Nghị định 54-CP

DECREE

ON EXPORT AND IMPORT DUTIES MAKING DETAILED PROVISIONS FOR THE IMPLEMENTATION OF THE LAW ON EXPORT AND IMPORT DUTIES AND THE LAW ON AMENDMENT OF AND ADDITION TO A NUMBER OF ARTICLES OF THE LAW ON EXPORT AND IMPORT DUTIES

THE GOVERNMENT

Pursuant to the Law on the Organization of the Government dated 30 September 1992;
Pursuant to the Law on Export a nd Import Duties dated 26 December 1991 passed by Legislature VIII of the National Assembly of the Socialist Republic of Vietnam at its 10th Session; the Law on the Amendment of and Addition to a Number of Articles of the Law on Export and Import Duties dated 5 July 1993 approved by Legislature IX;
On the proposal of the Minister of Finance;

DECREES:

Chapter I

GOODS SUBJECT TO AND ENTITIES LIABLE FOR PAYMENT OF DUTY

Article 1

Goods permitted to be exported or imported across the borders of Vietnam which fall within one of the following categories shall be subject to export or import duty:

1. Exports or imports of Vietnamese economic organizations in any economic sector which are permitted to trade or exchange with, or borrow from foreign countries.

2. Exports or imports of foreign economic organizations or of one of the forms of foreign investment in Vietnam.

3. Goods referred to in clauses 1 and 2 above which are permitted to be imported into export processing zones in Vietnam and goods of enterprises in export processing zones which are permitted to be imported into the domestic market of Vietnam.

4. Goods which are exported or imported as samples or for the purpose of advertising or exhibition.

5. Refundable or non-refundable humanitarian goods which are the subject of aid programmes.

6. Goods which are personal belongings and which exceed the quantity stipulated for exemption of duty of Vietnamese or foreigners crossing the borders of Vietnam.

7. Goods which are gifts or presents and which exceed the quantity stipulated for exemption from duty of foreign organizations, individuals, or foreign nationals of Vietnamese origin, brought or sent back to organizations or individuals in Vietnam and vice versa .

8. Exported or imported goods which exceed the quantity stipulated for exemption from duty of Vietnamese citizens who have been appointed by the State to assignments, work, and studies overseas, of international organizations and foreign diplomatic agencies in Vietnam, and of foreigners working in any of the organizations referred to or in any of the forms of foreign investment in Vietnam.

9. Goods which are movable assets and which exceed the quantity stipulated for exemption from duty of foreign organizations or individuals which are exported across the borders of Vietnam at the end of the term of their residency or work in Vietnam, or of Vietnamese citizens who are permitted to emigrate by the Vietnamese Government.

Article 2

In relation to goods which are purchased or sold, or exchanged across the borders on a small scale, the Council of Ministers shall issue separate provisions.

Article 3

The following goods shall not be subject to export and import duties provided that all customs formalities are carried out:

1. Goods in transit including those being transported on roads which cross the borders of Vietnam on the basis of a treaty signed between two governments or between branches and localities permitted by the Prime Minister. Goods which are imported from foreign countries into export processing zones and goods which are exported to foreign countries from export processing zones; and goods which are transported from one export processing zone to another export processing zone within the territory of the Socialist Republic of Vietnam.

2. Goods in transit including the following:

(a) Goods transported directly from a port of the exporting country to a port of the importing country, without stopping at a port of Vietnam.

(b) Goods transported to a port of Vietnam and then to a port of the importing country, without being subject to the importing procedures of Vietnam.

(c) Goods put into bonded warehouses and then transported to another country in accordance with the administrative regulations of the bonded warehouse, without being subject to the importing procedures of Vietnam.

3. Goods categorized as humanitarian aid including goods supplied by United Nations organizations, goods supplied by the State in accordance with agreed aid programmes and projects, and other aid from the Government in the event of unforeseen circumstances, or from foreign organizations in order to assist in overcoming damage caused by natural disasters or epidemics.

