Thông tư 38/2014/TT-BCT

Circular No. 38/2014/TT-BCT dated October 24, 2014, detailing a number of articles of Decree No. 83/2014/ND-CP on petrol and oil trading

Nội dung toàn văn Circular No. 38/2014/TT-BCT detailing Decree No. 83/2014/ND-CP on petrol and oil trading


THE MINISTRY OF INDUSTRY AND TRADE
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No. 38/2014/TT-BCT

Hanoi, October 24, 2014

 

CIRCULAR

DETAILING A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE NO. 83/2014/ND-CP OF SEPTEMBER 3, 2014, ON PETROL AND OIL TRADING1

Pursuant to the Government’s Decree No. 95/2012/ND-CP of November 12, 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government’s Decree No. 83/2014/ND-CP of September 3, 2014, on petrol and oil trading;

Pursuant to the Government’s Decree No. 35/2006/ND-CP of March 31, 2006, detailing the Commercial Law regarding commercial franchise;

The Minister of Industry and Trade promulgates the Circular detailing a number of articles of the Government’s Decree No. 83/2014/ND-CP of September 3, 2014, on petrol and oil trading.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. This Circular details a number of articles of the Government’s Decree No. 83/2014/ND-CP of September 3, 2014, on petrol and oil trading.

2. This Circular applies to Vietnamese traders engaged in petrol and oil trading on the Vietnamese market.

Article 2. Interpretation of terms

1. Principal means a key trader, petrol and oil distributor or petrol and oil general agent that delivers petrol and oil to agents.

2. Agent means a petrol and oil general agent or petrol and oil retail agent that receives petrol and oil from a principal.

3. Petrol and oil seller means:

a/ A key trader that sells petrol and oil to another key trader or to a petrol and oil distributor;

b/ A petrol and oil distributor that sells petrol and oil to another petrol and oil distributor.

4. Petrol and oil purchaser means:

a/ A key trader that purchases petrol and oil from another key trader;

b/ A petrol and oil distributor that purchases petrol and oil from a key trader or from another petrol and oil distributor.

5. Petrol and oil retail franchisor means a key trader or petrol and oil distributor that grants commercial franchise to a petrol and oil retail franchisee.

6. Petrol and oil retail franchisee means a petrol and oil trader that is granted a commercial franchise by a petrol and oil retail franchisor.

7. Petrol and oil retail franchise means the franchisor permitting and requesting the franchisee to conduct the franchisor’s petrol and oil retail activities in a system designated by the franchisor which are associated with its/his/her goods, goods brand, trade name, business slogan, business symbol and advertising activities. The term of a petrol and oil retail franchise contract must conform to the validity duration of the import and export license of the petrol and oil import and export trader or the certificate of eligibility of petrol and oil distributor, and must be at least twelve (12) months.

Article 3. Petrol and oil agent contract

1. A petrol and oil agent contract shall be made in writing with the following principal contents:

a/ Names, addresses and tax identification numbers of the agent and principal; form of agency; quantity, quality and kinds of petrol and oil, method of delivery and receipt, sale price, and agency remuneration; and other commitments as prescribed by law and this Circular;

b/ Responsibilities of related parties for the quality of petrol and oil; petrol and oil quality inspection and supervision and joint responsibility for the quantity and quality of petrol and oil sold within the network of petrol and oil agents of the key trader, distributor or general agent (when acting as principals);

c/ Specific provisions on supply of invoices and documents; payment of remuneration; and invoices and documents on goods transported on roads by petrol and oil vehicles of agents as prescribed by the Ministry of Finance;

d/ Selection of petrol and oil vehicles of agents and insurance responsibility for persons and vehicles, safety during transportation, responsibility for the quantity and quality of petrol and oil, risks, losses, process of delivery and receipt, and freight, and other agreements and commitments of related parties.

