REPUBLIC OF FIJI ISLANDS

__________

CUSTOMS ACT (BUDGET AMENDMENT) DECREE 2010

___________

GOVERNMENT OF FIJI
(DECREE NO. 9 OF 2010)

IN exercise of the powers vested in me as President of the Republic of Fiji and the Commander in Chief of the Republic of Fiji Military Forces by virtue of the Executive Authority Decree 2009, I hereby make the following Decree — 

Short title and commencement

1. — (1) This Decree may be cited as the Customs Act (Budget Amendment) Decree 2010, and comes into force on 1st January 2010. 

(2) The object of this Decree is to amend the Customs Act 1986 and to correlate this Act to the Budget. 

Section 2 amended

2. Section 2 of the Customs Act 1986 ("the Act") is amended — 

(a) In subsection (1) by inserting the following definitions in their correct alphabetical sequences — 

""assembly process" means the putting together of two or more constituent materials by manual labor or machinery especially on a large scale as an industry; 

"blending" means merging together of two or more fluids or materials or gases in the manufacture process;

"break bulk" with its grammatical variations and cognate expressions means subdividing the original magnitude in three dimensions of any commodity into smaller measurable units without changing the description classification on the Harmonized Commodity Description and Coding System;

"conversion process" means the transformation involved in the act of changing the character, form or function of any tangible commodity or service;

"manufacture" means the making of goods or wares by manual labor or machinery especially on large scale; 

"manufacturer" with its grammatical variations and cognate expressions means the owner of goods or entity directly involved in making of goods or wares;

"materials" means ingredients or components for using in the manufacture process;

"mixing" means merging together of two or more non-fluid materials in the manufacture process; 

"produce" means any tangible commodity extracted, cultivated or harvested from the land, underground, from the seas of Fiji, including from under the sea, from the seabed and beneath the seabed; 

"producer" with its grammatical variations and cognate expressions means the owner of goods who yields or causes to yield a tangible commodity;

"Substantial transformation" means imported inputs of two or more items, each coded of four digits on the Harmonized Commodity Description and Coding System, which upon manufacturing or processing will result in a finished product that is substantially different from the original by virtue of a change to the classification of goods in its first four digits of the Fiji Standard Tariff based on the Harmonized Commodity Description and Coding System;" 

Section 2 amended

3. Section 2 of the Act is amended by inserting subsection (3) — 

"(3) For the purpose of the Act, any references wherever it appears the term "he" or "his" shall be deemed to include "she" or "her" and shall be used interchangeably." 

Section 11 amended

4. Section 11A of the Act is amended — 

(a) by inserting after subsection (3), the new subsections: — 

"(4) The provisions of subsection (1) and subsection (2) shall not apply in relation to an aircraft or ship which is compelled by accident, stress of weather or other unavoidable cause to call at a place other than an airport or port, but the master of any such aircraft or ship shall in those circumstances — 

(a) without any unnecessary delay report to an officer the circumstances which caused the aircraft or ship to call at such place and on demand produce to him the documents relating to the aircraft or ship, its cargo and passengers; 

(b) not, without the consent of a proper officer or, in his absence, of a police officer, permit any goods to be unloaded or loaded, or any of the crew or passengers to land from the aircraft or ship; and 

(c) comply with any directions given by a proper officer or, in his absence, of a police officer with respect to any such goods, and no passenger or member of the crew shall, without the consent of a proper officer or police officer, as the case may be, leave the aircraft or ship; 

Provided that nothing in this subsection shall prohibit the landing or unloading of passengers, crew or goods from an aircraft or ship where that landing or unloading is necessary for reasons of health, safety or the preservation of life or property." 

(b) by renumbering subsection (4) as a new subsection (5). 

Section 13 amended

5. Section 13 of the Act is amended by deleting "$5,000.00 or imprisonment for 12 months" and substituting "$20,000.00 or imprisonment for 4 years". 

Section14 amended

6. Section 14 subsection (4) of the Act is amended by deleting "$5,000.00 or imprisonment for 12 months" and substituting "$20,000.00 or imprisonment for 4 years". 

Section 16 amended

7. Section 16 subsection (2) of the Act is amended by deleting "$1,000.00" and substituting "$10,000.00". 

Section 17 amended

8. Section 17 subsection (2) of the Act is amended by deleting "$1,000.00" and substituting "$10,000.00". 

Section 31 amended

9. Section 31subsection (3) of the Act is amended by deleting "$1,000.00" and substituting "$10,000.00". 

Section 32 amended

10. Section 32 of the Customs Act is amended by — 

(a) renumbering the existing section 32 as subsection 32(1);

(b) inserting new subsection (2) before the proviso — 

"(2) The Comptroller may allow payment of duties in installments, over a period not exceeding nine(9) months from date of first importation, provided the value for duty for any vessel or yacht shall not be less than two million Fiji-dollars."; 

(c) inserting new subsection (3)— 

"(3) it shall be lawful for the Comptroller to require security under the provisions of Sections 35(1), 35(2) and 35(3) of the Customs Act. 