The Ministry of Finance shall issue guidance provisions on the basis of the administrative procedures and the General Department of Customs shall issue guidance provisions on the basis of the customs procedures in relation to goods which are not subject to duties as stipulated in this article.

Article 4

Organizations and individuals shall pay export or import duty on goods which are subject to export or import duty as stipulated in article 1 of this Decree when exporting or importing such goods. In circumstances where the exported or imported goods are assigned, the assignee shall pay the export and import duty.

Article 5

Goods which are exported and imported pursuant to an international treaty to which Vietnam is a signatory shall be subject to the provisions of the international treaty which relate to export and import duties where the treaty makes provisions for exemption from or reduction of export and import duties. The Ministry of Finance shall determine the exemption from or reduction of duties in each case in accordance with the provisions of the international treaty.

Chapter II

BASIS ON WHICH DUTY SHALL BE CALCULATED AND MANNER IN WHICH DUTY SHALL BE LEVIED

Article 6

The basis for calculating the amount of export and import duty payable is as follows:

1. The quantity of each item of goods listed in the export/import declaration form (hereinafter referred to as the declaration) which is submitted by an organization or individual.

2. Dutiable value as stipulated in article 7 of this Decree.

3. Rates of duty applicable to each item of goods as stipulated in article 10 of this Decree.

Article 7

The basis for determining dutiable value shall be:

1. For exports: the contract selling price at the border gate, excluding transportation costs (F) and insurance costs (I), pursuant to the sales contract and consistent with documentary evidence relating to the sale.

For imports: the contract purchasing price at the port of destination, including transportation costs (F) and insurance costs (I), pursuant to the sales contract and consistent with documentary evidence relating to the sale.

The dutiable value in Vietnamese dong shall be the dutiable value in foreign currency multiplied by the buying exchange rate published by the State Bank of Vietnam. The Ministry of Finance shall provide guideline provisions in respect of any currency for which the Bank does not publish a rate.

2. In relation to goods exported or imported pursuant to sale or purchase contracts, where completed legal written evidence confirms that the dutiable value is in accordance with the provisions of the contract, the dutiable value shall be determined according to the contract.

The Ministry of Finance and the Ministry of Trade shall stipulate the basis upon which to determine the dutiable value pursuant to a sale or purchase contract.

3. In cases where the conditions for determining the dutiable value in accordance with a contract as stated in clause 2 of this article, are not satisfied; or the contract price is low in comparison with market prices at the bordergates; or goods are exported or imported by means other than selling, purchasing, or settlement through banks, the dutiable value shall be the actual minimum selling or purchasing price at the bordergates.

The Ministry of Finance shall, together with the Ministry of Trade and the General Department of Customs, stipulate the actual minimum selling and buying prices on the basis of the principle for determining the dutiable value as stipulated in clause 1 of this article.

Article 8

Any duty payable shall be paid in Vietnamese currency: in the case of payment in foreign currency, the foreign currency must be freely convertible. The Ministry of Finance shall stipulate the circumstances in which duty may be paid in foreign currency.

Article 9

The export and import duty payable shall be equal (=) to the quantity of each item of goods actually exported or imported multiplied by (x) its dutiable value and by the rate of duty applicable to each item of goods stated in the tariff.

Chapter III

DUTY TARIFF

Article 10

The rates of export and import duty are stipulated in the tariff issued with this Decree. This tariff shall be in force temporarily.

In consideration of the differing policies to encourage export and import of each item of goods and the periodical fluctuations in market prices, the Ministry of Finance shall, before presenting any adjustment of the duty rates stated in the tariff issued with this Decree to the Council of Ministers within the limits fixed for such rates by the State Council, consult with the Ministry of Trade.

Article 11

The rates of duty applicable to exports and imports shall include a normal rate and a preferential rate.

