Decree No. 97/2007/ND-CP dated June 07, 2007 of the Government on handling administrative violations and enforcing the implementation of administrative decisions on customs

DECREE

ON HANDLING ADMINISTRATIVE VIOLATIONS AND ENFORCING THE IMPLEMENTATION OF ADMINISTRATIVE DECISIONS IN THE CUSTOMS AREA

THE GOVERNMENT

Pursuant to the Law on Government organization of December 25, 2001;

Pursuant to the Law on Customs of June 29, 2001 and the Law on amending and supplementing a number of articles of the Law on Customs of June 14, 2005;

Pursuant to the Law on Tax administration of November 29, 2006;

Pursuant to the Ordinance on Handling administrative violations of July 02, 2002;

At the proposal of the Minister of Finance,

DECREES:

Chapter 1:

HANDLING ADMINISTRATIVE VIOLATIONS IN THE CUSTOMS AREA

Section 1: GENERAL PROVISIONS

Article 1. Scope and subjects of application

1. This chapter prescribes the sanctions against administrative violations committed by individuals, organizations deliberately or unintentionally violating the provisions on the State management of customs and taxation on imported, exported goods (hereinafter referred to as the customs area) that does not constitute crimes; the handling of violations committed by customs agencies and customs officials.

In case the International treaties of which the Socialist Republic of Vietnam is a contracting members prescribe the handling of administrative violations in the customs area differently from that in this Decree, the provisions of the International treaties shall apply.

2. The acts of administrative violations prescribed in other legal documents relating to the customs area that are not prescribed in this Decree, the provisions in such legal documents shall apply.

3. Administrative violations in the customs area being prescribed in this Decree includes:

a) Violating the law provisions on customs procedures;

a) Violating the law provisions on customs inspection, customs supervision and customs control;

c) Violating the law provisions on tax on exported goods, imported goods (hereinafter referred to as tax);

d) Violating the law provisions on the export, import, transit of goods, foreign currency, gold, Vietnamese currency, precious metal, jewels, antiques, cultural products, mails, items on means of transport that enter, exit or transit the country, and other property (hereinafter referred to as goods); Violating the law provisions on exporting, importing and transiting means of transport.

Article 2. Principles of handling administrative violations in the customs area

1. Every acts of administrative violations in the customs area (hereinafter referred to as administrative violations) must be promptly detected and suspended. The administrative violations must be promptly, impartially and thoroughly sanctioned. The consequences caused by the administrative violations must be remedied as prescribed by law.

2. Individuals, organizations shall be sanctions against administrative violations only when violating this Decree or other Decrees of the Government on sanctions against administrative violations relating to the customs area.

3. The sanctions against administrative violations in the customs area must be implemented by the persons competent to impose sanctions prescribed in Article 8 of this Decree.

4. An acts of administrative violations shall only be administratively sanctioned once. In case multiple individuals, organizations commit the same acts of administrative violations, each of them shall all be sanctioned. Individuals, organizations committing various acts of administrative violations shall be sanctioned against each of the acts of violation.

5. The sanctions against administrative violations must base on the nature and extent of the violation, the violators’ record, the aggravating and mitigating circumstances to make decisions on the sanction forms, sanction rates and appropriate handling measures in accordance with this Decree.

6. The cases prescribed in Article 7 of this Decree shall not be administratively sanctioned.

Article. 3 Mitigating circumstances

1. First violations

2. The exhibit value is smaller than the minimum fine in the fine bracket of such violation.

3. The administratively violating person has stopped and reduced the damage of the violation, or has voluntarily declared, remedied the consequences and paid compensation

4. Committing violations while mentally incited by illegal acts committed by other people.

5. Committing violations due to coercion, mental or physical dependence.

6. Violating persons being pregnant women, elderly, sick or disabled persons of whom the awareness or self-control is inhibited.

7. Committing violations due to objective special difficulties.

8. Committing violations due to obsolete comprehension.

Article. 4 Aggravating circumstances

1. Systematic violations.

2. Repeated violations.

3. Enticing, tempting minors to commit violations, forcing the mental or physical dependants to commit violations.

4. Committing violations while being intoxicated due to the consumption of alcohol or other stimulant.

5. Misusing the position and power to commit violations.

6. Taking advantages of wars, natural disaster or other social difficulties to commit violations.

7. Committing violations while serving the criminal sentence or implementing the decision on handling administrative violations.

8. Keep committing acts of administrative violations though the competent person has request to stop such acts.

9. Avoiding, hiding the administrative violation after committing it.

Article 5. Sanction prescription

1. The prescription of sanctions against administrative violations in the customs area is two years as from the administrative violation is committed. For acts of insufficient tax declaration, tax avoidance, tax fraud not liable to criminal prosecutions, and acts of deferring tax payment prescribed in Clause 4 Article 9, Article 14 and Article 15 of this Decree, the prescription of sanctions against administrative violations is 05 (five) years as from the administrative violation is committed.

After these prescription expire, the administrative violations shall not be sanctioned but the remedial measures must still be imposed as prescribed in Clause 3 Article 6 of this Decree; for acts of tax avoidance, tax fraud, tax deferment and insufficient tax declaration, the tax payers must sufficiently pay the tax amount payable as prescribed.

2. Individuals that had been charged or given the decisions on bringing the lawsuit to criminal proceedings but then received the decision on suspending the lawsuit of which the acts of violations denote of administrative violations in the customs area shall be administratively sanctioned as prescribed in this Decree; In this case, the prescription of administrative sanctions is 03 months as from the person competent to impose sanctions receives the decisions on suspending the investigation or suspending the lawsuits and violation dossiers.

3. Within the time limit prescribed in Clause 1 and 2 this Article, if individuals, organizations continue to commit acts of administrative violations in the customs area, or deliberately avoid and obstruct the sanctions, the prescription of sanctions against administrative violations prescribed in Clause 1 and Clause 2 this Article shall not apply; The prescription of sanctions against administrative violations shall be counted again as from the new administrative violations are committed or stopping the avoidance and obstruction of the sanctions.

Article 6. Forms of administrative violations in the customs area and remedial measures

1. For each administrative violation, violating organizations, individuals shall be liable to one of the following forms of sanctions:

a) Warnings.

b) Fines.

For acts of tax avoidance, tax fraud, the fines are from 1 to 3 times of the tax amount being avoided or defrauded.

For acts of insufficient tax declaration, or increasing the exempted, reduced, refunded tax, the fine is 10% of the tax amount declared lower, or the increased amount of the exempted, reduced, refunded tax.

For acts of deferring tax payment, the fine is 0.05% per day of the deferred tax payment.

For acts of not extracting or transferring the amount proportionally to the mount payable from the account of organizations, individuals being constrained to implement the administrative decision on tax to the State budget, the fine shall be proportional to the amount omitted to be transferred.

The maximum fines for other acts of administrative violations of customs is 70,000,000 VND and that of tax procedures is 100,000,000 VND. The specific fine rate for a violation is the average rate in the fine bracket being prescribed for such act. The fines in mitigating circumstances shall be reduced but not be lower than the minimum rate of the fine bracket. The fines in aggravating circumstances shall be increased but not be higher than the maximum rate of the fine bracket.

2. Depending on the nature and extent of violations, organizations, individuals committing administrative violations may also be liable to one or a number of the following additional forms of sanctions:

a) Depriving the right to use practice certificates and licenses;

b) Confiscating exhibits and means of administrative violations.

