Circular No. 179/2011/TT-BTC dated December 8, 2011 of the Ministry of Finance guiding the handling of goods which are abandoned, strayed, mistakenly claimed or unclaimed after the expiration of the customs declaration time limit at seaports provided in Article 45 of the Customs Law, and other unclaimed goods

THE MINISTRY OF FINANCE

Circular No. 179/2011/TT-BTC of December 8, 2011, guiding the handling of goods which are abandoned, strayed, mistakenly claimed or unclaimed after the expiration of the customs declaration time limit at seaports provided in Article 45 of the Customs Law, and other unclaimed goods

Pursuant to Customs Law No. 29/2001/QH10 of June 29, 2011, and Law No. 42/2005/QH11 of June 14, 2005, Amending and Supplementing a Number of Articles of the Customs Law;

Pursuant to the Government’s Decree No. 97/2007/ND-CP of June 7, 2007, providing for the sanctioning of administrative violations and coercive execution of administrative decisions in the customs sector;

Pursuant to the Government’s Decree No. 18/2009/ND-CP of February 18, 2009, amending and supplementing a number of articles of Decree No. 97/2007/ND-CP of June 7, 2007, providing for the sanctioning of administrative violations and the coercive execution of administrative decisions in the customs sector;

Pursuant to the Government’s Decree No. 118/2008/ND-CP of November 27, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

After consulting the Ministry of Transport, the Ministry of Finance guides the handling of goods which are abandoned, strayed, mistakenly claimed or unclaimed after the customs declaration time limit at seaports provided in Article 45 of the Customs Law, and other unclaimed goods, as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular guides the order of handling goods which are abandoned, strayed, mistakenly claimed or unclaimed after the expiration of the customs declaration time limit at seaports provided in Article 45 of the Customs Law and goods collected by storage enterprises in the course of cargo loading and unloading; goods excessively imported as compared to bills of lading or other than those described in manifests which are unclaimed (below referred to as in-stock goods) and retained at seaports.

2. In-stock goods at international river ports, ICDs and CFSs shall be also similarly handled under the guidance in this Circular.

3. This Circular does not govern the following cases:

a/ Goods retained by sea shippers at Vietnamese seaports (which shall be handled under the Government’s Decree No. 46/2006/ND-CP of May 16, 2006);

b/ Unclaimed mails, postal matters and parcels (which shall be handled under Joint Circular No. 03/2004/TTLT-BBCVT-BTC of November 29, 2004, of the Ministry of Post and Telecommunications and the Ministry of Finance);

c/ Unclaimed in-stock goods, luggage and assets at Vietnamese airports (which shall be handled under the Ministry of Finance’s Circular No. 33/2004/TT-BTC of April 15, 2004);

d/ In-stock goods at bonded warehouses (which shall be handled under the guidance in the Ministry of Finance’s Circular No. 195/2010/TT-BTC of December 6, 2010);

e/ Goods which are abandoned, strayed, mistakenly claimed or unclaimed after the customs declaration time limit and show signs of violation of law.

Article 2. Subjects of application

This Circular applies to Vietnamese and foreign organizations and individuals involved in the handling of goods which are abandoned, strayed, mistakenly claimed or unclaimed after the customs declaration time limit and goods collected by storage enterprises in the course of cargo loading and unloading; goods excessively imported as compared to bills of lading or imported goods other than those described in manifests which are unclaimed.

Article 3. Interpretation of terms

In-stock goods guided in this Circular include:

1. Abandoned goods:

a/ Goods whose owners issue a written notification of the abandonment thereof; do not come to claim or do not reply after being informed by customs offices;

b/ Goods retained in Vietnam and left at seaports by sea shippers who issue a document to waive their right to retain them.

2. Strayed goods:

a/ Goods with consignees’ addresses in Vietnam, which are strayed to another country and later brought into Vietnam and are unclaimed;

b/ Goods sent to another country, but strayed to Vietnam and are unclaimed.

