Tholo Energy Services CC v Commissioner for the South African Revenue Service [2023] ZAGPPHC 82; 47405/2020 (3 February 2023)

Tholo Energy Services CC v Commissioner for the South African Revenue Service [2023] ZAGPPHC 82; 47405/2020 (3 February 2023)

The court held that the appeal under section 47(9)(e) of the Customs and Excise Act is a wider appeal, permitting the respondent to rely on additional grounds for disallowing the refund claim, provided they are relevant and connected to the initial determination. The applicant failed to comply with the statutory requirements for a refund: it did not obtain fuel from a licensed customs and excise manufacturing warehouse, did not export or remove the fuel to Lesotho as a licensed distributor, and did not pay for the fuel. The evidence showed that Tholo Lesotho, a separate entity, paid for and transported the fuel, and the fuel was sourced from locations not licensed as customs and excise...

Citation
[2023] ZAGPPHC 82
Parties
Applicant: Tholo Energy Services CC; Respondent: Commissioner for the South African Revenue Service
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 February 2023
Case Number
47405/2020
Procedural Posture
Civil Appeal / Appeal Against Administrative Determination Under Section 47(9)(e) of the Customs and Excise Act
Outcome
Appeal dismissed with costs.
Judges
Molotsi
Legal Topics
Customs and Excise Act, Refund Claims, Licensed Distributor Requirements, International Trade Permits, Interpretation of Statutes
Tax Law Administrative Law Customs and Excise Act Refund Claims Licensed Distributor Requirements International Trade Permits Interpretation of Statutes

Case Brief

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Parties

Tholo Energy Services CC

Applicant

Commissioner for the South African Revenue Service

Respondent

Procedural Posture

Civil Appeal / Appeal Against Administrative Determination Under Section 47(9)(e) of the Customs and Excise Act

Legal Issues

  1. 1 Is the appeal under section 47(9)(e) of the Customs and Excise Act a narrow or wider appeal?
  2. 2 Did the applicant comply with section 64F, Rule 19A4.04(iii) & (iv), and schedule 6 part 3 note 12 item 671.11(b) of the Act?
  3. 3 Is the applicant entitled to claim a refund under section 75(1)(d) of the Act?

Ratio Decidendi

The court held that the appeal under section 47(9)(e) of the Customs and Excise Act is a wider appeal, permitting the respondent to rely on additional grounds for disallowing the refund claim, provided they are relevant and connected to the initial determination. The applicant failed to comply with the statutory requirements for a refund: it did not obtain fuel from a licensed customs and excise manufacturing warehouse, did not export or remove the fuel to Lesotho as a licensed distributor, and did not pay for the fuel. The evidence showed that Tholo Lesotho, a separate entity, paid for and transported the fuel, and the fuel was sourced from locations not licensed as customs and excise...

Court Disposition

Appeal dismissed with costs.

Orders

  • The applicant's appeal in terms of section 47(9)(e) of the Customs and Excise Act is dismissed with costs.