3. Apart from the forms of sanctions prescribed in Clause 1 and 2 this Article, organizations, individuals committing administrative violations may also be liable to one or a number of the following remedial measures:

a) Coercively destructing the exhibits being harmful cultural products, goods dangerous for human health, domestic animals and plants;

b) Coercively taking out of the Vietnam’s territory or coercively re-exporting the goods, means of violations at importing border gates;

c) Coercively paying the amount equivalent to the value of the exhibits, means of violations that have been consumed, destructed or illegally dispersed and hidden.

4. For acts of violations not subject to the additional form of sanctions being confiscating goods and remedial measures, such goods and means of administrative violations shall be granted customs clearance as prescribed by law if the violating subjects have fully paid fines as prescribed, or the fine amount payable has been underwritten by credit institutions, other organizations allowed to perform banking activities.

Article 7. Cases not liable to sanctions against administrative violations

1. The cases prescribed in Clause 6 Article 3 of the Ordinance on Handling administrative violations, Article 4 of the Government s Decree No. 134/2003/ND-CP of November 14, 2003 on detailing the implementation of a number of articles of the Ordinance on Handling administrative violations in 2002.

2. The goods, means of transport being taken into the Vietnam’s territory due to fire, natural disasters, enemy invasion, unexpected incidents or state of emergency must be include in the customs declaration as prescribed by law. Such goods and means of transport must be taken out of the Vietnam’s territory after those incidents are handled.

3. The mistakes during the import and dispatch of goods into Vietnam that have been notified in writing by the sender, the recipient or the legal representative to the customs agency and the head of the customs agency where the dossier is received and handled has accepted before the field inspection of goods or has made the decisions on exempting the goods from field inspection. These provisions are not applicable to goods being drugs, weapons, reactionary documents.

4. Make additional customs declarations in the following cases:

a) The declarant discovers that the submitted customs dossier contain mistakes before the time customs agencies carry out field inspections of the goods or make decisions on exempting the goods from field inspection.

b) The tax payer actively discovers the mistakes that affect the tax amount payable within 60 (sixty) days as from the date of making the customs declaration but before the customs agency carries out tax inspection at the head office of the tax payer. In this case, the tax payer is sanctioned against the deferred tax payment as prescribed in Article 15 of this Decree.

5. Exporting, importing goods inconsistently with the customs declaration as prescribed in Clause 4 Article 9 of this Decree that leads to the deficiency of the tax amount payable or the increase of the exempted, reduced or refunded tax but the difference does not exceed 500,000 VND if committed by individuals, or does not exceed 1,000,000 VND if committed by organizations.

6. Exporting, importing goods inconsistently with the customs declaration regarding the quantity, weight prescribed in Clause 1, 2 and Clause 3 Article 9 of this Decree of which the goods being exported, imported inconsistently with the customs declaration is valued at under 10,000,000 VND.

7. 7. Making declarations consistently with the names of goods being exported, imported but the tax rates, tax codes are incorrect for the first time.

8. Violating the provisions on customs declaration of foreign currency, Vietnamese currency in cash of people entering, exiting the country of which the exhibits are valued at under 10,000,000 VND.

Section 2. ACTS OF VIOLATIONS AND FORMS OF SANCTIONS AGAINST ORGANIZATIONS, ORGANIZATIONS COMMITTING VIOLATIONS IN THE CUSTOMS AREA

Article 8. Violations of the time limits for customs procedures and tax dossier submission

1. Warnings of fines of from 200,000 VND to 1,000,000 VND for one of the following violations:

a) Declaring and submitting customs dossiers unpunctually, except for the violations prescribed in Point b Clause 2 this Article;

b) Failing to punctually submitting the documents belonging to the customs dossiers eligible for deferred submission as prescribed by the Law on Customs;

c) Making additional tax declaration over 60 (sixty) as from the date of registering the customs declaration before customs agencies discover the insufficient tax declaration or the increase the exempted, reduced, refunded tax amount;

a) Submitting tax refund dossiers unpunctually, except for the violations prescribed in Point c Clause 2 this Article;

dd) Not complying with the goods report regulation subject to customs supervisions at warehouses and ports as prescribed by law.

2. Fines of from 1,000,000 VND to 5,000,000 VND for one of the following violations:

a) Making tax declaration unpunctually or changing use purposes of goods exempted from tax;

b) Temporarily importing for re-exporting; temporarily exporting for re-importing goods, means of transport unpunctually;

c) Failing to submit dossiers to liquidate contracts, customs declaration and goods punctually.

Article 9. Violations of provisions on customs declaration and tax declaration

1. Warnings or fines of from 200,000 VND to 1,000,000 VND for not making declaration or incorrectly making declaration of the goods names, quantity, weight in the following cases:

a) Goods from abroad to transit ports, non-tariff zones or from transit ports, non-tariff zones to abroad;

b) Goods in transit;

c) Humanitarian aid, non-refundable aid approved by competent authorities.

2. Fines of from 1,000,000 VND to 5,000,000 VND for not making declaration or incorrectly making declaration of the goods names, types, quantity, weight, value in the following cases:

a) Goods being imported components, raw materials, machinery, equipment eligible for tax exemption;

b) Goods from abroad to bonded warehouses, tax-suspension warehouses, duty-free shops; goods from bonded warehouses, tax-suspension warehouses, duty-free shops to abroad;

c) Goods temporarily imported for re-export;

d) If the goods prescribed in Point b this Clause is not under the bonded warehouse contract, such goods must be taken out of the Vietnam’s territory.

3. Fines of from 2,000,000 VND to 10,000,000 VND for one of the following violations:

a) Fictitiously making declaration of exported goods name, quantity, weight, value except for exported goods being processed products, products made of imported, temporarily exported, re-exported materials

b) Making incorrect declarations compared to the liquidation dossiers of goods in exporting and processing enterprises, tax-suspension warehouses.

4. Sanctions against acts of incorrect declaration that leads to the deficiency of tax amount payable or the increase of the exempted, reduced, refunded tax amount: Apart from sufficiently paying tax as prescribed, the tax payer shall get the fine being 10% of the tax amount declared lower, or the increased amount of the exempted, reduced, refunded tax if one of the following acts is committed:

a) Making declaration inconsistently with the tax accounting dossiers, liquidation dossiers, or tax exemption, tax reduction, tax refund dossiers;

b) Failing to make declaration or making incorrect declaration of goods names, types, quantity, weight, quality, value, goods code, tax rates, origins of exported goods, imported goods that customs agencies detect during the customs clearance of exported and imported goods, except for the acts prescribed in Article 14 of this Decree;

c) Increasing the consumption rate of materials for processing exported goods, of imported materials for producing exported goods without making additional declarations before the inspection by customs agencies;

d) Committing violations of Point b this Clause that have been detected after the customs clearance but the violating individuals, organizations have voluntarily paid the tax amount payable before the violation record is made, or within 10 (ten) days as from the violation record is made.

5. The provisions in this Article are not applicable to the handled violations as prescribed in Article 16 of this Decree.

Article 10. Violations of customs declaration committed by persons entering, exiting the country regarding foreign currency, Vietnamese currency in cash, gold (in bullion, bar, grain)

1. Acts of failing to make declaration or illegitimately making declarations of foreign currency, Vietnamese currency in cash, or gold being taken along when exiting the country shall be sanctioned as follows:

a) Fines of from 500,000 VND to 3,000,000 VND for exhibits valued at from 10,000,000 VND to under 30,000,000 VND;

a) Fines of from 3,000,000 VND to 10,000,000 VND for exhibits valued at from 30,000,000 VND to under 70,000,000 VND;

a) Fines of from 10,000,000 VND to 15,000,000 VND for exhibits valued at from 70,000,000 VND to under 100,000,000 VND;

a) Fines of from 30,000,000 VND to 70,000,000 VND for exhibits valued at from 100,000,000 VND or above that do not constitute crimes.