3. Goods mistakenly sent to consignees’ addresses in Vietnam and unclaimed.

4. Goods which have passed the customs declaration time limit, have been publicly announced in the mass media by customs offices, but are unclaimed.

5. Other goods stored at border gates and unclaimed:

a/ Goods collected by storage enterprises in the course of cargo loading and unloading;

b/ Goods excessively imported as compared to bills of lading or goods imported other than those described in manifests.

Chapter II

MONITORING AND ANNOUNCEMENT OF IN-STOCK GOODS

Article 4. Monitoring and classification of in-stock goods

1. Responsibilities of storage enterprises:

a/ To monitor, inventory and classify in-stock goods according to Form 01/2011/TB-KB, promulgated together with this Circular (not printed herein);

b/ To notify consignees or shipping companies/shipping agents/forwarding enterprises according to Clause 2, Article 5 of this Circular;

c/ To regularly inform the managing Customs Sub-Departments (below referred to as Customs Sub-Departments for short) of the situation of in-stock goods on the 5th of the subsequent month. Particularly for perishable goods, frozen goods, dangerous and hazardous chemicals and goods with their shelf lives to expire soon, to inform within 2 days after receiving written abandonment notices of goods consignees, or from the 91st day for goods stored at border gate areas for over 90 days counting from the date of arrival at the border gates for unloading;

d/ To arrange storage and preservation sites satisfying the customs supervision conditions for in-stock goods pending the handling;

e/ To join councils for handling abandoned goods.

2. Responsibilities of shipping companies/shipping agents/forwarding enterprises (below referred to as shippers for short):

Shippers shall notify the Sub-Customs Departments of the border gates of importation of the lists of bills of lading of goods which have been unclaimed for over 90 days after the date they arrive at these border gates according to Form 01/2011/TB-KB promulgated together with this Circular (not printed herein), enclosed with documents notifying the goods’ arrival at the border gates.

3. Responsibilities of Customs Sub-Departments:

a/ To coordinate with storage enterprises and shippers in summarizing, monitoring, inventorying, classifying and supervising the quantities of in-stock goods (according to Form No. 02/2011/TH-HQ, promulgated together with this Circular- not printed herein);

b/ To carry out announcement procedures according to Article 5 of this Circular.

Article 5. Announcement procedures

1. For lots of in-stock goods defined in Clauses 2, 3 and 4, Article 3 of this Circular:

Within 5 days after receiving storage enterprises’ notifications on lots of in-stock goods defined in Clauses 2, 3 and 4, Article 3 of this Circular, the managing Customs Sub-Departments shall announce the information on the goods lots on Vietnam Television, local television stations, the Customs Newspaper and Business Forum newspaper for 3 consecutive times, and concurrently publicly post up such information at their offices. Goods consignees will have 180 days from the date of announcement to come and claim the goods.

For perishable goods, frozen goods, and dangerous and hazardous chemicals, such announcement will be published for 2 consecutive times and goods consignees will have 30 days to come and claim the goods.

2. For other unclaimed goods defined at Point a, Clause 5, Article 3 of this Circular:

Within 30 days after the arrival of goods at a border gate for unloading, storage enterprises shall notify such to the goods consignees/shippers to come and take the goods according to Form No. 03/2011/TB-KB, promulgated together with this Circular (not printed herein); the notification shall be made twice within 30 days.

3. Past the time limit defined in Clause 1 or 2 of this Article, if nobody comes to claim the goods, the Customs Sub-Department shall compile a dossier proposing the handling under the guidance in Article 6 of this Circular.

4. If goods owners come to claim the goods within the said time limit, they shall be allowed to carry out procedures for importing the goods, and pay a fine for late carrying out customs procedures according to regulations on handling of customs-related administrative violations as well as all expenses related to the late receipt of goods. If the declaration is registered at a different Customs Sub-Department, such Customs Sub-Department shall notify in writing the Customs Sub-Department managing the in-stock goods for monitoring and carrying out subsequent procedures.

