64G. Licensing of degrouping depot
(1)
(a) Any reference in this section to a-
Section 62 (Customs Act) – Agricultural distillers
62. Agricultural distillers
(1) ……….
[Subsection (1) substituted by section 8 of Act 57 of 1966 and section 7 of Act 103 of 1972 and deleted by section 12 of Act 86 of 1982]
(2) After the commencement of this Act a licence under this Act as an agricultural distiller shall not be granted to any person –
(a) who had not at any time before such commencement been licensed under any law relating to excise as an agricultural distiller; or
(b) who, after such commencement, has for any continuous period of more than twelve months not been the holder of a licence as an agricultural distiller issued under this Act.
(3) No licence issued under this Act to any person as an agricultural distiller may be transferred to any other person or from one farm to another, except in circumstances which the Commissioner may deem exceptional or, in the event of the death of the licensee or the expropriation in terms of the Expropriation Act, 1975 (Act No. 63 of 1975), of a farm in respect of which the licence was issued, with the written permission of the Commissioner and subject to such conditions as he may determine.
[Subsection (3) substituted by section 12 of Act 86 of 1982]
(4)
(a) Any licence issued under this Act to any person as an agricultural distiller shall, subject to the provisions of subsection (3), lapse upon the death of the licensee or upon conviction of the licensee of any offence under this Act or any law relating to the illicit manufacture, conveyance, supply or possession of intoxicating liquor.
[Paragraph (a) substituted by section 12 of Act 86 of 1982]
(b) For the purposes of this subsection the imposition of a penalty by the Commissioner under the provisions of section 91 shall be deemed to be a conviction under this Act.
(5) The provisions of subsections (2) and (4) and of section 63(3) shall not apply in the case of an agricultural distiller who produces annually a quantity of spirits which exceeds a quantity determined by the Commissioner and who produces such spirits for a purpose approved by the Commissioner.
[Subsection (5) substituted by section 8 of Act 57 of 1966]
Chapter VIII – Registration, licensing and accredited clients
CHAPTER VIII
REGISTRATION, LICENSING AND ACCREDITED CLIENTS
[Heading substituted by section 44 of Act 19 of 2001]
Section 59 (Customs Act) – Contract prices may be varied to extent of alteration in duty
59. Contract prices may be varied to extent of alteration in duty
(1) Whenever any duty is imposed or increased, directly or indirectly, by amendment in any manner of any Schedule to this Act, on any goods and such goods, in pursuance of a contract made before such duty or increased duty became payable, are thereafter delivered to and accepted by the purchaser, the seller of the goods may, in the absence of agreement to the contrary, recover as an addition to the contract price a sum equal to any amount paid by him by reason of the said duty or increase.
(2) Whenever any duty is withdrawn or decreased, directly or indirectly, by amendment in any manner of any Schedule to this Act, on any goods, and such goods in pursuance of a contract made before the withdrawal or decrease became effective are thereafter delivered to the purchaser, the purchaser of the goods may, in the absence of agreement to the contrary, if the seller has in respect of those goods had the benefit of the withdrawal or decrease, deduct from the contract price a sum equal to the said duty or decrease.
(3) The provisions of this section shall also apply to a contract for the hiring of any goods or the use of any goods in rendering a service at a contract price, and the expressions “seller” and “purchaser” shall correspondingly be construed as including the person by whom and the person to whom the goods are hired or the service rendered.
Section 54F (Customs Act) – Rules
54F. Rules
The Commissioner may prescribe by rule-
(a) any procedure in addition to or in substitution of any existing rule regulating procedures in respect of the importation of goods and imported goods or excisable goods in order to provide for any necessary exception or adaptation in administering the provisions of this Chapter;
(b) mutatis mutandis for the purposes of this Chapter, any procedure to which section 19A and its rules relate;
(c) the form of agreement to be entered into between the applicant and the Commissioner;
(d) the accounts and other documents to be kept and to be submitted when payment is made;
(e) all matters which are required or permitted in terms of this Chapter to be prescribed by rule;
(f) any other matter which is necessary to prescribe and useful to achieve the efficient and effective administration of this Chapter.
[Section 47H renumbered to 54F by section 32 of Act 16 of 2004, effective on 1 June 2004]
[Chapter VA inserted by section 139 of Act 45 of 2003]
Section 54 (Customs Act) – Special provisions regarding the importation of cigarettes
54. Special provisions regarding the importation of cigarettes
(1) The Commissioner may prescribe by rule-
(a) the sizes and types of containers in which cigarettes may be imported into the Republic;
(b) distinguishing marks or numbers in addition to the stamp impression referred to in subsection (2) which must or must not appear on containers of imported cigarettes;
(c) any other matter which is necessary to prescribe and useful to achieve the efficient and effective administration of this section.
