything to the contrary contained in this Act, every manufacturer or importer of an alcoholic beverage shall, irrespective of any existing tariff determination at the time this subparagraph comes into operation, apply for a tariff determination of that beverage in terms of this paragraph.
(cc) An application for a tariff determination shall be accompanied by-
(A) detailed information of the brand name, process of manufacture, the ingredients used, the proportion in which they are used, the alcoholic strength and such other particulars as the Commissioner may specify; and
(B) if applicable, a letter from the administering officer referred to in section 3 of the Liquor Products Act, 1989 (Act No. 60 of 1989), confirming that the alcoholic beverage complies with that Act.
(dd) Notwithstanding subsection (3) of section 4, but subject, with the necessary changes, to the proviso to subsection (3) and subsections (3A), (3C) and (3D) of that section, the Commissioner may disclose any information provided in terms of item (cc) to the Director General of the Department of Agriculture, Forestry and Fisheries.
(ee) After the date this subparagraph comes into operation, application for a tariff determination shall be made for an alcoholic beverage-
(A) before release of a clearance for home consumption of the first importation; or
(B) before removal from the excise manufacturing warehouse for any purpose in terms of this Act,
as may be applicable in respect of that alcoholic beverage.
(ff) The Commissioner may, for the purposes of implementation of this subparagraph, by rule-
(A) specify a period after the date this subparagraph comes into operation within which and the order in which an application for a tariff determination in respect of any class or kind of alcoholic beverage manufactured or imported shall be submitted; and
(B) prescribe any other matter as contemplated in subsection (13).
(gg) If, for any alcoholic beverage, the brand name, process of manufacture, any ingredient or the proportion in which it is used, or the alcoholic strength changes, application for a new tariff determination shall be made before release of a clearance for home consumption or before removal from the excise manufacturing warehouse for any purpose in terms of this Act, as may be applicable in respect of that alcoholic beverage.
(ggA) Notwithstanding anything to the contrary contained in this subparagraph or the rules in relation thereto, application for a tariff determination shall not be made in respect of bulk removals between excise manufacturing warehouses of alcoholic beverages classified under any subheading of heading 22.04 or 22.05 of Part 1 of Schedule No. 1.
[Item (ggA) inserted by section 14(b) of Act 33 of 2019]
(hh) This subparagraph may not be read as preventing any officer from performing any function contemplated in section 106.
[Subparagraph (iv) added by section 15 of Act 44 of 2014 effective on 20 January 2015]
(b)
(i) Whenever any determination is made under paragraph (a) or any determination is amended or withdrawn and a new determination is made under paragraph (d), any amount due in terms thereof shall, notwithstanding that such determination is being dealt with in terms of any procedure contemplated in Chapter XA or any proceedings have been instituted in any court in connection therewith, remain payable as long as such determination or amended or new determination remains in force: Provided that the Commissioner may on good cause shown, suspend such payment until the date of any final judgment by the High Court or a judgment by the Supreme Court of Appeal.
[Subparagraph (i) substituted by section 138 of Act 45 of 2003 and section 11 of Act 36 of 2007]
(ii) Such determination, amendment of a determination or new determination shall cease to be in force from the date –
(aa) of the amendment of or the withdrawal and insertion of any Schedule or any amendment of the Explanatory Notes as contemplated in subsection (8)(b) with the result that the said determination, amended determination or new determination no longer conforms to the interpretation of the relevant provisions of such Schedule or Explanatory Notes;
(bb) when it is no longer compatible with a final judgment by the High Court or a judgment by the Supreme Court of Appeal, from the date of such judgment; or
(cc) any amendment of a determination or new determination is made effective under paragraph (d) or as a result of the finalisation of any procedure contemplated in Chapter XA.
[Item (cc) substituted by section 138 of Act 45 of 2003 and section 11 of Act 36 of 2007]
[Paragraph (b) substituted by section 126 of Act 60 of 2001]
(c) Whenever a court amends or orders the Commissioner to amend any determination made under subsection (9)(a) or (d) or any determination is amended or a new determination is made under paragraph (d) or as a result of the finalisation of any procedure contemplated in Chapter XA, the Commissioner shall not be liable to pay interest on any amount refundable which remained payable in terms of the provisions of paragraph (b)(i) for any period during which such determination remained in force.
