Circular No. 96/2003/TT-BTC guides the implementation of Decree No. 102/2001/NĐ-CP dated December 31, 2001 of the Government detailing regulations on post-clearance inspection for exported and imported goods.

CIRCULAR

Guidelines for Implementing Decree No. 102/2001/NĐ-CP dated December 31, 2001

of the Government detailing post-clearance inspection

for exported and imported goods

_________________

Pursuant to the Customs Law No. 29/2001/QH10 dated June 29, 2001;

Pursuant to Decree No. 86/2002/NĐ-CP dated November 5, 2002 of the Government stipulating the functions, tasks, powers, and organizational structure of Ministries and ministerial-level agencies;

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

Pursuant to Decree No. 102/2001/NĐ-CP dated December 31, 2001 of the Government detailing post-clearance inspection for exported and imported goods;

The Ministry of Finance provides specific guidelines on certain aspects of post-clearance inspection as follows:

This technical regulation sets out technical requirements, testing methods, sampling procedures; management requirements; responsibilities of organizations and individuals producing, trading, and importing cigarettes.

1. Post-clearance Inspection

1.1. Post-clearance inspection is an activity conducted by customs authorities to verify the accuracy and truthfulness of the contents of documents submitted, filed, or presented by the goods owner or their authorized representative, directly exporting or importing organizations or individuals (hereinafter referred to as the inspected entity), with the customs authorities, in order to prevent and handle violations of customs laws, tax fraud, and breaches of export-import management policies concerning exported and imported goods that have been cleared.

1.2. The objects of post-clearance inspection include customs declaration documents, accounting documents, accounting ledgers, financial reports, electronic data, and other relevant papers related to exported and imported goods of organizations and individuals including declarants, customs agents; buyers, sellers, consumers of exported and imported goods; organizations and individuals storing and using exported and imported goods that have been cleared.

1.3. Scope of post-clearance inspection:

1.3.1. Post-clearance inspection shall only be carried out when there are signs of violation of customs laws regarding exported and imported goods that have been cleared.

1.3.2. Prior to and during the post-clearance inspection process, the customs authority must work with agencies such as Tax Authorities, Banks, Insurance Companies, Appraisers, Transporters, Freight Forwarders, and other relevant organizations and individuals to cross-check and verify the accuracy of documents and materials related to exported and imported goods that have been cleared, specifically:

- Lists of invoices for purchased and sold goods and services, tax declarations, financial reports... of the inspected entity;

- Payment documents through banks;

- Insurance documents;

- Inspection certificates, inspection results, analysis, classification of goods;

- Transportation contracts, bills of lading, and equivalent documents;

- Contracts, invoices, or delivery documents for goods;

- Documents and materials from other relevant organizations and individuals.

Relevant agencies, organizations, and individuals are responsible for creating conditions and providing documents, accounting ledgers, financial reports, necessary information, and materials directly serving the post-clearance inspection upon request in writing by the customs authority.

1.3.3In cases where it is necessary, for exported and imported goods that have been cleared and are still being stored at the inspected entity or other relevant organizations and individuals, the customs authority will conduct actual inspections of the goods to make accurate conclusions about the inspection content.

1.3.4. Within five years (60 months) from the date of clearance of exported and imported goods, the customs authority may apply post-clearance inspection measures if there are signs of violation of customs laws concerning those cleared goods.

2. Signs of Violation of Customs Laws

Specific signs of violation of customs laws are as follows:

2.1. When discovering signs that customs declaration documents are not legal or valid according to the prescribed format, content recording, procedural time (such as inconsistencies, inaccuracies, lack of consistency, lack of rationality between these documents within the relevant customs declaration file relating to information about the name of goods; quantity; weight; volume; brand; code number, tariff rate; nature; composition, structure; function; packaging method and other attributes of the goods).

2.2. When discovering signs of unreasonable declared value for duty purposes, not in accordance with the state's regulations on managing the value for duty purposes, such as:

2.2.1. Declaring incorrect value for duty purposes of exported and imported goods, actual payment amount or already paid amount;

2.2.2. Value for duty purposes of imported goods is excessively unreasonable and lower than:

- The domestic market price of such goods in Vietnam after deducting taxes, costs, and reasonable profit after import and/or

- The import price of identical or similar goods imported by other enterprises at the same time, same market, and same mode of delivery.

