UNITED NATIONS TRADE POINT DEVELOPMENT CENTRE IN COOPERATION WITH THE
ECONOMIC AND SOCIAL COMMISSION FOR ASIA AND THE PACIFIC
TRADE AND INVESTMENT COUNTRY INFORMATION SERIES AS PART OF THE
REGIONAL INVESTMENT INFORMATION PROMOTION SERVICES -RIIPS-
INVESTIG IN INDIA
The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secreatriat of the United Nations concerning the legal status of any country, territory, city or area.
This document has been issued without formal editing.
The information contained in this document is derived from the following sources:
Foreign Investment Incentive Schemes: India (ESCAP; 1994)
The Trader´s Manual: India (ESCAP; 1991)
India Means Business (Ministry of External Affairs, India; 1994)
Licensing, Trading and Investment: India (Economist Intelligence Unit; 1994)
I. GENERAL BUSINESS INFORMATION 1
A. Establishing business offices 1
B. Main ports and warehouses 2
C. Travelling and business customs 2
II. SELLING TO INDIA 4
A. Import policy, regulations and procedures 4
B. Tariff schedule 8
C. Foreign exchange regime 9
D. Documents 11
E. Government procurement 12
III. BUYING FROM INDIA 13
A. Export policy, regulations and procedures 13
B. Export charges 18
C. Settlement of bills 19
D. Documents 19
IV. INVESTING IN INDIA 20
A. Essential features of policies relating to foreign investment 20 B. Areas where foreign investment is encouraged 22
C. Incentive schemes 24
D. Limitations to foreign investment 34
E. Administrative procedures 39
F. Annexes 43
V. TRADE AND INVESTMENT INFORMATION SOURCES 51
A. Government agencies 51
B. Chambers of commerce and industry 52
C. Financial Institutions 54
I. GENERAL BUSINESS INFORMATION
A. Establishing business offices
Foreign companies in the manufacturing, trading or services sector may start business operations in India through the following entry options:
(i) as a company incorporated in India;
(ii) as a branch operation, a project or a liaison office;
(iii) as a joint venture with an Indian partner;
1. Establishing a company
The Companies Act of 1956 provides for the establishment of both public and private companies. The most commonly used corporate form is the limited company. Unlimited companies, though permissible, are relatively uncommon. A company is formed by registering the memorandum and articles of association with the State Registrar of Companies of the state in which the main office will be located.
2. Establishing a branch, a project office or a liason office
The legal requirement for all foreign collaboration are set by the Foreign Exchange Regulation Act (FERA) 1973, whether foreign equity is involved or not. Foreign companies engaged in manufacturing and trading activities abroad are permitted by the Reserve Bank of India to open branch offices in India for the purpose of carrying on the following activities in India:
(i) to represent the parent company or other foreign companies in various matters
in India, for example, acting as buying/selling agents in India, etc.
(ii) to conduct the research work in which the parent company is engaged provided
the results of the research work are made available to Indian companies;
(iii) to undertake export and import trading activities;
(iv) to promote possible technical and financial collaboration between Indian
companies and overseas companies.
Project offices are essentially branch offices set up with the limited purpose of executing a specific project for a limited period of time. Liaison offices are set up by foreign companies to look after their Indian operations and promote their business interests. However, they are not allowed to earn any income in India and all expenses are to be borne by remittances from abroad. The approvals for liaison offices are usually granted for three years.
Application for permission to open a branch, a project office or liason office is made via the Reserve Bank of India by submitting form FNC-5 to the Controller, Foreign Investment and Technology Transfer Section of the Reserve Bank of India.
Approval is granted for specified activities at a particular location and may take between three and five weeks. For opening a project or site office, application may be made on Form FNC-10 to the regional offices of the Reserve Bank of India.
3. Establishing a joint venture
It is not necessary for a foreign investor to have a local partner, even when the foreign investor whishes to hold less than the full equity of the company. The portion of the equity not proposed to be held by the foreign investor can be offered to the public.
B. Main ports and warehouses
India has eleven major ports, seven on the west coast (Bombay, Nhava Sheva, Kandla, Mormugao, Cochin, Mangalore and Tuticorin) and four on the east coast (Madras, Calcutta, Paradip and Vishakhapatnam). The largest port with extensive container handling facilities is Bombay, followed by Madras. There are warehouse facilities at all the major ports and at the export processing zones. The Government has initiated various steps to expand the infrastructural base of the key ports of the country and many ports are in the process of installing and developing complete container terminals.
C. Travelling and business customs
All travellers to India, whether on tourism or for business purposes, require a valid passport and visa. The visa is valid for three stays of up to three months for each stay. Business visitors require a letter from the sponsoring firm, indicating the likely duration of the stay, names of companies and places to be visited and guranteeing that the visitor can be maintained while in India.
2. Business hours and holidays
Business offices Monday - Friday 0930 - 1300, 1400 - 1700
Government offices Monday - Friday 0900 - 1300, 1400 - 1730
Most offices and banks are closed on Saturday.
Public holidays in 1995
26 January Republic Day
27 February Mahashivratri
3 March Idu´l Fitr
13 April Mahavir Jayanti
14 April Good Friday
11 May Idu´l Zuha/Bakrid
14 May Buddha Purnima
9 June Muharram
10 August Birthday of the Prophet Mohammed
15 August Independance Day
2 October M.Ghandi´s Day
3 October Dussehra (Vijaya Dashami)
23 October Diwali
7 November Guru Nanak´s Birthday
25 December Christmas Day
A number of Indian holidays vary, depending upon sighting of the Moon, such as Idul-Fitr, Idul Zuha/ Bakrid and Muharram.
II. SELLING TO INDIA
A. Import policy, regulations and procedures
The economic needs of the country, effective use of foreign exchange and industrial as well as consumer requirements are the basic factors which influence India's import policy. On the import side the policy has three objectives:
(i) to make necessary imported goods more easily available, including essential
capital goods for modernizing and upgrading technology;
(ii) to simplify and streamline procedures for import licensing;
(iii) to promote efficient import substitution and self-reliance.
India's basic trade law, the Foreign Trade Development and Regulation Act of 1992, empowers the government to prohibit, restrict or otherwise regulate imports or exports. The trade policy formulated under this act is published in two parts: the policy itself and a handbook of procedures. The current five-year trade policy covers the period April 1992-March 1997.
During 1994 the Government continued its deregulation policies by announcing several measures, such as the liberalized exchange rate management system (LERMS) and the introduction of a unified exchange rate system. During the same period, import licensing was reduced radically for all but a small negative list consisting of consumer goods (around 1,500 tariff lines) and certain other items (300 tariff lines). Barring a short list of items, all goods and raw materials components etc. were made freely importable on the open general license (OGL). The Government also announced a drastic reduction in import duties, which was another significant step towards the globalization of the Indian economy.
All imports now fall into one of the following four categories:
(i) freely importable items; Most capital goods fall into this category. Items in this
category do not require import licences and may be freely imported by any
individual or entity.
(ii) licensed imports; Certain items can be imported only with licences and only by
actual users. The current "negative list" of items in this category includes
several broad product groups that are classified as consumer goods; precious
and semi-precious stones; products related to safety and security; seeds, plants
and animals; some insecticides, pharmaceuticals and chemicals; some
electronical items; several items reserved for production by the small-scale
sector; and 17 miscellaneous or special-category items.
In April 1993 the government ended licensing requirements for several
agricultural items, including prawns, shrimp and poultry feed.
(iii) canalised items; Items under this category can be imported only by specified
public-sector agencies. These include petroleum products (to be imported only
by the Indian Oil Corporation); nitrogenous phosphatic, potassic and complex
chemical fertilisers (by the Minerals and Metals Trading Corporation); vitamin-
A drugs (by the State Trading Corporation); oils and seeds (by the State
Trading Corporation and Hindustan Vegetable Oils); and cereals (by the Food
Corporation of India).
(iv) prohibited items; Only three items-tallow fat, animal rennet and unprocessed
ivory-are completely banned from importation.
2. Licensing, quotas and prohibitions
Import approval is based on compliance with procedures whereby specific items may be imported by certain types of importers under certain types of licences. Importers are divided into three categories for the purpose of import licensing:
(i) actual users; An actual user applies for and receives a licence to import any item
or an allotment of an imported item as required for his own use, not for
business or trade in that item.
(ii) registered exporters; defined as those who have a valid registration certificate
issued by an export promotion council, commodity board or other registered
authority designated by the Government for purposes of export-promotion.
The two types of actual user licence are:
(i) general currency area licences which are valid for imports from all countries,
except those countries from which imports are prohibited;
(ii) specific licences which are valid for imports from a specific country or
countries. Aside from the types of licences listed, the Open General Licence is
perhaps the most liberalized type of licence available for certain items and
certain types of importers.
Licences are valid for 24 months for capital goods and 18 months for raw materials components, consumables and spares, with the licence term renewable.
Import licences may be obtained from the director general of foreign trade (Office of Chief Controller of Imports and Exports, Ministry of Commerce, Udyog Bhawan, New Delhi 110011, Tel: 301-7777). Traders are advised to consult the Handbook of Procedures which is published by the Ministry of Commerce and is part of the Import and Export Policy for further details.
