DECREE

ON CUSTOMS VALUATION OF IMPORTED AND EXPORTED GOODS

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated 25 December 2001;
Pursuant to the Law on Export and Import Duties dated 14 June 2005;
Pursuant to the Law on Customs dated 29 June 2001 as amended on 14 June 2005;
Pursuant to Resolution 71-2006-QH11 of the National Assembly dated 29 November 2006 ratifying the protocol on Vietnam's accession to the World Trade Organization;
On the proposal of the Minister of Finance;

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1 Governing scope and applicable objects

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2. The applicable objects of this Decree shall be imported and exported goods.

3. If an international treaty of which Vietnam is a member contains provisions which are different from those in this Decree, the provisions of such international treaty shall prevail.

Article 2 Interpretation of terms

1. Transaction value means the price actually paid by the purchaser or which the purchaser will have to pay for goods sold in order to export them to Vietnam, after making the adjustment stipulated in article 13 of this Decree.

2. Price actually paid or which will have to be paid means the total amount of money paid by the purchaser or which the purchaser will have to pay directly or indirectly to the seller in order to purchase imported goods.

3. Sale for export to Vietnam means a commercial activity whereby goods are transferred from a seller to a purchaser via a bordergate or border of Vietnam, or from a non-tariff zone onto the domestic market, for the purpose of transferring ownership of the goods from the seller to the purchaser.

4. Export date used in the methods of determining the transaction values of identical and similar imports means the date when goods are loaded onto a means of transport pursuant to a bill of lading. In the case of goods transported by road, export date means the date of registration of the customs declaration.

5. First bordergate of importation means the destination port stated in the bill of lading. In the case of transport by international road, rail or river, first bordergate of importation means the destination port stated in the contract.

6. Exchange of information means the customs office and a customs declarant exchange and supply information relating to determination of dutiable values previously declared, at the request of the customs declarant.

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8. Similar imports means goods imported into Vietnam which, though not identical in all aspects, have the same basic characteristics; are made from the same raw materials or materials; have the same function; are interchangeable in commercial transactions; and are manufactured in the same country by the same manufacturer or by another manufacturer authorized by the former.

9. Selling price calculated on the largest quantity sold and used in the deductive method of determining dutiable value means the selling price of the largest aggregate quantity of goods sold during sales of the goods to purchasers without a special relationship with the seller on the first commercial day after import.

10. Earliest day after import and used in the deductible value method means the day on which goods are sold in a sufficient quantity to formulate a unit price (minimum of 10% of the volume of such line of goods in an import consignment).

11. In the same condition as when imported and used in the deductible value method means goods whose shape, characteristics, properties and utility are not altered in any way whatsoever or whose value is not increased or reduced after importation.

12. Goods of the same grade or category and used in the deductible value method means goods in the same group or group framework as a result of their manufacture by the same manufacturer or manufacturing industry, and includes both identical imports and similar imports.

13. A purchaser and seller shall be deemed to have a special relationship when:

(a) One is an employee or director of the other's enterprise;

(b) They are partners contributing capital to the same legally recognized business;

(c) One is a person hiring the other;

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(dd) They are both controlled by the same third party;

(e) They both control the same third party;

A person having the power to control another person as referred to in sub-clauses (d), (dd) and (e) of this clause means a person who can directly or indirectly restrict or instruct such other person.

(g) They have the following family ties:

- Husband and wife;

- Parents and children recognized by law;

- Grandparents and grandchildren with a blood tie;

- Aunts or uncles, nephews or nieces with a blood tie;

- Siblings;

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(h) A third person owns, controls or holds five per cent or more of the voting shares of both parties;

(i) Parties associated in business with one another where one party is the sole agent, sole distributor or sole franchisor of the other party shall be deemed to have a special relationship if the relationship is consistent with the provisions in sub-clauses (a) to (h) of this clause.

Article 3 Time of making a customs valuation and time-limit for paying duty

1. The time of making a customs valuation shall be the date on which the customs declarant registers the customs declaration of imports or exports.

2. In a case where a customs valuation is made by the customs office, the time of making the customs valuation shall be the date when the custom office conducts a valuation in accordance with the provisions of this Decree.

