CIRCULAR

GUIDING THE IMPLEMENTATION OF CHAPTER III OF THE GOVERNMENT’S DECREE No. 57/1998/ND-CP OF JULY 31, 1998 DETAILING THE IMPLEMENTATION OF THE COMMERCIAL LAW REGARDING THE GOODS IMPORT, EXPORT, PROCESSING, AND SALE - PURCHASE AGENCY ACTIVITIES WITH FOREIGN COUNTRIES

Pursuant to the February 20, 1990 Customs Ordinance;
In furtherance of Clause 4, Article 29 of the Government’s Decree No.57/1998/ND-CP of July 31, 1998 detailing the implementation of the Commercial Law regarding the goods import, export, processing and sale - purchase agency activities with foreign countries;
The General Department of Customs hereby provides detailed guidance for the implementation of Chapter III on goods processing for foreign traders in the above-said Decree No.57/1998/ND-CP as follows:

I. GENERAL PROVISIONS

1. Goods processing contracts signed between Vietnamese traders and foreign traders with the contents stipulated in Decree No.57/1998/ND-CP of July 31, 1998 of the Vietnamese Government shall serve as basis for the customs offices to carry out the procedures for export and import of goods and to monitor the export and import related to such processing contracts.

The components of a processing contract constitute an integral part of the processing contract.

In the course of performing a processing contract, should there be any changes in or adjustments of such contract’s terms, the Vietnamese traders who have entered into the contract shall have to provide the customs office that monitors the processing contract with documents on such changes or adjustments. The time limit for provision of such documents shall be as follows: If the change in or supplement to provisions of the processing contract relates to the import of raw materials, auxiliary materials, supplies, borrowed machinery and/or equipment, the documents thereon must be provided to the customs office before the import procedures are carried out for such goods. If there is a change in the processing norm or a change or adjustment related to the export of products, the documents thereon must be provided to the customs office before the export procedures are carried out for such products.

Traders signing processing contracts shall have to strictly comply with Vietnamese law provisions on signing and performance of processing contracts.

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3. The customs units that manage processed goods and the places of inspection of processed goods for import and export.

3.1. The customs procedure clearance for a processing contract from the stage of receiving it, the carrying out of customs procedures for each export and/or import goods lot under such contract to the stage of liquidating the contract must be conducted at a customs unit of the province or city where the factory (of the concerned enterprise or another enterprise where the processing contract is performed) or the head office (of the concerned enterprise or a branch of the enterprise, if such branch has a separate business registration certificate or tax registration certificate) is located. In cases where there is no customs office in such locality, the enterprise may choose a customs unit of another place most convenient for it to carry out the procedures, but all procedures for one processing contract must be carried out at the same customs unit. Other special cases shall be decided by the General Department of Customs.

3.2. Export and/or import goods under processing contracts for foreign countries shall be inspected at the warehouses of enterprises or at the export/import border gates. If the goods are inspected at the warehouse of an enterprise, the transport of export goods for which customs procedures have been completed from the enterprises warehouse to the export border gate and the transport of import goods from the import border gate to the enterprise’s warehouse for customs inspection shall comply with the current Regulation on the customs management of transport of export and import goods.

Where the goods must be inspected at the border gate, if the customs unit that manages the processing contract is other than the export/import border gate customs unit, the export/import border gate customs unit shall have to inspect the goods (for import goods) or inspect and supervise the goods actually exported (for export goods) on the basis of the already registered customs dossier sets sent from the customs unit that manages the processing contract together with its written request. After completing the procedures for goods inspection or supervision of the goods actually exported, the export/import border gate customs unit shall return 1 dossier set to the goods owner and transfer 1 sealed dossier set via the goods owner to the customs unit that manages the processing contract for monitoring and liquidation.

4. Except for products paid as the processing remuneration by the processees, all remaining processed products shall have to be exported to the foreign processees or customers designated by the processees (including Vietnamese customers that sign product purchase and sale contracts with the processees).

If the processed products, after being exported abroad, are returned together with a written notice by the processee for reprocessing or repair, the processor shall be allowed to receive such products for reprocessing, then have to re-export them. The reprocessing duration must not exceed 90 days from the date the procedures for their temporary import for reprocessing are carried out. For exceptional cases where exist plausible reasons, extension thereof may be considered and granted by the directors of the provincial/municipal Customs Departments.

In cases where there are plausible reasons that it is impossible to reprocess the goods lot and the processee has a written request for destruction thereof in Vietnam, the director of the provincial/municipal Customs Department shall direct the inspection of each specific case. If it is accurately determined through inspection that the goods the enterprise asks for their destruction are those which have been temporarily imported for reprocessing but not yet exported by the enterprise, he/she shall consider and permit the destruction thereof as in case of discarded materials and defective processed products.

5. Enterprises may export and import sample goods for use as processing models. In this case, the goods samples must clearly express through their forms that they shall be used only as models for the product processing (for example, shoes of one side or in pair which have been holed, products with clearly printed letters showing that they are goods samples or, for the products without such printed letters, the processors or customs officers must, when inspecting these goods, stamp or inscribe thereon the words "goods sample") and the goods lots dossier sets used for customs procedure clearance must clearly demonstrate that they are goods samples.

The number of goods samples for one category of goods is a single sample. Where the goods under one processing contract are processed in different places and it is therefore necessary to have more goods samples, the enterprise must send a written exposition thereon to the customs office that monitors the processing contract for consideration and appropriate settlement but the total number of samples for one category of goods shall not exceed 5.

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II. INTERPRETATION OF A NUMBER OF CONTENTS OF THE DECREE

1. Processors: Vietnamese traders of all economic sectors, regardless of whether they have export and import business enterprise registration codes or not, may process goods for foreign traders, directly export and import machinery, equipment, raw materials, auxiliary materials, supplies, discarded materials, defective products and processed products under processing contracts. Enterprises established under the Law on Foreign Investment in Vietnam may carry out processing activities according to the provisions in Article 75 of the Government’s Decree No. 24/2000/ND-CP of July 31, 2000.