5. Cases exempt from announcement:

a/ Goods specified in Clause 1, Article 3 and at Point b, Clause 5, Article 3 of this Circular;

b/ Goods determined by customs offices to be goods banned from export or import, but not to be smuggled or fraudulently traded goods;

c/ If urgent handling is required to promptly stop or reduce damage to goods, humans and assets in the seaport area, the Customs Sub-Department shall coordinate with the storage enterprise and shipper in proposing the director of the Custom Department to take handling measures provided in this Circular without having to make announcement.

Chapter III

CONFISCATION AND COMPILATION OF DOSSIERS FOR HANDLING IN-STOCK GOODS

Article 6. Confiscation and compilation of dossiers for handling in-stock goods

1. Within 5 days after the expiration of the announcement time limit (180 or 30 days) specified in Article 5 of this Circular, the Customs Sub-Departments of the places where exist in-stock goods shall compile dossiers and propose the directors of the Customs Departments of provinces, inter-provinces or cities (referred to as Customs Departments for short) to issue confiscation decisions.

A proposal dossier comprises:

a/ The written proposal on handling in-stock goods;

b/ A detailed list of goods (their names, quantity of containers, weight, names/addresses of consignors and consignees, name of carrier and date of entry, serial number and date of the bill of lading, exporting country: 1 original;

c/ The official letters requesting Vietnam Television, local television stations, Customs Newspaper and Business Forum Newspaper to publish information on the goods lot or storage enterprise’s notification to goods consignee/shipper: 1 copy of each notice;

d/ The document notifying the goods abandonment or document evidencing the goods abandonment by their owner or shipper (if any): 1 original.

2. Within 5 days after receiving the Customs Sub-Department’s dossier proposing the handling, the director of the Customs Department shall in pursuance to Article 35 of the Government’s Decree No. 97/2007/ND-CP of June 7, 2007, and the guidance in this Circular issue a decision to confiscate in-stock goods (according to Form QD-34- Decision on confiscation of material evidence and means of administrative violations, promulgated together with Decree No. 97/2007/ND-CP) and send them to related organizations and individuals for compliance and concurrently send a written proposal to the provincial-level Department of Finance to form a council for handling in-stock goods, enclosed with a detailed list of in-stock goods.

Chapter IV

HANDLING OF IN-STOCK GOODS

Section 1

ORDER OF HANDLING IN-STOCK GOODS

Article 7. The handling council

1. Within 5 days after receiving a report of the Customs Department proposing the handling of in-stock goods, the director of the provincial-level Department of Finance shall issue a decision to form an in-stock goods handling council.

An in-stock goods handling council is composed of:

a/ The chairman: A leader of the provincial-level Department of Finance;

b/ The vice chairman: the manager of the storage enterprise concerned;

c/  Members:

c.1/ Representatives of the concerned Customs Department (Anti-Smuggling Advisory and Handling Section and Customs Sub-Department);

c.2/ Representatives of shippers/shipper’ agents (when necessary);

c.3/ Representatives of specialized management agencies such as provincial-level Departments of Natural Resources and Environment, Quarantine Sub-Departments,… (if the handling is related to environment, quarantine,…).

2. In the course of implementation, the council chairman may assign the storage enterprise (vice chairman) to handle in-stock goods under the guidance in Section 1 of this Chapter and specifically report on the handling result to the Council after the handling is completed.

3. The in-stock goods handling council may use the seal of the provincial-level Department of Finance for performing the council’s duties and shall disband after fulfilling its duties.

4. Based on the practical situation of in-stock goods in border gate areas under their management, the directors of provincial-level Departments of Finance may form a permanent council to handle in-stock goods in different periods of the year.

5. In the course of performing its duties, when necessary, the handling council may establish specialized sections to assist them (such as inventory section, classification section, secretariat,…) or hire lawfully established assessment organizations for asset quality assessment to serve the making of a plan on asset handling and valuation.