Section 37 amended

11. Section 37 of the Customs Act is amended by deleting and substituting — 

"37 — (1) No warehouse shall be licensed at any port or place other than a port or place appointed by the Minister in accordance with section 4. 

(2) Notwithstanding the provisions of subsection (1), the Comptroller may in his absolute discretion license a bonded warehouse in another place which meets the following criteria: 

(a) The location of the warehouse shall be within a radius of seventy (70) kilometers from a port in accordance with section 4; the Comptroller may in his absolute discretion approve a warehouse location which may exceed seventy (70) kilometers from a port in accordance with section 4; 

(b) The warehouse shall be located on the sealed main trunk road and in an area well – lit with street lights and in addition with floodlights around the warehouse building; 

(c) The premises of the warehouse shall be surrounded by metal fencing not less than three (3) meters in vertical height and the lower part of the fence shall be embedded into the ground footing; and

(d) The warehouse shall meet all other terms and conditions of Part VIII of this Act. 

(3) A warehouse keeper who contravenes any of the provisions in subsection (2) shall be guilty of an offence and liable to a fine not exceeding $10,000 and the Comptroller shall invoke the provisions of section 39." 

Section 38 amended

12. Section 38 subsection (5) of the Customs Act is amended by deleting "$1,000.00" and substituting "$10,000.00". 

Section 38 amended

13. Section 38 subsection (6) of the Act is amended by deleting "$1,000.00" and substituting "$10,000.00". 

Section 40 amended

14. Section 40 subsection (3) of the Act is amended by deleting "$500.00" and substituting "$10,000.00". 

Section 47 amended

15. Section 47 subsection (5) of the Act is amended by deleting "$5,000.00 or to imprisonment for 12 months" and substituting "$20,000.00 or imprisonment for 4 years". 

Section 55 amended

16. Section 55 of the Act is amended by deleting "$1,000.00, or to imprisonment for 12 months" and substituting "$10,000.00 or imprisonment for 4 years". 

Section 63G amended

17. Section 63G of the Act is amended by deleting "$5000.00" and substituting "$20,000.00". 

Section 72 amended

18. Section 72 subsection (4) of the Act is amended by deleting "$2000.00" and substituting "$10,000.00". 

Section 95 amended

19. Section 95 of the Act is amended by — 

(a) renumbering the existing subsection 95 (3) as subsection (5);

(b) inserting a new subsection (3) immediately after subsection (2) — 

"(3) The owner, director, partners, and shareholders shall be held personally responsible for payment of correct amount of any duty, charge or fee due and payable under this Act;" 

(c) inserting the a new subsection (4) immediately after subsection (3) —

"(4) The Comptroller may execute section 143C of the Act."

Section 96 amended

20. Section 96 of the Customs Act is amended by— 

(a) renumbering the existing subsection (3) as subsection (5);

(b) inserting the following new subsection (3) — 

"(3) The Comptroller shall require that any applicant for refund of any duty, charge or fee must have a bank account in a commercial trading bank in the Fiji Islands;" 

(c) inserting a new subsection (4) immediately after subsection (3) — 

"(4) The Comptroller shall refrain from refunding any duty, charge or fee directly to claimants;" 

Section 100 amended

21. Section 100 subsection (1) of the Act is amended by deleting "$2000.00" and substituting "$10,000.00". 

Section 100 amended

22. Section 100 subsection (2) of the Act is amended by deleting "$2000.00" and substituting "$10,000.00". 

Section 102 amended

23. Section 102(3) of the Customs Act is amended by deleting "$2,000.00, or to imprisonment for 12 months" and substituting "$10,000.00 or imprisonment for 4 years". 

Section 103 amended

24. Section 103 of the Act is amended — 

(a) in subsection (4) paragraph (a) by deleting "$10,000.00" and substituting "$40,000.00";

(b) subsection (4) paragraph (b) of the Act is amended by deleting "$50,000.00" and substituting "$200,000.00". 

Section 104 amended

26. Section 104 of the Act is amended in — 

(a) subsection (4) by deleting "$1,000.00" and substituting "$10,000.00";

(b) subsection (5) of the Customs Act is amended by deleting "$1,000.00" and substituting it with "$10,000.00". 