2. Regarding processing contracts stipulated in Article 12 of Decree No. 57/1998/ND-CP:

2.1. Processing contracts may be signed directly or via telegraph (facsimile, telex,...).

2.2. A processing contract shall be made in Vietnamese and English or another foreign language mutually agreed upon by the two parties. In cases where a processing contract is made in a foreign language, the Vietnamese enterprise must have the official Vietnamese translation of such contract, affix its signature and stamp thereon and take responsibility for the contents of such translation.

2.3. The payment mode stipulated in Clause d, Article 12: Processing contracts must clearly state the payment mode: in cash or in processed products. If the processing remuneration is paid in processed products, the types and value of such products must be clearly stated.

3. Regarding the trademarks and the appellations of goods origin stipulated in Clause i, Article 12 of Decree No. 57/1998/ND-CP: They are industrial property objects prescribed in Articles 785 and 786 of the 1995 Civil Code and Articles 6 and 7 of the Government’s Decree No. 63/CP of October 24, 1996. The processing contracts/contractual components must clearly state the trademarks and the appellations of goods origin to be stuck on the products. If in the processing contracts/contractual components the processees pledge to take responsibility for the use of the trademarks and goods origin appellations and for the settlement of disputes over the use thereof, the processed products shall be stuck with the trademarks and the goods origin appellations as agreed upon in the processing contracts/contractual components.

Where such trademarks and goods origin appellations are identical with those already registered for protection in Vietnam, the certificate of the Vietnam Industrial Property Office is required. Those who have the trademarks and goods origin appellations granted with protection deeds in Vietnam and wish to protect their interests in the field of goods processing for foreign countries, shall have to register such deeds with the customs units that deal with the procedures for processed goods. If they do not make such registration, the customs offices shall not have the protection responsibility when their trademarks and goods origin appellations are used by others.

4. Borrowed machinery and equipment stipulated in Chapter III of the Decree include machinery and equipment in complete sets or in separate units, production tools (including replacement or supplement tools) which are provided by the processees by the mode of temporary import for re-export. Borrowed machinery and equipment in service of processing shall comply with the provisions in the Government’s Decree No. 57/1998/ND-CP of July 31, 1998 and the customs procedures therefor shall be carried out under the guidance at Point 2.2, Section A of Part III below.

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5. The norm for the use of raw materials, auxiliary materials and supplies (stipulated in Articles 13 and 18 of the Decree) is the volume of raw materials, auxiliary materials and/or supplies needed for production of a product unit.

The norm for material consumption is the volume of raw materials, auxiliary materials and/or supplies used for production of a product unit, but not constitute the product or a visible part thereof.

The wastage of raw materials, auxiliary materials and/or supplies is the volume of raw materials, auxiliary materials and/or supplies wasted during the production process. Such wastage depends on the quality of materials, auxiliary materials and supplies, workers’ skills, machinery and equipment breakdowns and other causes.

6. Enterprise directors stipulated in Article 13 shall be understood as follows:

For traders being legal persons: They are directors of enterprises. For traders being individuals, they are the individuals themselves. For traders being cooperation groups, they are heads of the cooperation groups. For traders being households: They are the households’ masters.

7. Clause 2, Article 14 stipulates the import of technologies, and export and import management: According to this stipulation, when importing production machinery, equipment and tools, enterprises shall have to abide by the regulations on quality control, labor safety and regulations on specialized management (if the goods are on the list of goods subject to specialized management).

8. The payment of processing remuneration in processed products stipulated in Clause 2.d, Article 15 of the Decree must ensure the following conditions:

- It must be agreed upon in processing contracts (or in a supplementary appendix thereto).

- The value of products to be used for payment of processing remuneration shall not exceed the value of processing charge.

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- The processed products used for payment of processing remuneration shall be liable to import tax and relevant taxes.

- These products must be affixed with the name of the country of origin: "Made in Vietnam".

III. CUSTOMS PROCEDURES

A. Undertaking processing for foreign traders

1. Procedures for receiving processing contracts:

Within 3 working days at most before carrying out the procedures for import of the first lot of goods for the contract, the concerned enterprise shall have to produce the dossier to the customs office for the completion of the contract-receipt procedures. Where there are plausible reasons, the head of the customs office may agree to shorten this time limit.

a/ The dossier set to be produced shall comprise:

- The processing contract and enclosed contractual components (if any), 2 originals and 2 translations (if the contract is made in a foreign language).

- The business registration certificate or investment license for foreign-invested enterprises (if they carry out the contract-receipt procedures for the first time): 2 copies.

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- The certificate of the Vietnam Industrial Property Office (in cases where the trademarks and the goods origin appellations have been registered for protection in Vietnam): 1 original and 1 copy.

b/ The responsibilities of the customs offices when receiving processing contracts:

- To receive processing contracts which comply with Article 12 of the Decree.

- To affix the stamp "CONTRACT RECEIVED" on the contracts and enclosed documents.

Within 2 working days after receiving complete and valid dossiers, the customs offices shall have to complete the contract-receipt procedures. After receiving a contract, the customs office shall keep one dossier set for monitoring, which consists of 1 original contract and enclosed contractual components (if any), and copies of other documents.

c/ Receipt of processing contracts of foreign-invested enterprises:

- For foreign-invested enterprises, Document No. 6487/TM-DT of November 07, 1998 of the Ministry of Trade shall be complied with. They shall not have to register processing contracts with or seek approval thereof from the Ministry of Trade or the body authorized by the Ministry of Trade but shall carry out the contract-receipt procedures directly at the customs offices.

- The dossiers of foreign-invested enterprises must include, apart from the papers specified at Point (a) above, also a description of the capacity of machinery and equipment.

