Thông tư 45/2005/TT-BTC

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENT’S DECREE No. 78/2003/ND-CP OF JULY 1, 2003, DECREE No. 151/2004/ND-CP OF AUGUST 5, 2004, DECREE No. 213/2004/ND-CP OF DECEMBER 24, 2004, AND DECREE No. 13/2005/ND-CP OF FEBRUARY 3, 2005, PROMULGATING VIETNAM’S LIST OF GOODS AND THEIR TAX RATES FOR THE IMPLEMENTATION OF THE ASEAN COUNTRIES’ AGREEMENT ON COMMON EFFECTIVE PREFERENTIAL TARIFFS (CEPT)

In furtherance of the Protocol on the Socialist Republic of Vietnam’s accession to the Agreement on Common Effective Preferential Tariffs (CEPT) Scheme for the ASEAN Free Trade Area (AFTA) (hereinafter called the CEPT/AFTA Agreement), concluded on December 15, 1995 in Bangkok;
In furtherance of the Government’s Decree No.  78/2003/ND-CP of July 1, 2003, Decree No. 151/2004/ND-CP of August 5, 2004, Decree No. 213/2004/ND-CP of December 24, 2004, and Decree No. 13/2005/ND-CP of February 3, 2005, promulgating Vietnam’s list of goods and their tax rates for the implementation of the CEPT/AFTA Agreement;
The Ministry of Finance hereby guides the implementation thereof as follows:

I. APPLICATION SCOPE AND CONDITIONS

1. Import goods, to be eligible for the application of CEPT particularly preferential import tax rates (hereinafter referred to as CEPT tax rates for short), as defined in Article 1 of the Government’s Decree No. 78/2003/ND-CP of July 1, 2003, Decree No. 151/2004/ND-CP of August 5, 2004, Decree No. 213/2004/ND-CP of December 24, 2004, and Decree No. 13/2005/ND-CP of February 3, 2005, must satisfy the following conditions:

1.1. Being on Vietnam’s list of goods and their tax rates for the implementation of the CEPT/AFTA Agreement, promulgated together with the Government’s Decree No. 78/2003/ND-CP of July 1, 2003, Decree No. 151/2004/ND-CP of August 5, 2004, Decree No. 213/2004/ND-CP of December 24, 2004, and Decree No. 13/2005/ND-CP of February 3, 2005.

1.2. Being imported into Vietnam from the ASEAN countries, including the following countries:

- Brunei Darussalam;

- The Kingdom of Cambodia;

- The Republic of Indonesia;

- The Lao People’s Democratic Republic;

- Malaysia;

- The Federation of Myanmar;

- The Republic of Philippines;

- The Republic of Singapore; and

- The Kingdom of Thailand;

1.3. Satisfying the ASEAN-origin requirement, certified by certificates of ASEAN goods origin – Form D (C/O – form D for short), as prescribed in Part III of this Circular.

1.4. Being transported directly to Vietnam from exporting countries being ASEAN members as prescribed in the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004.

2. Goods of export processing enterprises established in Vietnam (hereinafter referred to as export processing enterprises) sold into domestic market or processed for enterprises in domestic market must satisfy the conditions specified at Points 1.1 and 1.3, Part I of this Circular for application of CEPT tax rates when being imported.

II. APPLICABLE IMPORT TAX RATES

1. The import tax rates applicable to import goods eligible for the application of CEPT tax rates as prescribed in Part I of this Circular shall be CEPT tax rates for each year, which are correspondingly specified in CEPT tax rate column for that year in Vietnam’s list of goods and their tax rates for the implementation of the CEPT/AFTA Agreement, promulgated together with the Government’s Decree No. 78/2003/ND-CP of July 1, 2003, Decree No. 151/2004/ND-CP of August 5, 2004, Decree No. 213/2004/ND-CP of December 24, 2004, and Decree No. 13/2005/ND-CP of February 3, 2005.