2. A contract must have a validity duration of at least twelve (12) months.

Article 4. Petrol and oil purchase and sale contract

A petrol and oil purchase and sale contract shall be made in writing with the following principal contents:

1. Names, addresses and tax identification numbers of the seller and purchaser; quantity, quality and kinds of petrol and oil, method of delivery and receipt, and sale and purchase prices; and other commitments as prescribed by law and this Circular.

2. Responsibilities of related parties for the quality of petrol and oil.

3. Specific provisions on supply of invoices and documents on petrol and oil purchase and sale; and invoices and documents on goods transported on roads by petrol and oil vehicles as prescribed by the Ministry of Finance.

Article 5. Petrol and oil retail franchise contract

1. A petrol and oil retail franchise contract shall be made in writing with the following principal contents:

a/ Names, addresses and tax identification numbers of the franchisor and franchisee; contents of the petrol and oil retail right; quantity, quality and kinds of petrol and oil and method of delivery and receipt; prices, periodical franchise charges and method of payment; and other commitments as prescribed by law and this Circular;

b/ Specific provisions on supply of invoices and documents on petrol and oil upon franchise; and invoices and documents on goods transported on roads by petrol and oil vehicles as prescribed by the Ministry of Finance.

2. A contract must have a validity duration of at least twelve (12) months.

Article 6. Examination, grant of licenses and certificates

1. Within thirty (30) working days after receiving a complete and valid dossier, the Ministry of Industry and Trade shall examine and appraise the dossier, inspect the actual capacity of the trader and grant a petrol and oil import and export license; a certificate of eligibility of petrol and oil distributor; or a certificate of eligibility of petrol and oil general agent to the trader (for traders having petrol and oil distribution networks in two or more provinces and centrally run cities).

The Ministry of Industry and Trade shall, on a case-by-case basis, work with or authorize the provincial-level Industry and Trade Department of the locality where the trader’s head office is based or the provincial-level Industry and Trade Department of the locality where the trader’s petrol and oil establishment is located, to inspect the actual capacity of the trader and send the inspection minutes to the Ministry of Industry and Trade for consideration and grant of a certificate of eligibility of petrol and oil distributor or petrol and oil general agent.

Within thirty (30) working days after receiving a complete and valid dossier, the provincial-level Industry and Trade Department shall examine and appraise the dossier, inspect the actual capacity of the trader and grant a certificate of eligibility of petrol and oil general agent (for traders having a petrol and oil distribution network in 1 province or centrally run city); a certificate of eligibility of petrol and oil retail agent; or a certificate of eligibility of petrol and oil retail station.

2. In case inspection results show inconsistencies with the trader’s dossier, the Ministry of Industry and Trade or the provincial-level Industry and Trade Department shall issue a written refusal to grant a license to the trader and clearly state the reason for such refusal.

3. In case inspection results show consistencies with the trader’s dossier:

a/ The Ministry of Industry and Trade shall grant a license to the trader, made according to form No. 2, form No. 6 or form No. 8 provided in the Appendix to Decree No. 83/2014/ND-CP;

b/ The provincial-level Industry and Trade Department shall grant a license to the trader, made according to form No. 4, form No. 8 or form No. 10 provided in the Appendix to Decree No. 83/2014/ND-CP.

4. In case of application for a new license, traders shall send one (1) dossier set (copy) to the Ministry of Industry and Trade or the provincial- level Industry and Trade Department through official correspondence channel.

5. In case of application for a supplemented, modified or re-granted license, traders shall send one (1) dossier set to the Ministry of Industry and Trade or the provincial-level Industry and Trade Department through official correspondence channel or online to the address notified by the Ministry of Industry and Trade or the provincial-level Industry and Trade Department on its website.

6. Traders shall pay charges and fees in accordance with law. Charges and fees shall be used under regulations of the Ministry of Finance and the Ministry of Industry and Trade.

Chapter II

PETROL AND OIL TRADING ACTIVITIES

Article 7. Petrol and oil import and export traders

A petrol and oil import and export trader shall:

1. Periodically register its/his/her petrol and oil distribution networks with the Ministry of Industry and Trade before January 31 every year according to form No. 1 provided in the Appendix to this Circular. Within thirty (30) working days after making any changes in these networks, send modified registrations to the Ministry of Industry and Trade.

