39B. Simplified clearance and release procedures
(1) In this section and for the purposes of sections 39C and 39D, unless the context indicates otherwise-
Section 39A (Customs Act) – Sale in transit
39A. Sale in transit
Notwithstanding anything to the contrary in this Act contained, the importer of any goods purchased from any South African consignee after shipment of those goods but before the date of entry thereof, shall produce to the Controller the invoice relating to such purchase, and the price actually paid or payable for those goods by virtue of such purchase shall, for the purposes of section 65 (1), be the transaction value of those goods.
[Section 39A inserted by section 5 of Act 101 of 1985]
Section 39 (Customs Act) – Importer and exporter to produce documents and pay duties
39. Importer and exporter to produce documents and pay duties
(1)
(a) The person entering any imported goods for any purpose in terms of the provisions of this Act shall deliver, during the hours of any day prescribed by rule, to the Controller a bill of entry in the prescribed form, setting forth the full particulars as indicated on the form and as required by the Controller, and according to the purpose (to be specified on such bill of entry) for which the goods are being entered, and shall make and subscribe to a declaration in the prescribed form, as to the correctness of the particulars and purpose shown on such bill of entry.
[Paragraph (a) substituted by section 4 of Act 110 of 1979, section 19 of Act 59 of 1990 and section 29 of Act 45 of 1995]
(b) At the same time the said person shall deliver such duplicates of the bill of entry as may be prescribed or as may be required by the Controller and shall pay all duties due on the goods: Provided that the Commissioner may, on such conditions, including conditions relating to security, as may be determined by him, allow the deferment of payment of duties due in respect of such relevant bills of entry and for such periods as he may specify.
[Paragraph (b) amended by section 10 of Act 84 of 1987]
(c) The said person shall further produce the transport document or such other document in lieu thereof as may be approved by the Commissioner, invoices as prescribed, shipper’s statement of expenses incurred by him, copy of the confirmation of sale or other contract of purchase and sale, importer’s written clearing instructions, unless exempted by rule, and such other documents relating to such goods as the Controller may require in each case and answer all such questions relating to such goods as may be put to him by the Controller, and furnish in such manner as the Commissioner may determine such information regarding the tariff classification of such goods as the Commissioner may require.
[Paragraph (c) substituted by section 1 of Act 85 of 1968, section 1 of Act 93 of 1978, section 4 of Act 110 of 1979 and section 29 of Act 45 of 1995]
(cA) The Commissioner may, subject to such conditions as he may determine, allow the said person to produce in lieu of any document required to be produced in terms of paragraph (c), a document purporting to be a copy of any such document and obtained by means of microfilming or any other process, and which shall, subject to compliance with such conditions, for all purposes have all the effects of the original document concerned.
[Paragraph (cA) inserted by section 8 of Act 98 of 1980]
(d) The said person shall also, in respect of any such class or kind of goods as may be specified by the Commissioner by rule or any goods to which circumstances so specified apply, produce to the Controller for retention by him, such a sample as may be so specified and a true copy of any invoice or other document relating to such goods or of any blueprint, illustration, drawing, plan or illustrated and descriptive literature so specified in respect of such goods and relating to such goods.
[Paragraph (d) substituted by section 1 of Act 85 of 1968]
(2)
(a) If any goods intended for export are liable to any export duty under this Act, the amount thereof shall be stated in the bill of entry relating to such goods and shall be payable upon presentation of such entry to the Controller.
(b) No such bill of entry shall be valid, nor shall any person export such goods, until the duty has been paid to the Controller.
(2A)
(a) Any person who removes goods from a customs and excise warehouse by means of the issuing of a certificate, invoice or other document referred to in section 38(4) shall present to the Controller a validating bill of entry in the prescribed form at the time and in the manner specified by rule in respect of any such certificate, invoice or other document, and shall pay at the prescribed time to the Controller the duty due on the goods to which such certificate, invoice or other document relates.
[Paragraph (a) substituted by section 29 of Act 45 of 1995]
(b) The said person shall present to the Controller such validating bill of entry setting forth the full particulars indicated thereon, and the declaration shall be duly signed by the prescribed person and there shall be as many duplicates and such supporting documents as may be prescribed or as may be required by the Controller.
[Subsection (2A) inserted by section 14 of Act 105 of 1969]
(2B) The Commissioner may specify the documents to be produced by the exporter upon entry for exportation in respect of any goods exported or any class or kind of goods exported or any goods exported in circumstances or to a destination specified by him.
[Subsection (2B) inserted by section 3 of Act 69 of 1988]
(3) The Commissioner may by rule specify the manner in which bills of entry for goods of any such class or kind as may be specified in such rule, or goods imported or exported in such manner or such circumstances as may be so specified, shall be delivered.
[Subsection (3) substituted by section 1 of Act 85 of 1968]
Section 38A (Customs Act) – Special provisions in respect of storage and clearance and release of stores or spares and equipment supplied to foreign-going ships and aircraft
38A. Special provisions in respect of storage and clearance and release of stores or spares and equipment supplied to foreign-going ships and aircraft
(1)
(a) This section applies to stores or spares and equipment –
(i) stored in a licensed special customs and excise storage warehouse contemplated in section 21(1) and supplied by the licensee; or
(ii) if goods in free circulation, supplied by any person, including a person who is the licensee of such warehouse (referred to in this section as the ‘exporter’), to foreign-going ships or aircraft.
(b) Notwithstanding anything to the contrary contained in this Act, stores or spares and equipment free of duty may be stored in such a warehouse as may be prescribed by rule.
