Recent Developments Related To Fema

RECENT DEVELOPMENTS RELATED TO FEMA SUBMITTED BY: SUMIT ARORA ROLL NO:37 GBO:2ND YEAR DOCUMENTATION

RECENT CHANGES: (SOURCE:www.proactivesolutech.com/newsletter/newsapr .htm) Extension of Time for realisation of Export Proceeds 

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As per the FEMA Regulations, every exporter of goods / services is required to realize and repatriate back to India, the export proceeds within a period of 6 months from the date of export. In case the exporter is unable to realize the export proceeds within such time period, then, he is required to apply to the RBI seeking extension of time. However, the RBI has now liberalized the said provision vide APDIR Circular No: 20, dated January 28th 2002. The concerned Authorized Dealer through whom the export has been made, is now permitted to grant extension of time, subject to certain conditions.

Value of Export

Category

Not exceeding US General $ 1 Lakh

Extension Granted by Authorized Dealer

Conditions to be satisfied

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Period of Extension

• Up to 3 months at a time AD is to be satisfied that • In case the extension is beyond 1 year realization was not possible due from the date of export, then, the to reasons beyond the control of total export outstanding of the the Exporter Exporter should not be more than Exporter submits a declaration 10% of the average of export that he will realize export realizations during the preceding 3 proceeds during the extended financial years. period

Where the Invoices Regional Office of are under RBI investigation by ED /CBI/Other Agencies

Exceeding US $ 1 Where Exporter has Authorized Dealer Lakh filed a case against the Importer abroad

General

Regional Office of RBI

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Up to 6 months at a time In case the extension is beyond 1 year from the date of export, then, the total export out standings of the Exporter should not be more than 10% of the average of export realizations during the preceding 3 financial years.

Opening of Foreign Currency Accounts Outside India  Earlier, Indian Companies which needed to open foreign currency accounts outside India needed to take the approval of the RBI. This was a cumbersome and time consuming process.  This has now been liberalized by the Foreign Exchange Management (Foreign Currency Accounts by a Person Resident in India) (Second Amendment) Regulations, 2001issued by the RBI on December 5th 2001.  Under these regulations, an Indian Entity can now open a Bank Account outside India without any prior approval from the RBI / Authorize Dealer, subject to the following limits on remittances :

Type of Company setting up the overseas office

Source of Remittance

Amount which can be remitted for initial expenses

A 100% EOU or a unit in EPZ or From out of its Current A/c No Limit in a Hardware Technology or out of its Park or in a Software EEFC(exchange Technology Park, within earner foreign two years of establishment currency account) A/c of the Unit Other Companies

Amount which can be remitted for recurring expenses No Limit

From out of its Current A/c 2 per cent of the average annual 1 per cent of the average sales/income or turnover annual sales/income or during last two accounting turnover during last two years of the Indian Entity. accounting years of the Indian Entity. From out of its EEFC A/c

No Limit

No Limit

Additional Conditions to be satisfied The overseas branch/office/representative shall not enter in any contract or agreement in contravention of the Act, Rules or Regulations made there under; The account so opened, held or maintained shall be closed, if the overseas branch./office is not set up within six months of opening the account, or within one month of closure of the overseas branch/office, or Where no representative is posted for six months. And the balance held in the account shall be repatriated to India;

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Two way Fungibiltiy for ADR / GDRs Two Way fungibility of ADR / GDR issued by Indian Companies was permitted by the Government of India & the RBI. The RBI has now, vide APDIR Circular No: 21 dated February 13th 2002, issued operative guidelines for the 2 way fungibility of ADR / GDR. Earlier, once a company issues ADR / GDR, and if the holder wanted to obtain the underlying equity shares of the Indian Company, then, such ADR / GDR would be converted into shares of the Indian Company. Once such conversion has taken place, it was not possible to reconvert the equity shares into ADR / GDR. The present rules of the RBI make such reconversion possible, to the extent of ADR / GDR which have been converted into equity shares and sold in the local market. This would take place in the following manner: Stock Brokers in India have been authorized to purchase shares of Indian Companies for reconversion. The Domestic Custodian would coordinate with the Overseas Depository and the Indian Company to verify the quantum of reconversion which is possible and also to ensure that the sectoral cap is not breached. The Domestic Custodian would then inform the Overseas Depository to issue ADR / GDR to the overseas Investor.

