Customs and Excise Management (Amendment) Act 2012

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Customs and Excise Management (Amendment) Bill 2012


Act No. 8 of 2012





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CUSTOMS AND EXCISE MANAGEMENT

(AMENDMENT) ACT 2012





Customs and Excise Management (Amendment)
Act 2012 Arrangement of Sections





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Act No. 8 of 2012 Page 3




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CUSTOMS AND EXCISE MANAGEMENT

(AMENDMENT) ACT 2012

Arrangement of Sections

Section

1 Short Title .............................................................................................................. 5
2 Section 2 amended - Interpretation ........................................................................ 5
3 Section 7 replaced – Unauthorised entry – approved place ................................... 6
4 Section 11(1) amended – Advance notice for aircraft ........................................... 6
5 Section 12(1) amended – Advance notice for ships ............................................... 6
6 Section 14 replaced – Embarkation and disembarkation ....................................... 6
7 Section 15 amended – Loading and unloading cargo ............................................ 6
8 Section 17(4) amended – Unloaded cargo ............................................................. 7
9 Section 22 amended – Passenger’s departure declaration ..................................... 7
10 Section 23(2) amended – Customs clearance ........................................................ 7
11 Section 25 amended – Export cargo manifest or loading list ................................ 7
12 New section 30A inserted – Recovery from importer ........................................... 8
13 Section 60 amended – Unauthorised movement .................................................... 8
14 Section 82 amended – False or misleading statement or declaration..................... 8
15 Section 84 amended – Dishonoured cheques ......................................................... 9
16 Section 85(1) amended – Failure to account .......................................................... 9
17 Section 88 amended - Miscellaneous ................................................................... 10
18 Section 93 amended – False or misleading statement .......................................... 10
19 Section 99 amended – Failure to account ............................................................ 10
20 Section 107 amended – Forfeiture of aircraft and ships ...................................... 10
21 Section 108 amended – Goods forfeited .............................................................. 10
22 Section 117 amended – Smuggling prosecutions ................................................ 11
23 Section 122 amended - Deeming ......................................................................... 11
24 Section 125 amended - Confidentiality ................................................................ 11
25 Section 128 amended – Payable to the Crown ..................................................... 11

Customs and Excise Management (Amendment) Act
2012 Section 1





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Act No. 8 of 2012 Page 5




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CUSTOMS AND EXCISE MANAGEMENT

(AMENDMENT) ACT 2012

Act No. 8 of 2012

AN ACT TO AMEND THE CUSTOMS AND EXCISE MANAGEMENT

ACT 2007

I assent,

GEORGE TUPOU VI,

17
th
September 2012.



BE IT ENACTED by the King and the Legislative Assembly of Tonga in the Legislature

of the Kingdom as follows:

1 Short Title

(1) This Act may be cited as the Customs and Excise Management (Amendment)

Act 2012.

(2) The Customs and Excise Management Act 2007, as amended, is in this Act

referred to as the Principal Act.

2 Section 2 amended - Interpretation

The Principal Act is amended by deleting the following definitions in section 2 and

replacing them with the following –

““customs area” means any place appointed under section 124(1)(a);

Section 3
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2012





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“master” means the person in charge or in command of an aircraft or ship and

includes an authorised agent but does not include a person appointed to pilot

ships into or out of any port;”.

3 Section 7 replaced – Unauthorised entry – approved place

Section 7 of the Principal Act is deleted and replaced with the following;

“No person shall enter any place containing customs controlled goods without

Customs authorisation.”.

4 Section 11(1) amended – Advance notice for aircraft

Section 11(1) of the Principal Act is amended by inserting the words “at least”

before the words “one hour”.

5 Section 12(1) amended – Advance notice for ships

Section 12(1) of the Principal Act is amended:

(a) in the English version only, by inserting the words “at least” before the figure

“24”; and

(b) in the Tongan version only, by inserting the words “‘o ‘ikai toe si’i hifo”

before the words “‘i ha houa ‘e 24”.

6 Section 14 replaced – Embarkation and disembarkation

Section 14 of the Principal Act is amended by replacing it with the following –

“(1) No person shall disembark from or embark onto an aircraft or ship

arriving or departing on an international voyage into or from the

Kingdom at any place other than a place appointed under section

124(1)(a).

(2) Any person disembarking from or embarking onto an aircraft or ship

arriving in or departing on an international voyage into or from the

Kingdom at any place other than a place appointed under section

124(1)(a), commits an offence and shall be liable upon conviction to a

fine not exceeding $100,000 or to a term of imprisonment not

exceeding 10 years, or both.”.

