Thông tư 08/2000/TT-TCHQ

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENTS DECREE STIPULATING THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STATE MANAGEMENT OVER CUSTOMS.

Pursuant to Clause 2, Article 35 of Decree No. 16/CP of March 20, 1996, Article 7 of Decree No. 54/1998/ND-CP of July 21, 1998 and Article 2 of Decree No. 58/2000/ND-CP of October 24, 2000 of the Government stipulating the sanctioning of administrative violations in the field of State management over the customs, the General Department of Customs hereby guides the implementation thereof as follows:

I. GENERAL PROVISIONS

1. The Government’s Decree No.16/CP of March 20, 1996, Decree No. 54/1998/ND-CP of July 21, 1998 and Decree No. 58/2000/ND-CP of October 24, 2000 amending and supplementing Decrees No. 16/CP and No. 54/CP stipulating the sanctioning of administrative violations in the field of State management over the customs (hereinafter referred collectively to as the Decree on sanctioning administrative violations on customs or SAVC Decree).

2. The principle for application of the SAVC Decree:

a/ The SAVC Decree shall be applied to acts committed at the time the Decree comes into force.

b/ Where the SAVC Decree and other legal documents contain divergent provisions on the same matter, the document of higher legal effect shall apply.

c/ Where the SAVC Decree and other legal documents, which have prescribed the same matter and been issued by the same body, contain divergent provisions, the provisions of the latest document shall apply.

d/ Where the SAVC Decree and other new relevant legal documents have failed to prescribe the legal liability or have prescribed the lighter legal liability for acts committed before the documents take effect, the new documents shall apply.

3. The following terms used in the SAVC Decree shall be understood as follows:

a/ "Commodity, articles" mean goods, luggage, postal matters, parcels, foreign exchange, gold, Vietnamese currency and other articles.

b/ "Commodity code" means the tax code of commodity according to the provisions of the legislation on export tax, import tax.

c/ "Goods encouraged for export, import" mean goods which are not banned from export, import; not subject to regulation by quotas, permits, oriented plans.

d/ "The average level of the fine bracket" means the average of the highest and the lowest fine levels of the fine bracket for an act of administrative violation.

e/ "Inconsistent with customs declaration" means the inconsistency between the goods and articles declared with the customs and the goods and articles actually exported or imported.

g/ "Recidivism" means cases where a violator has been sanctioned and the statute of limitations for being regarded as having not yet been sanctioned for administrative violation has not yet expired, he/she continues committing administrative violations in the same field.

h/ "Repeated violation" means cases where an administrative violation is committed in the field where administrative violations were previously committed but have not yet been sanctioned.

i/ "Illegal introduction of goods into Vietnam" means acts of bringing goods into Vietnam in contravention of the provisions of Vietnamese law.

4. Administrative violations in the field of State management over the customs mean acts committed intentionally or unintentionally by individuals or organizations, thus breaching the regulations on the State management over the customs prescribed in Clause 1, Article 1 of the SAVC Decree (hereinafter called the Decree for short), which are not serious enough for penal liability examination, but, under the provisions of law, must be sanctioned for administrative violations on customs.

5. Individuals and organizations defined in Clause 2, Article 1 of the Decree shall be understood as follows:

a/ Organizations shall include State bodies, economic organizations, socio-political organizations and social organizations, as defined by Vietnamese laws.

b/ Individuals shall include Vietnamese, foreigners, stateless persons, having full civil act capacity under the provisions of Vietnamese laws.

c/ Vietnamese and foreign individuals and organizations that commit acts of violating the regulations on the State management over the customs must all be subject to administrative liability regarding the customs according to the provisions of this Decree and other Decrees of the Government, which prescribe the sanctioning competence of the customs offices. Where it is otherwise provided for by the international agreements which Vietnam has signed or acceded to, such international agreements shall apply.

6. Subject to sanctions against administrative violations in the field of State management over customs shall be the carriers, the goods consignors, the goods consignees or their lawful representatives, bonded warehouse dealers when they commit acts of administrative violations on customs; the purchasers, the sellers, keepers or transporters of goods and/or articles with illegal import origins; persons buying and/or selling goods entitled to tax preferences in contravention of the regulations; persons obstructing, insulting customs personnel on official duty.

7. An act of administrative violation shall be sanctioned only once. If many people commit one act of administrative violation, each of them shall be sanctioned. A person commits many acts of administrative violation shall be sanctioned for every act of violation. When deciding to impose fine on a person who has committed various acts of administrative violation at one time, the fine level for each act must be clearly inscribed and added up into the common fine level. If one of the above-said acts of violation falls beyond ones sanctioning competence, all the dossiers and material evidences thereon shall be transferred to the competent sanctioning authority.

8. For complicated violations, where it is difficult to determine whether they are administrative violations or criminal offenses, the persons with sanctioning competence of the Customs Departments of the provinces or centrally-run cities (hereinafter referred collectively to as the provincial Customs Department) shall consult with the Peoples Procuracy of the same level and issue the decisions on administrative sanction only after obtaining the opinion of the Peoples Procuracy.

9. For export and/or import commodity and/or articles, being the material evidences of administrative violations, which are subject to taxes, in addition to fines, the violating individuals or organizations shall also have to pay the export tax, import tax, other taxes and fees as prescribed by law.

10. When considering the application of the principle in favor of the involved persons as prescribed in Clause 1, Article 5b of the Decree, the competent sanctioning bodies must base themselves on Article 80 of the Law on Promulgation of Legal Documents and Article 7 of the Ordinance on Handling of Administrative Violations for implementation.