2. For goods on the lists of goods and tax rates, promulgated together with the Government’s Decree No. 78/2003/ND-CP of July 1, 2003, Decree No. 151/2004/ND-CP of August 5, 2004, Decree No. 213/2004/ND-CP of December 24, 2004, and Decree No. 13/2005/ND-CP of February 3, 2005, which provide only the schedule for implementation of CEPT tax rates until 2006, the CEPT tax rates applicable to subsequent years shall be CEPT tax rates of 2006 prescribed in the above-said decrees, unless otherwise provided for by the Government.

3. In cases where the preferential import tax rate (MFN tax rate) of one goods item specified in the current Preferential Import Tariff is adjusted to be lower than the CEPT tax rate, the import tax rate applicable to such goods item shall be the MFN tax rate.

If the MFN tax rate of such goods item specified in the Preferential Import Tariff is adjusted to be higher than the CEPT tax rate, the applicable import tax rate shall be the CEPT tax rate.

4. In cases where goods imported by enterprises for production and/or assembly of mechanical, electrical and electronic products meet both the conditions for the application of the CEPT tax rates and the conditions for the application of import tax rates according to the localization rate under the current regulations, the enterprises may choose to enjoy the tax rates according to the localization rate or the CEPT tax rates, concretely as follows:

Where enterprises choose to apply tax rates according to the localization rate, upon importation of parts or incomplete part assemblies, enterprises shall apply the sole tax rate according to the localization rate to the whole list of imported parts or incomplete part assemblies, though the list contains some parts eligible for application of CEPT tax rates.

Where enterprises choose to apply CEPT tax rates, parts or incomplete part assemblies eligible for application of CEPT tax rates shall enjoy such CEPT tax rates, while other parts and part assemblies shall enjoy preferential import tax rates (MFN tax rates) or ordinary tax rates.

5. Parts and spare parts of automobile CKD component sets imported from many sources (countries of origin) and in many different shipments shall be subject to the application of CEPT tax rates prescribed for automobile CKD component sets, provided that one or many separate commercial invoices can be produced for parts or spare parts expected to apply CEPT tax rates, apart from the conditions specified in Part I of this Circular.

Other parts and spare parts of automobile CKD component sets imported from many sources and in many different shipments, which are ineligible for the application according to the provisions of Part I of this Circular, shall enjoy preferential import tax rates (MFN tax rates) or ordinary tax rates applicable to automobile CKD component sets.

The application of CEPT tax rates shall be effected when import procedures are carried out for each specific shipment. The procedures for settlement of import tax with customs offices shall comply with current regulations.

6. CEPT tax rates applicable to goods processed by export processing enterprises for domestic enterprises shall be the CEPT tax rates of imported processed goods specified in the list of goods and CEPT tax rates, promulgated together with the Government’s Decree No. 78/2003/ND-CP of July 1, 2003, Decree No. 151/2004/ND-CP of August 5, 2004, Decree No. 213/2004/ND-CP of December 24, 2004, and Decree No. 13/2005/ND-CP of February 3, 2005.

7. In case of changes in the goods items in legal documents promulgated by the ASEAN countries for the implementation of the CEPT/AFTA Agreement, that affect Vietnam’s right to enjoy  CEPT tax rates as provided for in Part I, the Ministry of Finance shall provide appropriate guidance on a case-by-case basis.

III. CERTIFICATES OF ORIGIN AND EXAMINATION OF CERTIFICATES OF ORIGIN

1. The rules for goods to be recognized as originating from ASEAN countries are defined in the Regulation on granting of Vietnam’s certificates of ASEAN goods origin - Form D, promulgated together with the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004 and Decision No. 151/2005/QD-BTM of January 27, 2005.

2. The certificates of origin must bear signatures and seals compatible with the official specimen signatures and seals of the following agencies of ASEAN member countries, which are competent to grant certificates of ASEAN goods origin – Form D:

- In Brunei Darussalam: The Ministry of Industry and Natural Resources;

- In the Kingdom of Cambodia: The Ministry of Trade;

- In the Republic of Indonesia: The Ministry of Trade and Industry;

- In the Lao People’s Democratic Republic: The Ministry of Trade;

- In Malaysia: The Ministry of Foreign Trade and Industry;

- In the Federation of Myanmar: The Ministry of Trade;

- In the Republic of Philippines: The Ministry of Finance;

- In the Republic of Singapore: The Customs; and,

- In the Kingdom of Thailand: The Ministry of Trade.

