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THE
GENERAL DEPARTMENT OF CUSTOMS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
08/2000/TT-TCHQ
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Hanoi,
November 20, 2000
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CIRCULAR
GUIDING THE IMPLEMENTATION OF THE GOVERNMENTS DECREE STIPULATING
THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE FIELD OF STATE MANAGEMENT
OVER CUSTOMS.
Pursuant to Clause 2, Article 35 of Decree
No. 16/CP of March 20, 1996, Article 7 of Decree No. 54/1998/ND-CP of July 21,
1998 and Article 2 of Decree No. 58/2000/ND-CP of October 24, 2000 of the
Government stipulating the sanctioning of administrative violations in the
field of State management over the customs, the General Department of Customs
hereby guides the implementation thereof as follows:
I. GENERAL PROVISIONS
1. The Government’s Decree No.16/CP of
March 20, 1996, Decree No. 54/1998/ND-CP of July 21, 1998 and Decree No.
58/2000/ND-CP of October 24, 2000 amending and supplementing Decrees No. 16/CP
and No. 54/CP stipulating the sanctioning of administrative violations in the
field of State management over the customs (hereinafter referred collectively
to as the Decree on sanctioning administrative violations on customs or SAVC
Decree).
2. The principle for application of the
SAVC Decree:
a/ The SAVC Decree shall be applied to acts
committed at the time the Decree comes into force.
b/ Where the SAVC Decree and other legal
documents contain divergent provisions on the same matter, the document of
higher legal effect shall apply.
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d/ Where the SAVC Decree and other new relevant
legal documents have failed to prescribe the legal liability or have prescribed
the lighter legal liability for acts committed before the documents take
effect, the new documents shall apply.
3. The following terms used in the SAVC
Decree shall be understood as follows:
a/ "Commodity, articles" mean goods,
luggage, postal matters, parcels, foreign exchange, gold, Vietnamese currency
and other articles.
b/ "Commodity code" means the tax code
of commodity according to the provisions of the legislation on export tax,
import tax.
c/ "Goods encouraged for export,
import" mean goods which are not banned from export, import; not subject
to regulation by quotas, permits, oriented plans.
d/ "The average level of the fine
bracket" means the average of the highest and the lowest fine levels of
the fine bracket for an act of administrative violation.
e/ "Inconsistent with customs
declaration" means the inconsistency between the goods and articles
declared with the customs and the goods and articles actually exported or imported.
g/ "Recidivism" means cases where a
violator has been sanctioned and the statute of limitations for being regarded
as having not yet been sanctioned for administrative violation has not yet
expired, he/she continues committing administrative violations in the same
field.
h/ "Repeated violation" means cases
where an administrative violation is committed in the field where
administrative violations were previously committed but have not yet been
sanctioned.
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4. Administrative violations in the field
of State management over the customs mean acts committed intentionally or
unintentionally by individuals or organizations, thus breaching the regulations
on the State management over the customs prescribed in Clause 1, Article 1 of
the SAVC Decree (hereinafter called the Decree for short), which are not
serious enough for penal liability examination, but, under the provisions of
law, must be sanctioned for administrative violations on customs.
5. Individuals and organizations defined
in Clause 2, Article 1 of the Decree shall be understood as follows:
a/ Organizations shall include State bodies,
economic organizations, socio-political organizations and social organizations,
as defined by Vietnamese laws.
b/ Individuals shall include Vietnamese,
foreigners, stateless persons, having full civil act capacity under the
provisions of Vietnamese laws.
c/ Vietnamese and foreign individuals and
organizations that commit acts of violating the regulations on the State
management over the customs must all be subject to administrative liability
regarding the customs according to the provisions of this Decree and other
Decrees of the Government, which prescribe the sanctioning competence of the
customs offices. Where it is otherwise provided for by the international
agreements which Vietnam has signed or acceded to, such international
agreements shall apply.
6. Subject to sanctions against
administrative violations in the field of State management over customs shall
be the carriers, the goods consignors, the goods consignees or their lawful
representatives, bonded warehouse dealers when they commit acts of
administrative violations on customs; the purchasers, the sellers, keepers or
transporters of goods and/or articles with illegal import origins; persons
buying and/or selling goods entitled to tax preferences in contravention of the
regulations; persons obstructing, insulting customs personnel on official duty.
7. An act of administrative violation
shall be sanctioned only once. If many people commit one act of administrative
violation, each of them shall be sanctioned. A person commits many acts of
administrative violation shall be sanctioned for every act of violation. When
deciding to impose fine on a person who has committed various acts of
administrative violation at one time, the fine level for each act must be
clearly inscribed and added up into the common fine level. If one of the
above-said acts of violation falls beyond ones sanctioning competence, all the
dossiers and material evidences thereon shall be transferred to the competent
sanctioning authority.
8. For complicated violations, where it
is difficult to determine whether they are administrative violations or
criminal offenses, the persons with sanctioning competence of the Customs
Departments of the provinces or centrally-run cities (hereinafter referred
collectively to as the provincial Customs Department) shall consult with the
Peoples Procuracy of the same level and issue the decisions on administrative
sanction only after obtaining the opinion of the Peoples Procuracy.