(c) Unless otherwise specified by rule, stores or spares and equipment in such a warehouse may only be removed and delivered by the licensee.
(d) Except as otherwise provided in this section or any rules made thereunder, any provision relating to a special customs and excise storage warehouse contemplated in section 21(1) and of sections 18A, 38, 59A, 60, 64E and 101 shall, as may be applicable, apply mutatis mutandis to the storage in, and the removal of goods from, such warehouse.
(e)
(i) In this section and any provision of any Schedule or rule relating to stores or stores or spares and equipment for foreign-going ships or aircraft, ‘foreign-going ship’, ‘foreign-going aircraft’, ‘goods in free circulation’, ‘spares and equipment’, ‘stores’ and any other expression required to be defined shall, unless the context otherwise indicates, have the meaning assigned thereto in the rules for this section.
(ii) In this section, unless the context otherwise indicates, ‘goods’ means the ‘stores or spares and equipment’ contemplated in this section.
(2)
(a) Notwithstanding anything to the contrary contained in this Act, the Commissioner may by rule permit the licensee of such a warehouse or an exporter to supply goods to foreign-going ships or aircraft on the issuing by that licensee or exporter of a dispatch and delivery note or such other document as the Commissioner may prescribe or approve by rule, if the licensee or exporter-
(i) . . . . . . ;
[Subparagraph (i) deleted by section 13 of Act 21 of 2021 effective on 19 January, 2022]
(ii) for the purpose of electronic communication with the Commissioner, is a registered user in accordance with the provisions of section 101A and the rules made thereunder;
(iii) complies with such conditions as the Commissioner may prescribe generally by rule or require in a specific instance; and
(iv) keeps such books, accounts or other documents or data created by a computer of goods received, including goods returned, and removals as the Commissioner may prescribe generally by rule or require in a specific instance.
(b) Any document issued by the licensee or exporter as contemplated in paragraph (a) shall, for the purpose of section 20(4) and subject to paragraph (c), be deemed to be due entry for export from the time of removal of such goods from the special customs and excise storage warehouse or the place from where the goods in free circulation are exported, as the case may be.
(c)
(i) Any licensee who removes such goods from such a warehouse, or an exporter who exports such goods, by means of the issuing of a dispatch and delivery note or other document referred to in paragraph (a) shall deliver to the Controller a validating bill of entry export declaring those goods at the time, in the manner and containing such particulars as may be specified by rule in respect of such dispatch and delivery note or other document.
(ii) Where any goods for which such a dispatch and delivery note or other document is issued is lost, destroyed, stolen or damaged after removal the licensee or exporter must at the same time pay the duty due on the goods.
(3) The Commissioner may –
(a) permit the return of stores or spares and equipment supplied by the licensee or exporter as contemplated in this section to the licensed premises or other place, as the case may be;
(b) require the submission of dispatch and delivery notes or other documents electronically by such a person or class of persons in respect of such goods, in such circumstances and on such conditions and subject to compliance with such procedures as may be prescribed by rule.
(4) The Commissioner may by rule prescribe for the purposes of this section or section 21(1)-
(a) definitions as contemplated in subsection (1);
(b) goods to which this section relates and any requirement to control the storage, removal and return of such goods;
(c)
(i) the form of and the particulars to be slated on the dispatch and delivery note, any invoice or other document;
(ii) the documents that must accompany the movement in each case of any stores, spares and equipment when removed for delivery by the licensee or exporter;
(d) books, accounts and other documents and data to be kept;
(e) all matters required or permitted by this section to be prescribed by rule;
(f) any other matter which the Commissioner may consider reasonably necessary and useful for the effective administration of the provisions contained in this section.
[Section 38A inserted by section 28 of Act 18 of 2009]
Section 38 (Customs Act) – Entry of goods and time of entry
38. Entry of goods and time of entry
(1)
(a) Every importer of goods shall within seven days of the date on which such goods are, in terms of section ten deemed to have been imported except in respect of goods in a container depot as provided for in section 43(1)(a) or within such time as the Commissioner may prescribe by rule in respect of any type of cargo, means of carriage or any person having control thereof after landing, make due entry of those goods as contemplated in section 39: Provided that, subject to the permission of the Controller-
(i) containers temporarily imported;
(ii) human remains;
(iii) goods which in the opinion of the Commissioner are of no commercial value;
(iv) goods imported under an international carnet; and
(v) goods of a value for duty purposes not exceeding R500, and on which no duty is payable in terms of Schedule No. 1,
[Paragraph (a) amended by section 5 of Act 71 of 1975, by section 123(a) of Act 60 of 2001 and by section 9 of Act 16 of 2022]
need not be so entered.
[Paragraph (a) amended by section 5 of Act 71 of 1975 and section 123 of Act 60 of 2001]
(aA) The Commissioner may, in respect of dutiable goods imported by air of a value for duty purposes not exceeding R500 and for which immediate clearance is requested, allow a licensee of any premises licensed under the provisions of this Act to remove such goods for home consumption and to pay the duties due at such time on compliance with such conditions as the Commissioner may specify by rule and impose in each case.
[Paragraph (aA) inserted by section 123 of Act 60 of 2001]
(b)
(i) Any importer may, at any place appointed under the provisions of this Act for the entry of goods, make such entry of goods which have been loaded on a ship or delivered to the carrier which conveys the goods by vehicle to the Republic for discharge at that place, notwithstanding the fact that such ship or vehicle has not yet arrived at that place.
(ii) If any goods referred to in subparagraph (i) have not been so loaded at the time of entry as provided in section 45(2), the importer shall be guilty of an offence and those goods shall be deemed not to have been entered.