1. The normal rate shall be the rate of duty stipulated in the tariff issued with this Decree.

2. The preferential rate:

(a) The preferential rate of duty shall be the rate applied in respect of goods which are exported and imported in the following circumstances:

- the goods are exported and imported pursuant to trade agreements signed between two governments which include terms for preferential treatment in respect of export and import duty for each item of goods of a specified quantity.

- the goods which are exported and imported are goods which are manufactured in Vietnam (in relation to exports), or in a foreign country which has signed terms for professional commercial trading relations with Vietnam (in relation to imports).

The Ministry of Finance shall, on the basis of the circumstances stated in this clause, issue guidance provisions in relation to the basic circumstances in which the preferential rate shall be applied.

(b) The preferential rate of duty shall be applied at a uniform rate equal to seventy (70) per cent of the standard rate stated in the tariff.

(c) The Government shall determine the other circumstances in which the preferential rate of duty and the above provisions shall be applied on the basis of the recommendations of the Ministry of Finance and relevant Ministries.

Chapter IV

EXEMPTION FROM, REDUCTION OF AND REFUND OF DUTY

Article 12

The cases in which an exemption from duty shall be allowed, as stipulated in article 10 of the Law on Export and Import Duties, are provided for in detail as follows:

1. Non-refundable aid shall include:

- bilateral or multi-lateral non-refundable aid of government, inter- government and non-govern ment organizations.

- non-refundable goods which are the subject of humanitarian aid programmes of foreign organizations for the purpose of charity, education, health, and culture, of international religious organizations providing assistance in the scientific, educational, health and cultural fields, and to Vietnamese religious organizations to be applied directly in relation to science, education, health, culture, and religion.

2. Temporary imports and re -exports, and temporary exports and re -imports for exhibitions shall include goods which are permitted to be temporarily exported or imported for exhibitions and which, at the end of the exhibition, must be re - imported into Vietnam, in the case of temporary exports, or re -exported from Vietnam, in the case of temporary imports.

3. Movable assets of Vietnamese or foreign organizations and individuals transferred into Vietnam or overseas within permitted quota includes:

(a) Movable assets of foreign organizations or individuals exported through the bordergates of Vietnam at the end of the term of their residency or work in Vietnam.

(b) Movable assets of Vietnamese organizations which, or individuals who, are permitted to conduct business or work in foreign countries and such assets are imported through the bordergates of Vietnam upon expiry of the term.

(c) Movable assets brought back by overseas Vietnamese who are permitted to resettle in Vietnam, or of Vietnamese citizens who are permitted by the Vietnamese Government to emigrate to a foreign country.

The Ministry of Finance shall, together with the Ministry of Foreign Affairs and the General Department of Customs, make detailed provisions on the quota of movable assets to be exempted from duty in respect of each entity in accordance with the law of the respective countries and international law.

4. Goods which are brought or sent back by Vietnamese citizens who have finished their labour contracts in foreign countries, who are experts in foreign countries, or who have lived in foreign countries for study purposes, provided that they comply with the provisions of the Government on entry/exit baggage criteria.

5. Exports and imports of foreign organizations which, and individuals who, pursuant to international treaties to which Vietnam is a signatory or a participant, enjoy diplomatic immunities stipulated by the Government.

The Ministry of Finance shall, together with the Ministry of Foreign Affairs and the General Department of Customs, present the levels of exemption from duty referred to in this clause to the Government for promulgation.

6. Raw materials and other materials imported from foreign countries for processing and re -export pursuant to a contract in writing in any of the following forms: receipt of raw or other materials and subsequent transfer of the finished products, or payment for part or all of the raw or other materials and subsequent sale of the finished products, to a foreign country in accordance with the contract.

The Ministry of Finance shall provide guidance in relation to the circumstances for exemption from duty stipulated in this article.

Article 13

The cases in which a reduction of duty shall be granted, as stipulated in article 11 of the Law on Export and Import Duty, are provided for in detail as follows:

1. Imports for specialized use for security, national defence, scientific, educational, training or research purposes funded by State organizations or bodies.