9. For export and/or import commodity
and/or articles, being the material evidences of administrative violations,
which are subject to taxes, in addition to fines, the violating individuals or
organizations shall also have to pay the export tax, import tax, other taxes
and fees as prescribed by law.
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11. Regarding the competence to handle
violations:
a/ For administrative violations which fall
under the sanctioning competence of many agencies, the agency which detects and
make record on the violations first shall issue the sanctioning decisions.
b/ For acts of smuggling, illegally transporting
goods, foreign exchange, gold across borders with the value of VND 100 million
or more or acts of evading taxes (including export tax, import tax, value added
tax, special consumption tax) with the evaded tax amount of VND 50 million or
more, which have not yet constituted crimes due to the lack of constituent
factors and have been detected by agencies which have no sanctioning competence,
their dossiers and material evidences shall be transferred to customs offices
for the latter to issue sanctioning decisions and collect taxes according to
law provisions.
c/ For acts of violating the customs legislation
seriously enough for penal liability examination as provided for in Article 161
(tax evasion) of the Penal Code, the customs offices shall transfer their
dossiers to the competent investigation bodies, and at the same time transfer
the material evidences for preservation by such bodies as provided for in
Clause 2, Article 57 of the Criminal Procedure Code, except otherwise directed
by the Prime Minister.
d/ For administrative violations with dossiers
relating to various customs units, the unit which detects and makes record on
the violations first shall issue the sanctioning decisions; the concerned units
shall have to fully transfer the necessary documents at the request of the
competent sanctioning unit. In case of divergence of opinions on the sanction,
within the prescribed time limit such must be reported to the General Director
of Customs for his opinions.
e/ For administrative violations on customs,
which are caught on the sea and subject to fine levels falling beyond the
competence of the arresting units, such units shall have to transfer the cases
to the nearest competent customs office for sanctioning.
Where a case criminally prosecuted by the
Smuggling Investigation Department or the central investigation body, which is
related to the scope of operation of various provincial Customs Departments and
suspended from investigation for administrative sanction upon a decision, the
case shall be transferred to the Customs Department of the province where the
case took place for sanctioning. Where the case happened in an area not within
the scope of operation of such Customs Department, it shall be transferred to
the Customs Department near the place where the case occurred or the Customs
Department with office in the same area where the investigation body or the
Smuggling Investigation Department has its office, for sanctioning.
12. Upon detection of acts of
administrative violation on customs in export processing zones, export
processing enterprises or areas where economic and trade development is
encouraged, depending on the nature and seriousness of the violations, the
sanctioning levels commensurable to acts of violation defined in this Decree
and other Decrees which define acts of violations and sanctioning competence of
the customs offices shall apply.
13. Cases where administrative violations
on customs shall not be sanctioned:
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In case of failure to make declaration,
sanctions shall be imposed according to the provisions at Point a, Clause 2,
Article 6 of the Decree.
b/ For cases prescribed at Point g, Clause 8,
Article 12a of the Decree, when acts of violation are detected, the records on
administrative violation on customs must be made. On the basis of the import
dossiers, relevant documents and violation records, the persons competent to
sanction administrative violations shall decide whether to sanction the
violations or not, then guide the customs declarers to make adjustments or
supplements to the customs declarations.
c/ Bases for determining the value of falsely
declared volumes of goods, articles prescribed at Point b, Clause 3, Article
12a and Articles 13 and 14 of the Decree:
- For goods and articles it must be based on
legal documents of the Ministry of Finance and, the General Department of
Customs guiding the determination of tax calculation prices for goods items
subject to the State management over tax calculation prices, and goods items
not subject to the State management over tax calculation prices.
- For foreign exchange and gold, it must be
based on the transaction exchange rates announced by the Vietnam State Bank at
the time of making the records on the violations.
- The determination of residual value in order
to impose sanctions as prescribed in Articles 13 and 14 of the amended and
supplemented Decree No. 16/CP, which is the value left after subtracting the
amounts of foreign exchange, gold and Vietnam dong not subject to the customs
declaration as provided for by law.
d/ Where the names of commodities, articles are
declared in Vietnamese inaccurately as compared with their names in foreign
language(s) on customs vouchers and documents as well as relevant technical
documents (if any) just because of translation errors, the customs offices
shall request the accurate translation thereof and not impose sanction.
e/ Where tax payers truthfully declare the
commodities and articles actually exported or imported but use the tax code
wrongly due to the first importation of such commodity item, the customs
offices shall guide the goods owners to use the correct tax codes, make the
record thereon for certification and shall not impose sanction. If the tax
codes are again used wrongly for such goods items though they were once guided
by customs officers, the records on violations shall be made and sanctions
shall be imposed in strict accordance with the provisions of current
legislation.
- Where a tax payer makes arithmetic mistakes in
tax calculation without legal grounds for determining such as an intentional
act, this shall not be considered act of violation. The customs office shall
examine and readjust the payable tax amount in strict accordance with the
relevant tax laws.
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g/ Where commodities and/or articles are
imported strictly according to the customs declarations (except for narcotics,
weapons, reactionary documents) which the consignees refuse to receive and
return to the sellers with plausible reasons and in conformity with the
agreement in the commercial contracts, the Commercial Law of Vietnam and
international commercial practices, the commodities and/or articles shall be
allowed to be taken out of Vietnam and sanctions shall not be imposed.