3. Packing and labelling requirements
India's ports are mostly located in tropical region, which means special care is needed when packing goods for shipment. Damage may be caused by damp, heat, exposure to sun and rain, insects, fungus and moulds. Therefore, waterproofing of shipments is necessary and use of cases lined with zinc or tin is recommended. Special attention is needed in packing imported machinery, which may be transported through tropical areas as well as desert areas. Caution is needed when packing to protect against high humidity, dust and sand.
There are origin requirements for the labelling of imported merchandise. Labels must indicate the country or place where the goods were produced, or the name and address of the manufacturer. Labelling should be in English, and words indicating country of origin should be as large and as prominent as any other English wording on the package or label. This requirement applies to every article, label or wrapper that has any words in English.
There are standards in effect for marking and labelling related to weights and measures for packaged goods imported into India and intended for retail sale.
Customs inspectors have considerable authority and discretion in matters of inspection and valuation of imported items. Any imported goods or parts of any shipment may be examined and tested. Customs officials may require the importer to furnish information or produce any contract, broker's note insurance policy, catalogue or other document to help ascertain the rate of duty or tariff valuation.
Customs officials have the authority to determine whether imports conform to the description in the import licence. Fines and penalties can be severe if imports are unauthorized or if imports contravene control regulations. Packages and goods can be confiscated if they differ significantly from the description given in documents such as the bill of entry, or if contents of a shipment are wrongly described in terms of value, quality, quantity or if other goods are concealed or mixed with those described in the documents.
5. Participation in multilateral, regional and commodity agreements
India is a signatory to the General Agreement on Tariffs and Trade (GATT) and, as of 1 January 1995, a signatory founding member to the World Trade Organization (WTO). India is also a signatory to the Agreement on Technical Barriers to Trade which aims to eliminate use of standards and certification as barriers to trade. India and the European Union have signed a trade co-operation agreement in order to balance trade, promote diversification of imports, resolve trade and economic problems and grant most-favoured nation treatment.
At the regional level, India has acceded to the Bangkok Agreement. Under the auspices of the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP), the Bangkok Agreement is designed to liberalize trade among ESCAP-member countries, especially for the signatory countries which are less developed, by negotiating tariff concessions for agricultural, chemical and manufactured goods as well as for minerals. Particpating countries include Bangladesh, the Lao People's Democratic Repoublic, the Republic of Korea and Sri Lanka.
India participates in the following international or regional commodity agreements and arrangements:
(i) Asian and Pacific Coconut Community;
(ii) Association of Iron Ore Exporting Countries;
(iii) Association of Natural Rubber Producing Countries;
(iv) Common Fund for Commodities;
(v) International Pepper Agreement;
(vi) International Sugar Agreement;
(vii) International Tea Agreement;
(viii) International Tin Agreement;
(ix) Multifibre Arrangement.
B. Tariff schedule
The Indian classification on tariff items follows the Harmonized Commodity Description and Coding System (Harmonized System or HS). India has fully adopted HS through the Customs Tariff Amendment Act, 1985. There has been some modification of HS as appropriate to the Indian environment concerning excise taxes.
2. Customs duties
The Customs Act governs the levying of tariffs on imports and exports and frames the rules for customs valuation. The Customs Tariff Act specifies the tariffs rates and provides for the imposition of anti-dumping and countervailing duties.
With some exceptions, most tariffs are ad valorem. Tariff rates, excise duties, regulatory duties, countervailing duties and the like are revised in each annual budget. The April 1993 trade policy merged the auxiliary duty with the present duty. Total duties on imports now consist of basic duty (ranging from zero to 65%) plus additional or countervailing duties (equal to excise duties),. On manufactured "luxury" items, total import taxes can amount to 150%.
As import duties are quite product specific and may be altered in mid-year, companies are advised to verify the relevant rates for their products. Rates are published by the Central Board of Customs and Excise within the Ministry of Finance's Department of Revenue. They may be obtained from the public relations officer (Customs House, Indraprastha Estate, New Delhi, 110 002, Tel: 331 9451).
3. Duty exemption scheme
Indian import policy includes a duty exemption scheme for registered exporters so that they may import the inputs required for export production at international prices and free from duty in order to make their exports more competitive. Imported items which are exempt from customs duty are raw materials, components and consumables.
The customs schedule makes multiple provisions for tariff concessions and exemptions. The government has wide discretionary power to declare full or partial duty exemptions "in the public interest" and to specify conditions such as end-use provisions. Almost half of India's total inputs enter under concessional tariffs, though the use of exemptions is falling in tandem with the tariff-reduction programme.
C. Foreign exchange regime
The Reserve Bank of India administers exchange controls in accordance with the Government's policy designed to maintain general control over the foreign exchange situation, particularly outgoing financial flows. The Foreign Exchange Regulation Act (FERA), 1973 confers powers to the Reserve Bank of India concerning foreign exchange control. General or specific permision is required from the Reserve Bank of India for all foreign exchange transactions.
Foreign companies operating in India are governed by the 1973 Foreign Exchange Regulation Act (FERA), which sets guidelines for bank accounts, loans, foreign exchange trading and the remittance of dividends and profits.
In March 1993, the government ended certain FERA restrictions on domestic borrowing, trading and acquisition of immovable property by companies with more than 40% foreign equity. Residents may use up to 25% of foreign exchange earnings to maintain a foreign currency bank account in India. Foreign employees, liaison offices, project offices and branches of foreign companies may open and use a resident bank account in Indian currency provided that they have approval by the Reserve Bank for operations in India. Exporters who have net foreign exchange earnings of a certain level can maintain a foreign currency account outside of India.
The sale of foreign exchange or rupee transfers to non-resident accounts in payment for imports may be made by authorized dealers. Persons, firms and banks (other than authorized banks) must apply to an authorized dealer on form A1 "Application for remittance in foreign currency" to pay for imported goods. In certain cases, additional questionnaire forms or supporting letters may be required along with form A1.
2. Currency convertibility
In August 1994, the rupee was made fully convertible on the current account. Rupee convertibility on the trade account is restricted by the negative list of imports and exports and limited to those involved in trade. All export and import transactions are conducted at the market rate of exchange. This applies as well to other transactions, such as inflow of foreign equity for investment, outflows in the case of disinvestment, payments in respect of repatriation of dividends, fees and royalities for technical know-how and for foreign travel.
The financial sector in India is controlled by the state. As a result of past nationalisations, the government controls some 90% of the assets of the banking and finance sectors.
The Reserve Bank, India´s central banking institution, supervises all banking operations in the country. Its tasks involve the following:
(i) regulation of the availability of funds to the banking sector by adjusting bank
rates, imposing reserve requirements and engaging in open-market securities
(ii) credit control through bank lending to the commercial sector;
(iii) approval for short-term loans and overdrafts secured by guarantees from parent
or affiliate companies.
However, the Indian government is expected to continue liberalisation of the financial sector. The Reserve Bank has permitted the establishment of new domestic banks, and foreign banks are being encouraged to open new branches.
The Asian Clearing Union (ACU) was established in 1974 under the auspices of the Economic and Social Commission for Asia and the Pacific as a mechanism for settlement of payments among participating countries' central banks. The Reserve Bank of India is one of the original participants. The other participants are Bangladesh, the Islamic Republic of Iran, Nepal, Pakistan, Sri Lanka and Myanmar.
All authorized banks in India can handle transactions cleared through the Asian Clearing Union, and there is a specific A1 form to cover remittances for imports through the Asian Clearing Union. It is compulsory that all eligible payments among participants be settled through the Asian Clearing Union.
The following documents are required for imports:
(i) Import licence/customs clearance permit
(ii) Customs entry
(iii) Commercial invoice
(iv) Certificate of origin
(v) Packing list
(vi) Bill of lading/air waybill
For some imported items, special requirements apply. A certificate stating that imported plants are free from disease or injurious insects is required if the plants are imported by sea and if they are not fruit or vegetables intended for consumption. Imported cattle must have a health certificate issued by accredited veterinarian and endorsed by a government veterinarian of the exporting country.
E. Government procurement
The Indian Government is a major importer and exporter, especially for certain mass consumption items and manufacturing requirements of small-scale actual users. The public sector agencies concerned are designated to import certain items under open general licence.
The Government decides on the quantity to be imported with consideration given to the release of foreign exchange. If the Government determines that any item is in short supply or shortages are anticipated, then the Chief Controller of Imports and Exports will arrange for import. The Chief Controller of Imports and Exports can review import arrangements and the pricing of items.
There are two types of invitations to tender or bid for Indian public sector projects or Government imports. The first is a global invitation open to suppliers throughout the world. The second type is a limited tender invitation. In cases of limited invitations, the public sector organizations may refer to the Indian Government's list of registered suppliers, so that the invitation may be limited to selected suppliers.
III. BUYING FROM INDIA
A. Export policy, regulations and procedures
Promotion of exports is emphasized as a way to improve the balance of payments position, particularly exports that involved higher value-added domestically. Thus, two of the five main objectives of the Import and Export Policy are to encourage rapid and sustained export growth, including export of services and to facilitate the availability of those imported inputs necessary to sustain industrial growth through export promotion, including import of essential capital goods for modernization and upgrading technology.