2. Acts of failing to make declaration or illegitimately making declarations of foreign currency, Vietnamese currency in cash, or gold being taken along when entering the country shall be sanctioned as follows:

a) Fines of from 500,000 VND to 2,000,000 VND for exhibits valued at from 10,000,000 VND to under 50,000,000 VND;

a) Fines of from 2,000,000 VND to 5,000,000 VND for exhibits valued at from 50,000,000 VND to under 100,000,000 VND;

a) Fines of from 5,000,000 VND to 10,000,000 VND for exhibits valued at from 100,000,000 VND or above that do not constitute crimes.

3. The violations prescribed in Clause 2 this Article in which the declared foreign currency, Vietnamese currency in cash or gold is higher than the actual amount shall be sanctioned as follows:

a) Fines of 5,000,000 VND to 10,000,000 VND for fictitious declarations valued at from 10,000,000 VND to under 100,000,000 VND;

a) Fines of 10,000,000 VND to 20,000,000 VND for fictitious declarations valued at from 10,000,000 VND or above;

4. The exhibits shall be returned after the decisions on sanctioned have been implemented. The export, import of foreign currency, Vietnamese currency in cash and gold must comply with law provisions.

Article 11. Violations of provisions on customs inspection and tax inspection

1. Fines of from 500,000 VND to 3,000,000 VND for one of the following violations:

a) Failing to arrange personnel and facilities to serve the field inspection of goods, means of transport at the request from customs agencies without legitimate reasons;

b) Failing to present the retained goods being the subjects of post-customs clearance inspections at the request of customs agencies;

c) Failing to provide documents and electronic data relating to exported goods, imported goods, means of transport entering, exiting the country at the request of customs agencies as prescribed by law;

d) Failing to comply with the decisions on tax inspections from customs agencies;

dd) Committing violations of forms, dossiers and documents

2. Fines of from 5,000,000 VND to 15,000,000 VND for one of the following violations:

a) Changing the goods properties, form and structure to legalize the export, import;

b) Swapping the goods that has undergone customs inspections for that without customs inspections.

3. Fines of 10,000,000 VND to 20,000,000 VND for forging customs seals, customs papers to export, import goods that does not constitute crimes.

4. Confiscating exhibits regarding violations prescribed in Point b Clause 2 this Article.

The violations prescribed in Clause 3 this Article being committed in order to avoid tax, defraud tax shall be sanctioned as prescribed in Article 14 of this Decree. For exhibits banned from export, import or subject to conditional export, import as prescribed by law shall be expropriated.

Article 12. Violations of provisions on customs supervision

1. Fines of from 1,000,000 VND to 5,000,000 VND for one of the following violations:

a) Driving means of transport carrying goods in transit, port transfer, border-gate transfer on incorrect routes, places and border-gate as prescribed or as registered in customs dossiers;

b) Breaking customs seals without permission.

2. Fines of from 5,000,000 VND to 10,000,000 VND for one of the following violations:

a) Changing goods labels, packages, origins under the customs supervision without permission;

b) Failing to preserve the goods status quo while waiting for the customs clearance.

3. Fines of from 10,000,000 VND to 20,000,000 VND for one of the following violations:

a) Changing the types, quantity, quality, weight of goods under the customs supervision without permission;

b) Selling the goods under the customs supervision without permission.

4. Confiscating the exhibits regarding violations prescribed in Clause 3 this Article; in case the exhibits are no longer available, an amount equal to such exhibits shall be paid.

Article 13. Violations of provisions on customs supervision

1. Fines of from 1,000,000 VND to 5,000,000 VND for one of the following violations:

a) Failing to observe the customs officials’ command when driving means of transport within the customs area;

b) Failing to open the goods chamber to undergo administrative inspection;

c) Storing, trading, transporting exported goods, imported goods without valid documents within the customs area;

d) Taking goods, means of transport through the border at incorrect border-gates or places.

2. Fines of from 5,000,000 VND to 15,000,000 VND for one of the following violations:

a) Violations prescribed in Point c, Point d Clause 1 this Article in which the exhibits are valued Article at 20,000,000 VND or above;

d) Unloading goods at incorrect port of destination in the goods statement without legitimate reasons;

c) Arranging, moving, exported goods, imported goods, goods in transit on means of transport under customs inspection and customs supervision without permission;

d) Illegally dispersing, hiding, destructing or discarding goods in order to avoid customs inspection and supervision.

3. Confiscating exhibits regarding violations prescribed in Point c, Point d Clause 1, Point a, Point d Clause 2 this Article.

In case the exhibits of the violations prescribed in Clause 2 this Article are no longer available, an amount equal to such exhibits shall be paid.

Article 14. Sanctions against acts of tax avoidance and tax fraud

1. Tax payers committing one of the following acts of tax evasion, tax fraud that do not constitute crimes must pay an amount equal to the evaded tax amount apart from sufficiently paying such tax as prescribed:

a) Using illegal documents that are inconsistent with the actual transactions to make tax declaration; erasing, adjusting the documents without permission that leads to the deficiency of the tax payable or the increase of the exempted, reduced and refunded tax amount;

b) Declaring incorrect goods codes regarding the goods of which the codes have been set during the previous import that leads to the deficiency of the tax amount payable;

c) The violations prescribed in Point d Clause 4 Article 9 this Article of which the tax amount is not paid within 10 (ten) days as from the date of the violation record;

d) Violations of provisions on goods management in non-tariff zones;

dd) Carrying out export procedures without exporting processed products, products made of imported raw materials;

e) Declaring more than the actual quantity, types, weight of processed products, products made of imported raw materials of which the fraud tax is 50,000,000 VND or above;

g) Exporting processed products, products made of imported materials inconsistently with the imported materials; importing processed products from abroad inconsistently with the exported materials;

Using imported components, materials, machinery and equipment to process for improper purposes without permission;

a) Changing the use purposes of goods eligible for tax exemption without making tax declaration;

Failing to declare or incorrectly declaring the goods imported from non-tariff zones;

l) Failing to record into accounting books the revenues relating to the calculation of the tax amount payable;

b) Deliberately failing to make declaration or making incorrect declaration of goods names, types, quantity, weight, quality, value, tax rates, origins of exported goods, imported goods in order to avoid tax;

2. For violations of provisions on in Clause 1 this Article that are repeated but do not constitute crimes, the fines shall be 2 to 3 times higher than the avoided tax amount.

3. The provisions in this Article are not applicable to the handled violations as prescribed in Article 16 of this Decree.

Article 15. Violations of provisions on tax payment

1. The tax payer, the tax payer’s guarantor deferring tax payment as prescribed by the Law on Tax administration must pay 0.05% of the deferred amount each day apart from fully paying the tax as prescribed.

2. The tax payers receiving tax refund due to incorrect declaration shall get the fine of 0.05% of the overly refunded amount.

3. The number of days of deferred tax payment shall be counted after the last day of the tax payment term or the tax payment extension until the day the tax payer has completely paid the tax payable to the State budget.

Article 16. violations of provisions on the management of exported goods, imported goods, goods in transit; means of transport entering, exiting the country or in transit

1. Fines of 5 00,000 VND to 1,000,000 VND for exporting, importing inconsistently with the provisions on:

a) Goods trading of border residents;

b) Importing humanitarian aid;

c) Exporting, importing gifts, mobile assets, goods of immigrants;

d) For violations prescribed in Point a, b, c this Clause, apart from getting fines, the exhibits shall also be confiscated; the exhibits belonging to the list of conditional export, import or requiring the license shall be coercively taken out of the Vietnam’s territory at the importing border-gate, suspended from export of coercively destructed.

