Circular No. 14/2005/TT-BTC guides the implementation of Decree No. 138/2004/NĐ-CP dated June 17, 2004 of the Government on administrative penalties for violations in the customs sector.

CIRCULAR

Guidelines for Implementing Decree No. 138/2004/NĐ-CP

dated June 17, 2004 of the Government on administrative offenses in the customs domain

administrative sanctions for violations in the customs domain

Pursuant to the Administrative Offense Handling Ordinance No. 44/2002/PL-UBTVQH10 dated July 2, 2002 of the Standing Committee of the National Assembly of the Socialist Republic of Vietnam;

Pursuant to Decree No. 134/2003/NĐ-CP dated November 14, 2003 of the Government detailing implementation of certain provisions of the Administrative Offense Handling Ordinance 2002;

Pursuant to Decree No. 138/2004/NĐ-CP dated June 17, 2004 of the Government on administrative offenses in the customs domain;

Pursuant to Decree No. 77/2003/NĐ-CP dated July 1, 2003 of the Government on the functions, tasks, powers, and organizational structure of the Ministry of Finance;

The Ministry of Finance guides the implementation of administrative offenses handling in the customs domain as follows:

I. GENERAL PROVISIONS

1. Administrative offenses in the customs domain are acts committed intentionally or negligently by individuals or organizations that violate state management regulations on customs without reaching the level of criminal prosecution and according to Decree No. 138/2004/NĐ-CP dated June 17, 2004 of the Government (hereinafter referred to as Decree No. 138/2004/NĐ-CP), must be subject to administrative penalties under customs regulations.

2. The application of the provisions of Decree No. 138/2004/NĐ-CP to impose administrative penalties in the customs domain shall be carried out based on the following principles:

a) Decree No. 138/2004/NĐ-CP applies to acts occurring at the time when Decree No. 138/2004/NĐ-CP comes into effect;

b) In cases where Decree No. 138/2004/NĐ-CP and other regulatory legal documents have different provisions on the same issue, the document with higher legal validity shall apply;

c) In cases where Decree No. 138/2004/NĐ-CP and other regulatory legal documents have the same legal validity and provide provisions on the same issue, the provision of the later issued document shall apply;

d) In cases where Decree No. 138/2004/NĐ-CP does not stipulate legal responsibility or stipulates lighter legal responsibility for acts occurring before the effective date of the Decree, then Decree No. 138/2004/NĐ-CP shall apply.

3. Administrative penalties, application of penalty forms and measures to mitigate consequences, application of measures to prevent administrative offenses, and ensuring the imposition of administrative penalties in the customs domain must comply with the principles, procedures, and authorities prescribed in the Administrative Offense Handling Ordinance, Decree No. 134/2003/NĐ-CP dated November 14, 2003 of the Government detailing implementation of certain provisions of the Administrative Offense Handling Ordinance, and Decree No. 138/2004/NĐ-CP.

4. Authority to impose penalties.

a) In cases where the amount of fine, value of confiscated goods or vehicles, or any form of penalty or measure to mitigate consequences exceeds the authority or is beyond the authority, the person handling the violation case must promptly transfer the case to the person with the authority to impose penalties;

b) For administrative offenses involving multiple customs units, the unit that first discovers and records the offense shall issue the penalty decision; related units shall be responsible for transferring all necessary documents to the unit with the authority to impose penalties upon request;

c) Upon discovering violations in the customs domain, the authority to impose penalties must compare with the provisions of the Penal Code to determine whether it is an administrative offense or a crime. If there are signs of a crime, the relevant criminal procedure laws shall apply;

5. Certain cases not subject to administrative penalties under customs as specified in Article 7 of Decree No. 138/2004/NĐ-CP are detailed as follows:

a) Goods or transportation means brought into Vietnam due to fire, natural disasters, enemy attacks, unexpected events, and in emergency situations must be declared to the customs authority, competent authority, or local government in accordance with the law.

Failure to declare will be handled according to current laws;

b) When examining and handling cases of errors in the process of exporting or importing goods or items as specified in Clause 3 of Article 7 of Decree No. 138/2004/NĐ-CP, the actual inspection time of goods must be determined based on the Customs Law and Decree No. 101/2001/NĐ-CP dated December 31, 2001 of the Government detailing implementation of certain provisions of the Customs Law regarding customs procedures and customs inspection and supervision systems. For goods exempted from inspection, the actual inspection time is considered the time of the decision to exempt actual inspection of exported or imported goods by the competent customs authority.