2.2.3. Actual payment method and time do not match the declaration in the customs declaration file and do not comply with state regulations;

2.2.4. Unreasonable declaration of transportation mode, transportation means, transportation distance, transportation route, freight charges.

2.2.5. Unreasonable declaration of insurance fees.

2.3. Information about origin, certificate of origin (C/O) of exported and imported goods does not conform to regulations and reality or has signs of forgery of the certificate of origin to enjoy preferential tax policies and trade fraud.

2.4. There are signs of fraud in enjoying preferential tax policies, trade fraud such as: Improper use, fraudulent consumption quota of raw materials, auxiliary materials for processing trade, imported goods for production of exported goods, exported and imported goods benefiting from exemption, reduction, refund of export tax, import tax as stipulated in the Export Tax Law, Import Tax Law, and other related Tax Laws, Foreign Investment Law, Domestic Investment Promotion Law...

2.5. The consignment shows signs of violating national policies on the management of exported and imported goods such as: Prohibited export goods, prohibited import goods; exported and imported goods under the permit of the Ministry of Trade or authorized agency but without a permit; exported and imported goods under specialized management but do not meet the conditions for export and import; goods violating the type of export and import; goods showing signs of violating customs procedures, customs inspection and supervision system such as taking advantage of the exemption from customs inspection or actual customs inspection of goods not exceeding 10%.

2.6. There is information about the content of the conclusion of the appraisal certificate, the results of analysis, classification of export and import consignments that do not correspond to the actual nature and utility of the goods; the authority, functions, scope of appraisal, analysis, and classification of goods do not comply with regulations for the purpose of commercial fraud and tax evasion.

2.7. Other suspicious signs.

3. Organization of collecting, analyzing, processing, and managing information

3.1. Sources of information collection:

 Signs of violations of customs laws are collected from various sources of information such as:

3.1.1. Within the Customs sector:

- Information from the clearance process, such as from the department receiving declaration forms, the department inspecting actual goods, the department calculating taxes, the department determining prices;

- Information from the review of customs files at various Customs Branches through regular and ad hoc reports;

- Information from business units under Provincial, Interprovincial, and City Customs Departments like Price Control Rooms, Anti-Smuggling Strategy and Handling Rooms, Business Units, Customs Control Teams, Inspections;

- Information from other Provincial, Interprovincial, and City Customs Departments where organizations and individuals exporting and importing declare customs declarations;

- Information from business units under the General Department of Customs such as the Anti-Smuggling Investigation Bureau, the Bureau of Customs Technology and Statistics, the Supervision and Management Control Department, the Import and Export Tax Inspection Department, the Legal Affairs Department, the International Cooperation Department, the General Department's Inspection Team, and the Export and Import Goods Classification Analysis Centers in Northern, Central, and Southern regions.

3.1.2. Information from units within the Finance sector:

- Units within the Tax sector;

- Units under the Financial Audit System at all levels;

- The Enterprise Finance Bureau;

- The Price Management Bureau and Appraisal Centers;

- Units under the State Treasury System;

- Other units under and directly affiliated with the Finance sector.

3.1.3. Information outside the Finance sector:

- Information from agencies outside the Finance sector: Ministry of Commerce, Market Management Agencies, Police Agencies, Forest Protection Agencies, Banks, Border Guard Forces, specialized inspection agencies under various Ministries responsible for specific sectors;

- Information from export and import businesses, particularly those importing identical or similar goods;

- Information obtained through mass media such as newspapers, radio, television, and the Internet;

- Information from public complaints, information from organizations and individuals inside and outside the sector.

3.1.4. Information obtained through cooperation with the World Customs Organization (WCO), the Customs Intelligence Organization (RILO), the ASEAN Customs Organization, and other international economic organizations.