2. Fines of 1,000,000 VND to 5,000,000 VND for transiting goods; importing, exporting, transiting means of transport that require licenses without obtaining the license from competent agencies.

3. Fines of from 5,000,000 VND to 10,000,000 VND for one of the following violations:

a) Temporarily importing for re-export, temporarily exporting for re-import goods that require licenses without license;

b) Exporting, importing goods inconsistently with the contents in the license.

4. Fines of from 10,000,000 VND to 20,000,000 VND for one of the following violations:

a) Exporting, importing goods that is banned from export, import or suspended from export, import;

b) Bring goods of counterfeit origins into the Vietnam’s territory;

c) Exporting goods of counterfeit origins;

d) Importing goods that require licenses while the licenses are not able to be presented within 30 (thirty) days as from the goods arrive at the border-gate;

dd) Exporting, importing goods of which the technical standards and conditions are not satisfied as prescribed by law;

e) Exporting goods without licenses as prescribed;

dd) Exporting, importing goods without label as prescribed by law;

h) Arbitrarily changing the use purposes of goods being raw materials, components, machinery and equipment for processing; goods temporarily imported for re-export, temporarily exported for re-import that is banned from import or export, or being subjects of conditional import, export without permission from competent State agencies.

5. Fines of 50,000,000 VND to 70,000,000 VND for the violations in Clause 4 this Article in case the exhibits are goods that causes environment pollution and harms human health and the ecology.

6. Apart from fines, individuals, organizations committing administrative violations may also be liable to the following additional sanctions or remedial measures:

a) Confiscating exhibits regarding violations prescribed in Point a, b and h Clause 4 this Article.

b) Depriving the right to use licenses for 30 to 90 days if repeating one of the violations prescribed in Point b Clause 3 this Article;

c) Coercively taking out of the Vietnam’s territory at the importing border-gate or suspending the export regarding violations prescribed in Clause 2, 3 and Point c, d, dd, e, g Clause 4 this Article;

d) Coercively taking out of the Vietnam’s territory at the importing border-gate or destructing the exhibits and means of violations regarding violations prescribed in Clause 5 this Article;

dd) In case the exhibits of the violations prescribed in Clause 4 this Article are no longer available, an amount equal to such exhibits shall be paid.

Article 17. Violations of provisions on the management of bonded warehouses and tax-suspension warehouses

1. Fines of from 500,000 VND to 1,000,000 VND for one of the following violations:

a) Failing to notify customs agencies when the warehouse rent contract expires;

a) Failing to notify customs agencies when the warehouse rent contract expires;

2. Fines of from 1,000,000 VND to 3,000,000 VND for one of the following violations:

a) Moving goods from one bonded warehouses to another without the consent from customs agencies;

b) Expanding, contracting or move the bonded warehouse without permission;

c) Failing to make books for monitoring the export and import, the warehouse import and export as prescribed by law.

3. Fines of from 5,000,000 VND to 10,000,000 VND for one of the following violations:

a) Importing from other countries into bonded warehouses goods not allowed to be kept in bonded warehouses as prescribed;

b) Retaining the bonded warehouse business after the License to establish bonded warehouse is withdrawn;

c) Erasing, adjusting the License to establish bonded warehouse;

d) Dispersing and hiding goods being kept in bonded warehouses, tax-suspension warehouses without permission;

dd) Improperly destructing goods being kept in bonded warehouses, tax-suspension warehouses.

4. Apart from fines, individuals, organizations committing administrative violations may also be liable to the following additional sanctions or remedial measures:

a) Confiscating exhibits regarding violations prescribed in Point d and dd Clause 3 this Article. In case the exhibits of violations are no longer available, an amount equal to the value of such exhibits shall be paid;

b) Coercively taking goods out of the Vietnam’s territory within 30 (thirty) days, as from being given the decision on sanctions or destructing violating goods regarding violations prescribed in Point a Clause 3 this Article. For goods of which the labels counterfeit the Vietnamese origin or names, the signs of violation must be eliminated before taking such goods out of the Vietnam’s territory.

Article 18. Offending, threatening, obstructing customs officials on duty

1. Fines of 1,000,000 VND to 3,000,000 VND for offending or obstructing customs officials on duty.

2. Fines of 3,000,000 VND to 5,000,000 VND for threatening or using violence against customs officials on duty that do not constitute crimes.

Article 19. Sanctions against State Treasuries, commercial banks, credit institutions and relevant organizations, individuals

1. Within 10 (ten) days as from the expiry of the time limit for extracting from the deposit account of the enforced persons, if State Treasuries, commercial banks, credit institutions fail to extract completely or partly the amount corresponding to the tax, the fine payable from the deposit account of the organizations, individuals subject to the implementation enforcement of the administrative decisions in the customs area and transfer to the State budget account at the request of customs agencies as long as the deposit account of the enforced person contain sufficient or surplus amount compared to the tax payable, fine payable, this case shall be sanctioned as follows:

a) The fines are equivalent to the amount that fails to be extracted and transferred to the State budget account from the account of the tax payer that violate the law on tax or is subject to the enforced implementation of administrative decisions on tax;

b) Fines of 1,000,000 VND to 5,000,000 VND for failing to implement the decisions on the enforced implementation of other decisions on sanctions against administrative violations in the customs area.

2. Fines of 1,000,000 VND to 5,000,000 VND for individuals, organizations that manage the salaries or incomes of individuals subject to enforced implementation of administrative decisions in the customs area but fail to deduct or improperly deduct part of the salaries or incomes of the enforced individuals under the enforcement decisions from customs agencies.

3. Warnings or fines of from 200,000 VND to 1,000,000 VND for individuals, organizations that fail to provide or incorrectly provide the information, documents and electronic data relating to exported goods, imported goods and means of transport at the request of customs agencies as prescribed by law.

4. Fines of 2,000,000 VND to 8,000,000 VND for relevant individuals, organizations that collaborate with or screening tax payers committing acts of tax avoidance, tax fraud or not implementing the decision on administrative enforcement in the customs area.

Section 3: HANDLING VIOLATIONS COMMITTED BY CUSTOMS AGENCIES AND CUSTOMS OFFICIALS

Article 20: Handling violations committed by customs agencies

1. If customs officials and officers committing violations of law in the customs area that cause damage to organizations, individuals, customs agencies must pay compensation as prescribed by law.

2. The Ministry of Finance shall guide the procedures and orders for settling the compensation prescribed in Clause 1 this Article.

Article 21: Handling violations committed by customs officials

1. Customs officials causing irritation or pressing demands that affect the goods export and import shall be disciplined or liable to criminal prosecution depending on the nature and extent of violations, and pay compensation for the damage as prescribed by law.

2. Customs officials lacking responsibilities or handle unlawfully shall be disciplined or liable to criminal prosecution depending on the nature and extent of violations, and pay compensation for the damage as prescribed by law.

3. Customs officials misusing the positions and powers to collaborate and screen other organizations and individuals that committing violations of law on customs shall be disciplined or liable to criminal prosecution depending on the nature and extent of violations as prescribed by law.

4. Customs officials misusing the positions and powers to illegally use or appropriate the tax, fines and money from the sale of confiscated exhibits of administrative violations in the customs area shall be disciplined or liable to criminal prosecution depending on the nature and extent of violations and must pay compensation for the appropriated and illegally used tax, fines and money from the sale of confiscated exhibits to the State.