Section 109 amended

28. Section 109 of the Act is deleted and substituted by — 

"Power to detain and search persons

109—(1) Subject to subsection (2) and (3), any proper officer who has reasonable suspicion that any good is being conveyed, whether on any person, or in any vehicle, package or otherwise concealed or carried on any person will amount to the commission of an offence against the Customs law, without a warrant or other written authority, detain and search any such person, vehicle or package, and may take possession or and detain any such article or any such person. 

(2) A female shall not be searched except by a female. 

(3) The person to be searched may require to be taken forthwith before an officer of no lesser rank than a Collector. 

(4) If a proper officer has reasonable cause to believe that a person has unlawfully secreted about his person or within his body cavities of any uncustomed goods or prohibited imports, the proper officer may direct an internal search of that person to be undertaken at his direction by a registered medical practitioner. 

(5) If, on the search of a person under this section, goods are found in his possession, whether upon his person or his baggage, in relation to which an offence under this Act has been committed, the goods are liable to forfeiture. 

(6) If, on the search of a person under this section, goods are found in his possession, whether upon his person or baggage, in relation to which an offence under this Act has been committed, the goods are liable to forfeiture. 

109A—(1) When any person has been taken into custody without a warrant for an offence under the Customs Act, the officer of or above the rank of Collector may in any case and shall, if it does not appear to be practicable to bring such persons before an appropriate magistrate’s court within forty-eight hours after he has been taken into custody, inquire into the case, and unless the offence appears to the proper officer to be of a serious nature, release the person on his or her entering into a bond with or without sureties, for a reasonable amount to appear before a magistrate’s court at a time and place to be named in the bond. 

(2) Where a person is retained in custody, he or she shall be brought before a magistrates’ court as soon as practicable. 

Provided that a proper officer of no lesser rank than a Collector may release a person arrested on suspicion of committing a Customs offence when, after due Customs inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge. 

Power to detect

109B — (1) A proper officer may conduct inquiries, if he or she under reasonable suspicion believes that an offence against the Custom laws will be committed." 

Section 116 amended

29. Section 116 subsection (3) of the Act is amended by deleting "$1,000.00" and substituting "$10,000.00". 

Section 122 amended

30. Section 122 subsection (2) of the Act is amended by deleting "$1,000.00 or imprisonment for 6 months" and substituting "$10,000.00 or imprisonment for 3 years." 

Section 123 amended

31. Section 123 of the Act is amended by deleting "$5,000.00 or imprisonment for 2 years" and substituting "$20,000.00 or imprisonment for 4 years". 

Section 124 amended

32. Section 124 subsection (3) paragraph (b) of the Act is amended by deleting "$5,000.00" and substituting "$20,000.00". 

Section 124 amended

33. Section 124 subsection (4) of the Act is amended by deleting "$5,000.00" and substituting "$20,000.00". 

Section 126 amended

34. Section 126 of the Act is amended by deleting "one year" and substituting it with "4 years". 

Section 127 amended

35. Section 127 of the Act is amended by deleting "$5,000.00" and substituting "$20,000.00". 

Section 134 amended

36. Section 134 of the Act is amended by deleting "$2,000.00" and substituting "$10,000.00". 

Section 136 amended

37. Section 136 of the Act is amended by deleting "$2,000.00" and substituting "$10,000.00". 

Section 137 amended

38. Section 137 of the Act is amended by deleting "$2,000.00" and substituting "$10,000.00". 

Section 137A amended

39. Section 137A subsection (1) paragraph (b) of the Customs Act is amended by deleting "$50" and substituting "$1,000.00". 

Section 138 amended

40. Section 138 of the Act is amended by deleting "$5,000.00" and substituting "$20,000.00". 

Section 139 amended

41. Section 139 of the Act is amended by deleting "$5,000.00" and substituting "$20,000.00". 

42. Section 140 subsection (3) of the Customs Act is amended by deleting "$2,000.00" and substituting "$10,000.00". 

Section 143 amended

43. Section 143 of the Act is amended by deleting "$2,000.00" and substituting "$10,000.00". 

Section 143A amended

44. Section 143A of the Act is amended by deleting "$5,000.00" and substituting "$20,000.00". 

Section 149 amended

45. Section 149 subsection (4) of the Act is amended by deleting "$2,000.00" and substituting "$10,000.00". 

Section 191 amended

46. Section 191 subsection (2) paragraph (a) of the Act is amended by deleting "$2,000.00" and substituting "$10,000.00". 

GIVEN under my hand this 6th day of January 2010. 

EPELI NAILATIKAU 
President of the Republic of Fiji