14. When receiving customs dossiers to
carry out the procedures for export or import of commodities and/or articles,
the dossiers- receiving officials shall have to check them; if detecting that
the dossiers are incomplete according to regulations, they must guide the
applicants to made and submit supplementary declarations and to produce enough
vouchers; when the dossiers are supplemented within the time limit for carrying
out the customs procedures, the customs offices shall receive and register them
without making violation record.
II. APPLICATION OF
SANCTIONING FORMS AND LEVELS
1. Sanctioning forms: Individuals and
organizations that commit acts of administrative violation on customs must be
subject to one of the following principal sanctioning forms: Warning or fine.
a/ Warning: Applicable to individuals and
organizations that commit minor administrative violations, for the first time,
which involve extenuating circumstances, are defined in Clause 1 of Articles 6,
8, 9a, 9b, 11 and Article 10 of the Decree.
b/ In addition to the principal sanctioning
forms, depending on the nature and seriousness of violations committed by
individuals and organizations, the following forms of additional sanction may
also be applied:
- Confiscation of material evidences, violating
means;
- Deprivation of the right to use permits.
The above forms of additional sanction must not
be applied independently but must be applied together with the principal
sanctioning forms.
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- Forced re-export of commodities, articles;
- Suspension of customs procedure clearance;
- Forced destruction of commodities, articles;
The other administrative measures shall be
applied together with principal sanctioning forms, but not independently.
3. The additional sanction form of
"deprivation of the right to use permits" shall apply only to permits
directly related to goods, articles and/or transport means being the material
evidence of the violations.
The customs authorities with sanctioning
competence at different level may only deprive the right to use the permits
granted by the customs offices. For permits granted by other agencies, the
customs offices shall notify in writing the agencies competent to grant such
permits thereof, proposing the deprivation of the right to use such permits. After
satisfying the request of the customs authorities, the agencies competent to
grant the permits shall notify the results to the customs authorities.
When permits are detected having been
counterfeited, granted not according to competence or contained illegal
contents, records on the seizure thereof must be made before the relevant State
bodies and/or organizations are notified thereof in writing.
4. The consideration of handling cases of
mistakes in the process of forwarding export or import goods and/or articles
prescribed in Clause 3, Article 1 of the Decree must be based on Article 17 of
the Customs Ordinance and Article 7 of Decree No. 16/1999/ND-CP of March 27,
1999 of the Government stipulating the customs procedures, customs supervision
and customs fees so as to determine the time of "customs inspection of
goods". The "pre-customs inspection of goods" time prescribed in
Clause 3 of the Decree is understood as the time before the persons who fill in
the customs procedures or their lawful representatives produce papers and open
containers or parcels at the inspection places for inspection by the customs
authorities.
The notification of the mistakes must be made in
writing by the carriers, the consignors or their lawful representatives, which
must clearly state the reasons therefor and be sent to the customs offices
before the inspection of goods. Where there are enough grounds to determine
that the mistakes have been committed due to the complicity between the
purchaser and the seller or the carrier for smuggling, illegal transportation
or tax evasion, the mistake notification shall not be accepted and the mistakes
shall be dealt with according to law, depending on their nature and
seriousness.
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6. For acts of violating the provisions
at Point b, Clause 2, Article 6 of the Decree, sanctions shall be imposed only
if the permits, the customs declarations or other papers as prescribed by law
stipulate the time limit for re-import or re-export.
7. For acts of violating the provisions
in Clause 3, Article 7 of the Decree where goods and/or articles which are
material evidences of other administrative violations and subject to
confiscation for public fund as an additional sanction, apart from the
sanctioning under Clause 3, Article 7, the amount of money corresponding to the
value of such goods and/or articles must be recovered. In case it is necessary
to secure the execution of sanctioning decisions, an amount of money equal to
the amount of fine shall be recovered.
8. Subjects violating the regulations on
exchange of export goods and import goods by border people shall include
persons inside and outside border areas. The values and categories of commodity
permitted to be exchanged by border people must comply with the current law
provisions.
The export and import of commodities and
articles in other forms through the land border gates must fully comply with
the provisions of the customs legislation and relevant legislation.
Where border people carry foreign exchanges
(including both Vietnamese currency and gold) across border in excess of the
limits prescribed by the Vietnam State Bank and fail to make the customs
declaration thereof, they shall be sanctioned according to the provisions in
Articles 13 and 14 of the Decree, with handling guidance stated at Points 19
and 20, Part II of this Circular.
9. Acts of exporting or importing gifts
in contravention of the States regulations on export and import in Clause 2,
Article 9a of the Decree mean acts of exporting or importing commodities and/or
articles subject to management by quotas, permits or oriented plans; goods
temporarily suspended from export or import; goods and/or articles banned from
export or import or to be exported or imported under other conditions.
Where the actually inspected goods and/or
articles are compatible with the customs declaration but the consignees refuse
to receive them, or where gifts being on the list of goods banned from import
(except narcotics, documents with reactionary contents, weapons, ammunitions,
explosives, military equipment and gears) are imported with customs
declarations, the recipients of such goods/articles or gifts are requested to
inform the consignors and the carriers of the transportation of such goods and
articles out of Vietnamese territory within the time limit prescribed in Clause
2, Article 27 of the Decree; if past that time limit the goods and articles are
not brought out of the country, they shall be confiscated for public funds or
destroyed.
