PERINTAH DUTI KASTAM (BARANG-BARANG BERASAL DARI NEGERI-NEGERI ASEAN) (TATANAMA TARIF BERHARMONIS ASEAN DAN PERJANJIAN PERDAGANGAN BARANGAN ASEAN) (PINDAAN) (NO. 4) 2016

(Tatanama Tarif Berharmonis ASEAN dan Perjanjian Perdagangan Barangan

ASEAN) 2012 [P.U. (A) 277/2012] dipinda dalam Jadual Pertama dengan menggantikan

Annex 8 dengan Annex yang berikut:

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CUSTOMS ACT 1967

CUSTOMS DUTIES (GOODS OF ASEAN COUNTRIES ORIGIN) (ASEAN HARMONISED

TARIFF NOMENCLATURE AND ASEAN TRADE IN GOODS AGREEMENT) (AMENDMENT)

(NO. 4) ORDER 2016

Nomenclature and ASEAN Trade in Goods Agreement) Order 2012 [P.U. (A) 277/2012]

is amended in the First Schedule by substituting for Annex 8 the following Annex:

“ANNEX 8

OPERATIONAL CERTIFICATION PROCEDURE FOR THE

RULES OF ORIGIN UNDER CHAPTER 3

For the purposes of implementing the Rules of Origin set out in Chapter 3

(hereinafter referred to as “ASEAN ROO”), the following operational procedures on the issuance and verification of the Certificate of Origin (Form D) and other related administrative matters shall be observed.

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Rule 1

Definitions

For the purposes of this Annex:

Each Member State shall provide a list of the names, addresses, specimen signatures and specimen of official seals of its issuing authorities, in hard copy and soft copy format, through the ASEAN Secretariat for dissemination to other

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Member States in soft copy format. Any change in the said list shall be promptly provided in the same manner.

The specimen signatures and official seals of the issuing authorities, compiled by the ASEAN Secretariat, shall be updated annually. Any Certificate of Origin (Form D) issued by an official not included in the list referred to in paragraph 1 shall not be honoured by the receiving Member State.

Electronic Certificates of Origin (e-Form D), that Member State need not provide a list of specimen signatures and specimen of official seals of its issuing authority.

Rule 3

Supporting Documents

For the purposes of determining originating status, the issuing authorities shall have the right to request for supporting documentary evidence or to carry out check(s) considere appropriate in accordance with the respective laws and regulations of a Member State.

Member States are encouraged to allow the submission of electronic supporting documents, if available, to carry out check(s) related to Electronic

Certificates of Origin (e-Form D) considered appropriate in accordance with the respective laws and regulations of a Member State.

Rule 4

Pre-exportation Verification

The producer and/or exporter of the good, or its authorised representative, shall apply to the issuing authority, in accordance with the

Member State’s laws and regulations, requesting pre-exportation examination of the origin of the good. The result of the examination, subject to review periodically or whenever appropriate, shall be accepted as the supporting evidence in determining the origin of the said good to be exported thereafter. The pre-exportation examination may not apply to the good of which, by its nature, origin can be easily determined.

For locally-procured materials, self-declaration by the final manufacturer exporting under this Agreement shall be used as a basis when applying for the issuance of the Certificate of Origin (Form D).

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Rule 5

Application for Certificate of Origin

At the time of carrying out the formalities for exporting the products under preferential treatment, the exporter or his authorised representative shall submit a written application for the Certificate of Origin (Form D) together with appropriate supporting documents proving that the products to be exported qualify for the issuance of a Certificate of Origin (Form D).

Rule 6

Examination of Application for a Certificate of Origin

The issuing authority shall, to the best of its competence and ability, carry out proper examination, in accordance with the laws and regulations of the

Member State, upon each application for a Certification of Origin (Form D) to ensure that:

The Certificate of Origin (Form D) must be on ISO A4 size white paper in conformity to the specimen shown in Annex 7 of this Agreement. It shall be made in the English language.

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The Certificate of Origin (Form D) shall comprise one (1) original and two (2)

carbon copies (Duplicate and Triplicate).

