Thông tư 04/2006/TT-BTM của Bộ Thương mại về việc hướng dẫn một số nội dung quy định tại Nghị định số 12/2006/NĐ-CP ngày 23/01/2006 của Chính phủ quy định chi tiết thi hành Luật Thương mại về hoạt động mua bán hàng hóa quốc tế và các hoạt động đại lý mua, bán, gia công và quá cảnh hàng hóa với nước ngoài

CIRCULAR

PROVIDING GUIDELINES FOR IMPLEMENTATION OF DECREE 12-2006-ND-CP OF THE GOVERNMENT DATED 23 JANUARY 2006 PROVIDING DETAILED REGULATIONS FOR IMPLEMENTATION OF THE COMMERCIAL LAW WITH RESPECT TO INTERNATIONAL PURCHASES AND SALES OF GOODS, AGENCY FOR SALE AND PURCHASE, PROCESSING AND TRANSIT OF GOODS INVOLVING FOREIGN PARTIES

Pursuant to Decree 29-2004-ND-CP of the Government dated 16 January 2004 on the functions, duties, powers and organizational structure of the Ministry of Trade;

Pursuant to Decree 12-2006-ND-CP of the Government dated 23 January 2006 providing detailed regulations for implementation of the Commercial Law with respect to international purchases and sales of goods, agency for sale and purchase, processing and transit of goods involving foreign parties;

The Ministry of Trade hereby provides the following guidelines on Decree 12:

I. RIGHT TO CONDUCT THE BUSINESS OF IMPORT AND EXPORT:

1. Business entities without foreign direct investment capital (hereinafter referred to as business entities), comprising:

- State owned enterprises and enterprises established pursuant to the Law on Enterprises and the Law on Co-Operatives, and

- Individual household businesses established and registered for business pursuant to Decree 109-2004-ND-CP of the Government dated 2 April 2004 on business registration, shall be permitted to conduct activities of import, export, temporary import for re-export, temporary export for re-import, border gate transfer, processing, and agency sale and purchase pursuant to and within the scope stipulated in Decree No. 12, irrespective of the business lines stated in their business registration certificates.

2. Pending Decrees of the Government and guiding Circulars from the relevant ministries and branches on implementation of the Law on Investment, the Commercial Law and the Law on Enterprises, branches of foreign business entities in Vietnam and business entities with foreign direct investment capital shall be permitted to conduct activities of import, export, temporary import for re-export, temporary export for re-import, border gate transfer, processing, agency sale and purchase, and to provide services of transit of goods in accordance with current regulations.

II. GOODS THE IMPORT OR EXPORT OF WHICH IS PROHIBITED:

1. Goods the import or export of which is prohibited shall be those promulgated by the relevant ministries and branches guiding implementation of Appendix 1 promulgated with Decree 12 on the List of goods the import or export of which is prohibited.

2. The Ministry of Trade hereby promulgates the list of second-hand consumer goods and medical apparatus prohibited from import, together with their HS code numbers, in Appendix 1 to this Circular.

III. GOODS FOR WHICH IMPORT AND EXPORT ARE SUBJECT TO ISSUANCE OF A PERMIT BY THE MINISTRY OF TRADE:

A. For exports:

Quotas (if any) of textiles and garments for export to the US market shall comply with a Joint Circular of the Ministry of Trade and the Ministry of Industry.

For other markets, textiles and garments may be exported on demand.

B. For imports:

1. Goods subject to export control pursuant to international treaties or agreements of which Vietnam is a member:

The grant of import permits for ozone layer depleting substances specified in Appendix I to the Montreal Protocol on Substances which Deplete the Ozone Layer shall comply with the provisions of Joint Circular No. 14-2005-TTLT-BTM-BTNMT of the Ministry of Trade and the Ministry of Natural Resources and Environment dated 11 July 2005 guiding the management of import and export and temporary import for re-export of ozone layer-depleting substances pursuant to the Montreal Protocol.

2. Motorized two-wheeled and three-wheeled vehicles with a cylinder capacity of 175 cm3or more:

The Ministry of Trade shall grant permits to applicants for the import of two-wheeled and three-wheeled vehicles with a cylinder capacity of 175 cm3or more on the basis of permission from the Ministry of Police and in compliance with current regulations on procedures for grant of import permits.

3. Sports weaponry:

The Ministry of Trade shall grant permits for the import of sports weaponry pursuant to decisions of the Minister/Chairman of the Committee for Sports and Physical Education.

4. Import permits pursuant to the quota regime:

The list of goods to which the quota regime applies is as follows:

The Ministry of Trade shall annually announce the volume of quotas.

