Quyết định 12/2007/QD-BTM

DECISION

ON PROMULGATING THE REGULATION OF THE ISSUANCE OF CERTIFICATION OF ORIGIN FORM E DEAL FOR PREFERENTIAL TARIFF TREATMENT ACCORDING TO THE AGREEMENT ON TRADE IN GOODS OF THE FRAMEWORK AGREEMENT ON COMPREHENSIVE ECONOMIC COOPERATION BETWEEN THE ASSOCIATION OF SOUTHEAST ASIAN NATIONS AND CHINESE PEOPLE'S REPUBLIC

MINISTER OF TRADE

Pursuant to the Agreement on Trade in Goods of the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People's Republic of China was formally signed in Laos on November 29, 2004;

Pursuant to the Protocol amending the Agreement on Trade in Goods of the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People's Republic of China was signed on December  08, 2006 in Cebu, Philippines;\

Pursuant to the Government's Decree No. 29/2004/ND-CP dated January 16, 2004, defining the functions, tasks, powers and organizational structure of the Ministry of Trade;

At the request of Director of the Import and Export Department,

DECIDES:

Article 1. To promulgate together with this Decision the Regulation on issuance of certificates of origin Form E for preferential tariff treatment according to the agreement on trade in goods under the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People's Republic of China (in the Regulations and the Annexes enclosed to this Decision, the Regulation referred to as the Regulation on issuance of C / O Form E).

Article 2. This Decision takes effect 15 days after publication in the Gazette. This Decision replaces Decision 1727/2003/QD-BTM , of Minister of Trade, dated December 12, 2003, promulgating the Regulation on issuance of certificates of origin Form E of goods to Vietnam to enjoy the preferential tariff treatment under the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People's Republic of China; Decision of the Minister of Trade 09/2006/QD-BTM dated February 24, 2006, amending and supplementing regulations on issuance of Vietnam’s Certificate of Origin Form E for goods to enjoy preferential tariffs under  Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian countries and the People's Republic of China.

Article 3. Chief of Ministry Office, Director of Export and Import Department, heads of concerned agencies shall implement this Decision.

REGULATION

ISSUANCE OF CERTIFICATES OF ORIGIN FOR GOODS FORM E
(Attached to Decision No. 12/2007/QD-BTM dated May 31, 2007 of the Minister of Trade, on promulgating Regulation on issuing certificates of origin Form E for preferential tariff treatment according to Agreement on Trade in goods under the Framework Agreement on comprehensive Economic Cooperation between the Association of Southeast Asian nations and the People's Republic of China)

Chapter I.

GENERAL PROVISIONS

Article 1. Definition

1. Agreement on Trade in Goods of the Framework Agreement on Comprehensive Economic Cooperation between the Association of Southeast Asian Nations and the People's Republic of China (hereinafter referred to as the ACFTA) is Agreement signed the official in Laos November 29, 2004.

2. Certificate of origin ASEAN - China (hereinafter referred to as C / O Form E) is C / O for the goods issued by the C/O provider Form E.

3. The C/O provider form E (hereinafter referred to as the C/O provider) are the units authorized by the Ministry of Trade to issue C / O Form E for Vietnam’s goods for preferential tariff treatment according to Agreement on Trade in ASEAN-China goods which are detailed in Annex IV of this Regulation. This list can be adjusted, added by the Department of Trade in each period.

4. The person proposing for issuance of C / O form E (hereinafter referred to as the Applicant for C / O) including exporters, manufacturers, representatives of the legal power of attorney or the export manufacturer.

5. ECoSys Network is Vietnam’s electronic system of management and  issuance of certificate of origin at address: http://ecosys.mot.gov.vn.

Article 2. Goods being issued C / O Form E

Goods being issued C / O Form E are goods sufficient to meet the conditions of the rules of origin set out in Annex I and Annex II of this Regulation and under the list of goods attached to the Decision of Finance Ministry, providing for goods of tariff preference programs ASEAN -China.