Section 4. MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS AND ENSURE THE SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS

Article 22. Detention under administrative procedures

1. The detention under administrative procedures is only applicable to urgent prevention and suspension of the acts of disrupting the order within the customs area, hurting customs officials on duty, or to urgent collection and verification of important facts as the basis for making decisions on imposing administrative sanctions in the following cases: the violator does not have personal papers, clear records, certain residence of whom the record and circumstances relating to the violations need to be verified.

2. The time limit for detaining administratively violating persons is 12 hours. If necessary, such time limit may be longer but must not exceed 24 hours. In remote areas or islands, such time limit may be longer but must not exceed 48 hours.

3. The decisions on detention must be made in writing of competent persons and the person in detention shall keep one copy.

4. It is prohibited to detain administratively violating persons in criminal detention places or in unhygienic and unsafe places.

5. At the request of the detained person, the person that makes decisions on detention must notify their relatives, colleagues or classmates. When detaining minors at night or more than 6 hours, their parents or guardians must be notified.

Article 23. Authority to detain under administrative procedures

1. The following persons are entitled to make decisions on detention under administrative procedures

The Directors of Customs Sub-department, the Chief of Control teams belonging to the Customs Department; The Chief of the Smuggling investigation and prevention team and the Chief of the Sea control team belonging to the Smuggling investigation and prevention department of the General Department of Customs.

In case those persons are not present, their deputies shall be entitled to make decisions on detaining under administrative procedures

2. The detention must comply with the principles, procedures and orders prescribed in Article 44 of the Ordinance on Handling administrative violations and the Regulation on detention under administrative procedures promulgated together with the Government s Decree No. 162/2004/ND-CP of September 07, 2004.

Article 24. Impounding documents, exhibits and means of administrative violations.

1. The impounding of documents, exhibits and means relating to the acts of violations is applicable to the prevention of the violation in order to verify the facts as the basis for making handling decisions.

The persons prescribed in Clause 1 Article 23 of this Decree are entitled to make decisions on impounding documents, exhibits and means of administrative violations.

If there are signs or tax avoidance or tax fraud, the Director of the General Department of Customs, the Director of the Post-customs Clearance Inspection Department belonging to the General Department of Customs, the Directors of Customs Departments, the Directors of Customs Sub-department, the Chief tax inspectors are entitled to make decisions on impounding documents , exhibits and means of administrative violations.

2. If necessary, customs officials on duty may make decisions on impounding exhibits and means of administrative violations. Within 24 hours as from the decisions are made, the decision-making persons must notified their direct superiors prescribed in Clause 1 this Article and must obtain their written consent.

3. The management of impounded documents, exhibits and means must comply with law provisions.

4. Exhibits being Vietnamese currency, foreign currency, gold, silver, jewels, precious metals and drugs being subjects of special management must be preserved as prescribed by law.

5. For exhibits of administrative violations being decayable goods, the decision-making persons must make separate records and hold prompt sale. The collected money must be transferred to the impounding accounts opened at State Treasuries. If the exhibits are confiscated under the decision from competent persons, the collected money must be remitted to the State budget; if the exhibits are not confiscated, such money must be refunded to the owners, the managers or legal users.

6. Within 10 (ten) working days as from the date of impounding, the persons competent to make decisions on impounding and imposing sanctions must handle the impounded documents, exhibits and means in accordance with the measures stated in the sanctioning decisions. If not confiscated, the document, exhibits or money collected from their sale shall be returned to their owners, managers or legal users.

The time limit for impounding document, exhibits and means of violations may be extended but must not exceed 60 (sixty) days regarding violations with complicated circumstances that require verification or relate to multiple domestic individuals, organizations and foreign individuals, organizations.

7. The decisions on impounding of documents, exhibits and means of violations must be made in writing and enclosed with the impounding records. The organizations, individuals that possess the impounded documents, exhibits and means shall keep one copy.

Article 25. Frisking under administrative procedures

1. A person shall only be frisked under administrative procedures when there are grounds for presuming that such person is carrying goods, documents or means of administrative violations. The decisions on frisking must be made in writing by competent persons and the frisked person shall keep one copy.

2. Only the competent persons prescribed in Clause 1 Article 23 of this Decree are entitled to make decisions on frisking under administrative procedures.

3. Before frisking, the frisker must show the frisked person his/her Customs ID and notify them of the decision. Males shall frisk male, female shall frisk female and the frisk must be witnessed by persons of the same gender

4. The frisk must be recorded in writing and the frisked person shall keep one copy.

Article 26. Searching means of transport and items under administrative procedures

1. The means of transport and items shall only be searched under administrative procedures when there are grounds for presuming that such means of transport, items are carrying goods, documents or means of administrative violations. The decisions on searching means of transport and items under administrative procedures must be made in writing by competent persons.

2. Only the competent persons prescribed in Clause 1 Article 23 of this Decree are entitled to make decisions on searching means of transport and items under administrative procedures.

3. When searching means of transport and items, their owners, managers or drivers and a witness must be present. In case the owner or the driver of means of transport and items are absent, two witness must be present.

4. When searching means of transport and items, the record must be made and one copy must be sent to their owner, manager or driver.

5. The search of means of transport, items of subjects under diplomatic immunity regulations must comply with the international treaties that Vietnam has signed or joined. If there are grounds for presuming that the diplomatic bags, consular bags are misused at contravention of the international treaties on diplomatic and consular relationships that Vietnam is contracting member, or that the luggage, means of transport contain goods banned from export, import or goods not being under incentives and immunity regulations as prescribed by law, the Director of the General Department of Customs shall make decisions on handling such case in accordance with the international treaties.

Article 27. Searching places that conceal documents, exhibits and means of administrative violations.

1. The places that conceal documents, exhibits and means of violations shall only be searched when there are grounds for presuming that such places conceal documents, exhibits and means of relating to the violations.

2. The competent persons prescribed in Clause 1 Article 23 of this Decree are authorized to make decisions on searching places that conceal documents, exhibits and means relating to the violations.

If there are signs or tax avoidance or tax fraud, the Director of the General Department of Customs, the Director of the Post-customs Clearance Inspection Department belonging to the General Department of Customs, the Directors of Customs Departments, the Directors of Customs Sub-department are entitled to make decisions on searching places that conceal documents, exhibits and means of administrative violations.

If the places that conceals documents, exhibits and means of administrative violations are residences, the search decisions must be agreed in writing by the President of the commune-level People’s Committee before the search.

3. When searching places that conceal documents, exhibits and means of violations, the place owners or their relatives and the witness must be present. In case the place owners or their relatives are absent and the search cannot be delayed, the representatives of the commune-level authorities and two witnesses must be present.

4. It is prohibited to search these places at night, on holidays or when the place owners are handling ceremonial family affairs, except for emergencies, caught red-handed. The reasons must be specified in the record.

5. The decisions on searching places that conceal documents, exhibits and means relating to the violations must be made and in writing and the search must be recorded in writing. The place owner must be given one copy of the decision and record on the search of places that conceal documents, exhibits and means.

Section 5: AUTHORITY AND PROCEDURES FOR HANDLING ADMINISTRATIVE VIOLATIONS IN THE CUSTOMS AREA

Article 28: Authority for handling administrative violations in the customs area

1. The Chief of the Operational teams belonging to Customs Sub-departments are entitled to:

a) Issue warnings.

b) Impose fines of up to 500,000 VND.

