Glencore International AG v Commissioner for the South African Revenue Services (34490/2021) [2022] ZAGPPHC 951 (7 December 2022)

Glencore International AG v Commissioner for the South African Revenue Services (34490/2021) [2022] ZAGPPHC 951 (7 December 2022)

The court found that SARS's decision to declare the goods as diverted and to impose forfeiture, VAT, and VAT penalties was irrational and unlawful. The evidence showed that both WE and DP bills of entry were submitted for the same consignments, resulting in duplication on SARS's system. Glencore's submission of VOC corrections was in compliance with its statutory obligations under Section 40(3)(a)(i), and SARS accepted these corrections. The DP bills of entry reflected the intended purpose of the goods, and VAT was paid accordingly. The rationale for declaring the DP bills of entry null and void, based on alleged misleading reasons for correction, was not supported by the facts. The...

Citation
[2022] ZAGPPHC 951
Parties
Applicant: Glencore International AG; Respondent: Commissioner for the South African Revenue Services
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 December 2022
Case Number
34490/2021
Procedural Posture
Review Application / Judgment
Outcome
Application granted; all SARS decisions regarding diversion, forfeiture, VAT, and penalties set aside.
Judges
L.A. Retief
Legal Topics
Customs and Excise Act, Promotion of Administrative Justice Act, Vat Liability, Forfeiture of Goods, Procedural Fairness, Review of Administrative Action
Tax Law Administrative Law Civil Procedure Customs and Excise Act Promotion of Administrative Justice Act Vat Liability Forfeiture of Goods Procedural Fairness +1 more

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Parties

Glencore International AG

Applicant

Commissioner for the South African Revenue Services

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether SARS's decision to declare the goods as diverted under Section 18(13) of the Customs and Excise Act was lawful.
  2. 2 Whether the imposition of forfeiture, VAT, and VAT penalties by SARS was justified.
  3. 3 Whether the VOC corrections submitted by Glencore were valid and effective under the Act.

Ratio Decidendi

The court found that SARS's decision to declare the goods as diverted and to impose forfeiture, VAT, and VAT penalties was irrational and unlawful. The evidence showed that both WE and DP bills of entry were submitted for the same consignments, resulting in duplication on SARS's system. Glencore's submission of VOC corrections was in compliance with its statutory obligations under Section 40(3)(a)(i), and SARS accepted these corrections. The DP bills of entry reflected the intended purpose of the goods, and VAT was paid accordingly. The rationale for declaring the DP bills of entry null and void, based on alleged misleading reasons for correction, was not supported by the facts. The...

Court Disposition

Application granted; all SARS decisions regarding diversion, forfeiture, VAT, and penalties set aside.

Orders

  • The Commissioner's decisions contained in annexures FA5 and FA17 and confirmed by the Internal Administrative Appeal Committee in annexures FA9 and FA21, that Glencore diverted the goods, are set aside.
  • The Commissioner's decisions to demand payment of VAT and VAT penalties are set aside.