4.2. Principles for import permits pursuant to the quota regime:

(a) The requirement for an import permit shall be applied in order to enjoy entitlement to import tax rates within quotas for salt, poultry eggs, tobacco raw material and sugar (refined and raw).

(b) Goods on the list of goods to which the quota regime applies and which are imported without a permit from the Ministry of Trade shall be subject to nonquota tax rates. The import of tobacco raw material for the manufacture of cigarettes outside quotas must comply with guidelines of the Ministry of Industry.

(c) The quantity, volume and value of goods on the list of goods to which the quota regime applies and which are imported for production or processing of exports shall not be included in the annual volume of quotas announced by the Ministry of Trade.

4.3. Entities eligible for the grant of permits under quotas:

The Ministry of Trade shall grant import permits to the following business entities that satisfy all conditions for import of goods on the list of goods to which the quota regime applies, specifically as follows:

(a) For salt:

Business entities who wish to use salt in their production, in compliance with regulations of the ministry managing the specialized industry.

(b) For tobacco raw material:

Business entities who have permits to manufacture cigarettes granted by the Ministry of Industry and who have a need to use a specified percentage of imported tobacco raw material for manufacturing cigarettes as certified by the Ministry of Industry.

Corporations engaged in major goods lines shall be the focal bodies receiving quotas for their member companies.

(c) For poultry eggs:

Business entities with business registration certificates who have a need to import these goods items.

(d) For sugar:

The import of sugar shall comply with the annual guidelines provided by the Ministry of Trade after reaching agreement with the relevant ministries and branches.

4.4. Procedures for grant of permits under quotas:

(a) Based on the annual volume of quotas and a balancing between import results and the registered demand for quotas by business entities, the Ministry of Trade shall consider and grant import permits under quotas to the business entities stipulated in Section 4.3 above. An application file for registration for the quota shall be forwarded to the Ministry of Trade, comprising:

- Request for registration prepared on the standard form issued in Appendix 2 attached to this Circular;

- Valid copy business registration certificate.

(b) Business entities shall present their permits to import goods under quotas as granted by the Ministry of Trade to the border gate customs office when carrying out import procedures, and specify the quantity of import goods stated in such permits as eligible for import tax rates within quotas.

(c) At the end of each quarter, business entities shall send reports to the Ministry of Trade on the status of their import activities, prepared on the standard form issued in Appendix 3 attached to this Circular.

Prior to 30 September each year, business entities shall send a report (instead of the third quarter s report) to the Ministry of Trade, assessing their import capability for the whole of such year, and proposing an increase in or reduction of their assigned quota or reporting on the volume of goods they are incapable of importing in order for the Ministry of Trade to assign such quota to another business entity.

IV. GOODS WHICH MAY BE IMPORTED OR EXPORTED PURSUANT TO SEPARATE PROVISIONS:

In implementation of the provisions of article 10 of Decree No. 12, the Ministry of Trade provides the following detailed guidelines:

1. Import of petrol and fuel:

The import of petrol and fuel shall comply with Decision No. 187-2003-QD-TTg of the Prime Minister of the Government dated 15 September 2003 promulgating Regulations on management of trading in petrol and fuel, and with other relevant legal instruments.

2. Import of all types of second-hand cars:

(a) The import of all types of second-hand cars including passenger transport cars, cargo cars and trucks, and specialized use cars must satisfy this condition: they are not over five years old, calculated from the date of manufacture up until the year of import (for example, in 2006 only cars manufactured in 2001 or later may be imported). Importation must also comply with the guidelines of the ministry managing the specialized industry. The import of second-hand passenger transport cars with less than 16 passenger seats must comply with Joint Circular No. 03-2006-TTLT-BTM-BGTVT-BTC-BCA of the Ministry of Trade, the Ministry of Transport, the Ministry of Finance and the Ministry of Police dated 31 March 2006.

(b) It shall be prohibited to import right-hand drive motor vehicles including vehicles in which the right-hand-drive mechanism has been removed or rearranged prior to import into Vietnam, except for specialized use right-hand-drive motor vehicles used in narrow places such as cranes, canal and drain digging machines, road sweepers, road watering vehicles, rubbish collecting vehicles, road surfacing vehicles, passenger vehicles at airports, fork-lift trucks at warehouses and ports, concrete-pumping vehicles, and caddy vehicles used only in golf courses and parks.

(c) It shall be prohibited to import any type of vehicle in which the transmission structure has been changed as compared to the original design, or in which the frame or engine number has been erased.

(d) It shall be prohibited to disassemble any type of vehicle during the period it is being transported and imported.

(e) It shall be prohibited to import second-hand ambulances.

