Customs and Excise Management Act 2007
Act No. 4 of 2007
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CUSTOMS AND EXCISE MANAGEMENT
ACT 2007
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CUSTOMS AND EXCISE MANAGEMENT ACT 2007
Arrangement of Sections
Section
PART 1 - PRELIMINARY 9
1 Short title and commencement.........................................................................9
2 Interpretation..................................................................................................10
3 General administration...................................................................................15
4 Delegation......................................................................................................15
PART 2 - CUSTOMS CONTROL 16
5 Goods subject to Customs control .................................................................16
6 Unauthorised movement ................................................................................16
7 Unauthorised entry - approved place .............................................................16
8 Indemnity .......................................................................................................17
9 Accommodation at wharves and airports.......................................................17
PART 3 - ARRIVAL AND DEPARTURE OF AIRCRAFT AND
SHIPS 17
10 Procedure on arrival.......................................................................................17
11 Advance notice for aircraft ............................................................................18
12 Advance notice for ships................................................................................18
13 Passenger manifest.........................................................................................18
14 Embarkation and disembarkation ..................................................................19
15 Loading and unloading cargo.........................................................................19
16 Discrepancies .................................................................................................19
17 Unloaded cargo ..............................................................................................19
18 Sufferance wharf............................................................................................20
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19 Breaking of bulk.............................................................................................20
20 Master to provide information........................................................................20
21 Passenger’s arrival declaration.......................................................................21
22 Passenger’s departure declaration ..................................................................21
23 Customs clearance..........................................................................................21
24 Cargo manifests or loading list.......................................................................22
25 Export cargo manifest or loading list .............................................................22
26 Ship stores ......................................................................................................22
27 Boarding of departing aircraft and ships ........................................................22
28 Detention of aircraft and ships .......................................................................23
29 Clearance in ballast ........................................................................................23
PART 4 - CLEARANCE OF IMPORTED GOODS 23
30 Goods entry ....................................................................................................23
31 Entry lodgement .............................................................................................23
32 Entry Clearance fee ........................................................................................24
33 Re-importation ...............................................................................................24
34 Samples ..........................................................................................................24
PART 5 - EXPORTATION OF GOODS BY AIR AND SEA 25
35 Export goods declaration................................................................................25
36 Dealing with export goods .............................................................................25
37 Short loading ..................................................................................................25
38 Export of imported goods...............................................................................25
PART 6 - IMPORT AND EXPORT BY POST 25
39 Postal articles..................................................................................................25
40 Opening postal articles ...................................................................................26
PART 7 - TEMPORARY IMPORTATIONS AND PROHIBITED
AND RESTRICTED IMPORTS AND EXPORTS 26
41 Conditional entry............................................................................................26
42 Non compliance..............................................................................................26
43 Extension of time ...........................................................................................26
44 Security ..........................................................................................................26
45 Prohibitions and restrictions...........................................................................26
PART 8 - INTER-ISLAND AND COASTAL TRADE 27
46 Master to keep cargo manifest and register....................................................27
47 Master responsible..........................................................................................27
48 Approval to leave ...........................................................................................27
49 Search of inter-island aircraft and coastal ships .............................................28
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PART 9 - CUSTOMS SECURITIES 28
50 Chief Commissioner' s powers ......................................................................28
51 Release of goods ............................................................................................28
52 Forfeiture of security......................................................................................28
PART 10 - WAREHOUSES AND APPROVED PLACES 29
53 Appointment of Crown’s warehouse .............................................................29
54 Application for licence...................................................................................29
55 Grant or refusal ..............................................................................................29
56 Revocation .....................................................................................................29
57 Crown responsibility......................................................................................30
58 Assistance to Customs ...................................................................................30
59 Licensee’s Liability........................................................................................30
60 Unauthorised movement ................................................................................30
61 Customs auctions ...........................................................................................30
62 Damaged goods not warehoused ...................................................................30
63 Obligation to warehouse goods......................................................................31
PART 11 - POWERS OF OFFICERS 31
64 Examine all goods..........................................................................................31
65 Unload goods .................................................................................................31
66 Power to search..............................................................................................31
67 Boarding.........................................................................................................32
68 Suitable accommodation................................................................................32
69 Board, search and detain ................................................................................32
70 Customs mooring...........................................................................................32
71 Patrol and pass ...............................................................................................32
72 Detain persons................................................................................................32
73 Searching persons ..........................................................................................33
74 Request of information ..................................................................................33
75 Warrants.........................................................................................................33
76 Arrest .............................................................................................................34
77 Obstruction.....................................................................................................34
78 Notice to produce...........................................................................................34
79 Copies of documents......................................................................................34
80 Post Clearance Audit .....................................................................................34
81 Translation of records ....................................................................................35
PART 12 - CUSTOMS PENALTIES AND OFFENCES 35
DIVISION 1 - ADMINISTRATIVE PENALTIES.................................................35
82 False or misleading statement or declaration.................................................35
83 Failure to submit ............................................................................................35
84 Dishonoured cheques .....................................................................................35
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85 Failure to account ...........................................................................................36
86 Failure to deal.................................................................................................36
87 Enter customs area .........................................................................................36
88 Miscellaneous.................................................................................................36
DIVISION 2 - OFFENCES................................................................................36
89 Acceptance of Customs controlled goods ......................................................36
90 Rescue or destruction of goods ......................................................................37
91 Obstruction of customs officers .....................................................................37
92 Smuggle..........................................................................................................37
93 False or misleading statement ........................................................................37
94 Counterfeit......................................................................................................38
95 Prohibited or restricted imports or exports.....................................................38
96 Customs brokers.............................................................................................38
97 Failure to make declaration ............................................................................39
98 Impersonation.................................................................................................39
99 Failure to account ...........................................................................................39
100 Failure to deal.................................................................................................39
101 Unauthorised movement ................................................................................39
102 Enter Customs control area ............................................................................40
103 Unauthorised disembarkation or boarding .....................................................40
104 Unauthorised loading and unloading..............................................................40
105 Unauthorised movement of aircraft or ship....................................................40
106 Corruption ......................................................................................................40
PART 13 - SEIZURE AND FORFEITURE 41
107 Forfeiture of aircraft and ships .......................................................................41
108 Goods forfeited...............................................................................................41
109 Customs, Police and officers of Defence may seize.......................................42
110 Seizure notice .................................................................................................42
111 Secure goods ..................................................................................................42
112 Disposing of seized goods..............................................................................42
113 Title ................................................................................................................43
PART 14 - LEGAL PROCEEDINGS 43
114 Repayment of short payment..........................................................................43
115 Payment under protest ....................................................................................43
116 Limitation .......................................................................................................44
117 Smuggling prosecutions .................................................................................44
118 Offences by Companies .................................................................................44
119 Retention period .............................................................................................44
PART 15 - CUSTOMS BROKERS 44
120 Application .....................................................................................................44
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121 Authorisation .................................................................................................45
122 Deeming.........................................................................................................45
123 Companies .....................................................................................................45
PART 16 - ADMINISTRATION 45
124 Appointment of ports and airports .................................................................45
125 Confidentiality ...............................................................................................46
126 Appeal............................................................................................................46
127 Powers of Police and the Tonga Defence Service .........................................46
128 Payable to the Crown.....................................................................................46
129 Regulations ....................................................................................................46
130 Agents ............................................................................................................47
131 Savings...........................................................................................................47
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CUSTOMS AND EXCISE MANAGEMENT ACT 2007
Act No. 4 of 2007
AN ACT RELATING TO THE MANAGEMENT OF CUSTOMS
AND EXCISE
I assent,
George Tupou V
14 August 2007
Commencement [not yet in force]
BE IT ENACTED by the King and the Legislative Assembly of Tonga in the
Legislature of the Kingdom as follows:
PART 1 - PRELIMINARY
1 Short title and commencement
(1) This Act may be cited as the Customs and Excise Management Act 2007.