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Investment outside India by Indian Companies Pursuant to the Union Budget, outbound investment by Indian Companies has been further liberalized. The highlights of these changes are: Indian Companies are now permitted to invest up to 100 Million US Dollars per financial year under the automatic route, provided the other conditions as specified in FEMA Notification No: 19/2000 dated 3rd May 2000 are complied with. Earlier the limit for investment under the Automatic Route was 50 Million US Dollars per financial year. Companies which do not have access to foreign exchange for overseas investments are permitted to purchase foreign exchange from the Authorized Dealers up to 50% of their net worth. Earlier, the limit was 25% of their net worth. These changes have been made vide FEMA Notification No: 53 dated 1st March, 2002. Issue of Foreign Currency Convertible Bonds by Indian Companies. Earlier, Indian Companies required approval of the Government of India before issue of Foreign Currency Convertible Bonds (FCCBs). The RBI has vide FEMA Notification No: 55 dated March 7th2002, liberalized these rules. Accordingly: Indian Companies seeking to raise FCCBs are permitted to raise them under the Automatic Route up to US 50 Million Dollars per financial year without any approval. The FCCBs raised shall be subject to the sectoral limits prescribed by the Government of India. Maturity period for the FCCBs shall be at least 5 years and the "all in cost" at least 100 basis points less than that prescribed for External Commercial Borrowings.

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New provisions for a "Status Holder" The Export Import Policy issued by the Government of India, has created a new class of Exporters termed as "Status Holder". A "Status Holder" has been granted the following concessions under the FEMA Regulations: A Status Holder is entitled to credit 100% of his foreign exchange earnings into the EEFC A/c. Earlier, this facility was available only to units in the Special Economic Zones and other companies which had obtained specific RBI approval for doing so. In case of exports made by a Status Holder, a time limit of 12 months has been granted to realize the export proceeds, as against 6 months in the case of other exporters. The time limit of 12 months was earlier available only in case of exports made by units in the Special Economic Zones.

Other Changes Indian Companies can set up chairs in educational institutions abroad after obtaining approval from the RBI – vide APDIR Circl No. 25 dated 1st March 2002. With the approval of the RBI, Indian Companies can credit a higher percentage of their Foreign Exchange earnings to their EEFC A/c for the purpose of prepayment of their External Commercial Borrowings. - vide APDIR Circl No. 26 dated 1st March 2002. Deposit accounts maintained by Non Residents with Indian Banks are made fully convertible. Accordingly, NRSR A/c and NRNR A/c would cease to be effective from 1st April 2002 and the balances in them would be credited to the NRO A/c and the NRE A/c, respectively, of the NRI. - vide APDIR Circl No. 28 dated 4th March 2002. Residents are permitted to take / export goods for exhibition and sale outside India without the prior approval of the Reserve Bank of India. Now, vide APDIR Circl No. 30 dated 26th March 2002, Authorized Dealers are permitted to approve GR Forms for exhibitions outside India, subject to the following conditions :

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Goods can be sold there locally at any price and the proceeds repatriated back to India Exporter can "gift" the items up to a limit of US $ 5,000 per exporter per exhibition Unsold items are to be imported back into India.

FEMA: FROM `REGULATING' TO `FACILITATING' EXPORTS 

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BUSINESS LINE- MAY,18,2005 Fortunately, the forex kitty has more than trebled in the last five years, giving hope that FEMA is only set for progressive liberalization, ultimately leading to full convertibility, though the timing for this will be set by the Reserve Bank of India after considering various factors. But FEMA has accelerated the liberalization of exports by "facilitating" rather than "regulating". The RBI withdrew from granting extensions of time or reducing the value of realization of export proceeds, delegating these powers to banks (authorized dealers), though subject to certain conditions. Now, banks themselves can write off bad debt up to 10 per cent of the export proceeds due in a calendar year. With assured documents covering payments, banks can now deal with even the caution list exporters. In addition, a number of other simplifications of documents/procedures/reporting have been made in external trade, in line with the Commerce Ministry's thrust to promote exports.

