Nghị định 18/2009/ND-CP

Decree No. 18/2009/ND-CP of February 18, 2009, amending and supplementing a number of Decree No. 97/2007/ND-CP dated June 07, 2007 of the Government regulating the handling of administrative violations and enforcement of administrative decisions in the area of customs

Decree No. 18/2009/ND-CP amending and supplementing a number of Decree No. 97/20 đã được thay thế bởi Decree No. 127/2013/NĐ-CP administrative violations enforcement of administrative decisions to customs controls và được áp dụng kể từ ngày 15/12/2013.

Nội dung toàn văn Decree No. 18/2009/ND-CP amending and supplementing a number of Decree No. 97/20


THE GOVERNMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No.: 18/2009/ND-CP

Ha Noi, February 18, 2009

 

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF DECREE No. 97/2007/ND-CP DATED JUNE 07, 2007 OF THE GOVERNMENT REGULATING THE HANDLING OF ADMINISTRATIVE VIOLATIONS AND ENFORCEMENT OF ADMINISTRATIVE DECISIONS IN THE AREA OF CUSTOMS

THE GOVERNMENT

Pursuant to Government Organization December 25, 2001;

Pursuant to Customs Law of June 29, 2001 and Law amending and supplementing some articles of Customs Law of June 14, 2005;

Pursuant to the Law on Tax Administration of November 29, 2006;

Pursuant to the Ordinance on Handling of Administrative Violations of July 2, 2002 and the Ordinance amending and supplementing some articles of the Ordinance on Handling of Administrative Violations of April 2, 2008;

Considering the proposal of Minister of Finance;

DECREE:

Article 1. To amend and supplement some articles of Decree No. 97/2007/ND-CP of June 7, 2007 of the Government stipulating the handling of administrative violations and enforcement of administrative decisions in the area of customs as follows:

1. Article 6 is amended and supplemented as follows:

 “Article 6. Forms of sanctioning administrative violations in the area of customs

1. For each administrative violation individuals, organizations committing shall be subject to one of the following forms of sanction:

a) Caution;

b) Fine;

For tax evasion, tax fraud, the fine level is from 1 to 3 times of the amount of tax evasion or fraud.

For acts of declaration of lower tax obligations or declaration of higher tax exemption or reduction, or refunding, no collection, the fine level is 10% of the amount of lower tax declared or the amount of tax exempted, reduced, refunded and not collected but declared by increase compared with the regulation of law.

For acts of late tax payment, the fine level shall be 0.05% per day calculated on taxes paid late.

For act of failing to deduct, remit all or part of the corresponding amount to be paid from the account of the organization or individual subject to enforcement of tax administrative decisions into the state budget in case the deposits of taxpayers have balance, they shall be fined corresponding to the amount not deducted and transmitted.

The maximum fine level for violations of the customs administrative violations is 70,000,000 dong and the tax procedure is 100,000,000 dong. The specific fine level for an act of violation is the average level of the fine bracket prescribed for such acts. Where there are extenuating circumstances, the fine level is reduced but not less than the minimum level of the fine bracket. Where there are aggravating circumstances, the fine level may be increased but must not exceed the maximum level of the fine bracket.

2. Depending on the nature and seriousness of violations, individuals and organizations committing administrative violations may also be subject to one or the additional sanctions following:

a) Depriving the license use right and practice certificate;

b) Confiscating exhibits and means used for administrative violation.

3. In addition to the forms of sanction specified in Clauses 1 and 2 of this Article, individuals and organizations committing administrative violations may also be subject to one or other remedial measures as follow:

a) Coercively destroying exhibits which are harmful cultural products, goods harmful to human health, livestock and crops;

b) Coercively bringing out of the territory of Vietnam or re-exporting goods and means of violation;

c) Coercively returning the amount equal to the value of the exhibits and means of violation has been consumed, dispersed or destroyed contrary to the provisions of law;

d) Other measures as prescribed in this Decree.

4. For violations not subject to additional sanctions as confiscation of goods and means of administrative violations and remedial measures, the goods and means of administrative violations can be cleared through customs as prescribed by law if the violator has fully paid the fine as prescribed or the credit institutions and other organizations permitted to conduct some banking guarantee for the amounts payable to carry out the sanctioning decision.”

2. Article 7 is amended and supplemented as follows:

“Article 7. Absence of sanction of administrative violation

1. The cases prescribed in Clause 6, Article 3 of the Ordinance on Handling of Administrative Violations, Article 4 of Decree No. 128/2008/ND-CP of December 16, 2008 of the Government detailing the implementation of some articles of the Ordinance on Handling of Administrative Violations Ordinance 2002 and the Ordinance amending and supplementing some articles of the Ordinance on Handling of Administrative Violations 2008.

2. Goods vehicles are brought into the territory of Vietnam due to fire, natural disasters, enemy-inflicted destruction and unexpected events and in urgent situation to perform the customs declaration in accordance with the law, those goods and means of transport must be taken out of the territory of Vietnam after the factors mentioned above are remedied.