- Gifts sent by mails, in postal parcels or
through express mail services in violation of regulations, for which the post
offices carry out the procedures on behalf of the goods owners, the provisions
at Point 2, Part IV of the Joint Circular No. 06/TTLT-TCBD-TCHQ of December 11,
1998 of the General Department of Customs and the General Department of Post
and Telecommunications on carrying out the customs procedures for postal
matters, parcels, articles, export and import goods, which are sent through
postal and express mail services shall be complied with.
10. Where luggage are exported or
imported without declaration or with declaration made in contravention of the
regulations on customs declaration (prescribed in the contents of the customs
declaration forms), which are not governed by the provisions in Clause 2,
Article 9b of the Decree, the sanction shall be imposed according to the
provisions in Clause 1 of Article 9b mentioned above.
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The determination of whether luggage are
exported or imported with permits or not must be based on legal documents on
export-import management mechanism, issued by the Prime Minister, and guiding
documents of competent bodies, which shall serve as basis for determining acts
of violation of "exporting, importing luggage without permits according to
the provisions of law" prescribed at Point c, Clause 2, Article 9b of the
Decree.
In case of exporting or importing luggage being
goods banned from export or import (except narcotics, documents with
reactionary contents, weapons, ammunition, explosive, military equipment and
gears) with customs declaration, the export or import of such luggage must not
be permitted, but no sanction shall be imposed.
11. Transport means carrying export,
import, transit, border-transshipment goods prescribed in the Decree shall
include air, sea, river, land transport means moving within customs control
areas.
a/ Acts of violating the provisions in Clause 2,
Article 11 of the Decree shall cover transport means carrying export goods and
departing from a Vietnamese port or carrying border- transshipment goods,
arriving at ports not included in the ships’ itineraries, but failing to make
customs declaration as provided for in Article 5 of Decree No. 16/1999/ND-CP of
March 27, 1999 prescribing the customs procedures, customs supervisions and
customs fees.
b/ Goods, articles without customs declarations
on exit, entry transport means within customs control areas:
- Where goods and/or articles are determined as
not belonging to crew members, the sanctioning shall comply with the provisions
in Clause 4, Article 11 of the Decree.
- Where such goods are determined as belonging
to the luggage of the operators, attendants or passengers onboard exit or entry
transport means, which are in service of their journeys or as including in the
crew members’ luggage limits, the sanctioning shall comply the provisions of
Article 9b of the Decree.
c/ Upon the detection that goods and/or articles
are purchased, sold, stored, transported in contravention of the provisions of
law or have the illegal import origins, the sanctioning levels prescribed at
Point b, Clause 3, Article 17; or Clause 4, Article 11 and Clause 2, Article 17
of the Decree or Article 21 of Decree No. 01/CP of January 3, 1996 on
sanctioning administrative violations in the trade field shall apply, depending
on the nature and seriousness of the violations; acts of tax evasion, if any,
shall be sanctioned according to Point 12.a below.
12. Violations of the provisions in
Article 12.a of the Decree:
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- Methods of calculating tax difference and
applying sanctioning levels:
The subtraction of the tax amount already
declared by the goods owners on the customs declaration from the payable amount
of tax on the actually imported goods shall yield the evaded tax amount. The
evaded tax amount shall cover the export tax, import tax, value added tax and
special consumption tax. The tax difference shall be determined by the
professional tax unit.
After the evaded tax amount is calculated,
Clause 1, Article 161 (on tax evasion offense) of the Penal Code must be
consulted with for sanction according to the tax law or for criminal
prosecution. If administrative handling is applied, it shall be based on
Article 3, Clause 1 of Article 4, of Decree No. 22/CP of April 17, 1996 of the
Government stipulating the sanctioning of administrative violations in the
field of tax, and Point 2, Part II of Circular No. 128/1998/TT-BTC of September
22, 1998 of the Finance Ministry guiding the implementation of Decree 22/CP in
order to impose fines of between one and five times the evaded tax amount,
depending on the nature and seriousness of the violations.
- The legal bases for issuing sanctioning
decisions must conform to the following provisions of various tax laws:
+ Clause 3, Article 20 in Clause 5, Article 1 of
the Law Amending and Supplementing a Number of Articles of the Law on Export
Tax and Import Tax;
+ Clause 3 of Article 19 of the Value Added Tax
Law;
+ Clause 3 of Article 17 of the Special
Consumption Tax Law;
+ Decree No. 22/CP of April 17, 1996 of the
Government, stipulating the sanctioning of administrative violations in the
field of tax.
When there are not enough legal evidences for
determining that the acts of violation are intentional evasion of import tax,
export tax, value added tax, special consumption tax (if any), the sanctioning
of such acts of violation shall comply with Clause 2 or Clause 3, Article 12a
of the Decree, depending on the nature and seriousness of the violations.
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13. For acts of violation related to
permits and surrogate documents (hereinafter called permits):
a/ Expired permits:
- Export goods: The goods owners shall have to
apply for the extension of their permits before being allowed to carry out the
export procedures, and at the same time be sanctioned according to Clause 1,
Article 14 of Decree No. 01/CP on sanctioning administrative violations in the
trade field.
