Fera & fema[1]


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Fera & fema[1]

  1. 1. What is FERA?The Foreign Exchange Management Act, 1999, (FEMA) is an Act to consolidate and amend the law relatingto Foreign Exchange, with the objective of facilitating external trade and, payments and for promoting theorderly development and maintenance of the foreign exchange market in India.(1) This Act may be called the Foreign Exchange Regulation Act, 1973.(2) It extends to the whole of India.(3) It applies also to all citizens of India outside India and to branches and agencies outside India of companies or bodies corporate, registered or incorporated in India.(4) It shall came into force on such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf: Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.Why FERA?a) FERA was introduced at a time when foreign exchange (Forex) reserves of the country were low, Forex being a scarce commodity.b) FERA therefore proceeded on the presumption that all foreign exchange earned by Indian residents rightfully belonged to the Government of India and had to be collected and surrendered to the Reserve bank of India (RBI).c) It regulated not only transactions in Forex, but also all financial transactions with non-residents. FERA primarily prohibited all transactions, except to the extent permitted by general or specific permission by RBI.
  2. 2. Objective of FERAThe main objective of the FERA 1973 was to consolidate and amend the law regulating:  certain payments;  dealings in foreign exchange and securities;  transactions, indirectly affecting foreign exchange;  the import and export of currency, for the conservation of the foreign exchange resources of the country;  the proper utilization of this foreign exchange so as to promote the economic development of the countryThe basic purpose of FERA was:a) To help RBI in maintaining exchange rate stability.b) To conserve precious foreign exchange.c) To prevent/regulate foreign business in India Progression/Transfer of FERA to FEMAFERA in its existing form became ineffective, therefore, increasingly incompatible with the change ineconomic policy in the early 1990s. While the need for sustained husbandry of foreign exchange wasrecognized, there was an outcry for a less aggressive and mellower enactment, couched in milder language.Thus, the Foreign Exchange Management Act, 1999 (FEMA) came into being.The scheme of FERA provided for obtaining Reserve Bank’s permission either special or general, inrespect of most of the regulations there under. The general permissions have been granted by Reservebank under these provisions in respect of various matters by issuing a large number of notificationsfrom time to time since the Act came into force from 1 st January 1974. Special permissions weregranted upon the applicants submitting prescribed applications for the purpose. Thus, in order tounderstand the operative part of the regulations one had to refer to the Exchange Control Manual aswell as the various notifications issued by RBI and the Central Government.FEMA has brought about a sea change in this regard and except for section 3, which relates to dealingin foreign exchange, etc. no other provisions of FEMA stipulate obtaining RBI permission. It appearsthat this is a transition from the era of permissions to regulations. The emphasis of FEMA is on RBI
  3. 3. laying down the regulations rather than granting permissions on case to case basis. This transition hasalso taken away the concept of “exchange control” and brought in the era of “exchange management”.In view of this change, the title of the legislation has rightly been changed to FEMA.The preamble to FEMA lays down that the Act is to consolidate and amend the law relating to foreignexchange with the objective of facilitating external trade and payments and for promoting the orderlydevelopment and maintenance of foreign exchange market in India. As far as facilitating external tradeis concerned, section 5 of the Act removes restrictions on drawal of foreign exchange for the purpose ofcurrent account transactions. As external trade i.e. import / export of goods & services involvetransactions on current account, there will be no need for seeking RBI permissions in connection withremittances involving external trade. The need to remove restrictions on current account transactionswas necessitated as the country had given notice to the IMF in August, 1994 that it had attained ArticleVIII status. This notice meant that no restrictions will be imposed on remittances of foreign exchangeon account of current account transactions.Need for FEMAThe demand for new legislation was basically on two main counts.The FERA was introduced in 1974when India’s foreign exchange reserves position was not satisfactory.It required stringent controls to conserve foreign exchange and to utilize in the best interest of thecountry. Very strict restrictions have outlived their utility in the current changed scenario. Secondlythere was a need to remove the draconian provisions of FERA and have a forward-looking legislationcovering foreign exchange matters.Repeal of draconian provisions under FERAThe draconian regulations under FERA related to unbridled powers of Enforcement Directorate. Thesepowers enabled Enforcement Directorate to arrest any person, search any premises, seize documentsand start proceedings against any person for contravention of FERA or for preparations of contraventionof FERA. The contravention under FERA was treated as criminal offence and the burden of proof wason the guilty.Why there was a need to scrap FERA?