Article 3. Responsibilities of the applicant for C / O

The applicant for C / O is responsible for:

1. Preparation and filing a trader’s profile for the C/O provider;

2. Preparation and submission of application for C / O Form E fully to the the C/O provider;

3. Proof of export goods meet the origin criteria and create favorable conditions for the C/O provider in the verification of origin of goods;

4. To take responsibility before law for the accuracy and truthfulness of the declared content of trader’s profile and profile of request for issuance of C / O Form E as well as the origin of the exported goods, even in the case of export authorization;

5. To take responsibility before law for the accuracy and truthfulness of the contents of electronic records in the case C / O dossier sent via eCoSys;

6. Promptly report to the C/O provider where traders have filed for the shipment rejected by importing countries to enjoy preferential tariffs ACFTA although C / O of Vietnam has been granted (if any );

7. Notice in writing to the C/O provider where traders have registered the trader’s dossier, reason of not previously been proposed for C / O, at the same time announced the names of organizations issuing new C /O where traders requesting for C / O;

8. Keeping records for issuance of C / O.

Article 4. Responsibilities of the C / O provider

The C / O Provider is responsible for:

1. Guide to the applicant for C / O if required;

2. To receive and examine trader’s dossiers and dossiers of request for issuance of the C / O Form E;

3. Verify the actual origin of the product when necessary;

4. To issue the C / O Form E when the goods meet the conditions specified in Article 2 of this Regulation;

5. Keeping Records of  C / O;

6. Send specimen signatures of the persons authorized to sign C / O and the seal of the C /O provider to the Department of Trade (Export and Import Department) under the provisions of the Ministry of Trade;

7. Resolving complaints about C / O within its jurisdiction;

8. Keep confidential records and documents relating to the inspection and certification of origin;

9. Exchange of information related to the trader registration records in case the traders register trader’s records in both the C / O  providers or more and other issues related to issuance of the C / O;

10. Perform reporting regime and other requirements prescribed by the Ministry of Trade.

Chapter II

PROCEDURES FOR ISSUANE OF THE C / O FORM E

Article 5. Registration for trader’s profiles

1. The applicant for C / O is only considered for issuance of the C / O Form E in which it has registered the trader’s dossier after completing registration procedures for trader’s dossier. Dossier of registration for trader’s profiles include:

a) Registration for specimen signature  of  the person authorized to sign the application for issuance of the C / O Form E and the seal of the trader (Annex VII); 

b) Certificate of business registration of traders (copy marked copy from the original);

c) Certificate of registration of the tax code (copy marked copy from the original);

d) List of manufacturing facilities of the trader (Annex VIII).

2. Any changes in the trader’s profiles must be notified to the C / O provider in which trader has registered before request for issuance of the C / O Form E. In the absence of any change, trader’s records must be updated every two (02) years.

3. In the case of request for issuance of  the C / O in the place of another with which it has registered the trader’s dossier ago, the applicant for C / O must provide proper reasons in writing stating the reasons do not suggest C / O in which it has registered the trader’s dossier prior to, and registration trader’s records in new C / O provider.

4. The former case has the C / O Form E but not registered trader’s dossier, registration for trader’s profiles at request for issuance of the C / O Form E must be executed under this new regulation.

Article 6. The profile of application for C / O Form E

1. The profile of application for C / O Form E includes:

a) An application for a C / O Form E has been declared complete and valid (Annex VI); 

b) The C / O Form E has been completely filled, including one (01) original and three (03) copies;

c) Customs declarations made customs procedures;

d) Commercial invoice;

e) The bill of lading.

2. If deemed necessary, the C / O provider can request the applicant for C / O for supplying additional documents related to the export products such as customs declarations imported raw materials; license export, sale contract, added-value invoice of purchasing domestic materials, samples of materials or products for export and other documents to prove the origin of the exported products.

3. The papers specified at Points c, d and e of Clause 1, Clause 2 of the copies, signed and stamped copy from the original of the head or authorized person of the unit or organization, or the signature and seal of the notary public and enclosed with the original for comparison.

Article 7. To receive the records of C / O Form E

When the applicant for C / O filing dossier, the reception staff are responsible for receiving documents. Personnel receiving dossier must specific notice requirements in writing, setting receipts and hand a copy of receipt to the applicant in case where the C / O provider request additional production of documents specified in Clause 2, Article 6 of this Regulation or at the request of the applicant for C / O. In case of further verification is needed to specify the time limit prescribed in Clause 2, Article 8 of this Regulation.

Article 8. Time limit for issuance of C / O Form E

1. Time limit for issuance of C / O Form E does not exceed three (03) working days from the time of the C / O applicants file a complete and valid dosiser.

2. In case of necessity, the C / O provider can also be carried out at the factory inspection if the inspection shows that the record is insufficient grounds to issue C / O Form E or detect signs of violations of law to the C / O Form E previously issued. The test results must be recorded in writing. The records must be signed by the inspector and the applicant for C / O. In the case of the applicant for C / O not to sign the record, the inspector will certify after stating the reason. Time limit for issuance of  C / O Form E for this case shall not exceed five (05) working days from the date the applicant submits a complete profile.

