Category: Section 49 (Customs Act) – Agreements in respect of rates of duty lower than general rates of duty and other agreements providing for matters requiring customs administration

Section 49 (Customs Act) – Agreements in respect of rates of duty lower than general rates of duty and other agreements providing for matters requiring customs administration

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49. Agreements in respect of rates of duty lower than general rates of duty and other agreements providing for matters requiring customs administration

[Heading substituted by section 24 of Act 34 of 2004]

(1)    

(a)     Whenever any international agreement which binds the Republic as contemplated in section 231 of the Constitution of the Republic of South Africa, 1996, is an agreement –

(i)      which includes the granting of preferential tariff treatment of goods and provisions of origin governing such treatment;

(ii)     concerning customs co-operation, including for the exchange of information and the rendering of mutual and technical assistance in respect of customs co-operation;

[Subparagraph (ii) substituted by section 12 of Act 36 of 2007]

(iii)    regulating transit trade and transit facilities; or

(iv)    which is a customs union agreement with the government of any territory in Africa;

[Subparagraph (iv) substituted by section 46 of Act 30 of 2002]

(v)     which provides for any other matter which either expressly or by implication requires to be administered by customs legisation;

[Subparagraph (v) added by section 46 of Act 30 of 2002]

such agreement or any protocol or other part or provision thereof is enacted into law as part of this Act when published by notice in the Gazette in accordance with the provisions of subsections (1) and (1A) of section 48 or subsection (5) or (5B) of this section.

[Paragraph (a) amended by section 60 of Act 30 of 2000, section 127 of Act 60 of 2001 and section 12 of Act 9 of 2007]

(b)    

(i)      Any amendment of such agreement or any protocol or other part or provision thereof, any regulations for facilitating implementation, any agreed list of processing relating to originating status of goods, any annex or appendix or other addition to such agreement or protocol or any other matter agreed upon between governments or by any committee of, or a body established by, the parties to such agreement or any decision or condition imposed by such committee or body, is likewise enacted into law as part of this Act when published in accordance with the provisions of subsections (1) and (1A) of section 48 or subsection (5) or (5B) of this section by notice in the Gazette as an amendment of such agreement or protocol or part or provision, as the case may be, with effect from any date that may be specified in such notice.

[Subparagraph (i) substituted by section 60 of Act 30 of 2000 and section 46 of Act 30 of 2002]

(ii)     In this section and in section 48 “instrument” includes, according to the context, any agreement or any amendment of such agreement or any protocol or other part or provision thereof or any document containing any regulation, list, decision or any matter agreed upon as contemplated in subparagraph (i).

(c)     In this section and in sections 47 and 48 “agreement” includes, unless the context otherwise indicates, any international agreement, treaty or convention.

[Paragraph (c) substituted by section 127 of Act 60 of 2001]

(2)    

(a)     The Commissioner shall obtain and keep two copies of such agreement, effect any amendments referred to in section 1 (b) thereto, record the date the agreement or any such amendment entered into force and the date of any publication referred to in subsection (1).

(b)     Whenever in any legal proceedings any question arises as to the contents of such agreement or as to the date on which such agreement or amendment entered into force or the date of such publication, a copy of such agreement as so amended and the record of such dates, shall be accepted as sufficient proof of the contents thereof and the date of publication or the date on which such agreement or amendment entered into force.

(c)     If the context so requires, the interpretation and application of any provision of any protocol or other part of such agreement referred to in this section or section 48(1A) shall be subject to other applicable provisions of such agreement.

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

(a)     the application of any provision of this Act relating to any importer, exporter, remover in bond, manufacturer, licensee or other principal or any agent or the importation or exportation of goods, the preferential tariff treatment of goods, goods obtained, produced or manufactured, goods in transit or removed in bond, due entry or security in respect of goods imported, exported, removed in bond or in transit, or any other provision or customs procedure or any power, duty or function in connection therewith, shall, for the purposes of giving effect to any agreement contemplated in section 49 or any protocol or other part or provision thereof, be subject to compliance with the provisions of such agreement or such protocol or other part or provision thereof, as the case may be;

(b)     any reference in this Act to any protocol or other part or provision of such agreement shall be deemed to include a reference to any instrument referred to in section 49 (1)(b) applicable thereto and any provision of such agreement governing such protocol or other part or provision or instrument, as the case may be.

(4)    

(a)     If any reference is made in such agreement to any convention, treaty or other agreement which is to be observed in ascertaining the originating status of goods obtained, produced or manufactured and imported or exported in specified instances, the Commissioner shall obtain and keep two copies of such convention, treaty or agreement, effect any amendment thereto and record the date the convention, treaty or agreement entered into force as advised by the Director-General: Trade and Industry.

(b)     The provisions of subsection (2)(b) shall apply mutatis mutandis to the copies of such convention, treaty or other agreement.

(c)     To the extent that any provision of such convention, treaty or other  agreement requires to be so observed, it shall be deemed to be incorporated in the agreement concerned.