The notification of error must be made in writing by the sender or their authorized representative or the recipient, clearly stating the reasons, and submitted to the customs authority along with relevant documents before the goods are inspected and accepted by the Customs Branch Director. If the reason for the error is not valid or there is evidence of collusion between the buyer, seller, and/or transporter to smuggle, illegally transport, or evade taxes, the Customs Branch Director has the right to reject the error;

c) For cases specified in Clauses 5, 6, and 7 of Article 7 of Decree No. 138/2004/NĐ-CP, when a violation is discovered, an administrative offense record must still be established. The authority to impose penalties shall base their decision on import documents, related materials, and the administrative offense record;

d) In cases of exporting or importing goods or items that do not match the customs declaration but do not affect the tax payable or financial obligations, and do not violate commodity policy, environmental hygiene, or technical standards as prescribed by law, no penalty shall be imposed unless otherwise provided by law;

e) In cases where the declarant correctly declares the actual exported or imported goods but incorrectly applies the commodity code for the first import of such goods, the customs authority shall guide the declarant to reapply the correct commodity code, record the correction, and not impose a penalty. If the declarant continues to incorrectly apply the commodity code despite guidance from customs, a violation record shall be established and penalties imposed according to current laws.

6. The value of confiscated contraband items and means of transport shall be determined in accordance with the general guidelines of the Ministry of Finance.

- In cases where contraband items and means of transport are not confiscated, the value of the contraband items and means of transport is the taxable value, which is determined according to current regulations on determining the taxable value at the time of issuing the violation record. For foreign currency, the value is calculated in accordance with the guidance provided in Point 2, Section II, Part B of Circular No. 87/2004/TT-BTC dated August 31, 2004, issued by the Ministry of Finance for implementing export tax and import tax.

7. In cases where the administrative violation does not apply the supplementary penalty of confiscating contraband items and means of transport and other measures to remedy consequences, goods and means of transport involved in the violation may continue to go through customs procedures in accordance with the law if the violator has paid the full fine or obtained a guarantee from a credit institution or another entity permitted to carry out certain banking activities for the amount due to implement the penalty decision.

8. Exported and imported goods that are contraband items subject to taxation, in addition to being administratively penalized, individuals and organizations must also pay all types of taxes and fees as prescribed by law.

II. APPLICATION OF PENALTY FORMS AND AMOUNTS

Forms of penalty:

a) Individuals and organizations committing administrative violations related to customs shall bear one of the following main forms of punishment: warning or fine.

Warning: applicable to individuals and organizations violating for the first time, with mitigating circumstances as stipulated in Clause 1, Article 8; Clause 1, Article 10; Clause 1, Article 11; Clause 1, Article 12; Article 13; Clause 1, Article 14 and Clause 1, Article 20 of Decree No. 138/2004/NĐ-CP, or for any administrative violation committed by a minor aged 14 years or older but under 16 years old.

b) In addition to the main form of punishment, depending on the nature and degree of the violation, individuals and organizations may also be subject to the following supplementary forms of punishment:

- Confiscation of contraband items and means of transport.

- Revocation of the right to use licenses and certificates of practice.

These supplementary forms of punishment cannot be applied independently but must be applied together with the main form of punishment, except in cases prescribed in Clause 1, Article 56 of the Administrative Violations Handling Ordinance.

2. In addition to the main forms of punishment and supplementary punishments mentioned above, individuals and organizations committing administrative violations may also be required to take remedial measures as prescribed in Decree No. 138/2004/NĐ-CP, including: a) Compelling the removal of goods and items out of Vietnam or re-exporting them.

b) Compelling the destruction of contraband items and means of transport.

c) Compelling the return of the equivalent monetary value of contraband items and means of transport that have been consumed, disposed of, or destroyed in violation of the law.

Organizations and individuals who violate the law must bear all costs to implement the measures specified in Points a and b.

3. A first-time violation in the customs field as stipulated in Point b, Clause 1, Article 3 of Decree No. 138/2004/NĐ-CP refers to a situation where an individual or organization has not previously been administratively penalized in the customs field or has been administratively penalized in the customs field but has not committed a repeat offense within one year from the date of completion of the execution of the penalty decision or from the expiration of the enforcement period of the penalty decision.

4. The supplementary punishment of "revoking the right to use a license" can only be applied to licenses directly related to goods and means of transport that are contraband items.