2. Exports and imports of an enterprise with foreign owned capital and of foreign parties to a business co-operation contract, in cases where it is necessary to encourage investment. Subject to the approval of the Ministry of Finance, the State Committee for Co -operation and Investment shall consider the reduction of or exemption from import or export duties on a case by case basis.

In the cases of duty exemption stipulated in article 76 of Decree 18-CP dated 16 April 1993, the Ministry of Finance shall be responsible for duty exemption on the basis of an investment licence issued by the State Committee for Co - operation and Investment and a list provided by the Ministry of Trade of equipment, machinery, accessories, means of production and materials imported into Vietnam in order to invest in the capital construction of the enterprise or to create fixed assets for t he performance of the business co- operation contract.

3. Gifts of foreign organizations and individuals given to Vietnamese organizations and individuals and vice versa shall be exempted from duty in accordance with the level stipulated by the Ministry of Finance.

4. Goods imported for duty free sale at duty free shops permitted by the authorized bodies to sell to people exiting Vietnam, to foreign representative bodies and to foreigners in Vietnam.

The Ministry of Finance shall stipulate the procedures for determining the reduction of duty in relation to the cases referred to in this article.

Article 14

Where goods are genuinely damaged or lost in the process of transportation, loading, or unloading as certified by Vietnam Export and Import Inspection Company (Vinacontrol), duty may be reduced in proportion to the damage to the goods. Customs offices at the level of the provinces and cities shall, on the basis of the level of damages certified by Vinacontrol, inspect and examine all files in accordance with the procedures for determining the reduction of duty stipulated by the Ministry of Finance.

Article 15

In the event that the original basis upon which an exemption from or reduction of duty was granted as stipulated in articles 12, 13 and 14 of this Decree is changed, the owners of the exports or imports shall notify the customs office at the level of the provinces and cities within two days of the change in the order that the customs office may carry out the procedures for and the collection of the amount of exemption from or reduction of the duty.

The Ministry of Finance shall issue guidance provisions in relation to the basics of the procedures for and authority to collect the full amount of duty payable in relation to these cases.

Article 16

The cases in which the amount of export and import duty paid shall be refunded, as stipulated in articles 14 and 15 of the Law on Export and Import Duties, are provided for in detail as follows:

1. The amount of duty paid shall be refunded in the following cases:

(a) Where imported goods in respect of which a declaration has been submitted to the tax office and duty has already been paid have remained at the bordergates or in a customs warehouse, and are to be re -exported.

(b) Where goods in respect of which a declaration has been submitted and export duty has been paid are no longer to be exported.

(c) Where the quantity of goods actually exported or imported is smaller than that stated in the declaration and that in respect of which duty has been paid.

(d) Where materials are imported for the manufacture of exports, the refunded amount being in proportion to the quantity of exports.

(e) Goods permitted by the Ministry of Trade:

- goods temporarily imported for re -export shall not be subject to export duty upon re -exporting and the refunded amount shall be in proportion to the quantity of re -exports.

- goods temporarily exported for re -import shall not be subject to import

duty upon importing and the refunded amount shall be in proportion to the quantity of re-imports.

- raw materials and materials imported for the manufacture of exports shall not be subject to import duty if the products are exported within the time limit for payment of duty stipulated in article 17 of this Decree and the refunded amount shall be in proportion to the quantity of actual exports.

- goods temporarily imported for re -export shall not be subject to import duty if they are actually re -exported within the time limit for payment of duty (thirty (30) days) and the refunded amount shall be in proportion with the actual re -exported goods.

- goods temporarily exported for re -import shall not be subject to export duty if they are actually re -imported within the time limit for payment of tax (fifteen (15) days) and the refunded amount shall be in proportion with the actual re -imported goods.