[Subsection (1) substituted by section 43 of Act 45 of 1995 and section 141 of Act 45 of 2003]
(2) No person may import any cigarettes unless-
(a) if entered for home consumption, a stamp impression determined by the Commissioner has been made on their containers; or
(b) if entered for storage in a customs and excise warehouse for export such stamp impression does not appear on the containers; and
(c) the cigarettes otherwise comply with the requirements prescribed by rule.
[Subsection (2) substituted by section 141 of Act 45 of 2003]
(3) No imported cigarettes shall be sold or disposed of or removed from the customs and excise warehouse concerned except in accordance with the provisions of this Act.
(a) No cigarettes in containers bearing the stamp impression referred to in subsection (2), may be entered for removal in bond as contemplated in section 18 for transit through the Republic.
(b) Any cigarettes in containers bearing such stamp impression so entered for removal in bond shall be liable to forfeiture in accordance with the provisions of this Act.
[Subsection (4) inserted by section 19 of Act 32 of 2005]
[Section 54 amended by section 3 of Act 85 of 1968 and substituted by section 13 of Act 112 of 1977]
Section 50 (Customs Act) – Provisions relating to the disclosure of information in terms of agreements
50. Provisions relating to the disclosure of information in terms of agreements
(1) Notwithstanding the provisions of section 4(3) or any other law relating to confidentiality or secrecy, but subject to section 101B, the Commissioner may, in accordance with-
(a) any international agreement in respect of mutual administrative assistance and cooperation or exchange of information in customs matters which is in force and binds the Republic in terms of section 231 of the Constitution of the Republic of South Africa, 1996, hereinafter referred to as the ‘Constitution’; or
(b) any other international agreement which is in force and binds the Republic in terms of section 231 of the Constitution, and in circumstances where the Commissioner is on good cause shown, satisfied that the international or regional interest or national public interest in the disclosure of information outweighs any potential harm to the person, firm or business to whom or to which such information relates-
(i) disclose, or for the purpose of paragraph (a), in writing authorise any officer to disclose, any information relating to any person, firm or business acquired by an officer in carrying out any duty under this Act;
(ii) render mutual and technical assistance in accordance with any agreement contemplated in paragraph (a); and
(iii) in writing authorise any officer to exercise any power under this Act which may be considered necessary for the purpose of rendering such assistance or obtaining such information.
(2)
(a)
(i) If any agreement referred to in subsection (1)(a) provides for the automatic exchange of information of the cross-border movement of means of transport, goods and persons the Commissioner may determine the information, including the contents of any documents relating to clearance declarations for such movement, that will be allowed to be disclosed as contemplated in subsection(1)(b)(i).
(ii) Notwithstanding subsection (1) and subparagraph (i), the Commissioner may not disclose information in terms of this section where any of the grounds for refusal referred to in Chapter 4 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), applies except if disclosure is authorised for the purposes contemplated in section 46 of that Act.
(b) For the purposes of this subsection automatic exchange of information may include the systematic supply of clearance information in terms of the agreement by the customs authority of the sending party to the customs authority of the receiving party in an agreed electronic or other structured format in advance of the arrival of the persons, goods or means of transport in the territory of the receiving party.
(c) Any information automatically exchanged shall be treated as confidential by the receiving party and may only be used for the purposes of risk analysis by the customs authority of that party except if the party providing the information in writing authorises its use for other purposes or by other authorities in terms of the provisions of the agreement regulating the exchange of such information.
(d) The Commissioner may, in respect of the automatic exchange of information-
(i) authorise the use for other purposes or by other authorities of the information provided by the other party to the agreement as contemplated in paragraph (c);
(ii) specify conditions on which any information will be exchanged and on which it may be used for any other purpose or by any other authority;
(iii) refuse the exchange of information with a party to any agreement if the information will not be afforded in the territory of that party a level of protection that satisfies the requirements of this Act.
(e) For the purposes of this subsection any reference to the ‘Commissioner’ includes any officer contemplated in subsection (1)(b).
(3) The Commissioner may for the purposes of subsection (1)(b)-
(a) disclose information or authorise disclosure to a person authorised to act on behalf of any international agency, institution or organisation with which an agreement has been entered into with the Republic; and
(b) specify the purpose for which such disclosure is authorised and the manner in which or the conditions under which such disclosure is to be made.
