Customs and Excise Act

This section gives the Act its short title: the Customs and Excise Act.

This section defines terms used in the Act.

This section defines which goods and conveyances are subject to customs control.

This section defines when goods are imported or exported: importation occurs when goods cross into Malaŵi, and exportation occurs when goods cross out of Malaŵi.

Goods are treated as entered for customs purposes only when the required declaration is presented and accepted, any required signature is made if appropriate, and duty is paid or security is accepted or waived.

A Controller of Customs and Excise must be appointed, and the Minister may give that Controller special and general directions, subject to public service law.

The Controller may delegate customs-law powers or duties, and may confer or impose officer powers or duties, subject to stated conditions.

The Minister may prescribe and appoint certain ports, customs airports, roads or routes, customs offices, hours, and places for entry of goods.

The Controller may appoint customs-related stations, stores, warehouses, wharves, places, and entrances/exits.

The Controller may license private sidings and air freight licensees on application, and may set, refuse, revoke, renew, or vary licence conditions. Applicants or licensees must give security and pay a prescribed fee, and every licence expires on 31 December after issue.

Customs areas must be kept available for inspection and movement in or out is restricted unless through appointed points or with written permission.

The public service hours are to be prescribed, and requests for an officer outside those hours must be handled under prescribed conditions and fees.

Officers may question, search, and require documents or explanations from certain persons under customs control rules.

An officer may require a package owner to open a customs-controlled package and may inspect, weigh, measure, mark, or seal it; the owner must not remove or dispose of the package or goods until release by the proper officer.

Proper officers may enter, inspect, search, copy, seize, and secure customs-related places and records, and occupiers must help them do so.

Officers may search and control conveyances, and conveyance masters must stop and remain stationary when required.

Officers in duty, and helpers, may patrol and pass freely in any place except buildings. An officer in charge of a conveyance used to prevent smuggling may move and keep it where he considers convenient and necessary for that purpose.

An officer may take and keep samples of goods without payment for examination or to determine duties payable, and must take only the minimum quantity needed; samples should be returned to the owner whenever possible.

An officer or police officer may arrest a person suspected on reasonable grounds of customs-law offences and may use reasonable force.

If lawful powers are exercised and no customs-law breach is found, the Department must make good physical damage to persons, goods, or premises unless the damage was caused by the person concerned obstructing or failing to follow directions.

The Minister may allow prohibited or restricted goods to be imported for scientific investigation, study, evidence in court, or similar purposes. Goods in transit are not subject to these rules if they are duly exported.

Masters of aircraft or vessels arriving from a foreign port must follow arrival and departure controls, use approved ports or wharves, and comply with officer directions.

Most people may not board certain aircraft or any vessel unless the proper officer permits it; some officers are exempt.

The master or agent of an arriving aircraft or vessel must declare it to the proper officer, produce relevant documents, and answer questions before goods are unloaded.

The Controller may allow a declaration, or part of it, to be dispensed with in the stated port-arrival situation.

A ship or aircraft master at a port may not keep on board or unload cargo without prior permission from the proper officer, and any conditions the officer sets must be followed.

The person in charge of a train must report the train’s arrival to the proper officer at the port before unloading or disposing of customs-controlled goods, and must produce prescribed records or data.

A person in charge of a non-train vehicle arriving from a foreign port must go to the nearest prescribed port, report arrival, make the required declaration, and answer questions before unloading or disembarking passengers; the vehicle cannot leave the port without the proper officer’s approval.

People arriving from a foreign port must report to customs, make the required declaration, provide relevant records and truthful answers, and not dispose of goods until customs release them. The Controller may exempt persons or classes of persons subject to conditions.

Goods declared under this Part, or shown in records as consigned to Malaŵi from a foreign port, are treated as imported unless the proper officer is satisfied otherwise. The proper officer may let wrongly consigned or mistakenly imported dutiable goods be exported without paying duty, on conditions the officer imposes.

Imported goods must be moved straight into a temporary store, customs warehouse, or another place the proper officer directs, unless they go to a licensed private siding.

