3rd 2010 Supreme Court of Appeal customs case In earlier columns this year, we informed of the three (3) Supreme Court of Appeal customs cases to be heard during the first quarter this year. The first case to be heard on 16 February 2010 was the Commissioner for the South African Revenue Service (SARS) versus Fascination Wigs (Pty) Ltd; the second case on 18 February 2010 was 3M South Africa (Pty) Ltd versus Commissioner for SARS and another; and the third case on 15 March 2010 was AMI Forwarding (Pty) Ltd versus Government of South Africa (Department Customs and Excise) and another. We have in subsequent columns informed of the first two judgments. The third judgement, however, was delivered on 03 May 2010, but only just released for public information. The case relates to the liability under Section 18 (“Removal of Goods in Bond”) and Section 18A (“Exportation of Goods from a Customs and Excise Warehouse”) of the Customs and Excise Act (“the Act”), as to whether a clearing and forwarding agent had proved that it was not liable for the payment of duties. The matter originates in October 2000 when SARS demanded that AMI Forwarding (Pty) Ltd pay customs duties in respect of three bills of entry that had been falsely acquitted. In May 2010 a second demand was made in respect of 68 bills of entry, with the allegation that bills of entry had not been acquitted. In October 2002 a third demand was made, but this time it was made in respect of 49 bills of entry in the second demand, a SARS employee having found the acquittals in respect of 19 bills of entry referred to in the second demand. The issue in question relates to the SARS allegation of falsified acquittals, which raises the question as to who bears the onus of proving the falsification? According to the judgment, when SARS alleged fraud, which it did in the plea, it had to prove that the bills of entry had been falsely acquitted. The judge indicated that he could see no reason why the onus of proving fraud should shift from SARS to AMI Forwarding (Pty) Ltd. Thus once AMI Forwarding (Pty) Ltd had proved the acquittal, then SARS had to prove its allegation. SARS was not able to do so. As a consequence the judge determined, in AMI Forwarding (Pty) Ltd’s favour, that it had discharged the onus of proving that the bills of entry had been acquitted and that it was not liable for the payment of customs duties. The appeal was upheld with costs, including those of the two counsels.Rebate item – the manufacture of paintballs The creation of a Rebate Item (also known as a “rebate provision”) for polyether- polyols containing two or more hydroxyl groups, liquids or pastes, with hydroxyl number exceeding 100mg KOH/g but not exceeding 800mg KOH/g used in the manufacture of paintballs. The tariff investigation lodged by Bulls Eye Paint Balls CC, was published in the Government Gazette of 23 October 2009. The investigation took 203 days to complete. Draft rule amendments for comment On 14 May 2010 SARS published draft Rule amendments to the Customs and Excise Act for wine on line. Comments are due by 28 May 2010.