(4) The Commissioner may make rules in respect of any matter which the Commissioner reasonably considers to be necessary and useful to achieve the efficient and effective administration of this section.
[Section 50 repealed by section 4 of Act 7 of 1974, inserted by section 66 of Act 30 of 1998 and substituted by section 105 of Act 74 of 2002 and section 50 of Act 44 of 2014 effective on 20 January 2015]
Section 45 (Customs Act) – Determination of duty applicable
45. Determination of duty applicable
(1)
(a) Notwithstanding anything to the contrary in this Act contained, all goods consigned to or imported into the Republic or stored or manufactured in a customs and excise warehouse or removed in bond shall upon being entered for home consumption be liable to such duties (including anti-dumping duties, countervailing duties and safeguard duties specified in Schedule No. 2 and new or increased duties referred to in section 58(1) and duties imposed under the provisions of section 53 as may at the time of such entry be leviable upon such goods.
[Paragraph (a) substituted by section 1 of Act 61 of 92]
(b) Notwithstanding the provisions of paragraph (a) but subject to the provisions of section 40, any dutiable goods imported into or manufactured in the Republic and which were removed, taken or delivered without due entry for home consumption having been made in respect of such goods, shall be liable to such duties as may be leviable upon such goods at the time of such removal, taking or delivery or at the time of assessment by an officer, whichever yields the greater amount of duty.
[Subsection (1) substituted by section 9 of Act 112 of 1977 and section 6 of Act 101 of 1985]
(2) For the purposes of this section, the time of entry for home consumption of –
(a) goods imported by post (and not entered at a customs and excise office before a Controller) shall be deemed to be the time when such goods are assessed for duty; and
(b) goods imported otherwise shall be deemed to be the time when the bill of entry concerned is delivered to the Controller in terms of section 39 (1)(a) and at a place indicated by the Controller, irrespective of whether that bill of entry is returned by the Controller in order to be adjusted as required by the Controller, provided it is redelivered, so adjusted, to the Controller within five days calculated as prescribed by rule, after the day on which it was so returned by the Controller.
[Paragraph (b) substituted by section 35 of Act 45 of 1995]
[Subsection (2) substituted by section 7 of Act 86 of 1982]
Section 36 (Customs Act) – Specific provisions regarding beer
36. Specific provisions regarding beer
(1) For the purposes of this section, “beer” means beer made from malt classified under the specified in tariff item 104.10 of Part 2 of Schedule No. 1.
[Subsection (1) substituted by section 49 of Act 53 of 1999]
(2)
(a) Every manufacturer shall, in respect of beer manufactured by the manufacturer in the Republic, register with the Commissioner the brand names whereunder such beer will be sold or disposed of for home consumption, together with the alcoholic strength by volume and the quantity which will be indicated on each container size of the beer so sold or disposed of under any such name, and no beer shall be so sold or disposed of unless so registered.
(b)
(i) The provisions of paragraph (a) shall apply mutatis mutandis if any of such registered particulars should change.
(ii) Any such change shall be registered within the time prescribed by rule.
(c) Where beer is subject to further fermentation after being packaged, the alcoholic strength by volume to be registered and indicated on the container shall be the strength which the beer is reasonably expected to have when consumed.
(d) No brew of beer shall be packaged for home consumption if the alcoholic strength by volume thereof exceeds such registered strength after deduction of any tolerance prescribed by rule.
(e) If beer in bulk is removed in bond from a customs and excise manufacturing warehouse the alcoholic strength by volume shall be tested before removal and recorded on all documents of removal and reflected in the records required to be kept in terms of the rules.
[Subsection (2) substituted by section 2 of Act 44 of 1996 and section 49 of Act 53 of 1999]
(3) No beer shall be sold or disposed of by any manufacturer for home consumption except in a container which indicates the brand name, the alcoholic strength by volume and quantity of such beer, and any invoice or other document relating to such sale or disposal of such beer shall indicate the registered brand name thereof.
[Subsection (3) substituted by section 49 of Act 53 of 1999]
(4) Any description on any container of beer bearing an indication of a brand name, alcoholic strength by volume and quantity registered with the Commissioner shall be deemed to be a declaration for the purpose of assessment of duty.
[Subsection (4) substituted by section 49 of Act 53 of 1999]
(5) The Commissioner may exempt beer of any class or kind from any or all of the provisions of subsections (2) and (3).