3. A customs declarant must complete payment of duty within a maximum time-limit of ten (10) working days from the date on which the customs office provides written notice fixing duty pursuant to the value determined by the customs office.

Article 4 Principles and methods for making a customs valuation for the purpose of calculating duty

Customs valuations for the purpose of calculating duty on imports or exports (hereinafter referred to as dutiable value) shall be made on the following principles and by the following methods:

1. Dutiable value of exports shall be the selling price at the bordergate (FOB price, DAF price) excluding insurance (I) and freight (F).

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If a customs declarant makes a written request, the order of application of the methods stipulated in articles 10 and 11 may be reversed.

3. The Ministry of Finance shall, based on the principles for making a customs valuation in order to calculate dutiable value as stipulated in clause 2 of this article, provide specific regulations on dutiable value of imports in the following cases:

(a) After imports have been exempted from duty and commissioned for use in Vietnam, a competent State body permits a transfer or change of the purpose for which duty was exempted;

(b) The imports are hired or borrowed goods;

(c) The imports were sent overseas [i.e. to Vietnam] for repair or processing;

(d) The imports are warranty or sale promotion goods;

(dd) The imports do not have a sale and purchase contract, such import goods to include:

- Goods sold, purchased or exchanged by border residents;

- Goods imported by passengers on entry, and gifts or assets transferred in excess of the duty-free limit;

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(e) Other imported goods which have peculiar features.

Article 5 Customs valuations for statistical purposes

1. Customs valuations of imports or exports for statistical purposes (hereinafter referred to as statistical value) shall be made on the following principles:

(a) The statistical value of goods subject to payment of duty shall be the dutiable value already fixed on the principles and by the methods stipulated in article 4 of this Decree;

(b) In the case of goods not subject to payment of duty or not entitled to consideration for exemption from duty, or for which the dutiable value cannot be determined pursuant to article 4 of this Decree, the statistical value shall be the value declared by the customs declarant on the following principles:

- The statistical value of imports shall be the sale price at the first import bordergate (CIF price);

- The statistical value of exports shall be the sale price at the export bordergate (FOB price, DAF price).

2. The Ministry of Finance shall provide specific regulations on the collation, processing, use and archiving of statistical values.

Article 6 Price database

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2. The price database stipulated in clause 1 of this article shall only be used as a tool to assess risks and shall not be used to fix dutiable value of imports either by replacing the price of the imports or by setting a minimum price.

3. The Ministry of Finance shall provide specific regulations on the establishment, management and use of the available price database.

Chapter II

METHODS OF DETERMINING DUTIABLE VALUE OF IMPORTS

Article 7 Method of determining dutiable value on the basis of the transaction value of imports

1. The dutiable value of imports shall be their transaction value.

The transaction value shall be the price actually paid by the purchaser or which the purchaser will have to pay for goods sold in order to export them to Vietnam after making the adjustment stipulated in article 13 of this Decree.

The price actually paid or to be paid shall be fixed as the total amount of money paid by the purchaser or which the purchaser will have to pay directly or indirectly to the seller in order to purchase imported goods, and shall include the following items:

(a) Purchase price shown on the commercial invoice. When such price includes allowances or reductions for the consignment of imported goods in accordance with international commercial practice, such allowances or reductions shall be deducted when determining dutiable value.

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(b) Monetary amounts which must be paid by the purchaser but are not included in the purchase price shown on the commercial invoice, including:

- Advance payments, and deposits for production, sale and purchase, freight and insurance of goods;

- Indirect payments to the seller such as amounts paid by the purchaser to a third party at the request of the seller; and amounts paid by way of debt clearing.

2. The conditions applicable to the method of determining dutiable value on the basis of transaction value shall be:

(a) The right of the purchaser to dispose of or use the goods after import is unrestricted, except for:

- Restrictions on the purchase, sale and use of goods pursuant to the law of Vietnam;

- Restrictions on places where the goods may be sold after import;

- Other restrictions which do not affect the value of the goods;

(b) The price of the goods or the sale does not depend on conditions or payment items for which the value of the goods is indeterminable;

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(d) The purchaser and seller do not have a special relationship, or if they do it does not affect the transaction value.