(2) This Act shall come into force on a date to be proclaimed by His Majesty
in Council which shall be the same day as the Customs Act 2007 and the
Excise Tax Act 2007 and different Parts may be brought into effect on
different dates.
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2 Interpretation
In this Act, unless the context otherwise requires —
“agent” includes, in relation to the master or owner of a ship or aircraft, a
person who —
(a) is a representative of the master or owner;
(b) notifies the Chief Commissioner in writing that he intends to act as
an agent; or
(c) signs any document required or permitted by Customs to be signed
by an agent, or on whose behalf such a document is signed by a
person authorized by such agent;
“aircraft” includes balloons, kites, gliders, aeroplanes, seaplanes,
helicopters and hovercrafts;
“airport” means a place or geographical area for the landing and
departure of aircraft appointed by the Chief Commissioner under
section 124;
“approved place” means any quay, jetty, wharf, airport or other place
appointed by the Chief Commissioner under section 124 where goods
under Customs control may be loaded and unloaded and includes a place
where Customs controlled goods are stored;
“cargo” means any goods carried on board a ship or aircraft but does not
include stores, or crew member’s or passenger’s effects;
“cargo manifest” means a document made to a Customs officer providing
information concerning the arrival of the aircraft and ship including the
details of the cargo on board an aircraft or ship arriving in the Kingdom;
“carriage” includes transportation by any ship or aircraft of goods, people
and animals;
“Chief Commissioner” means the Minister of Finance or the Treasurer;
“coastal ship” means a ship that is not engaged in making an international
voyage;
“commercial documentation” in relation to goods, means any document
prepared in the ordinary course of business for the purposes of a
commercial transaction regarding the goods or the carriage of the goods,
and includes documents prescribed by Regulations, whether in hard copy
or electronic format;
“container” includes any bundle, package, box, cask, shipping container
or other receptacle;
“counterfeit goods” are any goods, including packaging, having without
authorisation, a trademark which is identical to a validly registered
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trademark in respect of such goods, or which cannot be distinguished in
its essential character from such a trademark, and which thereby infringes
the rights of the owner of the trademark in question under the law of the
Kingdom;
“counterfeit goods” includes pirated copyright goods which are copies of
such originals made without the consent of the rights holder and which are
made directly or indirectly from an article where the making of that copy
would have constituted an infringement of a copyright or a related right
under the law of the Kingdom;
“crew” includes every person employed or engaged in any capacity on
board any aircraft or ship, but does not include the master;
“Crown’s warehouse” means a government warehouse which is specified
in writing as such by the Chief Commissioner, where goods under
Customs control and goods otherwise detained by Customs may be
temporarily stored;
“Customs” means the Customs and Trade Division of the Revenue
Services Department;
“Customs area” means any place appointed under section 124;
“Customs broker” means a licensed representative of an owner of goods,
who is contracted to perform Customs requirements on behalf of such
owner under Part 15;
“Customs clearance” means the completion of all Customs formalities to
the satisfaction of a Customs officer;
“Customs control” has the meaning ascribed to it in section 5;
“Customs duty” is an amount payable to the Government in accordance
with the Customs Act 2007;
“Customs laws” means the Customs Act 2007, Excise Tax Act 2007 and
this Act;
“Customs officer” means any person employed as a customs officer to
discharge any duty connected with the administration of customs laws;
“Customs warehouse” means a place operated by a person licensed by
Customs for the storage of goods while they are under Customs control
and may be licensed as —
(a) general;
(b) private; or
(c) duty free warehouse;
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“declaration” means the provision of all information to Customs whether
verbal, in a document, or in electronic form by a person relating to
particular imported and exported goods;
“document” —
(a) means documents in any form, whether or not signed or initialled or
otherwise authenticated by their maker; and
(b) includes —
(i) all forms of written material;
(ii) all information recorded, transmitted, or stored by means of
tape recorders, computers, or other devices, and all material
subsequently derived from information so recorded or stored;
(iii) labels, marking and other forms of writing that identify any
thing of which they form part or to which they are attached
by any means;
(iv) books, maps, plans, graphs and drawings; or
(v) photographs, films, negatives, tapes and other devices in
which one or more visual images are embodied so as to be
capable (with or without the aid of some other equipment of
being reproduced;
“dutiable goods” means goods subject to Customs duty under the
Customs Act 2007;
“entered”, in relation to —
(a) goods imported, warehoused, exported or put on board an aircraft
or ship as stores, means —
(i) the acceptance and signature by the Customs officer of a
declaration signed by the importer or exporter on the
prescribed form, together with the payment to the Customs
officer by the importer or exporter of all rents and charges
due to the Crown in respect of the goods; and
(ii) in the case of dutiable goods (except on the entry of
warehoused goods), the payment by the importer or exporter
to the Customs officer of the full duties due thereon, or else,
where authorised, the deposit of a sum of money or the
giving of Customs security for the duties as provided by law,
or, in the case of goods for which security by bond is
required on the exportation, putting on board a ship or
aircraft of goods as stores or the removal of such goods, the
giving of such Customs security; or
(b) excisable goods imported, warehoused, exported or put on board an
aircraft or ship as stores, means —
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(i) the acceptance and signature by the Customs officer of a
declaration signed by the importer, exporter or licensed
manufacturer on the prescribed form, together with the
payment to the Customs officer by the importer, exporter or
licensed manufacturer of all rents and charges due to the
Crown in respect of the goods; and
(ii) in the case of an entry for warehousing of imported goods,
the payment by the importer or licensed manufacturer to the
Customs officer of the full excise tax due thereon, or else,
where permitted, the deposit of a sum of money or the
lodging of Customs security with Customs;
“entry”, in relation to the importation or exportation of goods, means the
provision of the prescribed declaration to Customs;
“excisable goods” means goods in respect of which excise tax is imposed
by the Excise Tax Act 2007;
“excise tax” means the excise tax imposed by the Excise Tax Act 2007;
“export” means the transportation of goods beyond the Kingdom;
“exporter” in relation to exported goods, means the consignee, owner,
agent, buyer or any person holding a beneficial interest in those goods
when they leave the Kingdom and includes any person making a
declaration under any Customs laws concerning those goods;
“export goods” means goods which are to be or have been exported from
the Kingdom;
“goods” includes excisable goods, documents, tangible personal property,
commercial cargo, currency, livestock, motor vehicles, aircraft and ship’s
stores, accompanied and unaccompanied baggage, aircraft and ships,
including self-transported ships and aircraft;
“import” means to bring goods or cause goods to be brought into the
Kingdom;
“importer” in relation to imported goods, means the consignee, owner,
agent, buyer or any person holding a beneficial interest in those goods
when they arrive in the Kingdom and includes any person making a
declaration under any Customs laws concerning those goods;
“inter-island aircraft” means an aircraft that is not engaged in making an
international flight;
“to land” in relation to the landing of aircraft, includes to land on water;
“licensed manufacturer” means a person who is licensed under the
Excise Tax Act 2007 to manufacture excisable goods;
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“manufacture” includes all processes in the manufacture of excisable
goods including —
(a) filtering, diluting or blending the excisable goods with other goods;
(b) putting the excisable goods for the first time into a container in
which they might be presented or from which they might be
dispensed; and
(c) labelling or marking, for the first time, of containers filled with the
excisable goods;
“master” means the person in charge or in command of an aircraft or ship
but does not include a person appointed to pilot ships into or out of
