Customs and Excise highlights
A brief background of the case is as follows: a party (AA) imported certain goods into a bonded warehouse and as such deferred payment of duty and value-added tax (VAT) until clearance for home consumption. Subsequently, AA was to be wound up, and the liquidators demanded that the goods in the bonded warehouse be delivered to them without payment of duty and VAT in order for the liquidation process to continue (ie sale of the goods, share of the proceeds between the creditors, and so on). The South African Revenue Service (SARS) was of the view that the duty and VAT first had to be paid before delivery of the goods to the liquidators.
The SCA found that s20(4), s38, s39 and s114 of the Customs and Excise Act, No 91 of 1964 do not create an embargo in favour of SARS, preventing the liquidator from taking possession of property in terms of the Insolvency Act, No 24 of 1936 until duty and VAT is paid.
Interestingly, the SCA concluded as follows:
One final reason for rejecting the Commissioner’s claims is that the Insolvency Act makes specific provision for the preference that the claims in issue in this case are to enjoy in the event of insolvency. The relevant sections are ss99(1)(cA) and (cD) of the Insolvency Act. The effect of the argument on behalf of the Commissioner would be to nullify these provisions in relation to these claims by giving the Commissioner a right to payment in preference to all other creditors. The statutory priority given to funeral and death bed expenses; the costs of sequestration and administration of the estate; the costs of execution; salaries and wages; payments of amounts due for workmen’s compensation; income tax and payments under the Pneumoconiosis Compensation Act, No 64 of 1962; would all have to give way to claims under the Customs Act and the VAT Act. That would be so even though the Insolvency Act specifically confers on such claims a priority over the claims here in issue. That is not a sensible or realistic interpretation of the relevant statutory provisions.
The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to our full terms and conditions. Copyright © 2024 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us cliffedekkerhofmeyr@cdhlegal.com.
Subscribe
We support our clients’ strategic and operational needs by offering innovative, integrated and high quality thought leadership. To stay up to date on the latest legal developments that may potentially impact your business, subscribe to our alerts, seminar and webinar invitations.
Subscribe