11. Regarding the competence to handle violations:

a/ For administrative violations which fall under the sanctioning competence of many agencies, the agency which detects and make record on the violations first shall issue the sanctioning decisions.

b/ For acts of smuggling, illegally transporting goods, foreign exchange, gold across borders with the value of VND 100 million or more or acts of evading taxes (including export tax, import tax, value added tax, special consumption tax) with the evaded tax amount of VND 50 million or more, which have not yet constituted crimes due to the lack of constituent factors and have been detected by agencies which have no sanctioning competence, their dossiers and material evidences shall be transferred to customs offices for the latter to issue sanctioning decisions and collect taxes according to law provisions.

c/ For acts of violating the customs legislation seriously enough for penal liability examination as provided for in Article 161 (tax evasion) of the Penal Code, the customs offices shall transfer their dossiers to the competent investigation bodies, and at the same time transfer the material evidences for preservation by such bodies as provided for in Clause 2, Article 57 of the Criminal Procedure Code, except otherwise directed by the Prime Minister.

d/ For administrative violations with dossiers relating to various customs units, the unit which detects and makes record on the violations first shall issue the sanctioning decisions; the concerned units shall have to fully transfer the necessary documents at the request of the competent sanctioning unit. In case of divergence of opinions on the sanction, within the prescribed time limit such must be reported to the General Director of Customs for his opinions.

e/ For administrative violations on customs, which are caught on the sea and subject to fine levels falling beyond the competence of the arresting units, such units shall have to transfer the cases to the nearest competent customs office for sanctioning.

Where a case criminally prosecuted by the Smuggling Investigation Department or the central investigation body, which is related to the scope of operation of various provincial Customs Departments and suspended from investigation for administrative sanction upon a decision, the case shall be transferred to the Customs Department of the province where the case took place for sanctioning. Where the case happened in an area not within the scope of operation of such Customs Department, it shall be transferred to the Customs Department near the place where the case occurred or the Customs Department with office in the same area where the investigation body or the Smuggling Investigation Department has its office, for sanctioning.

12. Upon detection of acts of administrative violation on customs in export processing zones, export processing enterprises or areas where economic and trade development is encouraged, depending on the nature and seriousness of the violations, the sanctioning levels commensurable to acts of violation defined in this Decree and other Decrees which define acts of violations and sanctioning competence of the customs offices shall apply.

13. Cases where administrative violations on customs shall not be sanctioned:

a/ Commodities, articles and/or transport means which are brought into Vietnam as a result of fires, natural calamities, enemy sabotage, unexpected incidents, urgent circumstances must be declared with the customs offices, other competent bodies or local administration strictly according to law provisions.

In case of failure to make declaration, sanctions shall be imposed according to the provisions at Point a, Clause 2, Article 6 of the Decree.

b/ For cases prescribed at Point g, Clause 8, Article 12a of the Decree, when acts of violation are detected, the records on administrative violation on customs must be made. On the basis of the import dossiers, relevant documents and violation records, the persons competent to sanction administrative violations shall decide whether to sanction the violations or not, then guide the customs declarers to make adjustments or supplements to the customs declarations.

c/ Bases for determining the value of falsely declared volumes of goods, articles prescribed at Point b, Clause 3, Article 12a and Articles 13 and 14 of the Decree:

- For goods and articles it must be based on legal documents of the Ministry of Finance and, the General Department of Customs guiding the determination of tax calculation prices for goods items subject to the State management over tax calculation prices, and goods items not subject to the State management over tax calculation prices.

- For foreign exchange and gold, it must be based on the transaction exchange rates announced by the Vietnam State Bank at the time of making the records on the violations.

- The determination of residual value in order to impose sanctions as prescribed in Articles 13 and 14 of the amended and supplemented Decree No. 16/CP, which is the value left after subtracting the amounts of foreign exchange, gold and Vietnam dong not subject to the customs declaration as provided for by law.

d/ Where the names of commodities, articles are declared in Vietnamese inaccurately as compared with their names in foreign language(s) on customs vouchers and documents as well as relevant technical documents (if any) just because of translation errors, the customs offices shall request the accurate translation thereof and not impose sanction.

e/ Where tax payers truthfully declare the commodities and articles actually exported or imported but use the tax code wrongly due to the first importation of such commodity item, the customs offices shall guide the goods owners to use the correct tax codes, make the record thereon for certification and shall not impose sanction. If the tax codes are again used wrongly for such goods items though they were once guided by customs officers, the records on violations shall be made and sanctions shall be imposed in strict accordance with the provisions of current legislation.

- Where a tax payer makes arithmetic mistakes in tax calculation without legal grounds for determining such as an intentional act, this shall not be considered act of violation. The customs office shall examine and readjust the payable tax amount in strict accordance with the relevant tax laws.

- For goods items on the list of commodity groups subject to the State management over the tax calculation price, if the goods owners declare the prices which are correct to the prices inscribed on the commercial contracts but lower than the prescribed minimum prices, sanctions shall not be imposed (except where there are enough grounds to determine that the prices inscribed on the contracts are untrue), but readjustment shall be made to the minimum prices for tax calculation.

g/ Where commodities and/or articles are imported strictly according to the customs declarations (except for narcotics, weapons, reactionary documents) which the consignees refuse to receive and return to the sellers with plausible reasons and in conformity with the agreement in the commercial contracts, the Commercial Law of Vietnam and international commercial practices, the commodities and/or articles shall be allowed to be taken out of Vietnam and sanctions shall not be imposed.