any port;
“occupier,” includes any person who signs as principal any bond in
respect of any building or place used for the deposit of goods for the
security or of the duties under the customs laws;
“owner” in respect of goods includes a licensed manufacturer of excisable
goods and any person other than a Customs officer being or holding
himself out to be the owner, importer, exporter, consignee, agent, buyer or
person possessed of, or beneficially interested in, or having any control of,
or power of disposition over the goods;
“passenger” means any person other than a crew member who is or has
been on any aircraft or ship involved in an international voyage;
“personal effects” means all articles, whether used or new, in the
possession of the arriving passenger, but not goods for commercial
purposes, in commercial quantities, or for sale;
“postal article” means any letter, postcard, newspaper, book, document,
pamphlet, journal, sample, pattern, parcel or package or other article
arriving in or departing from the Kingdom by post and includes any bag,
box or other container in which postal articles are conveyed;
“prohibited goods” means respectively any goods the importation or
exportation of which is prohibited or restricted by law;
“ship” includes a vessel of any description and includes sailing boats,
motorboats, or pleasure craft;
“ship’s stores” means goods which are intended for consumption on an
aircraft or ship and includes fuel, spare parts, and other articles or
equipment, whether or not for immediate use;
“smuggling” means the importation or exportation of goods with the
intention to defraud the revenue and includes the importation or
exportation of prohibited or restricted goods;
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“sufferance wharf” means any place other than an approved place of
loading or unloading at which the Chief Commissioner may and under
such conditions as he may direct, allow any goods to be loaded or
unloaded;
“Tax Tribunal” means the Tax Tribunal established under section 58 of
the Revenue Services Administration Act 2002;
“temporary importation” means the temporary importation of goods
under this Act;
“time of importation” means the time that an aircraft or ship carrying
imported goods with the intention to discharge cargo, arrives at the first
airport or port within the Kingdom;
“time of exportation” means the time that an aircraft or ship leaves the
territory of the Kingdom with the intention of making an international
voyage;
“uncustomed goods” means goods liable to customs duty or excise tax
but on which customs duty or excise tax has not been paid;
“warehoused goods” means goods which are under Customs control and
are placed in a Customs warehouse or Crown’s warehouse under the
Customs and Excise Management Act 2007;
“warrant” means an authorisation in the form prescribed under this Act
by a Magistrate allowing designated Customs officers to enter and search
premises and seize goods and documents in accordance with this Act; and
“wharf” means any place appointed as such under this Act.
3 General administration
(1) The Chief Commissioner shall be responsible for the administration of the
Customs laws.
(2) This Act shall apply to the payment and management of customs duty
under the Customs Act 2007 and excise tax under the Excise Tax
Act 2007.
4 Delegation
The Chief Commissioner may delegate in writing to any Customs officer any
duty, power or function imposed on him by the Customs laws but not this power
of delegation.
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PART 2 - CUSTOMS CONTROL
5 Goods subject to Customs control
The following goods shall be subject to Customs control until released in
accordance with the Customs laws —
(a) imported goods;
(b) in transit goods;
(c) Customs’s warehoused goods;
(d) export goods;
(e) ship’s stores;
(f) postal articles;
(g) manufactured excisable goods;
(h) goods on board an aircraft or ship involved in an international
voyage, while that aircraft is in or over Tongan territory or that ship
is in Tongan waters; and
(i) aircraft and ships arriving within the Kingdom.
6 Unauthorised movement
(1) Subject to this Act, a person shall not move, alter, or interfere in any way
with goods that are subject to Customs control.
(2) A Customs officer may —
(a) on receipt of a completed Customs prescribed form, approve the
movement of goods under Customs control subject to the conditions
imposed in the approval;
(b) require the applicant to lodge a Customs security under this
Act; and
(c) seal goods or their containers subject to Customs control.
(3) Any person authorised under this section to move goods and who cannot
account for those goods when requested by a Customs officer, shall be
liable for the duty on those goods.
7 Unauthorised entry - approved place
No person shall enter an approved place without Customs written authorisation.
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8 Indemnity
(1) No compensation shall be payable by the Crown to an importer, owner,
consignee or licensed manufacturer by reason of any loss or damage of
any goods under Customs control, unless such loss or damage is the direct
result of the wilful act or negligence of a Customs officer.
(2) No action shall be brought against the Crown for loss or damage sustained
by any goods under Customs control or for any wrong or improper
delivery of goods therefrom, unless such loss or damage is the direct
result of the wilful act or negligence of a Customs officer.
9 Accommodation at wharves and airports
A wharf owner, airport owner or person responsible for the management of a
wharf, airport or approved place at which Customs is located, shall provide to
the satisfaction of the Chief Commissioner for the exclusive use of Customs free
of charge —
(a) suitable office accommodation; and
(b) secure storage for goods under Customs control.
PART 3 - ARRIVAL AND DEPARTURE OF AIRCRAFT AND
SHIPS
10 Procedure on arrival
(1) The master of an aircraft or ship arriving in the Kingdom shall bring that
aircraft or ship directly to a boarding station nominated by a Customs
officer or to a place appointed under section 124 as the case may be.
(2) A Customs officer shall have the power regarding any aircraft or ship
arriving within the Kingdom, to —
(a) board;
(b) stay on board for any period;
(c) have free access to every part;
(d) secure any part by such means as he considers necessary;
(e) examine any goods, and take account of them;
(f) require any goods to be unloaded and removed for examination at
the expense of the owner; and
(g) lock up, seal, mark or otherwise secure any goods on board such
aircraft or ship.
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(3) The master of an aircraft or ship which has arrived at its place of
disembarkation or unloading shall not move that aircraft or ship to another
place within the Kingdom without the prior written approval of a
Customs officer.
(4) The master of an aircraft or ship which is about to depart from its place of
embarkation or loading within the Kingdom shall not move that aircraft or
ship without the prior written approval of a Customs officer.
(5) In this section, “boarding station” means a place publicly nominated as
such by the Chief Commissioner for the purpose of allowing boarding
officers to board aircraft or ships on their arrival in or departure from
the Kingdom.
11 Advance notice for aircraft
(1) The master or his agent of an aircraft arriving in the Kingdom shall unless
there are prescribed exceptional circumstances provide to a Customs
officer advance notice of arrival in writing or electronically, one hour in
advance with the time and prescribed place of arrival.
(2) A master or his agent of an aircraft who without reasonable explanation
fails to give advance notice under this section, commits an offence and
shall be liable upon conviction to a fine not exceeding $10,000 or to a
term of imprisonment not exceeding three years or both.
12 Advance notice for ships
(1) The master or his agent of a ship arriving in the Kingdom shall unless
there are prescribed exceptional circumstances provide to a Customs
officer advance notice of arrival in writing or electronically, 24 hours in
advance about the time and prescribed place of arrival.
(2) A master or his agent of a ship, who without reasonable explanation fails
to give advance notice under this section, commits an offence and shall be
liable upon conviction to a fine not exceeding $10,000 or to a term of
imprisonment not exceeding three years or both.
13 Passenger manifest
(1) The master of an aircraft or ship arriving into the Kingdom shall provide
Customs with a passenger manifest at least one hour prior to the arrival of
the aircraft or four hours prior to the arrival of the ship.
(2) The master of an aircraft or ship departing from the Kingdom shall
provide Customs with a passenger manifest at least one hour prior to the
departure of the aircraft or four hours prior to the departure of the ship.
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14 Embarkation and disembarkation
(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
unless prior prescribed authorisation is obtained from a Customs officer.