Procedures relating to export promotion have been simplified, streamlined and made more transparent. More powers have been delegated to port authorities for some procedures, such as revalidating export licences covering ceiling items. Documentation requirements have been reduced as well.
The Government administers export control under authority of the Exports (Control) Order, 1988. Most items can be freely exported, but a limited number of items are subject to export control in order to avoid shortages in the domestic market, to conserve national resources and to protect the environment. Any goods not listed in the schedule of the Exports (Control) Order, 1988 can be exported without licence, provided their export is not controlled by any other law. The Chief Controller of Imports and Exports, Ministry of Commerce, is responsible for implementing the export policy and related programmes.
2. Special export schemes
The Government offers a number of benefits and special schemes to exporters who are registered with registering authorities such as an export promotion council and/or commodity board or with the export promotion officers responsible for particular geographic zones. Registration is generally valid for four years from date of issue. Registration for units located in free trade zones and export processing zones will be valid for whatever period is indicated by the registering authority.
2.1 Export/ trading/ star trading/ super star trading houses
A programme covering export houses and trading houses was developed by the Government in order to buiod the marketing expertise and infrastructure required for export promotion. If a registered exporter wants to be designated as an export-house, trading-house or star trading-house, then he must register with the Federation of Indian Export Organizations (FIEO).
Export house/trading house/star trading house/super star trading house certificates will be valid for a period of three years starting from 1 April of the licensing year during which the application is made. Registration with FIEO requires that export-houses, trading-houses and star trading-houses report programmes and plans for exporting and provide quarterly and annual report on exports by commodity and country of destination. This information must also be provided to the Chief Controller of Imports and Exports, Statistical Division.
The criterion for recognition as an export house/trading house/star trading house or super star trading house depends either on the free on board (F.O.B.) value or the net foreign exchange earned on exports, as follows:
Category F.O.B F.O.B N.F.E N.F.E average F.O.B F.O.B value average net net foreign value of eligible foreign exchange of eligible exports exchange earned earned on exports made made in the on eligible eligible during the exports during exports in preceding previous the preceding the previous three licensing three licensing licensing licensing year years year years Export house 100 150 60 120 Trading house 500 750 300 600 StarTrading house 2500 3000 1250 1500 SuperStarTrading 7500 10000 4000 6000 house
*) All figures in millions of rupees
2.2 Export-oriented units
The Government amended in November 1983 a concession scheme to facilitate the setting up of export-oriented units (EOUs) in order to enable them to meet requirements of foreign demand in terms of pricing, quality, precision etc.
EOUs can be set up anywhere in the country and may be engaged in the manufacture and production of software, floriculture, horticulture, agriculture, aquaculture, animal husbandry, pisciculture, poultry and sericulture or other similar activities.
A 100 per cent export-oriented unit is an industrial unit offering for export its entire production, excluding the permitted levels of domestic tariff area sales. EOUs may be set up with a foreign equity participation of up to 100 per cent. For setting up a 100 per cent EOU the following conditions are applicable:
(i) the entire production and operation of 100 per cent EOUs must be in a customs
bonded factory, unless specifically exempt from physical bonding; Goods will
be imported into the customs bonded factory.
(ii) the unit shall undertake to manufacture in the bonded area and to export its
entire production for a period of 10 years ordinarily and 5 years in case of
products liable to rapid technological change;
Regarding the export obligations of 100 per cent EOUs, the following
- EOUs need not export their manufactured goods themselves but may
use an export house/trading house/star trading house or other EOUs
subject to certain conditions;
- EOUs may execute export orders also through third parties given that
the goods will be directly transferred from the customs bonded factory
to the port of shipment and all export benefits will be to EOUs only.
(iii) an approved EOU will execute a bond/legal undertaking with the Development
Commissioner concerned; Failure to fulfil the obligations stipulated in the
letter of approval or intent will render the unit liable to penalty.
(vi) EOUs have to adhere to the minimum value addition conditions incorporated in
the letter of permission/letter of intent/industrial license issued to them; In
general, such minimum value addition will be 35 per cent for automatic
approvals and 20 per cent for other cases.
(v) EOUs have to maintain a proper account of the imports, consumption and
utilization of all imported materials and exports made by the unit; These
accounts will be submitted periodically to the Development Commissioner.
Wherever an existing industrial unit is operating both as a domestic unit as well
as an approved 100 per cent EOU, it should have two distinct identities with
(vi) EOUs are permited to sell part of the production in the domestic tariff area
subject to the following limits:
Indigenous content permitted sales in the domestic tariff area Less than 30 per cent domestic sales of up to 15 per cent of the production in value terms are permitted More than 30 per cent domestic sales of up to 25 per cent of the production in value EOUs in the fields of terms are permitted agriculture, aquaculture, animal husbandry, domestic sales of up to 50 per floriculture, pisciculture, cent of the production are poultry and sericulture permitted EOUs in the fields of jewellry, diamonds, no domestic sales are permitted precious and semiprecious stones, gems silver bullion motor cars alcoholic liquors
(vii) 100 per cent EOUs may also be permitted to sell rejects/ scrap/waste material
up to 5 per cent of production in the domestic tariff area subject to the
payment of applicable duties;
(viii) the f.o.b. value of exports of an EOU can be clubbed with the f.o.b. value of
exports of its parent company in the domestic tariff area to attain export house,
trading house or star trading house status for the parent company;
(ix) supplies produced in the domestic tariff area under global tender conditions,
against payment in foreign exchange, against advance licenses and other import
licenses, and to other EOUs with the permission of the Development
Commissioner, will be counted towards the fulfillment of export obligations.
On completion of the bonding period, it shall be open to the unit to continue under the scheme or to opt out of the scheme. Debonding will, however, be subject to the industrial policy in force at the time the option is exercised.
Where debonding is sought before the stipulated export obligation period of 5 to 10 years, or where EOUs are unable to fulfill their export commitments out of various reasons, it is considered premature debonding. This is subject to payment of all leviable duties without the benefit of depreciation, and also subject to penalties and other conditions as decided by the Board of Approvals for 100 per cent EOUs. Customs duties on capital goods as well as customs dutes on unused raw materials, components, consumables and spares are leviable on debonding after the export period.
2.3 Free trade zones and export processing zones
Each free trade zone (FTZ) or export processing zone (EPZ) provides basic infrastructural facilities, such as developed land for the construction of factory buildings, standard design factory buildings, ready-built sheds, roads, power and water supply, drainage systems etc., and a whole range of fiscal incentives. Customs clearance facilities are offered within the zone premises at no extra charge. In addition, facilities for banking, post office, clearing agents etc. are arranged in the service centres provided in each zone.
Industrial undertakings should manufacture articles which include assembling or processing or recording of programmes on any disc, tape, perforated media or other information storage device. The undertaking should be new and not formed as a result of splitting up, re-constructing a business organization or transfering machinery or plant previously used for any other purpose to a new business.
The following seven free trade zones and export processing zones are currently in operation:
(i) Kandla Free Trade Zone (KAFTZ), Kandla, Gujarat;
(ii) Santa Cruz Electronic Export Processing Zone (SEEPZ), S. Cruz,
(iii) Cochin Export Processing Zone (CEPZ), Cochin, Kerala;
(iv) Falta Export Processing Zone (FEPZ), Falta,West Bengal;
(v) Madras Export Processing Zone (MEPZ), Madras, Tamil Nadu;
(vi) Noida Export Processing Zone (NEPZ), Noida, Uttar Pradesh;
(vii) Visakhapatnam Export Processing Zone (VEPZ), Visakhapatnam,
3. Export approval
Approval for export generally comes under the authority of the Chief Controller of Imports and Exports. The Chief Controller of Imports and Exports also has authority to register export contracts that involve turnkey projects, civil construction and capital goods.
4. Licensing, quotas and prohibitions
There are three categories of export licences, which allow for export under certain conditions. The current trade policy allows for the free exportation of all goods except for 51 items subject to export licences (e.g. hides and skins, minerals and vegetable oils), 46 items exportable without a licence but subject to other conditions, seven items banned for export (e.g. wild flora and fauna, tropical wood and wood products, and beef) and several items exportable only by specific agencies (Indian Oil, for petroleum and petroleum products; Minerals and Metals Trading Corporation, for iron ore, bauxite and manganese ore; National Dairy Development Board, for butter and milk powder; Indian Rare Earths, for thorium ore and rare earths; and Kudremukh Iron Ore, for iron ore concentrates and pellets).
All export contracts must be denominated in freely convertible currencies. A trader wishing to export an item on the negative list must have a registration and membership certificate from the relevant export promotion council.
B. Export charges
A limited number of items, mostly primary commodities or processed agricultural products, are subject to duties. Currently, the only products subject to an export tax (at the rate of 10%) are goat, sheep and bovine leathers.
Products may also be subject to a minimum export price. The list of products subject to minimum prices includes basmati and non-basmati rice, cotton, and hard and soft cotton waste. Most minimum export prices are specified in dollars on an fob basis.