3. Proving a special relationship shall not affect the transaction value.

(a) Where the customs office has grounds for believing that a special relationship affects the transaction value, the customs office must immediately notify the grounds in writing to the customs declarant.

(b) The customs office shall facilitate the customs declarant to supply more information in order to clarify that the special relationship between the purchaser and the seller does not affect the transaction value. If on the expiry of thirty (30) working after the date of receiving a notice from the customs office, the customs declarant has failed to supply additional information, the customs office shall determine dutiable value pursuant to article 15.7 of this Decree.

(c) The special relationship between the purchaser and the seller shall be deemed not to affect the transaction value when one of the following conditions is satisfied:

- Results of a check of the purchase and sale transaction of the imports show that such transaction was conducted the same as with purchasers without a special relationship and that the special relationship did not affect the price of the goods;

- The transaction value approximates to one of the following values of a consignment of goods exported to Vietnam on the same day or within sixty (60) days before or after the exportation of the consignment of goods being valued:

(i) The transaction value of identical or similar imported goods sold to other importers not having a special relationship with the exporter (the seller);

(ii) Dutiable value of identical or similar imported goods determined pursuant to article 10;

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Article 8 Method of determining dutiable value on the basis of transaction value of identical imports

1. For imports for which the dutiable value cannot be determined pursuant to article 7 of this Decree, the dutiable value shall be the transaction value of identical imported goods for which dutiable value has been determined pursuant to article 7 of this Decree.

2. Identical imports must satisfy the following conditions:

(a) Identical consignments of imported goods were exported to Vietnam on the same day or within sixty (60) days before or after the export date of the consignment of goods being valued;

(b) ldentical consignments of imported goods were traded at the same level or have been adjusted to the same level of wholesale or retail; and had the same quantity or have been adjusted to the same quantity as the consignment of goods being valued;

(c) ldentical consignments of imported goods had the same transport distance and mode, or have been adjusted to the same transport distance and mode as the consignment of goods being valued.

3. Upon application of the method of determining dutiable value pursuant to this article, consignments of goods manufactured by other manufacturers shall only be taken into account if there are no consignments of goods manufactured by the same manufacturer, and such other consignments must comply with the provisions on identical imported goods.

4. If two or more transaction values of identical imported goods are fixed when determining dutiable value pursuant to this article, the dutiable value shall be the lowest transaction value after the price level has been adjusted so that the conditions are the same as stipulated in clause 2 of this article.

Article 9 Method of determining dutiable value on the basis of transaction value of similar imports

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2. Similar imports must satisfy the following conditions:

(a) Similar consignments of imported goods were exported to Vietnam on the same day or within sixty (60) days before or after the export date of the consignment of goods being valued;

(b) Similar consignments of imports were traded at the same level or have been adjusted to the same level of wholesale or retail; and have the same quantity or have been adjusted to the same quantity as the consignment of goods being valued;

(c) Similar consignments of imports had the same transport distance and mode, or have been adjusted to the same transport distance and mode as the consignment of goods being valued.

3. Upon application of the method of determining dutiable value pursuant to this article, consignments of goods manufactured by other manufacturers shall only be taken into account if there are no consignments of goods manufactured by the same manufacturer, and such other consignments must comply with the provisions on similar imports.

4. If two or more transaction values of similar goods are fixed when determining dutiable value pursuant to this article, the dutiable value shall be the lowest transaction value after the price level has been adjusted so that the conditions are the same as stipulated in clause 2 of this article.

Article 10 Method of determining dutiable value on the basis of deductible value

1. If the dutiable value of imported goods cannot be determined pursuant to articles 7, 8 and 9 of this Decree, dutiable value shall be the deductible value which shall be determined on the basis of the sale price of the imports, identical imports or similar imports on the Vietnamese market less reasonable expenses arising after importation.

2. The sale price of the imports on the Vietnamese market shall be determined on the following principles:

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(b) The importer and the domestic purchaser have no special relationship;

(c) The sale price is calculated on the largest quantity of goods sold and is sufficient for the formation of a unit price;

(d) The goods are sold (wholesale or retail) on the earliest day after importation but no later than ninety (90) calendar days after the date of importation of such consignment of goods.