  4. 4. a) The Foreign Exchange Regulation Act was replaced by the Foreign Exchange Management Act as itwas an impediment in Indias to go global.b) Indias foreign exchange transactions were governed under the Foreign Exchange Regulation Act until June2000. This law had been enacted in 1973 when the Indian economy was facing a crisis and foreign exchangehad become a precious commodity. But by the nineties, FERA had outlived its utility and was in fact, animpediment in Indias effort to go global and compete with other developing countries.c) Thus, there was a need to scrap FERA and the Foreign Exchange Management Act, 1999 came into effecton June 1, 2000. However some of the relevant progresses made, from FERA to FEMA, are as follows:Withdrawal of Foreign ExchangeNow, the restrictions on withdrawal of Foreign Exchange for the purpose of current Account Transactions, hasbeen removed. However, the Central Government may, in public interest in consultation with the ReserveBank impose such reasonable restrictions for current account transactions as may be prescribed.FEMA has also by and large removed the restrictions on transactions in foreign Exchange on account of tradein goods, services except for retaining certain enabling provisions for the Central Government to imposereasonable restriction in public interest.What is FEMA? The Foreign Exchange Regulation Act of 1973 (FERA) in India was repealed on 1st June, 2000. It wasreplaced by the Foreign Exchange Management Act (FEMA), which was passed in the winter session ofParliament in 1999. Enacted in 1973, in the backdrop of acute shortage of Foreign Exchange in the country,FERA had a controversial 27 year stint during which many bosses of the Indian Corporate world foundthemselves at the mercy of the Enforcement Directorate (E.D.). Any offense under FERA was a criminaloffense liable to imprisonment, whereas FEMA seeks to make offenses relating to foreign exchange civiloffenses. FEMA, which has replaced FERA, had become the need of the hour since FERA had becomeincompatible with the pro-liberalization policies of the Government of India. FEMA has brought a newmanagement regime of Foreign Exchange consistent with the emerging frame work of the World TradeOrganization (WTO). It is another matter that enactment of FEMA also brought with it Prevention of MoneyLaundering Act, 2002 which came into effect recently from 1st July, 2005 and the heat of which is yet to befelt as “Enforcement Directorate” would be investigating the cases under PMLA too.
  5. 5. Unlike other laws where everything is permitted unless specifically prohibited, under FERA nothing waspermitted unless specifically permitted. Hence the tenor and tone of the Act was very drastic. It provided forimprisonment of even a very minor offence. Under FERA, a person was presumed guilty unless he provedhimself innocent whereas under other laws, a person is presumed innocent unless he is proven guilty.a) Objectives and Extent of FEMA The objective of the Act is to consolidate and amend the law relating to foreign exchange with theobjective of facilitating external trade and payments and for promoting the orderly development andmaintenance of foreign exchange market in India. FEMA extends to the whole of India. It applies to allbranches, offices and agencies outside India owned or controlled by a person who is a resident of India andalso to any contravention there under committed outside India by any person to whom this Act applies.FERA & FEMAa) Similarities & Differences between FERA & FEMA Similarities: The similarities between FERA and FEMA are as follows:  The Reserve Bank of India and central government would continue to be the regulatory bodies.  The Directorate of Enforcement continues to be the agency for enforcement of the provisions of the law such as conducting search and seizureSr. DIFFERENCES FERA FEMANo PROVISIONS FERA consisted of 81 sections, and was FEMA is much simple, and consist of1 more complex only 49 sections.
  6. 6. FEATURES Presumption of negative intention (Mens These presumptions of Mens Rea and2 Rea ) and joining hands in offence abatement have been excluded in (abatement) existed in FEMA FEMA NEW TERMS IN Terms like Capital Account Transaction, Terms like Capital Account Transaction, FEMA current Account Transaction, person, service current account Transaction person,3 etc. were not defined in FERA. service etc., have been defined in detail in FEMA. DEFINITION OF Definition of "Authorized Person" in FERA The definition of Authorized person has AUTHORIZED was a narrow one ( 2(b) been widened to include banks, money4 PERSON changes, off shore banking Units etc. (2 (c) MEANING OF There was a big difference in the definition The provision of FEMA, are in "RESIDENT" AS of "Resident", under FERA, and Income Tax consistent with income Tax Act, in COMPARED Act respect to the definition of term " WITH INCOME Resident". Now the criteria of "In India TAX ACT. for 182 days" to make a person resident has been brought under FEMA. Therefore a person who qualifies to be a non-resident under the income Tax Act, 1961 will also be considered a non-5 resident for the purposes of application of FEMA, but a person who is considered to be non-resident under FEMA may not necessarily be a non- resident under the Income Tax Act, for instance a business man going abroad and staying therefore a period of 182 days or more in a financial year will become a non-resident under FEMA. PUNISHMENT Any offence under FERA, was a criminal Here, the offence is considered to be a
  7. 7. offence , punishable with imprisonment as civil offence only punishable with some per code of criminal procedure, 1973 amount of money as a penalty.6 Imprisonment is prescribed only when one fails to pay the penalty. QUANTUM OF The monetary penalty payable under FERA, Under FEMA the quantum of penalty PENALTY. was nearly the five times the amount has been considerably decreased to7 involved. three times the amount involved. APPEAL An appeal against the order of "Adjudicating The appellate authority under FEMA is office", before " Foreign Exchange the special Director ( Appeals) Appeal Regulation Appellate Board went before against the order of Adjudicating High Court Authorities and special Director8 (appeals) lies before "Appellate Tribunal for Foreign Exchange." An appeal from an order of Appellate Tribunal would lie to the High Court. (sec 17,18,35) RIGHT OF FERA did not contain any express provision FEMA expressly recognizes the right of ASSISTANCE on the right of on impleaded person to take appellant to take assistance of legal9 DURING LEGAL legal assistance practitioner or chartered accountant (32) PROCEEDINGS. POWER OF FERA conferred wide powers on a police The scope and power of search and10 SEARCH AND officer not below the rank of a Deputy seizure has been curtailed to a great SEIZE Superintendent of Police to make a search extenta) Key Terms/Glossary with respect to FERA & FEMA1. Authorised Person - "Authorised person" means an authorised dealer, moneychanger, offshore bankingunit or any other person for the time being authorised under section 10(1) to deal in foreign exchangesecurities.
