Revision of FEMA Regulations – Promoting Ease of Doing Business

[The following guest post is contributed by Ananya Banerjee, who is a Fifth Year
B.A.LL.B (Honours) Student at the University of Calcutta (Department of Law)]
The
Reserve Bank of India (“RBI”), through
several notifications dated December 29, 2015, January 12, 2016 and January 21,
2016, has consolidated and revised nine sets of Regulations under the Foreign
Exchange Management Act, 1999. The update is said to be in line with the
evolving business environment and changing practices in cross-border
transactions. The step has also been taken to promote and facilitate ease of
doing business in India. This post contains excerpts of such revised
Regulations.
Acquisition and Transfer of
Immovable Property outside India
The
Foreign Exchange Management (Acquisition and Transfer of Immovable Property
outside India) Regulations, 2000, and all its subsequent amendments were
repealed and replaced by the 2015 Regulations. Through A.P. (DIR Series)
Circular No. 43/2015-16 [(1)/7(R)] dated February 4, 2016, the RBI has
instructed the authorized dealers (“AD”)
of the same. The new Regulations have laid down six exceptions under which a person
resident in India would not require RBI approval for acquisition or transfer of
immovable property outside India. Indian companies having overseas offices
shall be eligible to acquire such property for business and residential
purposes subject to the threshold of total remittances as prescribed. The
initial expense must not exceed 15% of the average annual sales/income or
turnover of the Indian entity during the last 2 financial years, or 25% of the
net worth of the entity, whichever is higher. The recurring expenses must not
exceed 10% of the average annual sales/income during the preceding 2 financial
years. These Regulations have come into effect from January 21, 2016.
Definition of Currency
Through
A.P. (DIR Series) Circular No.48/2015-16 [(1)/15(R)], dated February 4, 2016,
the RBI has informed the Ads that the Notification No. FEMA 15 (R)/2015 – RB
has superseded the previous notification dated May 3, 2000, from December 29,
2015, although, the definition of currency has been kept similar to the earlier
notification.
Possession and Retention of
Foreign Currency
The
Foreign Exchange Management (Possession and Retention of Foreign Currency)
Regulations, 2000, with all its subsequent amendments has been repealed and
replaced by the Foreign Exchange Management (Possession and Retention of
Foreign Currency) Regulations, 2015, which has come into effect on December 29,
2015. The RBI has directed the ADs regarding the limits for possession or
retention of foreign currency or foreign coins. While an authorised person
within the scope of his authority shall not be subjected to any limit and any
person can possess foreign coins without any limit, retention of foreign
currency notes, bank notes and foreign currency traveler’s cheques shall be
subject to a limit of USD 2,000 in aggregate, which shall also have further
conditions as provided under the new Regulations. However, a person resident in
India but not permanently residing herein shall have no such limit, provided
the foreign currency was acquired, held or owned by him when the person was
resident outside India and he brought such currency in accordance with the
applicable laws.
Realisation,
Repatriation and Surrender of Foreign Exchange
The Foreign Exchange Management (Realisation, Repatriation
and Surrender of Foreign Exchange) Regulations, 2015 have superseded the
old Regulations with all subsequent amendments. A person resident in India
shall, with the general or special permission of RBI, take all reasonable steps
to repatriate any foreign exchange due or accrued to him. Such person shall not
do anything or refrain from doing anything which results in delay or cessation of
receipt of such foreign exchange. The manner of repatriation would include –
(i)        selling
to an authorised person in India in exchange of Indian currency;
(ii)       retaining
the amount in an account kept with an AD, subject to the extent specified by
RBI; or
(iii)      using
it to discharge a debt or liability in accordance with the guidelines of the
RBI.
Repatriation
would be deemed to occur once the person receives payment in Indian currency in
India, from any account (maintained with an AD) of a bank or exchange house,
situated overseas.
Time
Limit for Repatriation
: Every person, not being an individual,
must repatriate the amount so received within seven days from the date of
receipt in case the foreign exchange becomes due or accrued as: a) remuneration
for rendering services; b) settlement of lawful obligation; c) income on assets
held outside India; or b) inheritance, settlement or gift.
In
all other cases, such foreign exchange must be repatriated within 90 days from
the date of receipt. When a person, not being an individual resident, acquires
or purchases any foreign exchange for the purposes mentioned in his declaration
(in accordance with applicable law), such person shall surrender such amount or
any unused portion thereof within 60 days of such acquisition or purchase.
Any
unspent foreign exchange acquired or purchased by any person not being an
individual resident of India, for the purpose of foreign travel, must be
repatriated within 90 days of return of such traveler to India, provided
however, in case of such foreign exchange is in the form of traveller’s
cheques.
For
a resident individual, the time limit of surrender of any foreign exchange,
received, realized, unspent or unused by such person, would be 180 days from
the relevant date.
Export and Import of Currency
The