- To be received, the processing contracts must comply with the provisions in Article 12 of the Government’s Decree No. 57/1998/ND-CP of July 31, 1998, while the to be-processed goods thereunder must be compatible with those inscribed in the investment licenses and their quantity compatible with the description of the capacity of machinery and equipment.

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2.1. The procedures for import of raw materials, auxiliary materials and/or supplies (hereinafter collectively called as raw and auxiliary materials) shall be the same as the customs procedures for import goods prescribed in Circular No. 01/1999/TT-TCHQ of May 10, 1999. Besides, the General Department of Customs provides additional guidance on some points as follows:

a/ The customs dossiers to be submitted and produced when the declaration form- registration procedures are carried out:

- Papers to be submitted:

+ The import declaration form: 3 originals,

+ The bill of lading: 01 copy,

+ The commercial invoice (original or copy): 3 copies,

+ The detailed list of goods: 1 original and 2 copies.

- The following papers shall also be submitted:

+ The quarantine registration paper (for goods subject to quarantine): 1 original

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- Papers to be produced:

+ The list of declaration forms (form 01/GC),

+ The processing contract/contractual component related to the import of raw materials, auxiliary materials and/or supplies, for which the customs office has completed the receipt procedures.

+ The written approval of the Ministry of Trade if the imported raw materials, auxiliary materials and/or supplies are on the list of goods banned or suspended by the Vietnamese State from import: 1 original for comparison with the submitted copy.

The to-be-submitted copies above only need to be affixed with the stamp and signature of the enterprise director or deputy director, State notarization is not required. The enterprise directors shall take responsibility before law for the truthfulness of these copies.

b/ Method of including import declaration forms into the list of declaration forms (according to form 01/GC):

- For every processing contract, the list of import declaration forms must be made in two copies. The enterprise shall keep one copy for production to the customs officers when carrying out the import procedures for each goods lot. The customs office shall keep the other copy.

- The inclusion of declaration forms into the lists (both the list produced by the goods owner and the list kept by the customs office) shall be done by the customs officers at the time when they carry out the declaration form registration procedures (or when they receive the bills on the delivery of intermediary processed goods/bills on the delivery of raw and auxiliary materials and/or supplies).

- The list of declaration forms must be clear, accurate, complete and not omit any declaration form. After each inclusion of declaration forms, the customs officers in charge of this task must sign and clearly inscribe their full names in the designated column in the list.

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c/ Sampling of raw and auxiliary materials:

- Except for cases where sampling is impossible due to the nature of goods (gold, silver, hides,...), in other cases, when inspecting raw materials, auxiliary materials and/or supplies imported for processing, the customs officers shall have to collect samples of principal raw materials and big-value auxiliary materials for future comparison when the procedures for export of products are carried out. Samples shall be taken by customs officers together with the enterprises’ representatives. On such samples or their accompanying documents, the names of raw materials and/or auxiliary materials; title and code of the contract/contractual component; goods category; serial number of the declaration form, quantity of samples….must be explicitly inscribed. The customs officers and the enterprise’s representatives must together sign and inscribe their full names on these samples or documents. The samples shall be then sealed up together with their accompanying documents and handed over to the enterprises for preservation and production when the procedures for export of products are carried out.

- If products of one processing contract are inspected simultaneously at different places, the enterprise shall have to anticipate this case and inform the customs office thereof so that a sufficient number of samples shall be taken for one kind of raw material for comparison when the goods are inspected.

- After the leadership of the customs office that manages the processing contract signs to certify the completion of the processing contract liquidation procedures in the processing contract liquidation table (form No. 09/GC), the enterprise may destroy the kept samples of raw materials and auxiliary materials of this contract.

d/ Regarding the tax policy towards raw materials and auxiliary materials imported for the production of processed products, the provisions in Circular No. 172/1998/TT-BTC of December 22, 1998 of the Ministry of Finance shall be complied with.

2.2. The customs procedures for machinery and equipment borrowed in service of processing shall be as follows:

- After the termination of contracts, the temporarily imported machinery and equipment lent by the processees in service of processing must be re-exported back to the processees, excluding equipment and tools which are so damaged that they become discarded materials and are permitted for destruction in Vietnam and which are permitted by the competent body specified at Point 11, Section A of this Part for sale or donation in Vietnam.

- The names, types, quantities and quality of borrowed machinery and equipment must be specified in the contracts/contractual components.

- The customs procedures for these machinery and equipment shall be the same as for goods lots temporarily imported for re-export. Temporary import declaration forms must be included by the customs officers into the list of declaration forms (form 05/GC) right at the time when the procedures are filled in for registration of import declaration forms; the way of inclusion shall comply with Point 2.1.b, Section A above. Machinery and equipment lent by the processees for use in direct service of the production of processed products (to be installed and used in workshops for production of processed products) shall be exempt from duty. The enterprise directors shall be responsible for using such machinery and equipment for the right purposes.

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If machinery and/or equipment get damaged in the course of use and the enterprises wish to send them abroad for repair, the customs units managing the processing contracts shall consider and settle these cases and the customs procedures therefor shall be carried out as for duty-free goods temporarily exported for re-import.

3. The export procedures for processed products:

The export procedures for processed products shall be the same as the customs procedures for export goods prescribed in Circular No. 01/1999/TT-TCHQ of May 10, 1999. Besides, the General Department of Customs provides additional guidance on a number of points as follows:

3.1. The customs dossier to be submitted and produced when the declaration form registration procedures are carried out:

- Papers to be submitted:

+ The export goods declaration form: 3 originals,

+ The detailed list of goods: 3 originals.

- The following papers must also be submitted:

+ The quota allocation document or permit of the competent body (if the processors supply raw materials, auxiliary materials and/or supplies on the list of goods subject to conditional export): 1 copy stamped and signed by the enterprise director or deputy director, which shall be submitted when the card for monitoring of subsequent deductions is issued.