- Import goods: If the permits remain effective
when the contracts are signed or when goods are loaded on transport means but
expire when the goods arrive at ports, the sanction shall be imposed for act of
using expired permits to import goods, as provided for at Clause 1, Article 14
of Decree No. 01/CP on sanctioning administrative violations in the trade
field; this case shall not be considered illegal import.
b/ Import goods which require permits before the
signing of contracts:
- Where permits are granted after the signing of
contracts, the sanctioning shall comply with the provisions at Point g, Clause
5 and Clause 7, Article 12a of the Decree.
- For permits related to processed goods, goods
deposited at bonded warehouses, the sanctioning shall comply with Articles 12b
and 12c of the Decree.
c/ Where imported goods are incompatible with
the contents of permits, but the material evidences of the violations are machinery
contributed as investment capital to joint ventures, which are of advance
technology and suitable to the use requirement, certified by competent State
management bodies and enclosed with customs declarations, the sanction shall
not be imposed but all financial obligations must be fulfilled as provided for
by law.
d/ Where imported goods are incompatible with
the customs declarations and rejected and returned to the sellers by the
consignees with plausible reasons, in conformity with the trade contracts, the
Commercial Law and other provisions of Vietnamese legislation, international
commercial practices, showing no signs of legalizing smuggled goods lots, the
sanctioning shall comply with the provisions in Clause 3, Article 12a of the
Decree, goods are compelled to be taken out of Vietnam.
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15. Violations of the regulations on
management of export, import processed goods and imported raw materials for
production of export goods, the sanctioning shall comply with the provisions in
Clause 1 or Clause 2, Article 12c of the Decree, depending on the nature and
seriousness of the violations. In case of violating the provisions on time limits
for liquidation of processing contracts, apart from having to execute the
sanctioning decisions, enterprises shall also have to carry out the liquidation
of the processing contracts strictly according to the current regulations.
16. The provisions at Point e, Point g,
Clause 5, Article 12a of the Decree shall not apply to cases where commodities
and/or articles are brought into Vietnam on the basis of trade contracts, in
conformity with the business licenses of the importers and within the time
limits prescribed in Clause 1, Article 5 of the Regulation on customs
procedures, customs supervision and customs fees, issued together with Decree
No. 16/1999/ND-CP of March 27, 1999, the importers can produce the permits
(except for cases stated at Point 13b Part II of this Circular).
17. For the provisions at Point d, Clause
8, Article 12a of the Decree, the directors of the provincial Customs
Departments shall have to report in full and in time so that the General
Director of Customs can decide to release the goods or authorize the directors
of the provincial Customs Departments to release the goods.
18. For diplomatic personnel and/or
consular personnel who abuse the diplomatic privileges and immunities to
conduct trade activities beyond their official functions, committing
administrative violations on customs, before the sanctions are imposed, the
diplomatic offices should be consulted with.
In cases where people are not entitled to
diplomatic privileges and immunities but take advantage of them to shirk the
customs inspection, for the purpose of illegally exporting or importing goods,
evading taxes or to forge papers in order to import goods according to the
customs privilege and immunity criteria, but not seriously enough for penal
liability examination, they shall all be sanctioned according to the provisions
at Point a, Clause 5, Article 12a of the Decree.
19. Violations of the regulations on
foreign exchanges, gold upon exit or entry.
a/ In case of over-declaration of foreign
exchange, gold in large volume equivalent to VND 10,000,000 or more, the
violators shall all be sanctioned.
b/ For the violation of provisions at Point b,
Clause 2, Article 13 of the Decree with the over-declared volume of foreign
exchanges, gold being equivalent to VND 100,000,000 or more, if involving
aggravating circumstances, the administrative sanction or the penal liability
examination shall be decided, depending on the nature and seriousness of the
violation.
c/ For the violation of provisions in Clause 1,
Point c, Clause 2, Clause 3, Article 13 of the Decree, if, after the
sanctioning, the foreign exchange or gold have lawful origins, they shall be
returned; if they do not have lawful origins, they shall be confiscated for
public funds. The determination of the lawful origins of foreign exchange or
gold shall comply with Point 20c, Section II of this Circular.
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a/ For violations of the provisions in Clause 1,
Article 14 of the Decree, with extenuating circumstances and the material
evidences of the violations valued at under VND 10,000,000, the sanctioning
form of warning shall apply. If aggravating circumstances are involved, a fine
of between VND 200,000 and 1,000,000 shall be imposed, depending on the nature
and seriousness of the violations.
b/ For violations of the provisions in Clause 1,
Clause 2, Article 14 of the Decree, if the material evidences of the violations
are Vietnamese currency without lawful origins under the provisions of law,
apart from fines, the material evidences shall also be confiscated for public
funds.
c/ The determination of whether the origins of
foreign exchange, gold or Vietnamese currency are lawful or unlawful shall be
based on the case dossiers and, depending on each specific case, on one of the
following papers:
- The certification by banks of the volume of
foreign exchange, gold or Vietnamese dong having been withdrawn from such
banks;
- Income from salary and income from other
sources;
- Inheritance;
- Payment invoices of goods purchase and sale,
etc.