[Paragraph (b) substituted by section 18 of Act 59 of 1990]
(2) ……….
[Subsection (2) substituted by section 18 of Act 59 of 1990 and deleted by section 123 of Act 60 of 2001]
(3)
(a) Every exporter of any goods shall, before such goods are exported from the Republic, deliver, during the hours of any day prescribed by rule, to the Controller a bill of entry in the prescribed form, but the Commissioner may –
(i) if no export duty is payable on and no obligation or condition is to be fulfilled or complied with under any law in respect of such goods; or
(ii) in the case of goods to be exported overland by way of a vehicle (excluding an aircraft and a train) which are loaded for export at a place other than a place appointed under section 6 where goods may be entered for customs and excise purposes,
allow such a bill of entry to be delivered at such time as he deems reasonable.
[Paragraph (a) amended by section 18 of Act 59 of 1990 and section 28 of Act 45 of 1995]
(b) For the purposes of paragraph (a), in relation to the delivery of a bill of entry, the goods referred to therein shall be deemed to have been exported from the Republic –
(i) in the case of goods to be exported in a ship, at the time when such goods are delivered to the port authority, a depot operator, the master of the ship concerned or a container operator, as the case may be;
[Subparagraph (i) substituted by section 28 of Act 45 of 1995]
(ii) in the case of goods to be exported in an aircraft, at the time when such goods are delivered to the pilot of the aircraft concerned or are brought within the control area of the airport authority concerned, as the case may be;
(iii) in the case of goods to be exported in a train, at the time when such goods are delivered to the railway authority;
[Subparagraph (iii) substituted by section 28 of Act 45 of 1995]
(iv) in the case of goods to be exported overland in a vehicle (excluding an aircraft and a train), subject to the provisions of paragraph (a), at the time when such goods are loaded on the vehicle concerned.
[Subsection (3) substituted by section 2 of Act 89 of 1983]
(4)
(a) The Commissioner may by rule permit any excisable goods or fuel levy goods and any class or kind of imported goods, which he may specify by rule, to be removed from a customs and excise warehouse on the issuing by the owner of such goods of a prescribed certificate or an invoice or other document prescribed or approved by the Commissioner, and the payment of duty on such goods at a time and in a manner specified by rule, and such certificate, invoice or other document, shall for the purposes of section 20(4), and subject to the provisions of section 39(2A), be deemed to be a due entry from the time of removal of those goods from the customs and excise warehouse.
[Paragraph (a) substituted by section 9 of Act 84 of 1987, section 18 of Act 59 of 1990 and section 28 of Act 45 of 1995]
(b) No such goods may be removed from a customs and excise warehouse or appropriated for use by the owner prior to or without the issuing of such certificate, invoice or other document.
[Subsection (4) substituted by section 13 of Act 105 of 1969]
(5)
(a) Notwithstanding anything to the contrary contained in this Act, the Commissioner may by rule permit the removal of any dutiable imported goods from a licensed customs and excise storage warehouse on the issuing by the licensee of such warehouse of a certificate, an invoice or such other document as the Commissioner may prescribe or approve by rule, if-
(i) both the licensee of the customs and excise storage warehouse and the importer of the goods are accredited in terms of section 64E;
(ii) the licensee of the storage warehouse and the importer of the goods both comply with such conditions as the Commissioner may prescribe generally by rule or determine in a specific instance;
(iii) the licensee of the warehouse keeps such accounts or records of such receipts and removals as the Commissioner may require;
(iv) the goods are removed from the warehouse for home consumption or such other purpose as the Commissioner may allow; and
(v) the duty on such goods is paid at the time and in a manner specified by rule.
(b) Any document referred to in paragraph (a) and issued by a licensee contemplated in that paragraph shall, for the purposes of section 20(4), and subject to the provisions of section 39(2A), be deemed to be a due entry from the time of removal of those goods from the customs and excise storage warehouse.
[Subsection (5) inserted by section 38 of Act 60 of 2008 – commencement date of subsection (5) to be proclaimed]
(6)
(a) Notwithstanding anything to the contrary contained in this Act, if liquid bulk goods, as may be prescribed by rule, are stored in a special customs and excise storage warehouse licensed as contemplated in section 21(3), the licensee of that warehouse may, subject to compliance with such conditions and procedures as the Commissioner may prescribe by rule, deduct from the quantity received in the warehouse, the actual losses arising from the storage in or removal of goods from that warehouse.
(b) Notwithstanding paragraph (a), the Minister may determine a maximum percentage loss in respect of any class or kind of such goods by notice in the Gazette.
[Subsection (6) inserted by section 38 of Act 60 of 2008 – commencement date of subsection (6) to be proclaimed]
Chapter V – Clearance and origin of goods; liability for and payment of duties
CHAPTER V
CLEARANCE AND ORIGIN OF GOODS; LIABILITY FOR AND PAYMENT OF DUTIES
Section 37B (Customs Act) – Provisions relating to the manufacture, storage, disposal and use of biofuel, biodiesel or bioethanol
37B. Provisions relating to the manufacture, storage, disposal and use of biofuel, biodiesel or bioethanol
(1) For the purposes of this Act, unless the context otherwise indicates –
Section 37A (Customs Act) – Special provisions in respect of marked goods and certain goods that are free of duty
37A. Special provisions in respect of marked goods and certain goods that are free of duty
(1)
(a) Notwithstanding anything to the contrary in this Act contained, where –
(i) any goods are classified under and specified in any heading or subheading of Chapter 27 of Part 1 of Schedule No. 1;
(ii) such goods are also classified under and specified in any item of Part 2 and Part 5 of Schedule No. 1;
(iii) such heading or subheading has been expressly quoted in any such item; and
(iv) a free rate of duty is prescribed in respect of each such heading or subheading and such item,
such goods shall, as may be prescribed by rule, on importation into or manufacture in the Republic or on being marked, be accounted for in any customs and excise warehouse licensed in terms of this Act.