14. When receiving customs dossiers to carry out the procedures for export or import of commodities and/or articles, the dossiers- receiving officials shall have to check them; if detecting that the dossiers are incomplete according to regulations, they must guide the applicants to made and submit supplementary declarations and to produce enough vouchers; when the dossiers are supplemented within the time limit for carrying out the customs procedures, the customs offices shall receive and register them without making violation record.

II. APPLICATION OF SANCTIONING FORMS AND LEVELS

1. Sanctioning forms: Individuals and organizations that commit acts of administrative violation on customs must be subject to one of the following principal sanctioning forms: Warning or fine.

a/ Warning: Applicable to individuals and organizations that commit minor administrative violations, for the first time, which involve extenuating circumstances, are defined in Clause 1 of Articles 6, 8, 9a, 9b, 11 and Article 10 of the Decree.

b/ In addition to the principal sanctioning forms, depending on the nature and seriousness of violations committed by individuals and organizations, the following forms of additional sanction may also be applied:

- Confiscation of material evidences, violating means;

- Deprivation of the right to use permits.

The above forms of additional sanction must not be applied independently but must be applied together with the principal sanctioning forms.

2. Individuals and/or organizations subject to the above-mentioned forms of principal sanction and additional sanction may also be compelled to apply other administrative measures prescribed in the Decree such as:

- Forced re-export of commodities, articles;

- Suspension of customs procedure clearance;

- Forced destruction of commodities, articles;

The other administrative measures shall be applied together with principal sanctioning forms, but not independently.

3. The additional sanction form of "deprivation of the right to use permits" shall apply only to permits directly related to goods, articles and/or transport means being the material evidence of the violations.

The customs authorities with sanctioning competence at different level may only deprive the right to use the permits granted by the customs offices. For permits granted by other agencies, the customs offices shall notify in writing the agencies competent to grant such permits thereof, proposing the deprivation of the right to use such permits. After satisfying the request of the customs authorities, the agencies competent to grant the permits shall notify the results to the customs authorities.

When permits are detected having been counterfeited, granted not according to competence or contained illegal contents, records on the seizure thereof must be made before the relevant State bodies and/or organizations are notified thereof in writing.

4. The consideration of handling cases of mistakes in the process of forwarding export or import goods and/or articles prescribed in Clause 3, Article 1 of the Decree must be based on Article 17 of the Customs Ordinance and Article 7 of Decree No. 16/1999/ND-CP of March 27, 1999 of the Government stipulating the customs procedures, customs supervision and customs fees so as to determine the time of "customs inspection of goods". The "pre-customs inspection of goods" time prescribed in Clause 3 of the Decree is understood as the time before the persons who fill in the customs procedures or their lawful representatives produce papers and open containers or parcels at the inspection places for inspection by the customs authorities.

The notification of the mistakes must be made in writing by the carriers, the consignors or their lawful representatives, which must clearly state the reasons therefor and be sent to the customs offices before the inspection of goods. Where there are enough grounds to determine that the mistakes have been committed due to the complicity between the purchaser and the seller or the carrier for smuggling, illegal transportation or tax evasion, the mistake notification shall not be accepted and the mistakes shall be dealt with according to law, depending on their nature and seriousness.

5. The time limit prescribed for customs procedure clearance, mentioned in Clause 1 and Point a, Clause 2, Article 6 of the Decree is the time limit prescribed in Article 5 of Decree No. 16/1999/ND-CP of March 27, 1999 of the Government, stipulating the customs procedures, customs supervision and customs fees.

6. For acts of violating the provisions at Point b, Clause 2, Article 6 of the Decree, sanctions shall be imposed only if the permits, the customs declarations or other papers as prescribed by law stipulate the time limit for re-import or re-export.

7. For acts of violating the provisions in Clause 3, Article 7 of the Decree where goods and/or articles which are material evidences of other administrative violations and subject to confiscation for public fund as an additional sanction, apart from the sanctioning under Clause 3, Article 7, the amount of money corresponding to the value of such goods and/or articles must be recovered. In case it is necessary to secure the execution of sanctioning decisions, an amount of money equal to the amount of fine shall be recovered.

8. Subjects violating the regulations on exchange of export goods and import goods by border people shall include persons inside and outside border areas. The values and categories of commodity permitted to be exchanged by border people must comply with the current law provisions.

The export and import of commodities and articles in other forms through the land border gates must fully comply with the provisions of the customs legislation and relevant legislation.

Where border people carry foreign exchanges (including both Vietnamese currency and gold) across border in excess of the limits prescribed by the Vietnam State Bank and fail to make the customs declaration thereof, they shall be sanctioned according to the provisions in Articles 13 and 14 of the Decree, with handling guidance stated at Points 19 and 20, Part II of this Circular.

9. Acts of exporting or importing gifts in contravention of the States regulations on export and import in Clause 2, Article 9a of the Decree mean acts of exporting or importing commodities and/or articles subject to management by quotas, permits or oriented plans; goods temporarily suspended from export or import; goods and/or articles banned from export or import or to be exported or imported under other conditions.

Where the actually inspected goods and/or articles are compatible with the customs declaration but the consignees refuse to receive them, or where gifts being on the list of goods banned from import (except narcotics, documents with reactionary contents, weapons, ammunitions, explosives, military equipment and gears) are imported with customs declarations, the recipients of such goods/articles or gifts are requested to inform the consignors and the carriers of the transportation of such goods and articles out of Vietnamese territory within the time limit prescribed in Clause 2, Article 27 of the Decree; if past that time limit the goods and articles are not brought out of the country, they shall be confiscated for public funds or destroyed.