The Customs Authority with the authority to revoke the right to use a license can only revoke the right to use a license for licenses issued by the Customs Authority. In cases where the license is issued by another agency, the Customs Authority shall notify in writing the competent authority issuing the license, requesting the revocation of the right to use the license, and inform the result to the Customs Authority.

When counterfeit licenses, licenses issued beyond jurisdiction, or licenses containing illegal content are discovered, a record of seizure shall be made, followed by a written notification to relevant state agencies and organizations.

The time limit for customs procedures as stipulated in Article 8 of Decree No. 138/2004/NĐ-CP is the time limit set forth in Article 18 of the Customs Law.

6. For violations as stipulated in Point b, Clause 2, Article 8 of Decree No. 138/2004/NĐ-CP, penalties will only be imposed if the license, customs declaration, or other documents as prescribed by law specify the time for re-importation or re-exportation..

7. Residents with permanent and long-term temporary residence permits in border communes who violate state management regulations on customs when buying and trading goods shall be punished in accordance with Article 10 of Decree No. 138/2004/NĐ-CP.

If border residents bring foreign currency, gold, or Vietnamese currency across the border exceeding the standard set by the State Bank of Vietnam without declaring to customs, they shall be punished in accordance with Articles 19 and 20 of Decree No. 138/2004/NĐ-CP.

In cases where imported goods and items are gifts that match the customs declaration during inspection, but the recipient refuses to accept them, or when importing prohibited items (excluding drugs; weapons, explosives, support tools; reactionary materials, harmful cultural products) declared to customs, the recipient of the gift must notify the sender and the carrier to remove the goods and items from Vietnam within the time limit specified in Clause 4, Article 34 of Decree No. 138/2004/NĐ-CP; if not removed within the time limit, the goods and items will be confiscated or destroyed.

In cases where imported goods and items do not match the customs declaration but were processed by a postal enterprise on behalf of the consignee in accordance with the law, and there is no evidence of collusion between the sender, the recipient, and the customs declarant to evade the law, the postal enterprise shall not be penalized.

In cases of exporting or importing luggage without declaration or incorrect declaration as prescribed in the customs declaration (as stipulated in the content of the customs declaration) and not falling under the provisions of Clause 2 and Clause 3, Article 12 of Decree No. 138/2004/NĐ-CP, penalties shall be imposed in accordance with Clause 1, Article 12 of Decree No. 138/2004/NĐ-CP.

9. In cases where luggage is exported or imported without declaration or with incorrect declaration regarding customs declaration (as stipulated in the content of the customs declaration) and does not fall under the provisions of Clause 2 and Clause 3, Article 12 of Decree 138/2004/NĐ-CP, the sanction shall be imposed according to the provision at Clause 1, Article 12 of Decree 138/2004/NĐ-CP.

In cases where luggage classified as prohibited for export or import, or subject to conditional export or import but does not meet the required conditions for such transactions, if customs declaration has been made, export or import shall not be permitted, but no penalty shall be imposed.

10. The means of transport carrying goods for export, import, or transit as stipulated in Decree 138/2004/NĐ-CP include air, sea, river, and land transportation moving within the customs territory.

a) The violation of Clause 2, Article 14 of Decree 138/2004/NĐ-CP includes means of transport carrying goods for export departing from a Vietnamese port or carrying imported goods, transit goods; docking at a port not listed in the ship's itinerary, but failing to declare according to Article 45 of Decree 101/2001/NĐ-CP dated December 31, 2001, detailing certain provisions of the Law on Customs regarding customs procedures, inspection, and supervision.

b) Goods or items not declared on means of transport exiting or entering the customs territory, which are not owned by crew members, drivers, service personnel, or passengers, shall be handled based on the nature and severity of the violation as provided in Clause 3 and Clause 5 of Article 14 of Decree 138/2004/NĐ-CP. If there is sufficient legal basis to determine that the goods belong to the driver, service personnel, or passengers on the means of transport, or are part of the crew's baggage allowance, they shall be penalized according to Article 12 of Decree 138/2004/NĐ-CP.

c) When discovering the purchase, sale, storage, or transportation of goods or items with illegal import origins within the customs territory carried out by individuals under 14 years old, a record shall be made, and a decision to confiscate or destroy the evidence shall be issued.

