Category: Chapter X – Rebates,. refunds and drawbacks of duty (Customs Act)

Section 77 (Customs Act) – Set-off of certain amounts

Posted on by admin_kmos

77. Set-off of certain amounts

 

(a)     A licensee of a customs and excise warehouse who, in terms of the rules, is permitted to pay any duty monthly or quarterly, and who –

 

(i)      paid any duty for which he was not liable; or

(ii)     granted any provisional refund in terms of section 75(1A); or

(iii)    becomes entitled to a refund in terms of item 534.00 of Schedule No. 5 or any item of Schedule No. 6,

may, subject to the approval of the Commissioner, at any time within a period of two years from the date on which that duty was paid, such provisional refund was granted or such licensee became entitled to such refund, set off such duty, provisional refund or amount refundable against that particular duty for which such licensee subsequently becomes liable, except that the duty refundable in terms of the said item 534.00 be set off against the excise duty specified in Section B of Part 2 of Schedule No. 1 for which such licensee subsequently becomes liable, provided the monthly or quarterly accounts or bills of entry submitted by such licensee in respect of the payment of any duty against which any duty, provisional refund or amount refundable has been set off are accompanied by a full statement by such licensee, supported by a certificate by an officer, giving full particulars and a full account of the circumstances in respect of such set-off and by such documentary evidence as the Commissioner may in each case require.

[Paragraph (a) amended by section 55 of Act 45 of 1995]

 

(b)     If such set-off is not approved by the Commissioner in terms of paragraph (a), it shall be redebited to the account of such licensee.

[Section 77 substituted by section 1 of Act 96 of 67 and section 26 of Act 105 of 1969, amended by section 3 of Act 68 of 1973, section 21 of Act 86 of 1982, section 26 of Act 84 of 1987 and section 10 of Act 69 of 1988 and substituted by section 31 of Act 59 of 1990]

Section 75 (Customs Act) – Specific rebates, drawbacks and refunds of duty

Posted on by admin_kmos

75. Specific rebates, drawbacks and refunds of duty

(1)     Subject to the provisions of this Act and to any conditions which the Commissioner may impose –

(a)     any imported goods described in Schedule No.   3 shall be admitted under rebate of any customs duties or excise duty applicable in respect of such goods at the time of entry for home consumption thereof, to the extent and for the purpose or use stated in the item of Schedule No. 3 in which they are specified;

[Paragraph (a) substituted by section 95 of Act 35 of 2007 effective on 1 April 2012]

(b)     any imported goods described in Schedule No. 4 shall be admitted under rebate of any customs duties, excise duty, fuel levy or Road Accident Fund levy applicable in respect of such goods at the time of entry for home consumption thereof, or if duly entered for export and exported in accordance with such entry, to the extent stated in, and subject to compliance with the provisions of the item of Schedule No. 4 in which such goods are specified;

[Paragraph (b) substituted by section 13 of Act 68 of 1989, section 61 of Act 30 of 2000, section 130 of Act 60 of 2001, section 92 of Act 31 of 2005 and section 95 of Act 35 of 2007 effective on 1 April 2012]

(c)     a drawback or a refund of the customs duty, excise duty, surcharge, fuel levy and Road Accident Fund levy actually paid on entry for home consumption on any imported goods described in Schedule No. 5 shall be paid to the person who paid such duties or any person indicated in the notes to the said Schedule, subject to compliance with the provisions of the item of the said Schedule in which those goods are specified; and

[Paragraph (c) substituted by section 27 of Act 112 of 1977, section 23 of Act 84 of 1987, section 13 of Act 61 of 1992, section 50 of Act 19 of 2001,section 92 of Act 31 of 2005 and section 95 of Act 35 of 2007 effective on 1 April 2012]

(d)     in respect of any excisable goods or fuel levy goods manufactured in the Republic described in Schedule No. 6, a rebate of the excise duty specified in Part 2 of Schedule No. 1 or of the fuel levy and of the Road Accident Fund levy specified respectively in Part 5A and Part 5B of Schedule No. 1 in respect of such goods at the time of entry for home consumption thereof, or if duly entered for export and exported in accordance with such entry, or a refund of the excise duty, fuel levy or Road Accident Fund levy actually paid at the time of entry for home consumption shall be granted to the extent and in the circumstances stated in the item of Schedule No. 6 in which such goods are specified, subject to compliance with the provisions of the said item and any refund under this paragraph may be paid to the person who paid the duty or any person indicated in the notes to the said Schedule No. 6:

Provided that any rebate, drawback or refund of Road Accident Fund levy as contemplated in paragraph (b), (c) or (d), shall only be granted as expressly provided in Schedule No. 4, 5 or 6 in respect of any item of such Schedule.

[Paragraph (d) substituted by section 23(b) of Act 84 of 1987, by section 50(1)(a) of Act 19 of 2001, by section 130(1)(b) of Act 60 of 2001, by section 92(1)(c) of Act 31 of 2005, by section 95(1)(a) of Act 35 of 2007 and by section 16(1)(a) of Act 21 of 2021 effective on 19 January 2022]

(e)     ……….

[Paragraph (e) added by section 24 of Act 105 of 1969 and deleted by section 29 of Act 59 of 1990]

(f)     ……….