Article 8. Inventory, classification and issuance of decisions on handling of in-stock goods

Within 15 days after being formed (or 15 days after the receipt of a report proposing the handling of in-stock goods from the provincial-level Customs Department of the locality in which a permanent council operates), the in-stock goods handling council shall:

1. Open the seals of the goods or containers (if any);

2. Examine and classify in-stock goods;

3. Determine the value of in-stock goods;

4. Make a minutes of certification;

5. Issue a decision on destruction or liquidation of the goods (the whole lot or divided into smaller lots);

6. Hand over in-stock goods to the storage enterprise for management pending the handling.

Article 9. Forms of handling

1. Destruction, for useless goods (decayed, broken and deteriorated and expired goods) or goods banned from circulation under Vietnamese law.

2. Sale for liquidation, for usable goods.

a/ In-stock goods shall be sold through public auctions according to law or sold directly (not through auction) under Point b, Clause 2 of this Article.

b/ Cases of direct sale, not requiring auction:

b.1/ Fresh and raw goods easy to turn stale and get rotten and difficult to preserve;

b.2/ Processed foodstuffs and medicines with their shelf life to expire within 30 days;

b.3/ Other kinds of goods which must be promptly sold, otherwise they will get decayed or rotten or expire;

b.4/ Goods with an assessed value of under VND 100 million/lot.

c/ If the goods defined at Clause 2 of this Article are on the list of conditionally imported goods or the list of goods banned from export or import, the handling councils shall propose concerned specialized management agencies to issue import permits before the sale thereof.

Article 10. Implementation of handling decisions

1. For goods subject to destruction:

a/  Storage enterprises assume the prime responsibility for the destruction or hire licensed destruction organizations or units to conduct the destruction within the time limit set by the council. The destruction must be recorded in writing and directly supervised by the handling council.

A destruction record has the following major details: grounds and reasons for destruction; time and location of destruction; destruction participants; names, types, quantity and current conditions of goods at the time of destruction; form of destruction and other related matters.

b/ For goods of which the destruction will affect the environment, the consent and guidance of the local environment management agency must be obtained before the destruction.

2. For goods subject to liquidation sale:

a/ For goods of direct sale (not through auction):

On the basis of the assessed value of in-stock goods, the handling council shall assign the storage enterprise to sell them directly to organizations and individuals that wish to buy the goods through public sale or hire a professional auctioning organization (asset auction service center or enterprise) to sell the goods.

The sale of in-stock goods must be recorded in writing. A sale record has the following major details: grounds for sale; time and location of sale; seller; names, types, quantity and current conditions of goods at the time of sale; sale unit prices; payment value; buyers and other related matters.

b/ For auctioned goods:

b.1/ The reserve price is the price set by the handling council based on the value of in-stock goods (inclusive of taxes) as provided at Point a, Clause 2, Article 36a of the Government’s Decree No. 18/2009/ND-CP of February 18, 2009, amending and supplementing a number of articles of the Government’s Decree No. 97/2007/ND-CP of June 7, 2007.

b.2/ The handling council may assign the storage enterprise to directly organize the auction or hire a professional auction organization (asset auction service center or asset auction enterprise) to auction in-stock goods.

b.3/ The order and procedures for auctioning in-stock goods comply with the law on asset auction.

c/ Upon completion of the goods sale under Points a and b, Clause 2 of this Article, the storage enterprise shall report on the sale result and propose the handling council to issue a goods sale decision.

d/ Persons who have bought goods defined at Points a and b, Clause 2 of this Article shall pay money to the storage enterprise without having to carry out import procedures and pay import duty and fees.

3. When selling in-stock goods under Clause 2 of this Article, the handling council shall provided a set of dossier to buyers, comprising:

a/ Invoice of the sale of assets confiscated into state public funds, according to Form No. 01/TSSQ-3L.04, promulgated together with the Ministry of Finance’s Decision No. 12/2004/QD-BTC of January 9, 2004: 1 original;

b/ Decision on the sale of in-stock goods: 1 original;

c/ Ex-warehousing bill issued by the storage enterprise: 1 original;

d/ Permit of a competent agency for conditionally imported goods (if any): 1 copy.