- Gifts sent by mails, in postal parcels or through express mail services in violation of regulations, for which the post offices carry out the procedures on behalf of the goods owners, the provisions at Point 2, Part IV of the Joint Circular No. 06/TTLT-TCBD-TCHQ of December 11, 1998 of the General Department of Customs and the General Department of Post and Telecommunications on carrying out the customs procedures for postal matters, parcels, articles, export and import goods, which are sent through postal and express mail services shall be complied with.

10. Where luggage are exported or imported without declaration or with declaration made in contravention of the regulations on customs declaration (prescribed in the contents of the customs declaration forms), which are not governed by the provisions in Clause 2, Article 9b of the Decree, the sanction shall be imposed according to the provisions in Clause 1 of Article 9b mentioned above.

Violations of the regulations on export and/or import of cultural products of non-gift or non-luggage nature shall be handled according to the provisions in Article 12 of Decree No. 88/CP of December 14, 1995 of the Government stipulating sanctions against administrative violations in cultural activities, cultural services and the combat against some social evils.

The determination of whether luggage are exported or imported with permits or not must be based on legal documents on export-import management mechanism, issued by the Prime Minister, and guiding documents of competent bodies, which shall serve as basis for determining acts of violation of "exporting, importing luggage without permits according to the provisions of law" prescribed at Point c, Clause 2, Article 9b of the Decree.

In case of exporting or importing luggage being goods banned from export or import (except narcotics, documents with reactionary contents, weapons, ammunition, explosive, military equipment and gears) with customs declaration, the export or import of such luggage must not be permitted, but no sanction shall be imposed.

11. Transport means carrying export, import, transit, border-transshipment goods prescribed in the Decree shall include air, sea, river, land transport means moving within customs control areas.

a/ Acts of violating the provisions in Clause 2, Article 11 of the Decree shall cover transport means carrying export goods and departing from a Vietnamese port or carrying border- transshipment goods, arriving at ports not included in the ships’ itineraries, but failing to make customs declaration as provided for in Article 5 of Decree No. 16/1999/ND-CP of March 27, 1999 prescribing the customs procedures, customs supervisions and customs fees.

b/ Goods, articles without customs declarations on exit, entry transport means within customs control areas:

- Where goods and/or articles are determined as not belonging to crew members, the sanctioning shall comply with the provisions in Clause 4, Article 11 of the Decree.

- Where such goods are determined as belonging to the luggage of the operators, attendants or passengers onboard exit or entry transport means, which are in service of their journeys or as including in the crew members’ luggage limits, the sanctioning shall comply the provisions of Article 9b of the Decree.

c/ Upon the detection that goods and/or articles are purchased, sold, stored, transported in contravention of the provisions of law or have the illegal import origins, the sanctioning levels prescribed at Point b, Clause 3, Article 17; or Clause 4, Article 11 and Clause 2, Article 17 of the Decree or Article 21 of Decree No. 01/CP of January 3, 1996 on sanctioning administrative violations in the trade field shall apply, depending on the nature and seriousness of the violations; acts of tax evasion, if any, shall be sanctioned according to Point 12.a below.

12. Violations of the provisions in Article 12.a of the Decree:

a/ Violation of the provisions at Point a, Clause 2; Points b and c, Clause 3, of Article 12a, thus causing tax losses, the sanctioning shall be effected as follows:

- Methods of calculating tax difference and applying sanctioning levels:

The subtraction of the tax amount already declared by the goods owners on the customs declaration from the payable amount of tax on the actually imported goods shall yield the evaded tax amount. The evaded tax amount shall cover the export tax, import tax, value added tax and special consumption tax. The tax difference shall be determined by the professional tax unit.

After the evaded tax amount is calculated, Clause 1, Article 161 (on tax evasion offense) of the Penal Code must be consulted with for sanction according to the tax law or for criminal prosecution. If administrative handling is applied, it shall be based on Article 3, Clause 1 of Article 4, of Decree No. 22/CP of April 17, 1996 of the Government stipulating the sanctioning of administrative violations in the field of tax, and Point 2, Part II of Circular No. 128/1998/TT-BTC of September 22, 1998 of the Finance Ministry guiding the implementation of Decree 22/CP in order to impose fines of between one and five times the evaded tax amount, depending on the nature and seriousness of the violations.

- The legal bases for issuing sanctioning decisions must conform to the following provisions of various tax laws:

+ Clause 3, Article 20 in Clause 5, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Export Tax and Import Tax;

+ Clause 3 of Article 19 of the Value Added Tax Law;

+ Clause 3 of Article 17 of the Special Consumption Tax Law;

+ Decree No. 22/CP of April 17, 1996 of the Government, stipulating the sanctioning of administrative violations in the field of tax.

When there are not enough legal evidences for determining that the acts of violation are intentional evasion of import tax, export tax, value added tax, special consumption tax (if any), the sanctioning of such acts of violation shall comply with Clause 2 or Clause 3, Article 12a of the Decree, depending on the nature and seriousness of the violations.

b/ Where goods are imported to contribute investment capital to joint ventures with the declared goods values being higher than their actual values, if the forgery of papers is determined as aiming to increase the contributed investment capital, the sanctioning of the act of forging papers shall be imposed in addition to the sanctioning of act of false declaration of the values; if signs of criminal offenses are detected, the cases shall be transferred to the investigating bodies.

13. For acts of violation related to permits and surrogate documents (hereinafter called permits):

a/ Expired permits:

- Export goods: The goods owners shall have to apply for the extension of their permits before being allowed to carry out the export procedures, and at the same time be sanctioned according to Clause 1, Article 14 of Decree No. 01/CP on sanctioning administrative violations in the trade field.