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+ The list of export declaration forms (form 03/GC),

+ The quota allocation document or permit of the competent body (if the processors supply raw materials, auxiliary materials and/or supplies on the list of goods subject to conditional export): 1 original for comparison with the to-be-submitted copy and for issuance of the card for monitoring of subsequent deductions of the quota.

3.2. When inspecting the export products, the customs officers shall compare raw material samples taken when the import procedures are carried out for the constituent raw materials of these products. Where the principal raw materials have gone through a treatment process before being used for the production of products (such as wool, yarn which must be dyed…) so their forms are not the same as when imported, the processors must inform in writing the customs offices thereof and take responsibility before law for using the right imported raw materials to produce the export products. The customs offices shall base themselves on the nature of raw materials to make the comparison, and request expertise in case of any doubt.

3.3. The method of including export declaration forms in the list of declaration forms (form 03/GC).

For every processing contract, the list of export declaration forms shall be made in two copies. The enterprise shall keep one copy for production to the customs office when carrying out the export procedures for each goods lot. The customs office shall keep the other copy. The time and mode of inclusion of declaration forms into this list shall be the same as prescribed for the inclusion of import declaration forms at Point 2.1.b of Section A above.

3.4. The customs procedures for cases where processed products are sold to Vietnamese enterprises for domestic consumption or use as raw materials for the production of export goods and such products are delivered in Vietnam under the designation by the processees. Basing itself on the opinions of the Ministry of Trade in Document No. 1723/TM-DT of April 28, 1999, the General Department of Customs provides the following guidance:

The conditions for delivery and receipt of processed products in Vietnam: Enterprises that buy processed products must sign purchase and sale contracts with foreign sellers (being either the processees or those who purchase goods from the processees then resell them to the Vietnamese enterprises). Such a contract must clearly state that the goods shall be delivered at the Vietnamese processor-enterprise (its name and address, the goods and the processing contract under which the goods are made). These products must be compatible with the goods lines inscribed in the business registration certificate of the goods-purchasing enterprise and in line with the State’s policies on the goods export and import management and the technology import management. If the purchasers are foreign-invested enterprises, such processed products must be among those included in the import plan already approved by the Ministry of Trade or the body authorized by the Ministry of Trade. On the processed products for domestic consumption, the name of the country of origin must be clearly inscribed, i.e. "Made in Vietnam".

The customs procedures shall be as follows:

a/ The export procedures (procedures for delivery of goods by the processing enterprises):

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(ii) Tasks of the customs offices that deal with the export procedures (customs offices that manage the processing contracts): To register declaration forms as for the export of processed products abroad, sign for certification in Blank 47 of the current customs declaration form HQ99-XNK (such certification is not for the goods inspection), seal up the dossiers and transfer them via the goods owners to the customs offices that deal with the import procedures for proceeding with the subsequent steps prescribed at Point c below.

b/ The import procedures (procedures for goods receipt by the purchasing enterprises):

(i) The importing enterprises: To open import declaration forms and adhere to the goods relevant import and tax policies on the right form of import.

(ii) Tasks of the customs offices that deal with the import procedures: To complete the import procedures as prescribed for a goods lot imported from abroad according to the right form (the bill of lading is not required in the customs dossier set).

c/ The inspection of goods actually delivered:

After registering the declaration forms with the customs offices that deal with the export procedures, the exporting enterprises (enterprises that deliver processed goods) shall organize the delivery of goods to the importing enterprises. The customs offices that deal with the import procedures shall inspect the actual conditions of goods, compare the delivered products with the samples of originally imported raw materials, take new samples (if the goods subject to sampling), inscribe the goods inspection results and certify the actual export of goods in the export declaration forms, return 2 copies to the exporting enterprises, one of which shall be submitted by the enterprises to the customs offices that deal with the export procedures and the other shall be filed in the processing contract dossier, then inscribe the goods inspection result and certify the actual import of goods in the import declaration form.

- The certification of actual export of goods must clearly state the number, date and place of registration of the import declaration form and the place of goods delivery.

- The certification of actual import of goods must clearly state the number, date and place of registration of the export declaration form and the place of goods receipt; goods being the products of the company’ under processing contract No… dated….

- Other procedural steps and tax policies shall be complied with according to relevant regulations on each form of import.

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4.1. For cases of the same processee and processor and the same customs unit managing the processing contracts: The processor shall only have to send to the customs unit that monitors the processing contract a written notice on the transfer of raw materials, auxiliary materials, borrowed machinery and/or equipment, together with the written agreement between the two parties. This written notice must clearly state the names, quantities and values of raw materials, auxiliary materials, supplies, machinery and/or equipment to be transferred from which contract to which contract. It shall be valid like the export declaration form (for delivery contracts) or the import declaration form (for receipt contracts).

This written notice shall be made in 4 copies. After the customs office certifies and includes it in the list of export declaration forms (form 03/GC) of the delivery processing contract and the list of import declaration forms (form 01/GC) of the receipt processing contract, it shall keep 2 copies for filing each in one contract dossier and return 2 copies to the enterprise for filing each in one contract dossier.

4.2. For cases of the same processee and processor with different customs units managing the processing contracts: The procedures shall be carried out as for intermediary processed products stipulated below. The bill form shall be the same as form 10/GC with its name changed to "Bill on the transfer of raw materials, auxiliary materials and/or supplies for processing" or "Bill on the transfer of borrowed machinery and/or equipment."

In this case, the bill’s sections must be fully filled in with the certification of the transferor’s and transferee’s customs units according to form 10/GC above. Particularly for the certification sections spared for the signature and stamp of the transferor’s director and the transferee’s director, only one section need to be filled in.

4.3. For cases of the same processee but different processors: The procedures shall be carried out as for intermediary processed products stipulated below. The card form and its name shall be as prescribed at Point 4.2 of this Part.