3. Making mistake in the process of import and sending of goods to Vietnam but the shipper, recipient or legal representative sends written notice to the customs agencies, the heads of customs offices which receive and handle the dossier accepts before the actual inspection of goods or decisions on the exemption from actual inspection of goods. This provision shall not apply to cases where imported goods are narcotics, weapons and reactionary documents, toxic chemicals specified in Table I of the Chemical Weapons Convention.

4. Additional declaration of customs dossiers in the following cases:

a) Before the time the customs agencies perform the actual inspection of goods or the decide on the exemption of actual goods inspection, the customs declarants detect their customs dossiers submitted with errors;

b) Taxpayers detecting these errors that affect the amount of tax payable within 60 (sixty) days from the date of registration of customs declaration but before the customs agencies perform the tax checking and inspection at the office of the taxpayer. In this case, the taxpayers are still sanctioned for acts of delayed tax payment as prescribed in Article 15 of this Decree.

5. Organizations and individuals that violate the tax law for the export and import and cause a decrease of the tax amount payable or increase of the amount of tax exemption or reduction, refunding and no collection but the tax difference amounts shall not exceed 500,000 dong for the violations made ​​by individuals or 2,000,000 dong for violations made ​​by the organization.

6. Export and import of goods at variance with the customs declaration on the number and weight prescribed in Clause 1, Clause 2 and Clause 3 of Article 9 of this Decree and the export and import at variance with customs declarations with the value not exceeding 10% of the value of goods actually exported and imported, but not exceeding 10,000,000 dong maximally.

7. Right declaration of the name of goods actually exported and imported, but false declaration of codes and first tax rates.

8. Violation of regulations on customs declaration for foreign currency, Vietnam dong in cash, gold (blocks, ingots, granules or pieces) of people upon exit and entry with passports, laissez-passer and the exhibits valued under VND 10,000,000. "

3. Article 8 is amended adn supplemented as follows:

“ Article 8. Violating the regulations on the time limits for customs procedure and tax dossier submission

1. A caution or fine of between VND 200,000 and 1,000,000 for one of act of violation as follows:

a) Making declaration and submitting customs dossier at variance with the prescribed time limit, except for violation prescribed at Points a, d, dd, e, clause 2; Point a, b, clause 3, clause 4 of this Article;

b) Failing to submit on schedule the documents in the customs dossier in accordance with the customs law, except for violations prescribed at Point c, Clause 2 of this Article.

c) Additional declaration in tax declaration dossiers made exceeding 60 (sixty) days from the date of registration of customs declaration but before the customs agencies discover the lacking declaration of tax obligations or increasing declaration of the amount of tax exempted, reduced, refunded and not collected;

d) Adjusting declaration of norms of raw materials consumption of goods processing for export, raw materials imported for manufacturing exported goods at variance with the prescribed time limit.

2. A fine of between VND 1,000,000 and 5,000,000 for one of act of violation as follows:

a) Making tax declaration exceeding the prescribed time limit upon change of the intended use of goods determined as not subject to tax, tax exemption, tax exemption consideration;

b) Failing to submit dossier for liquidity, settlement, tax refunding consideration and no collection of tax within the prescribed time limit.

c) Failing to submit Certificate of origin of goods within the prescribed time limit

d) Failing to make procedures to handle within the prescribed time limit the redundant materials and supplies; waste materials, waste products, machinery and rented and borrowed equipment in the contracts under the plan registered in the liquidity dossier;

dd) Failing to re-export and re-import goods within the prescribed time limit or the time registered with the customs agencies, except for violations prescribed at Point a, Clause 3 of this Article;

e) Failing to re-export and re-import means of transportation of individuals and organizations in the border area regularly crossing the border areas within the prescribed time limit;

g) Failing to observe the reporting regime of goods under the supervision and management of customs in warehouses, ports, non-tax rate area in accordance with law;

h) Committing other regulations on the time limit of tax declaration in accordance with law;

3. A fine of between VND 5,000,000 and 10,000,000 for one of the following violations:

a) Failing to re-export goods temporarily imported subject to tax exemption within the prescribed time limit;

b) Failing to re-export and re-import means of transportation within the prescribed time limit upon exit and entry, except for violations prescribed at Point e, clause 2 of this Article.

c) Storage of goods in transit in the territory of Vietnam exceeding the permitted time limit.

4. A fine of between VND 15,000,000 and 40,000,000 for violations prescribed at Point b, clause 3 of this Article of the means of violation that are under 24 seat cars;

5. In addition to fines, individuals and organizations committing administrative violations are also applied the following remedial measures:

a) Coercively re-exporting goods for violations prescribed at Point e, Clause 2 and Point a, Clause 3 of this Article, except for the case of consumption declaration and permitted for goods consumption in Vietnam for the case with the permission for change of the intended use of the competent authorities;

b) Coercively re-exporting means of transportation for violations prescribed at Point e, clause 2, Point b, clause 3, clause 4 of this Article;

c) Coercively executing the transit of goods for violations prescribed at Point c, Clause 3 of this Article."