- Import goods: If the permits remain effective when the contracts are signed or when goods are loaded on transport means but expire when the goods arrive at ports, the sanction shall be imposed for act of using expired permits to import goods, as provided for at Clause 1, Article 14 of Decree No. 01/CP on sanctioning administrative violations in the trade field; this case shall not be considered illegal import.

b/ Import goods which require permits before the signing of contracts:

- Where permits are granted after the signing of contracts, the sanctioning shall comply with the provisions at Point g, Clause 5 and Clause 7, Article 12a of the Decree.

- For permits related to processed goods, goods deposited at bonded warehouses, the sanctioning shall comply with Articles 12b and 12c of the Decree.

c/ Where imported goods are incompatible with the contents of permits, but the material evidences of the violations are machinery contributed as investment capital to joint ventures, which are of advance technology and suitable to the use requirement, certified by competent State management bodies and enclosed with customs declarations, the sanction shall not be imposed but all financial obligations must be fulfilled as provided for by law.

d/ Where imported goods are incompatible with the customs declarations and rejected and returned to the sellers by the consignees with plausible reasons, in conformity with the trade contracts, the Commercial Law and other provisions of Vietnamese legislation, international commercial practices, showing no signs of legalizing smuggled goods lots, the sanctioning shall comply with the provisions in Clause 3, Article 12a of the Decree, goods are compelled to be taken out of Vietnam.

14. Where imported goods are incompatible with the contents of the permits or the customs declarations are made inaccurately in term of goods code, quantity, weight, quality, type, value and/or origin, but the goods are raw materials and/or materials imported for processing or production of export goods, the sanctioning shall comply with Clause 1, Article 12c of the Decree.

15. Violations of the regulations on management of export, import processed goods and imported raw materials for production of export goods, the sanctioning shall comply with the provisions in Clause 1 or Clause 2, Article 12c of the Decree, depending on the nature and seriousness of the violations. In case of violating the provisions on time limits for liquidation of processing contracts, apart from having to execute the sanctioning decisions, enterprises shall also have to carry out the liquidation of the processing contracts strictly according to the current regulations.

16. The provisions at Point e, Point g, Clause 5, Article 12a of the Decree shall not apply to cases where commodities and/or articles are brought into Vietnam on the basis of trade contracts, in conformity with the business licenses of the importers and within the time limits prescribed in Clause 1, Article 5 of the Regulation on customs procedures, customs supervision and customs fees, issued together with Decree No. 16/1999/ND-CP of March 27, 1999, the importers can produce the permits (except for cases stated at Point 13b Part II of this Circular).

17. For the provisions at Point d, Clause 8, Article 12a of the Decree, the directors of the provincial Customs Departments shall have to report in full and in time so that the General Director of Customs can decide to release the goods or authorize the directors of the provincial Customs Departments to release the goods.

18. For diplomatic personnel and/or consular personnel who abuse the diplomatic privileges and immunities to conduct trade activities beyond their official functions, committing administrative violations on customs, before the sanctions are imposed, the diplomatic offices should be consulted with.

In cases where people are not entitled to diplomatic privileges and immunities but take advantage of them to shirk the customs inspection, for the purpose of illegally exporting or importing goods, evading taxes or to forge papers in order to import goods according to the customs privilege and immunity criteria, but not seriously enough for penal liability examination, they shall all be sanctioned according to the provisions at Point a, Clause 5, Article 12a of the Decree.

19. Violations of the regulations on foreign exchanges, gold upon exit or entry.

a/ In case of over-declaration of foreign exchange, gold in large volume equivalent to VND 10,000,000 or more, the violators shall all be sanctioned.

b/ For the violation of provisions at Point b, Clause 2, Article 13 of the Decree with the over-declared volume of foreign exchanges, gold being equivalent to VND 100,000,000 or more, if involving aggravating circumstances, the administrative sanction or the penal liability examination shall be decided, depending on the nature and seriousness of the violation.

c/ For the violation of provisions in Clause 1, Point c, Clause 2, Clause 3, Article 13 of the Decree, if, after the sanctioning, the foreign exchange or gold have lawful origins, they shall be returned; if they do not have lawful origins, they shall be confiscated for public funds. The determination of the lawful origins of foreign exchange or gold shall comply with Point 20c, Section II of this Circular.

20. Violation of the regulations on Vietnamese currency upon exit, entry:

a/ For violations of the provisions in Clause 1, Article 14 of the Decree, with extenuating circumstances and the material evidences of the violations valued at under VND 10,000,000, the sanctioning form of warning shall apply. If aggravating circumstances are involved, a fine of between VND 200,000 and 1,000,000 shall be imposed, depending on the nature and seriousness of the violations.

b/ For violations of the provisions in Clause 1, Clause 2, Article 14 of the Decree, if the material evidences of the violations are Vietnamese currency without lawful origins under the provisions of law, apart from fines, the material evidences shall also be confiscated for public funds.

c/ The determination of whether the origins of foreign exchange, gold or Vietnamese currency are lawful or unlawful shall be based on the case dossiers and, depending on each specific case, on one of the following papers:

- The certification by banks of the volume of foreign exchange, gold or Vietnamese dong having been withdrawn from such banks;

- Income from salary and income from other sources;

- Inheritance;

- Payment invoices of goods purchase and sale, etc.

III. SANCTIONING COMPETENCE

1. The sanctioning competence of immediate leaders of customs personnel, including heads of the working teams under the border-gate offices and professional bureaus, appointed by directors of provincial Customs Departments; professional bureaus without working teams, shall comply with the provisions in Clause 1, Article 16 of the Decree. The immediate superiors of the heads of the working teams shall have the responsibility to inspect and request their subordinates to strictly observe the law provisions when making sanctioning decisions. Cases with violators being foreigners or with complicated circumstances shall be transferred to the immediate superior authorities for issuing sanctioning decisions.