2. The Directors of Customs Sub-department (including the Directors of Border-gate Customs Sub-department, the Directors of non-border-gate Customs Sub-department, the Directors of the Post-customs Clearance Inspection Sub-departments); the Chief of Control teams belonging to Customs Departments of provinces, inter-provinces and central-affiliated cities (hereinafter referred to as Customs Departments); The Chief of the Smuggling investigation and prevention team and the Chief of the Sea control team belonging to the Smuggling investigation and prevention department of the General Department of Customs are entitled to:

a) Issue warnings.

b) Impose fines of up to 10,000,000 VND;

b) Confiscating exhibits and means of administrative violations valued at up to 20,000,000 VND.

3. The Directors of Customs Departments are entitled to:

a) Issue warnings.

b) Impose fines of up to 20,000,000 VND;

c) Depriving the right to use licenses intra vires;

b) Confiscating exhibits and means of administrative violations.

b) Enforcing to out of the Vietnam’s territory or enforcing to re-export the goods, means of violations;

e) Enforcing to destruct the exhibits of violations being harmful cultural products, goods dangerous for human health, domestic animals and plants;

c) Enforcing to pay the amount equal to the value of the exhibits, means of violations that have been consumed, illegally destructed, dispersed, hidden.

4. The Director of the Smuggling Investigation and Prevention Department, the Director of the Post-customs Clearance Inspection Department belonging to the General Department of Customs are entitled to:

a) Issue warnings.

b) Impose fines of up to 70,000,000 VND. The Director of the Smuggling Investigation and Prevention Department belonging to the General Department of Customs are entitled to impose fines for administrative violations of tax up to 100,000,000 VND;

c) Depriving the right to use licenses intra vires;

d) Confiscating exhibits and means of administrative violations;

dd) Enforcing to take out of the Vietnam’s territory or enforcing to re-export the goods, means of violations;

e) Enforcing to destruct the exhibits being harmful cultural products, goods dangerous for human health, domestic animals and plants;

g) Enforcing to pay the amount equal to the value of the exhibits, means of violations that have been consumed, illegally destructed, dispersed, hidden.

5. The Presidents of People’s Committees of central-affiliated cities and provinces are entitled to impose sanctions against administrative violations as prescribed in Article 30 of the Ordinance on Handling administrative violations regarding the acts of violations prescribed in this Decree.

6. The Border guard, the Coastguard are entitled to impose sanctions as prescribed in Article 32 and Article 33 of the Ordinance on Handling administrative violations regarding the acts of violations in the customs area prescribed in Article 13 of this Decree.

7. The Directors of Customs Sub-department, the Directors of Customs Departments, the Director of the Smuggling Investigation and Prevention Department and the Director of the Post-customs Clearance Inspection Department are entitled to impose sanctions against acts of violations of tax prescribed in Clause 4 Article 9, Article 14, Article 15 and Point a Clause 1 Article 19 of this Decree.

Article 29. Assignment of authority to impose sanctions

1. The authority to impose sanctions of the persons prescribed in Article 28 of this Decree is the authority applicable to one act of administrative violations. In case of fines, the authority to impose sanctions shall be determined basing on the maximum rate of the fine bracket for each acts of violations. This provision is not applicable to the cases prescribed in Clause 4 Article 28 of this Decree.

2. When imposing sanctions against on person that commits multiple violations, the authority to impose sanctions shall be determined under the following principles: if the fine rates, additional forms of sanctions, remedial measures for each act are under the authority of the sanctioning person, the authority to impose sanctions still belong to that person.. If the fine rate, additional form of sanctions, remedial measure for one of the act beyond the authority of the sanctioning person, such person must transfer the violation dossiers to the another person competent to impose sanctions

3. For acts of violations of which the fine bracket is over 20,000,000 VND, the Directors of Customs Departments shall send the dossier to People’s Committees of central-affiliated cities and provinces where the administrative violations are committed or where the Customs Departments are located in case the administrative violations are committed within the territorial sea in order for the Presidents of People’s Committees of central-affiliated cities and provinces to make decisions on imposing sanctions.

4. When acts of violations of customs are committed on the land, sea, adjacent sea, continental shelves and exclusive economic zones of the Socialist Republic of Vietnam belonging to a management area, the Customs of that area shall be responsible for imposing sanctions under the authority prescribed in this Decree. In case the Smuggling Investigation and Prevention Department, the Post-customs Clearance Inspection Department detect the violations, the sanctions shall be imposed under their authority.

5. In areas along the national border where the Customs is not organized, the Border guard, the Coastguard securing such areas are entitled to impose sanctions as prescribed in Article 32 and Article 33 of the Ordinance on Handling administrative violations regarding the acts of violations in the customs area prescribed in Article 13 of this Decree.

Article 30. Suspending the acts of violations

Upon detecting acts of violations, customs officials on duty shall make decisions verbally or by whistles, signals or other forms depending on the particular violations in order to immediately suspend the acts of violations and notify the persons competent to impose sanctions.

Article 31. Simple procedures

The warnings shall be issued in accordance with Article 54 of the Ordinance on Handling administrative violations.

Article 32. Making records on administrative violations

For administrative violations in the customs area not being prescribed in Article 31 of this Decree, the persons competent to impose sanctions must promptly make records as prescribed. If the record maker is not competent to impose sanctions, his/her direct superior being one of the persons prescribed in Article 28 of this Decree must sign the record, or verify before signing if necessary.

The records shall be made under the form, contents and orders prescribed in Article 55 of the Ordinance on Handling administrative violations.

Article 33. Decisions on imposing sanctions

The decisions on imposing sanctions in the customs area shall be made under the form, contents and orders prescribed in Article 56 of the Ordinance on Handling administrative violations.

Article 34. Sanctions against deferred tax payment

1. The tax payers shall calculate the fines for deferred payment basing on the deferred tax amount, the number of deferred days and the fine rates prescribed in Clause 1 and 2 Article 15 of this Decree in order to make payment to the State budget . In case the tax payers fail to calculate or incorrectly calculate the fines for deferred payment, customs agencies shall calculate and notify the tax payers.

2. If the tax payers fail to fully pay tax and the fines for deferred payment after 30 (thirty) days as from the time limit for paying tax expires, customs agencies shall notify the tax payers of the outstanding tax amount and the fines for deferred tax payment, and request the tax payers to fully pay the tax and fines to the State budget.

Article 35. Handling imported goods of which the time limit for customs procedures has expired or being enforced to be taken out of the Vietnam’s territory, or to be re-exported.

1. After 90 days as from the day the imported goods arrives at the unloading border-gate, if the customs procedures for such goods are not carried out, the competent persons prescribed in Clause 2, 3 and 4 Article 28 on this Decree must notify the case on means of mass media and publicly post it at the Customs office. Within 180 (one hundred and eighty) days as from the date of notification, if the customs procedures are not carried out, the competent persons prescribed in Clause 2, 2 and 4 Article 28 of this Decree shall make decisions on confiscating or destructing the exhibits of violations as prescribed.

2. If the owner of the exhibits and means of violations is not identifiable, the competent persons prescribed in Clause 2, 3 and 4 Article 28 on this Decree must notify the case on means of mass media and publicly post it at the Customs office. After 30 (thirty) days as from the date of notification, if the goods is not claimed by anyone, the competent persons prescribed in Clause 2, 3 and 4 Article 28 of this Decree shall make decisions on confiscating or destructing the exhibits of violations as prescribed.

3. The goods imported inconsistently with the license, contract, bill of lading or goods statement that the recipient denies shall be handled as prescribed in Clause 2 this Article.

