THE MINISTRY OF TRADE
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SOCIALIST REPUBLIC OF
VIET NAM
Independence - Freedom – Happiness
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No. 321/1998/QD-BTM
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Hanoi, March 14, 1998
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DECISION
ISSUING THE DETAILED REGULATION ON THE IMPLEMENTATION OF
PROVISIONS OF DECREE No.12-CP OF FEBRUARY 18, 1997 AND DECREE No.10/1998/ND-CP
OF JANUARY 23, 1998 OF THE GOVERNMENT CONCERNING THE EXPORT, IMPORT AND/OR SALE
OF PRODUCTS IN VIETNAM AND PROCESSING ACTIVITIES BY FOREIGN-INVESTED
ENTERPRISES AND PARTIES TO BUSINESS COOPERATION CONTRACTS
THE MINISTER OF TRADE
Pursuant to Decree No.95-CP of December 4,
1993 of the Government on the functions, tasks, powers and organizational
structure of the Ministry of Trade;
Pursuant to the Law on Foreign Investment in Vietnam of November 12, 1996;
Pursuant to Decree No.12-CP of February 18, 1997 of the Government detailing
the implementation of the Law on Foreign Investment in Vietnam;
Pursuant to Decree No.10/1998/ND-CP of January 23, 1998 on a number of measures
to promote and guarantee foreign direct investment activities in Vietnam,
DECIDES:
Article 1.- To issue
together with this Decision:
The detailed Regulation on the implementation of
provisions of Decree No.12-CP of February 18, 1997 and Decree No.10/1998/ND-CP
of January 23, 1998 of the Government concerning the export, import and/or sale
of products in Vietnam and processing activities of foreign-invested
enterprises and parties to business cooperation contracts.
Article 2.- The
functional bodies of the Ministry of Trade, the agencies authorized by the
Ministry of Trade, the foreign-invested enterprises and the parties to business
cooperation contracts shall have to implement this Decision.
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Article 4.- This
Decision takes effect 10 days after its signing.
FOR THE MINISTER OF
TRADE
VICE MINISTER
Mai Van Dau
THE DETAILED REGULATION
ON THE IMPLEMENTATION OF PROVISIONS OF DECREE
NO.12-CP OF FEBRUARY 18, 1997 AND DECREE NO.10/1998/ND-CP OF JANUARY 23, 1998
OF THE GOVERNMENT CONCERNING THE EXPORT, IMPORT AND/OR SALE OF PRODUCTS IN
VIETNAM AND PROCESSING ACTIVITIES BY FOREIGN-INVESTED ENTERP-RISES AND PARTIES
TO BUSINESS COOPERATION CONTRACTS
(Issued
together with Decision No.321/1998/QD-BTM of March 14, 1998 of the Minister of
Trade)
Article 1.- Scope and
objects of application:
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1.2- The enterprises shall base themselves on
this Regulation to draw up their plans for import, export and/or sale of their
products in Vietnam according to their production and business requirements
then submit them to the Ministry of Trade or agencies authorized by the
Ministry of Trade for examination and approval; and to register the performance
of processing contracts.
1.3- The functional bodies of the Ministry of
Trade and the agencies authorized by the Ministry of Trade shall base
themselves on the provisions of this Regulation to approve the plans for export,
import and/or sale of products in Vietnam and register processing contracts in
time for enterprises.
1.4- The export and import plans already
approved by the Ministry of Trade or the agencies authorized by the Ministry of
Trade and the processing contracts already registered by the Ministry of Trade
or the agencies authorized by the Ministry of Trade shall serve as basis for
the enterprises to fill procedures at the customs offices.
Article 2.- The time
limit for approving plans for export, import and/or sale of products in Vietnam
and processing activities of enterprises
2.1- For the Ministry of Trade: Within 10 days
from the date of receiving a complete and proper dossier, the Ministry of Trade
shall issue a written approval of the enterprise's plan for import, export
and/or sale of products in Vietnam (the dossier-receiving date shall be the one
indicated by the document-receiving seal of the Ministry of Trade).
2.2- For the agencies authorized by the Ministry
of Trade: The agencies authorized by the Ministry of Trade shall base
themselves on this Regulation to examine and promptly approve the enterprises'
plans for import, export and/or sale of products in Vietnam, which come under
their assigned management competence, within 15 days as stipulated by Decree
No.12-CP of February 18, 1997 (the dossier-receiving date shall be the one
indicated by the document-receiving seal of such agencies).
2.3- For incomplete or improper dossiers: Within
3 working days from the date of receiving such dossiers, the Ministry of Trade
or the agency(ies) authorized by the Ministry of Trade shall notify directly or
in writing the concerned enterprises thereof so that the latter may make
supplements or adjustments thereto. The date of officially receiving a complete
and proper dossier shall be the one indicated by the official
dispatch-receiving seal of the Ministry of Trade or the agency(ies) authorized
by the Ministry of Trade on the latest document.