(2) Any unauthorised person disembarking from or embarking onto an
aircraft or ship arriving or departing on an international voyage into or
from the Kingdom 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.
15 Loading and unloading cargo
(1) The master shall load an aircraft or ship —
(a) at the prescribed place of loading; and
(b) during normal Customs working hours,
unless the permission of a Customs officer is obtained as prescribed to
load or unload at a place other than the prescribed place or at a time
outside normal Customs working hours.
(2) A master shall unload an aircraft or ship —
(a) directly after the arrival of that aircraft or ship;
(b) at the prescribed place of unloading; and
(c) during normal Customs working hours,
unless the permission of a Customs officer is obtained as prescribed to
load or unload at a place other than the prescribed place or at a time
outside of normal Customs working hours.
16 Discrepancies
The master of an aircraft or ship shall immediately inform a Customs officer in
the prescribed form of any discrepancy between the cargo manifest or loading
list and the actual goods landed.
17 Unloaded cargo
(1) Cargo unloaded from an aircraft or ship shall be placed in a Customs area
and shall be under Customs control.
(2) Access to cargo under Customs control shall be as authorised by a
Customs officer.
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(3) Goods under Customs control shall only be removed upon the acceptance
by Customs of a prescribed Customs entry.
(4) Imported goods unloaded from any aircraft or ship which had not been
cleared to the owner from a Customs area four days from the completion
of unloading may be deposited by a Customs officer in a Crown’s
warehouse or Customs area.
(5) The owner shall be liable for all costs, charges, and expenses involved in
moving imported goods from the place of unloading to the Crown’s
warehouse or Customs area including the rent and other charges in
connection with the storage of those goods.
18 Sufferance wharf
Goods under Customs control shall not be unloaded from or loaded onto an
aircraft or ship at a sufferance wharf unless in accordance with the conditions
under section 124.
19 Breaking of bulk
The master of a ship or aircraft shall not break bulk unless a cargo manifest has
been provided in accordance with this Part or the written permission of the Chief
Commissioner is first obtained.
20 Master to provide information
(1) The master of an aircraft or ship or his authorised agent shall as required
by a Customs officer —
(a) provide all such information relating to the aircraft or ship, its
cargo, baggage, crew, passengers and flight or voyage;
(b) produce all books and documents in his custody or control relating
to the aircraft or ship, its cargo, stores, baggage, crew, passengers
and flight or voyage; and
(c) before any person disembarks, deliver to the boarding Customs
officer, a passenger list, and the name of the master, officers
and crew.
(2) A master of an aircraft or ship or his authorised agent, who without
reasonable explanation fails to comply with sub-section (1), 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.
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21 Passenger’s arrival declaration
(1) A master of an aircraft or ship arriving in the Kingdom shall provide to
passengers a prescribed passenger’s declaration form for completion prior
to arrival in the Kingdom.
(2) A passenger shall give a completed prescribed passenger’s declaration to a
Customs officer or if there is no Customs officer on duty, to the nearest
police station on arrival.
(3) A passenger arriving in the Kingdom shall be deemed not to have legally
entered until Customs clearance is obtained.
22 Passenger’s departure declaration
(1) Passengers of an aircraft or ship departing from the Kingdom shall
complete a prescribed declaration form prior to departure.
(2) A passenger shall give a completed prescribed declaration to a Customs
officer on departure.
23 Customs clearance
(1) A Customs officer may grant Customs clearance when —
(a) not less than 24 hours have elapsed after an application for the
clearance has been made to a Customs officer; and
(b) all inward cargo and stores of the ship or aircraft have been duly
accounted for and all other requirements of the law in regard to the
ship or aircraft and her inward and outward cargo in stores have
been duly complied with.
(2) A Customs officer may refuse Customs clearance when —
(a) application is not lodged in the prescribed form;
(b) any document required by the Customs officer is not produced; or
(c) the Customs officer has reasonable grounds to suspect a breach of
any Customs laws.
(3) The master of an aircraft or ship about to depart on an international
voyage shall not leave the Kingdom until Customs clearance is obtained.
(4) A master who allows an aircraft or ship to depart contrary to this section,
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.
Section 24 Customs and Excise Management Act 2007
Act No. 4 of 2007 Page 22
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24 Cargo manifests or loading list
(1) A master of an aircraft or ship arriving into the Kingdom shall provide
Customs with a cargo manifest or loading list at least one hour prior to the
arrival of the aircraft or four hours prior to the arrival of the ship.
(2) A master of an aircraft or ship departing from the Kingdom shall provide
Customs with a cargo manifest or loading list at least one hour prior to the
departure of the aircraft or four hours prior to the departure of the ship.
(3) A master of an aircraft or ship, who without reasonable explanation fails
to provide Customs with a cargo manifest or loading list under this
section, commits an offence and shall be liable upon conviction to a fine
not exceeding $10,000 or to a term of imprisonment not exceeding three
years or both.
25 Export cargo manifest or loading list
The master of a departing aircraft or ship prior to leaving the Kingdom shall —
(a) provide a completed export cargo manifest or loading list to a
Customs officer;
(b) pay the prescribed export manifest or loading list fee; and
(c) not leave the Kingdom until the export cargo manifest or loading
list has been approved by a Customs officer.
26 Ship stores
The procedures for loading and unloading of ship’s stores onto and from an
aircraft and ship may be prescribed by Regulations.
27 Boarding of departing aircraft and ships
(1) A Customs officer may board at any time, any aircraft or ship about to
depart on an international voyage from the Kingdom to verify compliance
with this Act.
(2) The master of an aircraft or ship about to depart on an international
voyage shall —
(a) assist the Customs officer to embark and disembark; and
(b) provide such further assistance as required by the Customs officer.
Customs and Excise Management Act 2007 Section 28
Act No. 4 of 2007
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Page 23
28 Detention of aircraft and ships
The Chief Commissioner may detain an aircraft or ship about to depart on an
international voyage by not issuing Customs clearance until all Customs
requirements, costs, fees or charges imposed by the Customs laws are paid.
29 Clearance in ballast
(1) A master of a ship in ballast about to depart on an international voyage
shall apply in the prescribed form to a Customs officer for clearance.
(2) The Customs officer shall approve an application under sub-section (1), if
such ship does not have any goods, on board except ship’s stores.
PART 4 - CLEARANCE OF IMPORTED GOODS
30 Goods entry
(1) An owner of imported goods shall complete a prescribed Customs entry
form for those goods at the first port of unloading.
(2) An owner of goods may apply in the prescribed form to a Customs officer
for authorisation for the goods to be moved to another prescribed port or
place other than the first port of unloading where the Customs entry will
be completed.
(3) Authorisation to move goods to another prescribed port or place other
than the first port of unloading shall not prevent a Customs officer from
examining the imported goods at the first port of unloading.
(4) Where authorisation is approved under sub-section (2), the applicant shall
be responsible for —
(a) any Customs duty or excise tax liability arising; and
(b) complying with the Customs entry requirements at the port of
unloading.
31 Entry lodgement
A Customs entry in the form prescribed shall be lodged with the Customs
officer for —
(a) immediate clearance of goods for use;
(b) transhipment goods;
(c) Customs warehoused goods;
Section 32 Customs and Excise Management Act 2007
Act No. 4 of 2007 Page 24
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(d) warehoused goods cleared for use;
(e) duty-free stores;
(f) temporary importation;
(g) re-importation or re-exportation;
(h) exportation.
32 Entry Clearance fee
A prescribed Customs entry clearance fee shall be charged for every Customs
entry form lodged with Customs.