4. Article 9 is amended and supplemented as follows:

“ Article 9. Violations of regulations on customs declaration and tax declaration

1.A caution or a fine of between VND 200,000 to 1,000,000 for act of failing to declare or falsely declare compared to the actuality about the name, quantity, weight, origin of goods in the following cases:

a) Goods from foreign countries entering transit port, non-tax rate zone or from transit port and non-tax rate zone to foreign countries or from non-tax rate zone into inland for processing, repairment, warranty, except for violations at Point i, Clause 1, Article 14 of this Decree;

b) Goods in transit and border-gate transfer;

c) Humanitarian aid and grant aid that have been approved by competent authorities.

2. A fine of between VND 1,000,000 to 5,000,000 for act of failing to declare or falsely declare compared to the actuality about the name, quantity, weight, quality, value of goods in the following cases:

a) Goods are raw materials, supplies, machinery, equipment and components imported subject to tax exemption;

b) Goods temporarily imported for temporary exported subject to exemption from import and export tax.

3. A fine of between VND 5,000,000 and 20,000,000 for acts of fraudulently declaring the name, quantity, weight and value of exports, except for the exports that are processed products, products made from raw materials imported or temporarily exported and re-exported.

4. Sanctioning the act of failing to declare or falsely declare leading to the reduce of payable tax amounts or increase of the amount of tax exempted, reduced, refunded and not collected: in addition to paying the full tax amounts as prescribed, the taxpayer are also fined by 10% of the declared lower taxes or the increase of tax exempted, reduced, refunded and not collected if there is a collection of the following acts:

a) Making and falsely declaring the contents of the tax settlement dossier liquidity dossier, tax exemption dossier, tax exemption and reduction consideration dossier, tax refunding and non-collection of tax dossier;

b) Failing to declare or falsely declare about the names, types, quantity, weight, quality, value, commodity codes, tax rates, and origin of exports and imports that the customs agencies discover during the Customs Clearance of imports and exports, except for acts prescribed in Article 14 of this Decree;

c) Violation as prescribed at Point b of this clause are discovered after Customs Clearance of goods, but the violating individuals and organizations have voluntarily paid fully the tax amount to be paid as prescribed before the time of making violation record.

5. Provisions in this Article do not apply to the case of violation that has been handled as prescribed in the Article 16 of this Decree.”

5. Article 11 is amended and supplemented as follows:

 “ Article 11. Violation fo regulations on customs inspection and tax inspection

1. A caution or fine of between VND 200,000 and 1,000,000 VND for act of erasure, correction of documents of the customs dossiers that have been registered without affecting the amount of taxes to be paid or the goods item policy.

2. A fine of between VND 1,000,000 and 3,000,000 VND for one of the following acts:

a) Failing to arrange people and facilities for actual inspection of goods, means of transportation upon the request of the customs agencies without justifiable reasons;

b) Violations of regulations on keeping of forms, dossiers and documents

3. A fine of between VND 3,000,000 and 10,000,000 VND for one of the following acts:

a) Failing to produce goods being kept that are the subbjects inspected after Customs Clearance required by the customs agencies;

b) Failing to provide documents, materials, electronic data related to exports and imports, means of transportation on exit or entry upon the requirement of the customs agencies as prescribed by law;

c) Failing to comply with the decision on tax checking and inspection of the customs agencies;

4. A fine of between VND 10,000,000 and 30,000,000 VND for one of the following acts:

a) Fraudulently substituting goods inspected by customs with the goods not having been inspected by customs;

b) Forging customs seals, papers in customs dossiers for export and import of goods without being the crimes.

5. Confiscating the exhibits for violations prescribed at point a, clause 4 of this Article.

Violations specified in Clause 4 of this Article for tax evasion, tax fraud shall be sanctioned according to Article 14 of this Decree. Where the exhibits which are banned from export and import or export and import with conditions prescribed by law shall be places in public fund."

6. Article 12 is amended and supplemented as follows:

 “ Article 12. Violation of regulation on customs supervision

1. A fine of between VND 5,000,000 and 15,000,000 for one of the following acts:

a) Moving the vehicles carrying the goods in transit, port transfer, border-gate transfer along wrong routes, location, border gate, specified time or making registration in customs dossier without plausible reasons;

b) Intentionally destroying customs seals

c) Intentionally changing the packaging and labels of goods which are under customs supervision;

d) Failing to preserve the status quo of goods under customs supervision or goods assigned for preservation pending completion of Customs Clearance in accordance with the law.