(b) For the purposes of this section the Commissioner may, on such conditions as he may impose in each case in order to ensure the proper control over the storage, marking and removal of the goods contemplated in paragraph (a), approve any such warehouse and any licensee or class of licensee of such warehouse;
(c) Unless so approved by the Commissioner, no person shall deal with any such goods in any manner contemplated in paragraph (b).
(2)
(a) If any goods are described in any heading or subheading or item referred to in subsection (1)(a) as marked, the unmarked goods concerned shall be marked by the approved licensee in the approved warehouse by the addition of such marker, in such proportion which is equal to or exceeds, and in accordance with such procedure and control measures, as may in each case be prescribed by rule.
(b) Any goods contemplated in subsection (1) shall each be stored separately from all other goods and shall be subject mutatis mutandis to the provisions of this Act relating to dutiable goods stored in and removed from a customs and excise warehouse, as may be prescribed by rule.
(c)
(i) Subject to the provisions of subparagraph (iii), any reference to “marked goods” or “marker” in this or any other section or any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 or Part 5 of Schedule No. 1 or in any note to such Chapter or Part or in any rule, shall be deemed to be a reference to unmarked goods referred to in subparagraph (ii) which have been marked and the marker which is required to be added as contemplated in paragraph (a);
(ii) Any reference to “unmarked goods” in this or any other section or in any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 or Part 5 of Schedule No. 1 or in any note to such Chapter or Part or in any rule, shall be deemed to be a reference to goods which, except for the reference to marked, are of the same description as marked goods and are specified as unmarked goods of such description in any such heading, subheading or item;
(iii) Whenever it is necessary for the purpose of establishing any contravention of any provision of this section, any goods shall be deemed to contain marked goods when such goods contain a proportion of the marker equal to or exceeding that as may be prescribed by rule.
(d) Such addition of a marker shall be deemed not to constitute mixing or blending for the purposes of –
(ii) the classification of any goods under any heading, subheading or item of Schedule No. 1, except as provided in this section.
(e) The application of the free rate of duty specified in any heading or subheading of Chapter 27 of Part 1 or in any item of Part 2 and Part 5 of Schedule No. 1 in respect of any goods described as marked goods, shall be subject to the provisions of this section.
(3)
(a) Any person who sells or disposes of in any manner, whether or not for any consideration, any marked goods at any one time in excess of the quantity prescribed by rule, shall issue an invoice to the purchaser, or to any other person to whom the goods are so disposed of, containing such particulars as may be prescribed by rule.
(b) Any person who so sells or disposes of marked goods shall keep a copy of such invoice and any person to whom such invoice is issued shall keep such invoice for such period as may be prescribed by rule.
(c) Any person referred to in paragraph (a) and any other person who is at any time in possession of or has under his control any marked goods in excess of the quantity prescribed by rule, shall complete and keep such books, accounts and other documents in such form, reflecting such particulars and for such period and shall comply with any such other requirements, as may be prescribed by rule.
(d) The provisions of paragraph (a) shall not apply to stock loan transactions between approved licensees of customs and excise warehouses.
(4)
(a) No person shall –
(i) mix any marked goods in any proportion with distillate fuel or petrol;
(ii) mix any marked goods in any proportion with any lubricity agent for use as fuel in any engine;
(iii) mix any marked goods in any proportion with any lubricity agent, or be in possession of any marked goods mixed in any proportion with any lubricity agent, or be in possession of marked goods for mixing with any lubricity agent in any circumstances or for any purpose, otherwise than in accordance with this section and the rules;
(iv) use any marked goods, whether or not mixed with any other goods in any proportion, as fuel in any engine;
(v) sell or dispose of in any manner whether or not for any consideration or acquire any marked goods or any marked goods mixed with any lubricity agent, for use as fuel in any engine;
(vi) be in possession of or sell any marked goods mixed in any proportion with distillate fuel or petrol;
[Subparagraph (vi) substituted by section 122 of Act 60 of 2001]
(vii) be in possession of any marked goods or marked goods mixed in any proportion with any lubricity agent for use as fuel in any engine;
(viii) remove or neutralise or attempt to remove or neutralise any marker in any marked goods;
(ix) add any substance to any marked goods which can prevent or impede the detection of the marker;
(x) be in possession of any marked goods or sell or dispose of in any manner whether or not for any consideration or acquire any marked goods in which is present any substance which or the colour of which can prevent or impede the detection of the marker;
(xi) mix any unmarked goods with any marked goods; or
(xii) unless approved by, and subject to such conditions as may be imposed by, the Commissioner, import any goods containing the marker.
(b) Any person who so mixes or uses or sells or disposes or acquires or possesses any marked goods or so adds any substance to any marked goods or so removes or neutralises or attempts to remove or to neutralise any marker or any person to whom any invoice referred to in subsection (3)(a) has been issued in respect of the marked goods concerned, shall, in addition to any other liability incurred in terms of this Act, be liable, as the Commissioner may determine, for the payment of an amount not exceeding the duty that may be leviable on any distillate fuel, petrol, lubricity agent or unmarked goods in accordance with the provisions of Schedule No. 1, whichever yields the greatest amount of duty, in respect of all marked goods which –
(i) are in the possession or under the control of such person or on any premises in the possession or under the control of such person; and
(ii) were previously sold or disposed of or purchased or were in the possession or under the control of such person or on any premises in the possession or under the control of such person at any time, unless it is shown within 30 days from the date of any demand for payment of any amount in terms of this section that the goods concerned have not been dealt with contrary to the provisions of paragraph (a).