2. Send monthly, quarterly and annual reports on quantities of petrol and oil brought into and out of and left in depots in the north, central and south, made according to form No. 2 provided in the Appendix to this Circular, to the Ministry of Industry and Trade and send extraordinary reports upon request of the Ministry of Industry and Trade. Send periodical reports to the Ministry of Industry and Trade before the 20th of the first month of the subsequent reporting period.

3. Send monthly reports on the import of petrol and oil, purchase of domestically produced petrol and oil, processing of petrol and oil, export of petrol and oil, temporary import for re-export and border-gate transfer of petrol and oil, made according to form No. 5 provided in the Appendix to this Circular, to the Ministry of Industry and Trade before the 20th of the subsequent month.

4. Sign an agent contract to deliver petrol and oil to a general agent or an agent for petrol and oil distribution.

5. Sign a petrol and oil purchase and sale contract with another key trader or a contract to sell petrol and oil to a petrol and oil distributor.

6. Sign a petrol and oil retail franchise contract with a petrol and oil retail franchisee.

7. Wholesale petrol and oil to producers and consumers.

Subsidiaries of a petrol and oil import and export trader as prescribed in the Enterprise Law may conduct activities authorized by such trader, including:

a/ Wholesaling petrol and oil to producers and consumers;

b/ Signing contracts to sell petrol and oil to petrol and oil distributors;

c/ Signing petrol and oil retail franchise contracts with petrol and oil retail franchisees;

d/ Signing agency contracts.

8. Manage its/his/her petrol and oil distribution networks and traders within these networks, ensuring lawful petrol and oil trading activities, market stabilization and price valorization.

9. Work out plans to develop its/his/her petrol and oil distribution networks and physical and technical foundations in areas, regions, provinces and cities to meet market development requirements.

10. Based on the time of grant of the petrol and oil import and export license, send a report on its/his/her satisfaction of the conditions on physical foundations for petrol and oil trading according to roadmap as prescribed in Article 7 of Decree No. 83/2014/ND-CP made according to form No. 3 provided in the Appendix to this Circular, to the Ministry of Industry and Trade, enclosed with supporting documents, within:

a/ Fifteen (15) working days after completing the roadmap, for depots and vehicles;

b/ The first fifteen (15) working days of the year following the previous year’s reporting period, for petrol and oil retail stations.

Article 8. Petrol and oil distributors

A petrol and oil distributor shall:

1. Periodically register its/his/her petrol and oil distribution networks with the Ministry of Industry and Trade before January 31 every year according to form No. 1 provided in the Appendix to this Circular. Within ten (10) working days after making any changes in these networks, send modified registrations to the Ministry of Industry and Trade.

2. Send monthly, quarterly and annual reports on quantities of petrol and oil brought into and out of and left in depots in the north, central and south, made according to form No. 2 provided in the Appendix to this Circular, to the Ministry of Industry and Trade and send extraordinary reports upon request of the Ministry of Industry and Trade. Send periodical reports to the Ministry of Industry and Trade before the 20th of the first month of the subsequent reporting period.

3. Sign a contract to purchase petrol and oil from a key trader or another petrol and oil distributor according to Article 15 of Decree No. 83/2014/ND- CP.

4. Sign an agent contract to deliver petrol and oil to an agent for petrol and oil distribution.

5. Sign a petrol and oil retail franchise contract with a petrol and oil retail franchisee.

6. Manage its/his/her petrol and oil distribution networks and traders of these networks, ensuring lawful petrol and oil trading activities, market stabilization and price stabilization.

Article 9. Petrol and oil general agents

A trader being a petrol and oil general agent shall:

1. Periodically register its/his/her petrol and oil distribution network with the principal, the provincial-level Industry and Trade Department of the locality where the trader’s petrol and oil distribution network is located, and with the Ministry of Industry and Trade before January 10 every year according to form No. 1 provided in the Appendix to this Circular. Within ten (10) working days after making any changes in this network, send modified registrations to the principal, the provincial-level Industry and Trade Department of the locality where the trader’s petrol and oil distribution network is located, and to the Ministry of Industry and Trade.