Importers must enter imported goods at the prescribed place and within the prescribed period, unless the Controller directs otherwise.

Some goods may be unloaded and delivered without entry, including mail bags and postal articles, and the proper officer may allow certain goods to be delivered to the owner without entry if a required declaration is later furnished.

If an owner lacks enough documents or information to fully describe goods, the proper officer may let the owner inspect them and may allow entry once required documents are produced and the officer is satisfied with the declaration.

The owner of an importing conveyance remains responsible for imported goods, must comply with customs laws, and is liable for duty until the goods are entered or otherwise accounted for to the Controller’s satisfaction.

The Controller may permit temporary importation of goods, but only under the customs laws and any conditions and period the Controller thinks fit.

This Part does not apply to abandoned or forfeited goods.

Goods in a customs warehouse may be entered by the owner within one month, and may be sold quickly without notice in some cases; removal needs the proper officer’s permission.

The Controller may sell certain unentered or uncleared goods after Gazette notice, then apply the sale proceeds in a set order and pay any balance to the owner if conditions are met.

The proper officer may allow goods to stay in or be moved to another place instead of a customs warehouse, and those goods are then treated as if they had been deposited in a customs warehouse.

The Controller may license places as bonded warehouses, set conditions, and later refuse, revoke, or renew licences. Applicants or licensees must provide security and pay a prescribed fee, and licences expire on 31 December after issue.

A bonded warehouse licence may be transferred to another approved place on application to the Controller, if the place is in the licence holder’s possession.

This section requires notice when a bonded warehouse licence is revoked, refused renewal, or not renewed, and sets out what happens to goods in the warehouse.

A bonded warehouse licensee must provide facilities, keep and show records, handle goods as required, and pay duty on goods not produced when requested.

Certain importers, manufacturers, and purchasers may place goods in a bonded warehouse without paying duty or surtax first, and the Controller and proper officer have related warehousing powers.

The Controller may allow certain operations in a bonded warehouse, but only on conditions he imposes.

Warehoused goods must be entered for consumption, exportation, or rewarehousing before removal from a bonded warehouse, with some exceptions.

An officer may allow samples of warehoused goods to be taken by the owner or importer, and may defer duty payment on those samples; the Controller may also remit that duty.

Goods intended for coastwise carriage must be declared by the master or agent, and a proper officer may allow certain through-carriage arrangements for aircraft or vessels arriving from or departing to a foreign port.

Exports are prohibited if they would breach another written law restricting or prohibiting those goods. The Minister may allow some prohibited or restricted exports for scientific study, evidence in court, or similar purposes. Goods in transit are excluded.

Goods may not be exported or accepted for carriage for exportation until they have been entered for exportation, unless the Controller authorizes it subject to later entry or the Minister prescribes an exemption.

Export goods may only be loaded at a port or approved/prescribed place, and a person needs prior permission to cause or allow goods to be put on board for export.

If export goods are not exported as entered, the owner must notify the proper officer right away, and the officer may require the goods to stay in or be moved to a customs area pending re-export. Re-entry for exportation must be completed within 10 days, unless the proper officer allows up to 30 more days.

A master may not send an aircraft or vessel to a foreign port unless the required permission and clearance rules are followed.

Before crossing the frontier, people in charge of vehicles leaving overland for a foreign port must report, declare, produce documents and goods, and follow any permission or conditions set by the proper officer or Controller.

A master or person in charge of a conveyance must not let it land, touch, or enter anywhere in Malaŵi after leaving for a foreign port, unless this is done in accordance with the customs laws.

For customs law purposes, several acts involving goods are treated as an attempt to export.

Owners must enter goods used as stores on aircraft or vessels before departure, unless an officer requires otherwise for imported goods remaining on board.

The proper officer may allow surplus stores to be entered for warehousing for future use as stores, even if they are prohibited or restricted goods.

Goods in transit must be entered for transit on importation, exported within the allowed time, and not diverted for consumption or warehousing without prior written authority.

Goods imported on a conveyance may pass through Malawi without entry if they are meant to stay on that conveyance, the Controller’s conditions are met, and the proper officer approves.