- imported goods of a number of Vietnamese businesses permitted to import for the purposes of acting as agents for the delivery and sale of goods to foreign countries; provided that they are registered with the Ministry of Finance they shall be refunded with the duty paid in proportion to the actual amount of goods exported out of Vietnam.

2. The time for the refund of an amount of duty paid shall be as follows:

Within thirty (30) days from receipt of a reques t for a refund of the duty paid, the Ministry of Finance shall pay the refundable tax to that person. If the payment deadline stipulated above is not met, the Ministry of Finance shall pay to the person who has paid the duty both the refundable tax and in terest thereon for the overdue period at the rate payable on bank deposits at the time the refund is made.

The Ministry of Finance shall issue guidance provisions in relation to the basics of the procedures for determining the amount of the refund of the duty paid in the cases which are eligible for a refund as stipulated in this article.

Chapter V

DEALING WITH BREACHES AND RESOLVING COMPLAINTS

Article 17

Dealing with breaches as provided for in article 20 of the Law on Export and Import Duty shall be stipulated as follows:

1. Where the payment of duty is overdue, the organizations which, and individuals who, are liable for the duty shall pay a fine of one fifth of one (0.2) per cent of the overdue amount in respect of each day of delay.

(a) In the cases of exports and imports referred to in clauses 1, 2, 3, 4 and 5 of article 1 of this Decree, the time for payment of duty shall be as follows:

- within fifteen (15) days from the date the organization which, or individual who, is liable for the export duty receives official notification of the amount to be paid from the tax office.

- within thirty (30) days from the date the organization which, or individual who, is liable for the import duty receives official notification of the amount to be paid from t he tax office.

- within ninety (90) days from the date the organization which, or individual who, imports materials and raw materials for the manufacture of exports receives official notification of the amount to be paid from the tax office.

(b) In the cases of exports and imports referred to in clauses 6, 7, 8 and 9 of article 1 of this Decree, the person liable for the duty must pay it before the goods are exported from or imported into Vietnam.

2. Where the person liable for payment of duty delays payment for more than ninety (90) days from the date of receipt of official notification from the tax office, the customs office shall suspend processing of the next consignment of that person and, at the same time, notify the Ministry of Trade. When the Ministry of Trade receives notification from the customs office it shall suspend the issuance of licences for export or import of goods to that person until all outstanding duty is paid as confirmed by the customs office.

3. Any person liable for duty who is fraudulent in relation to payment of duty shall be fined an amount which is between two to five times the amount of duty which was the subject of the fraud.

4. Any person who continues to evade the payment of duty after being subject to administrative punishment in accordance with the provisions of clause 3 of this article, who evades payment of a large amount of duty, or who commits a serious breach shall be prosecuted for criminal responsibility pursuant to the provisions of article 169 of the Criminal Code.

Article 18

In the event that the original basis upon which an exemption of duty or reduction of duty was granted is changed, and the party concerned fails to notify the tax office as provided for in article 15 of this Decree, the party concerned shall pay a fine of one fifth of one (0.2) per cent of the amount of duty payable per day and, if the party continues to breach the provisions on the payment of overdue duty or fraudulent conduct, he or she shall be penalised in accordance with the provisions o f article 17 of this Decree.

Article 19

Where a person liable for duty disagrees with a fine imposed by the tax office as provided for in clauses 1 and 3 of article 17, he shall pay the fine and may, at the same time, lodge a claim for review with the General Department of Customs. Within twenty (20) days from the date of receipt of the application for review, the General Department of Customs must fully resolve the matter. If the person disagrees with the decision of the General Department of Customs, he may lodge a claim for review with the Minister of Finance. Within thirty (30) days, the Minister of Finance must fully resolve the matter and the decision of the Minister of Finance shall be final.

Article 20

Any tax officer or individual who takes advantage of his position and power to appropriate or embezzle duty paid on dutiable exports or imports shall repay to the State the appropriated or embezzled amount and shall, depending on the seriousness of the breach, be subject to administrative punishment or be prosecuted for criminal responsibility as provided by the law.