[Paragraph (c) substituted by section 63 of Act 30 of 1998, section 126 of Act 60 of 2001, section 138 of Act 45 of 2003 and section 11 of Act 36 of 2007]
(d)
(i) The Commissioner shall –
(aa) amend any determination or withdraw it and make a new determination with effect from the date it is no longer in force as provided in paragraph (b)(ii)(aa) or (bb);
(bb) except where a determination is being dealt with in terms of any procedure contemplated in Chapter XA, amend any determination or withdraw it and make a new determination if it was made in error or any condition or obligation on which it was issued is no longer fulfilled or on any other good cause shown including any relevant ground for review contemplated in section 6 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).
[Item (bb) substituted by section 138 of Act 45 of 2003]
[Item (bb) substituted by section 11 of Act 36 of 2007]
(ii) Any such amendment or new determination contemplated in paragraph (i)(bb) may be made with effect from –
(aa) subject to the provisions of section 44(11)(c), the date of first entry of the goods in question in circumstances where a false declaration is made for the purposes of this Act;
(bb) the date of first entry, if the determination was made –
(A) by an officer who was biased or reasonably suspected of bias; or
(B) for an ulterior purpose or motive, arbitrarily or capriciously or in bad faith;
(cc) subject to subsection (12), the date of the determination made under paragraph (a) in circumstances where such determination was made in bona fide error of law or of fact; or
(dd) the date of the amendment of the previous determination or the date of the new determination:
Provided that whenever any amendment of a determination or a new determination is effective from a date resulting in the person to whom the determination was issued –
(a) being entitled to a refund of duty, such refund shall be subject to the provisions of section 76B;
(b) retrospectively incurring an increased liability for duty, such liability shall, subject to the provisions of section 44(11)(c), be limited to goods entered for home consumption during a period of two years immediately preceding the date of such amendment or new determination.
[Paragraph (d) substituted section 126 of Act 60 of 2001]
(e) An appeal against any such determination shall lie to the division of the High Court of South Africa having jurisdiction to hear appeals in the area wherein the determination was made, or the goods in question were entered for home consumption.
[Paragraph (e) amended by section 53 of Act 53 of 1999]
(f) Such appeal shall, subject to section 96(1), be prosecuted within a period of one year from the date of the determination.
[Subsection (9) added by section 6 of Act 110 of 1979 and substituted by section 4 of Act 44 of 1996]
(10) Save where –
(a) a determination has been made under subsection (9)(a) or (d); or
(b) subject to section 44(11)(c), any underpayment arises from the circumstances contemplated in the proviso to section 44(11)(a),
[Paragraph (b) substituted by section 68 of Act 32 of 2004]
there shall be no liability for any underpayment in duty on any goods, where such underpayment is due to the acceptance of a bill of entry bearing an incorrect tariff heading, tariff subheading or tariff item or other item of any Schedule, after a period of two years from the date of entry of such goods.
[Subsection (10) added by section 6 of Act 110 of 1979 and substituted by section 126 of Act 60 of 2001]
(11)
(a) Notwithstanding the provisions of subsection (10), any determination made under subsection (9)(a) as a result of or during the course of or following upon an inspection of the books, accounts and other documents of an importer, exporter, manufacturer or user of goods, shall, subject to the provisions of section 44(11)(c), be deemed to have come into operation in respect of the goods in question entered for the purposes of this Act two years prior to the date on which the inspection commenced.
(b) The expression “inspection of any books, accounts and other documents”, or any other reference to an inspection in this Act shall be taken to include any act done by an officer in the exercise of any duty imposed or power conferred by this Act for the purposes of the physical examination of goods and documents upon or after or in the absence of entry, the issue of stop notes or other reports, the making of assessments and any pre- or post-importation audit, investigation, inspection or verification of any such books, accounts and other documents required to be kept under this Act.
[Subsection (11) added by section 6 of Act 52 of 1986 and substituted by section 126 of Act 60 of 2001]
(11A) Any determination made under subsection (9) shall operate-
(a) in respect of the person in whose name it is issued, the goods mentioned therein and in respect of identical goods entered by that person, whether before or after the date when the determination is issued; and
(b) subject to the provisions of sections 44(11)(c) and 76B and subsections (10) and (11).
[Subsection (11A) inserted by section 14(c) of Act 33 of 2019]
(12) [Subsection (12) has been added by section 126 of Act 60 of 2001 and will be put into operation by proclamation]
(13) The Commissioner may make rules in respect of –
(i) all matters which are required or permitted in terms of this section to be prescribed by rule;
(ii) any other matter which the Commissioner may consider reasonably necessary and useful for the purposes of administering the provisions of this section.
[Subsection (13) inserted by section 126 of Act 60 of 2001]