The owner of goods in transit must give security if required by the proper officer; the proper officer may waive that security in specified secure-conveyance situations.

The Minister may make regulations about excisable goods, the materials and equipment used to make them, notices from excise licence holders, and how excisable goods are accounted for.

Generally, no person may manufacture excisable goods unless authorized by a valid excise licence issued by the Controller and complying with the licence conditions.

Applicants for excise licences must apply in writing to the Controller and provide required information. The Controller may issue, refuse, transfer, suspend, cancel, or refuse to renew licences, and licence fees are capped at 200 Kwacha.

A licensee must stop manufacturing excisable goods immediately when the licence expires unless the Controller has renewed the licence.

Applicants for an excise licence must file an entry of premises with the Controller, and licence holders are restricted to the licensed business and approved uses of the premises and equipment.

Excise licence holders must mark specified premises items as directed, and they must not remove or erase the mark unless the proper officer consents.

Excise licence holders must provide required facilities free of charge, and may have to provide lodgings for certain officers if the Controller requires it.

An excise licence applicant must provide security in the amount the Controller considers appropriate, and the security may be subject to customs-law compliance conditions set by the Controller.

If the Controller requires it, an excise licence holder must display their name conspicuously on the outside of the entered premises.

The Controller may require an excise licence holder to secure buildings, equipment, and premises, and the holder must keep and repair the specified security items and keys as directed.

Tables may be prescribed to work out how much excisable goods are treated as produced from given quantities of material or partly manufactured goods.

Holders of excise licences must keep specified stores and warehouses on entered premises for materials, work-in-progress, and finished products, and excisable goods are generally restricted to those places unless the proper officer or Controller allows otherwise.

This section bans excise licence holders from keeping unauthorized excisable goods on their entered premises, unless the Controller permits it, and bans anyone from concealing, interfering with, or mixing substances with excisable goods without the proper officer’s permission.

Excise licence holders must keep and maintain stock books or computer records, and tobacco product manufacturers must keep an English operations account; the Controller and proper officer have related approval, direction, and inspection powers.

Excise duty becomes payable immediately when excisable goods are removed from an excise warehouse, and certain removals and records must follow the Act or Controller-approved conditions.

The Controller can override the usual deferral rule for excise duty on excisable goods. Otherwise, the duty may be deferred for up to 20 days from month-end, and the monthly duty must be paid by the 20th day of the next month with the required return and records.

The Commissioner General may order certain people or businesses to pay money owed by an excise licence holder, and may require information about related money, funds, or assets.

The Commissioner General may authorize distress in writing to recover unpaid excise duty, penalties, or interest, and authorized persons may execute the warrant and seize property.

People who manufacture, distribute, or import cigarettes must apply cigarette tax stamps to each individual purchase, following the prescribed form and the Commissioner General’s prescribed manner.

A holder of an excise licence may take samples from products during manufacture, if the Controller approves the conditions.

No legal action may be brought against the Government or its officers or employees for loss of or damage to excisable goods in entered premises, or for incorrect or improper delivery to or from those premises.

If an excise licence holder stops manufacturing excisable goods, the holder must notify the Controller in writing and then stop manufacture on the required date.

The Controller may allow stills to be kept and used without a licence in listed cases, but permitted users must follow any conditions set by the Controller.

This section says certain duties are charged and paid under the Act for imported, manufactured, produced, sold, airtime, television subscription, gaming, betting, and lottery goods or services, according to tariffs prescribed by the Minister.

The Minister may, subject to section 84 and by Gazette order, prescribe specified tariffs and amend them.

Orders under section 83 cannot be retrospective and stop having effect unless the National Assembly approves them within the stated time limit.

The Minister may make regulations about how dumping complaints are made and investigated.

Dumping duties must be paid by the importer when the goods are imported, except that sales dumping duty is payable by the seller in Malawi.

A seller may recover a duty increase from the purchaser, and a purchaser may deduct a duty decrease, unless the contract says otherwise.

This section sets the duty rate for certain goods by reference to the relevant time of importation, presentation for assessment, or delivery/use/disposal.