If the transferor’s customs unit is also the transferee’s, all the card’s sections must be filled in. Particularly for the sections spared for the signature and stamp of the transferor’s customs unit and transferee’s customs unit, only one section need to be filled in.

4.4. For cases of different processees:

On the basis of the processing contracts already received by the customs units and the designation by the processees, the processors and the customs units that manage the processing contracts shall complete the delivery and receipt procedures like the customs procedures prescribed at Point 3.4, Section A above.

4.5. The comparison of samples and the sampling when the procedures for transfer of raw materials, auxiliary materials from one contract to another are carried out:

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5. The procedures for delivery and receipt of intermediary processed products as stipulated in Clause 3, Article 17 of the Decree (applicable to both cases of the same processee and different processees).

5.1. At this point:

- Traders delivering intermediary processed products shall be referred to as the deliverers for short.

- Traders receiving intermediary processed products shall be referred to as the recipients for short.

- The customs office managing the processing contracts of the deliverer shall be referred to as the deliverer’s customs office for short.

- The customs office managing the processing contracts of the recipient shall be referred to as the recipient’s customs office for short.

- Bills for delivery of intermediary processed products shall be referred to as intermediary bills for short.

5.2. In principle, the transfer of intermediary processed products shall be managed by the customs offices, but the customs offices shall not directly handle the procedures for the delivery and receipt of goods. On the basis of the written designation by the processees, the concerned enterprises shall organize by themselves the goods delivery and receipt according to the steps stipulated below. The directors of the delivering enterprises and receiving enterprises shall take responsibility before law for the delivery and receipt of products of the right types, names, specifications, qualities as declared in the intermediary bills. These products must be made of the raw and auxiliary materials for which the deliverers have completed the import procedures with the right quantities, weights or volumes as declared in the intermediary bills.

5.3. The implementation steps:

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b/ Step 2: The recipient, after receiving in full the products, making certification and putting its signature and stamp on all 4 intermediary bills above, shall produce and register such bills with the recipient’s customs office.

c/ Step 3: The recipient’s customs office shall receive the 4 intermediary bills, give its certification with the signature and stamp of its leadership on these bills.

After giving its certification on all the 4 above-said bills, the recipient’s customs office shall return 3 of them to the recipient and keep one bill together with the processing contract under which the intermediary processed products are used.

The recipient shall keep one bill together with the processing contract and hand over two others to the deliverer.

d/ Step 4: The deliverer shall, after receiving back from the recipient 2 intermediary bills with full certifications of the recipient and the recipient’s customs office, have to produce them to the deliverer’s customs office. The deliverer’s customs office shall give its certification, signature and stamp on such 2 intermediary bills, keep one bill together with the processing contract and return the other to the deliverer for filing with the processing contract.

The signatory and stamp of the deliverer’s customs office shall be as prescribed for those of the recipient’s customs office.

5.4. These intermediary bills shall be considered vouchers for future liquidation of the processing contract. For the deliverers, only bills with full certifications, signatures and stamps of the above-said 4 parties shall be valid for contract liquidation. For the recipients, only bills with full certifications of 3 parties (excluding the deliverer’s customs office) shall be valid for contract liquidation. The enterprise directors of the deliverer and the recipient shall take responsibility before law for the legality and truthfulness of the delivery and receipt of intermediary processed products and of these bills.

5.5. For the intermediary processing in case of the same domestic partner but different foreign partners, on the basis of the designation by the processees, the processor- enterprise shall only have to send a report to the customs office on such intermediary processing. This report must clearly state the names, quantity and value of delivered products. It shall be made in 4 copies with the customs office’s certification, of which 2 copies shall be kept by the customs office together with the 2 contracts, 2 others shall be returned to the enterprise for filing together with the 2 contracts.

Such written report shall be valid for contract liquidation.

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The enterprises that undertake the processing for foreign traders may hire other Vietnamese traders to perform the processing and take responsibility before law for this hired processing. The customs offices shall not carry out the procedures for hired processing.

The enterprises that have signed processing contracts with foreign traders shall have to carry out by themselves the export, import and processing contract- liquidation procedures with the customs offices, fulfill other obligations related to the processing contracts and take responsibility before law for the signing and performance of such processing contracts.

7. The procedures for re-export of processing raw materials, auxiliary materials and/or supplies:

In the course of performing processing contracts, at the requests of the processees, the processors may re-export raw materials, auxiliary materials and supplies back to the processees.

The customs procedures therefor shall be the same as those for the export of a lot of processed goods. Apart from the dossier set as required for a lot of export processed goods, a copy of the processee’s re-export request (stamped for certification by the processor-enterprise) and the enterprise’s written request clearly stating the import declaration form of the to-be re-exported goods lot, enclosed with a copy of such declaration form, must be also submitted. The customs office that deals with the re-export procedures shall have to compare the to-be re-exported raw materials, auxiliary materials and supplies with their kept samples which are taken upon their import.

8. The customs procedures for reprocessed products:

The customs offices that manage the processing contracts shall have to deal with the export, import and management procedures until all the reprocessed products are re-exported. When the import or export procedures are carried out, customs declarations shall be registered in the form of temporary import for reprocessing or re-export for reprocessing (using the blank under section 15 of declaration form HQ99-XNK). Declaration forms for import for reprocessing or export for reprocessing shall be separately managed, not included in the list of declaration forms (form 01/GC and form 03/GC).

9. The customs procedures for raw materials and auxiliary materials supplied by the processors themselves in service of processing contracts:

9.1. Conditions for the supplied raw materials, auxiliary materials and supplies:

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- Their norms must be formulated as for raw materials, auxiliary materials supplied by the processee.

- It must be agreed in the processing contract/contractual component upon the names, types and quantities of raw materials, auxiliary materials to be supplied by the processor.

9.2. Supplying mode:

- The processors directly import raw materials, auxiliary materials from abroad under foreign trade contracts for production of the processed products.

