THE
MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
114/2005/TT-BTC
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Hanoi,
December 15, 2005
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CIRCULAR
GUIDING THE POST-CUSTOMS CLEARANCE INSPECTION OF EXPORTS AND
IMPORTS
Pursuant to Customs Law No.
29/2001/QH10 of June 29, 2001;
Pursuant to Law No. 42/2005/QH11 of June 14, 2005, amending and supplementing a
number of articles of the Customs Law;
Pursuant to the Government’s Decree No. 77/2003/ND-CP of July 1, 2003, defining
the functions, tasks, powers and organizational structure of the Finance
Ministry;
Pursuant to the Government’s Decree No. 154/2005/ND-CP of December 15, 2005
detailing the implementation of a number of articles of the Customs Law
regarding the customs procedures, inspection and supervision;
The Finance Ministry hereby guides in detail a number of contents on
post-customs clearance inspection of exports and imports as follows:
Part A
GENERAL GUIDANCE
1. Post customs clearance
inspection means a professional activity carried out by specialized customs
agencies in order to evaluate the accuracy and truthfulness of customs
declarations on exports and imports already cleared from customs procedures and
to assess the observance of law by customs declarers for use as bases for
consideration of the priority levels in carrying out customs procedures,
inspection and supervision and handling of violations (if any).
2. Post customs clearance
inspection shall be conducted through the inspection of customs dossiers, accounting
vouchers, accounting books, financial statements and documents related to
exports and imports; in cases where it is necessary or conditions permit, the
inspection shall be conducted on imports, which have been already cleared from
customs procedures, of the following organizations and individuals (called the
inspected units):
a. Owners of exports and
imports.
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c. Lawfully authorized persons
(applicable to the export and import of goods, articles not for commercial
purposes) who carry out, on behalf of goods owners, the customs procedures for
goods and/or articles exported or imported not for commercial purposes.
d. Customs procedures agents.
e. Enterprises providing postal
services, international express mail services, which carry out, on behalf of
goods owners, the customs procedures for goods exported or imported via postal
services or international express mail services.
3. The post-customs clearance
inspection shall be carried out on the following principles:
The customs dossiers of exports
and imports already cleared from customs procedures shall all be inspected
after the customs clearance according to the principles of customs inspection
defined in Clause 1a, Article 15 of the Law Amending and Supplementing a Number
of Article of the Customs Law and in accordance with provisions of law;
information confidentiality; objectiveness, accuracy and non-obstruction to
normal production and business activities of the inspected units.
4. Signs of violations of
customs law specified in Clause 1, Article 64 of the Government’s Decree No.
154/2005/ND-CP of December 15, 2005 (hereinafter called Decree No.
154/2005/ND-CP), include:
a. Unlawful and invalid vouchers
in the customs dossiers under the regulations on forms, inscribed contents,
temporal order (disparity, incompatibility, inconsistency, irrationality among
vouchers in the customs dossiers related to information on goods name,
quantity, weight; volume; label; tax identification number, tax rate;
ingredient and composition; utility; packing specifications and other
properties of goods), or signs of forgery of vouchers.
b. Irrational import tax
calculation prices:
- Being much lower or much
higher than the sale prices of such goods on the domestic market after
subtracting tax, reasonable expenses and profits; the import tax calculation
prices of identical goods or similar goods which are imported by other units
simultaneously, from the same market or by the same delivery mode;
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- Irrationality in declaration
of transportation mode, means of transport, transport distance, transport
route, freight and insurance costs, which are related to the determination of
customs value.
c. Fraudulence in enjoyment of
tax preferences or trade frauds such as using raw materials and auxiliary
materials for improper purposes, fraudulence in raw materials, auxiliary
materials consumption norms, for processed goods, goods imported for production
of export goods; fraudulence for enjoyment of tax exemption, reduction or refund
according to the provisions of tax law or exported, imported goods; importing
goods which violate regulations on intellectual property and regulations on
goods origin.
d. Exports and imports subject
to specialized management, but for which the permits are invalid or the
conditions for export or import are not fully met; deeds of assessment,
analysis, classification of exports and imports are not true to the actual
conditions of goods.
5. Time limit for inspection at
offices of inspected units
a. Before conducting inspections
under plans, customs offices must notify the inspection decisions to the to
be-inspected units at least 5 working days in advance. Where customs
offices have grounds to determine that units show signs of destroying dossiers,
documents, the inspection shall be carried out immediately after the
announcement of inspection decisions without advance notices.