3. In all cases, the time limit for verification is not impede the delivery or payment of exporter, unless this effect is caused by the exporter.

Article 9. Retroactive issuance of  C / O Form E

In case due to the fault of the C / O issuing staff or unforeseen circumstances of the applicant for C / O, the C / O provider will issue the C / O Form E for goods have been delivered in period not exceeding one (01) years from the date of delivery. C / O Form E was granted in this case must be stamped in English: "ISSUED RETROACTIVELY and effect from delivery”.

Article 10. Re-issued of C / O Form E

In the case where C / O Form E is lost, misplaced or damaged, the C / O Form E provider may re-issue an official copy of the C / O Form E and the third copy (Triplicate) within five (05) days after receipt of the request accompanied by a fourth copy (Quadruplicate) of the first issuance time, with the box number 12 stamped in English: "CERTIFIED TRUE COPY ".

Article 11. Refusal for issuance of C / O Form E

1. The C / O provider has the right to refuse to issue C / O Form E in the following cases:

a) the applicant for C / O Form E has not done the registration of trader’s profile specified in Article 5 of this Regulation

b) The profile of C / O Form E is inaccurate, incomplete as defined in Article 6 of this Regulation;

c) The records contradict the contents;

d) Produce set of application for C / O is not the right place registered trader’s dossier;

dd) C / O Form E was declared by the handwriting, or erased, or faded out, or be printed indifferent colors;

e) The goods do not meet the criteria of origin or not determined the exact origin according to the origin criteria in Annex I of this Regulation;

f) There are legitimate grounds to prove the products no originating ACFTA or the applicant for C /O has deceitful, dishonest behaviors in proving the origin of the product.

2. When refusal for issuance of C / O form E, the C / O provider shall notify in writing the reasons thereof for the C / O applicant within three (03) working days from the date of refusal.

Article 12. Other issues

These issues are not mentioned in Articles 5 to 11 shall be set forth in Appendix III to this Regulation.

Chapter III

ORGANIZATION AND MANAGEMENT OF C / O FORM E

Article 13. Keeping record

Copy of C / O Form E issued by the C / O provider and profile of C / O Form E must be kept by the C / O provider, the exporters and the applicant for C / O within two (02) years from the date of issuing the C / Os. As for the C / O Form E is granted, the exporter or the applicant for C / O must archive copies issued by the C / O provider. The photocopies of copies of C / O Form E have valid for reference only.

Article 14. Competence for signatory on C / O Form E

1. Just who is authorized by the Minister of Trade and completed procedures for registration of specimen signature with the Ministry of Trade to move to the ASEAN Secretariat are authorized to sign and issue C / O Form E.

2. C / O Form E bearing signatures of people not satisfied paragraph 1 of this Article shall be the customs authorities of the importing Member State refuse to incentives.

3. In case of detecting violations in the operation of the C / O provider, the Trade Ministry will suspend the operation of issuance of the C / O of the C / O providers.

Article 15. Focal Point

Export and Import Department (Ministry of Trade) is the lead agency performing the following tasks:

1. Guide and control issuance of the C / O to ensure issuance of the C / O Form E is done properly with regulations.

2. Acting as a clue to the procedures for registration of specimen signature and stamp of the C / O provider of Vietnam for the ASEAN Secretariat and the moving specimen signatures and seal of the C / O provider of the Member States to the Vietnam Customs.

3. Helping the Trade Minister in resolving issues related to the implementation of Regulation on issuance of C / O Form E.

Article 16. Regime of reporting and updating information

1. The C / O provider must perform regime of daily updated information (including the absence of the C /O of the day) on issuance of the C / O Form E and submit to the Ministry of Trade. The update complies with standards specified by the Ministry of Trade.

2. In the case where after five (05) working days from the date of the latest report, having not received the above report, the Trade Ministry will dispatch the first reminder. Within ten (10) working days from the date of the latest report, if having not received the above report, the Trade Ministry will have a second written reminder. Within fifteen (15) working days of the latest report, if still not receiving the above report, the Trade Ministry will issue a decision to suspend issuance of the C / O Form E of that provider and publicize on the website of the Trade Ministry.