11. In cases where goods are exported or imported without declaration or incorrectly declared leading to reduced tax payable or increased tax refund or exemption, penalties shall be imposed according to relevant tax laws, specifically including:

- Goods that have been guided by Customs or had tax bases determined at the time of previous importation, but intentionally declared incorrectly leading to reduced tax payable;

- Knowing the actual goods being exported or imported but failing to declare or incorrectly declaring their origin, purpose, type, variety, quantity, specifications, condition, taxable value, tax rate, and tax code;

- Incorrectly declaring the type of export or import to obtain tax exemption or reduction;

- Creating false purchase or sale documents; providing incomplete or inaccurate documents related to tax calculation to the Customs authority;

- Colluding with the consignor to import goods outside the contract for the purpose of evading taxes;

- Other intentional fraudulent acts aimed at evading taxes.

12. Calculation of tax discrepancy and imposition of fines for tax evasion:

The tax discrepancy is the amount of tax payable on the actual imported goods minus the amount declared on the customs declaration form. The tax discrepancy includes export tax, import tax; value-added tax, and special consumption tax. The tax discrepancy is determined by the tax department.

For tax evasion, the Director of the General Department of Customs and the Head of the Customs Branch shall impose fines ranging from one to five times the amount of tax discrepancy based on the nature and severity of the violation.

When considering penalties for tax evasion, if the violation indicates criminal activity as defined in the Penal Code, the competent authority must immediately transfer the case file to the competent criminal prosecution agency.

13. Regarding violations stipulated in Article 15 of Decree 138/2004/NĐ-CP:

a) Where there is insufficient evidence to determine that the violation involves tax fraud on export or import taxes; value-added tax, or special consumption tax, penalties shall be imposed according to Clause 2, Clause 3, or Clause 4 of Article 15 of Decree 138/2004/NĐ-CP based on the nature and severity of the violation;

b) In cases where imported goods do not match the customs declaration and the recipient refuses to accept them and returns them to the seller with valid reasons (confirmed by the seller, consistent with the sales contract, compliant with the Trade Law and other regulations, and without signs of legitimizing smuggled goods), penalties shall be imposed according to Clause 3 or Point b of Clause 4 of Article 15 of Decree 138/2004/NĐ-CP, and the goods must be removed from Vietnam;

c) In cases where goods are imported for joint venture investment capital contributions with overstated declared values, if it is determined that false documents were used to inflate the investment capital contribution, in addition to penalizing the incorrect declaration of value, penalties for falsifying documents shall also be imposed; if there are indications of criminal activity, the case shall be transferred to the investigation agency;

d) Regarding violations related to permits and documents replacing permits:

- Permits mentioned in Point a of Clause 4; Point đ, g of Clause 6 of Article 15 of Decree 138/2004/NĐ-CP include permits issued or approved by competent specialized management agencies;

- The provision in Point đ of Clause 6 of Article 15 of Decree 138/2004/NĐ-CP does not apply to cases where goods or items are brought into Vietnam based on a sales contract and are consistent with the importer's business license, and the importer presents the permit within the period specified in Clause 1 of Article 18 of the Law on Customs (except for goods requiring permits before signing the contract);

- In cases where goods are imported according to regulations requiring permits before signing the contract: penalties shall only be imposed according to Point g of Clause 6 of Article 15 of Decree 138/2004/NĐ-CP if the importer cannot present the import permit upon arrival at the border;

- In cases where imported goods are materials or machinery for joint venture investment capital contributions without permits or inconsistent with permit contents but with customs declarations, they shall not be confiscated but shall be ordered to be removed from Vietnam.

d) For violations stipulated in point c, Clause 2, point d, Clause 4, and Clause 6, Article 15 of Decree 138/2004/NĐ-CP: if the specialized management agency determines that the imported goods must be removed from Vietnam, then confiscation shall not be applied, but the subject shall be compelled to remove the contraband out of the territory of Vietnam.

14. Diplomatic officials and consular officers who abuse diplomatic privileges and immunities to engage in commercial activities beyond their functions and violate administrative regulations on customs shall have the matter discussed with the diplomatic mission before punishment is imposed.

