Law Amending and Supplementing Certain Provisions of the Customs Law No. 42/2005/QH11

LAW

Amending and Supplementing Certain Provisions of the Customs Law

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Pursuant to the Constitution of the Socialist Republic of Vietnam in 1992, as amended and supplemented by Resolution No. 51/2001/QH10 dated December 25, 2001 of the Tenth National Assembly, tenth session;

This Law amends and supplements certain provisions of the Customs Law which was adopted by the National Assembly of the Socialist Republic of Vietnam on June 29, 2001.

Article 1. Amending and supplementing certain provisions of the Customs Law:

1. Clause 2 shall be amended and supplemented as follows:

"Article 2. Scope of Regulation

This Law stipulates state management over customs for goods exported, imported, transited, means of transport exiting, entering, and transiting the territory of organizations and individuals within and outside the country in the customs territory; regarding the organization and activities of Customs."

2. Clause 18 shall be added to Article 4 as follows:

"18. The customs territory includes areas within the territory of the Socialist Republic of Vietnam, in the exclusive economic zone and continental shelf of Vietnam where the Customs Law is applied."

3. Article 5a shall be added after Article 5 as follows:

"Article 5a. International Cooperation Activities of Customs

In accordance with its functions and the provisions of the law, within the scope of authority delegated, the Vietnam Customs has the responsibility:

1. To implement the rights, obligations, and interests of the Socialist Republic of Vietnam at the World Customs Organization;

2. To negotiate, sign, and organize the implementation of bilateral international agreements with foreign customs;

3. To organize the exploitation, exchange of information, and business cooperation with customs of other countries and related international organizations."

4. Article 8 is amended and supplemented as follows:

"Article 8. Modernizing Customs Management

1. The State prioritizes investment and encourages organizations and individuals to participate in developing advanced technology and technical equipment to ensure the application of modern customs management methods; encourages organizations and individuals engaged in export and import activities to participate in building and implementing electronic transactions and electronic customs procedures.

2. The Government shall specify the standards for electronic data exchange systems, the legal value of electronic documents in accordance with the provisions of the law on electronic transactions; responsibilities, authorities of customs agencies at all levels, relevant state agencies, organizations, and individuals involved in export, import, exit, entry activities in implementing electronic customs procedures; incentives measures as provided for in Clause 1 of this Article."

5. Article 11 is amended and supplemented as follows:

"Article 11. Tasks of Customs

The Vietnam Customs has the task of inspecting and supervising goods and means of transport; preventing and combating smuggling and illegal transportation of goods across borders; organizing the implementation of tax laws on exported and imported goods; statistics on exported and imported goods; proposing policies and measures for state management of customs in export, import, exit, entry, transit activities and tax policies for exported and imported goods."

6. Clause 1 of Article 13 shall be amended and supplemented as follows:

"1. The organizational system of the Vietnam Customs includes:

a) General Department of Customs;

b) Provincial, inter-provincial, and centrally-administered city Customs Bureaus;

c) Customs Sub-bureaus at border gates, Customs Control Teams, and equivalent units."

7. Clause 3 shall be added as follows:

"3. It is strictly prohibited for customs officials to cover up, collude to facilitate smuggling, commercial fraud, tax evasion; cause inconvenience and difficulties in customs procedures; accept bribes; misappropriate temporarily detained goods and engage in other acts for personal gain."

Article 14 is as follows:

8. Clause 1a shall be added after Clause 1 of Article 15 as follows:

"1a. Customs inspection shall be carried out based on analyzing information, assessing the compliance with the law by the declarant, the level of risk of violating customs laws to ensure state management of customs and not to create difficulties for export and import activities;"

9. Article 16 shall be amended and supplemented as follows:

"Article 16. Customs Procedures

1. When handling customs procedures, the declarant must:

a) Declare and submit the customs declaration form; submit and present documents included in the customs file; in cases of implementing electronic customs procedures, the declarant may declare and send the customs file through the electronic data processing system of Customs;

b) Deliver goods and means of transport to the location specified for physical inspection of goods and means of transport;

c) Pay taxes and fulfill other financial obligations as prescribed by law.