C. Settlement of bills
The Government prescribes conditions for exchange control and settlement of bills related to exports under the authority of the Foreign Exchange Regulation Act, 1973. For normal commercial exports to all countries, except Nepal and Bhutan, exporters are required to complete the GR Form in duplicate. The GR Form covers exports not made by post.
With few exceptions, all exports must be declared on the appropriate form and the exporter's code number as assigned by the Reserve Bank of India must be shown on the form.
The payment arrangements are letter of credit, sight draft, time draft and shipment on consignment. The time limit for settlement of export proceeds, that is, the amount representing the full export value of the goods, is six months. A maximum of 15 months is allowed for exports to Indian-owned warehouses abroad.
The following documents are required for exports.
(i) export licence;
(ii) GR form;
(iii) export declaration;
(iv) customs entry form;
(v) customs invoice;
(vi) commercial invoice;
(vii) certificate of origin;
(viii) bill of lading/air waybill;
(ix) packing list.
Special documents may be required depending on the type of product or destination. Certain export products may require a quality control inspection certificate from the Export Inspection Agency. Some food and pharmaceutical product may require a health or sanitary certificate for export. To cover products under GSP (generalized system of preferences) a certificate of origin may be required. The Export Inspection Agency, the various export promotion councils, chambers of commerce or the regional offices of the Chief Controller of Imports and Exports are the responsible bodies for issuing the certificate of origin.
IV. INVESTING IN INDIA
A. Characteristics of policies and regulations on foreign investment
1. The investment policy of the state
The need to improve India´s trade balance and to balance its public debt has led the Indian Government to adapt a more opened approach towards foreign direct investment and to introduce wide-ranging liberalization measures.
India´s industrial policy, including its foreign investment regime, are based on the Industrial Policy which was issued after independence in 1948 and further elaborated in 1956 to provide the basic framework for India´s industrial growth.
On 24 July 1991 the Government announced the New Industrial Policy, which also transformed the foreign investment regime. In particular, it streamlined the previous procedures for obtaining industrial licenses and approval of proposals for foreign investment, for foreign technology agreements, for hiring of foreign technicians and for foreign testing of indigenous raw materials and products and indigenously developed technologies.
Previously, foreign investment was treated restrictively and was subject to a case-by-case authorization. With the 1991 refoms the government welcomed any foreign investment beneficial to the economy, particularly if strengthening Indian exports.
Several major liberalization measures followed. On 8 January 1993 the Government amended the Foreign Exchange Regulation Act (FERA) 1973, which enabled foreign enterprises to invest in India without FERA intervention. Hitherto, FERA 1973 had been considered the major regulatory instrument discouraging foreign investment. It has also various provisions relating to foreign companies on the appointment of technical and management advisers, the opening of branch offices, the acquisition of immovable property, the borrowing of money, the acceptance of deposits etc. Foreign investment in infrastructure namely power generation and distribution, exploration, production, and refining of petroleum, was allowed and investors were offered attractive incentives.
2. Legislations and regulations on foreign investment
(1) Industries Development and Regulation Act, 1951
(2) Foreign Exchange Regulation Act, 1973
(3) Indian Patents Act, 1970
(4) Designs Act, 1911 (Amendment in 1970)
(5) Trade and Merchandise Marks Act, 1958
(6) Copyright Act, 1957 (Amendment in 1992, 1994)
(7) Income Tax Act
(8) Atomic Energy Act, 1962
(9) Finance Act
(10) Environmental Laws
(i) Water (Prevention and Control of Pollution) Act, 1974
(ii) Air (Prevention and Control of Pollution) Act, 1981
(iii) Environment Protection Act, 1986
(iv) Factories Act
(v) Public Liability (Insurance) Act, 1991
(11) Labour Laws
(i) Industrial Disputes Act
(ii) Equal Remuneration Act, 1976
(iii) Child Labour (Prohibition and Regulation) Act, 1986
(iv) Payment of Wage Act,1936 and The Minimum Wage Act, 1948
(v) The Essential Service Maintenance Act, 1981
(vi) Sick Industrial Companies Act, 1985
B. Areas where foreign investment is encouraged
1. Priority activities
35 industries are considered high-priority industries, a list of which is attached as ANNEX 1. The new policies instituted in 1991-92 make foreign ownership of up to 51 per cent possible in these priority industries. Foreign investment in new projects in these industries will receive automatic approval by the Reserve Bank of India if foreign equity does not exceed 51 per cent.
The term "hotels" figuring in the list of high-priority industries includes, among others, restaurants, beach resorts and other tourist complexes providing accommodation and/or catering and food facilities to tourists. The term "tourism-related industry" includes, among others, the following:
(i) travel agencies, tour operating agencies and tourist transport operating agencies;
(ii) units providing facilities for cultural or wildlife experiences and adventure to
(iii) surface, air and water transport facilities for tourists;
(iv) leisure, entertainment, amusement, sports and health units for tourists;
(v) convention/seminar units and organizations.
Specific industries receiving special treatment by the Government include electronics industry, gems and jewellery, software technology and electronic hardware technology
2. Secondary/ open activities
The new industrial licensing policy of the Government of India has exempt all industries from the requirement of obtaining an industrial license except for industries reserved for the public sector, those for which industrial licensing is compulsory and those relating to the items reserved for exclusive manufacture in the small scale sector.
The exemption from industrial licensing is subject to the following:
(i) the central and the state environmental laws and regulations including local zoning
and land use laws and regulations are respected;
(ii) the proposed project is located at least twenty-five kilometres outside the periphery
of the standard urban area limits of a city which has a population of more than one
million; This does not apply for projects in:
- small-scale or the ancillary sector;
- electronics industry;
- computer and software industry;
- printing industry;
- and projects located within an area designated as an industrial area by the state Government before 25 July 1991.
3. Reserved activities
3.1 Industries reserved for reasons of public interest
The following industries are not open to foreign direct investment for reasons of public interest:
(i) arms and ammunition and allied items of defence equipment, defence aircraft and
(ii) atomic energy;
(iii) coal and lignite;
(iv) mineral oils;
(v) minerals specified in the Schedule to the Atomic Energy Order 1953
(Control of production and use);
(vi) railway transport.
3.2 Activities reserved for the small-scale sector
A total of 836 goods are normally reserved for production by the small-scale sector. Major items covered by this schedule include certain foods, textiles, paper, leather and rubber goods, sporting articles, electrical appliances, clocks and stationery.
3.3 Polluting industries and strategic industries
New investments or expansions in the following industries, considered to be polluting or strategic, require compulsory licensing:
(i) coal and lignite;
(ii) petroleum (other than crude) and its distillation products;
(iii) distillation and brewing of alcoholic drinks;
(v) animal fats and oils;
(vi) cigars and cigarettes of tobacco and manufactured tobacco substitutes;
(vii) asbestos and asbestos-based products;
(viii) plywood, decorative veneer and other wood-based products such as particle board,
medium density fiber board, and black board;
(ix) chamois leather;
(x) tanned or dressed furs;
(xi) paper and newsprint (except bagasse-based units);
(xii) electronic aerospace and defence equipment, all types;
(xiii) industrial explosives, including denotating fuses, safety fuses, gunpowder,
nitrocellulose and matches;
(xiv) hazardous chemicals;
(xv) drugs and pharmaceuticals;
(xvi) entertainment electronics, including video cassette recorders (VCRs), colour
televisions, compact disc (CD) players and tape recorders.
C. Incentive schemes
1. Guarantees and protection schemes
1.1 Guarantee against the risk of currency transfer, expropriation, war and civil disturbance
and breach of contract
The Government of India, by having signed the Convention of the Multilateral Investment Guarantee Agency (MIGA) on 13 April 1992 guarantees protection to foreign investment in India against the risk of currency transfer, expropriation, war and civil disturbance and breach of contract.
The guarantees may be purchased individually or in combination, but the decision as to which coverage is needed must be made before MIGA issues its guarantee. The maximum amount of coverage MIGA will issue for a single project is currently US$ 50 million.
1.2 Remittance and repatriation facilities
Income derived by foreign companies as dividend, interest, royalty or technical fee is freely repatriable, subject to the payment of taxes, which are lower than the rates applicable to domestic companies.
However, for industries in 22 consumer goods sectors, the payment of dividend is required to be balanced by export earnings over a period of seven years from the commencement of production or from the date of allotment of the shares for raising foreign equity without an expansion programme. The list of consumer goods industries, to which the condition of "dividend balancing" applies, is given in ANNEX 2. The payment of dividends in the case of such consumer goods industries is monitored through the Reserve Bank of India. For industries other than consumer goods industries dividend balancing is not required.
All payments in respect of dividend repatriation, lump sums and royalties will be at the market rates of exchange.
1.3 Trademarks and patent protection
Indian legislation covers trademarks and patents as well as copyrights and industrial designs. The basic laws include the Patents Act 1970, the Designs Act 1911 with amendments passed in 1970, the Trade and Merchandise Act 1958 and the Copyright Act 1957 which was amended in 1992 and 1994.
The Indian Patents Act 1970 accords equal treatment to nationals and foreign citizens in all respects. Patents are normally granted for a period of 14 years to ensure that the inventions are worked in India without undue delay. In the case of foods, drugs and medicines which are essential for national health programmes, the term is fixed at seven years from the date of filing of the complete specification or five years from the date of sealing of a patent, whichever is shorter.