15. Violations concerning bonded warehouses and duty-free warehouses.

a) In cases where the lease contract for a bonded warehouse has expired and the consignor subsequently processes an extension of the lease contract in accordance with the law, they shall be punished according to Clause 1, Article 8 of Decree 138/2004/NĐ-CP.

b) In cases where the lease contract for a bonded warehouse has expired and the consignor fails to process an extension of the lease contract in accordance with the law, does not notify the customs authority, and does not remove the goods from the bonded warehouse, they shall be punished according to points a and b, Clause 1, Article 16 of Decree 138/2004/NĐ-CP, and the goods shall be handled according to Clauses 4 and 6, Article 33 of Decree 101/2001/NĐ-CP dated December 31, 2001.

c) The provisions of point b, Clause 1, Article 16 of Decree 138/2004/NĐ-CP apply to situations where the storage period at the bonded warehouse specified in point d, Clause 1, Article 36 of Decree 101/2001/NĐ-CP dated December 31, 2001 has expired, and the consignor has not removed all goods from Vietnam.

16. Violations concerning the management of export processing goods, import and export goods, and imported materials and raw materials for producing export goods shall be punished according to Article 17 of Decree 138/2004/NĐ-CP depending on the nature and degree of violation.

- In cases where the goods are raw materials for export processing and exceed the declared amount in the customs declaration but are within the contract, they can be deducted from the contract retroactively. If they are not within the contract and the recipient refuses to accept them, the goods must be removed from Vietnam. If the goods meet the requirements for import and export policies and the recipient wishes to import them, they must pay taxes and other financial obligations (if applicable).

- In cases of violations regarding the deadline for settling contracts for processing exports and declarations for importing materials and raw materials for producing export goods, in addition to implementing the penalty decision, the enterprise must settle the contract in accordance with current regulations.

17. For violations stipulated in Articles 19 and 20 of Decree 138/2004/NĐ-CP:

a) When discovering acts of carrying foreign currency, gold, or Vietnamese currency contrary to the law, it must be examined and compared with the provisions of Articles 153 and 154 of the Penal Code to determine whether it is an administrative violation or a criminal offense. If it is a criminal offense, it shall be handled according to criminal procedure.

b) In cases of carrying foreign currency or gold when exiting the country and violating the customs declaration regulations, if the value of the contraband is equivalent to VND 70,000,000, they shall be punished according to point b, Clause 1, Article 19 of Decree 138/2004/NĐ-CP; if the value of the contraband is equivalent to more than VND 70,000,000 but less than VND 100,000,000, they shall be punished according to point c, Clause 1, Article 19 of Decree 138/2004/NĐ-CP.

c) In cases of carrying foreign currency or gold when entering the country and violating the customs declaration regulations, if the value of the contraband is equivalent to VND 50,000,000, they shall be punished according to point a, Clause 2, Article 19 of Decree 138/2004/NĐ-CP; if the value of the contraband is equivalent to more than VND 50,000,000 but less than VND 100,000,000, they shall be punished according to point b, Clause 2, Article 19 of Decree 138/2004/NĐ-CP.

d) In cases of carrying Vietnamese currency when exiting or entering the country and violating the customs declaration regulations, if the amount of the contraband is VND 20,000,000, they shall be punished according to Clause 1, Article 20 of Decree 138/2004/NĐ-CP; if the amount of the contraband is more than VND 20,000,000 but less than VND 100,000,000, they shall be punished according to Clause 2, Article 20 of Decree 138/2004/NĐ-CP.

đ) The value of the contraband is the value after deducting the amount of foreign currency, gold, and Vietnamese currency that does not need to be declared according to the law.

III. AUTHORITY TO IMPOSE PENALTIES.

1. The authority to impose administrative penalties of customs authorities at various levels as stipulated in Article 22 of Decree 138/2004/NĐ-CP applies to each individual act of administrative violation. In cases of fines, the authority to impose penalties is determined based on the maximum level of the fine prescribed for each specific act of violation.

In cases where a person commits multiple acts of administrative violations related to customs, the authority to impose penalties shall be determined as follows:

- If the form and level of penalty prescribed for each act all fall within the authority of the person imposing the penalty as stipulated in Clauses 1, 2, 3, and 4 of Article 22 of Decree 138/2004/NĐ-CP, then the authority to impose penalties still belongs to that person.

- If the form and level of penalty prescribed for one of the acts exceed the authority of the person imposing the penalty, that person must transfer the case file and contraband to the competent authority to impose penalties according to general regulations.

2. For cases of administrative violations with a maximum fine exceeding VND 20,000,000, the Director of the General Department of Customs shall process the transfer of the case file to the People's Committee of the province or centrally governed city (hereinafter referred to as the Provincial People's Committee) where the violation was discovered for the Chairman of the Provincial People's Committee to issue a penalty decision.