2. Sign a contract to act as a petrol and oil general agent under Article 18 of Decree No. 83/2014/ND-CP Liquidate the agent contract with the current principal before signing a contract to act as a petrol and oil general agent for another principal.

3. Sign an agent contract to deliver petrol and oil to an agent for petrol and oil distribution.

4. Based on the contract signed with the principal, organize continuous and stable supply of petrol and oil for its/his/her whole distribution networks to fully and promptly meet market demands.

5. Not sell petrol and oil at prices higher than retail prices set by the key trader.

6. Refuse to receive petrol and oil from the principal if having grounds to believe that petrol and oil fail to meet quality requirements.

Article 10. Petrol and oil retail agents

A trader being a petrol and oil retail agent shall:

1. Periodically register its/his/her petrol and oil distribution network with the principal and the provincial-level Industry and Trade Department of the locality where the trader’s petrol and oil distribution network is located before January 5 every year according to form No. 1 provided in the Appendix to this Circular. Within ten (10) working days after making any changes in this network, send modified registrations to the principal and the provincial-level Industry and Trade Department of the locality where the trader’s petrol and oil distribution network is located.

2. Sign a contract to act as a petrol and oil retail agent under Article 21 of Decree No. 83/2014/ND-CP Liquidate the agent contract with the current principal before signing a contract to act as a petrol and oil agent for another principal.

3. Ensure continuous supply of petrol and oil on the market and not sell petrol and oil at prices higher than retail prices set by a key trader or petrol and oil distributor.

4. Refuse to receive petrol and oil from the principal if having grounds to believe that petrol and oil fail to meet quality requirements.

Article 11. Petrol and oil retail franchisees

A petrol and oil retail franchisee shall:

1. Periodically register its/his/her petrol and oil distribution network with the franchisor, the provincial-level Industry and Trade Department of the locality where the trader’s petrol and oil distribution network is located, and with the Ministry of Industry and Trade before January 5 every year according to form No. 1 provided in the Appendix to this Circular. Within ten (10) working days after making any changes in this network, send modified registrations to the franchisor, the provincial-level Industry and Trade Department of the locality where the trader’s petrol and oil distribution network is located, and to the Ministry of Industry and Trade.

2. Sign a contract to act as a petrol and oil retail franchisee under Article 23 of Decree No. 83/2014/ND-CP and the law on commercial franchise. Liquidate the franchise contract with the current franchisor before signing a petrol and oil retail franchise contract with another franchisor.

Chapter III

IMPORT, EXPORT, TEMPORARY IMPORT FOR RE-EXPORT AND BORDER-GATE TRANSFER OF PETROL AND OIL AND RAW MATERIALS

Article 12. Registration of annual minimum petrol and oil import quotas

1. A petrol and oil import and export trader shall send one (1) set of dossier for registration of a minimum petrol and oil import quota for the subsequent year under Article 34 of Decree No. 83/2014/ND-CP to the Ministry of Industry and Trade before November 15 of the current year.

2. Within thirty (30) working days after receiving the trader’s dossier, the Ministry of Industry and Trade shall, based on the total demand for petrol and oil for domestic sale and the total quantity of petrol and oil for domestic production and processing, assign a minimum petrol and oil import quota to each enterprise, depending on types of petrol and oil.

3. If refusing to assign a minimum petrol and oil import quota to the trader, the Ministry of Industry and Trade shall issue a written reply clearly stating the reason.

4. If wishing to adjust the minimum petrol and oil import quota, the trader shall send a written request for adjustment to the Ministry of Industry and Trade before September 30 every year.

5. A petrol and oil import and export trader shall conduct import on a quarterly basis or comply with the Ministry of Industry and Trade’s written instructions, if any, on petrol and oil import schedule, to ensure sufficient petrol and oil for supply.