(c)
(i) If different rates of duty on such distillate fuel, petrol, lubricity agents or unmarked goods were in force during any period in respect of which the duties are calculated for the purposes of the payment referred to in paragraph (b), the highest rate in force at the relevant time shall be applied for the purposes of calculating the duty payable as provided in paragraph (b).
(ii) For the purposes of calculating the duty payable on any marked goods mixed with distillate fuel, petrol, unmarked goods or lubricity agent in any tank, including the fuel tank of any engine, such duty shall be calculated, on the total quantity of such mixed goods, in accordance with the provisions of paragraph (b).
(d) Notwithstanding anything to the contrary in this Act contained, any person who, contrary to subsection (3) and the rules, fails to –
(i) keep any invoice issued or a copy thereof;
(ii) issue any invoice;
(iii) complete and keep the books, accounts and documents; or
(iv) forthwith furnish any officer at such officer’s request with such invoice or copy thereof and the books, accounts and documents, required to be completed and kept,
shall, in addition to any other liability incurred in terms of this Act, in respect of the goods to which such failure relates, be liable, as the Commissioner may determine, for the payment of an amount not exceeding the duty that may be leviable on any distillate fuel, petrol, lubricity agents or unmarked goods in accordance with the provisions of Schedule No. 1, whichever yields the greatest amount of duty, unless it is shown within 30 days of the date of any demand for payment of such amount in terms of this section that the goods concerned have not been dealt with contrary to the provisions of this section.
(e) Any amount of which any person is liable in terms of this section shall be payable upon demand by the Commissioner.
(f) Payment of any amount in respect of the marked goods referred to in paragraph (b)(i) shall not absolve the person concerned from compliance with the provisions of paragraph (a).
(5)
(a) For the purposes of this section an officer may –
(i) take samples of any goods in any tank or other container or in any fuel tank of any engine;
(ii) analyse such samples or send them for analysis to any person designated under paragraph (c)(ii);
(iii) stop and detain any vehicle or mobile apparatus with or without the assistance of any traffic officer or member of the South African Police Service or the South African National Defence Force;
(iv) detain any ship with or without the assistance of any member of the South African Police Service or the South African National Defence Force.
(b) The provisions of section 106 (2) shall mutatis mutandis apply to any sample taken under this subsection.
(c) The Commissioner may –
(i) by rule prescribe the form for reporting on any vehicle or mobile apparatus stopped or premises visited, or any person concerned with such vehicle, mobile apparatus or premises; or on any procedure or method for the taking or analysis of any sample by an officer; or on the results of such analysis and any other particulars as may be required on such form;
(ii) designate any person to analyse any such sample;
(iii) by rule prescribe the form for reporting on the analysis of such sample by such designated person, the results of such analysis and any other particulars as may be required on such form;
(iv) by rule prescribe the method for sealing any tank or container.
(d) Any person who is any way concerned with any marked goods or any vehicle or mobile apparatus or any premises where any tank or other container is situated, shall furnish an officer on demand with any particulars which he is able to provide for the purposes of the completion of the report referred to in paragraph (c).
(6)
(a) Whenever an officer has detained any ship, vehicle, mobile, apparatus, engine, tank or other container or goods in terms of this Act for the purposes of investigating any matter to which this section relates, he shall not, if any goods are tested for the presence of a marker, take any action to enforce any other provision of this Act, unless he is in possession of a report by the person designated under subsection (5)(c)(ii) or by any person in the employ of and authorised by such designated person, on the prescribed form, which contains particulars indicating that the goods concerned have been dealt with contrary to the provisions of this section.
(b) Any person who is any way concerned with such goods as contemplated in subsection (4)(b) shall be liable in respect thereof for payment of an amount calculated on the same basis as provided in that subsection.
(c) Any goods otherwise found by an officer to have been dealt with contrary to the provisions of this section and any goods which have been used in so dealing with those goods shall be liable to forfeiture in accordance with this Act
(d) The owner or whoever has possession or control of any goods, ship, vehicle, mobile apparatus, engine, tank or other container, shall be liable for any reasonable costs and expenses, including the costs of analysing any sample, incurred by, and charges due to, the Commissioner in the handling of and dealing with any such goods, ship, vehicle, mobile apparatus, engine, tank or other container for the purposes of this section.
(7)
(a) Notwithstanding the provisions of subsection (4) and anything to the contrary in any other provision of this Act, whenever any marked goods have become mixed with or contaminated by unmarked goods or any other goods, by an act or omission which by the exercise of reasonable care could not have been avoided, such mixing or contamination shall, in the event that the proportion of the marker present in such mixed or contaminated goods is less than the proportion prescribed by rule in terms of subsection (2)(a), but is equal to or exceeds the proportion prescribed by rule in terms of subsection (2)(c)(iii), be reported immediately to the Commissioner, unless such mixing or contamination occurs within a licensed customs and excise warehouse, and the licensee complies with the provisions of subparagraphs (i) and (ii) of paragraph (b), and a report of each such event is prepared and kept available for inspection by an officer.