  8. 8. 2. Capital Account Transaction - "Capital account transaction" means a transaction which alters the assets orliabilities, including contingent liabilities, outside India of persons resident in India or assets or liabilities inIndia of person resident outside India, and includes transactions referred to in sub-section (3) of section 63. Current Account Transaction - "Current account transaction" means a transaction other than a capitalaccount transaction and without prejudice to the generality of the foregoing such transaction includes,-  Payments due in connection with foreign trade, other current business, services, and short-term banking and credit facilities in the ordinary course of business.  Payments due as interest on loans and as net income from investments.  Remittances for living expenses of parents, spouse and children residing abroad, and  Expenses in connection with foreign travel, education and medical care of parents, spouse and children;1. Foreign exchange reserves - A countrys reserves of foreign currencies. Commonly known as "quick cash", they can be used immediately to finance imports and other foreign payables.2. Foreign portfolio investment - Investment into financial instruments such as stocks and bonds in which the objective is not to engage in business but to merely generate dividend income and capital gains. The larger portion of international investment flows in the world today is FPIs.3. Forward contract - An arrangement between two parties to trade specified amounts of two Currencies at some designated future due date at an agreed price. More than a formal hedge against unforeseen changes in currency prices, it guarantees certainty in the foreign exchange rate at the contracts delivery date.4. Authorised dealer - "authorised dealer" means a person for the time being authorised under section 6 to deal in foreign exchange;5. Drawal - "Drawal means drawal of foreign exchange from an authorized person and includes opening of Letter of Credit or use of International Debit Card or A TM card or any other thing by whatever name called which has the effect of creating foreign exchange liability.6. Currency [including relevant notification] "Currency" includes all currency notes, postal notes, postal orders, money orders, cheques, drafts, travellers
  9. 9. cheques, letters of credit, bills of exchange and promissory notes, credit cards or such other similar instruments, as may be notified by the Reserve Bank;FEMA Rules & PoliciesThe Foreign Exchange Management Act, 1999 (FEMA) came into force with effect from June 1, 2000. Withthe introduction of the new Act in place of FERA, certain structural changes were brought in. The Actconsolidates and amends the law relating to foreign exchange to facilitate external trade and payments, and topromote the orderly development and maintenance of foreign exchange in India.From the NRI perspective, FEMA broadly covers all matters related to foreign exchange, investment avenuesfor NRIs such as immovable property, bank deposits, government bonds, investment in shares, units and othersecurities, and foreign direct investment in India.FEMA vests with the Reserve Bank of India, the sole authority to grant general or special permission for allforeign exchange related activities mentioned above.Section 2 - The Act here provides clarity on several definitions and terms used in the context of foreignexchange. Starting with the identification of the Non-resident Indian and Persons of Indian origin, it defines"foreign exchange" and "foreign security" in sections 2(n) and 2(o) respectively of the Act. It describes atlength the foreign exchange facilities and where one can buy foreign exchange in India. FEMA defines anauthorised dealer, and addresses the permissible exchange allowed for a business trip, for studies and medicaltreatment abroad, forex for foreign travel, the use of an international credit card, and remittance facilitySection 3 prohibits dealings in foreign exchange except through an authorised person. Similarly, without theprior approval of the RBI, no person can make any payment to any person resident outside India in anymanner other than that prescribed by it. The Act restricts non-authorised persons from entering into anyfinancial transaction in India as consideration for or in association with acquisition or creation or transfer of aright to acquire any asset outside India.Section 4 restrains any person resident in India from acquiring, holding, owning, possessing or transferringany foreign exchange, foreign security or any immovable property situated outside India except as specificallyprovided in the Act.