The Indian law provides compulsory licensing on the grounds of public need and availability of products at reasonable prices. Compulsory licensing is granted three years after sealing. A compulsory license can be granted if the patent is not worked or not worked sufficiently or has not been abused after three years of its sealing. The patents could be revoked after two years after the compulsory license has been granted on the grounds that the reasonable requirements of the public have not been satisfied or that the patent product is not available at a reasonable price.
The Indian Act stipulates that some inventions will not be patented on grounds of legality, morality, public health, as well as in certain areas of agriculture, horticulture, health care and atomic energy. It also provides restrictions about the grant of product patents in the case of foods, medicines, drugs and chemicals.
Trademarks are granted for seven years and are renewable indefinitely for periods of seven years.
1.4 Disinvestment of equity by foreign investors
As part of the 1991 liberalization measures the Reserve Bank will approve disinvestment proposals from foreign investors subject to certain guidelines. Accordingly, the Reserve Bank indicated that it would permit, on a near automatic basis, the transfer of shares with regard to disinvestment proposals from foreign investors. Such sale would have to be done on the stock exchanges through a registered merchant banker or a stock broker. If disinvestment has been permitted by the Reserve Bank of India, the repatriation of the whole amount of capital (including capital appreciation) is allowed in installments, subject to taxes.
The Reserve Bank of India also gives permission to cases where the foreign investor wishes to transfer his shareholding on a private basis to another non-resident or to a resident, including one of the co-promoters. Such permission is also granted to overseas transferees.
Applications in this regard in Form ST-1 along with the necessary documents may be submitted to the Controller, Reserve Bank of India, Exchange Control Department, Foreign Investment Division(1), 11th Floor, Central Office Building, Bombay-400 023.
2. Tax and duty incentives
The government has been replacing the variety of fiscal incentives and concessions with cuts in tax rates. India´s existing incentives are designed to encourage new industrial undertakings, to channel investments to specific industries, promote the development of backward regions and encorage foreign exchange earnings. In general, the Income Tax Act does not make a distinction between a foreign investor and an Indian investor and the following tax incentives apply:
2.1 Incentives to encourage new investments
Profits and gains in respect of new industrial undertakings are allowed deductions at the rate of 30 per cent of the profit. This is available for a period of 10 years. For hotels, the exemption is at 50 per cent of the profit.
Interest payable on debts incurred in a foreign country by an industrial undertaking in India for the purchase of plant and machinery or raw materials is exempt from income tax to the extent that such interest does not exceed the amount of interest calculated at the rate approved by the Government.
Research and development expenses, including capital outlays other than for land are fully tax deductible in the year the expenses are incurred.
2.2 Industry-specific tax incentives
Projects in the power generation, petroleum, software and factory-servicing sectors are granted specific incentives:
(i) new projects in the generation or distribution of power are eligible for a five-year
tax holiday; In the second five years of operation, such projects are entitled to a 30
per cent tax exemption.
(ii) companies engaged in oil exploration are granted a concessional tax rate of 50 per
(iii) projects located in software technology parks or in the electronic hardware
technology parks are elegible for a tax holiday for five consecutive years during the
first eight years of operation.
2.3 Regional tax incentives
A 100 per cent tax holiday is available for the first five years for new industrial units if they are set up in the areas and states listed below. A 30 per cent tax exemption follows the holiday for five years. In addition to the tax incentives, other incentives such as concessional loans are available to investors.
(i) Andaman and Nicobar Islands
(ii) Arunachal Pradesh
(iv) Dadra and Nagar Haveli
(vi) Himachal Pradesh
(vii) Jammu and Kashmir
3. Export incentives
In order to encourage foreign exchange earnings, special incentives are provided for investments in export-oriented units (EOUs) as well as in free trade zones (FTZs) and export processing zones (EPZs).
3.1 Incentives for EOUs
Incentives offered to EOUs include the following tax and customs duty exemptions:
(i) all profits earned by 100 per cent EOUs, in- or outside the free trade zones of
export processing zones, are completely exempt from taxes for a block of five
years during the first eight years;
After the expiry of the tax holiday period, there will be no carrying forward of any
unabsorbed losses, depreciation, investment allowance, tax holiday deficiency or
any other tax allowance which would have been available to the assessee under the
Income Tax Act. Depreciation is allowed on the assets used in the industrial
undertaking on the basis of the written down value.
(ii) the import of capital goods, which are listed in ANNEX 3, required for export
production is free from customs duty, given that such items are not prohibited in
the Negative List of Import;
The supply of capital goods, raw materials, components, construction materials,
consumables and spares to EOUs from the domestic tariff area is treated as
"deemed exports" and eligible for refund of terminal excise duty, central sales tax
and duty drawback. It will also be discharged of export obligations of the supplier,
provided the goods supplied have been manufactured in India and the supplies are
against a letter of authority issued by the Development Commissioner.
(iii) leasing of capital goods from domestic leasing companies is also permitted; In such
cases, the leasing company will be eligible to import the capital goods without
payment of customs duty.
In addition to above tax and customs duty incentives, the following preferential treatment applies to EOUs:
(i) 100 per cent EOUs can apply for priority treatment in matters relating to the
setting up and implementation of their projects in form of "Green Cards";
Applications are made to the Development Commissioner of the FTZ/EPZ
concerned with whom the 100 per cent EOU is registered.
(ii) all second-hand capital goods having a minimum residual life of five years, may be
imported by actual users, without an import licence, subject to the actual user
(iii) 100 per cent EOUs may be permitted to subcontract part of their production for
job work to units in the domestic tariff area on a case-on-case basis. Requests will
be considered by the concerned Collector of Customs.
(iv) permission is granted to transfer goods manufactured by a 100 per cent EOU to
other 100 per cent EOUs or a unit in the FTZs/EPZs by the Development
Commissioner; Goods imported by an EOU unit in the FTZ/EPZ may also be
transferred to another EOU with the permission of the Development
(v) 100 per cent EOUs may be permitted to subcontract part of their production for
job work to units in the domestic tariff area on a case-on-case basis. Requests will
be considered by the concerned Collector of Customs.
(vi) 100 per cent EOUs are allowed to retain up to 50 per cent of the foreign exchange
receipts in EEPC accounts;
(vii) export finance is available from banks at special concessional interest rates.
3.2 Special incentives for EOUs producing gold, silver and platinum jewellery
Gem and jewellery exporting units can be set up as 100 per cent EOUs in the domestic tariff area or in the specialised export processing zones listed below. Such units are governed by the general provisions of the 100 per cent EOU scheme. However, gem and jewellery exporting units are not allowed to sell anything, including rejects, in the domestic tariff area.
The manufacture of jewellery for export is allowed in the following EPZs:
(i) SEEPZ Bombay (Maharashtra);
(ii) CEPZ Cochin (Kerala);
(iii) FEPZ Falta (West Bengal);
(iv) MEPZ Madras (Tamil Nadu);
(v) NEPZ Noida (Uttar Pradesh);
(vi) VEPZ Vishakhapatnam (Andhra Pradesh).
The specialized units may import raw materials, intermediates and components including gold, gold alloys, carat gold, colored gold, precious metals including silver, platinum and palladium as well as foundings, mountings, sockets, frames made of gold and other precious metals, diamonds, coloured gems and stones, semiprecious stones, synthetic stones, pearls etc.
As to the minimum value addition requirements, the EOUs have to fulfill the following limits:
Product categories Minimum Value Added requirement Cut and polished diamonds, precious and 5 per cent semiprecious stones, pearls etc. 10 per cent Handcraft/ machine-made plain jewellery 15 per cent Studded jewellery 25 per cent Plain or studded silver jewellery
3.3 Special incentives for software development parks
Software technology parks (STPs) are 100 per cent export-oriented projects, catering to the needs of software development for export. The Government has already set up seven software technology parks at Pune, Bangalore, Bhubaneshwar, Hyderabad, Thiruvananthapuram, Gandhinagar and NOIDA. These parks have been set up with the objectives to establish infrastructural resources such as communications facilities, core computer, buildings, amenities etc., to carry out the development and export of software and to provide services to the users for the development and export of software through satellite channels and communications channels.
The export obligation on the units in net foreign exchange terms (US dollars) is calculated acording to the following formula, with the obligation on the hardware part lasting for four years and the obligation on the wage bill on an annual basis :
Export obligation = 1.5 x c.i.f. value of the hardware imported*) + 1.5 x wage bill
*) for which foreign exchange has been released by the Reserve Bank of India
The following incentives are available to software development parks:
(i) no import license is required for the import of equipment to the technology park;
The Department of Electronics issues an import certificate which enables the
exporter to import the equipment in the Technology Park area.
(ii) all imports into the technology park are completely free of duty as these are 100
per cent EOUs; The technology park will be under the technical supervision of the
Department of Electronics.
3.4 Special incentives for hardware development parks
To build up a strong electronics industry in the country with good export potential and to develop an efficient electronic component industry, the Government has announced the electronic hardware technology park (EHTP) scheme.