- The processors purchase processing raw materials, auxiliary materials on the Vietnamese market (except for cases where they are entitled to the on-the-spot export and import regime).

9.3. The customs procedures:

a/ For cases where raw materials and auxiliary materials are purchased on the Vietnamese market: The customs offices shall not carry out procedures for this purchase but when liquidating their processing contracts, the enterprises must make a list of raw materials and auxiliary materials of this type so that the customs offices can calculate the export tax thereon (if any). If raw materials and auxiliary materials purchased on the Vietnamese market are on the list of goods items banned from export, the written permission of the Ministry of Trade is required; if they are on the list of goods subject to conditional export, the permit of the competent body is required and the scope of such permit (quantity, value) must be strictly complied with.

When carrying out the export procedures for processed products made of raw materials and auxiliary materials purchased on the Vietnamese market, the enterprises must make a written exposition on the use of these raw materials and auxiliary materials to the customs offices that deal with the export procedures so that the latter can monitor and make later deductions of the enterprises limits or quotas (if raw materials and auxiliary materials subject to limits or quotas).

b/ For cases where raw materials and auxiliary materials are directly purchased from abroad by the processors in service of the processing contracts:

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The time limit for payment of tax on raw materials and auxiliary materials imported in the form of import for exports production shall be 275 days as prescribed in Circular No. 172/1998/TT-BTC of December 22, 1998 of the Ministry of Finance.

- When exporting products under the processing contracts, which are made of raw materials and auxiliary materials imported in this form, the processor-enterprises shall make a written exposition to the customs offices that deal with the procedures therefor, clearly stating the use of raw materials and auxiliary materials (with their names, quantities…) imported by the enterprises themselves in the form of import for exports production under import declaration forms No. .. This written exposition shall be filed together with the export declaration form. The export declaration forms shall be registered as prescribed for the form of export processing, with blank 39 of the declaration form HQ99-XNK to be inscribed with: "with the use of raw materials and auxiliary materials of… type, under declaration form No…for import for exports production."

- The norms of the processing contracts, written expositions, export processing declaration forms shall be used as vouchers for liquidation of the processing contracts and the import declaration forms for raw materials and auxiliary materials imported in the form of import for exports production.

After the processed products made of raw materials and auxiliary materials imported in the form of import for exports production have been actually exported, the declaration forms for import for exports production shall be liquidated and their tax-related issues shall be settled.

c/ When carrying out the procedures for liquidation of the processing contracts/contractual components, the enterprises must list all raw materials and auxiliary materials already supplied for the processing contracts/contractual components in Table 07/GC.

10. The procedures for liquidation and settlement of the processing contracts according to Article 18 of the Decree:

10.1. The bases for settlement of processing contracts shall be as prescribed in Clause 2, Article 18 of the Decree.

In cases where the norms inscribed in a processing contract are only temporarily calculated, the readjustment thereof must be agreed upon by the two parties to the processing contract in an contractual component thereto and must be declared to the customs office before the procedures for export of products thereunder are carried out. In this case, the customs office shall not regard such a violation and the readjusted norms shall serve as basis for liquidation of the processing contract.

If the processing contract/contractual component does not specify the norms on material consumption and wastage, such norms are considered having been included in the norms on the use of raw materials, auxiliary materials and supplies for processing.

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When the enterprises register such norms with the customs offices, they must enclose the table of norms with a description of the products’ parameters related to the determination of these norms or the products’ technical drawing stamped for certification by their directors. They are not required to produce product samples.

In the course of processing-contract performance, the customs offices shall not inspect the norms of each goods category. But when there are evidences showing that the norms stated in the processing contracts/contractual components and declared to the customs offices are inaccurate or untruthful, they shall inspect such norms and may even apply the inspection measure after the release of goods as prescribed in Clause 2, Article 10 of the Government’s Decree No. 16/1999/ND-CP of March 27, 1999 stipulating the customs procedures, customs supervision and customs fees. If violations are detected, the enterprise directors shall be handled according to law provisions.

10.2. The liquidation dossier shall comprise:

- The processing contract and its contractual components;

- The list of declaration forms of imported raw materials, auxiliary materials and supplies (including the bill or document for delivery of intermediary processed products and the bill or written notice on the delivery of processing raw materials, auxiliary materials and/or supplies) enclosed with such declaration forms, bill or written notice (form 01/CG);

- The sum-up list of imported raw materials, auxiliary materials and supplies (including raw materials being intermediary processed products, raw materials, auxiliary materials and/or supplies transferred from another processing contract, form 02/GC).

- The list of declaration forms of export processed products (including the bill for delivery of intermediary processed products), enclosed with such declaration forms and bill (form 03/GC).

- The sum-up list of the processed products already exported (form 04/GC).

- The list of declaration forms of imported machinery and equipment (including the bill or written notice on the transfer of machinery and equipment from another contract), enclosed with such declarations, bill or written notice (form 05/GC).

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- The list of raw materials, auxiliary materials and supplies provided by the processor (form 07/GC).

- The sum-up list of raw materials, auxiliary materials and supplies already used for the production of export products (form 08/GC).

- The written liquidation of the processing contract (form 09/GC). The enterprise must clearly state therein the form of handling surplus raw materials and auxiliary materials (if any).

10.3. The liquidation time limit:

- Within 3 months after the termination of a processing contract, the processor shall have to complete the contract liquidation with the customs office (including the handling of surplus raw materials, auxiliary materials and materials, temporarily imported machinery and equipment, discarded materials and defective products). Processing contracts with a term of over one year must be divided into small contractual components with a performance term not exceeding one year. The time limit for liquidation of a processing contract’s contractual components shall be the same as for liquidation of processing contracts. Any surplus raw materials and auxiliary materials after the liquidation of one contractual component may be used for the next component of the processing contract.