Customs duty rebates may be allowed for goods imported into Malawi if they were grown, produced, or manufactured in countries specified in the customs tariff, subject to sections 117 and 118.

If asked by an officer, people holding or dealing with imported or duty-liable goods must show proof of entry details and that duty was paid.

If duty was underpaid or not paid, the person who should have paid it, or the person holding the goods, must pay the outstanding amount. If duty was refunded by mistake, the recipient of the mistaken refund must repay it.

Unpaid duty becomes a debt to the Government, can be recovered in court, and certain goods can be detained or sold to satisfy it.

The Controller may allow certain fines or customs duties to be paid in instalments, subject to conditions including interest.

The Controller may remit customs duty on a single consignment if the duty is less than ten tambala.

Re-imported goods may be admitted free of duty, or be charged duty, depending on how they were originally exported and whether required proof and conditions are met.

The Minister may suspend duties, grant rebates/remissions/refunds, and later withdraw them by Gazette notice; President-use goods are exempt from duty and paid duty must be refunded.

Goods exported from Malawi in accordance with the Act may qualify for a drawback of duty paid, subject to regulations, limitations, and conditions.

Duty otherwise payable is remitted for goods entered for transit, temporary importation, or exportation from a bonded warehouse or entered premises, if the Controller is satisfied they were duly exported and any required security or undertaking is complied with.

The Controller may refund or remit customs duty for qualifying goods that are lost, damaged, or otherwise meet the section’s conditions.

Refunds paid to the Department are only allowed when authorized by this Act or another written law, and the Controller must authorize an overpayment refund if the stated conditions are met.

Refund of cash deposits used as security is only allowed if the applicant applies properly and on time, and satisfies the Controller of compliance; otherwise the cash is forfeited.

An excise licence holder may get a refund of excise duty and surtax on defective or unsuitable goods if the stated conditions are met.

If the Controller is satisfied that a customs-control deficiency was caused by specified non-excessive causes and the goods did not go into consumption, a refund or remission of duty must be granted. Otherwise, the owner must pay the duty on demand.

If surplus is found in goods under customs control, the owner must, when demanded by the proper officer, enter and pay duty on the surplus not satisfactorily accounted for.

The owner may ask the Controller to allow destruction of goods under customs control, and the Controller may allow it under supervision; if the destruction is outside a customs area, the owner must pay prescribed officer-attendance fees.

The Minister may bring certain government agreements into force by Gazette notice, but the agreement must also be published in the Gazette and laid before the National Assembly within the stated time limits.

Relief from customs duty under section 96 must also be extended to any corresponding special rate of duty for certain goods, unless the Minister directs otherwise by Gazette notice.

Agreements brought into force under section 106 prevail over inconsistent customs law provisions.

If a person claims an exemption, suspension, drawback, rebate, remission, or refund of a duty, fee, or charge, that claimant must prove entitlement.

Tariff goods classification follows the principles set out in the tariff, and a later change that lowers duty does not give anyone a refund for duty already paid, except as provided in Part XIV.

A proper officer may value imported goods under the Act, and that valuation is presumed correct unless disproved.

An owner or importer may appeal to the Controller if they believe goods were incorrectly valued under section 111(1).

When converting a foreign currency value, use the exchange rate the Controller determines after consulting the Reserve Bank of Malaŵi, at the time the duty becomes payable.

A proper officer may value exported goods, and the valuation is presumed correct unless proven otherwise.

The Controller may set and grant tare allowances, and may decide that a package counts as a specified weight or quantity for duty purposes.

Unless a special rule applies, spirits are treated as having the strength determined by prescribed tests.

This section sets how to determine the country of origin of goods.

Rebates of duty under section 89 are allowed only for goods meeting specified country-content rules.

If proving goods’ country of origin is needed under the Act, the owner or importer must do it.

The Minister must appoint a Special Referee for appeals under section 121.

This section lets a goods owner or a person planning to import or manufacture goods appeal a duty dispute to the Special Referee, subject to payment, security, and timing rules.