Each Certificate of Origin (Form D) shall bear a reference number separately given by each place or office of issuance.

Each Certificate of Origin (Form D) shall bear the manually executed signature and seal of the authorised issuing authority.

The original copy shall be forwarded by the exporter to the importer for submission to the customs authority at the port or place of importation. The duplicate shall be retained by the issuing authority in the exporting Member State. The triplicate shall be retained by the exporter.

Rule 8

Declaration of Origin Criterion

To implement the provisions of Article 26 of this Agreement, the Certificate of Origin

(Form D) issued by the final exporting Member State shall indicate the relevant applicable origin criterion in Box 8.

Rule 9

Treatment of Erroneous Declaration in the Certificate of Origin

Neither erasures nor superimpositions shall be allowed on the Certificate of Origin

(Form D). Any alteration shall be made by:

Subject to the submission of all documentary requirements, the Certificate of Origin (Form D) shall be issued by the issuing authorities of the exporting

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Member State prior to or at the time of shipment or soon thereafter but not more than three (3) days from the declared shipment date, whenever the good to be exported can be considered originating in that Member State within the meaning of Chapter 3 of this Agreement.

In exceptional cases where a Certificate of Origin (Form D) has not been issued at the time of exportation or no later than three (3) days from the declared shipment date, due to involuntary errors or omissions or other valid causes, the Certificate of Origin (Form D) may be issued retroactively but no longer than one (1) year from the date of shipment and shall be duly and prominently marked “Issued Retroactively”.

Rule 11

Back-to-Back Certificate of Origin

The issuing authority of the intermediate

Member

State may issue a back-to-back Certificate of Origin in an application is made by the exporter, provided that:

For the purposes of claiming preferential tariff treatment, the importer shall submit to the customs authority of the importing Member State at the time of import, a declaration, a Certificate of Origin (Form D) including supporting documents (i.e. invoices and, when required, the Through Bill of

Lading issued in the territory of the exporting Member State) and other documents as required in accordance with the laws and regulations of the importing Member State.

In cases when a Certificate of Origin (Form D) is rejected by the customs authority of the importing Member State, the subject Certificate of Origin

(Form D) shall be marked accordingly in Box 4 and the original Certificate of

Origin (Form D) shall be returned to the issuing authority within a reasonable period not exceeding sixty (60) days. The issuing authority shall be duly notified of the grounds for the denial of tariff preference.

In the case where Certificates of Origin (Form D) are not accepted, as stated in the preceding paragraph, the importing Member State should accept and consider the clarifications made by the issuing authorities and assess again whether or not the Form D application can be accepted for the granting of the preferential treatment. The clarifications should be detailed and exhaustive in addressing the grounds of denial of preference raised by the importing

Member State.

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Rule 14

Validity Period of the Certificate of Origin

The following time limit for the presentation of the Certificate of Origin (Form D)

shall be observed:

Where the ASEAN origin of the goods is not in doubt, the discovery of minor discrepancies, such as typographical error in the statements made in the Certificate of Origin (Form D) and those made in the documents submitted to the customs authorities of the importing Member State for the purpose of carrying out the formalities for importing the goods shall not ipso facto invalidate the Certificate of Origin (Form D), if it does in fact correspond to the goods submitted.

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In cases where the exporting Member State and importing Member State have different tariff classifications for a good subject to preferential tariffs, the goods shall be released at the MFN rates or at the higher preferential rate, subject to the compliance of the applicable ROO, and no penalty or other charges shall be imposed in accordance with relevant laws and regulations of the importing

Member State. Once the classification differences have been resolved, the correct rate shall be applied and any overpaid duty shall be refunded if applicable, in accordance with relevant laws and regulations of the importing

Member State, as soon as the issues have been resolved.

For multiple items declared under the same Certificate of Origin (Form D), a problem encountered with one of the items listed shall not affect or delay the granting of preferential treatment and customs clearance of the remaining items listed in the Certificate of Origin (Form D). Rule 18(c) may be applied to the problematic items.

