6 July 2018 by Tax & Exchange Control Alert

Customs and Excise Highlights

This week’s selected highlights in the Customs and Excise environment since our last instalment.

1. Amendments to Rules to the Customs & Excise Act, No 91 of 1964 (Act) (certain sections quoted from the SARS website):

  • Substitution in item 202.00 of the Schedule to the rules for form DA 179 relating to amendments to the Health Promotion Levy on Sugary Beverages.

  • Schedule 2:

Substitution of safeguard item 260.03/72.08/01.04 and 260.03/7225.40/01.06 to exclude rebate item range 460.15/7208.5/01.05 to 460.15/7208.5/07.05 and 460.15/7225.40/01.06 to 460.15/7225.40/09.06 in order to exclude certain hot-rolled steel from being subject to safeguard duty, with effect from 29 June 2018 up to and including 10 August 2018;

Substitution of safeguard item 260.03/72.08/01.04 and 260.03/7225.40/01.06 to exclude rebate item range 460.15/7208.5/01.05 to 460.15/7208.5/07.05 and 460.15/7225.40/01.06 to 460.15/7225.40/09.06 in order to exclude certain hot-rolled steel from being subject to safeguard duty, with effect from 11 August 2018 up to and including 10 August 2019;

Substitution of safeguard item 260.03/72.08/01.04 and 260.03/7225.40/01.06 to exclude rebate item range 460.15/7208.5/01.05 to 460.15/7208.5/07.05 and 460.15/7225.40/01.06 to 460.15/7225.40/09.06 in order to exclude certain hot-rolled steel from being subject to safeguard duty, with effect from 11 August 2019 up to and including 10 August 2020;

  • Schedule 4:

Insertion of various rebate items applicable to heading 72.08 and tariff heading 7225.40 respectively in order to create a rebate facility on certain hot-rolled steel;

2. SARS has published the “South African Revenue Service – Service Charter”. It provides [relating to customs and excise (inter alia)] the following:

  • Customs registrations will be finalised within 5 business days where no inspection is required and where an inspection is required, the application will be finalised within 21 business days;
  • Customs declarations will be processed within 4 hours of receipt and where an inspection is required, within 48 hours;
  • Customs and excise refunds will be paid within 30 business days of finalising the application and refunds will be paid into the same deferment account, provided that the original payment was also made from this deferment account;
  • When application is made for deferral or suspension of payment and all the requirements have been met, SARS will endeavour to consider the request within 21 business days of receipt of the complete application;
  • Finalise and communicate the outcome of the Determination of Tariff/Valuation/Origin within 90 days of receipt of all required information/documentation (excluding cases of escalation or exceptional cases, ie World Customs Organisation or legal referrals); and
  • Comments can be e-mailed to Oocregistration@sars.gov.za.

Most of the timeframes appear to have been reduced, but whereas earlier tariff applications took approximately 2 months to complete, which now may take much longer, such as 4 to 7 months (or longer), it appears that currently it may take around 3 months.

3. The Department of Trade and Industry published:

  • Government notice number 627 dated 22 June 2018 in Government Gazette number 41722. It provides for the intended amendment of the compulsory specification (in terms of the National Regulator for Compulsory Specification Act, No 5 of 2008) for the safety of lighters. The notice relates to not only manufacture, but also the import of lighters. Comments are due within 2 months from the date of the publication.
  • Government notice number 628 dated 22 June 2018 in Government Gazette number 41722. It provides for the amendment of the compulsory specification (in terms of the National Regulator for Compulsory Specification Act, No 5 of 2008) for canned fish, marine molluscs, crustaceans and products derived therefrom with effect from 6 months from the date thereof. The notice relates to not only production, manufacture, processing and treatment of these products, but also import and export thereof.

4. The Department of Agriculture, Forestry and Fisheries published government notice number 631 dated 22 June 2018 in Government Gazette number 41723. It provides for Regulations relating to the grading, packing and marking of fresh fruits intended for sale in South Africa (which may include importation thereof) in terms of the Agricultural Product Standards Act, No 119 of 1990 and will come into operation in 30 days after the publication thereof.

5. New case law/authority – The Commissioner for the South African Revenue Service v The South African Breweries (Pty) Ltd (442/2017) [2018] ZASCA 101 (27 June 2018) in the Supreme Court of Appeal:

The judgment provides as follows:

“[1] This appeal concerns the correct classification of certain products for purposes of excise duty payable under the Customs and Excise Act, No 91 of 1964 (the Act). The products, known as ‘flavoured alcoholic beverages or FABs’, are manufactured by the respondent, the South African Breweries… , a manufacturer and distributor of alcoholic beverages.