Past that time limit, if the enterprises fail to complete the contract liquidation without plausible reasons accepted by the leader of the customs office managing the processing contracts, they shall be sanctioned for administrative violations in the field of customs as prescribed in Article 12c amending and supplementing Article 12 of the Government’s Decree No. 16/CP of March 20, 1996 (of the Government’s Decree No. 54/1998/ND-CP of July 21, 1998).

- Within 10 working days after receiving the complete contract liquidation dossiers submitted by the enterprises, the customs offices must complete the contract liquidation.

11. The competence to handle surplus raw materials, auxiliary materials and supplies as well as temporarily imported machinery and equipment in service of processing after the termination of contracts:

11.1. The customs offices may permit:

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- Their transfer to other processing contracts;

- Destruction of discarded materials and defective products in Vietnam;

- Sale or donation in Vietnam of raw materials, auxiliary materials, supplies; machinery and/or equipment, which have been lent by the processees in service of the processing contracts and are not on the lists of goods banned or suspended from import or subject to conditional import.

11.2. The cases where the approval of the Ministry of Trade is required (as stipulated in Clause 3, Article 18 of the Decree) include: Sale and donation in Vietnam of raw materials, auxiliary material and supplies; machinery and equipment, which have been lent by the processees in service of the processing contracts and are on the lists of goods banned or suspended from import or subject to conditional import.

12. The procedures for destruction of discarded materials and defective products (stipulated in Clause 4, Article 18 of the Decree):

12.1. The discarded materials and defective products mentioned at this point are construed as follows:

- Discarded materials are raw materials, auxiliary materials and supplies discarded in the production, processing or preservation process due to their failure to meet the quality requirements for use as raw materials for the production of products; are machinery, equipment and tools which are damaged or worn out so seriously that they can no longer be used to produce the products.

- Defective products are products which fail to meet the technical standards required by the processees.

12.2. The destruction procedures:

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- The enterprise shall organize by itself the destruction under the supervision of at least two supervisors sent by the customs office that monitors the processing contract so as to ensure that the to-be destroyed raw materials and auxiliary materials originate from the raw materials and auxiliary materials imported under the processing contract as declared by the enterprise and that they are actually destroyed. A record confirming the destruction result must be made, affixed with the signature and stamp of the director of the enterprise having the destroyed materials, signatures and full names of the customs officers supervising the destruction and other persons designated by the enterprise’s director to participate in supervising the destruction. In cases where the destruction may affect the environment, the enterprises shall have to obtain the consent of the environment management agency before proceeding with the destruction. If the environment agency does not permit the destruction in Vietnam, the enterprises shall have to re-export discarded materials and defective processed products back to the processees.

- The to-be destroyed discarded materials and defective processed products shall not be subject to expertise. The processor-enterprises shall take responsibility before law and the processees for the to be-destroyed discarded materials and defective processed products.

- Discarded materials and defective processed products which have been completely destroyed (it is impossible to use them for other purposes) shall be exempt from tax.

For discarded materials and/or defective processed products of metal origin (for example, discarded materials being machinery, equipment, products made of metal…), which cannot be completely destroyed and now become discarded metal wastes in the form of raw materials usable for other purposes, the enterprises must pay import tax and other relevant taxes on the type of destroyed discarded materials.

13. The procedures for donation of machinery, equipment, raw materials, auxiliary materials, supplies, discarded materials and defective products as stipulated in Clause 5, Article 18 of the Decree:

The donees shall have to carry out the import procedures at the customs offices that monitor the processing contracts, and to pay import tax (if any). The tax calculation price shall be determined on the basis of the actual value of the goods at the time the procedures for reception of donated goods are carried out. The dossier for customs procedure clearance shall comprise:

- The customs declaration forms (the non-commercial goods declaration form): 3 copies.

- The processee’s written paper on the donation;

- The written approval of the Ministry of Trade (if the donated goods are on the list of goods banned or suspended from import or subject to conditional import).

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After the customs procedures for the donated goods lot are completed, 1 customs declaration form shall be returned to the donee, 1 kept together with the processing contract with donated goods and 1 handed over to the processor-enterprise for filing with the processing contract.

For goods donated for charity purposes, the tax exemption therefor shall be considered and settled on the case-by-case basis by the Ministry of Finance according to the provisions at Point 4, Section II, Part D of Circular No. 172/1998/TT-BTC of December 22, 1998 of the Ministry of Finance. To be exempt from tax, the donees of charity goods must send an application therefor to the Ministry of Finance. When dealing with the goods-receipt procedures, if there is a written approval of tax exemption by the Ministry of Finance, the customs office shall not collect tax; if not, the customs office shall collect tax as for other donated objects.

14. The customs procedures for the sale of surplus raw materials, auxiliary materials, borrowed machinery and equipment after termination of processing contracts:

14.1. The dossier for customs procedure clearance shall comprise:

- The written approval of the Ministry of Trade (if the goods are on the list of goods banned or suspended from import or subject to conditional import).

- The customs declaration form: 3 copies.

If the enterprises purchase such raw materials, auxiliary materials, supplies, machinery and/or equipment for domestic consumption, they shall register declaration forms as for non-commercial goods.

If the enterprises purchase such raw materials, auxiliary materials, machinery and/or equipment for use as raw materials for the production of export goods, they shall register declaration forms as for goods imported for exports production.

14.2. Tax calculation prices: shall be determined on the basis of the actual value of goods at the time they are permitted for domestic consumption.

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1. Vietnamese traders of all economic sectors may order the overseas processing of goods for export in accordance with the laws of Vietnam and the foreign country where the goods processing is ordered. Where the processed products are to be imported back into Vietnam, they must meet the conditions stated in Clause 1, Article 19 of Decree No. 57/1998/ND-CP. Besides, the enterprises shall be allowed to order only the processing of the production phases, which have not yet been performed by Vietnam or have been performed but with the quality being below the requirements. The determination of this criterion shall be based on the lists announced every year by the specialized ministries, if these lists are not available yet, the enterprises must obtain written certifications of this matter from such specialized branch-managing ministries.