Rule 17

Record Keeping Requirement

For the purposes of the verification process pursuant to Rules 18 and 19, the producer and/or exporter applying for the issuance of a Certificate of Origin

(Form D) shall, subject to the laws and regulations of the exporting Member

State, keep its supporting records for application for not less than three (3)

years from the date of issuance of the Certificate of Origin (Form D).

The application for Certificates of Origin (Form D) and all documents related to such application shall be retained by the issuing authorities for not less than three (3) years from the date of issuance.

Information relating to the validity of the Certificate of Origin (Form D) shall be furnished upon request of the importing Member State by an official authorised to sign the Certificate of Origin (Form D) and certified by the appropriate Government authorities.

Any information communicated between the Member States concerned shall be treated as confidential and shall be used for the validation of

Certificates of Origin (Form D) purposes only.

Rule 18

Retroactive Check

The importing Member State may request the issuing authority of the exporting

Member State to conduct a retroactive check at random and/or when it has

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reasonable doubt as to the authenticity of the document or as to the accuracy of the information regarding the true origin of the goods in question or of certain parts thereof. Upon such request, the issuing authority of the exporting Member State shall conduct a retroactive check on a producer/exporter’s cost statement based on the current cost and prices, within a six-month timeframe, specified at the date of exportation subject to the following conditions:

Member State and sold during or after the exhibition for importation into a

Member State shall be granted preferential treatment accorded under this

Agreement on the condition that the goods meet the requirements as set out in

Chapter 3 of this Agreement, provided that it is shown to the satisfaction of the relevant Government authorities of the importing Member State that:

(Form D) shall be provided to the relevant Government authorities of the importing Member State. The name and address of the exhibition must be indicated. The relevant Government authorities of the Member State where the exhibition took place may provide evidence together with supporting documents prescribed in Rule 21(d) for the identification of the products and the conditions under which they were exhibited.

Paragraph 1 shall apply to any trade, agricultural or crafts exhibition, fair or similar show or display in shops or business premises with the view to the sale of foreign goods and where the goods remain under customs control during the exhibition.

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Rule 23

Third Country Invoicing

Relevant Government authorities in the importing Member State shall accept Certificates of Origin (Form D) in cases where the sales invoice is issued either by a company located in a third country or by an ASEAN exporter for the account of the said company, provided that the goods meet the requirements of Chapter 3 of this Agreement.

Each Member State shall provide legal sanctions for fraudulent acts related to the Certificate of Origin (Form D).

Rule 25

FOB Price

For the purposes of this Agreement, notwithstanding Rule 11(b), the Certificate of

Origin (Form D) and the back-to-back Certificate of Origin shall only reflect the FOB price in cases where the regional value content calculated using the formula set out in Article 29 of this Agreement is applied in determining origin.

Rule 26

Equivalence of Paper and Electronic Certificate of Origin

(e-Form D)

A Certificate of Origin (Form D) in electronic format may be applied for, issued, and accepted in lieu of one in paper format, with equivalent legal effect.

Rules 27 to 31 shall apply to Electronic Certificates of Origin (e-Form D).

Unless otherwise specified in Rules 27 to 31, Rules 1 to 6, 8, 10, 11, 14 to

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16, and 18 to 25 shall also apply to the processing of Electronic

Certificates of Origin (e-Form D).

Rule 27

Electronic Certificate of Origin (e-Form D)

Certificates of Origin (e-Form D) in accordance with the e-ATIGA Form D

Process Specification and Message Implementation Guideline, as may be updated from time to time.

In the event a Member State does not wish to implement all the electronic processes and related information elements specified in the e-ATIGA Form D

Process Specification and Message Implementation Guideline, that Member

State shall inform the other Member States, through the ASEAN Secretariat, which processes and related information elements it wishes to implement.

Rule 28

Examination of Application for an Electronic Certificate of Origin

(e-Form D)

In place of Rule 6(a), an application for an Electronic Certificate of Origin (e-Form D)

shall electronically be accepted, verified to be duly completed and authenticated.