Article 17. Release of C / O Form E

1. Office of the Ministry of Trade is responsible for coordinating with the Department for Export and Import in printing C / O Form E and release to the C / O provider.

2. The C / O providers directly sell C / O Form E for the applicant and must be done the final settlement in accordance with regulations.

Article 18. The fee for issuance of C / O Form E

The applicant for C / O must pay a fee for C / O for the C / O provider as prescribed. The Ministry of Finance shall specify regulation on the fee for C / O and time of implementation.

Chapter IV

SETTLEMENT OF CLAIMS AND HANDLING VIOLATIONS

Article 19. Organization to settle complaints

The applicant for C / O Form E has the right to appeal to the C / O provider. The C / O provider must reply within three (03) working days. In case not satisfied with the answer above, the applicant for C / O Form E has the right to appeal to the Minister of Trade or sue the Administrative Court under the provisions of law on complaints and denunciations.

Article 20. Dealing with violations

All acts of fraudulence C / O Form E will be handled in accordance with the Decree on sanctioning of administrative violations in the field of trade. In case of serious consequences, depending on the nature and extent, will be prosecuted for criminal liability. In case of violation of damage to the interests of the State or of the agency, organization or individual, the offender shall pay compensation in accordance with law.

Article 21. Recovery of C / O Form E was granted

The C / O provider will recover C / O Form E was granted in the following cases:

1. The applicant for C / O Form E forge any documents in the dossier filed. In addition, the C / O provider will put the name of the applicant for C / O Form E forged documents,  testimony on the list of applicant for C / O should apply the control measures more closely when issuing the C / O, and inform the competent authorities handle acts of forging documents;

2. The granted C / O Form E is not suitable with origin criteria.

Chapter V

IMPLEMENTING PROVISIONS

Article 22. Implementing Regulation

In the course of implementation, if any problems arise, organizations and individuals promptly reported to the Ministry of Trade for settlement, according to the following address:

Ministry of Trade, Import and Export Department

21 Ngo Quyen Street, Hanoi

Tel: 04-8262538

Fax: 04-8264696

Email: [email protected]

ANNEX I

RULES OF ORIGIN
(Promulgated together with Regulation on issuance of C/O form E)

In determining the origin of goods eligible for preferential tariff treatment under the Framework Agreement on Comprehensive Economic Cooperation between Association of States of ASEAN and the People’s Republic of China (hereinafter referred to as “Agreement”, the following Rules shall be applied

Article 1. Definitions

In the scope of this Annex, some terms are construed as follows:

1. “a Party” means one of parties participating in the Agreement, i.e. Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand, the Socialist Republic of Vietnam and the People's Republic of China (“China”)

2. “materials” shall include ingredients, parts, components, sub-assemblies and/or goods combined in other goods or used in the production process of other goods.

3. “Originating products” are those whose origin is appropriate to original criteria specified in Article 2 of this Annex.

4. “production” means methods of obtaining a good including growing, mining, harvesting, raising, breeding, extracting, gathering, collecting, capturing, fishing, trapping, hunting, manufacturing, producing, processing or assembling a good; and

5. “Rules of origin for a specific product” means the rules that specify that the materials have undergone a change in HS code or a manufacturing or processing operation, or satisfy a regional value content (or called as percentage of value) or a combination of any of these criteria.

Article 2. Origin criteria

For the purposes of this Agreement, a good imported into the territory of a Party shall be deemed to be originating and eligible for preferential tariff treatment if it conforms to origin requirements under any one of the following

1. a good which has is wholly obtained or produced entirely in the territory of a Party as set out and defined in Article 3; or

2. A good not wholly obtained or produced entirely in the territory of a Party, provided that the said good is eligible under Articles 4 or 5 or 6.

Article 3. Wholly obtained goods

Within the meaning of Clause 1 Article 2, the following products shall be considered to be wholly obtained or produced entirely in the territory of a Party:

1. Plants and plant products harvested, picked or gathered after being grown there;

2. Live animals born and raised there;

3. Products obtained from live animals referred to in Clause 2 of this Article;

4. Products obtained from hunting, trapping, fishing, aquaculture, gathering or capturing conducted there;

5. Minerals and other naturally occurring substances, not included in Clauses (1) through (4), extracted or taken from its soil, waters, seabed or beneath its seabed;

6. Products taken from the territorial waters, seabed or beneath the seabed outside the territorial waters of the Party, provided that party has right to exploit under international law;

7. Products of sea-fishing and other marine products taken from the sea areas by vessels registered with the Party and entitled to fly its flag;

8. Products processed and/or produced on board of ships registered with a Party and entitled to fly its flag, exclusively from products referred to in Clause 7 of this Article;

9. Articles collected from there which can no longer perform their original purpose nor are capable of being restored or repaired and are fit only for the disposal or recovery of parts of raw materials, or for recycling purposes ; and

10. Goods obtained or produced in the territory of the Party solely from goods referred to in Clauses 1 thru 9 of this Article.