4. The competent persons prescribed in Clause 3 and 4 Article 28 of this Decree must notify the responsible individuals, organizations of the goods that must be coercively re-exported or taken out of the Vietnam’s territory. After 30 (thirty) days as from receiving the notification from customs agencies, if the goods is not re-exported or taken out of the Vietnam’s territory, the competent persons prescribed in Clause 3 and 4 Article 28 of this Decree shall make decisions on confiscating or destructing the exhibits of violations as prescribed, unless legitimate reasons are given.

Article 36. Procedures for confiscating exhibits and means of administrative violations;

1. When confiscating exhibits and means of administrative violations in the customs area, the competent persons prescribed in Clause 2, 3 and 4 Article 28 of this Decree must follow the procedures prescribed in Article 60 of the Ordinance on Handling administrative violations.

2. The persons making confiscation decisions are responsible to preserve, classify and transfer exhibits and means of violations to district-level financial agencies or Auction centers of provinces and cities to put up for auction as prescribed in Clause 1 Article 61 of the Ordinance on Handling administrative violations and Article 32, 33, 34 of the Government s Decree No. 134/2003/ND-CP of November 14, 2003 on detailing the implementation of a number of articles of the Ordinance on Handling administrative violations in 2002.

3. 3. Confiscated exhibits and means of administrative violations being harmful cultural products, useless counterfeits, goods dangerous for human health, domestic animals and plants shall be destructed as prescribed in Clause 2 Article 61 of the Ordinance on Handling administrative violations.

4. Exhibits of violations being decayable goods shall be handled as prescribed in Clause 3 Article 61 of the Ordinance on Handling administrative violations.

Article 37. Implementing decisions on imposing sanctions and delaying implementing decisions on fines

1. Individuals, organizations being administratively sanctioned must implement the decisions on sanctions against administrative violations within 10 (ten) days as from receiving the decisions on imposing sanctions. The fines shall be paid in accordance with Article 58 of the Ordinance on Handling administrative violations.

2. Individuals, organizations receiving decisions on sanctions against administrative violations that do not voluntarily implement shall be subject to implementation enforcement as prescribed in Chapter II of this Decree.

3. Individuals getting fines of 500,000 VND or above that are facing special financial difficulties may request a delay in implementing the decisions on fines. The delay in implementing decisions on fines shall be carried out in accordance with Article 65 of the Ordinance on Handling administrative violations.

Article 38. Exemption from sanctions against administrative violations

1. Individuals, organizations committing acts of administrative violations prescribed in Clause 3 Article 9, Article 14, Article 15 and Article 19 of this Decree that are suffering from natural disasters, fire, unpredictable or inevitable accidents may request the exemption from sanctions against administrative violations in the customs area when all of the conditions prescribed in Clause 2 this Article are satisfied.

2. The conditions for considering sanction exemption include:

a) The administrative violations are committed within 30 (thirty) days before or after the occurrence the natural disaster, fire, unpredictable or inevitable accidents;

b) The sanctioned person has not implemented the decisions on imposing sanctions.

3. The exempted fines do not exceed the damage caused by the sanctioned subject.

4. The Directors of Customs Departments, the Director of the Smuggling Investigation and Prevention Department, the Director of the Post-customs Clearance Inspection Department are entitled to issue decisions on sanction exemption regarding the violations detected and handled themselves or by their inferiors.

5. The Ministry of Finance shall prescribe the dossier on requesting sanction exemption, the order and procedures for sanction exemption.

Article 39. Transferring the dossier of violation denoting crimes to initiate criminal prosecution

1. When examining the violations to make decisions on imposing sanctions, if the competent persons deem that such violations denote crimes that exceed their jurisdiction, the dossier must be instantly transferred competent criminal proceedings agencies.

2. If the decisions on imposing sanctions have been made before discovering the acts of violations denoting crimes and the time limit for criminal prosecution is unexpired, the decision-making person must annul such decisions and transfer the violation dossiers to competent criminal proceedings agencies within 03 (three) days as from the date of annulling the decisions.

3. Within the time limit prescribed in Article 103 of the Criminal Procedure Code, competent criminal proceedings agencies are responsible to notify the agencies that have transferred the dossier on initiating or not initiating the criminal lawsuit.

Within 05 (five) days as from receiving the notification on initiating the criminal prosecution, customs agencies must transfer the original violation dossiers to competent proceedings agencies.

4. After 03 (three) days as from the time limit prescribed in Article 103 of the Criminal Procedure Code expires, if customs agencies do not receive the notification from competent agencies of initiating or not initiating the lawsuit, the persons competent to impose sanctions prescribed in Article 28 of this Decree shall make the decisions on sanctions against administrative violations as prescribed by law.

Article 40. Returning violation dossiers for sanctioning administrative violations.

1. If the violation dossiers have been transferred to criminal proceedings agencies but then deemed that the acts of violations do not constitute crimes, the competent persons of criminal proceedings agencies shall make decisions on not initiating criminal prosecution as prescribed in Article 103 of the Criminal Procedure Code. Within 03 (three) days as from the decisions are made, criminal proceedings agencies must send the decisions on not initiating criminal prosecution and the violations dossiers to customs agencies for them to handle the violation intra vires.

2. For individuals that have been prosecuted or given the decisions on initiating criminal proceedings but then given the decisions on suspending investigations or suspending lawsuits, within 03 (three) days as from the decisions on suspending investigations or suspending lawsuits are made, criminal proceedings agencies must transfer such decisions and their dossiers to customs agencies for them to handle the administrative violations intra vires.

Chapter 2:

ENFORCING THE IMPLEMENTATION OF ADMINISTRATIVE DECISIONS IN THE CUSTOMS AREA

Section 1: GENERAL PROVISIONS

Article 41. Scope and subjects of application

1. This Chapter prescribes the order and procedures for imposing coercive measures on organizations, individuals that fail to voluntarily implement the administrative decisions in the customs area within the prescribed time limit, or commit acts of dispersing property, or flee.

2. Administrative violations in the customs area being prescribed in Clause 1 this Article include:

a) The notification of the outstanding tax and the fines for deferred payment;

b) The notification of imposing tax;

c) Notification of the refunded tax amount that needs to be returned due to over-refund;

d) Other decisions on handling administrative violations in the customs area

dd) The decisions on administrative enforcement in the customs area.

Article 42. Implementation enforcement of decisions on imposing sanctions in the customs area

1. The implementation of the decisions on imposing sanctions prescribed in Clause 4 Article 9, Article 14 and the decisions on administrative enforcement prescribed in Point a, b, c and dd Clause 2 Article 41 of this Decree shall be enforced in the following cases:

a) The organizations, individuals or the guarantors fail to voluntarily implement the decisions on imposing sanctions, administrative decisions after 90 (ninety) days as from the time limit for their implementation expires;

The individuals, organizations that have not implemented the administrative decisions in the customs area disperse their property or flee.

2. For the violating individuals, organizations or their guarantors fail to voluntarily implement the decisions on imposing sanctions after 10 (ten) days as from the expiry of the time limit for implementing the decisions on sanctions against administrative violations in the customs area.

Article 34. The coercive measures

The coercive measures for implementing administrative decisions in the customs area includes:.

1. Extracting money from the enforced subjects’ accounts at State Treasuries, commercial banks or other credit institutions; requesting to block their accounts.

2. Deducting from their salaries or incomes.

3. Distraining their property, put up the distrained property on auction as prescribed by law to sufficiently collect tax and fines.