3.1.5. Information from other sources.

3.2. Content of information analysis and classification:

After collection, the information must be analyzed and classified according to the following criteria:

3.2.1. Information on exporting and importing organizations and individuals: General information about exporters and importers (name, taxpayer code of the enterprise, address, account number, account code, industry, type of business, organizational structure, branches...); scope of operation; business field; type of export and import; foreign exporter and importer having trade relations with the inspected unit; financial status of the enterprise, data on compliance with customs laws (number of violations processed, level of processing...);

3.2.2. Information on exported and imported goods: Product, number of exports and imports, quantity of goods, taxable value, value of exported and imported goods, commodity code, tariff rate, origin, quantity, weight, brand name of goods and other information assessing the degree of commercial fraud of the goods;

3.2.3. Some other information: transportation route, means of transporting goods, prices of products in foreign markets...

3.3. Processing information:

After collection, analysis, the information is processed as follows:

3.3.1. For information on signs of violations of customs laws and commercial fraud of export and import consignments belonging to organizations and individuals with headquarters within the jurisdiction of the unit, research of customs files, verification of related issues, planning post-clearance inspections to accurately conclude on violations of customs laws and commercial fraud.

3.3.2. For information on signs of violations of customs laws and commercial fraud of export and import consignments belonging to organizations and individuals with headquarters outside the jurisdiction of the unit, a report clearly stating the violation signs is prepared, providing information about the consignment, about the exporting and importing organizations and individuals (if available), submitted to the competent authority for signature and transferred to the Provincial, Interprovincial, or City Customs Department where the exporting and importing organizations and individuals have their headquarters to conduct post-clearance inspections; Providing customs files and/or dispatching staff for cooperation if requested in writing by the Customs Department where the exporting and importing organizations and individuals have their headquarters.

3.4. The agency responsible for collecting, analyzing, processing, and managing information:

3.4.1. At Provincial, Interprovincial, and City Customs Departments:

- Within their administrative management area, Provincial, Interprovincial, and City Customs Departments are responsible for directing subordinate units to organize the collection of information from various sources, analyze, process, manage information, and notify each Customs Branch at border gates of signs of violations of customs laws and commercial fraud methods of exporting and importing organizations and individuals within their jurisdiction; Reporting to the General Department of Customs according to regular or ad hoc reporting systems;

- Customs Branches at border gates and business units under Provincial, Interprovincial, and City Customs Departments are responsible for collecting and providing information to the Post-Clearance Inspection Room; Cooperating with the Post-Clearance Inspection Room to detect signs of violations of laws and commercial fraud by exporting and importing organizations and individuals to serve post-clearance inspection work.

3.4.2. At the General Department of Customs:

- The Director of the General Department of Customs shall direct units under the General Department of Customs, provincial, inter-provincial, and municipal Customs Bureaus, customs checkpoints, inspection teams to collect, analyze, and manage domestic and foreign information to serve post-clearance inspection work. Specifically:

- The Post-Clearance Inspection Bureau shall be responsible for organizing the collection, analysis, classification, and processing of information; reporting fraudulent methods and signs of violations of laws by organizations and individuals engaged in export and import activities throughout the industry to enable provincial, inter-provincial, and municipal Customs Bureaus to take effective management measures and utilize such information efficiently.

- Business units under the General Department of Customs such as the Anti-Smuggling Investigation Bureau, the Information Technology and Statistics Bureau, the Supervision and Management Control Department, the Tax Collection Inspection Department, the Legal Affairs Department, the International Cooperation Department, the Inspectorate of the General Department, and the Export and Import Goods Classification Centers in the North, Central, and South regions... shall have the responsibility to provide information on signs of violations of laws and commercial fraud by organizations and individuals engaged in export and import activities to the Post-Clearance Inspection Bureau; cooperate with the Post-Clearance Inspection Bureau when required in post-clearance inspection work.

Collected information must be strictly managed. The exchange and provision of information within the organization and outside the industry must follow regulations and ensure confidentiality. Gradually apply information technology to the collection, analysis, and management of information at all Customs units.

The Director of the General Department of Customs shall issue regulations detailing the system for collecting, analyzing, processing, and managing information to serve post-clearance inspection work.

4. Authority to sign post-clearance inspection decisions

4.1. The Director of the provincial, inter-provincial, and municipal Customs Bureau directly under the central government shall sign post-clearance inspection decisions for export and import consignments that have been cleared but show signs of violating customs laws by organizations and individuals engaged in export and import activities, whose headquarters operate and register tax codes within their jurisdictional areas.