Copies must be signed and sealed by the council chairman.

4. Within 15 days after receiving a complete set of goods purchase document, if buyers do not come to receive goods or do not bring goods out of the border gate area without a plausible reason, the council shall organize the re-handling of the in-stock goods under the guidance in Chapter IV of this Circular.

Section 2

POST-HANDLING FINANCIAL MANAGEMENT

Article 11. Post-handling financial management

The entire proceeds from the sale of in-stock goods paid by the purchasers shall be managed and used by storage enterprises according to Articles 12 and 13 of this Circular.

Article 12. Relevant spending items

1. Expenses for hiring of in-stock goods handling services, including:

a/ Inventory and classification of goods;

b/ Assessment of goods quality and value;

c/ Publication of information in the mass media;

d/ Printing of auction dossiers, payment of auction charges (in case of hiring a professional auction organization).

2. Storage expenses, including:

a/ Storage charges (for goods and containers, if any), calculated from the date the director of the Customs Department issues the confiscation decision;

b/ Goods handling expenses in the course of sale;

c/ Goods delivery and preservation expenses in the course of sale.

Storage expenses only apply to usable goods sold by the handling council.

3. Remuneration paid to council members in the course of sale (inventory, classification, assessment, valuation, sale planning and organization) comply with the Ministry of Finance’s regulations on working travel expenses. The number of paid days is the actual number of working days of council members.

4. Expenses for organization of destruction.

Article 13. Financial finalization

1. Within 10 days from the handling concludes (the date of completion of the destruction or the date of issuing the sale decision), storage enterprises shall summarize all expenses enclosed with relevant documents and report thereon to the handling councils for approval. Payment shall be made in priority order from Clause 1 to Clause 3, Article 12 of this Circular. If a goods lot is partially sold and partially destroyed, destruction expenses will be paid first.

If payment funds are not yet available, the storage enterprises shall advance their own funds for the payment.

2. The proceeds from the sale of in-stock goods, after paying the expenses specified in Article 12, shall be remitted into the state budget by storage enterprises according to the law on decentralization of state budget management within 5 days after the completion of the payment. If storage enterprises delay the remittance of these proceeds into the state budget within the set time limit, they shall pay a fine equal to 0.05% of the late-paid amount per day. Such penalty will be decided by the chairman of the handling council.

3. If the proceeds from the handling of in-stock goods are not enough to cover the expenses, the storage enterprises are entitled to use the proceeds from the handling of subsequent goods lots; if the proceeds remain insufficient for the expenses, the storage enterprises may carry forward the deficit to the following year.

Chapter V

ORGANIZATION OF IMPLEMENTATION

Article 14. Report on in-stock goods

Based on storage enterprises’ reports on goods in stock for more than 90 days and the results of customs supervision, on the 15th of the first month of every quarter, provincial-level Customs Departments shall summarize, review and make statistics on the quantity of in-stock goods lots and in-stock goods handling results in the quarter (according to form No. 04/2011/BC-HQ, promulgated together with this Circular- not printed herein) and send them to the General Department of Customs (via the Customs Management Supervision Department).

Article 15. Archive of in-stock goods handling dossiers

In-stock goods handling dossiers include handling proposal dossiers of Customs Sub-Departments and Customs Departments and handling dossiers of the handling councils, which must be archived according to regulations applicable to dossiers of export and import goods.

Article 16. Effect

1. This Circular takes effect 45 days from the date of its signing and replaces the Ministry of Finance’s Circular No. 05/2003/TT-BTC of January 13, 2003, guiding the handling of in-stock goods at Vietnamese seaports.

2. For in-stock goods lots arising before this Circular takes effect but not yet handled, they shall be handled in the order guided in this Circular.

3. Any problems arising in the course of implementation should be reported to the Ministry of Finance for consideration and settlement guidance.-

For the Minister of Finance
Deputy Minister
DO HOANG ANH TUAN