- The case file of administrative violations related to customs when transferred to the Chairman of the Provincial People's Committee must be accompanied by a summary of the incident and the opinion of the Director of the General Department of Customs on the measures to be taken. The procedures for transferring case files of administrative violations related to customs with a maximum fine exceeding VND 20,000,000 to the Provincial People's Committee must be carried out strictly in accordance with general regulations. The time limit for examination and resolution at each level is as follows:

Within ten days from the date of issuance of the administrative violation record, the Director of the Customs Office must submit the file and recommend the form of administrative penalty to the Chairman of the Provincial People's Committee for consideration and decision. For cases with many complex circumstances or when additional time is needed to verify and collect evidence, the above period shall not exceed thirty days from the date of issuance of the administrative violation record. The contraband items are kept at the customs warehouse for preservation. Specifically, precious metals, gems, and precious stones must be sealed and sent to the State Treasury., precious metals and gemstones must be sealed and sent to the State Treasury;

- Administrative violations transferred by the customs agency to the Chairman of the Provincial People's Committee for handling within their authority, after receiving the penalty decision from the Chairman of the Provincial People's Committee, the Director of the Customs Office responsible for handling the administrative violation case shall be responsible for enforcing the penalty decision. Monthly, the Director of the Customs Office must report on the implementation of the administrative penalty decision of the Chairman of the Provincial People's Committee to the General Department of Customs Director.

3. For administrative violations discovered and seized by units under the Anti-Smuggling Investigation Bureau where the penalty exceeds the authority of the Anti-Smuggling Control Team Leader and the Sea Control Squadron Leader under the Anti-Smuggling Investigation Bureau, the penalty authority shall be exercised by the Director of the Anti-Smuggling Investigation Bureau under the General Department of Customs according to general regulations.

4. For administrative violations within the penalty authority of the Director of the Anti-Smuggling Investigation Bureau and the Chairman of the Provincial People's Committee, if tax recovery is also required in addition to the penalty, the Director of the relevant Customs Office shall issue a tax recovery decision upon request of the authorized penalty authority.

5. For administrative violations still within the penalty period discovered by the Post-Clearance Inspection Bureau under the General Department of Customs, if the penalty level falls within the authority of the Director of the Customs Office, it shall be transferred to the Customs Office managing the locality where the incident occurred for enforcement of the penalty. In cases where the violation falls within the authority of the Director of the Anti-Smuggling Investigation Bureau, it shall be transferred to the Anti-Smuggling Investigation Bureau under the General Department of Customs for handling according to its authority.

6. The penalty authority of the Director of the Customs Office and the Head of the Customs Branch under tax laws shall be implemented according to the provisions of those tax laws.

IV. IMPLEMENTATION OF MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS AND ENSURE THE ENFORCEMENT OF ADMINISTRATIVE PENALTIES

1. When applying the measure of temporarily detaining individuals through administrative procedures, the following principles must be adhered to:

a) Only those persons authorized under Article 25 of Decree 138/2004/NĐ-CP may decide to temporarily detain individuals through administrative procedures;

b) The temporary detention of individuals must be decided in writing and a copy must be handed over to the detained individual;

c) Individuals may only be temporarily detained through administrative procedures in cases where it is necessary to collect and verify important circumstances as a basis for issuing an administrative penalty decision or to immediately prevent or stop administrative violations.

2. Temporary detention of contraband items and means of transportation involved in administrative violations.

a) When applying the preventive measure of temporarily detaining contraband items and means of transportation involved in administrative violations, the provisions of Article 26 of Decree 138/2004/NĐ-CP must be followed. In a consignment containing goods and items that are contraband and goods and items that are not contraband, only the contraband goods and items may be detained. If it has not been determined whether a violation has occurred, only samples of the goods should be taken as a basis for determination.

Organizations and individuals who fail to comply with the regulations on the application of the temporary detention of contraband items and means of transportation, causing material damage to the owner of the goods, the Director of the Customs Office or the head of the unit directly superior to the person making the temporary detention decision or the person authorized by the General Department of Customs must bear responsibility for compensating the material damage to the owner of the goods according to Articles 7, 8, 9, 10, and 11 of Decree 47/CP dated May 3, 1997 of the Government on compensation for damage caused by state officials, civil servants, and persons with authority in judicial proceedings;

b) Persons authorized to make decisions to temporarily detain individuals through administrative procedures have the right to make decisions to temporarily detain contraband items and means of transportation through administrative procedures;

c) The Team Leader of the Enforcement Team may only make decisions to temporarily detain contraband items and means of transportation involved in administrative violations in cases of immediate detection of illegal acts, if this measure is not applied immediately, the contraband items and means of transportation will be disposed of, replaced, or hidden to erase evidence. Within twenty-four hours from the date of issuance of the decision, the person making the decision must report to their direct supervisor and obtain their written approval.