3. Import of all types of wood from countries with common borders:

Business entities shall be permitted to import all types of wood from countries with common borders without applying for a permit from the Ministry of Trade. The import of timber raw materials including logs and sawn timber from Cambodia shall be regulated as follows:

(a) Business entities who have signed contracts for the import or temporary import for re-export of timber with Cambodian business entities and who have been granted permits for the export of timber raw materials by the Cambodian Ministry of Trade shall send an application for a permit for the import or temporary import for re-export of timber, together with such contract, to the Vietnamese Ministry of Trade. The Ministry of Trade shall grant a permit for the import or temporary import for re-export to such business entities on receipt of the permit for export of timber raw materials granted by the Ministry of Trade of Cambodia and sent to the Vietnamese Ministry of Trade via the Cambodia based Vietnamese Embassy or Trade Commission or via the Vietnam based Cambodian Embassy or Trade Commission.

(b) The transportation, delivery and receipt of imported timber shall be conducted at the following border gates:

1. Le Thanh (Road 19)

2. Bu Po-rang (Road 14)

3. Bo-nue (Road 13)

4. Xa Mat (Road 22B)

5. Mac Bai (Road 22A)

6. Tinh Bien (Road 2)

7. Xa Xia (Road 17)

8. Vinh Xuong - Thuong Phuoc (Tien river)

9. Khanh Binh (An Giang)

10. Bac Dai (An Giang)

11. Eastern Vinh Hoi (An Giang)

12. Western My Quy (Long An)

13. Vam Don (Long An)

14. National and international sea border gates.

4. Export of fertilizer and petrol and fuel being imported essential commodities for which the State guaranteed foreign currency balancing for import:

(a) Business entities wishing to export fertilizer originating from imported sources shall send an application to the Ministry of Trade for consideration and resolution. Directors of exporting enterprises shall be responsible to ensure that exported goods are paid for in a freely convertible foreign currency.

(b) Business entities who have licenses to conduct the business of importing petrol and oil shall be permitted, pursuant to an export permit granted by the Ministry of Trade, to export petrol and oil which was previously imported, and shall be responsible to observe the regulation that exported petrol and oil must be sold at prices which are high enough to cover all import expenses and such prices must be paid in a freely convertible foreign currency via a bank.

5. Import of cigarettes and cigars:

(a) The import of cigarettes and cigars for sale on the domestic market shall comply with joint guidelines from the Ministry of Trade and the Ministry of Industry.

(b) The import of cigarettes and cigars for sale at duty-free shops shall comply with Circular No. 21-1998-TT-BTM of the Ministry of Trade dated 24 February 1998 guiding the implementation of the Regulations on duty-free shops issued with Decision No. 205-1998-QD-TTg of the Prime Minister of the Government dated 19 October 1998.

V. GOODS TEMPORARILY IMPORTED FOR RE-EXPORT, GOODS TEMPORARILY EXPORTED FOR RE-IMPORT, AND BORDER GATE TRANSFER OF GOODS:

In implementation of the provisions in Chapter III of Decree No. 12, the Ministry of Trade provides the following detailed guidelines:

1. Business entities wishing to conduct temporary import for re-export, temporary export for re-import or the border gate transfer of any type of goods requiring a permit from the Ministry of Trade shall send an application to the Ministry of Trade prepared on the standard form issued in Appendix 4 attached to this Circular, together with a report on the status of performance of temporary imports for export, temporary exports for re-import or border gate transfers prepared on the standard form issued in Appendix 5 attached to this Circular.

2. Goods temporarily imported for re-export, goods temporarily exported for re-import and goods transferred from border gate to border gate shall be subject to customs procedures carried out at a border gate which has a customs office in accordance with current regulations. In the case of the temporary import for re-export or the border gate transfer of goods on the list of goods the import and export of which is prohibited or temporarily suspended, customs procedures shall be carried out only at an international border gate except where the people s committee of a locality with an economic zone border gate permits customs to be carried out at the economic zone border gate.

3. The temporary import of petrol and oil for re-export shall comply with Decision No. 1752-2003-QD-BTM of the Ministry of Trade dated 15 December 2003.

4. The temporary import of ozone layer depleting substances for re-export shall comply with Joint Circular No. 14-2005-TTLT-BTM-BTNMT of the Ministry of Trade and the Ministry of Natural Resources and Environment dated 11 July 2005 guiding the management of import and export and temporary import for re-export of ozone layer-depleting substances pursuant to the Montreal Protocol on Substances which Deplete the Ozone Layer.

5. Goods temporarily imported for re-export which are then sold in Vietnam must comply with the regulations on management of import and export and must fulfill tax obligations as stipulated by law.