III. SANCTIONING COMPETENCE
1. The sanctioning competence of
immediate leaders of customs personnel, including heads of the working teams
under the border-gate offices and professional bureaus, appointed by directors
of provincial Customs Departments; professional bureaus without working teams,
shall comply with the provisions in Clause 1, Article 16 of the Decree. The
immediate superiors of the heads of the working teams shall have the
responsibility to inspect and request their subordinates to strictly observe
the law provisions when making sanctioning decisions. Cases with violators
being foreigners or with complicated circumstances shall be transferred to the
immediate superior authorities for issuing sanctioning decisions.
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The decisions on fine of VND 2,000,000 and
decisions on confiscation of material evidences and/or means valued at VND
5,000,000 or more must be sent by the above-mentioned competent persons to the
directors of the provincial Customs Departments, the director of the Smuggling
Investigation Department (for decisions made by the control teams under the
Smuggling Investigation Department) in order to forward them to the Peoples
Procuracy of the provinces or centrally-run cities where the provincial Customs
Departments are headquartered.
For acts of violation subject to a fine of over
VND 2,000,000 or the confiscation of material evidence valued at over VND 20,000,000,
the chiefs of the border-gate customs offices and leaders of the customs
control teams of the provincial Customs Department shall have to make reports
thereon, transfer the dossiers and material evidences to the directors of the
provincial Customs Departments for issuing sanctioning decisions.
Violation cases falling beyond the sanctioning
competence of the heads of the control teams of the Smuggling Investigation
Department shall be transferred to the directors of the Customs Departments of
the localities where the violations are detected and recorded for issuing
sanctioning decisions.
Chiefs of border-gate customs offices, leaders
of the customs control teams of the provincial Customs Departments or the
Smuggling Investigation Department may impose sanctions according to the
provisions of tax laws with the maximum fine level being VND 20,000,000.
3. The directors of the provincial
Customs Departments shall exercise the sanctioning competence as provided for
in Clause 3, Article 16 of the Decree:
a/ For violations subject to the sanctioning
form of fines with a level of over VND 20,000,000, to carry out the procedures
for transfer of dossiers to the People’s Committees of the provinces or
centrally-run cities (hereinafter referred collectively to as the provincial
Peoples Committees) where the cases are caught so that the provincial People’s
Committee presidents issue the sanctioning decisions.
b/ The dossiers on administrative violations on
customs, when being transferred to the provincial People’s Committee
presidents, must be enclosed with the summarized contents of the cases and
proposals of the directors of the provincial Customs Departments on handling
measures. The procedures for transfer of dossiers on cases of administrative
violation on customs subject to a fine level of over VND 20,000,000 to the
provincial People’s Committees must comply with the general provisions. The
time limit for consideration and settlement of such cases at each level is
stipulated as follows:
Within 15 days after the record on an
administrative violation is made, the director of the provincial Customs
Department shall have to forward the dossiers thereon and proposal on measures
to handle the administrative violation to the provincial People’s Committee
president for consideration and solution. The material evidences of the
violation shall be kept at the customs warehouse for preservation.
Particularly, the material evidences being foreign exchange, precious metals,
gems must be sealed and deposited at the State Treasury.
c/ For cases of administrative violation
transferred by customs offices to the provincial People’s Committee presidents
for solution according to handling competence, after the provincial People’s
Committee presidents issue sanctioning decisions, the directors of the
provincial Customs Departments where the dossiers on the administrative
violation are received shall have to execute the sanctioning decisions.
Monthly, the directors of the provincial Customs Departments shall have to
report on the execution of the provincial People’s Committee presidents’
decisions on sanctioning administrative violations to the General Director of
Customs.
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e/ The provincial Customs Department directors’
sanctioning competence shall comply with the provisions of various tax laws and
legal documents guiding the implementation of such tax laws. For the evaded tax
amount being lower than the levels subject to penal liability examination
prescribed in Article 161 of the Penal Code, the directors of the provincial
Customs Departments may impose a fine five times the evaded tax amount, but the
maximum fine for an evaded tax amount must be lower than VND 50 million; the
fine equal to five times the evaded tax amounts must be lower than VND 250
million.
For cases subject to a fine exceeding the
above-prescribed levels, the directors of the provincial Customs Departments
shall only issue sanctioning decisions according to tax laws when there are
opinions of the People’s Procuracy of the same level.
IV. APPLICATION OF MEASURES
TO PREVENT ADMINISTRATIVE VIOLATIONS AND SECURE THE SANCTIONING OF
ADMINISTRATIVE VIOLATIONS
1. When the measure of temporary
detention of persons is applied according to the administrative procedures, the
following principles must be observed:
a/ Only competent persons defined in Article 19
of the Decree can temporarily detain people according to the administrative
procedures.
b/ Upon the temporary detention of persons,
there must be written decisions, the copies of which must be handed over to the
temporarily detained persons.
c/ People shall be temporarily detained
according to the administrative procedures only in cases where it is necessary
to gather and/or verify important circumstances for use as basis to issue
decisions on administrative sanctions or to prevent or immediately stop acts of
administrative violations.
