The Commissioner for Customs and Excise and First Graphics (Proprietary) Limited v Kemtek Imaging Systems Limited

The respondent (Kemtek) imported rolls of photosensitised emulsion on aluminium substrates in various thicknesses, up to 2,500m long and 1,260mm wide, which were used to produce lithographic printing plates for the printing industry. After importation, the rolls were decurled, trimmed and cut into individual sensitised plates. The second appellant (First Graphics) manufactured similar plates domestically in South Africa. The first appellant (Commissioner for Customs and Excise) determined that the imported product should be classified under tariff heading 37.01 of Schedule 1 to the Customs and Excise Act 91 of 1964, attracting 15% customs duty. On appeal to the Transvaal Provincial Division, McCreath J set aside this determination and declared the imported product fell under tariff heading 37.02, attracting no duty. The Commissioner and First Graphics appealed to the Supreme Court of Appeal.

• Whether rolls of photosensitised aluminium lithographic printing plates should be classified under tariff heading 37.01 ('Photographic plates and film in the flat, sensitised, unexposed...') or tariff heading 37.02 ('Photographic film in rolls, sensitised, unexposed...') of Schedule 1 to the Customs and Excise Act 91 of 1964
• The proper interpretation of the terms 'plates', 'film', 'in the flat' and 'in rolls' in the context of customs tariff headings
• Whether the legislature intended photographic plates in rolls to fall under tariff heading 37.02
• The application of statutory interpretation principles to customs and excise tariff classifications

The appeal was upheld with costs including the costs of two counsel. The order of the court a quo was set aside and substituted with an order dismissing the appellant's appeal with costs including the costs of two counsel. The Commissioner's original determination that the imported product should be classified under tariff heading 37.01 was reinstated.

Where the legislature distinguishes between 'photographic plates' and 'photographic film' in one tariff heading (37.01) and then refers only to 'photographic film in rolls' in the subsequent heading (37.02), without any reference to photographic plates, the omission indicates the legislature did not intend photographic plates in rolls to fall under the heading for film in rolls. Photographic plates retain their character as plates even when coiled or rolled for delivery or storage purposes. The same word used in related provisions of the same enactment should be understood in the same sense throughout unless a clear indication to the contrary is given. Classification under customs tariff headings must be determined according to the ordinary meaning of the terms used, informed by dictionary definitions and the structure and context of the legislative scheme.

The court noted that while dictionaries suggest rigidity is a distinguishing feature between film and plates, and the legislature possibly had this in mind when distinguishing between them in tariff heading 37.01, the essential difference is uncertain and need not be determined in this case. The court observed that there would have been no need for the legislature to distinguish between photographic plates and photographic film if it considered them to be intrinsically the same product. The court also commented that the reference in explanatory notes to X-ray plates, X-ray film in the flat, and X-ray film in rolls indicates the legislature intended these to be different products, not merely the same product in different forms.

This case provides important guidance on the interpretation of customs tariff classifications in South African law. It establishes principles for determining whether products should be classified as 'plates' or 'film' and whether the form of importation (flat versus rolls) affects classification. The case demonstrates the importance of: (1) giving words in tariff headings their ordinary dictionary meaning unless context indicates otherwise; (2) applying the presumption of consistent meaning when the same word appears in related provisions; (3) considering what the legislature explicitly included and excluded in tariff headings; and (4) the binding nature of explanatory notes to the Harmonized System. The decision has practical significance for importers and customs authorities in determining applicable duty rates based on product classification.