Article 4. Goods not wholly obtained or produced

1. For the purposes of Clause 2 Article 2, a product shall be deemed to be originating if:

a) Not less than 40% of its content originates from any Party; or

b) The total value of the materials, part or whole product originating from outside of the territory of a Party (i.e. non-ACFTA) does not exceed 60% of the FOB value of the product so produced or obtained provided that the final process of the manufacture is performed within the territory of a Party.

2. For the purposes of this Annex, the originating criteria as set out in point b, Clause 1 Article 4 shall be referred to as the “ACFTA content”.  The formula for 40% ACFTA content is calculated as follows:

3. The value of non-originating materials, which shall be:

a) The CIF value at the time of importation of the materials; or

b) The earliest ascertained price paid for the materials of undetermined origin in the territory of the Party where the working or processing has taken place.

4. For the purpose of this Article, “originating material” shall be deemed to be a material whose country of origin, as determined under Articles in this Annex, is the same country as the country in which the material is used in production.

Article 5. Accumulation

In this Annex, unless otherwise provided for, products which comply with origin requirements provided for in Article 2 and which are used in the territory of a Party as materials for a finished product eligible for preferential treatment under the Agreement shall be considered as products originating in the territory of the Party where working or processing of the finished product has taken place provided that total aggregate ACFTA content (i.e. full accumulation, applicable among all Parties) on the final product is not less than 40%.

Article 6. Rule of origin for specific product

Products which have undergone basic transformation in a Party shall be treated as originating goods of that Party.  Products which satisfy the rule of origin for specific product provided for in Annex II of this Decision shall be considered as goods to which basic transformation has been carried out in a Party.

Article 7. Stages of processing simply

Operations or processes undertaken, by themselves or in combination with each other for the purposes listed below, are considered to be simple and shall not be taken into account in determining whether a good has been wholly obtained in one country:

1. Stages of preservation to ensure goods in good condition for the purposes of transport or storage;

2. Stages for facilitating shipment or transportation;

3. Packaging or presenting goods for sale.

Article 8. Direct consignment

The following shall be considered as consigned directly from the exporting Party to the importing Party:

1. If the products are transported passing through the territory of any ACFTA member state;

2. If the products are transported without passing through the territory of any state not being other ACFTA member;

3. If the products of which transport involves transit through one or more intermediate states not being ACFTA member states with or without transshipment or temporary storage in such countries, provided that:

a) The transit entry is necessary due to geographical reason or requirements related directly to transport;

b) The products have not entered into trade or consumption there; and

c) The products have not undergone any operation there other than unloading and reloading or any operation required keeping them in good condition.

Article 9. Provisions on packing

1. Where for purposes of assessing customs duties, a Party treats products separately from their packing. It may also, in respect of its imports consigned from another Party; the importing party may determine separately the origin of such packing.

2. Where Clause 1 of this Article is not applied, packing shall be considered as a part forming a whole with the products and no part of any packing required for their transport or storage shall be considered as having been imported from outside the ACFTA when determining the origin of the products as a whole.

Article 10. Accessories, spare parts and tools

The origin of accessories, spare parts, tools and instructional or other information materials presented with the goods therewith shall be neglected in determining the origin of the goods, provided that such accessories, spare parts, tools and information materials are classified and collected import duties with the goods by the importing member state.

Article 11. Intermediate elements

The origin of power and fuel, plant and equipment, or machines and tools used to obtain the goods, or the materials used in its manufacture which do not remain in the goods or form a part of the goods, shall not be taken into account upon determining origin.

Article 12. C/O form E

A claim that products shall be accepted as eligible for preferential tariff treatment shall be supported by a Certificate of Origin issued by a government authority designated by the exporting Party and notified to the other Parties to the Agreement in accordance with the Procedures for issuance of C/O, as set out in Annex III of this Regulation.

Article 13. Review and modification

This Annex may be reviewed and modified as necessary, upon request of a Member State and may be open to such reviews and modifications as may be agreed upon by the AEM-MOFCOM.