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Customs and Excise Act, 1964 (Act No. 91 of 1964)

Chapter V : Clearance and Origin of Goods, Liability for and Payment of Duties

47. Payment of duty and rate of duty applicable

 

(1) Subject to the provisions of this Act, duty shall be paid for the benefit of the National Revenue Fund on all imported goods, all excisable goods, all surcharge goods, all environmental levy goods, all fuel levy goods and all Road Accident Fund levy goods in accordance with the provisions of Schedule No. 1 at the time of entry for home consumption of such goods: Provided that the Commissioner may condone any underpayment of such duty where the amount of such underpayment in the case of—
(a) goods imported by post is less than fifty cents;
(b) goods imported in any other manner is less than five rand; or
(c) excisable goods is less than two rand.

 

(2) [Section 47(2) has been deleted]

 

(3)
(a) Any rate of duty other than the general rate specified in respect of any heading or subheading in any column of Part 1 of Schedule No. 1 shall apply to imported goods to which such heading or subheading relates if such goods qualify for the benefit of such rate in accordance with—
(i) any provision of origin contained in any part of the schedule to the General Notes of Schedule No. 1 and any other provision referred to in section 48(1A) applicable to such column, any provision relating to tariff quotas, any applicable provision in the said Part 1 and any Note to such Part or schedule; and
(ii) any rule made in terms of section 49 to give effect to any provision of origin of any agreement contemplated in the said section or in connection with any tariff quotas or any other condition or procedure that may be applicable to any goods specified in the said column.
(b) The expression "any provision of origin" includes provisions relating to "originating products", "originating status", "rules of origin" or like expressions, and "goods obtained, produced or manufactured" in any part of the said schedule to the General Notes of Schedule No. 1 and, unless the context otherwise indicates, any provision in this Act in respect of the origin of goods.
(c) Any reference in any agreement contemplated in section 49 or 51 to the "most-favoured-nation-rate of duty" or the "MFN tariff" or the "MFN rate of duty" or like expressions shall, unless otherwise specified in Part 1 of Schedule No. 1, for the purposes of this Act, be deemed to be a reference to the rates of duty specified in respect of any heading or subheading in the column for general rates of duty in the said Part 1 of Schedule No. 1.

 

(4) [Section 47(4) deleted by section 4(1)(b) of Act No. 69 of 1988.]

 

(5) Any export duty which may become payable in terms of section 48(4) shall be paid for the benefit of the National Revenue Fund, at the time of entry for export, on such goods as may be specified in Part 6 of Schedule No. 1 in terms of the provisions of the said section.

 

(6) Any duty payable in terms of section 53, any anti-dumping duty payable in terms of section 56, any countervailing duty payable in terms of section 56A and any safeguard duty payable in terms of section 57 shall be paid for the benefit of the National Revenue Fund in accordance with the provisions of the said sections.

 

(7) To the extent that any goods, classifiable under any tariff heading or subheading of Part 1 of Schedule No. 1 that is expressly quoted in any tariff item, environmental levy item, fuel levy item, Road Accident Fund levy item or item of Part 2, 3, 5A, 5B or 6 of the said Schedule or in any item in Schedule No. 2, are specified in any such tariff item, environmental levy item, fuel levy item, Road Accident Fund levy item or item, the item concerned shall be deemed to include only such goods classifiable under such tariff heading or subheading.

 

(8)
(a) The interpretation of—
(i) any tariff heading or tariff subheading in Part 1 of Schedule No. 1;
(ii)
(aa) any tariff item or fuel levy item or item specified in Part 2, 5 or 6 of the said Schedule, and
(bb) any item specified in Schedule No. 2, 3, 4, 5 or 6;
(iii) the general rules for the interpretation of Schedule No. 1; and
(iv) every section note and chapter note in Part 1 of Schedule No. 1,

shall be subject to the International Convention on the Harmonized Commodity Description and Coding System done in Brussels on 14 June 1983 and to the Explanatory Notes to the Harmonised System issued by the Customs Co-operation Council, Brussels (now known as the World Customs Organisation) from time to time: Provided that where the application of any part of such Notes or any addendum thereto or any explanation thereof is optional the application of such part, addendum or explanation shall be in the discretion of the Commissioner.