2. When handling customs procedures, customs officials must:

a) Accept and register the customs file; in cases of implementing electronic customs procedures, the acceptance and registration of the customs file shall be conducted through the electronic data processing system of Customs;

b) Inspect the customs file and physically inspect goods and means of transport;

c) Collect taxes and other revenues as prescribed by law;

d) Decide on the clearance of goods and means of transport."

"Article 17. Location for Handling Customs Procedures

10. Article 17 shall be amended and supplemented as follows:

The location for handling customs procedures is the office of the Customs Sub-bureau at border gates or the office of the Customs Sub-bureau outside border gates.

In cases of implementing electronic customs procedures, the place accepting and processing the customs file may be the office of the Provincial, inter-provincial, or centrally-administered city Customs Bureau.

In necessary cases, the physical inspection of exported and imported goods may be conducted at another location decided by the Director-General of the General Department of Customs."

11. Clause 1 and Clause 2 of Article 18 shall be amended and supplemented as follows:

"1. Imported goods shall be declared before the goods arrive at the port or within thirty days from the date of arrival at the port; the customs declaration form shall be valid for customs procedures within fifteen days from the date of registration;

2. Exported goods shall be declared at the latest eight hours before the means of transport exits; the customs declaration form shall be valid for customs procedures within fifteen days from the date of registration;"

12. Clause 1 of Article 20 shall be amended and supplemented as follows:

"1. Customs declaration shall be uniformly implemented in accordance with the regulations of the Ministry of Finance."

"Article 22. Customs File

13. Article 22 is amended and supplemented as follows:

1. The customs file includes:

a) Customs declaration form;

b) Commercial invoice;

c) Goods purchase and sale contract;

c) Sales contract;

d) A permit issued by the competent state agency for exported, imported, transited goods, means of transport exiting, entering, or transiting the country, as required by law.

đ) Other documents as prescribed by law for each specific item that the declarant must submit or present to the customs authority.

The customs declaration dossier may be in paper form or electronic form. An electronic customs declaration dossier must ensure its integrity and format as prescribed by law.

2. The customs declaration dossier shall be submitted or presented to the customs authority at the customs office premises. In cases where there are valid reasons, with the consent of the head of the customs authority receiving the customs declaration dossier, the declarant may be granted an extension of time to submit or present certain documents within the customs declaration dossier; supplement, amend, or replace the customs declaration form registered before the actual inspection date of the goods or means of transport, or before the actual inspection exemption date of the goods; submit the summary customs declaration form and complete the customs declaration form within the prescribed period; declare once for multiple exports or imports within a specified period for a particular item.

14. Article 23 shall be amended and supplemented as follows:

“Article 23. Rights and Obligations of the Declarant

1. The declarant has the following rights:

a) To receive information from the customs authority related to the customs declaration for exported, imported, transited goods, means of transport exiting, entering, or transiting the country, and guidance on customs procedures;

b) To inspect the goods and take samples under the supervision of customs officials before declaring to ensure the accuracy of the declaration;

c) To request the customs authority to re-inspect the goods already inspected if they disagree with the decision of the customs authority when the goods have not been cleared;

d) To lodge complaints or reports against violations of the law by the customs authority or customs officials;

đ) To claim compensation for losses caused by the customs authority or customs officials according to the law;

e) To use the electronic customs declaration dossier to clear goods;

g) To request the customs authority to confirm in writing when requiring the submission or supplementation of documents outside the prescribed customs declaration dossier.

2. The declarant has the following obligations:

a) To declare customs and comply with the provisions of Clause 1 Article 16, Articles 18, 20, and 68 of this Law;

b) To bear legal responsibility for the authenticity of the declared content and submitted documents, and for the consistency of the information between the paper dossier kept by the enterprise and the electronic dossier;

c) To implement decisions and requirements of the customs authority or customs officials regarding customs procedures for goods and means of transport as prescribed by this Law;

d) To retain the customs declaration dossier for exported or imported goods that have been cleared for five years from the date of registering the customs declaration form; to keep accounting books, accounting documents, and other relevant documents for exported or imported goods that have been cleared for the period prescribed by law; to present the dossier, provide information, and supply documents when requested by the customs authority for inspection as prescribed in Articles 28, 32, and 68 of this Law;

đ) To arrange personnel to serve the actual inspection of goods and means of transport;

e) To pay taxes and fulfill other financial obligations as prescribed by law;

g) Not to engage in smuggling, commercial fraud, tax evasion, bribery, or other acts aimed at improper gain.”