2. A fine of between VND 15,000,000 and 30,000,000 for one of the following acts of violation:

a) Intentionally consuming goods which are under customs supervision;

b) Intentionally consuming means of transportation registering circulation in foreign country temporarily imported into Vietnam

c) Intentionally consuming goods assigned for preservation pending completion of Customs Clearance as prescribed;

3. In addition to fines, individuals and organizations committing administrative violations may be also imposed additional penalties or be subject to the remedial measures as follows:

a) Confiscating exhibits for violations prescribed at Points a, b, Clause 2 of this Article; in case the exhibits no longer exist, an amount of money equal to the value of exhibits must be paid;

b) Confiscating exhibits for violations prescribed at Point c, Clause 2 of this Article if the exhibits being the goods in the list of goods banned from export or import not eligible for export and import; in case the exhibits no longer exist, an amount of money equal to the value of exhibits must be paid;

c) Coercively performing the border-gate transfer, goods transit, means of transportation at specified boder gate and route for violation prescribed at Point a, Clause 1 of this Article”.

7. Article 13 is amended and supplemented as follows:

 “Article 13. Violation of regulation on customs control

1. A fine of between VND 500,000 and 1,000,000 for one of the follwing violations::

a) Failing to obey the orders of customs officers as prescribed upon moving means of transportation in the area of customs operation;

b) Failing to carry out the requirement to open storage of goods as prescribed to perform the administrative examination.

2. A fine of between VND 1,000,000 and 5,000,000 for one of the follwing violations::

a) Storing, trading and transporting the exported and imported goods without valid documents in the customs area of operation;

b) llegally transporting goods across borders without being the crimes.

3. A fine of between VND 5,000,000 and 15,000,000 for violations prescribed in Clause 2 of this Article but the exhibit valued at between VND 50,000,000 and under VND 100,000,000;

4. A fine of between VND 15,000,000 and 30,000,000 for one of the follwing violations:

a) Violating provisions in clause 2 of this Article and the exhibits valued at VND 100,000,000 or more without being the crimes;

b) Loading and unloading cargo at the wrong port of destination specified in the cargo manifests, bills of lading without justifiable reasons;

c) Intentional loading, unloading, transhipment, wagon transfer of goods exported, imported and in transit on the means of transportation under the customs inspection and supervision;

d) Dispersing, destroying or disposing of goods to evade the customs inspection, supervision and control.

5. Confiscating the exhibits for violations prescribed in Clause 2, Clause 3 and Point a, Point d, Clause 4 of this Article.

Violations prescribed at Point d, Clause 4 of this Article but the exhibits no longer exist, an amount equal to the value of the exhibits must be paid. "

8. Article 14 is amended and supplemented as follows:

 “Article 14. Sanctions against act of tax evasion and tax fraud

1. Taxpayers having one of the following acts of tax evasion and tax fraud not serious enough for criminal prosecution in addition to fully paying the tax as prescribed, they are also fined one time of the amount of tax evasion and tax fraud:

a) Using illegal documents and materials not true to the actual transaction for tax declaration, intentionally erasing and correcting documents leading to the decrease of tax amount payable or increase of of tax amount exempted, reduced, refunded and not collected;

b) Making false declarations of commodity codes and tax rates for those items identified the commodity codes and tax rates in previous importations leading to the lower determination of tax amount payable;

c) Violations of the provisions prescribed at Point c, Clause 4, Article 9 of this Decree without voluntarily paying the full tax amount as prescribed before the time of making record of violation.

d) Violations of provisions on goods management in the non-tariff zone;

dd) Making procedures for export but not exporting the processed products, products manufactured from imported raw materials;

e) Declaring more than actual exports in variety, quantity, weight, processed products, products manufactured from imported raw materials with the evaded tax amount of VND 50,000,000 or more without being the crimes;

g) Exporting the processed products, products manufactured from imported raw materials inappropriate with the imported raw materials; importing processed products from abroad inappropriate with the exported raw materials

h) Intentionally changing the intended use of the goods determined not subject to tax, tax exemption, tax exemption consideration without tax declaration;

i) Failing to declare or falsely declare the imported goods from non-tariff zone into inland.

k) Failing to record in the accouting books of the revenues and expenditures related to the determination of the tax amount payable;

l) Declaring the increase compared with the consumption norms of goods processing raw materials for export, the imported raw materials for production of exported goods without additional declarations before the time of the customs agencies’discovery.

m) Tax-exemption sales made to improper subjects as prescribed;

n) The acts or failing to declare or falsely declare about names, types, quantity, weight, quality, value, tax rate, the origin of goods exported or imported for tax evasion.

2. Violation of the provisions in clause 1 of this Article with repeated violations for the same act of violation but not serious enough for criminal prosecution, a fine shall be imposed from 2 to 3 times of the amount of tax evasion or tax fraud.

3. The provisions in this Article do not apply to the cases of violation that have been handled as prescribed in Article 16 of this Decree.”