(b) Such goods shall, subject to the approval of the Commissioner and to such conditions as the Commissioner may in each case impose –
(i) be mixed or blended with other goods by the licensee of a customs and excise warehouse until the proportion of the marker is less than the proportion prescribed by rule in terms of subsection (2)(c)(iii), in which case the total quantity of such mixed or blended goods shall be liable to the duty applicable to such goods in terms of Schedule No. 1 on removal from such warehouse; or
(ii) be delivered to any person who is registered as required by the rules, for mixing or blending with other goods where such mixed or blended goods are not capable of use as fuel in any engine.
(c) If the Commissioner for any reason finds that such mixed or contaminated marked goods cannot be dealt with as contemplated in paragraph (b) within any reasonable period determined by the Commissioner, such goods shall on expiry of such period be regarded as having been abandoned to the Commissioner and may thereafter be disposed of in such manner as the Commissioner considers reasonable in the circumstances.
(d) The licensee of the customs and excise warehouse, the purchaser or any other person to whom the marked goods were disposed of or whoever had control thereof when such mixing or contamination occurred shall be liable for any reasonable costs and expenses incurred by and charges due to the Commissioner in respect of any handling of and dealing with such goods in accordance with the provisions of paragraph (b) or (c).
(e) Any person who deals with such mixed or contaminated goods contrary to the provisions of paragraph (b), shall, in addition to any other liability incurred in terms of this Act, be liable in respect of the total quantity of such goods for payment of an amount calculated on the same basis as provided in subsection (4)(b).
(8)
(a) Where any goods may be disposed of in terms of section 90, the Commissioner may, notwithstanding the provisions of that section, but subject to such conditions as the Commissioner may in each case impose, which may include conditions requiring payment of any amount determined by the Commissioner –
(i) dispose of such goods for mixing or blending with other goods as contemplated in subsection (7)(b);
(ii) dispose of such goods in any other manner which the Commissioner considers reasonable in the circumstances; or
(iii) order the destruction of such goods.
(b) The person from whom the goods were seized shall be liable for any reasonable costs and expenses incurred by and charges due to the Commissioner in respect of the handling of and dealing with such good as contemplated in paragraph (a).
(9)
(a) No person may acquire or sell or dispose of in any manner, whether or not for any consideration, or be in possession of or have under his control or use –
(i) any goods, other than marked goods, for which provision is made free of duty in Schedule No. 1 as contemplated in subsection (1)(a); or
(ii) any marked goods mixed with any lubricity agent,
except in accordance with the provisions of this section and the rules.
(b) In addition to the provisions of this subsection and any rule made thereunder, except as otherwise provided in any rule, any marked goods mixed or intended to be mixed with any lubricity agent shall be subject to the provisions of this section and the rules relating to marked goods.
(c) Where any person is required by any rule made under paragraph (d) to register with the Commissioner, the Commissioner may –
(i) require before registration that such person furnishes security in such form, nature or amount as the Commissioner may determine;
(ii) at any time require that such security be altered or renewed in such manner as the Commissioner may determine;
(iii) determine the particulars to be furnished on application for registration and the requirements to be complied with before such application is considered;
(iv) register such person subject to such conditions as the Commissioner may in each case impose;
(v) refuse to register any person or class of persons and cancel the registration of any person who has dealt with any goods contrary to the provisions of this section or the rules or any other provision of this Act and refuse re-registration of such person.
(d) The Commissioner may for the purposes of this section, by rule, prescribe the following:
(i) The persons who are required to register and the goods and activities in respect of which they are required to register;
(ii) quantities which shall be subject to any such rule;
(iii) the conditions on which and the purposes for which any marked goods may be mixed with any lubricity agent;
(iv) the conditions on which and the purposes for which any person may sell or dispose of in any manner, whether or not for any consideration, or be in possession of or use, any goods contemplated in this section;
(v) any invoice to be issued, the particulars on such invoice, the person who shall keep such invoice or copy thereof, the persons who are required to complete and keep books, accounts and other documents, the form in which they shall be kept, the particulars to be reflected therein and the period for which they are required to be kept;
(vi) restrictions in respect of the removal and export of any goods to which this section applies;
(vii) all matters which are required or permitted in terms of this section to be prescribed by rule;
(viii) any other matter which the Commissioner may consider necessary and useful to regulate the lawful and prevent the unlawful distribution and consumption of any goods to which this section applies.
(e)
(i) No goods referred to in paragraph (a)(i) shall be used for any other purpose than that for which they are removed from a customs and excise warehouse and in accordance with the conditions imposed by the Commissioner and those prescribed in the rules, except with the prior permission of the Commissioner and on payment of the duties leviable in terms of Schedule No. 1 in respect of unmarked goods: Provided that if the Commissioner so permits, the goods may be mixed or blended with other goods in which case the provisions of subsection (7) shall mutatis mutandis apply to such goods.
(ii) If any goods referred to in paragraph (a)(i) are dealt with contrary to the provisions of this section and the rules, any person who had possession or control of such goods at the time they were so dealt with, shall, in addition to any other liability incurred in terms of this Act, be liable in respect of such goods for payment of an amount calculated on the same basis as provided in subsection (4)(b).
(10) No person shall be entitled to any compensation for any loss or damage arising out of any bona fide action of an officer or any person who assists him under the provisions of this section.
(11) The provisions of section 44A shall mutatis mutandis apply in respect of the liability incurred by any person in terms of this section.
Section 37 (Customs Act) – Duties applicable to goods manufactured in a customs and excise warehouse
37. Duties applicable to goods manufactured in a customs and excise warehouse
(1) In respect of any goods manufactured in a customs and excise warehouse there shall be paid, subject to the provisions of section 75, on entry for home consumption thereof, duty at the undermentioned rates, namely –
(a) if such manufactured goods are not liable to excise duty, the customs rate of duty applicable in terms of Schedules Nos. 1 and 2 on any imported goods used in the manufacture of such manufactured goods and the excise rate of duty applicable in terms of Schedule No. 1 on any excisable goods used in the manufacture of such manufactured goods; and
(b) if such manufactured goods are liable to excise duty, the excise rate of duty applicable in terms of Schedule No. 1 on such manufactured goods.