15. Clause 4 Article 25 is amended and supplemented as follows:

“4. For exported or imported goods that require appraisal to determine whether they can be exported or imported, if the consignor requests to return the goods for storage, the customs authority will only accept such requests if the conditions for customs supervision are met.

For goods permitted to be exported or imported but require valuation, appraisal, analysis, and classification to determine the amount of tax payable, clearance will occur after the consignor fulfills their tax obligations based on self-declaration and calculation of tax, provided that the conditions stipulated in point b, clause 2, and clause 3 of this Article are met. The final tax payable will be determined after the results of the valuation, appraisal, analysis, and classification are obtained.”

16. Clause 2a is added after Clause 2 Article 27 as follows:

“2a. To confirm in writing when requesting the declarant to submit or supplement documents outside the prescribed customs declaration dossier.”

17. Article 28 is amended and supplemented as follows:

“Article 28. Inspection and Registration of Customs Declaration Dossier

The inspection and registration of the customs declaration dossier shall be carried out as follows:

“1. Paper dossiers shall be inspected and registered in one of the following forms:

a) The customs declaration dossier of consignors who comply well with customs laws shall be registered after the customs authority checks the completeness of the required information on the customs declaration form and the number of accompanying documents;

b) The customs declaration dossier not covered by point a, clause 1 of this Article shall be registered after the customs authority conducts a detailed inspection. Upon receipt of the customs declaration dossier, the customs official shall check the declaration according to the required information on the customs declaration form, the documents within the customs declaration dossier, and the consistency between the declaration and the documents within the customs declaration dossier; register the customs declaration dossier according to the law; in case of refusal to register the customs declaration dossier, the reason must be notified to the declarant.

2. Electronic dossiers shall be inspected, registered, and classified through the electronic data processing system of the customs authority.”

18. Clause 2 Article 29 is amended and supplemented as follows:

“2. The head of the customs authority receiving and processing the customs declaration dossier decides on the form of actual inspection of exported or imported goods and changes to the inspection form as prescribed in Article 30 of this Law.”

19. Article 30 is amended and supplemented as follows:

“Article 30. Forms of Actual Inspection of Exported or Imported Goods for Clearance

1. Goods exported or imported falling into one of the following categories are exempt from actual inspection:

a) Exported goods, except for goods produced from imported raw materials and goods subject to conditions for export;

b) Goods from foreign countries brought into free trade zones, transit ports, bonded warehouses; goods in transit; emergency relief goods; goods specifically used directly for national defense and security; humanitarian aid goods and temporarily imported goods with a specified period.

c) Imported goods that are machinery and equipment constituting fixed assets eligible for tax exemption under investment projects.

2. In addition to the cases stipulated in Clause 1 of this Article, exported and imported goods of consignors who comply well with customs laws, and goods in special cases as decided by the Prime Minister shall also be exempted from physical inspection.

3. Exported and imported goods of consignors who have repeatedly violated customs laws; goods exempted from physical inspection as stipulated in Clause 1 and Clause 2 of this Article, if found to have signs of violating customs laws, must undergo physical inspection.

4. Goods not covered by the provisions of Clause 1 and Clause 2 of this Article, based on the results of information analysis from databases, customs intelligence, agencies, organizations, individuals, and foreign customs, if determined to have the potential to violate customs laws, must undergo physical inspection.

5. Physical inspection of goods shall be conducted directly by customs officers or through the use of technical machinery and equipment, other business methods, in the presence of the declarant or their authorized representative after registering the customs declaration form and the goods have been transported to the inspection location.

