69. Value for excise duty purposes on any goods manufactured in the Republic
[Heading of section 69 substituted by section 94 of Act 35 of 2007 effective on 1 April 2012]
(1)
(a) For the purpose of assessing the excise duty on any goods manufactured in the Republic and specified in items 126.01, 126.02, 126.03, 126.04 and 126.05 of Section B of Part 2 of Schedule No. 1, the value thereof shall, subject to the provisions of this section, be taken to be the full and final market price (before deduction of any discounts other than cash discounts) at which, at the time of sale, such or similar goods are freely offered for sale, for consumption in the Republic, for purposes of trade in the principal markets of the Republic in the ordinary course of trade, in the usual wholesale quantities and in the condition and the usual packing ready for sale in the retail trade, to any merchant wholesaler in the Republic not deemed to be related as specified in section 66(2)(a) under fully competitive conditions, plus the cost of packing and packages and all other expenses incidental to placing the goods on any vehicle for delivery to the purchaser, plus any non-rebated excise duty payable in terms of Section A of Part 2 of Schedule No. 1 on such goods, but excluding the non-rebated excise duty payable in terms of Section B of Part 2 of Schedule No. 1 or any value-added tax payable on such goods: Provided that the Commissioner may, where such goods are not sold to such merchant wholesalers in the Republic or are so sold in quantities which he considers to be insignificant in relation to the total quantities of such goods sold in the Republic, regard any other class of purchaser of such goods as such a merchant wholesaler and may make such adjustment to the price charged by the manufacturer to such class of purchaser as he considers reasonable, having regard to the wholesale functions taken over by such manufacturer and such class of purchaser and to such other factors relating to such price as he may deem relevant.
[Paragraph (a) amended by section 3 of Act 105 of 1992, section 6 of Act 98 of 1993 and section 49 of Act 19 of 2001]
(b) Unless the context otherwise indicates, any reference in this Act to value for excise duty purposes in relation to goods manufactured in the Republic shall be deemed to be a reference to the value for excise duty purposes contemplated in this section.
[Paragraph (b) deleted by section 3 of Act 105 of 1992 and inserted by section 94 of Act 35 of 2007 effective on 1 April 2012]
(c) For the purpose of paragraph (a) the Commissioner may specify –
(i) the quantity which shall be deemed to be the usual wholesale quantity;
(ii) the packing which shall be deemed to be the usual packing ready for sale in the retail trade;
(iii) the cost of packing or packages or any other expenses incidental to placing the goods on any vehicle.
[Subparagraph (iii) substituted by section 6 of Act 98 of 1993]
[Paragraph (c) amended by section 49 of Act 19 of 2001]
(d) For the purposes of assessing the excise duty on any goods manufactured in the Republic and specified in any items of Section B of Part 2 of Schedule No. 1 other than those specified in paragraph (a) and contemplated in paragraph (dA), the value thereof shall be the “invoice price” which shall mean –
(i) the price paid or payable as contemplated in subsection (2)(b), and as the Commissioner may further prescribe by rule, for such goods when sold for home consumption in the ordinary course of trade, in the condition and the usual trade packing ready for sale in the retail trade, to any buyers not deemed to be related as specified in section 66(2)(a);or
(ii) where the buyers are deemed to be related as specified in section 66(2)(a), the price of the goods when sold at comparable trade and quantity levels to unrelated buyers at or about the same time as the sale to such related buyers;
[Paragraph (d) added by section 49 of Act 19 of 2001 and amended by section 145 of Act 45 of 2003]
(dA)
(i) The provisions of this paragraph apply to digital video discs (DVD’s), recorded compact discs, audio tapes and video tapes dutiable in terms of item 124.65 of Section B of Part 2 of Schedule No. 1.
(ii) Subject to such definitions, descriptions, limitations, adaptations and requirements as the Commissioner may prescribe by rule, the value for assessing the excise duty on such goods shall be in the case of-
(aa) recorded compact discs and audio tapes, the contract price of the manufacturer thereof to the retailer, plus, to the extent that may be prescribed in such rule, a maximum of 15 per cent of such price;
(bb) recorded video tapes and digital video discs (DVD’s), the manufacturer’s duplicating costs in respect of the duplication of such tapes and discs for a video distributor, plus, to the extent that may be prescribed in such rule, a maximum of 10 per cent of such costs;
(iii) The provisions of paragraph (d)(ii) shall, subject to the rules, apply mutatis mutandis in respect of any relationship as contemplated in that paragraph between the manufacturer and retailer referred to in subparagraph (ii)(aa) or the manufacturer and distributor referred to in subparagraph (ii)(bb).
[Paragraph (dA) inserted by section 145 of Act 45 of 2003]
(e) The invoice price contemplated in paragraph (d) shall –
(i) exclude the non-rebated excise duty payable in terms of Section B of Part 2 of Schedule No. 1 and any value-added tax payable on such goods;
(ii) be reduced by any deduction from such price as may be prescribed by the Commissioner by rule in respect of any goods specified in any such item of Section B of Part 2 of Schedule No. 1.