An EHTP may be set up as a customs bonded area by the central Government, state Governments, public or private sector undertakings or any combination thereof. Foreign equity of up to 100 per cent is permissible. The entire production of an EHTP unit will be exported to the hard currency area except for the permitted sales in the domestic tariff area which will be according to the following limits:
Indigenous content permitted sales in the domestic tariff area Less than 15 per cent Nil 15 - 25 per cent (i) up to 25 per cent of the production in value terms of finished equipment manufactured by the EHTP unit. (ii) up to 30 per cent of the production in value terms of components and electronic materials manufactured by the EHTP unit. more than 25 per cent (i) up to 30 per cent of the production in value terms of finished equipment manufactured by the EHTP unit (ii) up to 40 per cent of the production in value terms of components and electronic materials manufactured by the EHTP unit
In respect of electronic units established as 100 per cent EOUs or in the FTZ/EPZs, the relevant provisions for 100 per cent EOUs and units in the FTZ/EPZs will apply. Accordingly, an EHTP unit may import, free of duty, all types of goods required by it for its production processes. However, items should not be in the Negative List of Imports. The import of second-hand capital goods will be allowed in line with the policy applicable for such imports. Other incentives inlcude exemption from corporate income tax for a period of five years and the refund of taxes and duties on supplies from the domestic tariff area
Value addition will be calculated for a period of five years. An EHTP unit may be set up for both software and hardware in an integrated manner subject to the conditions that the minimum value addition for software will be 60 per cent and sale of software in the domestic tariff area will be restricted to 25 per cent of the production of software in value terms. The formula for the calculation of value addition is as follows:
A - B
VA = ----- x 100 *) VA value addition
A A the f.o.b. value of exports realized by the EHTP unit;
B the sum total of the c.i.f. value of all imported inputs, the c.i.f.
value of all imported capital goods and the value of all payments
made in foreign exchange by way of commission, royalties, fees or
any other charge. "Inputs" refers to raw materials, intermediates,
components, consumables, parts and packing materials.
3.5 Incentives for free trade zones (FTZs) and export processing zones (EPZs)
Incentives for units established in FTZs and EPZs including the following:
(i) plots at a concessional rent of 25 per cent for the first year, 50 per cent for the
second year and 75 per cent for the third year if production has commenced in the
first or second year. If production has not commenced by the end of the second
year, the concession will not be available for the third year.
(ii) standard design factory buildings are provided at a concessional rent of 50 per cent
for the first year and 60 per cent for the second year if production has commenced
in the first year. The concessional rent will be 75 per cent for the third year, if
production has commenced in the first year. No concession will be available in the
third year if production has not commenced by the end of the first year.
(iii) special dispensation or reduction in municipal -, sales -, property taxes etc.
(iv) reimbursement by the zone administration of the central sales tax paid on purchases
from outside the state;
(v) preferential power allocation and supply.
In order to encourage technological upgradation and modernization, the Government has created a technical development fund (TDF) which provides funds to industry for the improvement of the quality of the products, reduction in the cost of production and achievement of greater efficiency and competitiveness. The technical development fund provides the foreign exchange required for the import of:
(i) small value balancing equipment;
(ii) technical know-how;
(iii) foreign consultancy services;
(iv) designs and drawings;
(v) any other inputs needed by an industrial unit to meet its export capability.
The maximum amount that could be provided from the fund for the import of technology and capital goods is the foreign exchange equivalent of fifty million rupees a unit per financial year. This limit is relaxed, to some extent, in deserving cases, to enable a total technology package to be implemented without fragmentation.
D. Limitations to foreign investment
1. Restriction on foreign ownership
Under the New Industrial Policy foreign ownership up to a maximum of 51 per cent of equity is permitted. However, in sectors reserved for small-scale enterprises foreign holdings are limited to a maximum of 24 per cent.
In general, foreign equity proposals require prior clearance by the Secretariat for Industrial Approvals, Ministry of Industry. A foreign investment promotion board has been constituted to negotiate with large international firms and approve foreign direct investment in selected areas. The investment programme of such firms will be considered in totality, free from predetermined parameters or procedures.
Only the following proposals receive automatic approval:
(i) high priority industries; Automatic approval is given for new foreign investments of
up to 51 per cent of the equity in high priority industries or to existing companies
which already have some foreign holding, albeit less than 51 per cent and which
wish to increase their foreign holding to 51 per cent. However, the following
conditions must apply:
- the additional equity is contributed by the foreign investor in foreign
- the company uses the additional capital to finance an expansion in one of
the high priority industries; It is not necessary that the company should be
exclusively engaged in high priority industries but only the proposed
expansion must relate to priority industries.
- imported capital goods are all new.
(ii) export houses; To provide access to international markets, majority foreign equity
holding of up to 51 per cent equity is allowed by the Reserve Bank of India for
trading companies primarily engaged in export activities;
(iii) 100 per cent EOUs and in units located in EPZs; In the case of 100 per cent
export- oriented units and units located in the export processing zones, foreign
participation may go up to 100 per cent of equity. Such units are eligible for
automatic approval subject to the fulfillment of the following conditions:
- the items of manufacture are not those reserved for the public sector or
those for which industrial licensing is compulsory;
- locational conditions are fulfilled;
- the project achieves exports and minimum value addition to the standard
- the cost, insurance and freight (C.I.F.) value of imported capital goods is
financed through foreign equity and the capital goods are new;
- exports are made to the general currency area.
(iv) activities involving the transfer of foreign technology; Automatic approval is
granted for foreign technology agreements whether in high priority industries or
other industries, subject to the following conditions:
- the lump sum payment does not exceed ten million rupees (net of taxes);
- royalties do not exceed five per cent (net of taxes) for domestic sales and
eight per cent (net of taxes) for exports;
- the total payment of lump sums and royalties does not exceed eight per cent
of the sales turnover in a period of ten years from the date of agreement or
seven years from the date of commencement of commercial production.
In the case of technology agreements in the hotel industry, automatic approval is
granted, subject to the following conditions:
- the lump sums for technical and consultancy services does not to exceed
- franchising and marketing/publicity support does not exceed three per cent
of the gross room sales;
- management fees of up to ten per cent of the foreign exchange earnings,
provided the foreign party puts in 25 per cent of equity. This also covers
payments for marketing and publicity support.
2. Regulations on land ownership
Foreign investors may acquire land and own buildings under the permission of the Reserve Bank of India. In this case, foreign investors have to bring foreign exchange into the country for such purposes. However, rental income or the proceeds from its sale can not be remitted to the investor's home country or a third country at any time.
Special conditions apply to foreign citizens of Indian origin, whether resident in India or not. They are permitted to acquire by way of purchase or inheritance and to transfer or dispose of by sale, commercial immovable properties situated in India. Declaration in form IPI-7 for the acquisition of such commercial properties is required to be filed with the Reserve Bank within 90 days. This facility is also available to non-residents holding Indian passports.
Repatriation of the original investment in equivalent foreign exchange is allowed by the Reserve Bank on receipt of an application in Form IPI-8 subject, inter alia to the following conditions:
(i) the property was purchased on or after 26 May 1993;
(ii) the property is not transferred or disposed by way of sale for a period of three
years from the date of purchase;
(iii) only the amount of sale proceeds equivalent to the original investment in foreign
exchange will be allowed to be repatriated outside India.
Similar conditions apply to residential properties (of up to two houses) by foreign citizens of Indian origin, whether resident in India or not. In addition, they are also permitted to acquire, transfer or dispose of residential properties in India by way of gift from or to a relative who may be an Indian citizen or a person of Indian origin whether resident in India or not, subject to the condition that gift tax, if any, shall be paid.
The facilities mentioned above do not cover the acquisition of agricultural land farm houses or plantation property in India.
3. Regulations on employment of alien personnel
No permission is necessary to hire foreign technicians and no application needs to be made to the Government for that purpose, whether or not the hiring of foreign technicians is under an approved collaboration agreement. Full powers have been delegated by the Government to the Reserve Bank of India to authorize payments either against blanket permits issued by the Reserve Bank of India or in free foreign exchange.
For the release of foreign exchange otherwise than under blanket permits, for example, where the engagement of the technician is not under any foreign collaboration agreement entered into by the Indian company or under any warranty/ guarantee obtained by it providing for the deputation of such personnel by the foreign company without any payment, the existing guidelines followed by the Reserve Bank of India will continue, namely:
(i) the duration of the engagement of foreign technicians by a company does not
exceed twelve man-months in a year;
(ii) either the duration of the engagement of a single foreign technician does not
exceed three months at one time or, if it exceeds three months at one time, the
prior clearance of the Ministry of Home Affairs is obtained;
(iii) the payment to the foreign technician does not exceed US$1,000 per day,
regardless of whether the local costs on boarding and lodging and other items are
met by the Indian company or not;
(iv) in the case of a company-to-company payment,the payment by the Indian company
to the foreign company does not exceed US$200,000 in a year.
The foregoing restrictions on per diem rate, duration of engagement etc. are not applicable to remittances effected out of funds held in exchange earner's foreign currency (EEFC) accounts of Indian companies, provided prior clearance of the Ministry of Home Affairs has been obtained if the period of engagement of a single foreign technician exceeds three months at one time. Proposals not fulfilling the above conditions need the approval of the Reserve Bank of India.