7 Section 15 amended – Loading and unloading cargo

Section 15 of the Principal Act is amended by:

(a) deleting subsection (1)(a) and replacing it with –

Customs and Excise Management (Amendment) Act
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“(a) at ports, airports, wharves or sufferance wharves appointed or approved

under section 124; and”; and

(b) deleting subsection (2)(b) and replacing it with –

“(b) at ports, airports, wharves or sufferance wharves appointed or approved

under section 124; and”.

8 Section 17(4) amended – Unloaded cargo

Section 17(4) of the Principal Act is amended:

(a) in the English version only, by deleting the words “Customs area” as they

appear second and replacing them with “approved place”; and

(b) in the Tongan version only, by deleting the words “‘elia Tute” as they appear

first and replacing them with “feitu’u kuo fakangofua”.

9 Section 22 amended – Passenger’s departure declaration

Section 22 of the Principal Act is amended –

(a) in subsection (1) by inserting after the word “shall” the words “as required”;

and

(b) in subsection (2):

(i) in the English version only, by deleting the word “A” and replacing it

with “Subject to subsection (1), a”.

(ii) in the Tongan version only, by deleting the words “Kuo pau” and

replacing them with “Fakatatau ki he kupusi’i (1), kuo pau”.

10 Section 23(2) amended – Customs clearance

Section 23(2) of the Principal Act is amended by deleting the word “or” after

paragraph (b) and replacing the full stop after paragraph (c) with “; or” and inserting

a new paragraph (d) as follows –

“(d) any other law states that clearance should be refused.”.

11 Section 25 amended – Export cargo manifest or loading list

Section 25 of the Principal Act is amended by inserting the word “and” after

paragraph (a), deleting paragraph (b) and renumbering the current paragraph “(c)” as

“(b)”.

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12 New section 30A inserted – Recovery from importer

Section 30 of the Principal Act is amended by inserting after sub-section (4) the

following new section 30A –

“30A Recovery from importer

(1) For the purposes of this section –

“associate” in relation to an importer, means any other person

who acts or may act in accordance with the directions, requests,

suggestions or wishes of the importer, and such person shall be

an associate of the importer.

(2) Where customs duty, excise tax or any penalty imposed under

Part 12 Division 1 of this Act remains payable by an importer in

respect of a particular importation, the importer or his associate

shall pay the amount outstanding prior to the Customs release of

that importer’s or his associate’s subsequent importations.

13 Section 60 amended – Unauthorised movement

Section 60 of the Principal Act is amended by –

(a) inserting the word and comma “, customs area” after the word “warehouse”;

and

(b) deleting the word “moved” and replacing it with “delivered, altered or

interfered with”.

14 Section 82 amended – False or misleading statement or declaration

Section 82 of the Principal Act is amended by –

(a) deleting the words “amount of duty and excise tax short paid” and replacing

them with “value of the goods to which the false or misleading statement or

declaration relates to or $1,000 whichever is the greater amount”; and

(b) renumbering the current section as subsection (1) and inserting the following

new subsections –

“(2) For the purposes of this section, “misleading in a material particular”

means that the statement or declaration contains an error or omission in

relation to any of the following matters –

(a) the identity of the overseas supplier;

(b) the identity of the importer;

(c) the identity of the person making the entry or the declaration;

(d) the identification of the importing/exporting craft or its voyage

number;

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(e) the Bill of Lading, Air Waybill, or container identification

details;

(f) the supplier’s invoice number and date, invoice details and

invoice amount;

(g) any permit number or code;

(h) the tariff item in which the goods are classified;

(i) description of goods;

(j) the statistical unit and quantity of the goods;

(k) the country of currency in which the goods are traded;

(l) the country of origin of the goods;

(m) the value for duty expressed in the currency in which the goods

are traded;

(n) the value for duty expressed in Tongan pa’anga and exchange

rate used to convert the foreign currency into Tongan currency;

(o) the country for which the goods have been exported;

(p) the sum of the cost insurance and freight (CIF) value;

(q) the working slip showing how the CIF value or duty has been

calculated;

(r) details of terms of trade;

(s) details of commissions and discounts (including any special

discounts);

(t) details of any payments made but not invoiced, any additional

payments to be made but not invoiced, any additional payments

to be made or remittances of proceeds that will be made; or

(u) details of duties, taxes, fees and charges payable.