3. Reasonable expenses arising after importation of goods:

(a) Where the importer purchases goods by the mode of definitive purchase and sale, deductions shall include:

- Expenses being freight and insurance when the goods are sold on the domestic market;

- Taxes, charges and fees payable to the State budget upon import and sale of the goods, which under current law are accounted into sales turnover, cost price and expenses of the sale of the imports;

- General management expenses related to the sale of the imports;

- Profit on sale earned after import of the goods.

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Where the selling agent is authorized by the foreign business entity to carry out some post import activities in Vietnam outside the agency contract, expenses arising in Vietnam for these activities shall also be deducted within the limit of expenses agreed in the contract.

Post import expenses deducted pursuant to clause 3 of this article must truthfully reflect general expenses and actual profit which are normal in dealings in such line of goods.

4. The dutiable value of imports undergoing further processing in Vietnam shall also be determined on the principles stipulated in clause 1 of this article, and expenses for processing which add value to the goods shall be deducted.

The method of determining dutiable value on the basis of the deductible value stipulated in this article shall not be applied when:

- The imports, after being processed, are no longer in the same condition as when imported;

- The imports, after being processed, still maintain the same characteristics, nature and utility as when imported but such goods constitute only a part of the goods sold on the Vietnamese market.

When imports after being processed are no longer in the same condition as when imported but their value added by processing can still be accurately determined, their dutiable value shall still be determined pursuant to this article.

5. The data for calculating deductible value shall be supplied by the importer or its agent, except where such data is inconsistent with data collected from transactions being sales in Vietnam of imported goods of the same grade or category.

If the data supplied by the importer is inconsistent with data collected from transactions being sales in Vietnam of imported goods of the same grade or category, then deduction of profit and general expenses shall be based on objective and quantifiable data apart from the information supplied by the importer or its agent.

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Article 11 Method of determining dutiable value on the basis of computed value

1. If the dutiable value of imported goods cannot be determined pursuant to articles 7 to 10 inclusive of this Decree, dutiable value shall be the computed value which shall include the following items:

(a) Cost price or value of raw materials and supplies, and expenses of the production stage or of other processing during manufacture of the imports and including:

- Expenses stipulated in article 13.1(a);

- Value of the goods or services stipulated in article 13.1(b) if such goods or services were supplied by the purchaser directly or indirectly for use during manufacture of the imports.

Dutiable value may only include items being the cost of technical equipment and expenses for construction designs, implementation plans, art designs, model designs, plans and sketches if such work was performed in Vietnam and was necessary for the manufacture of the imports;

(b) Expenses for and profit from sale of the imports;

(c) Adjusted expenses as defined in article 13.1 (dd) and (e) of this Decree.

2. The expenses and profit used to calculate computed value stipulated in this article must be considered on an overall basis.

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4. It shall not be permitted to inspect or require presentation for inspection of the accounting books or any other file whatsoever of a non-resident of Vietnam for the purposes of determination of the computed value stipulated in this article.

Evaluation of information supplied by the manufacturer of the goods assisting determination of the computed value stipulated in this article may take place outside Vietnam if:

(a) The manufacturer consents; and

(b) Advance notice is provided to the competent body of the country concerned and such body consents to the evaluation taking place.

Article 12 Deductive method of determining dutiable value

1. If the dutiable value of imported goods cannot be determined pursuant to articles 7 to 11 inclusive of this Decree, dutiable value shall be determined by the deductive method.

The deductive method means the sequential and flexible application of each method for determining dutiable value stipulated in articles 7 to 11 inclusive and stopping at the method by which the dutiable value can be determined, provided that such application complies with clause 2 of this article and is based on data, figures and information available at the time of determining the dutiable value.

2. When the deductive method is applied, the following values must not be used to determine dutiable value:

(a) Domestic market sale price of goods of the same category manufactured in Vietnam;

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(c) Sale price of goods for export to another country;

(d) Expenses of manufacture of goods, excluding those of manufacture of imports stipulated in article 11 of this Decree;

(dd) Minimum dutiable price;

(e) All types of assumed or arbitrary prices;

(g) A valuation system permitting the use of the higher of two alternative values as the dutiable value.