Any tax officer or individual who takes advantage of his position and power to protect those who breach their export and import duty obligations, or who deliberately breaches the Law on Export and Import Duties shall, depending on the seriousness of the breach, be subject to administrative punishment or be prosecuted for criminal responsibility as provided by the law.

Any tax officer who is irresponsible or intentionally deals with a case in an unlawful manner which results in damage being suffered by the taxpayer or person affected shall pay compensation to that person.

The Ministry of Finance shall issue basic provisions in relation to breaches of the law as stipulated in this article.

Chapter VI

ORGANIZATION OF IMPLEMENTATION

Article 21

Organizations or individuals shall make a declaration with the customs office at the level of provinces and cities or with agencies authorized by the General Department of Customs in respect of each consignment of goods permitted to be exported or imported. Within eight business hours from the lodging of a declaration concerning exports or imports, the customs office shall officially notify the person liable of the amount to be paid. Within the time period stipulated in article 17 of this Decree, the organization or person liable for the duty must pay the amount in full.

In the event that there is any inconsistency between the actual consignment and the declaration, the customs office shall, within two business days from verifying a consignment of exports or imports, adjust the amount of duty payable and shall, at the same time, notify the organization or person liable of the official duty payable.

In the event that within fifteen (15) days, in the case of trading exports, and within thirty (30) days, in the case of trading imports, from the date that the customs office confirms the lodging of the declaration the organization or individual does not have the actual goods for export or import, the lodged declaration for export or import and the notification of the duty payable in respect of the consignment of goods shall no longer be valid. When the organization or individual does have the actual goods for export or import, they must lodge a new declaration. The customs office shall prepare a new official notification on the basis of the newly lodged declaration.

Article 22

When exporting or importing goods across the bordergates of Vietnam, the persons liable in respect of goods permitted to be exported or imported in the circumstances stated in clauses 6, 7, 8 and 9 of article 1 of this Decree shall fully declare all goods which are exported or imported to the tax office at the bordergate concerned and shall pay the full amount of duty payable before exporting the goods from or importing the goods in Vietnam.

Article 23

The General Department of Customs shall issue provisions in relation to the procedures for declaration, verification, determination, and payment of duties in relation to exp orts and imports and shall organize the uniform collection of duties throughout all customs offices. Customs offices at the level of the provinces and cities and customs offices at bordergates shall comply strictly with the provisions in relation to the lodging of declarations provided that the person wanting to export or import goods has the relevant documentary evidence from the calculation of duty. Customs offices shall also calculate accurately the amount of duty payable by the organization or individual liable for duty and shall ensure favourable conditions for organizations and individuals to carry out their tax obligations.

The Ministry of Finance shall make provisions and provide guidance in relation to the collection of export and import duties, specialists for record keeping and accounting, refunds of duty paid, periodical reporting, reports on revenue, and outstanding tax debts in order to enable customs offices at all levels to carry out and supervise the implementation of the Law on Export and Import Duties of the customs branch.

The State Bank of Vietnam shall make provisions and provide guidance for banks in relation to the provision of full audited documents relating to export and import duties which include the name of the bank and the account numbers of the person liable at the request of the customs office and tax office in order to enable them to carry out the supervision of export and import duties.

Chapter VII

FINAL PROVISIONS

Article 24

This Decree shall be of full force and effect as of 1 September 1993 and shall replace Decree 110-HDBT dated 31 March 1992.

All other previous provisions on export and import duties which are inconsistent with this Decree are hereby repealed.

Article 25

The Minister of Finance, the Minister of Trade and the head of the General Department of Customs shall together issue detailed guideline provisions for the implementation of this Decree.

All ministers, heads of ministerial equivalent bodies and bodies of the Government, and chairmen of people's committees at the level of the provinces and cities under central authority shall implement this Decree.