The post-clearance inspection area of the provincial, inter-provincial, and municipal Customs Bureau units is according to the Appendix "List of post-clearance inspection areas under the provincial, inter-provincial, and municipal Customs Bureaus" issued together with this Circular.

4.2. The Director of the General Department of Customs shall sign post-clearance inspection decisions for cases showing signs of violations related to the management scope of multiple provincial, inter-provincial, and municipal Customs Bureaus directly under the central government or cases involving complex violations related to multiple parties.

II. CONTENT AND PROCEDURE FOR POST-CLEARANCE INSPECTION

Based on signs of violation of customs laws, if the Customs authority does not have sufficient grounds to handle the violation, it needs to conduct post-clearance inspections at organizations and individuals directly related to the export and import consignment to reach accurate conclusions.

1. Content of post-clearance inspection:

1.1. Inspect the accuracy and truthfulness of the contents declared on the customs declaration form, documents presented and submitted to the Customs authority, accounting books, financial reports, and other relevant documents concerning export and import goods suspected of violating customs laws.

1.2. Inspect actual export and import goods that have been cleared if they are still being held by the inspected unit or if the Customs authority has grounds to prove that these goods are currently being held and managed by other organizations and individuals.

1.3. Inspect compliance with tax laws regarding export and import goods; export and import management policies; customs procedures and supervision systems stipulated by law for various types of export and import goods.

2. Procedure for post-clearance inspection

The procedure for post-clearance inspection includes the following steps:

2.1. Preparation for inspection:

- Based on collected information, prepare an inspection plan clearly stating the purpose, requirements, content, scope, and time frame of the inspection;

- Forecast personnel for the inspection team and the team leader suitable for the job requirements;

- Prepare relevant documents for the inspection. If the inspected unit has its headquarters within the jurisdiction but registers customs declarations at another provincial or municipal Customs Bureau, request that bureau to provide the customs file retained at the Customs authority for inspection and comparison, or may propose to send staff to participate in the inspection. Study the customs file before issuing a post-clearance inspection decision;

- Verify some relevant information and documents before issuing a post-clearance inspection decision, such as verifying at banking agencies, insurance agencies, transportation agencies, local tax agencies, other enterprises engaged in similar export and import activities, and other organizations and individuals abroad;

- To conduct a post-clearance inspection, the Customs authority may invite the inspected unit to the Customs authority's office to explain and clarify signs of customs law violations discovered by the Customs authority. If there are sufficient grounds to conclude about these signs of violations, then a post-clearance inspection at the inspected unit is not necessary.

2.2. Issue the decision and specify the inspection period:

- Issue the post-clearance inspection decision according to the provisions of Article 6 of Decree No. 102/2001/ND-CP dated December 31, 2001 of the Government;

- The post-clearance inspection decision shall be notified in writing to the inspected unit at least five working days before the inspection begins;

- The maximum duration for direct inspection at the inspected unit for each inspection decision is five working days, calculated from the day the inspection team works directly with the inspected unit and the inspected unit ensures the full presentation of files and documents to the inspection team as prescribed.

- If the inspection period expires without completing the inspection content, a report must be submitted to the person who issued the post-clearance inspection decision to extend the inspection period; The maximum extension time is 5 (five) working days and can only be extended once. The extension decision must clearly state the extension period and the reasons for the extension, which will be notified to the inspected unit.

2.3. Announcing the post-clearance inspection decision:

When implementing the post-clearance inspection decision, the head of the inspection team must work with the head of the inspected unit or the person authorized by the head of the inspected unit and other individuals related to the inspection content to announce the post-clearance inspection decision.

2.4. Conducting inspections according to the post-clearance inspection decision content:

Based on the inspection content and scope recorded in the post-clearance inspection decision, the inspected unit has the responsibility to provide information and documents as required by the inspection team and bear legal responsibility for the accuracy of the provided information and documents.