2.4- The time limit for registering processing
contracts of enterprises:
Within three working days from the date of
receiving the complete and proper dossiers, the Ministry of Trade or the
agency(ies) authorized by the Ministry of Trade shall register the processing
contracts for enterprises.
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Article 3.- Regarding
the plans for import of materials and supplies for capital construction to
create fixed assets
3.1- Based on its investment license (hereafter
referred to as IL for short), techno-economic report and technical design (in
cases where there are changes in the techno-economic report), an enterprise
shall draw up its plan for the import of machinery, equipment, supplies,
facilities, construction materials, transport means for the construction of
projects to create fixed assets.
Such import plan may be either drawn up for the
whole project or divided into phases in conformity with the project
construction schedule.
The enterprise may propose the Ministry of Trade
or the agency(ies) authorized by the Ministry of Trade to supplement and
readjust the above-said import plan.
3.2- If the plan for the import of machinery,
equipment, construction materials and transport means fails to conform with the
investment license and techno-economic report, a certification by the
investment license granting agency is required, in the following cases:
3.2.1- Non-conformity in import value:
+ The import value of each item of construction
materials, machinery or equipment exceeds by 10 %, for items with allocated
import capital of up to 5,000,000 USD.
+ The import value of each item of construction
materials, machinery or equipment exceeds by 500,000 USD, for items with
allocated import capital of more than 5,000,000 USD.
3.2.2- The techno-economic report does not
specify the capital proportion allocated to each item of machinery, equipment,
construction materials, transport means, office equipment,... that need to be
imported.
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3.2.4- The import of used machinery, equipment,
supplies... is not in conformity with the investment license.
(The time limit for approving plans for the
import of machinery, equipment and construction materials for the formation of
enterprises is provided for in Article 2)
3.3- A dossier to be sent to the Ministry of
Trade or agency(ies) authorized by the Ministry of Trade shall include:
3.3.1- An official dispatch requesting the
import thereof, which is enclosed with:
+ A brief report on the enterprise.
(Such a report shall be sent only once after the
enterprise is established)
+ A list of machinery, equipment, supplies,
facilities, construction materials, transport means, ... to be imported to
create fixed assets.
The official dispatch must clearly state the
expected duration for the completion of capital construction (the time
according to the techno-economic report and the time expected through reality
by the enterprise).
3.3.2- The investment license or business
license in case of a business cooperation contract (a copy)
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3.3.4- A technical design (in cases of any
changes in the techno-economic report)
3.3.5- The business cooperation contract (in
case of a business cooperation contract).
Article 4.- Regarding
the additional import of equipment, machinery, construction materials,
supplies, facilities, transport means, etc., for the expansion of production
and/or intensive investment:
4.1- The import of machinery, equipment,
construction materials, supplies, facilities, transport means,... for the
expansion of production and/or intensive investment within the investment
capital shall be settled on the basis of the investment licenses adjusted for
the increase of investment capital.
4.2- The time limit for approving plans for
additional import of machinery, equipment and/or construction materials for the
expansion of production is provided for in Article 2.
4.3- A dossier to be sent to the Ministry of
Trade and the agency(ies) authorized by the Ministry of Trade shall include:
- An official dispatch requesting the import
thereof.
- The enterprise's techno-economic report on
capital increase already submitted to the investment license-granting agency
for adjustment and the adjusted investment license.
- A list of equipment, machinery, construction
materials, supplies, facilities, transport means,... to be imported. Such a
list must be compatible with the allocated capital for import and the list
specified in the above-said report for capital increase.
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Basing themselves on their investment licenses,
techno-economic reports and the performance of the previous year's export and
import plans, the enterprises shall draw up plans for the import of raw
materials and materials for production, then send them to the Ministry of Trade
or the agencies authorized by the Ministry of Trade for consideration and
approval.
The plans for import of raw materials and
materials may be adjusted and supplemented.
The time limit for approving plans for import of
raw materials, materials and supplies for production is provided for in Article
2.
Article 6.- Regarding
the plans for export and/or sale of products manufactured by the enterprises as
prescribed in the investment licenses:
The enterprises shall base themselves on their
investment licenses and annual actual production capacity to draw up plans for
export and/or sale in Vietnam of their products.
The enterprises shall be entitled to directly
export or entrust others to export their products.
In cases where an enterprise fails to fulfill
the export quota stipulated in its investment license due to difficulties in
seeking export markets, it shall have to report to the Ministry of Trade for
readjustment of its annual plan for export and/or sale of products in Vietnam.
If an enterprise has fails to fulfill the export
quota stipulated in its investment license for three consecutive years, it
shall request the investment license-granting agency to consider and readjust
such export quota and the preferences prescribed in the investment license or
withdraw its investment license.
Article 7.- Regarding
the export of products not manufactured by enterprises under their investment
licenses:
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Such list shall be readjusted and announced
together with the Government's annual decisions on the export and import
management.
7.2- The plans for export of products not manufactured
by the enterprises shall be registered at the Ministry of Trade or the
agency(ies) authorized by the Ministry of Trade.