On an appeal, the Special Referee decides the procedure and may allow evidence from the Controller, the appellant, and anyone who appeared under section 121(5).

The Controller may require security from owners of goods under customs control, and may stop unloading, removal, delivery, or export until that security is given.

The Controller may require security under the customs laws to be given in approved forms, approve periods, refuse sureties, and alter or discharge bonds or guarantees.

A surety is treated as the principal debtor for a bond, and the surety is not discharged by delay, non-enforcement, or similar acts. If the surety dies, becomes bankrupt, or leaves Malawi without enough property to cover the bond, the Controller may require new security from the person who gave the bond.

The Controller may take legal proceedings to enforce a bond or guarantee when its conditions are not met, and may do so in some cases even if the time for performance has not expired. The Commissioner-General may also require the guarantor to liquidate the liability.

Authorized agents may act for the principal in customs matters, but the Controller can reserve some matters to the principal, and officers can demand written authority.

The Commissioner General may license customs agents on application, and can require security and prescribed fees. The Commissioner General may also suspend operations, issue penalties, or revoke a customs agent’s licence for licence-condition violations.

The Commissioner General and the Minister must appoint two committees every two years, and the committees must handle customs-agent interviews, compliance, renewals, and appeals.

The master of an aircraft or vessel may appoint an agent to act for them, but the agent acts at the master’s risk and may have to give security to the Controller. The proper officer at a port may also require the master’s personal attendance at any time.

An authorized agent acting for a principal or aircraft/vessel master can be treated as that principal or master for customs-law purposes and is personally liable for related duties, questions, and offences.

A principal or master who authorizes someone to act for them under the customs laws can be liable for that person’s acts and statements, and can be prosecuted for offences the person commits.

Any person who does one of the listed customs-related acts commits an offence.

Any person who helps, encourages, or is otherwise involved in committing an offence against the customs laws is treated as having committed that offence.

Any person commits an offence if they deal with goods contrary to customs laws, use false declarations, handle goods under customs control outside the laws, tamper with such goods, or pass goods off as smuggled.

Any person commits an offence if they make false customs documents or records, fail to produce or keep required records, tamper with entries, use forged documents, bring or hold blank invoice-like documents to deceive, misuse customs-issued licences or documents, or pay duty by cheque that is dishonoured.

Using a conveyance fitted with hidden or false compartments for smuggling, or failing to explain missing or extra customs-controlled goods on reboarding, is an offence unless the stated excuse is proved.

The master of an aircraft or vessel, or the person in charge of a vehicle, must not let an officer’s lock, mark, or seal be opened, altered, or broken without authority, and may commit an offence if they fail to prevent it or if the conveyance is involved in certain smuggling-related acts.

It is an offence to misuse a customs area, enter or open it without permission or lawful excuse, disobey an officer’s orders, refuse to leave when directed, or remove goods without the proper officer’s permission.

Officers and other persons commit offences if they take or offer improper payments, join corrupt agreements, or unlawfully disclose information.

Any person who does any of the listed excise-related acts commits an offence.

If certain officers or partners of a company breach the customs laws while acting in that role, the breach is treated as a breach by the company or other body.

This section sets fines and prison terms for certain customs-related offences, and imposes a 30% penalty where a duty cheque is dishonoured.

A person who commits an offence under the Act, where no specific penalty is provided, is liable to a fine, a higher goods-based fine, and imprisonment for three years.

A person convicted of an offence under section 140(g) is liable to a fine of five times the excise or revenue involved and imprisonment for two years.

A person who breaches certain excise tax rules must pay the tax owed and specified penalties.

Offences under the customs laws may be treated as cognizable by the police.

Goods involved in customs offences, and certain related conveyances, packages, contents, and security, can be forfeited.

Officers, police officers, and the Controller have powers to seize goods or conveyances suspected to be liable to forfeiture, and the proper officer must usually give written notice of seizure to the owner within 30 days.

Seized goods or conveyances must be detained, may be claimed by the owner within set time limits, and can be forfeited if no claim or proceedings are made.