9. Article 15 is amended and supplemented as follows:

“Article 15. Violation of regulations on tax payment

1. Taxpayers and tax guarantors have acts of delayed tax payment in accordance with the law of tax administration in addition to fully pay taxes as prescribed, they are also fined by 0.05% per day, calculated on the amount of tax of late payment.

2. Taxpayers, due to wrong declaration, having been refunded higher than specified shall be fined by 0.05% per day, calculated on the refundable higher tax.

3. The number of days of delayed tax payment is calculated from the date following the last date of the tax payment time limit or extended time limit as prescribed to the date the taxpayers voluntarily pay the full tax amount payable into the state budget. "

10. Article 16 is amended and supplemented as follows:

 “Article 16. Violation of regulation on policy of management of goods exported and imported, in transit; means of transportation on exit, entry and transit

1. A fine of VND 500,000 and 1,000,000 for acts of exporting or importing goods contrary to the provisions of law:

a) Exchanging goods of boder residents;

b) Importing humanitarian aid;

c) Exporting and importing gift goods, and movable property and goods of people on exit and entry;

d) Violation of the provisions at Point a, b ​​and c of this clause, in addition to fines, the exhibits shall be confiscated. In case the exhibits are in the list of conditioned export and import or permit, they shall be coercively taken out of the territory of Vietnam, stopped the export or coercively destroyed.

2. A fine of between VND 5,000,000 and 10,000,000 for one of the following violations:

a) Transit, border-gate transfer of goods; exit, entry and transit of means of transportation at variance with the content of permit of the competent authorities;

b) Import and export of goods are at variance with the content of permit

3. A fine of between VND 10,000,000 and 15,000,000 for one of the following violations:

a) Transit, border-gate transfer, exit, entry or transit of means of transportation subject to a license without permit of the competent authorities;

b) Temporary import - re-export, temporary export - re-import of goods subject to a license without a permit;

c) Export and import of goods into Vietnam under the suspension of export and import.

4. A fine of between VND 15,000,000 and 20,000,000 for one of the following violations:

a) Exporting and importing into Vietnam goods subject to ban from export and import.;

b) Introducing goods of fake origin in the territory of Vietnam

c) Export of goods of fake origin

d) Imports of goods subject to a permit without producing permit within 30 (thirty) days from the date the goods arrive at the gate;

dd) Export of goods without permit as prescribed;

e) Export and import of unqualified goods with insufficient conditions and technical standards as prescribed by law;

g) Export and import of goods without labels as prescribed by law;

h) Intentionally changing the intended use of goods as raw materials, supplies, components, machinery and equipment for processing; goods of temporary import - re-export, temporary export - re-imported subject to the export and ban from import or export, import with conditions without the permission of competent state agencies.

5. Importing and introducing goods into Vietnam causing environmental pollution and harm to human health, creatures and ecosystems shall be sanctioned under the provisions of the Decree on sanctioning of administrative violations in the field of protection environment.

6. In addition to fines, individuals and organizations committing administrative violations may also be sanctioned additional penalties or be subject to the remedial measures as follows:

a) Confiscating goods if the violations specified at Point c, Clause 3 and Point a, b, h, Clause 4 of this Article, except for the case the specialized management agency require to take the goods out of Vietnam or re-export them.

b) Depriving the use of permit within 30 days to 90 days for the case of repeated violations or violation committed many time as specified at Point b, clause 2 of this Article;

b) Coercively bringing out of the territory of Vietnam or suspending export for violations specified in clause 2, point a, b, Clause 3 and Point c, d, e, f, g, Clause 4 of this Article. Within the time limit specified in Article 35 of this Decree, export shall be carried out if permitted by the specialized management agency ".

11. Article 17 is amended and supplemented as follows:

 “ Article 17. Violation of regulation on customs warehouse and bonded warehouse

1. A fine of between VND 500,000 and 1,000,000 for one of the following violations:

a) Failing to notify the customs agencies upon the expiration of warehouse leasing contract;

b) Failing to take goods out of the customs warehouse upon the expiration of warehouse leasing contract;

2. A fine of between VND 1,000,000 and 3,000,000 for one of the following violations:

a) Moving goods from this customs warehouse to another customs warehouse without permission of the customs agencies;

b) Intentionally expanding, narrowing and relocating customs warehouse;

c) Failing to open books to monitor the export and import, warehouse input and output

in accordance with the law.

3. A fine of between VND 2,000,000 and 5,000,000 for one of the following violations:

a) Failing to declare or falsely declare compared to actuality the names, types, quantity, weight of goods from foreign countries into the customs warehouse and bonded warehouse; goods from customs warehouse and bonded warehouse sent abroad;

b) Failing to observe the reporting regime under the supervision of goods at customs warehouse as prescribed law.

4. A fine of between VND 5,000,000 and 10,000,000 for one of the following violations:

a) Introducing goods from foreign countries into customs warehouse subject to not being stored in customs warehouses under the provisions of law;

b) Keeping on business of customs warehouse when the permit of customs warehouse establishment has been revoked.

c) Erasing and correcting the permit of customs warehouse establishment;

d) Intentionally dispersing goods stored in customs warehouse and bonded warehouses;

dd) Destroying goods stored in customs warehouse and bonded warehouses not in accordance with regulations of law.