…….

[2] … In the determination … the FAB’s were classified under tariff heading TH2208.90.22 … An appeal by SAB … against the determination, was upheld by the … High Court … In effect the high court found that, as had been contended by SAB, the FAB’s were classifiable under TH2206.00.85.

…….

[12] … With effect from 27 February 2013 item 2206.00.85 was amended to read: ‘Other mixtures of fermented fruit beverages or mead beverages and non-alcoholic beverages, unfortified, with an alcoholic strength of at least 2,5 per cent by volume but not exceeding 15 per cent by volume’.

…….

[16] In classifying the FAB’s under TH22.08, the Commissioner relied on explanatory note 14 in that heading which provides for the inclusion of ‘alcoholic lemonade’ thereunder. The expert evidence established that the FABs would qualify as ‘alcoholic lemonade’ as that term is understood in the trade … Further, for the FABs to qualify for classification under TH2206.00.85 (as contended for by SAB) each of the components (alcoholic and non-alcoholic) had to be beverages in their own right. In this case the FABs were not a mixture of two main components; they were merely flavoured alcohol produced by adding ingredients (eg flavourants, colourants, sweeteners) to the base alcohol. Instead of a true non-alcoholic component as contemplated in TH22.02, the non-alcoholic components were only a preparation as contemplated in TH21.06 (read with explanatory note 7 in the relevant sub-heading).

…….

[17] SAB on the other hand contended that the FABs were fermented alcoholic beverages which could only be properly classified under TH22.06 … The argument was that the FABs were mixtures of a fermented beverage and a non-alcoholic beverage and should thus be classified under TH2206.00.85 until 27 February 2013 and under TH2206.00.90 thereafter …

…….

[23] As stated above this court held in Distell that the headings are the first and paramount consideration in determining classification between headings. Where, as in this case, the distinctive feature (fermented beverage) of an FAB is clearly provided for in the tariff, it is impermissible to ignore the appropriate heading. While in this case the FABs may be capable of being classified under two headings, that would only serve to make Rule 3(a) of application and that rule would direct us to TH22.06. So, whether classification is under GRI 1, on the footing that the FABs do not resort under TH22.08, or under Rule 3(a) on the basis that they may possibly fall under both 22.06 and 22.08, the outcome is the same.

[24] General Rule of Interpretation 4, on which the Commissioner also relies, finds no application in this case.

…….

It is clear that this Rule becomes relevant only when application of the preceding Rules (1, 2, and 3) does not yield any classification results. That is not the case here.

…….

[25] The main basis on which the Commissioner seeks to classify the FABs under TH22.08 (that is, the inclusion, under this heading, of ‘alcoholic lemonade’) creates a false conflict between heading TH22.08 and note 14 thereto. In Thomas Barlow, Miller AJA and Trollip JA postulated instances of direct and irreconcilable conflict between an Explanatory Note and the terms of a relevant heading. But, it must be stressed that even in Thomas Barlow the conflict was hypothetical. In the end, the following principles enunciated by Trollip JA in that case have prevailed for almost five decades:

‘… Consequently, I think that in using the Brussels Notes one must construe them so as to conform with and not to override or contradict the plain meaning of the headings and notes. If an irreconcilable conflict between the two should arise, which in my view is not the case here, then possibly the meaning of the headings and notes should prevail, because, although s47(8)(a) of the Act says that the interpretation of the Schedule shall be subject to
’the Brussels Notes, the latter themselves say in effect that the headings and notes are paramount, that is, they must prevail’.

…….

[28] Tariff heading 22.08 for which the Commissioner contends, provides for spirits, liqueurs and other spirituous beverages. Spirits are by their nature, a concentrate and
are made by a process of distillation. The FABs in question bear neither of these qualities. They do not have the qualities of or essence of

distilled FABs. And they are clearly not liqueurs. Neither the ascertainment of the meaning of the words used in TH22.08, nor the characteristics of the FABs, result in classification under that tariff heading.

…….

[32] … the FABs can only be correctly classified under ‘other’ (2206.00.90) in both Part 1 and Part 2A of the Schedule.”.

It therefore appears that the SCA confirmed that if there is a dispute between the explanatory notes and the terms of the headings, that the terms of the headings are paramount.

6.    The Freight and Trade Weekly reported yesterday that SARS has appointed a new acting Chief Officer, Customs & Excise. Mr. Beyers Theron (previously Executive: Customs and Excise Centre of Excellence) replaces Mr. Teboho Mokoena, who will return to his position as Chief Officer: Human Capital and Development.

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