Section 76B (Customs Act) – Limitation on the period for which refund and drawback claims will be considered and the period within which applications therefor must be received by the Controller

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76B.  Limitation on the period for which refund and drawback claims will be considered and the period within which applications therefor must be received by the Controller

[Heading substituted by section 20 of Act 32 of 2005]

(1)     Notwithstanding any other provision of this Act, but subject to any provision for a set-off of duty in any Schedule in respect of goods to which section 19A relates or any refund as contemplated in section 75(4A), where any person becomes entitled to any refund or drawback of duty –

(a)     in the case of any determination, new determination or amendment of any such determination in terms of section 47(9), 65 or 69, such refund shall be limited to –

(i)      a refund in respect of goods entered for home consumption during a period of two years immediately preceding the date of such determination, new determination or amendment, whichever date occurs last: Provided that where any such determination, new determination or amendment has been appealed against, such two year period shall be calculated from such last date, notwithstanding the fact that a court may amend any determination of the Commissioner, or the Commissioner may, as a result of the finding of such court, amend such determination; and

(ii)     any application for such refund which is received by the Controller within a period of 12 months from the date of-

(aa)   such determination, new determination or amendment of a determination; or

(bb)   any amendment by court or by the Commissioner as contemplated in the proviso to subparagraph (i); or

[Subparagraph (ii) substituted by section 100 of Act 60 of 2008]

(b)     in the case of any internal appeal to the Commissioner or a finding of court which is not in respect of a determination contemplated in section 47(9), 65 or 69, any refund or drawback shall be limited to –

(i)      goods entered for home consumption during a period of two years prior to the date of –

(aa)   any final decision by the Commissioner; or

(bb)   any decision of the Commissioner to the extent that it is amended by or as a result of a finding of court; and

(ii)     any application for such refund or drawback which is received by the Controller within a period of 12 months from the date of such decision or amended decision; or

(c)     in the case where any Schedule to the Act is amended with retrospective effect, any such refund or drawback shall be limited to an application therefor received by the Controller within a period of 12 months from the date on which such amendment is published by notice in the Gazette; or

(d)     in the case of a permit or certificate issued with retrospective effect as contemplated in section 75(14B), any such refund or drawback shall, notwithstanding the effective date of such permit or certificate, be limited to –

(i)      goods entered for home consumption during a period of two years prior to the date of issue of such permit or certificate; and

(ii)     any application received by the Controller within a period of 12 months from the date of issue of such permit or certificate; or

(e)     other than a refund or drawback referred to in paragraphs (a), (b), (c) and (d), shall be limited to an application received by the Controller within a period of two years from the date of entry for home consumption of the goods to which the application relates.

(1A)  Where any person becomes entitled to a refund of export duty, such refund shall be limited to an application received by the Controller within a period of two years from the date of entry for export of the goods to which the application relates.

[Subsection (1A) inserted by section 16 of Act 24 of 2020]

 (2)    For the purpose of subsection (1) –

(a)     any application received must comply in all respects with the requirements of section 76(4); and

(b)     ‘finding of court’ means a final judgment by the High Court or a judgement by the Supreme Court of Appeal or the Constitutional Court.

(3)     Notwithstanding anything to the contrary in this section or any other provision of this Act, the Commissioner shall not authorise-

(a)     a refund of any amount paid under this Act where that amount was paid in accordance with the practice generally prevailing at the time of entry for home consumption of the goods in respect of which such payment was made; or

(b)     a drawback of duty that was not claimed or allowed in accordance with the practice generally prevailing at the time the goods in respect of which the drawback could have been claimed or allowed were entered for export.

[Subsection (3) added by section 100 of Act 60 of 2008]

[Section 76B inserted by section 67 of Act 30 of 1998 and substituted by section 29 of Act 34 of 2004]

Section 76C (Customs Act) – Set-off of refund against amounts owning

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76C.    Set-off of refund against amounts owing

Where any refund of duty is in terms of this Act due to any person who has failed to pay any amount of tax, additional tax, duty, levy, charge, interest or penalty levied or imposed under any law administered by the Commissioner within the period prescribed for payment of the amount, the Commissioner may set off against the amount which the person has failed to pay, any amount which has become refundable to the person in terms of this Act: Provided that that amount is first set off against any outstanding debt under this Act.

[Section 76C inserted by section 67(1) of Act 30 of 1998 and substituted by section 20(1) of Act 16 of 2016 effective on 22 May, 2020]

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

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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 77B (Customs Act) – Persons who may appeal

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77B.    Persons who may appeal

 

(1)     Any person who may institute judicial proceedings in respect of any decision by an officer may, before or as an alternative to instituting such proceedings, lodge an appeal-

 

(a)     to the Commissioner against a decision of an officer; or

(b)     to the appeal committee contemplated in this Part in respect of those matters  and decisions of officers that the appeal committee is authorised by rule to consider and decide upon or make recommendations to the Commissioner.

 

(2)     If dissatisfied with a final decision as contemplated in (a) or (b) and the Commissioner is of the opinion that the matter is appropriate, such a person may make use of the alternative dispute procedure contemplated in section 77I.

[Section 77B effective on 4 June 2007]

Section 77D (Customs Act) – Request for reasons and time within which a request or an appeal must be considered

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77D.  Request for reasons and time within which a request or an appeal must be considered

[Heading substituted by section 22 of Act 32 of 2005 with effect from 4 June 2007]

 

(a)     Any person contemplated in section 77B may request reasons for a decision.

 

(b)     The Commissioner may prescribe by rule –

 

(i)      the procedures to be complied with when reasons are requested and the time within which such request must be delivered to the Commissioner;

(ii)    the period within which a request for reasons or an appeal, must be considered.

 

(c)     The Commissioner must notify in writing the person who –

 

(i)      requested reasons, of those reasons; or

(ii)    lodged an appeal, of the final decision,

 

within the periods prescribed in such rule.

[Subsection (1) substituted by section 22 of Act 32 of 2005 effective on 4 June 2007, substitution amended by section 43 of Act 21 of 2006 effective on 4 June 2007)]

[Section 77D effective on 4 June 2007]

Section 77F (Customs Act) – Decision of Commissioner and Committee

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77F.     Decision of Commissioner and Committee

(1)     The Commissioner may-

(a)     refer the matter back to the committee for further consideration;

(b)     reject or accept or accept and vary the recommendation of the committee;

(c)     confirm or amend the decision or withdraw it and make a new decision.

[Section 77F effective on 4 June 2007]

Section 77G (Customs Act) – Obligation to pay amount demanded

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77G.    Obligation to pay amount demanded

Notwithstanding anything to the contrary contained in this Act, the obligation to pay to the Commissioner and right of the Commissioner to receive and recover any amount demanded in terms of any provision of this Act, shall not, unless the Commissioner so directs, be suspended pending finalisation of any procedure contemplated in this Chapter or pending a decision by court.

[Section 77G substituted by section 16 of Act 36 of 2007]

[Section 77G effective on 4 June 2007]