4. Regulations on the import of capital goods
Open general license capital goods, raw material, intermediates, components, consumables, spares, parts, accessories, instruments and other goods may be imported without any restriction except to the extent such imports are regulated by the Negative List of Imports or any other provision of the Export and Import Policy (1 April 1992 - 31 March 1997) or any other law for the time being in force.
Actual user condition capital goods, raw material, intermediates, components, consumables, spares, parts, accessories, instruments and other goods, which are importable without any restriction, may be imported by any person whether he is an actual user or not. However, if such imports require a license, the actual user alone may import such goods unless the licensing authority specifically dispenses with the actual user condition.
Second-hand capital goods and any other second-hand goods may not be imported unless permitted by the Export and Import Policy (1 April 1992 - 31 March 1997) or in accordance with a license issued on that behalf. If the C.I.F. value of second-hand capital goods being imported, is 10 million rupees and above, the importer shall also furnish to the Customs authority a certificate from an internationally reputed inspection and certification agency to the effect that the purchase price is reasonable.
5. Export performance requirements
The minimum f.o.b. value of exports for the 100 per cent EOU and units in the free trade zone or export processing zone during the five year period should be as follows:
(i) $US 1 million for software units;
(ii) $US 6 million for granite items;
(iii) $US 16.5 million for gems and jewellery items;
(iv) $US 3.5 million for all other items.
E. Administrative procedures
An overview of authorities, including their addresses, telephone and fax numbers, to which applications for approval of investment or transfer of technology or for an industrial license is to be submitted is attached in ANNEX 4.
1. Foreign Investment Promotion Board
The Foreign Investment Promotion Board (FIPB) is a specially empowered Board in the Office of the Prime Minister, set up for speeding up the process for proposals relating to foreign investment in India up to a maximum of Rs 3 billion, which do not involve major policy issues. It is headed by the Principal Secretary to the Prime Minister and includes the following members:
(i) Finance Secretary;
(ii) Commerce Secretary;
(iii) Secretary for Industrial Development;
(iv) other ministries as appropriate.
No special application form is needed for applying to the FIPB which examines all proposals in totality free from predetermined procedures. FIPB clearance for foreign investment proposals is based on the investment proposed, the technology to be inducted, the export potential, the foreign exchange balance sheet and the employment potential.
Clearance of proposals take on average around 6 weeks .
2. Procedures for investment approval
2.1 Entry approvals
(i) application for investments in high-priority industries and foreign technology
For foreign investments qualifying for automatic approval i.e investment in high
priority industries and foreign technology agreements falling within the guidelines,
application should be made using Form FC to the:
Controller, Foreign Investment and Technology Transfer Section
Reserve Bank of India
Exchange Control Department
Approval is granted within 14 days. Once a venture has obtained approval, it may
issue shares in accordance with the guidelines of the Securities and Exchange
Board of India.
(ii) applications for 100 per cent EOUs;
To register as an 100 per cent EOU, an application should be made in the
prescribed form in 10 copies with a crossed demand draft for 1000 rupees (2500
rupees in the case of items reserved for the public sector or those for which
industrial licensing is compulsory) drawn in favour of the Pay and Accounts
Officer, Secretariat for Industrial Approvals payable at the State Bank of India,
Nirman Bhavan Branch, New Delhi.
Applications will have to be submitted to the:
Secretariat for Industrial Approvals
Department of Industrial Development
Ministry of Industry
Automatic approvals for will be granted for applications fulfilling the conditions
prescribed earlier within a period of 15 days. Applications not fulfilling the criteria
for automatic approvals will be referred to the Board of Approvals for
consideration and shall be decided upon within a period of 45 days.
Applications should be accompanied by lists of items including capital goods,
consumables, components and spares for capital goods, raw materials, components,
intermediates and packing materials. The lists should cover the requirements for a
period of five years; the quantity and value in respect of each item should be
mentioned. The f.o.b. and c.i.f. value of each item will be separately listed in
foreign exchange and the rupee equivalent along with the name of the country of
The list of capital goods will be attested by the Secretariat for Industrial Approvals,
if it has already been approved by the Board and in other cases the list may be
subsequently submitted to the Development Commissioner concerned, for
attestation. The Secretariat for Industrial Approvals will then issue the letters of
intent and the letters of approval which specify the items of manufacture, annual
capacities, percentage of value addition to be achieved, limitations regarding sale of
finished goods and rejects in the domestic tariff area, and such other matters as may
To establish an EOU in an existing software technology park, application has to be
submitted to the Director of the software technology park concerned, except in the
case of NOIDA, where applications have to be made to the Development
For approval to establish a new software technology park outside existing
premises, the application is to be submitted to the Department of Electronics along
with the details of the software project. The same authority is in charge of
applications for the establishment of electronic hardware development parks.
(iii) applications for Free Trade Zones and Export Processing Zones;
Automatic approvals will be granted by the respective Development
Commissioners for units to be set up in the FTZs/EPZs. Applications fulfilling the
prescribed conditions will be approved within a period of 15 days. Other
applications will be referred to the Board of Approvals which will consider and
decide within a period of 45 days. All applications will have to made to the
concerned Development Commissioner who issues letters of intent and letters of
(iv) applications for all other investments.
All other investments require advance authorization from the Foreign Investment
2.2 Commencing business
Once a project receives approval from the Reserve Bank or the FIPB. various clearances are required for setting up an industrial unit:
(i) acquisition of land;
Allotment of land in an industrial estate is granted by the State Industrial
(ii) environmental clearance;
For polluting industries, environmental clearance is needed. The concerned
agencies at the central level are the Ministry of Environment and the Central
Pollution Control Board. For large projects, the government usually asks for
an environmental impact assessment study.
(iii) buildings clearance;
Factory buildings design need to be cleared by the local municipal authorities and
by the Inspectorate of Factories.
(iv) other clearances.
ANNEX 1: LIST OF PRIORITY INDUSTRIES
for automatic approval of foreign technology agreements and
for 51 per cent foreign equity approvals
1. Metallurgical industries HS Coding Nos*)
(i) Ferro alloys 72.02
(ii) Castings and forgings 73.25 to 73.26
(iii) Non-ferrous metals and their alloys including aluminum foils 74.01 to 81.13
copper, nickel, aluminum, lead, zinc, tin and articles thereof;
(iv) Sponge iron and pelletisation 72.03
(v) Iron and steel pipes and tubes and fittings thereof 73.04 to 73.07
(vi) Pig iron and spiegeleisen 72.01 to 72.29
2. Boilers and steam generating plants 84.02 to 84.05
3. Prime movers (other than electrical generators)
(i) Industrial turbines 84.10
(ii) Internal combustion engines 84.07 to 85.11
(iii) Alternate energy systems like solar, wind, and equipment therefore 84.12 to 85.41
(iv) Gas/hydro/steam turbines 84.06 84.11
4. Electrical equipment
(i) Equipment for transmission and distribution of electricity 85.30 to 85.47
including power and distribution transformers, power relays,
HT-switch gear, synchronous condensers;
(ii) Electrical motors 85.01 85.03
(iii) Electrical furnaces, industrial furnaces and induction heating equipment 84.16
(iv) X-ray equipment 90.22
(v) Electronic equipment, components 84.69 to 90.08
including subscribers' and telecommunications equipment;
(vi) Component wires for manufacture of lead-in-wires 85.44
(vii) Hydro/steam/gas generators/generating sets 85.02
(viii) Generating sets and pumping sets 84.13 to 85.03
(ix) Jelly filled telecommunication cables 85.44
(x) Optic fibre 85.44
(xi) Energy efficient lamps 85.39
(xii) Midget carbon electrodes.
This list is based on the Indian Trade Classification, which follows the Harmonized Commodity Description and Coding System, Government of India, Ministry of Commerce, Directorate General of Commercial Intelligence and Statistics, Calcutta. The code specified for the item description relates to this classification.
(i) Mechanized sailing vessels up to 10,000 DWT including fishing trawlers 89.01 to 89.04
(ii) Ship ancillaries 84.85
(iii) Commercial vehicles, public transport vehicles 87.02 to 87.09
including three wheelers, jeep type vehicles, industrial locomotives;
(iv) Personal transport vehicles 87.11
including automotive two-wheelers and three-wheelers;
(v) Automatic components/spares and ancillaries 85.12 to 87.14
(vi) Railway equipment 86.05 to 86.09
6. Industrial machinery and equipment 84.17 to 85.05
7. Machine tools
(i) Machine tools, industrial robots, controls and accessories 84.56 to 85.15
(ii) Jigs, fixtures, tools and dies of specialized types and 84.66 84.67
cross land tooling.