33 Re-importation
(1) Goods exported from the Kingdom and later re-imported shall be subject
to Customs duty as follows —
(a) if the goods have not been subject to any process abroad, the goods
shall be exempt from any further duty or excise tax when re-
imported; or
(b) if the goods have been subject to any process abroad, the customs
value of those goods will be the cost of the repair, maintenance or
value added of the goods.
(2) Sub-section (1) may be conditional on the person exporting the goods for
subsequent re-importation —
(a) giving notice in writing to Customs; and
(b) producing such goods for identification to a Customs officer at the
port, place of shipment or post office.
34 Samples
A Customs officer may on the import, export or manufacture of any goods —
(a) take samples of the goods for such purpose as the Chief
Commissioner may deem necessary; and
(b) dispose of and account for such samples in such manner as the
Chief Commissioner may direct.
Customs and Excise Management Act 2007 Section 35
Act No. 4 of 2007
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Page 25
PART 5 - EXPORTATION OF GOODS BY AIR AND SEA
35 Export goods declaration
Goods for export shall not be loaded onto an aircraft or ship unless the owner of
the goods has provided to a Customs officer at the port or place of loading —
(a) a completed prescribed export goods entry;
(b) the prescribed fee;
(c) where required, relevant commercial documentation relating to the
export; and
(d) export duty, as imposed by any Customs laws.
36 Dealing with export goods
An export goods declaration approved by a Customs officer shall be the
authority to deal with those goods.
37 Short loading
If goods specified in the export goods entry are not loaded on the aircraft or ship,
the exporter shall notify a Customs officer within 24 hours after the departure of
the aircraft or ship.
38 Export of imported goods
An importer who wishes to export imported goods that do not conform to the
importer’s contract for the specification of those goods or for any other reason
may apply to the Chief Commissioner to export the imported goods.
PART 6 - IMPORT AND EXPORT BY POST
39 Postal articles
Postal articles shall be entered in accordance with the Regulations.
Section 40 Customs and Excise Management Act 2007
Act No. 4 of 2007 Page 26
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40 Opening postal articles
Postal articles arriving in the Kingdom from overseas or to be exported may be
opened by a Customs officer in the presence of an authorised postal officer if he
reasonably suspects that a provision of the Customs laws have been breached..
PART 7 - TEMPORARY IMPORTATIONS AND
PROHIBITED AND RESTRICTED IMPORTS AND
EXPORTS
41 Conditional entry
The Chief Commissioner may, upon written application, exempt from customs
duty or excise tax, goods which are imported for temporary use only.
42 Non compliance
If any goods imported under section 41 are not exported within four months of
the date of such goods being entered, then the importer or person in possession
shall pay to a Customs officer the full duty payable on such goods or the goods
shall be seized and forfeited.
43 Extension of time
The Chief Commissioner may upon a written application approve extension of
the four months time limit for temporary importation but such extension shall
not exceed 12 months in total.
44 Security
The Chief Commissioner may within the period allowed under this Part require
security to be lodged by the importer for temporary imported goods which
shall be —
(a) refunded if the goods are exported; or
(b) forfeited if the goods are not exported.
45 Prohibitions and restrictions
The Chief Commissioner may, with the approval of His Majesty in Council by
Order prohibit or restrict the importation or exportation of goods into or from
the Kingdom.
Customs and Excise Management Act 2007 Section 46
Act No. 4 of 2007
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Page 27
PART 8 - INTER-ISLAND AND COASTAL TRADE
46 Master to keep cargo manifest and register
(1) The master of any inter-island aircraft or coastal ship with goods under
Customs control on board shall keep or cause to be kept a cargo manifest
and register, stating —
(a) the name of the aircraft or ship;
(b) the master and the port to which the aircraft or ship belongs;
(c) the port or place to which it is bound and each flight or voyage; and
(d) such other matters as prescribed by Regulations.
(2) The master of an inter-island aircraft or coastal ship to which subsection
(1) applies, shall upon requested produce the cargo manifest and register
for inspection by a Customs officer.
(3) A Customs officer inspecting a cargo manifest and register under this
section may make any note thereon and, if upon examination,
any cargo —
(a) is found to contain imported goods not entered on the manifest or
register, such cargo may be forfeited; or
(b) entered on the cargo manifest or register and is unable to be located,
the master of the inter-island aircraft or coastal ship shall be liable
for the Customs duty of such cargo.
47 Master responsible
(1) Goods under Customs control carried on an inter-island aircraft or coastal
ship shall remain under Customs control until the master obtains
authorisation from a Customs officer to unload the goods at the final port
of unloading.
(2) A master who unloads cargo without obtaining Customs authorisation
under this section, 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.
48 Approval to leave
A Customs officer shall issue a Customs clearance to a master of an inter-island
aircraft or coastal ship that has unloaded Customs controlled goods, to leave that
port or place, if the aircraft or ship still has goods under Customs control
on board.
Section 49 Customs and Excise Management Act 2007
Act No. 4 of 2007 Page 28
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49 Search of inter-island aircraft and coastal ships
(1) If any Customs officer has reasonable cause to suspect that any dutiable,
uncustomed, restricted or forfeited goods are on board any inter-island
aircraft or coastal ship the officer may board and search such aircraft
or ship.
(2) The master of an inter-island aircraft or coastal ship shall provide all such
information and documentation relating to the aircraft or ship and its
cargo, passengers and crew as required by the Customs officer.
PART 9 - CUSTOMS SECURITIES
50 Chief Commissioner' s powers
(1) The Chief Commissioner may take securities for compliance with the
Customs laws.
(2) The Chief Commissioner may —
(a) allow a Customs security to be provided by a bond, guarantee, or
cash or by a combination of these; and
(b) impose such conditions as he deems necessary.
(3) Securities collected under this Part shall be cancelled or returned by
Customs promptly once the Chief Commissioner is satisfied that the
security is no longer required for the purpose of this Act.
51 Release of goods
Goods subject to a Customs security shall not be released from Customs control
until the Customs security is provided.
52 Forfeiture of security
A Customs security collected under this Part shall be forfeited to the Crown if
any condition imposed is not complied with.
Customs and Excise Management Act 2007 Section 53
Act No. 4 of 2007
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Page 29
PART 10 - WAREHOUSES AND APPROVED PLACES
53 Appointment of Crown’s warehouse
The Chief Commissioner may specify in writing a place to be a Crown’s
warehouse.
54 Application for licence
The Chief Commissioner may, upon an application in the prescribed form, grant
a licence to operate a Customs warehouse.
55 Grant or refusal
(1) A licence may be granted under section 54 on —
(a) such terms, conditions or restrictions as the Chief Commissioner
considers appropriate;
(b) payment by the licensee of the prescribed annual licence fee; and
(c) provision of security in the amount determined by the Chief
Commissioner under Part 9.
(2) The Chief Commissioner may refuse the application where he is of the
opinion that it is not in the public interest.
56 Revocation
(1) The Chief Commissioner may at any time revoke a Customs warehouse
licence where the licensee does not comply with the conditions of the
licence.
(2) Where a Customs warehouse licence is revoked under sub-section (1) the
following shall be forfeited to the Crown —
(a) the security determined by the Chief Commissioner under Part 9;
and
(b) all warehoused goods on which Customs duty or excise tax has not
been paid, remaining in the Customs warehouse seven days after
the date of revocation.
Section 57 Customs and Excise Management Act 2007
Act No. 4 of 2007 Page 30
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57 Crown responsibility
The Crown shall not be responsible for any loss or damage to goods stored in a
Crown’s or Customs’s warehouse unless the damage is due to negligence by
Customs.