5. Apart from being subject to the form of fine, individuals and organizations are also subject to violations of the sanctions or additional remedial measures as follows:

a) Confiscating goods if the violations specified at Points d and e, Clause 4 of this Article. Where the exhibits of violations no longer exist, an amount of money equal to value of exhibits must be paid;

b) Coercively taking the goods out of territory of Vietnam within 30 (thirty) days from the date of receipt of sanctioning decision or coercively destroying the infringing goods for violations prescribed at Point a, Clause 3 in case goods are not under the leasin constract of customs warehouse, point a, Clause 4 of this Article. For goods with counterfeit trademarks or name, origin of Vietnam shall have to be removed the infringing signs prior to being taken out of the territory of Vietnam. "

12. Article 18 is amended and supplemented as follows:

 “ Article 18. Insulting, threatening, obstructing customs officers on duty

1. A fine of between VND 2,000,000 and 5,000,000 for acts of violation of insulting honor, or obstructing customs officers on duty.

2.A fine of between VND 5,000,000 and 10,000,000 for acts of threatening or using force against customs officers on duty without being the crimes. "

13. Article 23 is amended and supplemented as follows:

"Article 23. Competence of temporary custody of people according to administrative procedures

1. The following persons have the right to decide the temporary custody of people according to administrative procedures:

The Director of Customs branch; Leader of control team under the Customs Department; Leader of anti-smuggling control team and Leader of marine control teams under the Anti-Smuggling Investigation Department of General Department of Customs.

2. Those specified in clause 1 of this Article may authorize their deputies to exercise the competence of custody of people according to administrative procedures upon their absence and authorized to exercise the measures to prevent administrative violations and ensure the handling of other administrative violations. The authorization must be made in writing. The deputies authorized must take responsibility for their decisions before their superiors and law.

3. The custody of people must comply with the principles, procedures and order prescribed in Article 44 of the Ordinance on Handling of Administrative Violations and Regulation on custody of people according to administrative procedures promulgated together with Decree No. 162 / 2004/ND-CP of September 7, 2004 by the Government. "

14. Article 24 is amended and supplemented as follows:

“ Article 24. Temporary seizure of documents, exhibits and means of administrative violations

1. The temporary seizure of documents, exhibits means related to the acts of violation shall apply in case the violations should be stopped or in order to verify the facts as a basis for handling decisions.

The persons specified in Clause 1 of Article 23 of this Decree have the right to decide the temporary seizure of documents, exhibits and means of administrative violations.

Upon detecting signs of tax evasion and tax fraud, the General Director of Customs, Director of Customs Clearance Department under the General Department of Customs, Director of Customs Department, Director of Custom branch, Head of tax inspection team have the right to make a decision on temporary seizure of documents, exhibits and means of administrative violations.

2. In case of necessity, customs officers on duty shall have the right to make a decision on temporary seizure of documents, exhibits and means of administrative violations. Within 24 hours after the decision, the decision makers must make report directly to their heads specified in clause 1 of this Article and must have consent in writing by such person; in case without the consent of such persons, the decision-makers making custody decision must immediately cancel the custody decision and return things, money, goods and means in custody.

3. The temporary custody of exhibits of administrative violations in the case there are goods as exhibits and goods not as exhibits.

a) In a batch with goods goods as exhibits and goods not as infringing exhibits, only infringing exhibits shall be temporarily seized. Where the occurrence of violation has not been identified, just take samples as a basis for identification;

b) For exhibits in foreign currencies, Vietnamese currency in cash of people on exit and entry with a passport, laissez-passer, only foreign currency and Vietnamese currency in cash exceeding the amount of foreign currency and Vietnamese currency Nam shall be temporarily seized seized as prescribed by law.

4. The management of documents, exhibits, facilities in temporary custody shall comply with the law.

5. The exhibits, including Vietnam currency, gold, silver, precious stones, precious metals, narcotics and other objects subject to special management must be preserved in accordance with the law.

6. For exhibits of administrative violations as perishable goods, then the decision-maker of the temporary custody must make separate record and organize the immediate sale. The proceeds shall be deposited into temporary custody account opened at the State Treasury. If later by decisions of competent persons over the confiscated exhibits, the proceeds must be remitted to the state budget; where the exhibits are not confiscated, the proceeds must be returned to their owners, the managers or legitimate users.

7. Within 10 (ten) working days from the date of temporary custody, the competent persons making decision on the temporary custody and sanction must handle the documents, exhibits and means in temporary custody by the measures in the sanctioning decision. If the form of confiscating sanction is not applied, the documents, exhibits or the proceeds from the sale of goods to their owners, the managers or legitimate users.