  10. 10. Section 6 deals with capital account transactions. This section allows a person to draw or sell foreignexchange from or to an authorised person for a capital account transaction. RBI in consultation with theCentral Government has issued various regulations on capital account transactions in terms of sub-sect ion (2)and (3) of section 6.Section 7 covers the export of goods and services. All exporters are required to furnish to the RBI or any otherauthority, a declaration regarding full export value.Section 8 puts the responsibility of repatriation on the persons resident in India who have any amount offoreign exchange due or accrued in their favour to get the same realised and repatriated to India within thespecific period and in the manner specified by the RBI.The duties and liabilities of the Authorised Dealers have been dealt with in Sections 10, 11 and 12, whileSections 13 to 15 cover penalties and enforcement of the orders of the Adjudicating Authority as well as thepower to compound contraventions under the Act.Case Study on FEMARBI slapped Rs.125 crore on Reliance Infrastructure:The Reserve Bank of India (RBI) has asked the Anil Dhirubhai Ambani Group firm, Reliance Infrastructure(earlier, Reliance Energy), to pay just under Rs 125 crore as compounding fees for parking its foreign loanproceeds worth $300 million with its mutual fund in India for 315 days, and then repatriating the moneyabroad to a joint venture company. These actions, according to an RBI order, violated various provisions ofthe Foreign Exchange Management Act (FEMA).In its order, RBI said Reliance Energy raised a $360-million ECB on July 25, 2006, for investment ininfrastructure projects in India. The ECB proceeds were drawn down on November 15, 2006, and temporarilyparked overseas in liquid assets. On April 26, 2007, Reliance Energy repatriated the ECB proceeds worth$300 million to India while the balance remained abroad in liquid assets.It then invested these funds in Reliance Mutual Fund Growth Option and Reliance Floating Rate Fund GrowthOption on April 26, 2007. On the following day, i.e., on April 27 2007, the entire money was withdrawn andinvested in Reliance Fixed Horizon Fund III Annual Plan series V. On March 5, 2008, Reliance Energyrepatriated $500 million (which included the ECB proceeds repatriated on April 26, 2007, and invested incapital market instruments) for investment in capital of an overseas joint venture called Gourock Venturesbased in British Virgin Islands.RBI said, under FEMA guidelines issued in 2000, a borrower is required to keep ECB funds parked abroad tillthe actual requirement in India. Further, the central bank said a borrower cannot utilise the funds for any otherpurpose.
  11. 11. “The conduct of the applicant was in contravention of the ECB guidelines and the same are sought to becompounded,” the RBI order signed by its chief general manager Salim Gangadharan said.During the personal hearing on June 16, 2008, Reliance Energy, represented by group managing directorGautam Doshi and Price waterhouse Coopers executive director Sanjay Kapadia, admitted the contraventionand sough compounding. The company said due to unforeseen circumstances, its Dadri power project wasdelayed. Therefore, the ECB proceeds of $300 million were bought to India and was parked in liquid debtmutual fund schemes, it added.Rejecting Reliance Energy’s contention, RBI said it took the company 315 days to realise that the ECBproceeds are not required for its intended purpose and to repatriate the same for alternate use of investment inan overseas joint venture on March 5, 2008.Reliance also contended that they invested the ECB proceeds in debt mutual fund schemes to ensureimmediate availability of funds for utilisation in India.“I do not find any merit in this contention also as the applicant has not approached RBI either for utilising theproceeds not provided for in the ECB guidelines, or its repatriation abroad for investment in the capital of theJV,” the RBI official said in the order.In its defence, the company said the exchange rate gain on account of remittance on March 5 2008, would bea notional interim rate gain as such exchange rate gain is not crystallised.But RBI does not think so. “They have also stated that in terms of accounting standard 11 (AS 11), all foreignexchange loans have to be restated and the difference between current exchange rate and the rate at which thesame were remitted to India, has to be shown as foreign exchange loss/gain in profit and loss accounts.However, in a scenario where the proceeds of the ECB are parked overseas, the exchange rate gains or lossesare neutralized as the gains or losses restating of the liability side are offset with corresponding exchangelosses or gains in the asset. In this case, the exchange gain had indeed been realised and that too the additionalexchange gain had accrued to the company through an unlawful act under FEMA,” the order said.It said as the company has made additional income of Rs 124 crore, it is liable to pay a fine of Rs 124.68crore. On August this year, the company submitted another fresh application for compounding and requestedfor withdrawal of the present application dated April 17, 2008, to include contravention committed in respectof an another transaction of ECB worth $150 million. But RBI said the company will have to make separateapplication for every transaction and two transactions are different and independent and cannot be clubbedtogether.