(b) The Commissioner shall obtain and keep in his office two copies of such Explanatory Notes and shall effect thereto any amendment of which he is notified by the said Council from time to time and shall record the date of effecting each such amendment and any such amendment shall, for the purposes of this Act, be effective from the date so recorded.
(c) Whenever in any legal proceedings any question arises as to the contents of such Explanatory Notes or as to the date upon which any amendment thereto was effected, a copy of such Explanatory Notes as amended in terms of this subsection shall be accepted as sufficient evidence of the contents thereof and of the effective date of any amendment thereto.

 

(9)
(a)
(i) The Commissioner may, in writing, subject to section 74G(2)(b), determine—

[Words preceding section 47(9)(a)(i)(aa) substituted by section 13(1)(a) of the Tax Administration Laws Amendment Act, 2022 (Act No. 16 of 2022), Notice No. 1542, GG47827, dated 5 January 2023 - comes into effect on the date when Chapter IXA becomes effective in terms of section 17(2) of this Act (section 13(2))]

(aa) the tariff headings, tariff sub-headings or tariff items or other items of any Schedule under which any imported goods, goods manufactured in the Republic or goods exported shall be classified; or
(bb) whether goods so classified under such tariff headings, tariff subheadings, tariff items or other items of Schedule No. 3, 4, 5 or 6 may be used, manufactured, exported or otherwise disposed of or have been used, manufactured, exported or otherwise disposed of as provided in such tariff items or other items specified in any such Schedule.
(ii) The acceptance by any officer of a bill of entry or the release of any goods as entered shall be deemed not to be any such determination.
(iii) Any determination made under this subsection shall operate—
(aa) only in respect of the goods mentioned therein and the person in whose name it is issued; and
(bb) subject to the provisions of section 44(11)(c) and 76B and subsections (10) and (11), from the date the determination is issued.
(iv)
(aa) For the purposes of this subparagraph "alcoholic beverages" means alcoholic beverages as contemplated in Chapter 22 of Part 1 of Schedule No. 1.
(bb) Notwithstanding anything to the contrary contained in this Act, every manufacturer or importer of an alcoholic beverage shall, irrespective of any existing tariff determination at the time this subparagraph comes into operation, apply for a tariff determination of that beverage in terms of this paragraph.
(cc) An application for a tariff determination shall be accompanied by—
(A) detailed information of the brand name, process of manufacture, the ingredients used, the proportion in which they are used, the alcoholic strength and such other particulars as the Commissioner may specify; and
(B) if applicable, a letter from the administering officer referred to in section 3 of the Liquor Products Act, 1989 (Act No. 60 of 1989), confirming that the alcoholic beverage complies with that Act.
(dd) Notwithstanding subsection (3) of section 4, but subject, with the necessary changes, to the proviso to subsection (3) and subsections (3A), (3C) and (3D) of that section, the Commissioner may disclose any information provided in terms of item (cc) to the Director General of the Department of Agriculture, Forestry and Fisheries.
(ee) After the date this subparagraph comes into operation, application for a tariff determination shall be made for an alcoholic beverage—
(A) before release of a clearance for home consumption of the first importation; or
(B) before removal from the excise manufacturing warehouse for any purpose in terms of this Act,

as may be applicable in respect of that alcoholic beverage.

(ff) The Commissioner may, for the purposes of implementation of this subparagraph, by rule—
(A) specify a period after the date this subparagraph comes into operation within which and the order in which an application for a tariff determination in respect of any class or kind of alcoholic beverage manufactured or imported shall be submitted; and
(B) prescribe any other matter as contemplated in subsection (13).
(gg) If, for any alcoholic beverage, the brand name, process of manufacture, any ingredient or the proportion in which it is used, or the alcoholic strength changes, application for a new tariff determination shall be made before release of a clearance for home consumption or before removal from the excise manufacturing warehouse for any purpose in terms of this Act, as may be applicable in respect of that alcoholic beverage.
(hh) This subparagraph may not be read as preventing any officer from performing any function contemplated in section 106.