6. Live animals and plants, goods difficult to preserve, and other special goods shall be prioritized for inspection.

The Government shall specify the level of physical inspection of goods as stipulated in Clause 3 and Clause 4 of this Article.

20. Article 32 is amended and supplemented as follows:

"Article 32. Post-clearance Inspection

1. Post-clearance inspection is an activity of customs authorities aimed at:
a) Verifying the accuracy and honesty of the contents of documents declared, submitted, or presented by the consignor, the person authorized by the consignor, or the organization or individual directly exporting or importing goods that have been cleared, to the customs authority;

b) Verifying compliance with laws during the customs procedure for exported and imported goods.

2. Post-clearance inspection shall be carried out in the following cases:

a) There are signs of tax fraud, commercial fraud, or violations of export and import management regulations;

b) For cases not covered by point a of Clause 2 of this Article, decisions to conduct post-clearance inspections shall be made based on the results of information analysis from databases, customs intelligence, agencies, organizations, individuals, and foreign customs.

3. Within five years from the date of registration of the customs declaration for the exported or imported goods that have been cleared, the Director of the Provincial Customs Department, inter-provincial customs department, or central city customs department may issue a decision for post-clearance inspection. In necessary cases, the General Director of the General Customs Department may issue a decision for post-clearance inspection.

4. Based on the decision for post-clearance inspection, customs officers shall directly inspect accounting books, accounting documents, and other relevant documents related to the exported or imported goods that have been cleared at the enterprise to compare them with the customs declaration and documents in the customs file; if necessary and feasible, they shall conduct a physical inspection of the goods.

5. During the inspection process, upon request of the customs authority, relevant agencies, organizations, or individuals shall be responsible for creating conditions and providing accounting documents, information, and materials necessary for the customs inspection.

The Government shall specify detailed regulations on post-clearance inspection.

21. Article 57 is amended and supplemented as follows:

"Article 57. Principles for Temporarily Suspending Customs Procedures

1. The owner of intellectual property rights protected under Vietnamese law has the right to request long-term or specific cases for the customs authority to temporarily suspend customs procedures for exported or imported goods infringing intellectual property rights.

2. The customs authority can only decide to temporarily suspend customs procedures for exported or imported goods when all conditions stipulated in Article 58 of this Law are met.

3. Regulations on temporarily suspending customs procedures for exported or imported goods infringing intellectual property rights as stipulated in this Law shall not apply to non-commercial items and goods in transit."

22. Article 69 is amended and supplemented as follows:

"Article 69. Responsibilities of the Customs Authority in Organizing Tax Collection and Other Revenue

1. The General Customs Department shall uniformly organize the collection of taxes and other revenues from exported and imported goods; the application of measures to ensure the correct and full collection of taxes and other revenues according to the law.

2. The customs authority handling the export and import procedures of goods, within its functions and delegated powers, shall check the declaration, taxation, tax exemption, tax reduction, tax refund, non-taxation, and tax recovery of the declarant; collect taxes and manage tax payments; if the declarant incorrectly calculates the tax payable, after adjustment, the customs authority shall notify the declarant. The time limit for recovering or refunding the tax payable shall be implemented according to the provisions of the tax law."

23. Article 71 is amended and supplemented as follows:

"Article 71. Customs Value

The customs value serves as the basis for calculating taxes and statistics on exported and imported goods.

The customs value of exported and imported goods shall be determined in accordance with the provisions of the Law on Export Duties and Import Duties.

The Government shall specify detailed regulations on the customs value of exported and imported goods."

24. Clause 2 and Clause 3 of Article 74 are amended and supplemented as follows:

"2. The Ministry of Finance is responsible before the Government for uniformly managing state administration of customs.

3. Ministries and ministerial-level agencies within their respective duties and powers shall cooperate with the Ministry of Finance in managing state administration of customs."

Article 2

This Law shall take effect from January 1, 2006.

Article 3

The Government shall promulgate detailed regulations and provide guidance on the implementation of this Law.

This Law was adopted by the National Assembly of the Socialist Republic of Vietnam, the eleventh session, seventh meeting, on June 14, 2005.