Article 13 Adjustments

1. The following items shall be added to the transaction value when determining dutiable value:

(a) Expenses which must be borne by the purchaser but are not yet included in the transaction value:

- Seller's and broker's commission;

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Packaging deemed part of imported goods means packaging which always accompanies the goods as a condition for preservation or use of such goods, and which is classified together with the goods according to current classification principles and goods' codes.

- Cost of packing, including cost of materials and labour.

(b) The value of goods and services supplied free of charge or at a reduced cost by the purchaser to the seller to manufacture and sell goods imported into Vietnam, not yet included in the price actually paid or to be paid including:

- Raw materials, component parts and similar accessories incorporated into the imports;

- Tools, dies, moulds and similar accessories used in the manufacture of the imports;

- Raw materials and materials consumed in the manufacture of the imported goods;

- Technical designs, construction designs, implementation plans, art designs, model designs, plans and sketches made overseas and necessary for the manufacture of the imported goods;

(c) Royalties and licence fees for the use of intellectual property rights related to the imports which must be paid by the purchaser as a condition for purchase and sale of the imports;

(d) Proceeds collected by the purchaser after the disposal or use of the imports and transferred in any form to the seller of the imports;

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(e) Expenses to insure the goods for freight to the bordergate of importation.

2. The following items shall be subtracted from the transaction value if they are already included in the purchase price of the imports:

(a) Expenses for activities arising after importation including expenses for construction, architecture, installation, maintenance or technical assistance;

(b) Expenses for domestic [i.e. within Vietnam] freight and insurance arising after importation;

(c) Taxes, charges and fees payable to the State budget which are incorporated in the purchase prices of the imports;

(d) Any discount made before loading the goods onto the means of transport in the exporting country, expressed in writing and submitted together with the import customs declaration;

(dd) Expenses which the purchaser must bear relating to marketing of the imported goods, namely:

- Market research regarding the product about to be imported;

- Advertising the trademark of the goods to be imported;

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- Participation of the imports in exhibitions and trade fairs;

- Expenses for inspecting quality and quantity prior to import. However these expenses may not be excluded from the transaction value if the purchaser and seller agreed they would form part of the actual price paid by the purchaser or which the purchaser will have to pay for the goods;

- Expenses for opening a letter of credit to pay for the consignment of imported goods, if paid by the purchaser to its agent bank to make payment for the imports;

(e) Interest as financially agreed by the purchaser and relating to the purchase of the imported goods may be subtracted from the transaction value if the following conditions are satisfied:

- The financial agreement is in writing;

- On request the customs declarant will prove that the declared value is essentially the price paid by the purchaser or which the purchaser will have to pay for the goods; and

- The declared interest rate does not exceed the normal rate in Vietnam at the time of making such financial agreement;

- There are objective data and quantifiable figures justifying subtraction of interest from the price paid by the purchaser or which the purchaser will have to pay for the goods.

3. The addition or subtraction of the expenses stipulated in clauses 1 and 2 of this article shall only be made on the basis of available, objective and quantifiable data which complies with the law on accounting.

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Chapter III

RIGHTS AND OBLIGATIONS OF CUSTOMS DECLARANTS, RESPONSIBILITIES OF CUSTOMS OFFICES

Article 14 Rights and obligations of customs declarants

1. Customs declarants shall have the following rights:

(a) To require the customs office to maintain the confidentiality of information which customs declarants supply and which relates to determination of dutiable value;

(b) To request the customs office to notify and guide the determination of dutiable value in accordance with the provisions of this Decree;

(c) To the exchange of information stipulated in article 2.6 of this Decree;

(d) To lodge a complaint about the decision of the customs office on dutiable value;

(dd) To require the customs office to notify dutiable value in writing together with the method and calculation used by the customs office to determine dutiable value;

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2. Obligations of customs declarants:

(a) To comply with the principle of accurate and truthful self-declaration and self-determination of dutiable value; to be legally liable for the accuracy and truthfulness of declared items and for the results of the determination of dutiable value;

(b) To supply truthful information, valid documents and source vouchers for use as the basis for determination of dutiable value at the request of the customs office;

(c) To pay duty on the price fixed by the customs office as stipulated in article 15.7 of this Decree;

(d) To submit to a customs inspection of dutiable value as stipulated in this Decree.