58 Assistance to Customs
(1) The licensee of a Customs warehouse or the owner or occupier of an
approved place shall provide —
(a) all reasonably assistance to Customs in performing any examination
or other activity required by this Act; and
(b) facilities reasonably necessary to perform Customs functions.
(2) Any person who fails to provide reasonable assistance to Customs
required under this section 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.
59 Licensee’s Liability
The licensee of a Customs warehouse, owner or occupier of an approved place
shall be liable for any customs duty or excise tax of any goods under customs
control which he cannot account for.
60 Unauthorised movement
Goods under Customs control which are stored in a Crown’s or Custom’s
warehouse or an approved place shall not be moved without the written
permission of a Customs officer.
61 Customs auctions
Goods remaining in a Crown’s warehouse or approved place for a period of six
weeks from the date of completion of unloading, may be auctioned by Customs
as prescribed in the Regulations and the proceeds paid to general revenue.
62 Damaged goods not warehoused
Damaged and pillaged goods shall not be warehoused and goods in inadequate
packaging shall not be warehoused unless they are re-packaged adequately.
Customs and Excise Management Act 2007 Section 63
Act No. 4 of 2007
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Page 31
63 Obligation to warehouse goods
(1) Any goods imported into the Kingdom, that are not entered within four
working days from the date of completion of unloading, except goods
under Customs control placed in a Customs warehouse or approved place,
shall be deposited in a Crown’s warehouse or approved place.
(2) Any goods to which sub-section (1) applies shall be subject to such rent
and other charges as prescribed by Regulations.
PART 11 - POWERS OF OFFICERS
64 Examine all goods
(1) A Customs officer may examine goods subject to Customs control at any
time and the expenses for that examination shall be borne by the importer.
(2) A Customs officer may require the owner of goods to be present at the
time of a customs examination.
(3) If the owner of goods subject to customs control cannot be found or
ascertained, a Customs officer may examine those goods at any time.
65 Unload goods
A Customs officer may order the master of any aircraft or ship which has been
detained under this Act, to unload goods suspected of being smuggled or are
customs controlled goods at any place for further examination.
66 Power to search
(1) A Customs officer who has reasonable grounds to suspect a breach of any
Customs law, shall have the power to access and search any —
(a) part of a port, wharf, airport, or any other customs area;
(b) vehicle; or
(c) goods found at that place or in such vehicle.
(2) A Customs officer exercising powers under this section shall have the
authority to enter any building, vehicle, place, or shipping container which
is locked and where the keys are not provided.
Section 67 Customs and Excise Management Act 2007
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67 Boarding
Where a Customs, designated police or Tonga Defence Service officer has
reasonable grounds to believe that there are unauthorised goods or persons on
board any aircraft or ship, those officers may —
(a) stop;
(b) board;
(c) search; or
(d) examine,
such aircraft or ship in the Kingdom.
68 Suitable accommodation
Where a Customs, designated police or Tonga Defence Service officer boards
and is required to remain on board that aircraft or ship, the master shall provide
suitable accommodation and food.
69 Board, search and detain
(1) A Customs officer may, without warrant, stop, board and search any
aircraft, ship, motor vehicle or goods within, to establish that there has
been proper compliance with the Customs laws.
(2) If as a result of sub-section (1), it is established that there has been a
breach of the Customs laws, such Customs officer may detain the aircraft,
ship, motor vehicle or goods, and issue a prescribed detention notice to the
master or owner as the case may be.
70 Customs mooring
A Customs officer in charge of a Customs vessel may take that vessel to or moor
that vessel at any place in the Kingdom for the purposes of this Act.
71 Patrol and pass
Any Customs officer when exercising powers under this Act may patrol and pass
freely over any part of the Kingdom.
72 Detain persons
Where a person refuses to answer questions about goods under Customs control
that are reasonably suspected of being smuggled, the Customs officer may detain
Customs and Excise Management Act 2007 Section 73
Act No. 4 of 2007
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Page 33
that person for the purposes of establishing identity and if necessary convey that
person to the nearest police station.
73 Searching persons
(1) A Customs officer, designated Police officer or officer of the Tonga
Defence Service may cause a person to be detained and searched if the
officer has reasonable grounds to believe that the person has concealed on
or about his person —
(a) any dutiable, uncustomed, prohibited, restricted or forfeited goods;
(b) evidence including documents relating to any such goods; or
(c) any further thing that is or might be evidence of non-compliance
with the customs laws.
(2) Where a Customs officer, designated Police officer or officer of the Tonga
Defence Service has reasonable grounds to believe that a person has
concealed goods within his body in contravention of customs laws, the
officer may request a full body or cavity search of that person by a
registered and authorised medical officer.
(3) A person shall be searched only by a Customs officer of the same gender.
74 Request of information
(1) Where reasonable grounds exist, a Customs officer may question any
person about any matter in the performance of his duties under customs
laws, and may include a request to produce any documents.
(2) Any person to whom sub-section (1) applies shall provide such
information and produce such documents.
75 Warrants
(1) A Customs officer shall apply to a Magistrate for a warrant in the
prescribed form to enter any place, ship, aircraft or warehouse to seize —
(a) goods which he has reasonable grounds to suspect are —
(i) uncustomed; or
(ii) prohibited or restricted; or
(b) any books or documents relating to such goods.
(2) A warrant issued under this section shall expire 14 days after it has
been issued.
Section 76 Customs and Excise Management Act 2007
Act No. 4 of 2007 Page 34
to
76 Arrest
Any Customs officer may arrest and detain any person found committing an
offence, or is suspected on reasonable grounds of having committed an offence
against customs laws.
77 Obstruction
A Customs officer, designated Police officer or officer of the Tonga Defence
Service may, without warrant, arrest any person where that person is involved in
obstructing any such officer in the exercise of his duties under customs laws.
78 Notice to produce
(1) The Chief Commissioner may, by notice in writing, require a person, as
and when specified in the notice —
(a) to produce for inspection by a specified Customs officer,
documents or records that the Chief Commissioner considers
necessary to facilitate —
(i) an investigation under the Customs laws;
(ii) an audit under this Act; or
(iii) the recovery of a debt due and payable to the Crown under
the Customs laws; and
(b) allow the Customs officer to take extracts from, or make copies of,
documents or records of the kind referred to in paragraph (a).
(2) In this section, person includes an officer employed in, or in connection
with, a government department, corporation, or local authority, or
employed in or in connection with a bank.
79 Copies of documents
Where a Customs officer considers that a document is relevant for the proper
administration of the Customs laws, a copy or extract of that document shall be
taken and retained by Customs.
80 Post Clearance Audit
(1) A Customs officer may at all reasonable times enter, with the consent of
the occupier, any premises or place where records are kept and audit or
examine those records to verify that that person is complying fully with
the Customs laws.
Customs and Excise Management Act 2007 Section 81
Act No. 4 of 2007
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Page 35
(2) Notwithstanding subsection (1), a Customs officer shall not enter any
premises except with the consent of an occupier or owner thereof or
pursuant to a warrant issued under this Act.
(3) A Customs officer shall provide prior notice to an occupier of the
premises before entering such premises to conduct a customs audit.
(4) A Customs officer entering premises or exercising any compliance powers
under this section shall produce an identity card to the occupier.
81 Translation of records
The Chief Commissioner may, where any document required by this Act is not
in English or Tongan, cause a translation to be done of such document, at the
owner’s expense, by a translator approved by the Chief Commissioner.
PART 12 - CUSTOMS PENALTIES AND OFFENCES
DIVISION 1 - ADMINISTRATIVE PENALTIES
82 False or misleading statement or declaration
Any person who —
(a) makes a statement or declaration to a Customs officer that is false
or misleading in a material particular; or
(b) omits from a statement or declaration made to a Customs officer
any matter or thing without which the statement is misleading in a
material particular,
shall be liable to an administrative penalty treble the amount of duty and
excise tax short paid.