Rule 29

Issuance of an Electronic Certificate of Origin (e-Form D)

In exceptional cases, an exporter may apply to the issuing authority, in accordance with the issuing authority’s procedures, to re-issue an Electronic

Certificate of Origin (e-Form D), within one (1) year from the date of issuance of the original Electronic Certificate of Origin (e-Form D).

Specification and Message Implementation Guideline, an Electronic Certificate of Origin (e-Form D) may be forwarded directly to the exporter by the

NSW of the issuing Member State and the Electronic Certificate of Origin

(e-Form D) may be forwarded directly to the importer by the exporter or by the NSW of the importing Member State.

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In exceptional cases, such as, but not limited to, technical failures that trigger a loss of data, the receiving Member State may request a re-transmission of an

Electronic Certificate of Origin (e-Form D) from the sending Member State.

An alteration to an Electronic Certificate of Origin (e-Form D) shall be made by issuing a new Electronic Certificate of Origin (e-Form D), and the previous

Electronic Certificate of Origin (e-Form D) shall be cancelled, in accordance with the process specified in the e-ATIGA Form D Process Specification and

Message Implementation Guideline.

Rule 30

Presentation of the Electronic Certificate of Origin

(e-Form D)

For the purposes of claiming preferential tariff treatment, the importer shall submit to the customs authority of the importing Member State at the time of import, an import declaration containing information on the

Electronic Certificate of Origin (e-Form D) reference number, supporting documents (i.e. invoices and, when required, the Through Bill of Lading issued in the territory of the exporting Member State) and other documents as required in accordance with the laws and regulations of the importing

Member State.

The customs authority in the importing Member State may generate an electronic Customs Response indicating the utilisation status of the

Electronic Certificate of Origin (e-Form D) in accordance with the message implementation guideline for Customs Response specified in the e-ATIGA Form

D Process Specification and Message Implementation Guideline. The utilisation status, if generated, shall be transmitted electronically via the ASW to the issuing authority either soon after the import or as and when it has been generated, within the validity period of the Electronic Certificate of Origin

(e-Form D).

In cases when an Electronic Certificate of Origin (e-Form D) is rejected by the customs authority of the importing Member State, the customs authority of the importing Member State shall:

In the case where an Electronic Certificate of Origin (e-Form D) is not accepted, as stated in the preceding paragraph, the importing Member State should accept and consider the clarifications made by the issuing authorities and assess again whether or not the e-Form D application can be accepted for the granting of the preferential treatment. The clarifications should be detailed and exhaustive in addressing the grounds of denial of preference raised by the importing Member

State.

Rule 31

Electronic Archiving and Data Retention

For the purposes of the verification process pursuant to Rules 18 and 19, the producer and/or exporter applying for the issuance of an Electronic

Certificate of Origin (e-Form D) shall, subject to the laws and regulations of the exporting Member State, provide for the storage of supporting records for application for an Electronic Certificate of Origin (e-Form D) for not less than three (3) years from the date of issuance of the Electronic Certificate of

Origin (e-Form D).

The application for an Electronic Certificate of Origin (e-Form D) and all documents related to such application shall be retained by the issuing authorities for not less than three (3) years from the date of issuance of the

Electronic Certificate of Origin (e-Form D).

(e-Form D) shall be furnished upon request of the importing Member State, by an authorised official of the issuing authority.

Any information communicated between the Member States concerned shall be treated as confidential and shall be used for the purpose of

Electronic Certificate of Origin (e-Form D) validation only.”.

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Dibuat 30 November 2016

Made 30 November 2016

[SULIT KE.HT(96)669/12-3 Klt.5 Sk. 9 ; Perb. (C)0.273(SJ.5)JLD.22(SK.2);

PN(PU2)338/XLII]

DATUK JOHARI BIN ABDUL GHANI

Menteri Kewangan Kedua/

Second Minister of Finance

[Akan dibentangkan di

Dewan

Rakyat menurut subseksyen 11(2)

Akta Kastam 1967]

[To be laid before the Dewan Rakyat pursuant to subsection 11(2) of the Customs Act 1967]