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Aquazania (Pty) Ltd v Commissioner for South African Revenue Service

Wednesday, 23 July 2014   (0 Comments)
Posted by: Author: Lesedi Seforo
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Author: Lesedi  Seforo (SAIT Technical)


This case concerns the appropriate tariff classification in respect of imported hot and cold water dispensers for the purpose of determining the rate of customs duty payable in terms of The Customs and Excise Act 91 of 1964 ("the Act”). 

The Commissioner for the South African Revenue Services (SARS) argued that the dispensers were "electric…. storage water heaters” and thus subject to customs duty. The taxpayer, on the other hand, reasoned that the dispensers ought to be classified as either "refrigerating equipment” or "machines and mechanical appliances having individual functions not specified or included elsewhere in Chapter 84”, both of which are not subject to customs duty. 


Aquazania (Pty) Ltd ("the taxpayer”) is an importer of water dispensers which dispense both hot and cold water.  On 10 April 2008, the Commissioner determined the water dispensers to be "electric…. storage water heaters” classifiable under tariff heading 8516.10.90 of Part 1 of Schedule 1 to the Act. As a result, customs duty of R1.17 million was levied on the taxpayer. Payment by Aquazania was then demanded by the Commissioner on 29 October 2008. 

In its application to the North Gauteng High Court for an order setting aside the Commissioner’s tariff determination, the taxpayer contended that the water dispensers are classifiable instead under tariff heading 8418.69.90 of Part 1 of Schedule 1 as "refrigerating equipment”.

In the alternative, and by the invocation of Note 7 to Chapter 84, Aquazania contended for a classification under tariff heading 8479.89.90 of Part 1 of Schedule No.1 to the Act, as "machines and mechanical appliances having individual functions not specified or included elsewhere in Chapter 84”. Both these classifications would render the water dispensers free from customs duty. 

Both parties agreed that the court need not concern itself with any other possible tariff classification headings, to which the court obliged. 


The court held at para 55(d) that there is no basis for a classification under tariff heading 8418.69.90 because: 

  • In order to be classifiable under this heading…the water dispensers would, "by reference to (their) nature and characteristics ….as a whole”,…have to have the characteristic of "refrigerating equipment”;
  • As the water dispensers cool water and dispense it on demand, and heat water and dispense it on demand, there is simply no factual basis on which it can be contended that, adjudged as a whole, the water dispensers they are "refrigerating equipment”.

Regarding the taxpayer’s alternative contention that the dispensers be classified under tariff heading 8479.89.90, which required the application of the proviso to Note 7, the court began by pointing out that both parties had agreed that the water dispensers performed two distinct functions: dispensing hot and cold water.

Since the water dispensers performed two distinct functions, the court found them to be "multi-function machines” as contemplated by Section Note 3 to Section XVI read with the Explanatory Notes thereto.

The court concluded on this point at para 56(b) that even if one were to assume that Note 7, (which provides for a machine used for more than one purpose) could find application, "the proviso to Note 7 expressly makes a classification based on purpose subject to the provisions of Note 3 to Section XVI”. Therefore, "as Section Note 3 only deals with multi-function machines,it must axiomatically follow that if a multi-purpose product is also multi-functional, Note 7 is trumped by Note 3 consequently, the latter is to be applied in determining classification.

As a result, tariff heading 8479.89.90 was inapplicable.

The taxpayer’s application was thus dismissed with costs.



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