2. The chiefs of border-gate customs offices, leaders of the control teams under the provincial Customs Departments; leaders of the control teams under the Smuggling Investigation Department shall exercise the sanctioning competence under the provisions in Clause 2, Article 16 of the Decree.

The decisions on fine of VND 2,000,000 and decisions on confiscation of material evidences and/or means valued at VND 5,000,000 or more must be sent by the above-mentioned competent persons to the directors of the provincial Customs Departments, the director of the Smuggling Investigation Department (for decisions made by the control teams under the Smuggling Investigation Department) in order to forward them to the Peoples Procuracy of the provinces or centrally-run cities where the provincial Customs Departments are headquartered.

For acts of violation subject to a fine of over VND 2,000,000 or the confiscation of material evidence valued at over VND 20,000,000, the chiefs of the border-gate customs offices and leaders of the customs control teams of the provincial Customs Department shall have to make reports thereon, transfer the dossiers and material evidences to the directors of the provincial Customs Departments for issuing sanctioning decisions.

Violation cases falling beyond the sanctioning competence of the heads of the control teams of the Smuggling Investigation Department shall be transferred to the directors of the Customs Departments of the localities where the violations are detected and recorded for issuing sanctioning decisions.

Chiefs of border-gate customs offices, leaders of the customs control teams of the provincial Customs Departments or the Smuggling Investigation Department may impose sanctions according to the provisions of tax laws with the maximum fine level being VND 20,000,000.

3. The directors of the provincial Customs Departments shall exercise the sanctioning competence as provided for in Clause 3, Article 16 of the Decree:

a/ For violations subject to the sanctioning form of fines with a level of over VND 20,000,000, to carry out the procedures for transfer of dossiers to the People’s Committees of the provinces or centrally-run cities (hereinafter referred collectively to as the provincial Peoples Committees) where the cases are caught so that the provincial People’s Committee presidents issue the sanctioning decisions.

b/ The dossiers on administrative violations on customs, when being transferred to the provincial People’s Committee presidents, must be enclosed with the summarized contents of the cases and proposals of the directors of the provincial Customs Departments on handling measures. The procedures for transfer of dossiers on cases of administrative violation on customs subject to a fine level of over VND 20,000,000 to the provincial People’s Committees must comply with the general provisions. The time limit for consideration and settlement of such cases at each level is stipulated as follows:

Within 15 days after the record on an administrative violation is made, the director of the provincial Customs Department shall have to forward the dossiers thereon and proposal on measures to handle the administrative violation to the provincial People’s Committee president for consideration and solution. The material evidences of the violation shall be kept at the customs warehouse for preservation. Particularly, the material evidences being foreign exchange, precious metals, gems must be sealed and deposited at the State Treasury.

c/ For cases of administrative violation transferred by customs offices to the provincial People’s Committee presidents for solution according to handling competence, after the provincial People’s Committee presidents issue sanctioning decisions, the directors of the provincial Customs Departments where the dossiers on the administrative violation are received shall have to execute the sanctioning decisions. Monthly, the directors of the provincial Customs Departments shall have to report on the execution of the provincial People’s Committee presidents’ decisions on sanctioning administrative violations to the General Director of Customs.

d/ Where a provincial Customs Department takes charge of customs units located in other provinces, the cases of administrative violation on customs falling beyond its sanctioning competence shall be transferred to the presidents of the provincial People’s Committees of the localities where the violations are caught for issuing the sanctioning decisions.

e/ The provincial Customs Department directors’ sanctioning competence shall comply with the provisions of various tax laws and legal documents guiding the implementation of such tax laws. For the evaded tax amount being lower than the levels subject to penal liability examination prescribed in Article 161 of the Penal Code, the directors of the provincial Customs Departments may impose a fine five times the evaded tax amount, but the maximum fine for an evaded tax amount must be lower than VND 50 million; the fine equal to five times the evaded tax amounts must be lower than VND 250 million.

For cases subject to a fine exceeding the above-prescribed levels, the directors of the provincial Customs Departments shall only issue sanctioning decisions according to tax laws when there are opinions of the People’s Procuracy of the same level.

IV. APPLICATION OF MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS AND SECURE THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS

1. When the measure of temporary detention of persons is applied according to the administrative procedures, the following principles must be observed:

a/ Only competent persons defined in Article 19 of the Decree can temporarily detain people according to the administrative procedures.

b/ Upon the temporary detention of persons, there must be written decisions, the copies of which must be handed over to the temporarily detained persons.

c/ People shall be temporarily detained according to the administrative procedures only in cases where it is necessary to gather and/or verify important circumstances for use as basis to issue decisions on administrative sanctions or to prevent or immediately stop acts of administrative violations.

2. Temporary seizure of material evidences and means of administrative violations.

a/ When the measure of temporarily seizing material evidences and means of administrative violations is applied, the following provisions in Article 20 of the Decree must be complied with: If there are in a goods lot commodities and/or articles which are material evidences of violations and commodities and/or articles which are not material evidences of violations, only commodities and/or articles being material evidences of the violations shall be seized. Where violations or not have yet been determined, only samples of the material evidences are kept. For the material evidences being foreign exchange passengers on exit or entry, only the amounts in excess of the limits prescribed by Vietnam State Bank shall be temporarily kept. For the material evidences being raw materials for production of processed goods, raw materials for production of export goods, commodities contributed as capital to joint ventures, duty-free goods imported with ODA capital sources, goods deposited at bonded warehouses, which are stated in the permits and contracts, only the samples thereof shall be kept while the goods shall be released, and these subjects are requested to make written commitments to abide by the subsequent sanctioning decisions.