83 Failure to submit
Any person who fails to submit any declaration or document required by
Customs laws shall be liable to an administrative penalty of $100 and an
additional $10 for each day of default.
84 Dishonoured cheques
Any person who presents a cheque to a Customs officer in payment of customs
duty or excise tax that is not honoured by the bank unless the failure to do so is
Section 85 Customs and Excise Management Act 2007
Act No. 4 of 2007 Page 36
to
an error on the part of the bank, shall be liable to an administrative penalty of
$1,000 and an additional $10 for each day of default.
85 Failure to account
(1) Any person who fails to account for goods under customs control shall be
in addition to being liable for customs duty, excise tax, seizure and
forfeiture of the goods, be liable to an administrative penalty of $1,000
and an additional $10 for each day of default.
(2) This section shall not apply to Customs officers.
86 Failure to deal
Any person who fails to deal with goods in accordance with a customs
declaration or a Customs authorisation shall, in addition to committing an
offence and being liable for customs duty, excise tax, seizure and forfeiture of
the goods, be liable to an administrative penalty of $100 and an additional $10
for each day of default.
87 Enter customs area
Any person who without reasonable cause enters a place where there are goods
under customs control shall be liable to an administrative penalty of $500.
88 Miscellaneous
(1) Any penalty shall be calculated separately with respect to each section in
this Division.
(2) The Chief Commissioner shall serve notice of the penalty in the
prescribed form on the person subject to the penalty.
(3) Any person to whom a notice of penalty is issued under this Act, shall not
be liable to the corresponding criminal offence for the same action.
DIVISION 2 - OFFENCES
89 Acceptance of Customs controlled goods
A master of an inter-island aircraft or coastal ship who knowingly accepts on
board Customs controlled goods or leaves a port or place contrary to this Act,
commits an offence and shall be liable upon conviction to a fine not exceeding
$10,000 or to a term of imprisonment not exceeding three years or both.
Customs and Excise Management Act 2007 Section 90
Act No. 4 of 2007
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Page 37
90 Rescue or destruction of goods
Any person who wilfully —
(a) rescues any goods —
(i) to avoid seizure; or
(ii) after seizure, or
(b) breaks or destroys any goods or documents relating to the seizure,
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.
91 Obstruction of customs officers
Any person who wilfully obstructs a Customs officer exercising powers under
this Act 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.
92 Smuggle
(1) Any person who knowingly —
(a) smuggles;
(b) unlawfully conveys any smuggled goods; or
(c) has in his possession any smuggled goods,
commits an offence and shall be liable upon conviction to a fine of not
exceeding treble the value of the goods or $100,000 whichever is the
greater, or to a term of imprisonment not exceeding 10 years, or both.
(2) Any person who knowingly offers for sale smuggled or unlawfully
imported goods whether or not customs duty or excise tax was payable on
those goods commits an offence and shall be liable upon conviction to a
fine of not exceeding treble the value of the goods or $100,000 whichever
is the greater, or to a term of imprisonment not exceeding 10 years,
or both.
93 False or misleading statement
Any person who knowingly makes a false or misleading statement or omits from
such statement any material particular 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.
Section 94 Customs and Excise Management Act 2007
Act No. 4 of 2007 Page 38
to
94 Counterfeit
(1) Any person who knowingly imports counterfeit goods, documents, seals
or marks or has in his possession any such goods, for the purpose of
avoiding or evading any law of the Kingdom 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.
(2) Any person who knowingly offers for sale imported counterfeit goods,
documents, seals or marks whether or not duty was payable on those
goods 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.
(3) Any person who knowingly receives any imported counterfeit goods,
commits an offence and shall be liable upon conviction to a fine not
exceeding $50,000 or to a term of imprisonment not exceeding four years,
or both.
95 Prohibited or restricted imports or exports
(1) Any person who imports or exports or causes to be imported or exported
any prohibited goods or who unlawfully imports or exports restricted
goods 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.
(2) Any person who knowingly offers for sale any prohibited or unlawfully
imported restricted goods on those goods 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.
(3) Any person who receives any goods knowing or believing them to be
prohibited or unlawfully imported restricted goods 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.
96 Customs brokers
(1) Any person holding himself out to be a Customs broker where he is not
licensed to be a Customs broker 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.
(2) Any Customs broker who does not immediately pay customs duty to the
Chief Commissioner where there is a legal obligation on him to do so
commits an offence and shall be liable upon conviction to a fine not
Customs and Excise Management Act 2007 Section 97
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Page 39
exceeding $100,000 or to a term of imprisonment not exceeding 10 years,
or both.
(3) Any Customs broker who aids, abets, advises or assists in any way an
importer or exporter to commit an offence under this Act 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.
97 Failure to make declaration
Any person who fails to make declarations required under the Customs laws
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.
98 Impersonation
Any person impersonating a Customs officer 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.
99 Failure to account
Any person who fails to account, when obliged to do so, for goods under
customs control 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.
100 Failure to deal
Any person who fails to deal with goods in accordance with a customs
declaration, approved customs form or authorisation 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.
101 Unauthorised movement
(1) Any person involved in any unauthorised movement, alteration or
interference with goods which are subject to customs control 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.
(2) Any person found guilty under sub-section (1) shall be personally liable
for the costs incurred by the Government in correcting the consequences
of that act.
Section 102 Customs and Excise Management Act 2007
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to
102 Enter Customs control area
Any unauthorised person entering a place where there are goods under customs
control 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.
103 Unauthorised disembarkation or boarding
(1) Any unauthorised person who leaves or boards an aircraft or ship having
arrived in the Kingdom on an international voyage 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.
(2) Any master who knowingly allows an unauthorised person to leave or
board an aircraft or ship having arrived in the Kingdom on an
international voyage 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.
104 Unauthorised loading and unloading
The master of any aircraft or ship who, contrary to this Act, allows any
unauthorised loading or unloading of goods subject to Customs control onto or
from that aircraft or ship 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.
105 Unauthorised movement of aircraft or ship
The master of any aircraft or ship who, contrary to this Act moves any aircraft or
ship that has Customs controlled goods on board, without the authority of a
Customs officer 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.
106 Corruption
Any Customs officer who unlawfully requests or accepts directly or indirectly
any money, goods, or services —
(a) in exchange for that officer performing any customs services;
(b) in exchange for the non-performance of that officer’s official
duties; or
(c) otherwise in connection with the officer’s official duties,
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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.
PART 13 - SEIZURE AND FORFEITURE
107 Forfeiture of aircraft and ships
The Chief Commissioner shall have the power to order that the following ships
and aircraft shall be liable to forfeiture an —
(a) aircraft or ship used in smuggling;
(b) aircraft or ship where the master has refused to allow that aircraft or
ship to be boarded by Customs;
(c) aircraft or ship from which goods are thrown overboard or
destroyed to prevent detaining and possible seizure by Customs;
(d) aircraft or ship which is found to be fitted in any way for the
purpose of smuggling;
(e) aircraft or ship where the Chief Commissioner is satisfied that the
master cannot account for goods under Customs control imported
on that aircraft or ship; or
(f) abandoned aircraft or ship.