3. Examination of individuals through administrative procedures.

The authority and procedure for examining individuals through administrative procedures must comply with the conditions stipulated in Article 27 of Decree 138/2004/NĐ-CP.

4. Examination of transport vehicles and objects through administrative procedures.

a) The authority and procedure for examining transport vehicles and objects through administrative procedures must comply with the conditions stipulated in Article 28 of Decree 138/2004/NĐ-CP;

b) The examination of transport vehicles and objects of individuals entitled to diplomatic privileges and immunities or consular immunities must comply with the provisions of international treaties to which Vietnam is a party and must be approved by the General Department of Customs Director.

When there is sufficient evidence to confirm that the luggage of individuals entitled to diplomatic privileges or consular immunities contains items not entitled to such privileges, or items prohibited from export or import by the Vietnamese government, or items that do not comply with Vietnamese quarantine regulations, the search shall be carried out according to the decision of the General Department of Customs Director, in the presence of a diplomatic official or a representative authorized by them.

5. Examination of places concealing contraband items and means of transportation involved in administrative violations.

When it is deemed necessary to search for hidden objects or means of administrative violations within the customs territory, those persons with authority as stipulated in Article 25 of Decree 138/2004/NĐ-CP have the right to issue a decision to conduct such searches. The search for hidden objects or means of administrative violations shall be carried out in accordance with the provisions of Article 49 of the Administrative Violation Handling Ordinance and Article 29 of Decree 138/2004/NĐ-CP.

V. PROCEDURES FOR ADMINISTRATIVE PENALTY AND IMPLEMENTATION OF DECISIONS ON ADMINISTRATIVE PENALTIES.

1. When imposing an administrative penalty in the customs area in the form of a warning or a fine up to 100,000 VND, there is no need to prepare an administrative violation record but rather issue the administrative penalty decision on the spot.

2. An administrative penalty decision becomes effective from the date of signature, except in cases where the decision specifies a different effective date. Within ten days from the date of receiving the administrative penalty decision, individuals or organizations subject to the penalty must comply with the decision of the competent authority.

3. The time limit for issuing an administrative penalty decision is ten days from the date of preparing the administrative violation record; for complex administrative violation cases, the time limit for issuing the administrative penalty decision is thirty days. In cases where additional time is required for verification and evidence collection to issue the administrative penalty decision, the competent authority must report in writing to its immediate superior for an extension, which cannot exceed thirty days.

4. For cases exceeding the authority to impose penalties but not yet transferred by the Director of the Customs Department to the Chairman of the Provincial People's Committee due to incomplete investigation, if an extension of the time limit for issuing the administrative penalty decision is needed, the Director of the Customs Department must report to the General Director of the General Department of Customs to request an extension.

5. In cases where the deadline for compliance with the administrative penalty decision has been exceeded and the party does not voluntarily comply, the Director of the Customs Department and the Director of the Anti-Smuggling Investigation Department shall issue a compulsory enforcement decision and organize the enforcement of their own and subordinate decisions.

VI. SETTLEMENT OF COMPLAINTS.

1. Authority to settle complaints.

The person who issues the administrative penalty decision or the decision to apply preventive measures and ensure the implementation of administrative penalties related to customs has the responsibility to settle the first-level complaint.

For administrative penalty decisions made by the Head of the Enforcement Team, the Head of the Customs Office will settle the second-level complaint.

For administrative penalty decisions made by the Head of the Customs Office or the Head of the Control Team under the Customs Department, the authority to settle the second-level complaint is the Director of the Customs Department. For administrative penalty decisions made by the Head of the Anti-Smuggling Control Team and the Head of the Sea Control Squadron under the Anti-Smuggling Investigation Department of the General Department of Customs, the authority to settle the second-level complaint is the Director of the Anti-Smuggling Investigation Department of the General Department of Customs.

For administrative penalty decisions made by the Chairman of the Provincial People's Committee, the authority to settle the second-level complaint is the Minister of Finance.

For administrative penalty decisions or decisions to apply preventive measures related to customs that have been settled by the Director of the Customs Department or the Director of the Anti-Smuggling Investigation Department but still have complaints, the next authority to settle the complaint is the General Director of the General Department of Customs.

