MoIT needs to notify the time of receiving sanctioning decision as a basis for customs clearance

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Regarding the execution of the Decision on administrative sanctions against five petrol and oil dealers issued by the MoIT’s Inspectorate, on September 7, 2022, the General Department of Customs issued Official Letter 3691/TCHQ-GSQL proposing the MoIT give opinions on the application of an additional penalty, which is to deprive the right to use the petroleum import and export business licenses of these five dealers for a month. However, the General Department of Customs has not yet received any response from the MoIT.

Previously, on September 6, 2022, the MoIT’s Inspectorate issued Notice 771/TT-TTB on suspending the application of the additional penalty of depriving the right to use the petroleum import and export business licenses of these five traders.

Regarding the notice of the MoIT’s Inspectorate, under the provisions of Article 73 of the Law on Handling of Administrative Violations, individual or institutional violators must comply with the sanctioning decision within ten days from the date of receiving the decision on administrative sanction. If the decision states the execution time limit of more than 10 days, such a time limit shall be followed.

The Law on Handling of Administrative Violations also does not stipulate the suspension or postponement of the execution of additional penalties stated in the decision on sanctioning of administrative violations.

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According to the General Department of Customs, Article 76 of the Law on Handling of Administrative Violations only provides for postponement of the execution of the decision on sanctions and Clause 2, Article 62 of the Law on Handling of Administrative Violations provides for the temporary suspension of the execution of the decision on sanction if the violation case shows criminal signs but the time limit for criminal prosecution has not yet expired.

In addition, Clause 12, Article 12 of the Law on Handling of Administrative Violations stipulates that the delay in executing decisions on sanctioning administrative violations is one of the prohibited acts in sanctioning administrative violations. At the same time, Article 35 of the Law on Complaints stipulates: “During the complaint settlement process, if it is deemed that the enforcement of the complained administrative decision will cause difficult consequences, the resolver shall issue a decision to temporarily suspend the execution of such a decision”.

The General Department of Customs said that the MoIT has not had a document amending or canceling the decision on sanctioning administrative violations or temporarily suspending the implementation of five decisions sanctions against the dealers. Therefore, these sanctioning decisions are still valid.

Also according to the General Department of Customs, while five traders are subject to the additional penalty of depriving the right to use petroleum import-export business licenses, they are not eligible to import petroleum. If they try to import petroleum, they will be fined for the act of "importing and exporting goods that do not meet the conditions" specified in Clause 1, Article 18 of Decree 128/2020/ND-CP dated October 19, 2020 of the Government on imposing fines for administrative violations in the field of customs and remedial measures of forcing to re-export of infringing goods; if the infringing goods are no longer available, the trader shall be forced to remit an amount equal to the value of the infringing goods.

The General Department of Customs added that from August 31 to October 10, there were two companies carrying out procedures to import petrol and oil. These are two out of five companies that have been under the additional penalty of depriving the right to use petroleum import and export licenses for one month by the MoIT’s Inspectorate but the additional penalty is being suspended.

Specifically, Dong Thap Petroleum Trading JSC registered 36 declarations of temporary import for re-export of petrol and oil at Nhon Trach Customs Branch (Dong Nai Customs Department) and Hung Hau Petroleum Co., Ltd. Registered two customs declarations to import oil at Saigon Port Zone 3 Customs Branch (Ho Chi Minh City Customs Department). The remaining three companies have not imported or temporarily imported and re-exported petroleum products.

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Therefore, to have a basis for traders to carry out petroleum import and export procedures (in case the time limit for enforcement of additional penalties of depriving the right to use petroleum import and export business licenses under the Decision on sanctions of the MoIT’s Inspectorate) or imposing fines (if any) for the petroleum traders who import and export petroleum while they are subject to the penalty of depriving the right to use petroleum import and export business licenses, the General Department of Customs proposes the MoIT consider and give response as well as provide information about the time when the trader receives the decisions on sanctions from the MoIT’s Inspectorate so that the Customs can rely on the information to conduct customs clearance or impose fines (if any).