(5)     Where any such agreement or protocol or other part or provision thereof does not relate to the origin of goods as envisaged in section 48(1A), but otherwise by reference to customs or competent authorities or customs or domestic or national legislation or like expressions or in any other way expressly or by implication requires that it should be administered in terms of this Act, the Minister may by notice in the Gazette in Schedule No. 10 to this Act under the title “Agreement or protocols or other parts or provisions thereof contemplated in section 49 (5)” publish –

(a)     in separate parts of such Schedule, any such agreement or any protocol or other part or provision of such agreement, including any annexure or appendix thereto for the purposes of subsection (1)(a);

[Paragraph (a) substituted by section 24 of Act 34 of 2004]

(b)     any instrument contemplated in, and for the purposes of; subsection (1)(b);

(c)     notes to such Schedule No. 10 wherein may be specified –

(i)      definitions;

(ii)     interpretations of words and phrases or substitutes for words and phrases;

(iii)    any condition or procedure or provision of this Act to be complied with in order to give effect to such agreement or protocol or part or provision of such agreement;

(iv)    powers, duties or functions of the Commissioner or an officer;

(d)     any amendment of Schedule No. 10 and any note thereto with or without retrospective effect for any reason as may be specified in such amendment.

(5A)  The provisions of section 48(6) shall apply mutatis mutandis in respect of any amendment made under the provisions of subsection (5)(d).

(5B)  Notwithstanding the provisions of subsection (5), the Minister may include in any notice published under that subsection, the full text of any such agreement or protocol except any protocol or other part thereof, as the case may be, published under subsection 48(1A), and if so included, the whole agreement or protocol, as the case may be, shall be enacted into law as part of this Act as contemplated in subsection (1)(a).

[Subsection (5B) inserted by section 60 of Act 30 of 2000]

(6)     In administering the provisions of any agreement, including any protocol or other part or provision thereof or any other instrument contemplated in this section, and the application of any procedure to give effect thereto, the Commissioner may, notwithstanding anything to the contrary in this Act contained –

(a)     decide on or determine any matter or perform any duty or function or impose any condition in connection with the provisions so administered, including any decision on or determination or the performance of any duty or function or the imposing of any condition in respect of –

(i)      any heading in Part 1 or any item of any other Part of Schedule No. 1 applicable to any goods imported or exported, obtained, produced or manufactured or used in the production or manufacture of any goods, or the customs value of any such imported goods;

(ii)     the first ascertainable price of goods where the customs value is not known or cannot be ascertained;

(iii)    any provision which governs or specifies any procedure concerning –

(aa)    the origin or proof of origin of goods imported or exported;

(bb)   the importation or exportation or production or manufacture of goods and the ex-factory price of goods;

(cc)    tariff quotas;

(dd)   rendering mutual and technical assistance in respect of customs co-operation;

(ee)    transit carriage of goods, transit trade and transit facilities;

(ff)    requirements in connection with agency where any person is represented in the importation or exportation of any goods involving proof of origin or in any matter relating to the transit carriage of goods, transit trade or transit facilities;

(gg)   the approval of exporters to issue invoice declarations or withdrawal or refusal of such approval;

(iv)    any other power, duty or function or procedure provided in any such agreement or protocol or other part or provision thereof which requires either expressly or by implication customs administration action to give effect thereto;

(v)     the convention, treaty or agreement referred to in subsection (4);

(vi)    a binding origin determination and any procedure in connection therewith;

(b)     make rules –

(i)      concerning any matter referred to in paragraph (a), including such convention, treaty or agreement;

(ii)     where reference is made to customs or competent authorities, to domestic, national or customs law or any like reference or any other matter which requires either expressly or by implication application of customs legislation;

(iii)    in connection with the entry of goods imported or exported and documents to be produced in support thereof;

(iv)    to regulate the application, determination, entry of goods and other procedures in connection with binding origin determinations;

(v)     prescribing forms or procedures or specifying any condition or provision of this Act to be complied with to give effect to such agreement, protocol or other part or provision thereof;

(vi)    to delegate, subject to section 3(2), any power, duty or function to any officer or other person;

(vii)   regarding any other matter which may be necessary or useful for the purposes of administering such provisions;

(c)     subject to such conditions as the Commissioner may in each case impose, enter into any agreement with any person, with the concurrence of any exporter, producer or manufacturer, as the case may be, to perform any function or provide any service for the purposes of establishing and reporting on the origin of goods or issuance of any proof of origin to give effect to such agreement.

(7)    

(a)     Notwithstanding the provisions of section 47(9), 65(4) or 66(9), any determination of any heading or item or the customs value of goods imported shall, if such determination concerns goods used in the production or manufacture of any goods, or goods produced or manufactured therefrom, or any other goods, of which the origin is being determined, be made in terms of this section.

(b)     For the purposes of any appeal against a decision or determination of the Commissioner in administering any of the provisions referred to in this section –

(i)      any decision or determination shall, subject to appeal to court, be deemed to be correct for the purposes of this Act, and where any amount is payable in consequence thereof, such amount shall remain payable as long as such decision or determination remains in force: Provided that if it involves disputes with foreign customs authorities, the processes for dispute settlement provided in the agreement shall be followed;

(ii)     subject to the provisions of subsection (8), any decision or determination may be amended or withdrawn and a new decision or determination made from the date the decision or determination was given, but such a decision or determination shall mutatis mutandis be subject to the provisions of section 76B if any refund of duty is involved;

(iii)    an appeal against any such decision or determination shall be to the division of the High Court having jurisdiction to hear appeals in the area wherein the decision or determination was made or the goods in question were entered for home consumption or exported.

(c)     Such appeal shall, subject to section 96(1), be prosecuted within a period of one year from the date of the decision or determination.

(8)    

(a)     For the purposes of any binding origin determination, unless the context otherwise indicates –

“Binding origin determination” definition of section 49 of Customs Act

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“binding origin determination” means an origin determination binding on the Commissioner when it is issued to the applicant after compliance with the provisions of this subsection and the rules;

“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]