(2) Notwithstanding the provisions of subsection (1), but subject to the provisions of subsection (4), the Commissioner may, on such conditions as he may in each case impose, for the purpose of preserving any goods in a customs and excise storage warehouse or of reconditioning such goods which, as a result of contamination or deterioration or for any other reason, have become unsaleable or not readily saleable or for the purpose of fulfilling special orders, permit such goods, excluding any marked goods referred to in section 37A, to be reconditioned or to be mixed or blended in such warehouse with other goods, and in that event duty shall be paid, in lieu of the duties prescribed in subsection (1), according to the first account taken of any such goods or the total quantity of such reconditioned, mixed or blended goods, whichever quantity is the greater, as follows, namely –
(a) if such reconditioned, mixed or blended goods are not liable to excise duty, at the customs rate of duty applicable in terms of Schedules Nosection 1 and 2, on any imported goods contained in such reconditioned, mixed or blended goods, and at the excise rate of duty applicable in terms of Schedule No. 1, on any excisable goods contained in such reconditioned, mixed or blended goods; and
(b) if such reconditioned, mixed or blended goods are liable to excise duty, at the excise rate of duty applicable in terms of Schedule No. 1, on the total quantity of such reconditioned, mixed or blended goods, and, in addition thereto, duty in an amount equal to the amount by which the customs duty at the rate applicable in terms of Schedules Nosection 1 and 2, on any imported goods contained in such reconditioned, mixed or blended goods, exceeds the excise duty at the rate applicable in terms of this paragraph on such proportion of such reconditioned, mixed or blended goods as is represented by such imported goods contained therein:
Provided that such reconditioned, mixed or blended goods shall, in either case, qualify for any rebate of duty specified in respect of such goods in any applicable item of Schedule No. 3, 4 or 6.
[Subsection (2) amended by section 8 of Act 84 of 1987 and section 61 of Act 30 of 1998]
(3) Where the Commissioner has permitted any goods to be reconditioned or to be mixed or blended in a customs and excise storage warehouse with other goods, such warehouse shall, without being licensed as a customs and excise manufacturing warehouse and without approval of the premises or plant thereon, be regarded for the purposes of this Act as a licensed customs and excise manufacturing warehouse: Provided that no rebate for any loss or deficiency in respect of petrol and any distillate fuel so reconditioned, mixed or blended exceeding the rebate specified in section 75(18)(d) and (f), respectively, shall be allowed on such goods.
[Subsection (3) amended by section 8 of Act 84 of 1987]
(4)
(a) Notwithstanding anything to the contrary in this Chapter contained, the Commissioner may, on such conditions as he may in each case impose, permit the mixing or blending in such circumstances and at such place as he may specify of any mineral oil products, including fuel levy goods, but excluding any marked goods referred to in section 37A, with one another or with other goods whether or not such products or goods are in a customs and excise warehouse or have been entered for home consumption and have passed out of customs and excise control for any purpose, including that of rendering such goods saleable or more readily saleable or of fulfilling special orders.
[Paragraph (a) substituted by section 8 of Act 84 of 1987 and section 61 of Act 30 of 1998]
(b) The provisions of subsection (2) in so far as they relate to the duty payable and the rebate of duty shall mutatis mutandis apply in respect of mineral oil products mixed or blended under this subsection.
(c) Any duty paid in respect of any goods so used for mixing or blending shall be deemed to have been paid in respect of any duty payable in accordance with the provisions of paragraph (b) in respect of the mineral oil products obtained by such mixing or blending.
(d) Nothing in this section contained shall be construed as authorizing a refund of any amount by which any duty already paid or assessed in respect of any goods so used for mixing or blending exceeds the duty payable under this subsection.
(e) Any such mineral oil product used in such mixing or blending shall be deemed to consist entirely of imported goods unless it is proved that it consists entirely of excisable goods or it is proved that it contains such a small proportion of imported goods that the Commissioner considers it negligible, in which event such mineral oil product shall be deemed to consist entirely of excisable goods.
[Paragraph (e) substituted by section 27 of Act 45 of 1995]
(5) ……….
[Subsection (5) deleted by section 8 of Act 84 of 1987]
(6) If any goods to which this Act relates have become mixed by an act or omission which by the exercise of reasonable care could not have been avoided, the Commissioner may apply the provisions of subsection (2), in so far as that subsection relates to the duty payable and any rebate of duty, as if such goods were mixed in a customs and excise storage warehouse with his permission.
[Subsection (6) substituted by section 7 of Act 98 of 1980 and section 27 of Act 45 of 1995]
(7) Notwithstanding anything to the contrary in this Act contained, the Commissioner may, subject to such conditions as he may in each case impose, regard the mixing of mineral oil products of different classes or kinds as a result of transport by pipeline (except a pipeline used in connection with the loading or discharge of ships or vehicles) or the mixing of imported and locally manufactured mineral oil products of the same class or kind in the ordinary course of transport or storage or distribution in the Republic as not constituting manufacture of a new product, provided the quantities of the constituent products entered before they became so mixed are separately accounted for.