Forfeited goods vest in the Government without compensation and may be sold, destroyed, or otherwise disposed of by the Controller.

An officer may place an embargo on certain goods instead of seizing them, must notify the owner in writing, and nobody may deal with the goods without written permission from the proper officer until the embargo is withdrawn in writing.

The Controller may allow an owner to abandon goods under customs control to the Department, and if the owner asks at the time, the Controller must remit or refund any duty paid or payable on those goods.

Actions taken under this Part do not stop proceedings, settlement by the Controller, duty liability, refunds/remissions claims, or the lawful sale/disposal of prohibited goods.

Certain civil claims under the customs laws may be heard and decided by a Resident Magistrate court, with no amount limit.

Claims are generally barred against the Government, Department, Controller, and officers for acts done in good faith under customs-law powers, unless the customs laws specifically provide otherwise.

The Controller may sue or be sued under the name “Controller of Customs and Excise.”

Proceedings for customs offences may be started within two years, and seizure powers under section 146 may be used within two years of liability to seizure; fraud extends both periods to five years, and prohibited goods may be seized at any time.

In customs-law proceedings, the prosecuted person or claimant must prove several matters about the goods, and giving security is not a defence.

In customs proceedings, certain certificates, entries, documents, and official statements may be used as prima facie evidence, and some seized goods may be sampled rather than fully opened.

Certain witnesses in customs-law proceedings cannot be compelled to reveal protected information or to produce protected reports or information.

After a customs-law conviction, seized goods or a conveyance are forfeited; after acquittal, the court may release the seized goods or order forfeiture in limited cases.

In recovery proceedings, the court must forfeit the goods, conveyance, or security if the claimant fails to satisfy it they were not liable to forfeiture; if the claimant satisfies the court, the court must release them subject to duty payment and any imposed conditions.

A conveyance liable to forfeiture cannot be forfeited unless the owner is given a chance to be heard, and innocent owners can avoid forfeiture of certain goods or conveyances if they prove lack of knowledge, inability to prevent the offence, or later purchase for true value without knowledge of liability.

The Controller may settle a customs offence case if the person admits the offence in writing and agrees to pay the duty and a money sum within the fine limit; the Controller may also order forfeiture of related goods.

If the Controller settles an offence, the order must be written, state the offence and penalty, and may be enforced like a court order.

A customs declaration may be made before the proper officer, and a document signed in front of an approved witness can be treated as if it were signed before the required officer.

A declaration with an omission, inconsistency, error, or misrepresentation is invalid, and the maker must validate it as prescribed.

An officer may require an English translation of a foreign-language document used for customs purposes, and the owner or presenter must bear the translation cost.

Businesses handling or dealing with goods must keep proper records in Malawi and may have to produce related documents for inspection within two years of importation or purchase.

The proper officer may allow certain operations on goods under customs control, if conditions are met and security is given.

An owner of goods under customs control may transfer ownership to someone who may lawfully own the goods, but a proper officer may refuse to recognize the transfer if prior notice was not given by the owner.

If a customs-controlled conveyance is lost, stranded, wrecked, abandoned, or forced to stop or land in Malawi, the owner, master, or person in charge must report it quickly and cooperate with officers. They also may not move goods or let people leave the area without the officer’s consent, except for health, safety, or reporting reasons.

A person who finds or holds covered uncustomed flotsam, jetsam, wreck goods, or baggage must promptly notify the nearest officer and, if asked, hand the goods over. No one may remove or change the goods without the proper officer’s permission unless needed to preserve or safely keep them.

The Controller may allow goods to be loaded, unloaded, removed, entered, or cleared in special cases, and may set the time, place, form, manner, and who may do it.

The Controller may, with the Minister’s approval, award rewards to officers or other people for services linked to detecting smuggling, other customs-law offences, or seizures under the customs laws.

Goods handled, stored, or transported under the customs laws are at the owner’s risk and expense, unless the customs laws specifically provide otherwise.

The Minister may make regulations on matters under the Act, including fees or charges, and those regulations may set penalties of up to ten times the duty payable and up to three years’ imprisonment.