2. Temporary seizure of material
evidences and means of administrative violations.
a/ When the measure of temporarily seizing
material evidences and means of administrative violations is applied, the
following provisions in Article 20 of the Decree must be complied with: If
there are in a goods lot commodities and/or articles which are material
evidences of violations and commodities and/or articles which are not material
evidences of violations, only commodities and/or articles being material
evidences of the violations shall be seized. Where violations or not have yet
been determined, only samples of the material evidences are kept. For the
material evidences being foreign exchange passengers on exit or entry, only the
amounts in excess of the limits prescribed by Vietnam State Bank shall be
temporarily kept. For the material evidences being raw materials for production
of processed goods, raw materials for production of export goods, commodities
contributed as capital to joint ventures, duty-free goods imported with ODA
capital sources, goods deposited at bonded warehouses, which are stated in the
permits and contracts, only the samples thereof shall be kept while the goods
shall be released, and these subjects are requested to make written commitments
to abide by the subsequent sanctioning decisions.
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b/ Persons with competence to temporarily detain
people according to the administrative procedures may temporarily seize
material evidences and means of violation according to the administrative
procedures.
c/ The leaders of the professional working teams
may only seize material evidences and means of administrative violations in
case of flagrante delicto where the material evidences and/or means of
the administrations shall be dispersed or substituted in order to do away with
the traces, if the temporary seizure measure is not applied. But within 24
hours from the time of temporary seizure, the decision makers shall have to
report the cases to their immediate superiors as provided for in Article 19 of
the Decree and get the written consents thereof.
d/ In order to ensure the prompt and effective
administrative prevention, the directors of the provincial/municipal Customs
Departments shall, in each specific case, authorize the heads of the Smuggling
Investigation Sections to temporarily seize the material evidences and means of
the administrative violations. The authorizers and the authorized shall have to
take responsibility for their decisions.
3. Body search according to the
administrative procedures
a/ The competence and order for body search
according to the administrative procedures must comply with the conditions
prescribed in Article 21 of the Decree.
b/ Customs personnel being on official duty may
conduct the body search according to administrative procedures. Before
conducting the search, they must show their customs identity cards, be held
before law for their decisions and immediately report the cases to the heads of
their managing units.
4. Check transport means, objects
according to the administrative procedures.
a/ Customs personnel being on official duty may
check transport means and objects according to the administrative procedures,
except cases where the transport means are sea-going ships, aircraft, trains of
Vietnam and/or foreign country operating on international routes, which require
the decisions of the heads of the border-gate customs offices or persons of
equivalent or higher level.
b/ The checking of transport means, objects of
subjects entitled to diplomatic privileges and immunities or consular
immunities must comply with the provisions of the international treaties which
Vietnam has signed or acceded to and be decided in writing by the General
Director of Customs.
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5. Searching places where material
evidences and/or means of administrative violations are hidden.
When deeming it necessary to search the places
where the material evidences and/or means of administrative violations are kept
within the areas under the customs control, the customs offices shall have to
coordinate with competent bodies in conducting the search according to the
provisions in Article 44 of the Ordinance on Handling of Administrative
Violations. The search conducted outside the customs-controlled areas must be
carried out by the customs offices in coordination with the competent bodies as
provided for by law.
V. PROCEDURES FOR SANCTIONING
ADMINISTRATIVE VIOLATIONS AND EXECUTING DECISIONS ON SANCTIONING ADMINISTRATIVE
VIOLATIONS
1. When sanctioning administrative
violations in the field of State management over the customs in form of warning
or fine of up to VND 20,000, the records on the violations shall not be made
but the decisions on the on-spot sanction shall be issued.
2. The administrative violation-
sanctioning decisions may inscribe the effective dates (like for cases of
sanctioning foreigners in absentia; cases of failure to fully implement the
contents of the decisions within 5 days after the receipt of sanctioning
decisions due to temporal, spatial or other reasons).
3. Where the sanctioning form of fine or
fine plus the confiscation of material evidences and/or means of violation is
applied but past the time limit for execution of the sanctioning decisions the
involved parties deliberately refuse to execute the sanctioning decisions,
coercive measures must be applied.
Basing themselves on Point c, Clause 3, Article
30 of the Ordinance on Handling of Administrative Violations, the
provincial-level Customs Department directors may apply form of coercion for
the execution of the sanctioning decisions by way of suspending the customs
procedures for export, import goods and/or articles and shall apply this
measure only after coordinating with the agencies defined in Article 30 of the
Decree without resorting to other coercive measures.
VI. SETTLEMENT OF COMPLAINTS
Upon receipt of dossiers for settlement of
complaints, the provisions in Articles 30, 31, 32, 36, 39, 43 and 46 of the Law
on Complaints and Denunciations, Decree No. 67/1999/ND-CP of August 7, 1999 and
Articles 31 and 32 of the Decree must serve as basis for considering the
complaints in term of time limit, statute of limitations, competence to settle
complaints and relevant contents so as to decide whether to receive and process
them or not.
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Persons competent to issue sanctioning decisions
or decisions to apply preventive measures against the administrative violations
in the field of customs shall have to settle the first-time complaints.
For the sanctioning decisions made by the heads
of the professional working teams, which are complained about, the heads of the
professional sections, the chiefs of the border-gate customs offices shall
settle the second-time complaints. For the sanctioning decisions issued by
chiefs of border-gate customs offices, heads of the customs inspection teams,
heads of the professional sections (in places where teams are not set up), the
competence to settle the second-time complaints shall fall under the directors
of the provincial Customs Departments or the director of the Smuggling
Investigation Department (if they are decisions made by the heads of the
control teams under the Smuggling Investigation Department).