Foreign Exchange Management (Export and Import of Currency) Regulations, 2000
and all amendments thereto are superseded by the 2015 Regulations, with effect
from December 29, 2015.
Export
and Import of Indian Currency
: A person resident in India (i)
may take outside India currency notes of Government of India and RBI notes of an
amount not exceeding Rs. 25,000/- in aggregate; (ii) may take or send outside
India up to two commemorative coins;[1]
and (iii) may bring in India, currency notes and RBI notes up to an amount of
Rs. 25,000/- while returning to India after a temporary visit to a place
outside the country. However, Nepal and Bhutan shall not be considered for
deciding a place outside India.
Import
of Foreign Exchange
: Foreign exchange can be sent into India
without any limit, except in the form of foreign currency notes, bank notes and
traveler’s cheques. A person may bring into India foreign exchange (except for
unissued notes) without any limit, subject to a declaration made in the
Currency Declaration Form (“CDF”),
at the time of his arrival in India. However, no such declaration would be
required if the aggregate amount brought by such person, through currency
notes, bank notes or traveler’s cheques, at one time, does not exceed USD
10,000 or its equivalent and/or if the foreign exchange value of the currency
notes brought is within USD 5,000 or its equivalent.
Export
of Foreign Exchange and Currency Notes
: While an authorised person
shall be eligible to send out any foreign exchange acquired in normal course of
business, any other person shall be subjected to the conditions specified for
this purpose. However, any person resident outside India may take out of India
any unspent foreign exchange, provided, such amount does not exceed the amount brought
by him and declared by him in the CDF upon arrival.
Export
and Import to or from Nepal and Bhutan
: While there is no limit in
export and import of currency to and from Nepal and Bhutan, a person travelling
from India to those two countries shall be permitted to carry up to Rs.
25,000/- in currency notes of denomination Rs. 500 and Rs. 1,000. However, in
no circumstance, any currency note of denomination Rs. 100 shall be taken, sent
or carried out of India to those two countries.
Prohibition
of Export of Coins
: No person shall be allowed to take or send out
of India any Indian coins covered under the Antique and Art Treasure Act of
1972.
Foreign Currency Accounts by
Person Residents in India
The
regulations issued under the Foreign Exchange Management (Foreign Currency
Accounts by a person resident in India) Regulations, 2000, as amended from time
to time, have been replaced by the new Regulations through a notification dated
January 21, 2016. A person resident in India may open, hold and maintain with
an AD in India, the following accounts:
(i)        Exchange Earner’s Foreign Currency
Account;
(ii)       Resident Foreign Currency Account;
(iii)      Resident Foreign Currency (Domestic)
Account;
(iv)      Diamond Dollar Account.
For
opening, holding and maintaining either of the above-mentioned accounts, the
relevant regulations have to be followed.
In
addition to and subject to the foregoing, the following person, resident in
India, shall also be eligible to open a foreign currency account, viz. (i) any unit in a Special Economic
Zone; (ii) an exporter, provided he/it either is exporting services and
engineering goods on deferred payment terms, or, has undertaken a turnkey
project or a construction contract abroad; (iii) the Indian agents of foreign
airlines/shipping companies; (iv) ship manning/crew managing agencies; (v) project
offices set up in India in accordance with relevant FEMA regulations; (vi) Indian
companies receiving foreign direct investment; and (vii) organizers of international
seminars/conferences/conventions etc.
Subject
to the conditions specified hereinabove, ADs having branch/head office/correspondence
outside India; a branch of an Indian bank; an Indian body corporate (including
company and firm) in the name of its foreign branch/representative; an Indian
Party making overseas investment; a person raising external commercial
borrowing; a person going abroad for studies; and such other person resident in
India, as specified, shall be eligible to open foreign currency accounts
outside India. Subject to other conditions, the accounts can be current,
savings or term deposit accounts, unless otherwise provided, in case of
accounts opened by individuals and in the form of current or term deposit
accounts, in case of others. Such account can be held jointly or singly in the
name of the eligible person.
Postal
Orders/Money Orders
The Post Office (Postal Orders/Money Orders), 2015
has superseded the original Notification No.FEMA.18/2000-RB, with effect from
December 29, 2015. Vide the notification the RBI has given general permission
to any person to buy foreign exchange in the form of postal order or money
order from any Indian Post Office.
Export
of Goods and Services
The RBI, through FEMA 23(R)/2015-RB, dated January
12, 2016, has notified the Foreign Exchange Management (Export of Goods &
Services) Regulations, 2015, replacing the old Regulations dated May 3, 2000.
Declaration of Exports: The exporters of goods and software in physical or
any other form, carrying out export through Customs manual ports, are required
to furnish declaration specifying the relevant particulars in the manner and
form set out for that purpose. Such declaration shall mention the full export
value (or the value which the exporter expects to receive). In case of export
of services, where no Form is specified in these Regulations, no declaration
would be required. However, the exporter shall be liable to realize the amount
of foreign exchange and to repatriate the same to India in accordance with the applicable
laws.
Declaration in Form EDF shall be submitted in
duplicate to the Commissioner of Customs. Declaration in Form SOFTEX shall be
submitted for export of computer/audio/video/ television software, in
triplicate to the designated official of Ministry of Information Technology,
Government of India at the Software Technology Parks (“STPs”) of India
or at the Free Trade Zones or Special Economic Zones (“SEZ”) in India.
Each copy of the declaration must include Importer-Exporter Code number.
Each declaration must also be backed up by evidences supporting such
declaration.
Exemption:
Regulation 4 exempts certain export of goods and/or software from the liability
of declaration which includes export of: trade samples; personal effects of
travelers; ship’s stores, trans-shipment cargo etc. under such circumstance as
specified; gift of goods not exceeding 5 lakh rupees (which would require the
declaration of the exporter to that effect); aircrafts/aircraft engines for repair/overhauling
activities, subject to re-import within six months; goods, free of cost, on
re-export basis; goods found defective, for the purpose of replacement; goods
imported from foreign entities on loan; goods permitted by relevant authorities
as prescribed; goods sent outside for testing, subject to re-import and such
other goods as mentioned in the Regulations.
Other
Provisions
: Unless otherwise authorised by the RBI, the amount of
export shall be realized in accordance with the provisions of the Foreign
Exchange Management (Manner of Receipt and Payment) Regulations, 2000 as
amended from time to time, through an AD. The full export value shall be realized
and repatriated within nine months from the date of export, provided that, if
such goods are exported to a foreign warehouse with RBI’s permission, such
value shall be paid to the AD as soon as the value is realized and in any case,
within 15 months of the shipment of goods. However, the RBI may extend the time
limit in case there is any reasonable cause. In case of export from SEZ, STPs,
Export Oriented Units etc., the full export value must be repatriated within nine
months from the date of export.
The
documents pertaining to export shall be submitted to the authorised dealer
mentioned in the relevant export declaration form, within 21 days from the date
of export, or from the date of certification of the SOFTEX Form. Certain
exports regarding trade agreements, rupee credit etc. would be subjected to RBI
guidelines and would require prior approval. The Regulations also lay down
provisions which prohibit any person from doing any act/omission which would result
in delay of realization of the value of export. An exporter shall also be
eligible to receive advance payment, subject to the provisions of Regulation
15.
Insurance Regulations
Through
a notification dated December 29, 2015, the RBI has replaced the Foreign
Exchange Management (Insurance) Regulations, 2000 with the Foreign Exchange
Management (Insurance) Regulations, 2015. These regulations control the general
and life insurance policies issued by an insurer outside India, to a person
resident in India.
General
Insurance
: A person resident in India may take or continue to hold a
health insurance policy issued by an insurer outside India on a condition that
the total remittance does not exceed the limit prescribed under the Liberalised
Remittance Scheme (Currently, upto USD 250,000 can be remitted under the
Scheme in a financial year for any permitted current or capital account
transaction or a combination of both
). No person shall, without the
approval of Insurance Regulatory Development Authority, take out/renew any
insurance policy for any property in India or ship/vessel/aircraft registered
in India with any insurer whose principal place of business is outside India. However,
a person can take out/continue to hold a general insurance issued by such
insurer mentioned above if such policy is held under a specific/general
permission granted by the Central Government.
If
a person, resident in India, holds a general insurance policy taken from an
insurer outside India during a time such person was a resident outside India, he
may continue to hold such policy. Where the premium of a general insurance
policy is remitted from India, the maturity proceeds or any claim amount shall
be repatriated through normal banking channels within seven days from
the receipt of such amount.
Life
Insurance
: A resident may take or continue to hold life insurance
coming under the purview of these Regulations under a specific or general permission
of the RBI. Regulation 4 of these Regulations also lays down provisions
regarding repatriation of the maturity benefits and/or claim amounts.
Conclusion
The
Foreign Exchange Management Act, 1999 came into effect from June 1, 2000. There
are several Regulations framed under the main Act and there have been several
amendments to these Regulations, making it cumbersome to follow. The revised
Regulations discussed above have replaced all the relevant Regulations along
with their amendments. This revision not only facilitates ease of doing
business, it has successfully captured the current business trend. Hence, the
supersession of nine sets of Regulations under the Act by fresh set of
Regulations has been welcomed by parties interested in carrying out cross-border
transactions.

Ananya Banerjee



[1]
‘Commemorative
Coin’ includes coin issued by Government of India Mint to commemorate any
specific occasion or event and expressed in Indian currency.

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.

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