The temporary custody of documents and exhibits and means of violation can be extended but not exceed 60 (sixty) days for the violations involving many complicated details that need verifying or relating to the many individuals organizations in the country and abroad.

8. The temporary custody of documents and exhibits and means of violation must be decided in writing attached to the record of temporary custody and one copy of it shall be handed over the organizations and individuals having documents and exhibits and means in custody.

15. Article 27 is amended and supplemented as follows:

“Article 27. Searching the hiding place of documents and exhibits and means related to act of violation

1. Searching the hiding place of documents and exhibits and means of violations shall be conducted only when there is evidence that there is a hiding place of documents and exhibits and means related to act of violation.

2. The competent persons prescribed in clause 1, Article 23 of this Decree have the right to make decision on the searching the hiding place of documents and exhibits and means related to act of violation.

Upon detecting signs of tax evasion and tax fraud, the General Director of Customs, Director of Customs ClearanceDepartment under the General Department of Customs, Director of Customs Department, Director of Custom branch shall have the right to make a decision on searching the hiding place of documents and exhibits and means of administrative violation.

In case the hiding place of documents and exhibits and means of administrative violation is a residing place, the searching decision must be consented in writing of the Chairman of district-level People’s Committee prior to the search.

3. When searching the hiding place of documents, exhibits and means of violation, there must be the owner of the hiding place or members in their family and witnesses. Where the owners of such places, the members in their families are absent but the search can not be delayed, there must be representatives of the communal authorities and two witnesses.

4. No search of hiding places of documents and exhibits and means of administrative violation done in the night, on holidays and Tet holidays when the owners organize death anniversary and wedding except for emergencies, flagrant crime or when the search is being executed but not finished, the reasons must be specified in the record.

5. All cases of searching the hiding places of documents and exhibits and means related to the violations must be decided in writing and made a record. One copy of the decision and record of the search of the hiding places of documents, exhibits and means must be handed over to the owners of the searched places"

16. Article 28 is amended and supplementated as follows:

“ Article 28. Competence to sanction administrative violation in the area of Customs

1. Customs officers on duty have the right:

a) To impose a caution;

b) To impose a fine of up to VND 200,000.

2. Leader of professional team under the Customs branch and the Leader of professional team under the Customs Clearance Inspection branch have the right:

a) To impose a caution;

b) To impose a fine of up to VND 5,000,000.

3. The Director of Customs branch (including the Director of border-gate Customs branch, Director of outside-border-gate Customs branch, Director of Customs Clearance Customs branch); Leader of control team under the Customs Department of provinces, inter-provinces and central-run cities (hereafter referred to as Customs Department); Leader of anti-smuggling control team and Leader of marine control teams under the Anti-Smuggling Investigation Department under the General Department of Customs have the right:

a) To impose a caution;

b) To impose a fine of up to VND 5,000,000, except for the case of sanction prescribed in clause 4, Article 9, Article 14 and Article 15 and Point a, Clause 1, Article 19 of thid Decree.

c) To confiscate the exhibits and means used for administrative violations.

4. Director of anti-smuggling investigation Department, Director of Customs Clearance inspection Department under the General Department of Customs and Director of Customs Department have the right:

a) To impose a caution;

b) A fine of up to VND 70,000,000 for the area of customs, VND 100,000,000 for the area of taxation, except for the case of sanction prescribed in clause 4, Article 9, Article 14 and Article 15 and Point a, Clause 1, Article 19 of thid Decree.

c) To deprive the use right of permit under the competence;

d) To confiscate the exhibits and means used for administrative violations.

dd) Coercively taking out of Vietnam’s territory or coercively re-exporting the exhibits and means of violation;

e) Coercively destroying exhibits which are harmful cultural products and goods harmful to human health, animals and plants;

g) Coercively paying the amount equal to the value of exhibits and means of violation that have been consumed, dispersed or destroyed illegally.

h) Other measures as prescribed in this Decree.

5. Border Guard and the Coast Guard have the right to impose fines as prescribed in Article 32 and 33 of the Ordinance on Handling of Administrative Violations for administrative violation of customs specified in Article 13 of this Decree.

6. Director of Customs branch, Director of Customs Department, Director of Anti-Smuggling Investigation Department and Director of Customs Clearance Inspection Department shall make sanction for acts of violations of tax laws as prescribed in Clause 4, Article 9 and Article 14, Article 15 and Point a, Clause 1, Article 19 of this Decree. "

17. Supplementing Article 28a after Article 28 as follows:

“ Article 28a. Authorization for handling of administrative violations

1. The competent persons to handle administrative violations prescribed in Clause 2, Clause 3 and Clause 4, Article 28 of this Decree may authorize their deputies to exercise the competence to handle administrative violations. The authorization for handling of administrative violations must be made in writing and must be clearly identified the scope and content, and duration of authorization.

Where the decision on temporary custody of people according to administrative procedures, the authorization shall only be conducted in the absence of the superiors.