(3) Notwithstanding anything in this Act, if it is proven to the satisfaction

of the Commissioner that the importer or exporter had provided the

correct information to the customs broker but that the declaration was

false or misleading in a material particular, the penalty shall be payable

by the customs broker.”

15 Section 84 amended – Dishonoured cheques

Section 84 of the Principal Act is amended by deleting the “$1,000” and replacing it

with “100% of the amount stated on the cheque or $1,000 whichever is less”.

16 Section 85(1) amended – Failure to account

Section 85(1) of the Principal Act is amended by deleting the words “Any person”

and replacing them with “An owner”.

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17 Section 88 amended - Miscellaneous

Section 88 of the Principal Act is amended by inserting the following new

subsection (4) –

“(4) The Chief Commissioner may, upon application or of his own motion, remit,

in whole or in part any penalty payable by a person.”.

18 Section 93 amended – False or misleading statement

Section 93 of the Principal Act is amended by renumbering the current section as

section 93A and inserting the following new section 93B –

“93B Any person who knowingly makes a declaration that is false or misleading

regarding the country of origin of any imported goods shall be liable upon

conviction to a fine not exceeding $100,000 or to a term of imprisonment not

exceeding 10 years or both.”.

19 Section 99 amended – Failure to account

Section 99 of the Principal Act is amended:

(a) in the English version only, by inserting after the word “control” the words

“or who fails to retain or maintain documents in accordance with this Act”;

and

(b) in the Tongan version only, by inserting after the word “kasitomu” the words

“pe ‘oku ‘ikai ke ne ma’u mai pe tauhi ‘a e ngaahi tohi ngaue ‘o fakatatau ki

he Lao ni,”.

20 Section 107 amended – Forfeiture of aircraft and ships

Section 107 of the Principal Act is amended by deleting the word “Chief” wherever

it appears.

21 Section 108 amended – Goods forfeited

Section 108 of the Principal Act is amended by –

(a) deleting the word “Chief”.

(b) deleting the “or” after paragraph (l) and deleting the fullstop after paragraph

(m) and replacing it with “; or”; and

(c) inserting the following new paragraph (n) -

“(n) goods in contravention of any other Act.”.

Customs and Excise Management (Amendment) Act
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22 Section 117 amended – Smuggling prosecutions

Section 117 of the Principal Act is amended by inserting the words “or counterfeit”

after the word “smuggling”.

23 Section 122 amended - Deeming

Section 122 is amended by renumbering the current section as sub-section (1) and

inserting the following new sub-section-

“(2) Notwithstanding subsection (1), where a false or misleading declaration has

been made to Customs and it is proven to the Chief Commissioner that the

fault was not that of the owner but by the customs broker, the declaration shall

be treated as made by the customs broker.”.

24 Section 125 amended - Confidentiality

Section 125 is amended by inserting the following new sub-section (3) –

“(3) Nothing in this section shall prevent the disclosure of any document or

information to –

(a) the Tax Tribunal or Supreme Court in relation to proceedings under this

Act;

(b) any person in the service of Government where such disclosure is

necessary for the performance of the person’s official duties;

(c) the Auditor General or any person authorised by the Auditor General

where such disclosure is necessary for the performance of official

duties;

(d) the Governor of the National Reserve Bank of Tonga or any person

authorised by the Governor where such disclosure is necessary for the

performance of official duties;

(e) international customs agencies with which Customs has an agreement

to the extent permitted under that agreement.”.

25 Section 128 amended – Payable to the Crown

Section 128 of the Principal Act is amended by inserting the following new section

128A and 128B –

“128A Payment by instalments

(1) An importer may apply in writing to the Chief Commissioner to pay

any customs duty, excise tax or penalty due in instalments.

(2) The Chief Commissioner shall serve the importer with a written notice

of his decision.

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(3) Where an importer is permitted to pay the customs duty, excise tax or

penalty by instalments and the importer defaults in payment of any

instalment, the whole balance of the amount owing shall become

immediately payable.

(4) Notwithstanding the above, any amount of customs duty, excise tax or

penalty due shall be paid in full before subsequent importations of the

importer is released from Customs.



128B Conditions of exemption

An importer who is granted an exemption from customs duty or excise tax

under the Customs laws shall be liable for the customs duty or excise tax

payable at the date of importation if the conditions for which the goods were

exempted are not observed, or if the goods are at any time within 5 years of

the date of importation used for any other purpose or sold or transferred to any

other person.”.







Passed by the Legislative Assembly this 30
th
day of August 2012.

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