Page 750 - SAIT Compendium 2016 Volume1

CASE DIGEST 2012–2013
Held
In the appeal case, it became clear that any agreement about the particular mode of payment will be reached only if the creditor stipulates, requests or authorises a particular method of payment and the debtor accepts the decision.
The notice in the tax assessment did not provide Stabilpave with a choice in which method the refund will be made. The notice merely informed the taxpayer. The notice did not imply request or election of a payment method by Stabilpave. The payment method was dictated by SARS.
It was held that the risk of loss of the cheque was not assumed by Stabilpave but remained with SARS. The court order read as follows:
a) The appeal is upheld with costs.
b) The judgment is granted in favour of the plaintiff against the defendant for:
i) Payment of the amount of R724 494.29;
ii) Interest a tempore morae on the aforesaid sum at the rate of 15.5 per cent per annum from 17 October 2006
until date of payment; iii) Cost of suit.
[Link: http://c.ymcdn.com/sites/www.thesait.org.za/resource/resmgr/2014_case_law/stabilpave_(pty)_ltd_v_south.pdf]
20. Validity of tariff determination in terms of the Customs and Excise Act made by SARS in respect of certain imported goods
[Terraplas SA (Pty) Ltd v CSARS 75 SATC 319]
Introduction
The North Gauteng High Court heard the matter between Terraplas South Africa (Pty) Ltd and the Commissioner for the South African Revenue Service on 10 August 2012. Judgment was delivered on 20 February 2013.
This was a decision in respect of an appeal in terms of s 47(9)(e) of the Customs and Excise Act 91 of 1964, in respect of a tariff determination by the Commissioner for the South African Revenue Service. The appellant objected to a tariff determination made by the respondent in respect of certain goods imported by it.
Facts
The Commissioner for SARS (‘the respondent’) classi ed tiles under tariff heading 3926.90.90, which is subject to import duty at a rate of 10%.
The appellant contended that the appropriate classi cation was 3918.90.40, on which the import duty rate is 1.3%.
The tariff heading contended by the Commissioner reads ‘Other articles of plastics and articles of other materials of headings 39.01 to 39.25’.
The tariff heading contended by the appellant reads: ‘Floor coverings of plastics, whether or not self-adhesive, in rolls or in the form of tiles’.
The issue to decide was whether the tiles are ‘ oor coverings’ as contemplated in tariff heading 39.18.
Held
Makgoka J referred to International Business Machines SA (Pty) Ltd v Commissioner for Customs and Excise, where it was remarked that, the interpretation of Schedule 1 for purposes of classi cation must be effective, rstly, with reference to the headings and their subheadings falling under the chapters and subchapters. Secondly, reference should be had to the notes to each section or chapter.
Accordingly, it was held that the most appropriate classi cation was 3918.90.40 as contended by Terraplas SA (Pty) Ltd (the ‘appellant’).
The appeal was upheld and the Commissioner’s classi cation was set aside.
[Link: http://c.ymcdn.com/sites/www.thesait.org.za/resource/resmgr/2014_case_law/terraplas_south_africa_(pty).pdf]
21. Appeal lodged by State against a decision of a regional magistrate allowing and upholding a plea in terms of s 106(1)(h) of the Criminal Procedure Act
[The State v Hendrik Frederick Delport and 7 others (North Gauteng High Court, Pretoria – 13 June 2013)]
Introduction
This case was initiated by an appeal lodged by the State against a decision made by a regional magistrate sitting in the regional court of Pretoria.
Facts
The magistrate allowed the eight respondents to make a plea in terms of s 106(1)(h) of the Criminal Procedure Act after the State had closed its case. The eight respondents were (together with six other accused persons) accused of 7 239 charges that included fraud and contraventions of:
• section 2(1)(a) of the Prevention of Organised Crime Act 121 of 1998 for the involvement in racketeering activities; • the Customs and Excise Act 91 of 1964 for exporting goods to a destination other than the one indicated at the time of
clearance of the goods for the export;
• the Value-Added Tax Act 89 of 1991 for submitting false returns claiming refunds or exemptions; and • the Riotous Assemblies Act 17 of 1956 for conspiracy to commit fraud.
742 SAIT CompendIum oF TAx LegISLATIon VoLume 1