B. The working days at offices
of inspected units specified in Clause 1 and 2 Article 68 of Decree No.
154/2005/ND-CP shall be the days the customs offices actually conduct the
inspections at such units, in case of interrupted inspections, the reasons
therefor must be clearly stated in the minutes.
6. Responsibilities of customs
offices at different levels for post customs clearance inspection.
a. Post customs clearance
inspection rests with the General Department of Customs and
provincial/municipal Department of Customs.
b. The General Director of
Customs shall manage, direct, guide and inspect units in the entire customs
service on post customs clearance inspection, decision on post clearance
inspection according to the guidance in this Circular.
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c. Directors of
provincial/municipal Departments of Customs shall organize the post customs
clearance inspections in localities under their respective management as
specified in the Appendix issued together with this Circular.
The Post Customs Clearance
Inspection Sections of provincial/municipal Departments of Customs shall act as
specialized units assisting directors of Department of Customs in performing
the post customs clearance inspection.
d. Officials and employees
specialized in performing the post customs clearance inspection must, apart
from the general criteria of the customs employees, have necessary knowledge
and skills and be trained in laws on tax, accounting, audit and laws on
inspection and examination. The General Director of Customs shall have to
specify the criteria of, organize trainings for, and arrange officials to
perform the post customs clearance inspection.
7. Competence to decide on post
customs clearance inspections.
a. Directors of
provincial/municipal Departments of Customs shall decide on inspections at
inspected units in areas under their respective management (places of tax
identification number registration). Where units subject to post customs
clearance inspection are located outside the management areas but have already
carried out the customs procedures in the management areas, if signs of violation
are detected, the inspection shall be conducted in the following order:
- Inspecting relevant dossiers
and documents of the inspected units at the headquarters of customs bodies;
- If it is necessary to conduct
inspections directly at the offices of the inspected units, reporting such to
the General Department of Customs and notifying the Department of Customs
managing the areas thereof.
b. The General Director of
Customs shall decide on post customs clearance inspection in cases where the
inspection contents are complicated or the inspection scope covers many
provinces and/or centrally-run cities.
The General Director of Customs
may authorize the director of the Post Customs Clearance Inspection Department
to decide on post customs clearance inspection.
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SPECIFIC GUIDANCE
I. POST
CUSTOMS CLEARANCE INSPECTION FORMS AND METHODS
The post customs clearance
inspection of customs dossiers of exports and imports already cleared from
customs procedures shall be conducted in the following forms and by the following
methods:
1. Inspection at headquarters of
customs offices by mode of comparison between the contents declared in the
customs dossiers and the professional customs information and relevant
provisions of law.
2. Inspection at offices of to
be-inspected units by mode of comparison between the accounting books,
accounting vouchers, financial statements as well as other vouchers relating to
exports and imports and the contents in the customs declarations. In case
where it is necessary and the conditions are fully met, the actual inspection
of goods already cleared form customs procedures shall be conducted.
II. POST
CUSTOMS CLEARANCE INSPECTION ORDER AND CONTENT
1. Inspection at headquarters of
customs offices
a. Inspection of customs
dossiers:
- Inspection of the
completeness, legality and validity of vouchers in the customs dossiers against
the contents in the customs declarations;
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- Inspection of the conditions
related to enjoyment of tax preferences such as tax exemption, reduction,
refund (if any), adjusted tax amounts and other collections;
- Inspection of the observance
of regulations on polices on management of exports and imports, intellectual
property rights and other regulations related to customs procedures.
b. Upon completion of the
inspection of customs dossiers, the post customs clearance inspections shall
have to conclude on the inspection results;
- For complete and clear customs
dossiers without violations, to certify the inspection results;
- For customs dossiers which are
unclear, incomplete, or show signs of law violations, the post customs
clearance inspectors shall clearly inscribe such on the inspection result cards
and report to their direct superior thereon.
c. For unclear or incomplete
customs dossiers, the customs offices shall have to make verifications at
relevant agencies, organizations or individuals and notify such to the to
be-inspected units for explanation on, or addition of necessary information
and/or documents.
- Where the verification or
explanation, addition of complete information and/or documents prove that the
customs declarations is truthful, such customs dossiers shall be certified
according to regulations. If the verification or explanation cannot prove
that the customs declaration is truthful, the units shall be requested to make
additional declarations. Within 60 days after the registration of customs
declarations, if the inspected unit conduct the inspection by themselves of the
goods lot already cleared from customs procedures in term of the accuracy,
honestly of the customs declarations, the tax calculation and payment and
voluntarily inform the customs offices and pay by themselves the outstanding
tax amounts, fines for delayed payment, they shall be exempt from other
tax-related sanctioning forms.
