To: The Ministry of Industry and Trade of Vietnam.

There are some queries about export rights, import rights and trading in goods of foreign traders that do not establish presence in Vietnam that arise during the implementation of customs procedures for on-the-sport imports and exports as prescribed in Article 35 of the Government’s Decree No. 08/2015/ND-CP dated January 21, 2015. In order to establish grounds for dealing with such queries and submitting proposed amendments to Article 35 of Decree No. 08/2015/ND-CP to the Government, the General Department of Vietnam Customs hereby provides the Ministry of Industry and Trade of Vietnam with reports on foreign traders that do not establish presence in Vietnam but purchase goods from domestic enterprises and then re-sell or deliver such purchased goods to other domestic enterprises in Vietnam (i.e. goods are directly delivered between 02 domestic enterprises) as follows:

Pursuant to Article 181 of the Law on Commerce 2005, “the hiring party is entitled to sell, destroy or give as gifts on the spot the processed products, leased or lent machinery and equipment, raw materials, auxiliary materials, redundant supplies, faulty products and discarded materials according to two parties’ agreements and regulations of law”.

Pursuant to Article 182 of the Law on Commerce 2005, “the processor shall be allowed to export on the spot the processed products, leased or lent machinery and equipment, raw materials, auxiliary materials, redundant supplies, faulty products and discarded materials with authorization given by the hiring party."

Pursuant to clause 1 Article 182 of the Law on Commerce 2005, point c clause 2 Article 42 of the Decree No. 69/2018/ND-CP, the processor shall have the rights to “receive partial or entire raw materials, auxiliary materials and supplies for processing under agreements on quantity, quality, technical specifications and price made with the hiring party”.

Pursuant to clause 1 Article 35 of Decree No. 08/2015/ND-CP, on-the-spot exports and imports include:

“a) Those produced in Vietnam under manufacturing arrangements and sold to Vietnamese organizations or individuals by overseas ones;

b) Those traded under the sale and purchase contract between domestic enterprises and exporting and processing enterprises or enterprises located in free trade zones;

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Article 43 of Decree No. 69/2018/ND-CP stipulates that:

“A trader is entitled to engage in multi-party processing. To be specific:

1. Products produced under a processing contract are used as materials under another processing contract in Vietnam.

2. Products produced under a processing contract are handed over to another trader designated by the hiring party for the next stage of processing.”

Pursuant to Article 4 of the Government’s Decree No. 90/2007/ND-CP dated May 31, 2007 and clause 1 Article 2, clause 1 Article 3 of the Circular No. 28/2012/TT-BCT dated September 27, 2012 of the Ministry of Industry and Trade of Vietnam, a foreign trader that does not establish a presence in Vietnam must obtain permission to exercise import and exports rights from a competent authority before purchasing goods for export and selling imports from Vietnamese traders that have registered for trading in such goods in accordance with current regulations of law of Vietnam.

During the implementation of provisions on on-the-sport exports and imports under the Law on Commerce 2005, Decree No. 69/2018/ND-CP and clause 1 Article 35 of Decree No. 08/2015/ND-CP, whether or not a foreign trader that does not establish presence in Vietnam sells or delivers goods purchased from a Vietnamese enterprise to another Vietnamese enterprise (these goods are delivered within the territory of Vietnam) will be considered to have exercised their rights to trade goods under Article 4 of Decree No. 90/2007/ND-CP.

In order to consistently implement such regulations, the General Department of Vietnam Customs hereby requests your Ministry to give opinions about the abovementioned queries.  To be specific: pursuant to international commitments and laws on commerce and foreign trade management, will a foreign trader that does not establish presence in Vietnam be allowed to purchase goods from a Vietnamese enterprise and then sells or delivers such purchased goods to another Vietnamese enterprise? If yes, which conditions must be met by that trader?

Your Ministry’s opinions are expected to be given by September 20, 2023 so that the General Department of Vietnam Customs may give guidelines for relevant entities and submit proposed amendments to Article 35 of Decree No. 08/2015/ND-CP to the Government./.

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PP. DIRECTOR GENERAL
DEPUTY DIRECTOR GENERAL



 
Nguyen Van Tho

Công văn 4698/TCHQ-GSQL năm 2023 hoạt động mua bán hàng hóa của thương nhân nước ngoài không hiện diện tại Việt Nam do Tổng cục Hải quan ban hành