For administrative complaint settlement decisions made by the General Director of the General Department of Customs but still have complaints, the authority to settle is the Minister of Finance.

Acceptance of complaints.

a) Upon receipt of a complaint letter, the relevant provisions of Articles 30, 31, 32, 36, 39, 43, and 46 of the Law on Complaints and Petitions must be considered to examine the complaint regarding the time limit, statute of limitations, authority to settle complaints, and related contents to decide whether to accept or not accept the complaint;

b) Within ten days from the date of receipt of the complaint document, the person responsible for settling the complaint must accept and process the complaint and notify the complainant in writing; in cases where the complaint is not accepted for processing, a written notification must be issued explaining the reasons.

3. Time limit for settling complaints.

a) The time limit for settling the first-level complaint does not exceed thirty days from the date of acceptance for processing (the date recorded in the acceptance register and notified in writing to the complainant); for complex cases, the time limit for settling the complaint may be extended, but not exceeding forty-five days from the date of acceptance. In remote areas with difficult access, the time limit for settling the first-level complaint does not exceed forty-five days from the date of acceptance; for complex cases, the time limit for settling the complaint may be extended, but not exceeding sixty days from the date of acceptance for processing;

b) The time limit for settling each subsequent complaint does not exceed forty-five days from the date of acceptance for processing; for complex cases, this time limit may be extended but not exceeding sixty days. In remote areas with difficult access, the time limit for settling each subsequent complaint does not exceed sixty days from the date of acceptance for processing; for complex cases, this time limit may be extended, but not exceeding seventy days from the date of acceptance for processing;

c) During the process of settling complaints, if it is determined that the execution of the complained administrative penalty decision will cause irreparable consequences, the person responsible for settling the complaint must issue a decision or recommend the competent authority to issue a decision temporarily suspending the execution of that decision.

The temporary suspension period shall not exceed the remaining time of the complaint settlement period. The temporary suspension decision must be sent to the complainant and the interested parties. If the grounds for temporary suspension no longer exist, the decision must be immediately revoked.

4. Content of the complaint settlement decision.

When settling complaints about administrative penalty decisions, the person responsible for settling the complaint must base on Article 38 (first-level complaint resolution) and Article 45 (subsequent complaint resolution) of the Law on Complaints and Petitions and the model seal for complaint resolution to issue the complaint settlement decision.

The handling of complaints against decisions on administrative penalties, decisions on preventive measures, and guarantees for the enforcement of administrative penalties shall be periodically reported to the General Department of Customs according to their respective authorities.

VII. IMPLEMENTATION.

1. The direct head of the person authorized to impose penalties shall be responsible for reviewing the penalty decisions made by subordinate levels. The Legal Affairs Department under the General Department of Customs shall be responsible for coordinating with relevant Departments and Bureaus under the General Department of Customs to review customs administrative penalty decisions, and to check compliance with the law during the implementation of penalties and complaint resolution related to administrative violations, ensuring that customs administrative penalties comply with legal regulations.

2. The Heads of the Customs Bureau and the Anti-Smuggling Investigation Bureau under the General Department of Customs shall organize strict checks on the implementation of the content, principles, and procedures for imposing administrative penalties within their units.

At each Customs Branch and Control Team under the Customs Bureau, staff must be assigned to monitor, guide, and inspect the imposition of administrative penalties by specialized teams; promptly resolve complaints regarding the application of preventive measures for administrative violations and administrative penalty decisions as prescribed.

3. Staff monitoring and guiding the implementation of administrative penalties must be selected from well-trained, honest officials who are knowledgeable about the law and specialized in their field.

4. The collection and payment of fines for administrative violations shall be carried out in accordance with guidelines issued by the Ministry of Finance. The General Department of Customs shall be responsible for checking the implementation of the collection and payment system according to current regulations.

5. Customs officials authorized to impose penalties, apply preventive measures for administrative violations, or tasked with advising those authorized to impose customs administrative penalties; if they violate the principles or procedures for imposing administrative penalties as stipulated by law, or show a lack of responsibility or engage in harassment or corruption, they will be dealt with strictly according to the law depending on the severity of the violation; if they cause material damage to individuals or organizations, they must compensate according to the law.

This Circular takes effect fifteen days after its publication in the Official Gazette. Circular No. 08/2000/TT-TCHQ dated November 20, 2000, of the General Department of Customs is hereby repealed./.