VI. PROCESSING OF GOODS INVOLVING FOREIGN BUSINESS ENTITIES:

In implementation of the provisions in Chapter VI of Decree No. 12, the Ministry of Trade provides the following detailed guidelines:

1. Goods imported pursuant to a license for testing, and goods imported by way of a ministry managing a specialized industry appointing a particular business entity to conduct such importation as stipulated in Appendix 3 to Decree No. 12 must not be processed for export for foreign parties. The processing of goods pursuant to a license for testing issued by the Ministry of Health must comply with guidelines of the Ministry of Health.

2. Goods on a list of goods in which business is conditional as issued by a ministry managing a specialized industry shall only be permitted to be processed for export for foreign parties after the business entity has satisfied all conditions stipulated by the specialized industry on manufacture of and trading in such goods.

3. The processing of textile and garments for export to quota regulated markets shall comply with joint guidelines from the Ministry of Trade and the Ministry of Industry.

VII. TRANSIT OF GOODS THROUGH THE TERRITORY OF VIETNAM:

In implementation of the provisions in Chapter VII of Decree No. 12, the Ministry of Trade provides the following detailed guidelines:

1. The transit of goods on the list of highly dangerous goods in transit through the territory of Vietnam shall be implemented in accordance with a separate decision of the Minister of Trade.

2. Transited goods of the People s Republic of China, the Democratic Republic of Laos and the Kingdom of Cambodia shall comply with the following three decisions respectively of the Minister of Trade:

- Decision No. 0305-2001-QDBTM dated 26 March 2001 promulgating Regulations on goods of the People s Republic of China in transit through the territory of the Socialist Republic of Vietnam;

- Decision No. 0938-2000-QDBTM dated 30 June 2000 promulgating Regulations on goods of the Democratic Republic of Laos in transit through the territory of the Socialist Republic of Vietnam; and

- Decision No. 1732-2000-QDBTM dated 12 December 2000 promulgating Regulations on goods of the Kingdom of Cambodia in transit through the territory of the Socialist Republic of Vietnam.

VIII. IMPLEMENTING PROVISIONS:

1. All permits for the import or export of goods granted before the effective dates of Decree No. 12 and this Circular shall continue to be valid in accordance with the effective period of validity stated in such permits or their extensions as granted by the competent bodies.

2. The following Circular is hereby repealed: Circular No. 11-2001-TT-BTM of the Ministry of Trade dated 18 April 2001 guiding implementation of Decision No. 46-2001-QD-TTg of the Prime Minister of the Government dated 4 April 2001 on management of import and export of goods in the 2001-2005 period.

3. The following two Decisions of the Minister of Trade are hereby repealed: Decision No. 1311-1998-QD-BTM dated 31 October 1998 promulgating Regulations on business by way of border gate transfer and Regulations on business by way of temporary import for re-export; and Decision No. 2504-2005-QD-BTM dated 10 October 2005 promulgating Regulations on management of activities of temporary import for re-export and border gate transfer of goods the import of which is prohibited or temporarily suspended.

4. Any previous provisions contrary to the provisions of this Circular are also hereby repealed.

5. This Circular shall be of full force and effect as from 1 May 2006.

APPENDIX 1

(Issued with Circular 04-2006-TT-BTM of the Ministry of Trade dated 6 April 2006)
LIST OF SECOND-HAND CONSUMER GOODS AND MEDICAL APPARATUS THE IMPORT OF WHICH IS PROHIBITED

I. USE INSTRUCTIONS

The List was drawn up on the basis of the List of goods and HS codes in the Import Tariff.

Principles for use of this List are as follows:

1. Where only 4-digit headings are enumerated in the List, all goods under 8-digit subheadings pertaining to these 4-digit headings shall be banned from import.

2. Where only 6-digit subheadings are enumerated in the List, all goods under 8-digit subheadings pertaining to these 6–digit subgroups shall be banned from import.

3. Where certain 4-digit headings and 6-digit subheadings are extended to 8-digit subheadings, only goods under these extended 8-digit subheadings shall be banned from import. 

4. Other cases shall comply with the provisions of the List.

5. Used spare parts and accessories (if any) of used consumer goods, which are banned from import, shall also be banned from import.

6. To avoid a too long list, the section of goods description in some cases is shortened as compared with that of the List of the Import Tariff (denoted by triple dots). Implementation should be based on goods descriptions in the List of the Import Tariff.

7. The List shall only be used for implementation of Section 3, Part II of Appendix 01 to the Government’s Decree No. 12/2006/ND-CP of January 23, 2006.

II. LIST OF SECOND-HAND CONSUMER GOODS AND MEDICAL APPARATUS THE IMPORT OF WHICH IS PROHIBITED: