vtv5 trực tiếp bóng đá hôm nayJudgement no.35/2006/KDTMPT dated may 04, 2006 on request for compensation for damage from business operation

HO CHI MINH SUPERIOR’S PEOPLE COURT

JUDGEMENT NO.35/2006/KDTMPT DATED MAY 04, 2006 ON REQUEST FOR COMPENSATION FOR DAMAGE FROM BUSINESS OPERATION

The appellate trial court was conducted at the office of Ho Chi Minh Superior’s People Court on May 04, 2006 to hear the case No.98/2005/KDTMPT dated December 27, 2005. Parties concerned:

Petitioner:Vina World Service Production Limited Company

Head office:  Street No.6, National Highway 22, Trang Bang industrial park, Tay Ninh province.

Legal representative of the petitioner:  Mr. Nguyen Van Nho born in 1949.

Residing at: Neighborhood 4/24, Go Dau town, Tay Ninh province.

Defendant:Beautec Vina Company

Head office: Number 7 Thong Nhat, Song Than 2 industrial park, Di An district, Binh Duong province.

Legal representative of the defendant:  Mr. Tran Thanh Quang born in 1974.

Residing at: 1/15 B9 -304 housing estate, ward 25, Binh Thanh district.

FINDING THAT

Statements of the petitioner's representative:Vina World Service Production Limited Company (hereinafter referred to as “Vina World vtv5 trực tiếp bóng đá hôm nay.) and Cavina Inc Company entered into contract No.02/VNW-CVN/04 on March 19, 2004 and continued to sign Contract Appendix No.01 which specified that Vina Word vtv5 trực tiếp bóng đá hôm nay. would process 6 types of clothing for Cavina Inc vtv5 trực tiếp bóng đá hôm nay., one of which is "Reversible Jacket” coded  4685 processed by using fur which were then delivered to the customer – Awha Trading Company (hereinafter referred to as "Awha vtv5 trực tiếp bóng đá hôm nay.).

However Vina World vtv5 trực tiếp bóng đá hôm nay. failed to duly process these products since Awha vtv5 trực tiếp bóng đá hôm nay. asked for such products urgently. As for that reason, Vina World vtv5 trực tiếp bóng đá hôm nay. and Cavina Inc vtv5 trực tiếp bóng đá hôm nay. entered into an agreement with Awha vtv5 trực tiếp bóng đá hôm nay. which stated that the clothing article coded 4685 would be transferred to Beautec Vina Company (Beautec vtv5 trực tiếp bóng đá hôm nay.) for processing purpose.

According to the aforesaid request, Beautec vtv5 trực tiếp bóng đá hôm nay. and Awha vtv5 trực tiếp bóng đá hôm nay. signed Contract Appendix No.03 (included in Contract No.01/04/BVAW dated September 16, 2004 between Beautec vtv5 trực tiếp bóng đá hôm nay. and Awha vtv5 trực tiếp bóng đá hôm nay.) on September 16, 2004, in which Beautec vtv5 trực tiếp bóng đá hôm nay. was designated to receive the processing accessories which are 6,250 fur pieces from Vina World vtv5 trực tiếp bóng đá hôm nay. according to processing contract No.02/CVN-VNW/04 by Awha vtv5 trực tiếp bóng đá hôm nay.  And these fur pieces were received by Vina World vtv5 trực tiếp bóng đá hôm nay. from Cavina Inc vtv5 trực tiếp bóng đá hôm nay. as specified in Customs Declaration No.1243/NK dated August 18, 2004.

Vina World vtv5 trực tiếp bóng đá hôm nay. delivered 6,249 fur pieces to Beautec vtv5 trực tiếp bóng đá hôm nay. on August 30, 2004. Mr. Pham Huy Hien is the recipient.  Vina World vtv5 trực tiếp bóng đá hôm nay. made the delivery note of intermediary processing accessories and supplies for Beautec vtv5 trực tiếp bóng đá hôm nay. as regulated by the customs law.  Since the form is changed as specified inQuyết định 69/2004/QĐ-BTC vềdated August 24, 2004 of the Ministry of Finance on customs declaration of intermediary processed products, Beautec vtv5 trực tiếp bóng đá hôm nay. failed to make the declaration on schedule then refused to carry out the customs procedure as regulated.

Due to Beautec vtv5 trực tiếp bóng đá hôm nay.’s failure to make customs declaration of intermediary processed products, Vina World vtv5 trực tiếp bóng đá hôm nay. could not liquidate processing contract No.02/CVN-VNW dated March 19, 2004 signed with Cavina Inc vtv5 trực tiếp bóng đá hôm nay.  And since Beautec vtv5 trực tiếp bóng đá hôm nay. had delivered the clothing products to Awha vtv5 trực tiếp bóng đá hôm nay. without notification, Vina World vtv5 trực tiếp bóng đá hôm nay. had to carry a fine of VND 6,000,000 and make customs declaration of non-merchant article on April 18, 2005, and pay a tax of VND 42,656,250 in order to liquidate contract No.02/CVN-VNW/04 dated March 19, 2004 as specified in Decision No.08/QD-XPHC9 dated March 16, 2005 issued by Customs Sub-department of Trang Bang industrial park.

Due to the taxes and fine resulted from irresponsible acts of Beautec vtv5 trực tiếp bóng đá hôm nay., Vina World filed a lawsuit to ask for payment of an amount of VND 48,656,250 which is paid for administrative fine and import-export duty from Beautec vtv5 trực tiếp bóng đá hôm nay.

Statements of the defendant’s representative:

Beautec vtv5 trực tiếp bóng đá hôm nay. entered into a discussion with Vina World vtv5 trực tiếp bóng đá hôm nay. on transfer of accessories used for processing exported clothing as follows:

Name of products: fur, quantity: 6,250 pieces, value: USD 5,000.

According to regulations on transfer of processing accessories and supplies, the transferor shall prepare completed documents for the transferee according to the forms regulated by Customs Department and the transferee shall carry out customs procedures.  If the completed documents are made in compliance with specified requirements, the customs authority would grant permission for transfer of accessories.

Vina World vtv5 trực tiếp bóng đá hôm nay. made documents according to processing contract No.01/04/BV-AW dated September 16, 2004 and sent them to Beautec vtv5 trực tiếp bóng đá hôm nay. for carrying out customs procedure.  However, all of these documents were made inconsistent with the forms regulated by the Customs Department in Decision No.69/2004/QD-BTC dated August 24, 2004 which took effect on September 15, 2004.

As for that reason, Beautec vtv5 trực tiếp bóng đá hôm nay. requested Mr. Hung – the representative of Vina World vtv5 trực tiếp bóng đá hôm nay. to re-make all documents according to the new forms as for Beautec vtv5 trực tiếp bóng đá hôm nay. to complete the customs procedure for transferring the processing accessories but Vina World vtv5 trực tiếp bóng đá hôm nay. failed to do so. Therefore, Song Than customs authority did not grant permission for accessory transfer which resulted in Beautec vtv5 trực tiếp bóng đá hôm nay.’s failure to receive 6,250 fur pieces from Vina World vtv5 trực tiếp bóng đá hôm nay. For the purpose of executing the contract signed with Awha vtv5 trực tiếp bóng đá hôm nay., Beautec vtv5 trực tiếp bóng đá hôm nay. entered in to contract No.01LT-BT on August 30, 2004 in order to purchase 6,249 faux fur pieces from Long Thao facility for processing 2 clothing articles coded 4680 and 4687 then delivered the processed clothing products to Awha vtv5 trực tiếp bóng đá hôm nay. on September 25, 2004.

Vina World vtv5 trực tiếp bóng đá hôm nay. had to pay a number of taxes and fine since it failed to get hold of customs regulations. Hence, Beautec vtv5 trực tiếp bóng đá hôm nay. rejected the request of Vina World vtv5 trực tiếp bóng đá hôm nay.

According to first-instance judgment No.10/2005/KDTMST dated October 14, 2005 of Binh Duong province People’s Court:

Pursuant to Articles 29, 34, 131, 210 and 238 of thelịch trực tiếp bóng đá hôm.

Pursuant toNghị định 57/1998/NĐ-CPdated July 31, 1998 andNghị định 44/2001/NĐ-CPdated August 02, 2001 of the Government on guidelines for enforcement of the Commercial Law;Nghị định 70-CPdated June 12, 2004 of the Government on Court costs and court fees; Decision No.69/2004/QD-BTC dated August 24, 2004 of the Minister of Finance, hereby judges:

1. Accept the petition of Vina World vtv5 trực tiếp bóng đá hôm nay.

2. Compel Beautec vtv5 trực tiếp bóng đá hôm nay. to pay an amount of VND 48,656,250 which had been paid for administrative fine and import-export duty to Vina World vtv5 trực tiếp bóng đá hôm nay.

3. In terms of first instance court fees: Beautec vtv5 trực tiếp bóng đá hôm nay. and Vina World vtv5 trực tiếp bóng đá hôm nay. have to pay an amount of VND 2,432,812.

Return an amount of VND 1,216,421 to Vina World vtv5 trực tiếp bóng đá hôm nay. according to payment receipt No.008439 dated August 02, 2005 of Binh Duong province Office for judgment enforcement.

Moreover, the first-instance judgment specified the amount of overdue interest due to late enforcement of the Court’s judgment and rights to appeal as per law provisions.

Beautec vtv5 trực tiếp bóng đá hôm nay. filed an appeal for a retrial on October 21, 2005.

At the appellate court hearing, Mr. Tran Thanh Quang- representative of the defendant (Beautec vtv5 trực tiếp bóng đá hôm nay.) still did not change its appeal and dissented from the first-instance judgment, and rejected the request of the petitioner (Vina World vtv5 trực tiếp bóng đá hôm nay.) as Beautec vtv5 trực tiếp bóng đá hôm nay. had not received the accessories from Vina World vtv5 trực tiếp bóng đá hôm nay. Beautec vtv5 trực tiếp bóng đá hôm nay. only received 6,249 faux fur pieces from Long Thao facility and processed two clothing articles coded 4680 and 4687 and delivered them to Awha vtv5 trực tiếp bóng đá hôm nay. on September 25, 2004. In addition, the defendant did not change the request which is voluntarily giving an amount of VND 1,000 to the petitioner so that the case would be quickly solved.

However, Mr. Nguyen Van Nho – representative of the petitioner (Vina World vtv5 trực tiếp bóng đá hôm nay.) dissented from the aforesaid appeal of the defendant and asked for rejection of such appeal and suggested that the first-instance judgment shall be upheld.

According to the evidence and documents provided in the case record which are verified in the court hearing and results of discussion at the court hearing; upon full and comprehensive consideration of evidence and opinions provided from the petitioner and defendant.

CONSIDERING THAT

The defendant’s appeal mentioned above could not be accepted as there is no legal base provided according to the followings reasons:

According to the delivery note of processing accessories and supplies dated September 16, 2004 signed and sealed by Mr. Choe Bee Ho – Deputy Director General of Beautec vtv5 trực tiếp bóng đá hôm nay.:  Beautec vtv5 trực tiếp bóng đá hôm nay. sufficiently received 6,249 fur pieces from Vina World vtv5 trực tiếp bóng đá hôm nay. (case file p. 23); according to the delivery note dated August 30, 2004, Beautec vtv5 trực tiếp bóng đá hôm nay. actually received 6,249 fur pieces from Vina World vtv5 trực tiếp bóng đá hôm nay. (case file p. 24); according to the export declaration dated September 25, 2004 signed and sealed by Mr. Cho Bee Ho – Deputy Director General of Beautec vtv5 trực tiếp bóng đá hôm nay, and the customs procedure carried out by Mr. Pham Huy Hien (a staff- representative of Beautec vtv5 trực tiếp bóng đá hôm nay.) with a report on processing accessory and supply consumption dated September 16,2004, (case file p. 65) which confirmed different types of furs were purchased in Vietnam; according to processing contract No.01/04BV-ANV dated September 16, 2004 between Beautec vtv5 trực tiếp bóng đá hôm nay. and Awha vtv5 trực tiếp bóng đá hôm nay., party B (Awha vtv5 trực tiếp bóng đá hôm nay.) shall provide all accessories with correct quantity and quality to party A (Beautec vtv5 trực tiếp bóng đá hôm nay.), which were imported (case file p.56). Additionally, the defendant failed to provide any evidence for its appeal other than the copy of contract signed with Long Thao facility (case file p. 66).

The aforementioned evidence pointed out that Beautec vtv5 trực tiếp bóng đá hôm nay. had received 6,249 fur pieces from Vina World vtv5 trực tiếp bóng đá hôm nay. and had made a customs declaration with a report on consumption of processing accessories and supplies and appended its signature to the delivery note of processing accessories and supplies for confirming that all the goods required has been received following the customs procedure specified by the Ministry of Finance.

Considering that Beautec vtv5 trực tiếp bóng đá hôm nay. had received the goods from Vina World vtv5 trực tiếp bóng đá hôm nay. but failed to duly provide documents and complete the customs procedure as per customs law provisions, which resulted in Vina World vtv5 trực tiếp bóng đá hôm nay.’s failure to liquidate contract No.02/VNW-CVN/04 dated March 19, 2004 between Vina World vtv5 trực tiếp bóng đá hôm nay. and Cavina vtv5 trực tiếp bóng đá hôm nay. and imposition of administrative fine and import duty (VND 46,686,250,00 in total, of which VND 6 million is the amount of fine and VND 42,656,250 is import duty) on Vina World vtv5 trực tiếp bóng đá hôm nay. decided by Customs Sub-department of Trang Bang industrial park were due to Beautec vtv5 trực tiếp bóng đá hôm nay.’s fault. Considering that the first-instance judgment which accepted the petition of Vina Word vtv5 trực tiếp bóng đá hôm nay. which requested Beautec vtv5 trực tiếp bóng đá hôm nay. to pay a compensation to Vina World vtv5 trực tiếp bóng đá hôm nay. by giving an amount of VND 48,686,250,00 which were paid by Vina World vtv5 trực tiếp bóng đá hôm nay. for administrative fine and import duty imposed due to fault of the defendant was based on legal documents and lawfully accepted.  Hence, there is no legal base for approving the appeal of the defendant and the first-instance judgment shall be upheld.

- The appellate economic court fees shall be paid by Beautec vtv5 trực tiếp bóng đá hôm nay.

- Other decisions specified in the first-instance judgment without any appeal shall take effect from the date of the expiry of time limit for appeal.

Pursuant to documents and evidence mentioned above

- and Clause 1 Article 275 of the Code of Civil Procedure,

HEREBY DECIDES

1/- The defendant’s appeal is not accepted and the first-instance judgment regarding the liability and amount of money paid to the petitioner is upheld.

2/- Pursuant to Articles 29, 34, 131, 210 and 238 of theCivil Code; Decree No.57/1998/ND-CP dated July 31, 1998 and Decree No.44/ND-CP dated August 02, 2001 of the Government on guidelines for enforcement of the Commercial Law and Decision No.69/2004/QD-BTC dated August 24, 2004 of the Ministry of Finance and Decree No.70/CP dated June 12, 1997 of the Government on court fees and charges.

Hereby judges:

- Accept the petition of Vina World vtv5 trực tiếp bóng đá hôm nay.

- Compel Beautec vtv5 trực tiếp bóng đá hôm nay. to pay an amount of VND 48,656,250 which has been paid for administrative fine and import-export duty to Vina World vtv5 trực tiếp bóng đá hôm nay. - Beautec vtv5 trực tiếp bóng đá hôm nay. shall pay an amount of VND 200,000 for appellate economic court fees.

3/- Other decisions specified in the first-instance judgment without any protest shall take effect from the expiry of time limit for appeal.

The appellate judgment comes into force from the day on which it is passed./.