Organizations or individuals that fail to comply with the provisions on application of measures of temporary seizure of material evidences and/or means of violations, thus causing material losses to goods owners, the directors of the provincial Customs Departments or the heads of the units being the superiors of the persons who have issued the decisions on temporary seizure or the authorized persons of the General Department of Customs shall have to settle the compensation for the material losses according to the provisions in Articles 7, 8, 9, 10 and 11 of Decree No. 47/CP of May 3, 1997 stipulating the compensation for damage caused by State officials or employees, or competent persons of law enforcement bodies, before determining the compensation levels for damage caused by individuals or persons competent to decide the temporary seizure, as provided for in Article 12, 13, 14, 15, 16, 17 and 18 of Decree No. 47/CP.

b/ Persons with competence to temporarily detain people according to the administrative procedures may temporarily seize material evidences and means of violation according to the administrative procedures.

c/ The leaders of the professional working teams may only seize material evidences and means of administrative violations in case of flagrante delicto where the material evidences and/or means of the administrations shall be dispersed or substituted in order to do away with the traces, if the temporary seizure measure is not applied. But within 24 hours from the time of temporary seizure, the decision makers shall have to report the cases to their immediate superiors as provided for in Article 19 of the Decree and get the written consents thereof.

d/ In order to ensure the prompt and effective administrative prevention, the directors of the provincial/municipal Customs Departments shall, in each specific case, authorize the heads of the Smuggling Investigation Sections to temporarily seize the material evidences and means of the administrative violations. The authorizers and the authorized shall have to take responsibility for their decisions.

3. Body search according to the administrative procedures

a/ The competence and order for body search according to the administrative procedures must comply with the conditions prescribed in Article 21 of the Decree.

b/ Customs personnel being on official duty may conduct the body search according to administrative procedures. Before conducting the search, they must show their customs identity cards, be held before law for their decisions and immediately report the cases to the heads of their managing units.

4. Check transport means, objects according to the administrative procedures.

a/ Customs personnel being on official duty may check transport means and objects according to the administrative procedures, except cases where the transport means are sea-going ships, aircraft, trains of Vietnam and/or foreign country operating on international routes, which require the decisions of the heads of the border-gate customs offices or persons of equivalent or higher level.

b/ The checking of transport means, objects of subjects entitled to diplomatic privileges and immunities or consular immunities must comply with the provisions of the international treaties which Vietnam has signed or acceded to and be decided in writing by the General Director of Customs.

When there are grounds to confirm that the luggage of persons enjoying diplomatic privileges and immunities or consular immunities and being on exit or entry contain objects not entitled to the immunities or contain objects of the types banned from export, import by the Vietnamese State or fail to comply with Vietnam’s quarantine regimes, the checking shall be carried out under the decisions of the General Director of Customs and in the presence of the diplomats or their authorized representatives.

5. Searching places where material evidences and/or means of administrative violations are hidden.

When deeming it necessary to search the places where the material evidences and/or means of administrative violations are kept within the areas under the customs control, the customs offices shall have to coordinate with competent bodies in conducting the search according to the provisions in Article 44 of the Ordinance on Handling of Administrative Violations. The search conducted outside the customs-controlled areas must be carried out by the customs offices in coordination with the competent bodies as provided for by law.

V. PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS AND EXECUTING DECISIONS ON SANCTIONING ADMINISTRATIVE VIOLATIONS

1. When sanctioning administrative violations in the field of State management over the customs in form of warning or fine of up to VND 20,000, the records on the violations shall not be made but the decisions on the on-spot sanction shall be issued.

2. The administrative violation- sanctioning decisions may inscribe the effective dates (like for cases of sanctioning foreigners in absentia; cases of failure to fully implement the contents of the decisions within 5 days after the receipt of sanctioning decisions due to temporal, spatial or other reasons).

3. Where the sanctioning form of fine or fine plus the confiscation of material evidences and/or means of violation is applied but past the time limit for execution of the sanctioning decisions the involved parties deliberately refuse to execute the sanctioning decisions, coercive measures must be applied.

Basing themselves on Point c, Clause 3, Article 30 of the Ordinance on Handling of Administrative Violations, the provincial-level Customs Department directors may apply form of coercion for the execution of the sanctioning decisions by way of suspending the customs procedures for export, import goods and/or articles and shall apply this measure only after coordinating with the agencies defined in Article 30 of the Decree without resorting to other coercive measures.

VI. SETTLEMENT OF COMPLAINTS

Upon receipt of dossiers for settlement of complaints, the provisions in Articles 30, 31, 32, 36, 39, 43 and 46 of the Law on Complaints and Denunciations, Decree No. 67/1999/ND-CP of August 7, 1999 and Articles 31 and 32 of the Decree must serve as basis for considering the complaints in term of time limit, statute of limitations, competence to settle complaints and relevant contents so as to decide whether to receive and process them or not.

1. Competence to settle complaints:

Persons competent to issue sanctioning decisions or decisions to apply preventive measures against the administrative violations in the field of customs shall have to settle the first-time complaints.

For the sanctioning decisions made by the heads of the professional working teams, which are complained about, the heads of the professional sections, the chiefs of the border-gate customs offices shall settle the second-time complaints. For the sanctioning decisions issued by chiefs of border-gate customs offices, heads of the customs inspection teams, heads of the professional sections (in places where teams are not set up), the competence to settle the second-time complaints shall fall under the directors of the provincial Customs Departments or the director of the Smuggling Investigation Department (if they are decisions made by the heads of the control teams under the Smuggling Investigation Department).