[Paragraph (f) added by section 23 of Act 84 of 1987, amended by section 8 of Act 69 of 1988, section 29 of Act 59 of 1990, section 13 of Act 61 of 1992 and section 53 of Act 45 of 1995 and deleted by section 50 of Act 19 of 2001]

(g)     ……….

[Paragraph (g) added by section 23 of Act 84 of 1987, amended by section 8 of Act 69 of 1988 and deleted by section 53 of Act 45 of 1995]

(1A)  Notwithstanding anything to the contrary contained in this Act or any other law –

(a)    

(i)      a refund of the fuel levy leviable on distillate fuel in terms of Part 5A of Schedule No. 1; and

(ii)     a refund of the Road Accident Fund levy leviable on distillate fuel in terms of Part 5B of Schedule No. 1; or

(iii)    only a refund of such Road Accident Fund levy,

shall be granted in accordance with the provisions of this section and of item 670.04 of Schedule No. 6 to the extent stated in that item;

[Paragraph (a) substituted by section 92 of Act 31 of 2005 and amended by section 70 of Act 20 of 2006 and section 95 of Act 35 of 2007]

(b)     such refunds shall be granted to any person who –

(i)      has purchased and used such fuel in accordance with the provisions of this section and the said item of Schedule No. 6; and

[Subparagraph (i) substituted by section 95 of Act 35 of 2007]

(ii)     is registered, in addition to any other registration required under this Act, for value-added tax purposes under the provisions of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), and for diesel refund purposes on compliance with the requirements determined by the Commissioner for the purposes of this Act and the Value-Added Tax Act;

 (c)    the Commissioner may withdraw money from the National Revenue Fund for refunding the amount of such Road Accident Fund levy as if it were a fuel levy leviable and paid under this Act and refundable in terms of the said item of Schedule No. 6;

[Paragraph (c) substituted by section 95 of Act 35 of 2007]

(d)     the Commissioner may –

(i)      pay any such refund upon receipt of a duly completed return from any person who has purchased distillate fuel for use as contemplated in the said item of Schedule No. 6;

[Subparagraph (i) substituted by section 95 of Act 35 of 2007]

(ii)     pay any such refund by means of the system in operation for refunding value-added tax; and

(iii)    for the purposes of payment, set off any amount refundable to any person in terms of the provisions of this section and the said items against any amount of value-added tax payable by such person;

(e)     any such payment or set-off by the Commissioner shall be deemed to be a provisional refund for the purpose of this section and the said item of Schedule No. 6 subject to the production of proof by the user referred to in subsection (1C)(b) at such time and in such form as the Commissioner may determine that the distillate fuel has been –

(i)      purchased as claimed on the application for a diesel refund; and

(ii)     used in accordance with the provisions of this section and the said item of Schedule No. 6;

[Paragraph (e) substituted by section 95 of Act 35 of 2007]

(f)     the provisions of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), shall mutatis mutandis apply in respect of the payment of interest on any amount of fuel levy or Road Accident Fund levy which is being recovered as it is in excess of the amount due or is not duly refundable.

[Subsection (1A) inserted by section 8 of Act 69 of 1988, amended by section 53 of Act 45 of 1995 and substituted by section 50 of Act 19 of 2001]

(1B) 

(a)     The Commissioner shall, at the end of each calendar month, furnish an audited statement, as may be agreed upon between the Commissioner and the Chief Executive Officer of the Road Accident Fund referred to in section 12 of the Road Accident Fund Act, 1996 (Act No. 56 of 1996), to the said Chief Executive Officer, reflecting the quantity of diesel in litres and the amount of the Road Accident Fund levy refunded thereon during such month.

(b)     The Chief Executive Officer of the Road Accident Fund shall repay to the Commissioner the amount of the Road Accident Fund levy refunded by the Commissioner not later than the last working day of each calendar month immediately succeeding the calendar month covered by the statement furnished by the Commissioner.

(c)     Any amount so repaid by the Road Accident Fund shall be paid into the National Revenue Fund as if it were a recovery of fuel levy refunded under this section.

(d)     For the purposes of this Act, any refund of Road Accident Fund levy by the Commissioner to any applicant shall be deemed to be a refund of duty and any amount paid which was not duly payable or in excess of the amount due to the applicant shall be recoverable as provided in section 76A and shall, when recovered, be repaid to the Road Accident Fund by the Commissioner each calendar month.

(e)     The Commissioner may enter into a written agreement with the Chief Executive Officer of the Road Accident Fund to regulate any incidental matter which it may be necessary or expedient to regulate in order to achieve or promote the objects of this subsection.

[Subsection (1B) added by section 50 of Act 19 of 2001]

(1C) 

(a)     Notwithstanding the provision of subsection (1A), the Commissioner may investigate any application for a refund of such levies on distillate fuel to establish whether the fuel has been –

(i)      duly entered or is deemed to have been duly entered in terms of this Act;

(ii)     purchased in the quantities stated in such return;

(iii)    delivered to the premises of the user and is being stored and used or has been used in accordance with the purpose declared on the application for registration and the said item of Schedule No. 6.

[Subparagraph (iii) substituted by section 95 of Act 35 of 2007]