Based on signs of violation of customs laws, based on the inspection content and scope specified in the post-clearance inspection decision, focus on inspecting the following contents:

- Inspecting the completeness, legality, validity, consistency, accuracy, and truthfulness of the customs declaration files retained at the inspected unit, comparing them with the customs declaration files retained at the Customs Office of the exported/imported goods subject to inspection;

- Inspecting accounting documents, accounting books, financial reports related to the exported/imported goods;

- Inspecting the actual goods if deemed necessary and still being stored at the inspected unit or the Customs Office has grounds to prove that the goods are currently being stored and managed by other organizations or individuals;

- Inspecting compliance with tax and other revenue regulations, compliance with export/import goods management policies, and other relevant legal provisions concerning the inspected unit's goods;

- Inspecting other documents related to the goods under inspection;

During the inspection of the above contents, if violations of customs laws are discovered, immediately prepare a record of such violations according to the regulations. The head of the inspection team must immediately report to the person who issued the post-clearance inspection decision when discovering violations exceeding their duties, powers, and authority to handle them promptly.

2.5Inspection conclusion record:

- At the end of the inspection, the inspection team must prepare an inspection conclusion record based on the collected evidence, comparing it with relevant legal texts and other regulations to conclude correctness or incorrectness, determine specific responsibilities of the inspected unit and other related organizations or individuals, recommend handling measures, corrective actions, and issues requiring further resolution;

- The inspection conclusion record must be signed by the head of the inspection team and the head of the inspected unit or the person authorized by the head of the inspected unit;

- In case the head of the inspected unit or the person authorized by the head of the inspected unit does not agree with the content of the inspection conclusion record, they must still sign the inspection conclusion record and have the right to write their opinion clearly in the record along with supporting documents, but they must still comply with the inspection team's conclusions. At the same time, they have the right to appeal to the person who signed the post-clearance inspection decision;;

- In case the inspected unit does not comply with the post-clearance inspection decision, does not provide complete files, documents, accounting books, financial reports, and other related documents for the post-inspection goods to the inspection team, refuses to sign the Inspection Conclusion Record, the head of the inspection team must clearly record their opinions in the Inspection Conclusion Record accompanied by witness statements, and simultaneously report to the person who signed the post-clearance inspection decision to apply appropriate measures against the inspected unit according to the law;

2.6. Implementing the inspection conclusions:

2.6.1. The head of the inspection team reports to the person who signed the post-clearance inspection decision about the implementation content and inspection results.

2.6.2. Based on the Inspection Conclusion Record and the Administrative Violation Record, the competent authority issues a decision to handle the violation according to the relevant legal provisions, specifically:

- For cases where administrative violations fall within the jurisdiction of the Customs Office, the person who signed the post-clearance inspection decision directs the competent authority to handle it according to the regulations;

- For cases where administrative violations do not fall within the jurisdiction of the Customs Office, the person who signed the post-clearance inspection decision transfers the file to the competent authorities for handling according to the law;

- For cases requiring back taxes and/or other revenues, the person who signed the post-clearance inspection decision provides a written opinion for the authorized person to issue a decision to collect back taxes according to the law;

- For cases requiring refunds of taxes and/or other revenues, the person who signed the post-clearance inspection decision notifies in writing and transfers the file to the Provincial/City Customs Office responsible for the clearance location to examine and implement the refund according to the regulations;

- For cases involving criminal liability due to violations, the person who signed the post-clearance inspection decision transfers all files to the competent authorities for examination and handling according to the law;

2.6.3. All fines and back taxes are deposited into the Customs Office's temporary holding account at the State Treasury in the province/city where the Customs Office is located. The settlement of related expenses and the finalization of the amount are carried out according to current regulations.

2.6.4. The Customs Office issuing the post-clearance inspection decision is responsible for:

||| Monitor and urge the inspected unit to implement the inspection conclusion. Apply coercive measures in accordance with the laws on tax and other relevant laws. The deadline for collecting overdue taxes, refunding overpaid taxes, imposing fines, and other forms of handling shall be carried out in accordance with the laws on tax and other relevant laws.

||| Report the inspection results to the General Department of Customs (Post-Clearance Inspection Department) for monitoring.

||| Notify the Provincial, Interprovincial, and Municipal Customs Departments, and the Border Gate Customs Sub-departments related to the inspection team's conclusions, and the measures to handle violations against the inspected unit, implemented by the person who signed the post-clearance inspection decision (if applicable).

||| III. SETTLEMENT OF COMPLAINTS AND REPORTS; HANDLING OF VIOLATIONS AND REWARDS.