2. The deputies authorized to handle administrative violations must be responsible for decisions on handling administrative violations before their heads and law. The authorized persons are not permitted for further authorization of any other person. "

18. Article 29 is amended as follows:

“Article 29. Determination of sanctioning competence.

1. The sanctioning competence of those prescribed in Article 28 of this Decree is the competence applicable to administrative violations. In the case of fines, the sanctioning competence shall be determined based on the maximum level of the fine bracket prescribed for each act of violation. This provision shall not apply to the cases specified in paragraph 6 of Article 28 of this Decree.

2. In case of sanctioning a person who commits many acts of violation, the sanctioning competence shall be determined according to the following principle: if the evel of sanction, form of additional sanction, remedial measures are prescribed for each act of violation under the competence of sanctioning person , the sanctioning competence still belongs to that person. if the level of sanction, form of additional sanction, remedial measures are prescribed for each act of violation beyond the competence of the sanctioning person, that person must transfer the dossier of violation case to the person with sanctioning competence

3. Any act of violation of customs laws occurring on land, contiguous to territorial waters, continental shelf and exclusive economic zone of the Socialism Republic of Vietnam under the management area of Customs, the Customs at that place are responsible for sanction under the competence prescribed in this Decree; in cases discovered by the Anti-Smuggling Investigation Department, Customs Clearance Inspection Department, the sanction shall be executed under the competence.

4. In places along the national borders, where there is no customs organizations, the Border Guard and Coast Guard station in those areas have the right to impose fines as prescribed in Article 32 and Article 33 of the Ordinance on Handling of administrative violations for administrative violations in the customs area specified in Article 13 of this Decree. "

19. Article 32 is amended and supplemented as follows:

“Article 32. Making record of administrative violation

For administrative violations in the customs area other than the cases provided for in Article 31 of this Decree, the competent persons who are on duty must promptly make records as prescribed. In cases of administrative violations not under the sanctioning competence of the person making record, that record must be transferred immediately to the person with sanctioning competence to conduct sanction.

The form, content and process of making records comply with Article 55 of the Ordinance on Handling of Administrative Violations. "

20. Supplementing Article 36a after Article 36b as follows:

“Article 36a. Price assessment of goods and exhibits to determine the fine level and sanctioning competence of administrative violations

1. For administrative violations of this Decree stipulating the fine level under the value of infringing goods or regulations on the form of confiscating goods and exhibits of administrative violations, the price assessment must be conducted as a basis for determination of the fine level and sanctioning competence for administrative violations.

The persons with competence to handle administrative violations specified in Article 28 of this Decree shall be responsible for price assessment of goods and exhibits and take responsibility for price assessment of goods and exhibits;

2. Depending on the particular type of goods and exhibits, the price assessment shall be based on one of the following grounds:

a) Listed price or the contract price or invoice of sale and purchase of goods or imported goods declaration (with tax included);

b) Market price at the time and the place of discovery of administrative violations;

c) Cost of goods if not having been taken out for sales ;

d) Remaining actual price of the exhibits;

dd) For the exhibits being fake goods, the price of those exhibits is the market price of genuine goods or goods of the same features, technology and utilities at the time of discovery of administrative violations.

3. Where the application of the grounds specified in clause 2 of this Article is inappropriate or the goods and exhibits are difficult to determine their value, the persons with sanctioning competence shall establish a price assessment Council. The composition and working principle of the price assessment Council of goods and exhibits of administrative violations shall comply with regulations of law.

If the value of exhibits under the seizure competence of the person who has made custody decision, that person shall make decision on confiscation; in case the value of the infringing exhibits is beyond the seizure competence of the person who has made custody decision of the exhibits, the case must be transferred to the competent persons.

4. Based on the price assessment and documents related to the price assessment, exhibits of administrative violation must be reflected in records of sanctions of administrative violation. "

Article 2.

1.This Decree takes effect as from May 1, 2009.

2. Acts of administrative violation specified in Clause 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, Article 1 of this Decree occur before this Decree takes effect, but at time of santion, this Decree has become effective, the sanction shall comply with the provisions of this Decree if this Decree does not attribute legal responsibility or does attribute lighter legal responsibility.

3. The Ministry shall guide and organize the impelementation of this Decree.

4. The Ministries, ministerial-level agencies, heads of governmental-affiliated agencies, Chairmans of Peoples’ Committee of central-run cities and provinces are liable to execute this Decree.

 

 

ON BEHALF OF THE GOVERNMENT
PRIME MINISTER




Nguyen Tan Dung

 


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Lược đồ Decree No. 18/2009/ND-CP amending and supplementing a number of Decree No. 97/20


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        Decree No. 18/2009/ND-CP amending and supplementing a number of Decree No. 97/20
        Loại văn bảnNghị định
        Số hiệu18/2009/ND-CP
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        Văn bản gốc Decree No. 18/2009/ND-CP amending and supplementing a number of Decree No. 97/20

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