- Where within 60 days after
registration of the customs declarations the inspected units cannot detect
things by themselves and redress the consequences, or where the results of
verifications, inspections, comparisons by customs office help identify
violations, the inspectors must make written inspection conclusions and handle
results according to provisions of Point 3, Section II, Part B of this
Circular.
- Where units do not come or
have come to the customs offices but cannot explain and the additional
dossiers, documents do not constitute adequate grounds to prove that the
customs declaration is truthful, the customs offices shall base themselves on
the information and/or documents to make conclusions or conduct inspections at
the offices of the inspected units.
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a. When conducting inspections at
offices of inspected units, inspectors shall:
- Announce the post customs
clearance inspection decisions;
- Inspect the accounting
vouchers, accounting books and financial statements related to exports and
imports already cleared from customs procedures.
- Check commercial data,
including the following principal vouchers: goods sale and purchase contracts;
transport documents, insurance documents; international payment documents and
other vouchers, documents related to exports and imports already cleared from
customs procedures.
- In cases where it is necessary
to clarify the contents of the customs declarations, post customs clearance
inspectors shall conduct verifications at relevant agencies, organizations or
individuals.
b. In case of necessity:
- Inspect production chains,
machinery and equipment related to production and processing of exports and
imports;
- Conduct actual inspection of
imports or products of the processing, production from imports being held in
storehouses of the units. The actual inspection of goods shall be carried
out when conditions permit, if the goods do not lose their basic properties as
compared with those at the time of customs clearance, are being kept by customs
offices, inspected units or other agencies, organizations or individuals.
c. Upon completion of
inspection, heads of inspection teams shall make written inspection
conclusions. A written inspection conclusion must be signed by the
inspection team head and lawful representative of the inspected unit; where the
representative of the inspected unit refuses to sign the written inspection
conclusion, the inspection team head must clearly inscribe the former’s reasons
for refusal. The written inspection conclusions must be addressed to
inspection deciders for use as a basis to handle violations (if any) according
to the provisions of Point 3, Section II, Part B of this Circular.
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a. In case of retrospective
collection of taxes and other collections, the person who decide on the post
customs clearance inspection shall handle such case according to competence or
propose in writing the competent persons to issue decisions on retrospective
collection according to provisions of tax law. The retrospectively collected
amounts shall be remitted into custody accounts of provincial/municipal
Department of Customs that have decided or the inspections. In cases
where the General Director of Customs has decided on the inspections, the
retrospectively collected amounts shall be remitted into the custody accounts
of the Departments of Customs of the provinces or cities where the inspected
units are located.
b. In case of refund of taxes
and/or other collections, the persons who have decided on the post customs
clearance inspection shall handle such case or notify such in writing and
transfer the case files to the provincial, inter-provincial or municipal
Department of Customs that have carried out the customs procedures for the
exports or imports lots for consideration and refund according to the provisions
of tax law.
c. In cases where the handling
of administrative violations falls under the handling competence of the customs
offices, the persons who decide on the post customs clearance inspection shall
handle them according to their competence or propose the competent authorities
to handle them according to the provision of law. In case where the
administrative violations do not fall under the handling competence of the
customs office, the persons who decide on the post customs clearance inspection
shall forward the case files to competent bodies for handling according to
provisions of law.
d. In case where violation acts
must be examined for penal liability, the provisions of the criminal procedure
law shall apply.
4. Monitoring the handling of
inspection results
The post customs clearance
inspection deciders have the responsibilities:
a. To direct the monitoring and
urging of inspected units to abide by the handling decisions according to the
inspection results. To apply coercive measures according to provisions of
tax law and other relevant laws. The time limit for the retrospective
collection of tax, retrospective refund of tax, fine and other handling forms
shall comply with the provisions of tax law and other relevant provisions of
law.
b. To notify concerned
provincial, inter-provincial, municipal Department of Customs, border gate
Customs Sub-Departments of the conclusions of the inspection teams, measures of
handling the law violations (if any) by inspected units.
c. To update information on
inspection results to the database according to procedures guided by the
General Director of Customs.