108 Goods forfeited
The Chief Commissioner shall have the power to order that the following goods
shall be liable to forfeiture —
(a) goods which a Customs officer suspects are smuggled;
(b) bulk goods where the bulk is broken without authorisation;
(c) goods under the control of Customs that have been moved, altered,
or interfered with, without authorisation;
(d) goods which are required by this Act to be dealt with in a particular
way and are dealt with contrary to that authorisation;
(e) goods used in smuggling;
(f) counterfeit goods;
(g) Customs controlled goods that are not included on the cargo
manifest or accounted for to the satisfaction of Customs;
(h) packages which have goods concealed which are not declared or are
packed so as to deceive Customs;
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(i) dutiable goods found in the possession of or in the baggage of a
passenger which has not been declared in accordance with this Act;
(j) ship’s stores which do not comply with this Act;
(k) goods under Customs control which are not accounted for under
this Act;
(l) goods declared by the Director of Health to be unfit for human
consumption; or
(m) uncustomed goods found in any place.
109 Customs, Police and officers of Defence may seize
Any goods liable to forfeiture under sections 107 or 108 may be seized by —
(a) a Customs officer; or
(b) any Police or Tonga Defence Services officer who shall as soon as
practicable, provide details of the seizure to the
Chief Commissioner.
110 Seizure notice
(1) The Chief Commissioner shall, within 14 days of any seizure, give a
prescribed seizure notice to the owner of seized goods or, if the owner
cannot be identified, the person from whom the goods were seized.
(2) Where the goods were seized and the owner is unknown, the notice of
seizure shall be by public notice within 14 days after seizure.
111 Secure goods
Seized goods shall be secured and taken immediately by the Customs officer to
the Crown’s warehouse.
112 Disposing of seized goods
(1) The owner of any seized goods may within one month from the date of the
seizure notice apply to Customs on the prescribed form for the return of
those goods.
(2) The Chief Commissioner may grant the return of the seized goods if the
owner has —
(a) lodged the prescribed form;
(b) provided reasonable grounds for the return of the goods; and
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(c) paid any outstanding duty, charges, fees or penalty imposed under
Part 12, Division 1 of this Act,
but may otherwise refuse to return the seized goods and such goods shall
be deemed forfeited to the Crown.
(3) The Chief Commissioner shall sell or otherwise dispose of the goods
without further notice where an application has been refused unless the
owner has commenced legal proceedings for the return of the seized
goods within two months after the date of being notified of the refusal.
(4) The Chief Commissioner may dispose of seized goods where no
application for the return of seized goods is made.
113 Title
Where goods are forfeited to the Crown, title in those goods transfers absolutely
to the Crown.
PART 14 - LEGAL PROCEEDINGS
114 Repayment of short payment
Where any Customs duty or excise tax has been short levied or erroneously
refunded, the person who should have paid the amount short levied, or to whom
the refund has erroneously been made, shall pay the amount short levied or
repay the amount erroneously refunded on demand being made by the
Chief Commissioner.
115 Payment under protest
(1) Where the amount of Customs duty or excise tax payable is disputed, a
person shall pay the disputed amount under protest.
(2) Where a disputed amount is paid under this section, the person who paid
that amount may —
(a) request in writing the grounds upon which the Chief Commissioner
may reconsider the amount of duty or excise tax payable in which
case the Chief Commissioner shall provide a written response
within 28 days of that request; and
(b) lodge an appeal against the Chief Commissioner’s decision under
paragraph (a) within 30 days to the Tax Tribunal.
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116 Limitation
Proceedings under any Customs law relating to an offence may be commenced
only within seven years after the date of the offence.
117 Smuggling prosecutions
The onus of proof shall lie with the accused in any smuggling prosecution.
118 Offences by Companies
(1) Where an offence under any Customs law is committed by a company,
every person who, at the time the offence was committed was —
(a) a director, principal officer, general manager, secretary, or other
similar officer of the company; or
(b) acting or purporting to act in that capacity
shall be treated as having committed the offence.
(2) Subsection (1) shall not apply to a person where —
(a) the offence was committed without that person’s consent or
knowledge; and
(b) the person having regard to the nature of the person’s functions and
all the circumstances has exercised reasonable diligence to prevent
the commission of the offence.
119 Retention period
(1) A person involved directly or indirectly in the importation or exportation
of goods shall retain all related commercial documentation for seven years
from the date of entry.
(2) Documents retained under this section shall be produced upon request of a
Customs officer.
PART 15 - CUSTOMS BROKERS
120 Application
(1) The Chief Commissioner may —
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(a) upon application in the prescribed form, licence any person to act as
a Customs broker and represent an owner of goods for the purposes
of the Customs laws; and
(b) at any time revoke a customs broker’s licence for non-compliance
with the terms of the licence.
(2) A Customs broker shall —
(a) provide security under Part 9 as determined by the Chief
Commissioner; and
(b) pay a prescribed annual fee for a Customs broker’s licence.
121 Authorisation
An importer or exporter of goods shall provide a written authorisation to
Customs before a Customs broker may represent that person.
122 Deeming
Where a customs broker makes a declaration required under this Act to Customs
that declaration shall be treated as if it were made by the owner.
123 Companies
A person shall not be required to hold a customs broker’s licence if he is —
(a) an employee of a company, firm or business which is a licensed
Customs broker under this Act; and
(b) is authorised by the company firm or business to transact customs
business with Customs in respect of its clients or own goods.
PART 16 - ADMINISTRATION
124 Appointment of ports and airports
(1) The Chief Commissioner may by notice published in the Gazette —
(a) appoint, name, and fix the limits of ports, airports, wharves,
sufferance wharves, boarding stations or Customs areas for the
purposes of the Customs laws; or
(b) revoke or vary any such appointment or any appointment made
prior to the commencement of this Act.
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(2) The Chief Commissioner may approve or revoke in writing places
fixed for —
(a) in an emergency the loading or unloading of goods and the
embarkation or disembarkation of passengers; or
(b) the storage, examination, or security of goods under
Customs control.
125 Confidentiality
(1) A Customs officer shall not communicate or allow to be communicated,
any information obtained under the Customs laws, to any person not
legally entitled to such information.
(2) Any person who contravenes this section commits an offence and shall be
liable upon conviction to a fine not exceeding $100,000 or to
imprisonment for a term not exceeding 10 years, or both.
126 Appeal
Any person may appeal to the Tax Tribunal within 30 days of receipt of a
decision of the Chief Commissioner under Customs laws.
127 Powers of Police and the Tonga Defence Service
(1) Customs officers may seek assistance from Police or Tonga Defence
Service officers in the performance of their duties.
(2) Where assistance is rendered under subsection (1), such officers shall be
authorised by the Chief Commissioner to have the same powers and
authority as Customs officers.
128 Payable to the Crown
All monies collected by Customs shall be paid into the public fund.
129 Regulations
(1) The Chief Commissioner may, with the consent of Cabinet make
Regulations required for the administration of this Act, including all entry
requirement, loading and unloading of inter-island aircraft and coastal
ships, warehousing procedures, customs brokers, drawback procedures
and forms and fees.
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(2) Notwithstanding section 10 of the Interpretation Act (CAP.1), Regulations
made under this Act may prescribe penalties for any offence not
exceeding a fine of $10,000 or imprisonment for a period not exceeding
three years, or both.
130 Agents
Owners of aircraft and ships not registered in Tonga which are obliged to
comply with the Customs laws, shall, unless exempted from this requirement by
the Chief Commissioner, appoint agents for the purposes of the Customs laws.
131 Savings
(1) All appointments made under the Customs and Excise Act (CAP. 67) and
existing on the date this Act comes into force shall be treated as
appointments made under this Act.
(2) Any reference in any law in the Kingdom to the Customs and Excise Act
(CAP. 67) shall be deemed to be a reference, so far as the context applies,
to this Act.
Passed in the Legislative Assembly this day of 2007