3. C/O Form D for goods sold by export processing enterprises to the domestic market or processed by export processing enterprises for enterprises in the domestic market must bear signatures and seals compatible with the official specimen signatures and seals of regional export and import management offices or management boards of industrial parks or export processing zones authorized by the Trade Ministry.

4. Particularly, C/O Form D for imports, which are on the lists of goods promulgated together with the Government’s Decree No. 213/2004/ND-CP of December 24, 2004 (other than goods processed by export processing enterprises for enterprises in the domestic market) and stated in customs declarations of imports registered with the customs offices in the period from January 1, 2004 to the effective date of this Circular, shall have their validity extended for not more than two (02) years as from the date of registration of customs declarations.

The time limit for producing C/O Form D to the customs offices shall comply with the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004 and Decision No. 151/2005/QD-BTM of January 27, 2005.

5. In case of suspicion of the truthfulness and accuracy of the certificates of ASEAN goods origin - Form D, the customs offices shall be entitled:

- To request the re-examination of C/O Form D: The customs offices shall send their requests for certification to the exporting countries’ agencies competent to grant the certificates of origin.

- To stop the application of CEPT tax rates and temporarily collect tax at the rates specified in the current preferential or ordinary import tariff.

- To request importers to provide additional documents (if any) to prove that their goods actually originate from ASEAN countries, within 01 (one) year.

- Pending the re-examination results, to continue filling in the procedures for the release of goods according to the ordinary import regulations.

- When having enough documents to evidence the goods’ ASEAN origin, the customs offices shall have to carry out procedures for returning to the importers the differences between the tax amounts temporarily collected according to the current preferential or ordinary import tariff and the tax amounts calculated at the CEPT tax rates.

Procedures for requesting the re-examination shall comply with the provisions of the Regulation on the granting of Vietnam’s certificates of ASEAN goods origin – Form D, promulgated together with the Trade Minister’s Decision No. 1420/2004/QD-BTM of October 4, 2004 and Decision No. 151/2005/QD-BTM of January 27, 2005.

IV. OTHER PROVISIONS

1. Enterprises importing goods on the list of goods promulgated together with the Government’s Decree No. 213/2004/ND-CP of December 24, 2004 and stated in customs declarations of imports registered with the customs offices in the period from January 1, 2004 to the effective date of this Circular may additionally submit C/O Form D and relevant documents according to current law provisions to serve as a basis for re-calculating payable import tax. Enterprises shall be reimbursed the difference between the already paid import tax amounts and the import tax amounts calculated at CEPT tax rates if they satisfy the conditions specified in Part I of this Circular. In cases where enterprises have failed to pay import tax according to notices of customs offices and are imposed fines for late tax payment, they shall pay import tax and late payment fines re-calculated according to the above-said CEPT tax rates.

Enterprises shall have to additionally submit
C/O Form D and other relevant documents for completion of procedures for re-calculating payable import tax amounts no later than December 31, 2005.    

2. The regulations on tax calculation bases, the regimes of tax collection, payment, exemption, reduction and reimbursement, the handling of violations and other regulations shall comply with the provisions of the Law on Export Tax and Import Tax and current guiding documents.

V. ORGANIZATION OF IMPLEMENTATION

This Circular takes effect 15 days after its publication in “CONG BAO” and replaces the Finance Ministry’s Circular No. 64/2003/TT-BTC of July 1, 2003, Official Letter No. 9493/TC-HTQT of September 12, 2003, Official Letter No. 736/TC-HTQT of January 19, 2004, Official Letter No. 3932/TC-HTQT of April 15, 2004, and Official Letter No. 5127/TC-HTQT of May 14, 2004.

Any difficulties or problems arising in the course of implementation should be promptly reported to the Ministry of Finance for appropriate additional guidance.