[Section 479(a)(iv) inserted by section 15 of Act No. 44 of 2014]

(b)
(i) Whenever any determination is made under paragraph (a) or any determination is amended or withdrawn and a new determination is made under paragraph (d), any amount due in terms thereof shall, notwithstanding that such determination is being dealt with in terms of any procedure contemplated in Chapter XA or any proceedings have been instituted in any court in connection therewith, remain payable as long as such determination or amended or new determination remains in force: Provided that the Commissioner may on good cause shown, suspend such payment until the date of any final judgment by the High Court or a judgment by the Supreme Court of Appeal.
(ii) Such determination, amendment of a determination or new determination shall cease to be in force from the date—
(aa) of the amendment of or the withdrawal and insertion of any Schedule or any amendment of the Explanatory Notes as contemplated in subsection (8)(b) with the result that the said determination, amended determination or new determination no longer conforms to the interpretation of the relevant provisions of such Schedule or Explanatory Notes;
(bb) when it is no longer compatible with a final judgment by the High Court or a judgment by the Supreme Court of Appeal, from the date of such judgment; or
(cc) any amendment of a determination or new determination is made effective under paragraph (d) or as a result of the finalisation of any procedure contemplated in Chapter XA.
(c) Whenever a court amends or orders the Commissioner to amend any determination made under subsection (9)(a) or (d) or any determination is amended or a new determination is made under paragraph (d) or as a result of the finalization of any procedure contemplated in Chapter XA, the Commissioner shall not be liable to pay interest on any amount refundable which remained payable in terms of the provisions of paragraph (b)(i) for any period during which such determination remained in force.
(d)
(i) The Commissioner shall, subject to section 74G(2)(b)—

[Words preceding section 47(9)(d)(i)(aa) substituted by section 13(1)(b) of the Tax Administration Laws Amendment Act, 2022 (Act No. 16 of 2022), Notice No. 1542, GG47827, dated 5 January 2023 - comes into effect on the date when Chapter IXA becomes effective in terms of section 17(2) of this Act (section 13(2))]

(aa) amend any determination or withdraw it and make a new determination with effect from the date it is no longer in force as provided in paragraph (b)(ii)(aa) or (bb);
(bb) except where a determination is being dealt with in terms of any procedure contemplated in Chapter XA, amend any determination or withdraw it and make a new determination if it was made in error or any condition or obligation on which it was issued is no longer fulfilled or on any other good cause shown including any relevant ground for review contemplated in section 6 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).
(ii) Any such amendment or new determination contemplated in paragraph (i)(bb) may be made with effect from—
(aa) subject to the provisions of section 44(11)(c), the date of first entry of the goods in question in circumstances where a false declaration is made for the purposes of this Act;
(bb) the date of first entry, if the determination was made—
(A) by an officer who was biased or reasonably suspected of bias; or
(B) for an ulterior purpose or motive, arbitrarily or capriciously or in bad faith;
(cc) subject to subsection (12), the date of the determination made under paragraph (a) in circumstances where such determination was made in bona fide error of law or of fact; or
(dd) the date of the amendment of the previous determination or the date of the new determination: Provided that whenever any amendment of a determination or a new determination is effective from a date resulting in the person to whom the determination was issued—
(a) being entitled to a refund of duty, such refund shall be subject to the provisions of section 76B;
(b) retrospectively incurring an increased liability for duty, such liability shall, subject to the provisions of section 44(11)(c), be limited to goods entered for home consumption during a period of two years immediately preceding the date of such amendment or new determination.
(e) An appeal against any such determination shall lie to the division of the High Court of South Africa having jurisdiction to hear appeals in the area wherein the determination was made, or the goods in question were entered for home consumption.
(f) Such appeal shall, subject to section 96(1), be prosecuted within a period of one year from the date of the determination.

