4 March 2024 – The Commissioner for the South African Revenue Service (SARS), Mr Edward Kieswetter, welcomed the High Court decision, which dismissed an application for leave to appeal by British Petroleum of South Africa (BPSA) to review the Commissioner’s decision to refuse its refund claims and levy forfeiture under the Promotion of Administrative Justice Act (PAJA).
In the same matter, the High Court also referred to trial BPSA’s review of the Commissioner’s further decision, taken in terms of section 88(2)(a)(i) of the Customs and Excise Act, 1964 (Act 91 of 1964), to levy payment in lieu of forfeiture on the allegedly exported fuel.
BPSA argued that the High Court should have referred the appeal on the Commissioner’s Customs determination to trial as well. The High Court refused this request on the basis that there was no dispute of facts on matters of Customs determination but only on forfeiture.
The High Court’s decision of last week Thursday, is a sequel to its earlier judgement of 12 January 2024 where it dismissed BPSA’s appeal under section 47(9)(e) of the Customs and Excise Act against determinations made under the Act by the Commissioner.
Those determinations were that BPSA did not qualify for refunds of duty paid on fuel that BPSA says was exported to Zimbabwe. This is so because BPSA cannot prove that fuel was exported to Zimbabwe, nor can it identify the consignee who received the export delivery in Zimbabwe.
Commissioner Kieswetter expressed his satisfaction that the court has provided legal certainty and clarity on how SARS should deal with ghost exports. He said: “SARS has had to deal with this phenomenon of phantom exports with attendant costs to the fiscus, resulting in underserved refunds.” SARS is working very hard to assist taxpayers to meet their legal obligations and facilitate trade. However, it will make it hard and costly for taxpayers who are engaged in non-compliant behaviour. “This will be pursued without fear, favour or prejudice,” he concluded.
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