[Subsection (7) added by section 8 of Act 95 of 1965 and substituted by section 27 of Act 45 of 1995]
(8) There shall be paid on entry for home consumption, in addition to any duty payable in terms of this section and subject to the provisions of sections 27 (3) and 75, surcharge or fuel levy at the rate applicable in terms of Schedule No. 1 on any surcharge goods or fuel levy goods used or incorporated in the manufacture, reconditioning, mixing or blending of any goods to which this section relates and on any such manufactured, reconditioned, mixed or blended goods which are liable to surcharge or fuel levy in terms of the said Schedule.
[Subsection (8) added by section 12 of Act 105 of 1969 and substituted by section 8 of Act 84 of 1987 and section 17 of Act 59 of 1990]
(9) No person shall recondition, mix or blend any fuel levy goods otherwise than in terms of the provisions of this section.
[Subsection (9) added by section 8 of Act 84 of 1987]
Section 36A (Customs Act) – Special provisions in respect of manufacture of goods specified in Section B of Part 2 of Schedule No. 1 and collection of excise duty specified in that section
36A. Special provisions in respect of manufacture of goods specified in Section B of Part 2 of Schedule No. 1 and collection of excise duty specified in Section B of Part 2 of Schedule No. 1
(1) Every manufacturer of excisable goods specified in Section B of Part 2 of Schedule No. 1, and every owner of excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured for him partly or wholly from materials owned by such owner, shall license his premises as a special customs and excise warehouse for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 in terms of the provisions of this Act, and no such manufacturer or owner shall manufacture or deal in or with excisable goods specified in Section B of Part 2 of Schedule No. 1 unless he has so licensed his premises.
[Subsection (1) substituted by section 2 of Act 98 of 1993 and amended by section 26 of Act 45 of 1995]
(2) Notwithstanding anything to the contrary in this Act contained –
(a) where the value added by any process in the manufacture of excisable goods specified in Section B of Part 2 of Schedule No. 1 is, in the opinion of the Commissioner, low in relation to the manufacturer’s selling price of such goods, or where any process in the manufacture of excisable goods specified in Section B of Part 2 of Schedule No. 1 presents in his opinion exceptional difficulties in the collection of excise duty specified in Section B of Part 2 of Schedule No. 1 in respect of such goods, the provisions of subsection (1) shall apply, and due entry of such goods shall be effected, at such stage in the manufacture of the said goods as he may determine, and the processes which shall be deemed to be included for the purposes of calculating the value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods shall be as determined by him;
[Paragraph (a) substituted by section 26 of Act 45 of 1995]
(b) the Commissioner may, subject to such conditions as he may impose in each case –
(i) where the production and disposal of any excisable goods specified in Section B of Part 2 of Schedule No. 1 are performed by different persons, or under other circumstances rendering it expedient in his opinion to do so, issue one licence under the provisions of this Act in respect of the premises of two or more persons concerned, and thereupon each such person shall be jointly and severally liable for the excise duty specified in Section B of Part 2 of Schedule No. 1 on all the excisable goods specified in Section B of Part 2 of Schedule No. 1 concerned, any one paying, the other or others to be absolved pro tanto;
(ii) include in a special customs and excise warehouse licence issued under this Act in respect of the premises of any manufacturer of excisable goods specified in Section B of Part 2 of Schedule No. 1, any warehouse, depot, agency, branch or other storage place approved by the Commissioner and in which any such goods owned by such manufacturer are stored, and thereupon such goods so stored shall, for the purposes of this Act, be deemed to be in the licensed special customs and excise warehouse of such manufacturer, and the licensee concerned shall be liable as such in all respects for compliance with the requirements of this Act and for the excise duty specified in Section B of Part 2 of Schedule No. 1 on such goods so stored;
(iii) in such circumstances as he may deem expedient, license the premises of any dealer in excisable goods specified in Section B of Part 2 of Schedule No. 1 as a special customs and excise warehouse under the provisions of this Act, and thereupon such dealer shall comply with the requirements of this Act relating to the collection of excise duty specified in Section B of Part 2 of Schedule No. 1 on such excisable goods specified in Section B of Part 2 of Schedule No. 1 as the Commissioner may determine, and be liable for the excise duty specified in Section B of Part 2 of Schedule No. 1 on such goods;
(iv) make such temporary or permanent adjustment to the excise duty value of excisable goods specified in Section B of Part 2 of Schedule No. 1 as he may deem reasonable in circumstances which are in his opinion exceptional.
(3) Excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured in the Republic by any person for his own use and not for sale or disposal and in circumstances which in the opinion of the Commissioner do not constitute a business venture, may, subject to such conditions as he may impose in each case, be exempted by the Commissioner from the payment of excise duty specified in Section B of Part 2 of Schedule No. 1 thereon.
[Subsection (3) substituted by section 26 of Act 45 of 1995]
(4) Excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured in the Republic by any person for sale or disposal and in the circumstances which in the opinion of the Commissioner constitute a business venture, or any class or kind of such goods, may, subject to such conditions as he may impose by rule, be exempted by the Commissioner from the payment of excise duty specified in Section B of Part 2 of Schedule No. 1 thereon if –
(a) the average value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods or such class or kind of such goods has during such period or periods as the Commissioner may prescribe by rule, not exceeded such amount as he may so prescribe; or
(b) the value for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 of such goods or such class or kind of such goods is in the opinion of the Commissioner not likely to exceed the amount referred to in paragraph (a) during one calendar year; or
(c) such circumstances as may be prescribed by rule apply.
[Subsection (4) substituted by section 26 of Act 45 of 1995]
[Section 36A inserted by section 11 of Act 105 of 1969, substituted by section 4 of Act 52 of 1986, amended by section 2 of Act 69 of 1988 and substituted by section 16 of Act 59 of 1990]