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COMPLAINTS,
DENUCIATIONS, INITIATION OF LAWSUITS; COMMEDATION, HANDLING OF VIOLATIONS
1. Complaints, denunciations and
initiation of lawsuits
The complaints, denunciations,
initiation of lawsuits related to post customs clearance inspection shall
comply with the provisions of law.
2. Commendation, handling of
violations
a. Customs employees who commit
acts of violating the law provisions on post customs clearance inspection
shall, depending on the nature and seriousness of their violations, be
disciplined or examined for penal liability; if causing damage to the inspected
units, they must pay compensations therefor according to provisions of law.
Other organizations and
individuals that commit acts of violating the provisions of law on post customs
clearance inspection shall be administratively sanctioned or examined for penal
liability according to provisions of law, depending on the nature and
seriousness of their violations.
c. Customs offices and
customs officers that record achievements in post customs clearance inspection;
other agencies, organizations and individuals that record achievements in
coordination or implementation of the post customs clearance inspection shall
be commended and/or rewarded according to provisions of law.
Part D
IMPLEMENTATION
ORGANIZATION
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2. This Circular takes effect 15
days after its publication in Official Gazette. To annul the Finance
Ministry’s Circular NO. 96/2003/TT-BTC of October 10, 2003, guiding the
Government’s Decree No. 102/2001/ND-CP of December 31, 2001 providing for the
post customs clearance inspection of exports and imports.
FOR THE
FINANCE MINISTER
VICE MINISTER
Truong Chi Trung
APPENDIX
LIST OF GEOGRAPHICAL AREAS ASSIGNED TO
PROVINCIAL/MUNICIPAL CUSTOMS DEPARTMENTS FOR POST CUSTOMS CLEARANCE INSPECTION
(Issued together with the Finance Ministry’s Circular No. 114/2005/TT-BTC of
December 15, 2005)
Ordinal Number
Provincial,
inter-provincial, municipal Customs Department
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1
An Giang province’s Customs
Department
An Giang Province
2
Ba Ria – Vung Tau province’s
Customs Department
Ba Ria Vung Tau Province
3
Binh Duong province’s Customs
Department
Binh Duong Province
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Binh Dinh province’s Customs
Department
Binh Dinh and Phu Yen
Provinces
5
Binh Phuoc province’s Customs
Department
Binh Phuoc Province
6
Cao Bang province’s Customs
Department
Cao Bang, Thai Nguyen and Bac
Can Provinces
7
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Ca Mau and Bac Lieu Provinces
8
Can Tho City’s Customs
Department
Can Tho city and the provinces
of Hau Giang, Vinh Long, Soc Trang and Tra Vinh
9
Da Nang City’s Customs
Department
Da Nang City
10
Dac Lac province’s Customs
Department
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11
Dong Nai province’s Customs
Department
Dong Nai and Binh Thuan
Provinces
12
Dong Thap province’s Customs
Department
Dong Thap Province
13
Gia Lai province’s Customs
Department
Gia Lai and Kon Tum Provinces
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Ha Giang province’s Customs
Department
Ha Giang and Tuyen Quang Provinces
15
Hanoi city’s Customs
Department
Hanoi, the provinces of Ha
Tay, Phu Tho, Vinh PHuc, Bac Ninh and Hoa Binh
16
Ha Tinh province’s Customs
Department
Ha Tinh Province
17
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Hai Phong city and provinces
of Thai Binh, Hung Yen and Hai Duong
18
Khanh Hoa province’s Customs
Department
Khanh Hoa and Ninh Thuan
Provinces
19
Kien Giang province’s Customs
Department
Kien Giang Province
20
Bien Bien province’s Customs
Department
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21
Lang Son province’s Customs
Department
Lang Son and Bac Giang
Provinces
22
Lao Cai province’s Customs
Department
Lao Cai and Yen Bai Provinces
23
Long An province’s Customs
Department
Long An, Ben Tre and Tien
Giang Provinces
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Nghe An province’s Customs
Department
Nghe An Province
25
Quang Binh province’s Customs
Department
Quang Binh Province
26
Quang Nam province’s Customs
Department
Quang Nam Province
27
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Quang Ngai Province
28
Quang Ninh province’s Customs
Department
Quang Ninh Province
29
Quang Tri province’s Customs
Department
Quang Tri Province
30
Thanh Hoa province’s Customs
Department
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31
Thua Thien Hue province’s
Customs Department
Thua Thien Hue Province
32
Tay Ninh province’s Customs
Department
Tay Ninh Province
33
Ho Chi Minh City’s Customs
Department
Ho Chi Minh City
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