Article 15 Responsibilities and powers of customs offices:

1. To guide customs declarants to determine dutiable value as stipulated in this Decree.

2. To facilitate customs declarants to enjoy the exchange of information stipulated in article 2.6 of this Decree; to request customs declarants to submit or present valid documents and source vouchers related to the purchase and sale of goods to prove the accuracy and truthfulness of the declared dutiable value of imports.

If the customs office rejects the proof and explanation of dutiable value provided by a declarant, the customs office must immediately notify such customs declarant in writing of the grounds and basis for the rejection.

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4. At the request of customs declarants and pursuant to law, to maintain confidentiality of information supplied by declarants relating to the determination of dutiable value.

5. To fix a value as the basis for payment of a security sum for customs clearance as stipulated in article 16 of this Decree.

6. To inspect the declarations and determination of dutiable value of imports of customs declarants.

7. To determine dutiable value on the principles and by the methods stipulated in article 4 of this Decree in the following cases:

(a) A customs declarant is unable to determine dutiable value by the methods stipulated in articles 7 to 12 inclusive of this Decree;

(b) A customs declarant makes an untruthful declaration on determination of dutiable value;

(c) A customs declarant fails to explain or cannot explain the truthfulness and accuracy of items regarding determination of dutiable value.

7. To fix the amount of duty payable on the price set pursuant to clause 7 of this article.

8. To collate, analyze and manage necessary information for use as the basis for inspection and determination of dutiable value.

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1. If in the course of determining dutiable value of imports it is necessary to postpone issuing a final decision on dutiable value, then the importer shall still be permitted to remove the goods from customs management on payment of a sum as security in the form of a guarantee, money paid into an escrow account or other appropriate security for payment of full duty on such goods.

2. The Ministry of Finance shall provide regulations on the level, form and procedures for payment of the security defined in clause 1 of this article.

Chapter IV

COMPLAINTS, DEALING WITH BREACHES

Article 17 Complaints and resolution of complaints

Any customs declarant who disagrees with the decision of the customs office on dutiable value must still comply with such decision but shall have the right to lodge a complaint in accordance with the law on complaints or to institute court proceedings in accordance with the law on resolution of administrative cases.

Article 18 Dealing with breaches by taxpayers

1. Taxpayers shall be responsible to pay arrears of duty pursuant to a decision of the customs office when the customs office or another competent body detects any act of fraud or evasion within the preceding five years from the date of detection.

2. Any organization or individual in breach of the provisions of this Decree shall, depending on the nature and seriousness of the breach, be subject to an administrative penalty or criminal prosecution.

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Customs officers, customs employees and other related individuals who lack a sense of responsibility and breach the provisions of this Decree causing loss and damage to a customs declarant must pay compensation for such loss and damage in accordance with law and shall, depending on the nature and seriousness of the breach, be disciplined or be subject to criminal prosecution.

Chapter V

ORGANIZATION OF IMPLEMENTATION

Article 20 Responsibilities of bodies, organizations and individuals

1. The Ministry of Finance shall guide and organize implementation of this Decree.

2. The State Bank of Vietnam shall direct and guide credit institutions to supply customs offices with complete documentation related to payment for imports and exports in order to service inspection and determination of dutiable value.

3. Relevant ministries and branches shall co-ordinate with customs offices to combat commercial fraud in the form of price fixing.

4. Business associations, organizations and individuals concerned must supply information on imports and exports at the request of the customs office.

Article 21 Implementing provision

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2. Ministers, ministerial equivalent bodies, heads of Government bodies and chairmen of peoples committees of provinces and cities under central authority shall be responsible for implementation of this Decree.

FOR THE GOVERNMENT
PRIME MINISTER




Nguyen Tan Dung