 

(10) Save where—
(a) a determination has been made under subsection (9)(a) or (d); or
(b) subject to section 44(11)(c), any underpayment arises from the circumstances contemplated in the proviso to section 44(11)(a),

there shall be no liability for any underpayment in duty on any goods, where such underpayment is due to the acceptance of a bill of entry bearing an incorrect tariff heading, tariff subheading or tariff item or other item of any Schedule, after a period of two years from the date of entry of such goods.

 

(11)
(a) Notwithstanding the provisions of subsection (10), any determination made under subsection (9)(a) as a result of or during the course of or following upon an inspection of the books, accounts and other documents of an importer, exporter, manufacturer or user of goods, shall, subject to the provisions of section 44(11)(c), be deemed to have come into operation in respect of the goods in question entered for the purposes of this Act two years prior to the date on which the inspection commenced.
(b) The expression "inspection of any books, accounts and other documents", or any other reference to an inspection in this Act shall be taken to include any act done by an officer in the exercise of any duty imposed or power conferred by this Act for the purposes of the physical examination of goods and documents upon or after or in the absence of entry, the issue of stop notes or other reports, the making of assessments and any pre- or post-importation audit, investigation, inspection or verification of any such books, accounts and other documents required to be kept under this Act.

 

(12)
(a) For the purposes of any binding tariff determination provided for in this subsection, unless the context otherwise indicates—

 

"applicant" means the person who has applied to the Commissioner for a binding tariff determination;

 

"binding tariff determination" means a tariff determination binding on the Commissioner when it is issued to the applicant after compliance with the provisions of this subsection and the rules;

 

"holder"

means the person in whose name the binding determination is issued.

(b)
(i) An application for a binding tariff determination shall relate to only one type of goods and shall contain the particulars and comply with the requirements specified by rule.
(ii) Any binding tariff determination is issued in the name of the holder and is operative only in respect of the holder.
(iii) A binding tariff determination shall be binding on the Commissioner only in respect of—
(aa) the classification of goods in any heading, subheading, tariff item or other item of any Schedule;
(bb) goods entered or deemed to have been entered for customs or excise purposes after the date the binding tariff determination is issued.
(iv) When entering any goods for which a binding tariff determination has been issued the holder must—
(aa) furnish information of the binding tariff determination issued for the goods concerned;
(bb) be able to prove that the goods in question conform in all respects to the goods described in the information when application for a binding tariff determination was made.
(c)
(i) A binding tariff determination shall be annulled by the Commissioner if it is found that it was issued on the basis of incorrect or incomplete information.
(ii) Such annulment shall be effective from the date the determination was made.
(d)
(i) A binding tariff determination shall be valid for a period of six years, but shall cease to be valid in the circumstances and from the dates contemplated in section 47(9)(b)(ii).
(ii) The provisions of subsection (9)(d) shall apply mutatis mutandis whenever the Commissioner amends any binding tariff determination or withdraws it and makes a new determination.
(iii) Notwithstanding the provision of subparagraphs (i) and (ii), if the Commissioner so permits, the holder of a binding tariff determination may still use such determination for period of six months from the date specified therein, or until the period of six years expires whichever is the earlier date provided—
(aa) such holder concluded binding contracts for the purchase or sale of the goods in question on the basis of such determination before any such date;
(bb) such determination is used solely for determining duties;
(cc) it relates to any certificate under which the goods concerned are allowed to be imported under rebate or free of duty.
(iv) Any holder who wishes to make use of the possibility of invoking such determination as provided in subparagraph (iii), shall notify the Commissioner and provide the necessary supporting documents to enable a check to be made whether the conditions specified in the said subparagraph (iii) have been satisfied.

 

(13) The Commissioner may make rules in respect of—
(i) all matters which are required or permitted in terms of this section to be prescribed by rule;
(ii) any other matter which the Commissioner may consider reasonably necessary and useful for the purposes of administering the provisions of this section.