4. Taking money or property of the enforced subjects being held by other organizations and individuals.

5. Suspending the customs procedures for imported goods.

6. Coercively confiscating exhibits and means of administrative violations.

7. Enforcing the procedures of measures to remedy the consequences cause by the administrative violations.

8. Withdrawing tax codes, suspending the use of invoices.

9. Withdrawing the Business certificates, establishment and operation licenses, practice certificates.

The coercive measures stated in Clause 4, 8 and 9 this Article are separately applicable to the decisions on enforcing the implementation of the administrative decisions on tax.

Article 44. Money sources for deduction and distrained property of enforced organizations

The money sources for deduction and distrained property of organizations being enforced to implement administrative decisions in the customs area must comply with the law provisions on handling administrative violations and relevant law provisions.

Article 45. Authority to make enforcement decisions

The following persons are entitled to make decisions on one of the coercive measures prescribed in Article 43 of this Decree and shall be responsible to organize the implementation enforcement of the administrative decisions:

1. Heads of customs agencies.

2. The Director of the Smuggling Investigation and Prevention Department belonging to the General Department of Customs.

3. The Director of the Post-customs Clearance Inspection Department belonging to the General Department of Customs.

Article 46. Enforcement decisions

1. The implementation enforcement of administrative decisions shall only be carried out upon the enforcement decisions made by the competent persons prescribed in Article 45 of this Decree.

2. The decision on enforcing the implementation of administrative decisions include: Date of the decision, bases of the decision; full name, position (rank), unit of the decision-making person; full name, residence, office address of the enforced subject; reasons for enforcement; coercive measures; time and place of implementation; the agency that preside over the implementation enforcement; the cooperative agencies; the signature of the decision-making person, the seal of the decision-making agency.

3. The decisions on enforcing the implementation of administrative decisions must be sent to enforced subjects and relevant organizations, individuals within 05 (five) working days before the enforcement; for enforcement using the measures prescribed in Clause 3, 6 and 7 Article 43 of this Decree, the decisions must be sent to the Presidents of the People’s Committees of the communes, wards or towns where the enforcement is carried out before the implementation.

Article 47. The responsibilities for implementing the enforcement decisions.

1. The persons that make the enforcement decision are responsible to implement the enforcement decisions.

2. The relevant agencies, organizations and individuals are responsible to cooperate with the competent persons that make the enforcement decision, or the agencies that preside over the enforcement to implement the measures for implement the enforcement decision.

Article 48. Ensuring the order and safety during the enforcement

1. The agencies that preside over the implementation of enforcement decisions are responsible to ensure the order during the enforcement. If the presence of the Police during the enforcement is necessary, the written request must be sent to the Police department at the same level before the enforcement 05 (five) days in order to deploy forces.

3. Upon being requested to participate in keeping the order and safety of the enforcement, the Police departments are responsible to deploy forces to promptly prevent the acts of disruption or resisting the law enforcers during the implementation of the enforcement decision.

Article 49. Statute of limitation of the implementation of enforcement decisions.

1. The enforcement decision takes effect in 01 (one) year as from the date of issue.

2. If the enforced individuals, organizations deliberately avoid or delay the implementation, the statute of limitation shall be counted again from the time the avoidance or delay is ceased.

3. The coercive measures to implement the decisions on imposing sanctions prescribed in Article 43 of this Decree shall be invalidated as from the enforced tax, fines have been fully paid to the State budget, and other contents of the decisions on imposing sanctions have been done. The bases for terminating the implementation of enforcement decisions are the receipts of tax payment and fine payment to the State budget certified by State Treasuries or tax collection agencies or banking agencies that extract the tax amount, fines from the tax payers account.

Section 2: PROCEDURES FOR TAKING COERCIVE MEASURES FOR IMPLEMENTING ADMINISTRATIVE DECISIONS IN THE CUSTOMS AREA

Article 50: Orders, procedures for taking coercive measures for implementing administrative decisions in the customs area

The orders, procedures for taking coercive measures for implementing administrative decisions prescribed in Clause 1, 2, 3, 4, 6, 7 and 9 Article 43 of this Decree shall be implemented as prescribed in the Government’s Decrees on the procedures for taking coercive measures for implementing decisions on sanctions against administrative violations, the Decrees on handling violations of law provisions on tax and enforcing the implementation of the administrative decisions on tax.

Article 51. Procedures for enforcement by suspending the customs procedures for imported goods.

1. The enforcement by suspending the customs procedures for imported goods shall be carried out in case the customs agencies fail to implement the measures prescribed in Clause 1, 3 and 4 Article 43, or fail to sufficiently collect the tax and fines after such measures are implemented.

2. The persons competent to make enforcement decisions must make enforcement decisions and post them on the customs information network within 05 (five) working days before suspending the customs procedures for imported goods.

3. The enforcement decision must specify the date of the decision, bases of the decision; full name, position, unit of the decision-making person; full name, residence, office address of the enforced organizations, individuals; the outstanding tax, fines; the signature of the decision-making person, the seal of the decision-making agency. The enforcement decisions must be sent to enforced individuals, organizations.

Article 52. Procedures for enforcement by withdrawing tax codes and suspending invoice use.

1. The enforcement by withdrawing tax codes and suspending invoice use shall be carried out in case the customs agencies fail to sufficiently collect the tax and fines implementing the implement the measures prescribed in Clause 1, 3 4 and 5 Article 43.

2. The persons that make the enforcement decision are responsible to:

a) Notifying the enforced subjects within 05 (five) working days before the enforcement;

b) Sending written requests to competent tax agencies for withdrawing tax codes and suspending the invoice use.

3. The orders, procedures for withdrawing tax codes and suspending the invoice use shall be implemented as prescribed in the Government’s Decrees on handling violations of law provisions on tax and enforcing the implementation of the administrative decisions on tax.

Chapter 3:

COMPLAINTS, DENUNCIATION

Article 53. Complaints, denunciation

1. Individuals, organizations or their legal representatives are entitled to lodge complaints against the decisions on sanctions against administrative violations, decisions on implementing preventive measures and enforcing the handling of administrative violations, decisions on enforcing the implementation of administrative decisions in the customs area.

2. All citizens are entitle to denounce the unlawful acts in sanctions against administrative violations and the measures for enforcing the procedures of administrative decisions in the customs area.

3. The authority, procedures and time limit for settle complaints and denunciation must comply with law provisions on complaints and denunciation.

Article 54. Administrative proceedings

The proceedings against the decisions on sanctions against administrative violations, decisions on implementing preventive measures and enforcing the sanctions against administrative violations, decisions on enforcing the implementation of administrative decisions in the customs area must comply with law provisions on the procedures for settling administrative lawsuits.

Chapter 4:

IMPLEMENTATION PROVISIONS

Article 55. Effects

1. This Decree takes effect on July 01, 2007.

2. The Government s Decree No. 138/2004/ND-CP of June 17, 2004 on sanctions against administrative violations in the customs area is annulled.

3. Acts of administrative violations in the customs area happening before the Decree takes effect that are sanctioned when this decree is effective, the sanctions shall comply with this Decree in case this Decree does not prescribes the legal liability or prescribes milder legal liability.

4. Other provisions on handling administrative violations and enforcing the implementation of administrative decisions in the customs area not being stated in this Decree must comply with the law provisions on handling administrative violations and relevant law provisions.

Article 56. Guiding and organizing the implementation

The Ministry of Finance shall guide and organize the implementation of this Decree and cooperate with State agencies, political organizations, socio-political organizations, social organizations, socio-professional organizations to propagate and encourage people to implement and supervise the implementation of this Decree.

Article 57. The responsibilities for implementation.

The Ministries, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces are responsible to implement this Decree./.