[Paragraph (e) added by section 49 of Act 19 of 2001]
(2)
(a)
(i) For the purpose of assessing the excise duty on any goods manufactured in the Republic and specified in Section A of Part 2 of Schedule No. 1, the value thereof shall be the price paid or payable for such goods when sold for home consumption in the ordinary course of trade, in the usual trade packing, where applicable, to any buyers not deemed to be related as specified in section 66(2)(a), plus any non-rebated excise duty payable in terms of Section B of Part 2 of Schedule No. 1, but excluding the non-rebated excise duty payable in terms of Section A of Part 2 of Schedule No. 1, fuel levy or any value-added tax payable on such goods.
[Subparagraph (i) substituted by section 94 of Act 35 of 2007 effective on 1 April 2012]
(ii) ……….
[Subparagraph (ii) deleted by section 94 of Act 35 of 2007 effective on 1 April 2012]
[Paragraph (a) substituted by section 1 of Act 111 of 91 and section 3 of Act 105 of 1992]
(b) For the purpose of paragraph (a) “price paid or payable”, means the total payment made or to be made, either directly or indirectly, by the buyer to or for the benefit of the seller for the goods, but does not include dividends or other payments passing from the buyer to the seller which do not directly relate to the goods.
(3)
(a) Where goods are sold or otherwise disposed of under such conditions that the value thereof cannot be ascertained or has been incorrectly ascertained in terms of subsection (1) or (2), as the case may be, the Commissioner may, having regard to the relevant provisions of subsection (1) or (2), in writing determine a value.
(b) Any determination made under this subsection shall operate –
(i) only in respect of the goods mentioned therein and the person in whose name it is issued;
(ii) subject to the provisions of sections 44(11)(c) and 76B and subsections (6) and (7), from the date the determination is issued.
(c) Whenever any determination is made under paragraph (a) or any determination is amended or withdrawn and a new determination is made under subsection (4), 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 suspend such payment until the date of any final judgment by the High Court or a judgment by the Supreme Court of Appeal.
[Paragraph (c) substituted by section 145 of Act 45 of 2003 and section 94 of Act 35 of 2007]
(d) Such determination, amendment of a determination or new determination shall cease to be in force from the date –
(i) of any amendment of this section or the rules with the result that the said determination, amended determination or new determination no longer conforms to the interpretation of the relevant provisions of this section or such rules.
(ii) of a final judgment by the High Court or a judgment by the Supreme Court of Appeal; or
(iii) any amendment of a determination or new determination is made effective under subsection (4) or as a result of the finalisation of any procedure contemplated in Chapter XA.
[Subparagraph (iii) substituted by section 145 of Act 45 of 2003 and section 94 of Act 35 of 2007]
(e) Whenever a court amends or orders the Commissioner to amend any determination made under this subsection or subsection (4) or any determination is amended or a new determination is made under subsection (4) 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 (c) for any period during which such determination remained in force.
[Paragraph (e) substituted by section 145 of Act 45 of 2003 and section 94 of Act 35 of 2007]
[Subsection (3) substituted by section 6 of Act 98 of 1993, section 49 of Act 19 of 2001 and section 129 of Act 60 of 2001]
(4)
(a) The Commissioner shall –
(i) 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 subsection (3)(d)(i) or (ii);
(ii) 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).
[Subparagraph (ii) substituted by section 145 of Act 45 of 2003 and section 94 of Act 35 of 2007]
(b) Any such amendment or new determination contemplated in paragraph (a)(ii) may be made with effect from –
(i) 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;
(ii) the date of first entry, if the determination was made –
(aa) by an officer who was biased or reasonably suspected of bias; or
(bb) for an ulterior purpose or motive, arbitrarily or capriciously or in bad faith;
(iii) the date of the determination made under subsection (3)(a) in circumstances where such determination was made in bona fide error of law or of fact;
(iv) 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.
[Subsection (4) substituted by section 129 of Act 60 of 2001]
(5)
(a) 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 in which the determination was made, or the goods in question were entered for home consumption.
[Paragraph (a) amended by section 61 of Act 53 of 1999]
(b) Such appeal shall, subject to section 96(1), be prosecuted within a period of one year from the date of the determination.
(6) Save where –
(a) a determination has been made under subsection (3)(a) or (4); 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 71 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 value for excise duty purposes, after a period of two years from the date of entry of such goods.
[Subsection (6) added by section 61 of Act 53 of 1999 and substituted by section 129 of Act 60 of 2001]
(7)
(a) Notwithstanding the provisions of subsection (6), any determination made under subsection (3)(a) as a result of or during the course of or following upon an inspection of the books, accounts and other documents of any manufacturer, wholesaler or purchaser or any seller or buyer contemplated in subsection (1) or (2) 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-production audit, investigation, inspection or verification of any such books, accounts and other documents required to be kept under this Act.
[Subsection (7) added by section 61 of Act 53 of 1999 and substituted by section 129 of Act 60 of 2001]
[Section 69 amended by section 22 of Act 105 of 1969, section 6 of Act 93 of 1978, section 9 of Act 101 of 1985 and section 7 of Act 69 of 1988 and substituted by section 12 of Act 68 of 1989 and section 6 of Act 44 of 1996]
70. ……….
[Section 70 repealed by section 7 of Act 85 of 1968, inserted by section 23 of Act 105 of 1969, amended by section 9 of Act 105 of 1976, section 23 of Act 112 of 1977, section 7 of Act 93 of 1978 and section 16 of Act 86 of 1982 and repealed by section 28 of Act 59 of 1990]