(6)
(a) If the actual alcoholic strength by volume of any beer in any container not intended for export as contemplated in subsection (9), bearing an indication of a name and alcoholic strength by volume registered with the Commissioner under this section is ascertained, after deduction of any tolerance prescribed by rule, to be higher than the alcoholic strength by volume registered in relation to beer of such name the manufacturer shall be liable for the duty on the full quantity of the brew or blend of brews of beer from which such container was filled according to the actual strength as ascertained in respect of the contents of such container.
[Paragraph (a) substituted by section 2 of Act 44 of 1996 and section 49 of Act 53 of 1999]
(b) If the Commissioner is unable to establish such full quantity from the records of the manufacturer he may determine a quantity which shall be deemed to be such full quantity.
(c) Any beer of any brew or blend of brews of beer referred to in paragraph (a) and not delivered from the stocks of such manufacturer shall be liable to forfeiture.
(7)
(a) Every manufacturer shall –
(i) test the alcoholic strength by volume of each brew using a method approved by the Commissioner and record the results of each test as prescribed by rule;
(ii) keep a record of the actual quantity of beer in each container size packaged for sale or disposal for home consumption.
(b)
(i) Where the average of the test results for any registered brand name over any two successive periods of three months show that the average alcoholic strength by volume, although within any tolerance prescribed by rule, exceeds the registered strength after deduction of any average allowance as may be prescribed by rule, duty shall, if the Commissioner so determines, be payable in respect of such excess strength on all the beer accounted for during such periods.
(ii) Payment of such duty shall be shown separately on, and included with, the first account presented to the Controller after the end of such period.
(iii) Where the average alcoholic strength by volume so exceeds the registered strength, the manufacturer shall change the registration within the time prescribed by rule.
(c)
(i) Where the actual total quantity of beer of each container size sold or disposed of for home consumption during any period of three months exceeds the calculated total quantity, according to the registration for such container size, and after deduction of any average allowance as may be prescribed by rule, duty shall be payable on the excess quantity.
(ii) Such excess quantity shall be shown separately on, and payment of duty thereon included with, the first account presented to the Controller after the end of such period.
(d) A manufacturer shall not be entitled to any refund of duty if the alcoholic strength referred to in paragraph (b) or the quantity referred to in paragraph (c) is less than the registered strength or quantity, as the case may be.
[Subsection (7) added by section 49 of Act 53 of 1999]
(8)
(a) An officer may take samples of any beer at any time and send such samples for analysis to a person designated under paragraph (b).
(b) The Commissioner may designate any person to analyse such samples.
[Subsection (8) added by section 49 of Act 53 of 1999]
(9) Any beer intended for export shall only be exported in containers with a distinguishing mark approved by the Commissioner.
[Subsection (9) added by section 49 of Act 53 of 1999]
(10) The Commissioner may be rule prescribe the following in relation to beer:
(a) The manner in which alcoholic strength by volume and quantity are determined for the purposes of registration;
(b) the tolerance allowable on registered alcoholic strength by volume;
(c) the average allowances for the purposes of subsection (7)(b)(i) and (c)(i);
(d) records to be kept and reports to be furnished of ingredients used, production, test results of the alcoholic strength by volume of brews, quantities manufactured and put in containers, losses and beer returned;
(e) the procedure or method for the taking of samples by an officer; the method of analysis of such sample; the form for reporting on the analysis of such sample by a designated person; the results of such analysis; and any other particulars as may be required on such form;
(f) the time and circumstances within which any change of the alcoholic strength by volume or quantity is required to be registered;
(g) any other reasonable measure for controlling the manufacturing processes or the removal of beer for home consumption or export.
[Subsection (10) added by section 49 of Act 53 of 1999]
[Section 36 amended by section 4 of Act 103 of 1972 and section 6 of Act 98 of 1980 and substituted by section 25 of Act 45 of 1995]
Section 18A (Customs Act) – Exportation of goods from customs and excise warehouse
18A. Exportation of goods from customs and excise warehouse
(1) Notwithstanding any liability for duty incurred thereby by any person in terms of any other provision of this Act, any person who exports any goods from a customs and excise warehouse to any place outside the common customs area shall, subject to the provisions of subsection (2), be liable for the duty on all goods which he or she so exports.