The time limit for approving the export plans of
enterprises is provided for in Article 2.
7.3- The foreign-invested enterprises may
entrust the export of products manufactured by them or undertake the entrusted
export of products not manufactured by them as mentioned in this Article.
7.4- The above-said export and entrusted export
shall be effected only when the enterprises complete their capital construction
and commence their production.
The export and entrusted export activities shall
be conducted in accordance with the current regulations on export and import
management.
Article 8.- Tax regimes
applicable to the enterprises importing raw materials for manufacture of
products to be sold to other enterprises as materials for direct manufacture of
finished products for export
8.1- Enterprises shall be entitled to sell
products they have manufactured to other enterprises for use as materials for
manufacture of export goods and shall be exempt from import tax for the
corresponding amount of raw materials.
The sale and purchase shall be effected through
economic contracts in accordance with the current legal documents.
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The dossiers on tax exemption for corresponding
raw materials and the consideration thereof shall be stipulated and handled by
the customs office.
8.2- An enterprise selling its products to
another enterprise that does not directly manufacture export goods shall not be
eligible for tax exemption for the corresponding raw materials.
8.3- The value of products sold by an enterprise
to others for use as materials for further manufacture of export goods shall
not be accounted into its annual export value.
8.4- The plan for sale of such products shall be
a part of the enterprise's overall plan for sale of its products in Vietnam
which is annually approved by the Ministry of Trade or the agency authorized by
the Ministry of Trade.
Article 9.- Regarding
the processing activities
9.1- Enterprises shall be entitled to perform
the processing or subcontracted processing of products in accordance with the
objectives defined in their investment licenses, more concretely:
+ Conducting the processing for foreign parties
+ Conducting the processing for domestic parties
+ Subcontracting the domestic processing of part
or several details of the product(s), which cannot be turned out by their
machinery, equipment or technological lines.
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+ A written request of the concerned enterprise
+ A copy of the investment license or business
license in case of a business cooperation contract
+ The processing contract and its appendices
+ The valid certificates of registered trade
mark(s) and of goods origin
+ The norms of raw materials and materials
consumption for one product unit and the written description of
norm-calculating method, which shall serve as basis for the registry to inspect
before, during and after the registration of the processing contract.
The time limit for processing contract
registration is prescribed in Article 2.
9.3- The directors of the enterprises shall be
responsible before law for the norms of raw material consumption and wastage in
the processing.
Article 10.- The regime
of periodical reporting
Once every three months, the enterprises shall
send to the Ministry of Trade and the Ministry of Planning and Investment
reports on the performance of their plans already approved by the Ministry of
Trade; more concretely:
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+ The import of raw materials and materials in
service of production and business;
+ The direct export, entrusted export and export
entrustment;
+ The sale of products in Vietnam (separating
the sale of products to other enterprises for use as materials for manufacture
of export goods).
The performance reports must clearly state the
names, quantities and values of goods.
+ The proposals (if any).
In case of necessity, enterprises shall make
reports at the request of the Ministry of Trade or the agency(ies) authorized
by the Ministry of Trade.
For the enterprises that fail to send periodical
reports for two successive times, the Ministry of Trade shall refuse to approve
their plans for subsequent import and/or sale of products.
Article 11.-
Implementation provisions
The People's Committees of the provinces and
cities directly under the Central Government, and the management boards of
industrial parks that are authorized by the Ministry of Trade shall inform the
foreign-invested enterprises of the content of this Regulation for
implementation and at the same time report to the Ministry of Trade on matters
arising in the course of implementation for timely and appropriate
readjustment.
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APPENDIX 1
THE LISTS OF GOODS ITEMS NOT MANUFACTURED BY THE
ENTERPRISES UNDER THEIR INVESTMENT LICENSES AND BANNED FROM EXPORT IN 1998
LIST 1
GOODS BANNED FROM
EXPORT IN 1998
(Issued together with Decision No.11/1998/QD-TTg of January 23, 1998 of the
Prime Minister)
1. Weapons, ammunitions, explosives, military
technical equipment.
2. Antiques.
3. Narcotics of all kinds.
4. Toxic chemicals.
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6. Wild animals, and animals and plants of rare
and precious species.
LIST 2
EXPORT GOODS
ITEMS MANAGED BY 1998 QUOTAS
(Issued together with Decision No.11/1998/QD-TTg
of January 23, 1998 of the Prime Minister)
- Rice.
- Textiles and garments exported to the EU,
Canada, Norway and Turkey.
LIST 3
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1. Explosives, inflammables (except for match).
2. Books and newspapers.
3. Pearls, gemstones, precious metals (except
for fake jewelry).
4. Art works, collected items, antiques.
5. Wood products (except for handicraft and
fine-art articles specified in Article 7).
6. Coffee.
7. Forest animals.
8. Forest plants for breeding.
9. Aquatic products.
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In cases where enterprises are granted
investment licenses or business licenses to manufacture the above-listed goods
items, the export thereof shall comply with the investment licenses and the
relevant legal documents.-