Article 13. Export of petrol and oil and raw materials

1. A petrol and oil import and export trader may only export petrol and oil after obtaining approval from the Ministry of Industry and Trade.

2. The Ministry of Industry and Trade shall consider a trader’s request for petrol and oil export on the basis of balancing supply source and domestic sale demand so that the export does not affect petrol and oil supply and demand on the domestic market.

3. Licensing is not required for the export of raw materials (excluding petrol and oil).

4. The export of petrol and oil and raw materials by petrol and oil producers must comply with registered plans as certified by the Ministry of Industry and Trade under Article 15 of this Circular.

5. A trader shall send by post a registration application for petrol and oil export to the Ministry of Industry and Trade, made according to form No. 4 provided in the Appendix to this Circular. Within seven (7) working days after receiving such application, the Ministry of Industry and Trade shall issue a written approval of petrol and oil export or state in writing the reason for its disapproval of petrol and oil export.

Article 14. Temporary import for re-export and border-gate transfer of petrol and oil and raw materials

1. Only traders that possess petrol and oil import and export licenses may conduct temporary import for re-export and border-gate transfer of petrol and oil and raw materials.

2. Traders that wish to sell petrol and oil to the entities prescribed at Point a, Clause 5, Article 35 of Decree No. 83/2014/ND-CP shall register the business line of supplying aviation fuel. Traders that wish to sell petrol and  oil to the entities prescribed at Point b, Clause 5, Article 35 of Decree No. 83/2014/ND-CP shall register the business line of providing ocean shipping services, or shall sell petrol and oil through ocean shipping companies being supply agents.

3. The duration of storage in Vietnam of petrol and oil and raw materials temporarily imported for re-export must comply with Article 11 of the Government’s Decree No. 187/2013/ND-CP of November 20, 2013.

4. Traders may temporarily import petrol and oil and raw materials in large batches and re-export them in the whole batches or in smaller batches from their domestic depots with the quantities and kinds of the temporarily imported petrol and oil and raw materials.

5. Traders that conduct temporary import for re-export and border-gate transfer of petrol and oil and raw materials may sell on the domestic market the volumes of petrol and oil not re-exported or not fully re-exported after fulfilling all tax and financial obligations, including late payment interests (if any), and shall comply with current regulations on the quality of petrol and oil imported and circulated on the domestic market.

Chapter IV

PRODUCTION AND EXPORT PROCESSING OF PETROL AND OIL

Article 15. Production of petrol and oil, import of raw materials for petrol and oil production

1. Petrol and oil producers shall register their plans on production of petrol and oil, import of raw materials for petrol and oil production and sale of petrol and oil products with the Ministry of Industry and Trade.

2. The import of raw materials for petrol and oil production and the export of petrol and oil produced by traders must comply with registered plans as certified by the Ministry of Industry and Trade.

3. Traders may only register the import of the kinds of raw materials specified in Clause 6, Article 3 of Decree No. 83/2014/ND-CP according to their production capacity.

4. Imported raw materials may only be used for petrol and oil production at establishments of traders. Change of use purposes of raw materials is subject to written approval by the Ministry of Industry and Trade.

Article 16. Dossiers and procedures for registration of plans on production of petrol and oil, import of raw materials for petrol and oil production and sale of petrol and oil products

1. A dossier for registration of a plan on production of petrol and oil, import of raw materials for petrol and oil production and sale of petrol and oil products must comprise:

a/ An application for registration of a plan on production of petrol and oil, import of raw materials for petrol and oil production and sale of petrol and oil products, made according to form No. 06 provided in the Appendix to this Circular: four (4) originals;

b/ The investment certificate or enterprise registration certificate: one (1) copy bearing the trader’s true-copy mark;

c/ Documents proving that the trader has a petrol and oil production establishment under the approved planning and that the trader’s investment certificate is granted by a competent authority: copies bearing the trader’s true-copy mark;

d/ Documents proving that the trader has its/his/her own laboratory which is fully capable of testing petrol and oil quality criteria according to relevant national technical regulations: copies bearing the trader’s true-copy mark.