PROGRESSIVE LIBERALIZATION MEASURES IN RESPECT OF EXPORTS PROCEEDS REALIZATIONS S NO.

A.P(DIR SERIES) CIRCULAR NO.

DATE OF CIRCULAR

CONTENTS

1.

12

9/9/2000

FOLLOW UP OF OVERDUE BILS REDUCTION IN VALUE EXTENTION OF TIME LIMIT WRITE OFF OF UNREALIZED EXPORT BILLS

2.

30

4/4/2001

LIBERALIZATION OF EXPORT BILLS

3.

35

11/6/2001

TIME FOR EXPORT REALIZATION RELAXED FOR SEZ

4.

20

28/1/2002

EXTENSION OF TIME RELAXED

5.

35

1/4/2002

TIME FOR EXPORT REALIZATION RELAXED FOR STATUS HOLDERS

6.

38

12/4/2002

REDUCTION IN VALUE

7.

61

14/12/2002

SURRENDER OF EXPORT INCENTIVES

8.

91

1/4/2003

TIME FOR EXPORT REALIZATION REMOVED FOR SEZ

9.

22

24/9/2003

SETTLEMENT BY ECGC

10.

40

5/12/2003

LIBERALIZATION OF RELIZATION OF EXPORT PROCEEDS FOR ALL EXPORTERS

11.

68

11/2/2004

CAUTION LISTEXPORTERS NEED PRIOR APPROVAL FROM AD

12.

25

1/11/2004

TIME FOR EXPORT REALIZATION RELAXED FOR EOU ETC

SOURCE:DIRECTIONS ISSUED BY RBI FROM TIME TO TIME UNDER THE FEMA

FEMA’S RECENT PROPOSALS 

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Govt to allow foreign MNCs to impose annual service fee-27 Jan 2009 ET:The government is considering a proposal to allow foreign multinationals to impose an 'annual service fee' on their Indian subsidiary for providing management services. The foreign direct investment (FDI) policy, while allowing payment of royalty, license fee and technical know how-how fee, does not provide for payment of annual service fee by Indian subsidiaries. Fema to apply to reverse overseas M&As, says RBI –The RBI has said Indian companies merging with overseas firms will continue to be treated as entities resident in the country under the FEMA.There is no provision for such a merger under the current Companies Act. But a Bill to amend the Act tabled in the Budget session of Parliament proposes to allow Indian companies to merge with overseas companies, under section 205, a move that could introduce greater flexibility in cross-border merger and acquisitions (M&As). The central bank has also clarified that payment by the foreign company to shareholders of listed Indian companies being merged can be made in the form of cash, shares or Indian Depository Receipts (IDRs) issued by the overseas companies. In this case, RBI has clarified that Fema will have to amended suitably. Besides, IDRs in their existing form do not have voting rights and the law has to be changed to incorporate this change. This will be important if the merger involves allotting voting rights to Indian shareholders or some sort of management control.

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Can stashed funds be brought back? Residents can now freely maintain and operate foreign assets. By acquiring or holding or owning when he was a non-resident. This follows from Section 6 (4) of FEMA. Is it a crime to have a Swiss bank account? Surely not. At worst, it can now be a civil contravention and maximum tax can be charged on the amount.The aforesaid analysis shows that the problem of stashed funds is more of a tax problem than a problem pertaining to forex laws. Once the government is able to obtain information, appropriate proceedings under the tax laws and forex laws ought to be initiated, although chances of success for government would be brighter under tax laws.

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RBI yet to give FEMA nod to new FDI rules :As per the new guidelines, for the purpose of calculation of indirect foreign investment in an Indian entity, a sum total of FDI, stake from non-resident Indians, American and Global Depository Receipts, Foreign Currency Convertible Bonds and Convertible Preference Shares will be taken into account. With these changes, several private sector banks may find themselves transforming their status from being 'resident entities' to the non-resident entities. The RBI, as also the Finance Ministry, has raised issues concerning these far-reaching changes which will throw several banks into a different regime of governance in terms of policy clearances As these concerns are yet to be addressed, the RBI has not notified the FDI guidelines amended in February. "The RBI has yet to notify the new guidelines.

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