[Subsection (1) substituted by section 27 of Act 18 of 2009]
(2)
(a) Subject to the provisions of subsection (3), any liability for duty in terms of subsection (1) shall cease if –
(i) the said goods have been duly taken out of the common customs area; or,
(ii) in circumstances and in accordance with procedures which the Commissioner may determine by rule, the goods have been duly accounted for in the country of destination.
(b) An exporter who is liable for duty as contemplated in subsection (1) must –
(i) obtain valid proof that liability has ceased as specified in paragraph (a)(i) or (ii) within the period and in compliance with such requirements as may be prescribed by rule;
(ii) keep such proof and other information and documents relating to such export as contemplated in section 101 and the rules made thereunder available for inspection by an officer; and
(iii) submit such proof and other information and documents to the Commissioner at such time and in such form and manner as the Commissioner may require; or
(iv)
(aa) notify the Commissioner immediately if liability has not ceased as required in terms of paragraph (a)(i) or (ii) or valid proof has not been obtained as contemplated in subparagraph (i); and
(bb) submit payment of duty and value-added tax payable in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), together with such notification as if the goods were entered for home consumption on the date of entry for export.
(c) Subject to subsection (3), there shall be no liability for duty on any goods where such liability was discovered as a result of, or following upon, any such inspection by an officer or a request by the Commissioner as contemplated in paragraph (b)(ii) and (iii), respectively, where that liability occurred on a date earlier than two years prior to the date on which such inspection commenced or such request was made.
[Subsection (2) substituted by section 12 of Act 45 of 1995, section 120 of Act 60 of 2001 and section 27 of Act 18 of 2009]
(3) If –
(a) the liability has not ceased as contemplated in subsection (2)(a); or
(b) the goods have been diverted or deemed to have been diverted as contemplated in subsection (9),
such person shall, except if payment has been made as contemplated in subsection (2)(b)(iv), upon demand pay –
(i) the duty and value-added tax due in terms of the Value-Added Tax Act 1991 (Act No. 89 of 1991), as if the goods were entered for home consumption on the date of entry for export;
(ii) any amount that may be due in terms of section 88(2); and
(iii) any interest due in terms of section 105:
Provided that such payment shall not indemnify a person against any fine or penalty provided for in this Act.
[Subsection (3) substituted by section 12 of Act 45 of 1995 and section 27 of Act 18 of 2009]
(4) No goods shall be exported in terms of this section –
(a) until they have been entered for export; and
(b) unless, except as otherwise provided in the rules, they are removed for export by a licensed remover in bond as contemplated in section 64D.
[Subsection (4) substituted by section 38 of Act 19 of 2001]
(5) No such entry for export shall be tendered by or may be accepted from a person who has not furnished such security as the Commissioner may require, and the Commissioner may at any time require that the form, nature or amount of that security be altered in such manner as he may determine.
(6) The said exportation of goods shall be subject to the rules and such conditions as the Commissioner may impose in respect of the goods concerned or any class or kind of those goods or those goods exported in circumstances specified by him, and the Controller may refuse to accept bills of entry for the said exportation of goods from an exporter who has failed to comply with the said rules or conditions or who has committed an offence referred to in section 80.
[Subsection (6) substituted by section 12 of Act 45 of 1995]
(7) ……….
[Subsection (7) deleted by section 12 of Act 45 of 1995]
(8) The Commissioner may determine the roads and routes and the means of carriage of any goods so exported or any class or kind of those goods or any such goods carried in circumstances specified by him.
(9)
(a) No person shall, without the permission of the Commissioner, divert any goods for export to a destination other than the destination declared on entry for export or deliver such goods or cause such goods to be delivered in the Republic or any other country in the common customs area.
(b) Goods shall be deemed to have been so diverted where –
(i) no permission to divert such goods has been granted by the Commissioner as contemplated in paragraph (a) and the person concerned fails to produce valid proof and other information and documents for inspection to an officer or to submit such proof, information and documents to the Commissioner as required in terms of subsection (2)(b)(ii) and (iii), respectively;
(ii) any such proof is the result of fraud, misrepresentation or non-disclosure of material facts; or
(iii) such person makes a false declaration for the purpose of this section.
(c) Where any person fails to comply with or contravenes any provision of this subsection the goods shall be liable to forfeiture in accordance with this Act.
[Subsection (9) substituted by section 27 of Act 18 of 2009]
(10) The Commissioner may specify the documents to be produced by the exporter upon entry for exportation in respect of any goods so exported or any class or kind of those goods or any such goods exported in circumstances or to a destination specified by him.
[Section 18A inserted by section 5 of Act 84 of 1987]