For sanctioning decisions issued by the provincial Customs Department directors or the provincial People’s Committee presidents, the competence to settle the second-time complaints shall fall under the General Director of Customs.

Where complaints have already been settled by decisions of the General Director of Customs, but are further lodged, the competence to settle them shall fall under the State Inspector General.

Complaints about decisions on sanctioning according the tax laws, which have already been settled by the General Director of Customs, but are further lodged, shall be settled by the Finance Minister according to his/her settling competence.

2. Time limits for notification on complaint receipt and time limits for settlement of complaints:

a/ Within 10 days after the receipt of written complaints, the complaint settlers must process them for settlement and notify the complainants in writing thereof; where they are not processed for settlement, the written notification must be made, clearly stating the reasons therefor.

b/ The time limits for settling the first-time complaints by competent customs authorities at all level (complaint settlers) must not exceed 30 days from the date of receiving them for processing and settlement (the date of making entry in receipt books and notifying in writing to the complainants). For complicated cases, the time limit for settling the complaints may be longer, but shall not exceed 45 days after the receipt thereof. In deep-lying, remote, difficult- to- access areas, the time limit for settling first-time complaints shall not exceed 45 days after the receipt thereof; for complicated cases, the time limit for settling complaints may be prolonged but shall not exceed 60 days after the receipt thereof for settlement.

In the course of settling complaints, if deeming that the execution of the complained sanctioning decisions may cause consequences hardly to be overcome, the complaint settlers must issue decisions or propose the competent authorities to temporarily suspend the execution of such decisions.

The suspension time limit shall not exceed the remaining duration of the complaint- settling time limit. The suspension decisions must be sent to the complainants, and persons with concerned rights and interests. When deeming that the reasons for suspension no longer exist, such suspension decisions must be revoked.

c/ Within 10 days after the receipt of written complaints under their settling competence, the persons who settle the second- or subsequent-time complaints shall have to process them for settlement and notify in writing the complainants thereof.

The time limit for settling the second- or subsequent-time complaints shall not exceed 45 days from the date of receiving them for settlement. For complicated cases, the above-mentioned time limit may be prolonged but must not exceed 60 days; in deep-lying, remote or difficult-to-access areas, such time limit shall not exceed 60 days after the receipt thereof for settlement; for complicated cases, this time limit may be prolonged but must not exceed 70 days after the receipt thereof for settlement.

3. The contents of complaint-settling decisions:

When settling complaints about decisions on sanctioning administrative violations, the complaint settlers shall have to base themselves on Article 38 (settling the first-time complaints), Article 45 (settling the second- and subsequent-time complaints) of the Law on Complaints and Denunciations and the HC17 print form to issue the decisions on settling the complaints.

Where the complainants disagree with the decisions on settling the first-time complaints, they may further lodge their complaints to the immediate superiors of the sanctioning decision makers or initiate lawsuits in administrative cases at courts as provided for by law.

The cases of complaints and settlement of complaints by provincial Customs Departments and the Smuggling Investigation Department according to their competence must periodically reported to the General Department of Customs according to set forms.

VII. IMPLEMENTATION ORGANIZATION

1. The Legal Department of the General Department of Customs shall have to organize the coordination with concerned Departments of the General Department of Customs in re-examining decisions on sanctioning administrative violations on customs and inspecting the observance of law in the process of sanctioning and settling complaints about decisions on sanctioning administrative violations within the Customs Service strictly according to the provisions of law.

2. The directors of the provincial Customs Departments shall organize the inspection of the observance of the principles and orders of sanctioning administrative violations by units under their management as provided for in the Ordinance on Handling of Administrative Violations and the Regulation on the administrative violation sanctioning order within the Customs Service, promulgated together with Decision No. 97/TCHQ-PC of August 5, 1996 and Official Dispatch No. 2505/TCHQ-PC of August 6, 1996 guiding the implementation of the above-said Decision.

At border-gate units and control teams under the provincial Customs Departments, professional sections, there must be cadres taking charge of monitoring and guiding the inspection of the sanctioning of administrative violations by professional teams; settling in time complaints about preventive measures against administrative violations and about administrative violation- sanctioning decisions according to the provisions of the Decree and the guidance in this Circular.

3. For cases of administrative violations or complaints about sanctioning decisions, which involve may complicated circumstances, the handling advisory councils at all level shall have to study, consider and propose them to the General Director of Customs, directors of the provincial Customs Departments for the issuance of timely and correct decisions.

4. Cadres who monitor and guide the sanctioning of administrative violations must be selected from among cadres and employees who have been well tempered, are honest and knowledgeable about laws and profession.

5. The collection and payment of fines for administrative violations shall comply with the guidance of the Finance Ministry. The director of the Department for Inspection of Import and Export Tax Collection of the General Department of Customs shall have to inspect and guide in detail the collection regime according to the current regulations.

6. Customs cadres and employees, who are competent to sanction or apply administrative preventive measures or are tasked to sanction administrative violations on customs, if committing acts of breaching the principles and order for sanctioning administrative violations according to law provisions or lacking responsibility or causing harassment for self-seeking purposes, shall, depending on the seriousness of their violations, be strictly handled according to law; if causing material damage to individuals or organizations, they must make compensation therefor according to law provisions.

This Circular takes effect 15 days after its signing and replaces Circular No. 05/1999/TT-TCHQ of July 26, 1999 and the regulations previously promulgated by the General Department of Customs which are contrary to this Circular.