Công văn 7483/BCT-XNK

To: The General Department of Customs

In response to the Official Dispatch No.2276/TCHQ-GSQL dated May 11, 2012 and No.3127/TCHQ-GSQL dated June 22, 2012 of the General Department of Customs on the implementation of the right of export and import of export processing enterprises, Ministry of Industry and Trade has the following opinions:

1. For export, implementation of rights of import and export of goods of export processing enterprises foreign-invested (export processing enterprises FDI).

a) The source of exported goods:

- Export of goods produced by the enterprise:

Based on Article 60 of the Law on Investment in 2005 and point 1, Clause II, the Circular No.04/2007/TT-BTM dated April 04, 2007 of the Ministry of Trade (now the Ministry of Industry and Trade), guiding the export and import, processing, liquidation of imports and consumption of products of foreign-invested enterprises stipulated in the Decree No.108/2006/ND-CP of September 22, 2006 of the Government detailing and guiding the implementation of a number of Articles of the Investment Law, thus foreign invested enterprises (FDI), including export processing enterprises, are directly exported or entrusted the export of products produced by enterprises, are not required to register export rights.

- Execute the export right:

Based on clause 2 of Part I of the Circular No.09/2007/TT-BTM dated July 17, 2007 of the Ministry of Trade (now the Ministry of Industry and Trade) guiding the implementation of the Decree No.23/2007/ND-CP dated February 12, 2007 of the Government, thus FDI export processing enterprises licensed for the implementation of the right to export goods are purchased goods produced in Vietnam by other enterprises (like Vietnamese traders having no capital directly invested from foreign countries, enterprises with domestic foreign investment, other export processing enterprises, etc.) produced in Vietnam for export, but excluding goods produced from foreign countries.

b) The exercise of the right to import:

- According to Article 3 of the above Decree No.23/2007/ND-CP of the Government, "The right to import is the right to be imported goods from foreign countries into Vietnam for sale to traders having the right to distribute the goods in Vietnam."

- The Decree No.29/2008/ND-CP of March 14, 2008 of the Government on industrial zones, export processing zones and economic zones defines:

+ "Export Processing Zone is the industrial zone specialized in manufacture of exported goods, performing service for exported goods production and export activities." (Article 2);

+ "Export processing enterprises are the enterprises established and operating in the export processing zones or enterprises exporting all products operated in the industrial zones, economic zones." (Article 2);

+ "The exchange relation of goods between the export processing zones, export processing enterprises with other areas in the territory of Vietnam, except for the duty-free area is the import and export relation. (Clause 5, Article 21);

At Clause 2 of Article 15 of the Decree No.108/2006/ND-CP of the Government detailing and guiding a number of Articles of the Investment Law provides: Export processing enterprises are sold into domestic market commodity "products produced by export processing enterprises and not subject to banned import; Products produced by export processing enterprises that domestic market demands; scrap obtained in the production process not subject to banned import or subject to be imported in accordance with provisions of commercial law and the relevant law."

Based on the regulations mentioned above, some cases exercising the import right of FDI export processing enterprises (as the General Department of Customs mentioned in the Official Dispatch No.2276/TCHQ-GSQL and No.3127/TCHQ-GSQL above) are not suitable as:

- Buying products produced by other processing enterprises in Vietnam to sell domestically;

- Buy import-originated goods from FDI enterprises inland;

- Import of goods from overseas to sell directly, without going through the process of production and processing of products according to the objectives specified in the certificate of investment of enterprise to domestic enterprise (including domestic enterprises having the right to distribute) or sold to other export processing enterprises having no the right to distribute.

2. For temporary import for re-export of goods for FDI enterprises (including export processing enterprises).

- As defined in point a clause 3 Part II Circular No.04/2007/TT-BTM above, the Ministry of Industry and Trade has specified some forms of temporary import for re-export or temporarily export for re-import for foreign-invested enterprises in general and export processing enterprises in particular to carry out the export and import of goods for performing investment projects in Vietnam.

- Article 29 of the Commercial Law (2005) defines: "Temporary import for re-export of goods means the goods brought from abroad or from the special areas located in the territory of Vietnam considered as the separate customs area under the provisions of law in Vietnam, with import procedures into Vietnam and the main procedures of exporting those goods out of Vietnam. " Accordingly, in the Official Dispatch No.6321/BCT-XNK dated June 29, 2010 sent to the General Department of Customs, Ministry of Industry and Trade has stated: foreign-invested enterprises, including enterprises with right to export, right to import are not participated in service business of goods temporary import and transshipment of goods across the Vietnamese border.

3. For the case Shimada Shoij Company Ltd. is a FDI export processing enterprise granted investment certificate by Management Unit of Vietnam-Singapore Industrial Park the Investment Certificate 463023000110 conducting the objective of "Order and purchase all kinds of accessories of garment industry ... from domestic and foreign suppliers, including export processing enterprises for quality inspection, sorting, counting and packing for export. " (Clause 2, Article 2):

- Based on the provisions of Article 29 of the Commercial Law (2005) mentioned above, the above-mentioned objective of Shimada Shoij Company Ltd is not to trade temporary import for re-export of goods and not also the out-sourcing type in trade (Ministry of Industry and Trade) commented in the Official Dispatch No.3238/BCT-XNK dated April 16, 2012);

- Operation objective mentioned above of Shimada Shoij appropriate with the definition of export processing zones referred to in Article 2 of the Decree No.29/2008/ND-CP of the Government (performing some types of service for exports production and export activities), require the General Department of Customs to give guidance the local customs authorities for consideration of settlement of procedures of export and import in accordance with the provisions of the Circular No.04/2007/TT-BTM mentioned above of the Ministry of Industry and Trade and the Customs Ordinance.

Ministry of Industry and Trade has some of the above comments for the General Department of Customs to refer when dealing with procedures for export and import of goods in accordance with the current regulations.