1. ||| Settlement of complaints:

1.1. Rights and obligations of the inspected unit in lodging complaints.

If the inspected unit disagrees with the decision to collect overdue taxes or the decision to handle violations, they must still comply with that decision and have the right to lodge a complaint to the competent authority for complaint resolution, specifically as follows:

||| The initial complaint resolution falls within the jurisdiction of the person who signed the violation handling decision. While waiting for the complaint to be resolved, the inspected unit must still comply with the customs authority's handling decision.

||| If the inspected unit disagrees with the initial complaint resolution decision or if the complaint has not been resolved beyond the time limit, the inspected unit has the right to lodge a complaint to the superior of the person who signed the violation handling decision according to the hierarchical procedure or to file a lawsuit in court as prescribed by law.

||| In cases where the inspected unit does not file a lawsuit with the court but continues to lodge a complaint to the Minister of Finance, the Minister of Finance's complaint resolution decision is the final decision.

1.2. ||| Powers and obligations of agencies in resolving complaints.

||| Agencies responsible for resolving the inspected unit's complaints must ensure timely resolution within the prescribed procedures and jurisdiction. If the complaint is outside their jurisdiction, they must transfer the case file or report it to the competent agency for resolution as prescribed, and simultaneously notify the inspected unit.

||| Agencies resolving complaints have the right to request the inspected unit to provide relevant files and documents related to the complaint. If the inspected unit refuses to provide files and documents, the complaint resolution agency may refuse to consider and resolve the complaint and notify the inspected unit.

1.3. ||| Complaint and report resolution procedures and deadlines:

||| Complaint and report procedures and deadlines; time limits, procedures, and jurisdiction for complaint resolution shall be carried out in accordance with the Law on Complaints and Reports and other relevant laws.

2. ||| Resolution of reports.

||| The inspected unit has the right to report on post-clearance inspections or the actions of post-clearance inspectors that violate the law.

||| Rights and obligations of the complainant and the accused; procedures and jurisdiction for resolving reports shall be carried out in accordance with the Law on Complaints and Reports and other relevant laws.

3. Handling of violations

3.1. ||| Customs officials who commit acts of violating the law on post-clearance inspections as stipulated in the Customs Law, Decree No. 102/2001/NĐ-CP dated December 31, 2001 of the Government detailing post-clearance inspections for exported and imported goods, and as stipulated in this Circular, shall be subject to disciplinary action or criminal prosecution depending on the nature and severity of the violation, and must compensate the inspected unit if damage is caused, in accordance with the law.

3.2. ||| Organizations and individuals who violate the law on post-clearance inspections, in addition to being required to pay overdue taxes, shall be subject to administrative penalties or criminal prosecution depending on the nature and severity of the violation, as prescribed by law.

||| 4. Rewards.

||| Customs authorities and customs officials who achieve outstanding results in post-clearance inspections; organizations and individuals who achieve outstanding results in cooperation and implementation of post-clearance inspections shall be rewarded in accordance with the law.

IV. IMPLEMENTATION

1||| The Director of the General Department of Customs is responsible for organizing the establishment of a database, regulations on collecting and exchanging information both domestically and internationally; establishing regulations on the relationship between organizations within and outside the sector to serve post-clearance inspections; issuing and guiding the implementation of the procedural guidelines for reviewing customs files at customs offices and conducting post-clearance inspections at inspected units; Organizing the implementation of post-clearance inspections in accordance with Decree No. 102/2001/NĐ-CP dated December 31, 2001 of the Government detailing post-clearance inspections for exported and imported goods and the guidance provided in this Circular.

2. ||| The Director of the General Department of Tax directs local Tax Bureaus and subordinate units to cooperate in collecting, exchanging information, and inspecting enterprises in accordance with the provisions of the law.

3||| The Director of the Price Management Bureau and the Heads of units under and affiliated with the Ministry of Finance are responsible for guiding subordinate units to coordinate with customs authorities at all levels in providing information and materials and organizing cooperation to implement post-clearance inspections when requested by customs authorities.

4. ||| This Circular takes effect fifteen days from the date of publication in the Official Gazette and abolishes Decision No. 1558/2001/QĐ-TCHQ dated December 28, 2001 of the General Department of Customs Director on post-clearance inspections for exported and imported goods./.