For sanctioning decisions issued by the
provincial Customs Department directors or the provincial People’s Committee presidents, the
competence to settle the second-time complaints shall fall under the General
Director of Customs.
Where complaints have already been settled by
decisions of the General Director of Customs, but are further lodged, the
competence to settle them shall fall under the State Inspector General.
Complaints about decisions on sanctioning
according the tax laws, which have already been settled by the General Director
of Customs, but are further lodged, shall be settled by the Finance Minister
according to his/her settling competence.
2. Time limits for notification on
complaint receipt and time limits for settlement of complaints:
a/ Within 10 days after the receipt of written
complaints, the complaint settlers must process them for settlement and notify
the complainants in writing thereof; where they are not processed for
settlement, the written notification must be made, clearly stating the reasons
therefor.
b/ The time limits for settling the first-time
complaints by competent customs authorities at all level (complaint settlers)
must not exceed 30 days from the date of receiving them for processing and
settlement (the date of making entry in receipt books and notifying in writing
to the complainants). For complicated cases, the time limit for settling the
complaints may be longer, but shall not exceed 45 days after the receipt
thereof. In deep-lying, remote, difficult- to- access areas, the time limit for
settling first-time complaints shall not exceed 45 days after the receipt
thereof; for complicated cases, the time limit for settling complaints may be
prolonged but shall not exceed 60 days after the receipt thereof for
settlement.
In the course of settling complaints, if deeming
that the execution of the complained sanctioning decisions may cause
consequences hardly to be overcome, the complaint settlers must issue decisions
or propose the competent authorities to temporarily suspend the execution of
such decisions.
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c/ Within 10 days after the receipt of written
complaints under their settling competence, the persons who settle the second-
or subsequent-time complaints shall have to process them for settlement and
notify in writing the complainants thereof.
The time limit for settling the second- or
subsequent-time complaints shall not exceed 45 days from the date of receiving
them for settlement. For complicated cases, the above-mentioned time limit may
be prolonged but must not exceed 60 days; in deep-lying, remote or
difficult-to-access areas, such time limit shall not exceed 60 days after the
receipt thereof for settlement; for complicated cases, this time limit may be
prolonged but must not exceed 70 days after the receipt thereof for settlement.
3. The contents of complaint-settling
decisions:
When settling complaints about decisions on
sanctioning administrative violations, the complaint settlers shall have to
base themselves on Article 38 (settling the first-time complaints), Article 45
(settling the second- and subsequent-time complaints) of the Law on Complaints
and Denunciations and the HC17 print form to issue the decisions on settling
the complaints.
Where the complainants disagree with the
decisions on settling the first-time complaints, they may further lodge their
complaints to the immediate superiors of the sanctioning decision makers or
initiate lawsuits in administrative cases at courts as provided for by law.
The cases of complaints and settlement of
complaints by provincial Customs Departments and the Smuggling Investigation
Department according to their competence must periodically reported to the
General Department of Customs according to set forms.
VII. IMPLEMENTATION
ORGANIZATION
1. The Legal Department of the General
Department of Customs shall have to organize the coordination with concerned
Departments of the General Department of Customs in re-examining decisions on
sanctioning administrative violations on customs and inspecting the observance
of law in the process of sanctioning and settling complaints about decisions on
sanctioning administrative violations within the Customs Service strictly
according to the provisions of law.
2. The directors of the provincial
Customs Departments shall organize the inspection of the observance of the
principles and orders of sanctioning administrative violations by units under
their management as provided for in the Ordinance on Handling of Administrative
Violations and the Regulation on the administrative violation sanctioning order
within the Customs Service, promulgated together with Decision No. 97/TCHQ-PC
of August 5, 1996 and Official Dispatch No. 2505/TCHQ-PC of August 6, 1996
guiding the implementation of the above-said Decision.
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3. For cases of administrative violations
or complaints about sanctioning decisions, which involve may complicated
circumstances, the handling advisory councils at all level shall have to study,
consider and propose them to the General Director of Customs, directors of the
provincial Customs Departments for the issuance of timely and correct
decisions.
4. Cadres who monitor and guide the
sanctioning of administrative violations must be selected from among cadres and
employees who have been well tempered, are honest and knowledgeable about laws
and profession.
5. The collection and payment of fines
for administrative violations shall comply with the guidance of the Finance
Ministry. The director of the Department for Inspection of Import and Export
Tax Collection of the General Department of Customs shall have to inspect and
guide in detail the collection regime according to the current regulations.
6. Customs cadres and employees, who are
competent to sanction or apply administrative preventive measures or are tasked
to sanction administrative violations on customs, if committing acts of
breaching the principles and order for sanctioning administrative violations
according to law provisions or lacking responsibility or causing harassment for
self-seeking purposes, shall, depending on the seriousness of their violations,
be strictly handled according to law; if causing material damage to individuals
or organizations, they must make compensation therefor according to law
provisions.
This Circular takes effect 15 days after its
signing and replaces Circular No. 05/1999/TT-TCHQ of July 26, 1999 and the
regulations previously promulgated by the General Department of Customs which
are contrary to this Circular.
FOR THE GENERAL DIRECTOR OF CUSTOMS
DEPUTY GENERAL DIRECTOR
Nguyen Ngoc Tuc