2. Traders that have stable production establishments are not required to submit the papers specified at Points b, c and d, Clause 1 of this Article from the second registration on.

3. Order and procedures for certification of a plan on production of petrol and oil, import of raw materials for petrol and oil production and sale of petrol and oil products

a/ Before October 30 every year, a petrol and oil producer shall submit a dossier for registration of a plan on production of petrol and oil, import of raw materials for petrol and oil production and sale of petrol and oil products as prescribed in Clause 1 of this Article for the subsequent year;

b/ Within ten (10) working days after receiving the trader’s dossier, the Ministry of Industry and Trade shall certify the plan on production of petrol and oil, import of raw materials for petrol and oil production and sale of petrol and oil products for the trader to implement. The written certification shall be sent to the General Department of Customs under the Ministry of Finance for carrying out procedures to control the trader’s import of raw materials and to the Directorate for Standards, Metrology and Quality under the Ministry of Science and Technology for examining and supervising the trader’s satisfaction of the conditions specified in Articles 10 and 11 of Decree No. 83/2014/ND-CP.

If refusing to give certification, the Ministry of Industry and Trade shall issue a written reply clearly stating the reason to the trader.

4. Petrol and oil producers shall send monthly reports on the production of petrol and oil, import of raw materials for petrol and oil production and sale of petrol and oil products to the Ministry of Industry and Trade before the 10th of the subsequent month, made according to form No. 7 provided in the Appendix to this Circular.

5. A trader that fails to strictly implement the certified plan on petrol and oil production and processing shall make a report clearly stating the reason and request the Ministry of Industry and Trade to certify adjustment of such plan.

Article 17. Petrol and oil export processing

1. Only petrol and oil producers may process petrol and oil products for export.

2. In case the processing-ordering party designates the sale of processed petrol and oil products to Vietnamese traders for domestic sale, such products may be sold only to key traders and must comply with current regulations on the quality of petrol and oil imported or circulated on the domestic market.

3. In case petrol and oil import and export traders purchase processed petrol and oil products, the quantities of such products shall be included in the minimum petrol and oil import quota.

Chapter V

ORGANIZATION OF IMPLEMENTATION

Article 18. Effect

This Circular takes effect on November 1, 2014.

Article 19. Implementation responsibility

1. The Domestic Market Department shall:

a/ Work with related units in guiding localities and enterprises to perform the jobs specified in Article 6, Chapter I, and Chapter II, of this Circular;

b/ Work with related units in examining the conditions for grant and revocation of licenses and certificates under Article 6 of this Circular.

2. The Science and Technology Department shall:

a/ Work with related units in reviewing, revising, supplementing and completing national technical regulations on design requirements for land and water-based petrol and oil stations for uniform implementation nationwide;

b/ Work with related units in prescribing rates of petrol and oil wastage to meet state management requirements;

c/ Work with related units in implementing the roadmap for application of ratios of mixing biofuel with conventional fuels under the Prime Minister’s regulations.

3. The E-Commerce and Information Technology Department shall work with the Domestic Market Department, the Finance Department and the Ministry’s Office in publicizing information on petrol and oil trading and corporate finance on the website of the Ministry of Industry and Trade.

4. The units under the Ministry of Industry and Trade shall, within their functions, tasks and powers, work with the Domestic Market Department in monitoring, managing, supervising, inspecting and examining the implementation of this Circular.

5. Provincial-level Industry and Trade Departments, related organizations and individuals and petrol and oil traders shall implement this Circular.

6. Any problems arising in the course of implementation of this Circular should be reported to the Ministry of Industry and Trade for study, amendment and supplementation as appropriate.-

 

 

FOR THE MINISTER OF INDUSTRY AND TRADE
DEPUTY MINISTER




Do Thang Hai

* All appendices to this Circular are not translated.

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