Tholo Energy Services CC v Commissioner for the South African Revenue Service

Tholo Energy Services CC, a licensed distributor of fuel (LDF), submitted refund claims totaling approximately R4.25 million for fuel and Road Accident Fund levies in respect of 25 consignments of diesel removed from South Africa to Lesotho in 2016. The fuel was obtained from PetroSA depots in Bloemfontein, Tzaneen, and from TotalEnergies at Alrode, not from a licensed customs and excise manufacturing warehouse (VM). The fuel was exported without an ITAC export permit. SARS disallowed the refund claims on the basis that the statutory and regulatory requirements for refunds under the Customs and Excise Act 91 of 1964 and Schedule 6 were not met. Internal administrative appeals and an appeal to the High Court were unsuccessful, leading to a further appeal to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The judgment clarifies the nature of appeals under s 47(9)(e) of the Customs and Excise Act as appeals in the wide sense, confirming that SARS may rely on additional legitimate grounds in defending a tariff or refund determination. It also provides authoritative guidance on the strict statutory requirements applicable to fuel levy refunds, particularly the meaning of obtaining fuel from stocks of a licensed manufacturing warehouse and the necessity of compliance with export control legislation.