The use of trademarks and goods origin appellations shall comply with the law provisions of the country where the processing is undertaken. If the processed products are to be imported back into Vietnam, they must comply with the provisions of Vietnamese legislation on protection of industrial property rights and submit to the control in this field like other goods imported from abroad into Vietnam.

2. The procedures for receiving contracts on ordering the overseas goods processing:

The procedures for receiving contracts/contractual components on ordering the overseas goods processing must be carried out at the customs offices. At least 3 working days before the procedures for export of the first goods lot under the processing contract are carried out, the Vietnamese enterprise that orders the overseas processing shall have to produce the processing contract to the customs office. For cases with plausible reasons, the head of the customs unit that deals with such procedures may agree to shorten this time limit.

a/ The dossier set to be produced shall comprise:

- The processing contract and enclosed contractual components (if any): 2 originals.

- The business registration certificate (if the receipt procedures are carried out for the first time): 2 copies.

- The written approval of the Ministry of Trade or the competent State management body (if the goods exported for ordered processing are on the list of goods banned from export and the export of which must be permitted in writing by the Ministry of Trade or the competent State management body): 1 original and 1 copy.

- The document of the specialized ministry (certifying the processing phase ordered abroad is the production phase which has not yet been performed in Vietnam or has been performed in Vietnam but with the quality being below the requirements; or the agreement of the specialized ministry, if the goods exported for ordered overseas processing and the products to be imported back into Vietnam are subject to permission of the specialized body): 1 original and 1 copy.

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- To receive the processing contracts which comply with the provisions in Article 12 of the Decree and meet the conditions stated at Point a, Section B above.

- To affix the stamp "CONTRACT RECEIVED" onto the contract and its enclosed documents.

Within 4 working hours after receiving the complete and valid dossiers. the customs offices shall have to complete the above-said procedures for receipt of processing contract. After receiving them, they shall keep 1 dossier set for monitoring, which comprises 1 original contract and enclosed contractual components (if any), and the copies of other documents.

3. The procedures for export of machinery, equipment, raw materials, auxiliary materials and supplies:

a/ For machinery and equipment: they shall have to go through the customs procedures and comply with the export and import policy like goods temporarily exported for re-import but shall not be liable to tax.

b/ For raw materials, auxiliary materials and materials: their declaration forms shall be registered as prescribed for goods exported for processing. When inspecting them, goods inspectors must take and keep samples of principal raw materials and big-value auxiliary materials in cases where samples can be taken. The way of sampling shall be as prescribed at Point 2.1.c, Section A above.

4. The import procedures:

a/ The procedures for import of machinery, equipment, surplus raw materials, auxiliary materials and supplies:

- For machinery, equipment, surplus raw materials, auxiliary materials and supplies which have been exported from Vietnam in service of the processing, if they are imported back into Vietnam, they shall go through the import procedures like goods lots temporarily-exported for re-import and shall not be liable to tax. For surplus raw materials and supplies, when the procedures for their re-import are carried out, they must be compared with their samples taken when the procedures for their export are carried out.

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b/ The procedures for import of processed goods: their declaration forms shall be registered as prescribed for goods imported for processing. When inspecting them, customs inspectors must compare the constituent raw materials and auxiliary materials of the products with the kept raw material and auxiliary material samples taken when the procedures for their export are carried out.

5. The liquidation of processing contracts:

The liquidation dossiers and procedures shall comply with the provisions at Point 10, Section A, Part III above.

IV. HANDLING OF VIOLATIONS

All acts of violating the provisions in Decree No. 57/1998/ND-CP mentioned above and in this Circular shall, depending on their seriousness, be handled according to the Decree on handling administrative violations in the field of State management over customs and other relevant law provisions or be examined for penal liability as prescribed by law.

V. IMPLEMENTATION ORGANIZATION

1. This Circular takes effect 15 days after its signing and replaces Circular No 03/1998/TT-TCHQ of August 29, 1998 of the General Department of Customs and its relevant guiding documents.

2. Once every six months, the provincial/municipal Customs Departments that manage processed goods shall report to the General Department of Customs on the implementation of this Circular.

3. The heads of the departments under the General Department of Customs; the directors of the provincial/municipal Customs Departments, the principal of the Customs College, the concerned organizations and individuals shall have to organize the implementation of this guiding Circular.

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FOR THE GENERAL DIRECTOR OF CUSTOMS
DEPUTY GENERAL DIRECTOR




Dang Van Tao

THE LIST

OF GUIDING DOCUMENTS OF THE GENERAL DEPARTMENT OF CUSTOMS, WHICH ARE REPLACED BY CIRCULAR No. 07/2000/TT-TCHQ OF NOVEMBER 2, 2000

Ordinal number

Form of document

Serial number, code

Date of promulgation

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Note

1.

Circular

03/1998/TT-TCHQ

29/8/1998

Guiding the implementation of Chapter III (processing with foreign countries) of the Government’s Decree No. 57/1998/ND-CP of July 31, 1998

2.

Official dispatch

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3/10/1998

Registering the processing contracts of foreign-invested enterprises

3.

Official dispatch

4201/TCHQ-GSQL

16/11/1998

Further explanning a number of points of Circular No. 18/1998/TT-BTM and Circular No. 03/1998/TT-TCHQ

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Official dispatch

4719/TCHQ-GSQL

17/12/1998

Ordering the overseas processing

5.

Official dispatch

95/TCHQ-GSQL

16/1/1999

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6.

Official dispatch

1270/TCHQ-GSQL

10/3/1999

Destroying the processing discarded materials and/or faulty products

7.

Official dispatch

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30/3/1999

Explaining a number of points of Circular No. 03/TT-TCHQ

8.

Official dispatch

2559/TCHQ-GSQL

13/5/1999

Settling the problems in export processing products

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