(iii) Engineering production aids 82.01 to 84.80
such as cutting and forming tools, patters and dies and mining tool;
8. Agricultural machinery
(i) Tractors 87.01
(ii) Self-propelled harvester combines 84.33
(iii) Rice transplanters 84.33
9. Earth-moving- and construction machinery, and components 84.29 84.30
10. Industrial instruments 90.24 to 90.33
11. Scientific and electromedical instruments and laboratory equipment 85.43 to 90.21
12. Nitrogenous and phosphatic fertilizers 31.02 32.03
13. Chemicals (other than fertilizers)
(i) Organic chemicals 29.01 to 29.42
(ii) Inorganic chemicals 28.01 to 28.51
(iii) Synthetic resins and plastics 39.01 to 39.14
(iv) Man-made fibers 54.02 to 55.07
(v) Synthetic rubber 40.01
(vi) Industrial explosives 36.02 36.03
(vii) Technical grade insecticides, fungicides, weedicides, and the like 38.08
(viii) Synthetics detergents 34.02
(ix) Miscellaneous chemicals (for industrial use only) 38.11 to 38.17
14. Drugs and pharmaceuticals (according to the drug policy) 29.36 to 30.06
15. Pulp and paper
(i) Paper and pulp including paper products 47.01 to 48.19
(ii) Industrial laminates 59.02 59.03
16. Tires and tubes
(i) Automobile tires and tubes. 40.11 40.13
(ii) Rubberized heavy duty industrial beltings of all types 40.10
(iii) Rubberized conveyor beltings 40.10
(iv) Rubber reinforced and lined fire fighting hose pipes 40.09
(v) High pressure braided hoses 40.09
(vi) Engineering and industrial plastic products. 39.17 to 39.26
17. Plate glass
(i) Glass shells for television tubes 70.11
(ii) Float glass and plate glass 70.05
(iii) H.T.insulators 85.46
(iv) Glass fibers of all types 70.19
18. Ceramics 69.02 69.03
19. Cement products
(i) Portland cement 25.23
(ii) Gypsum boards, wall boards and the like 68.08
20. High technology reproduction and multiplication equipment 84.69 to 90.09
21. Carbon and carbon products.
(i) Graphite electrodes and anodes 85.45
(ii) Impervious graphite blocks and sheets 85.45
22. Pretensioned high pressure RCC pipes 68.10
23. Rubber machinery 84.77
24. Printing Machinery
(i) High speed off-set rotary printing machines 84.43
having output of 30,000 or more impressions per hour;
(ii) Photo composing/type setting machines 84.42
(iii) Multi-colour sheet-fed off-set printing machines 84.43
(iv) High speed rotograture printing machines 84.43
having output of 30,000 or more impressions per hour
25. Welding electrodes other than for welding mild steel 83.11
26. Industrial synthetic diamonds 71.04
27. Bio-insecticides and other
(i) Photosynthesis improvers not codified
(ii) Genetically modified free living symbiotics nitrogen fixer
28. Extraction and upgrading of minor oils 15.12 15.15
29. Pre-fabricated building material 68.10
30. Soya products
(i) Soya texture proteins 21.06
(ii) Soya protein isolates 21.06
(iii)Soya protein concentrates. 21.06
(iv) Other specialized products of soybean 21.03
(v) Winterized and deodorized refined soybean oil 15.07
31. Certified high yielding seeds and plants
(i) Certified high yielding hybrid seeds and synthetic seeds 12.09
(ii) Certified high yielding plantlets developed through plant tissue culture 06.02
32. Food processing industries 16.01 to 21.04
other than milk food, malted foods & flour
excluding the items reserved for the small-scale sector
33. Packaging items for food processing industries 39.23 48.23
excluding all items for packaging food processing industries
excluding the items reserved for the small scale sector;
35. Tourism-related industry.
ANNEX 2: LIST OF CONSUMER GOODS INDUSTRIES
TO WHICH DIVIDEND BALANCING APPLIES
1. Manufacture of food and food products;
2. Manufacture of dairy products;
3. Grain mill products;
4. Manufacture of bakery products;
5. Manufacture and refining of sugar;
6. Production of common salt;
7. Manufacture of hydrogenated oil;
8. Tea processing;
10. Manufacture of beverages, tobacco and tobacco-products;
11. Distilling, rectifying, and blending of spirits, wine, malt liquors and malt, production of
country liquors and toddy;
12. Soft drinks and carbonated water industry;
13. Manufacture of cigars, cigarettes, cheroot and cigarette tobacco;
14. Manufacture of wood and wood products, furniture and fixtures;
15. Manufacture of leather, leather and fur products;
16. Tanning, curing, finishing, embossing & japanning of leather;
17. Manufacture of footwear, except vulcanized or moulded rubber or plastic footwear;
18. Manufacture of footwear made primarily of vulcanized or moulded products;
19. Prophylactics and rubber contraceptives;
20. Motor cars;
21. Entertainment electronics (VCRs, TVs, CD players, tape recorders);
22. White goods (domestic refrigerators, dishwashers, washing machines, microwave ovens
ANNEX 3: LIST OF GOODS
free from customs duty,
if required for export production
The following goods are free from customs duty, if imported for use in 100 per cent EOUS:
(i) raw materials;
(ii) components, consumables, intermediates, spares, and packing materials;
(iii) prototypes and technical samples not exceeding two of each type for product
diversification, development or evaluation;
(iv) office equipment and spares and consumables for office equipment:
(v) material handling equipment such as fork lifts, and overhead cranes;
(vi) drawings, blue prints, charts, microfilms and technical data;
(vii) tools, jigs, fixtures, gauges, moulds, dies, instruments and accessories etc.
The items should be required for export production and should not be prohibited items in the Negative List of Imports.
ANNEX 4: OVERVIEW
Authorities to which application have to be filed
Authority Document to be filed The Controller (i) Application for foreign Exchange Control Department invesment Reserve Bank of India in high-priority industries; Bombay 400023 Tel: (9122) 286 1602 (ii) Application for transfer of Fax: (9122) 266 5330 foreign technology eligible for automatic approval; (iii) Application to open a branch office by a foreign company. The Secretary (i) Application for foreign Secretariat for Industrial Approval investment in industries Department of Industrial Development other than high-priority Ministry of Industry industries and for Udyong Bhavan transfer of foreign technology New Delhi 110011 not eligible Tel: (9111) 301 1983 for automatic approval; Fax: (9111) 301 1770 (ii) Application for 100 per cent EOUs outside export processing zones; (iii) Application for licensing of a new unit which requires a licence; Foreign Investment Promotion Board It will negotiate with large Prime Minister´s Office international firms and South Block approve direct foreign investment in New Delhi 110011 selected areas. Tel: (9111) 301 7839 Fax: (9111) 301 6857 Development Commissioner Application for establishing a unit Export Processing Zones in an export processing zone. (i) Santacruz Electronic Export Processing Zone Andheri East, Bombay 400096 Tel: (9122) 836 7143 Fax: (9122) 832 1169 (ii) Kandla Free Trade Zone Gandhidham (Kutch), Pin 370230 Tel: (9128) 365 2250 Fax: (9128) 362 3356 (iii) Madras Export Processing Zone Admin. Office Building, National Highway 45 Tambaram, Madras 600045 Tel: (9144) 465 220 Fax: (9144) 465 218 (iv) Cochin Export Processing Zone CEPZ Admin. Building Kakkanad, Cochin 682030 Tel: (9148) 480 2571 Fax: (9148) 480 2545 (v) Noida Export Processing Zone Noida Dadri Road, Phase II, Noida Ghaziabad, Uttar Pradesh 201305 Tel: (9111) 896 2452 Fax: (9111) 896 2314 (vi) Falta Export Processing Zone 2nd MSO Building, Room 414 Falta (vii) Calcutta Export Processing Zone Nizam Palace 234/4, A.J.C Bose Road Calcutta 700020 Tel: (9133) 247 7923 Fax: (9123) 2263 (viii) Vishakhapatnam Export Processing Zone Udyog Bhavan, Comp- Sripuram Junction Vishakhapatnam 530003 Tel: (9189) 151 259
V. INFORMATION SOURCES FOR TRADE AND INVESTMENT
(Area codes, New Delhi: 91 11, Bombay: 91 22)
A. Government agencies
1. Secretariat for Industrial Approvals
Department of Industrial Development
Ministry of Industry,Udyog Bhawan
New Delhi 110011
Tel: 301 1983 ( Joint Secretary)
301 6538 ( Director; Foreign Investment)
301 2794 ( Deputy Secretary; Export Promotion)
301 3596 ( Deputy Economic Adviser; Industrial Approvals)
301 0261 ( Chief Controller, Imports and Exports)
Fax: 301 1770
Department of Economic Affairs
Ministry of Finance, North Block
New Delhi 110011
Tel: 301 4140
3. Central Board of Customs and Excise
Department of Revenue
Ministry of Finance, Customs House
New Delhi 110002
Tel: 331 9451 (Public Relations Officer)
301 1079 (Commissioner; Drawback)
301 3908 (Director; Customs)
4. Department of Commerce
Ministry of Commerce
Udyog Bhavan, New Delhi 110011
Tel: 301 0261 (Director)
Tel: 301 7777 (Chief Controller of Imports and Exports)
5. Foreign Investment Promotion Board
Prime Minister´s Office
South Block, New Delhi 110011
Tel: 301 7839
Fax: 301 6857
Inspection and Investigation
Department of Company Affairs
Ministry of Law, Justice and Company Affairs
Shastri Bhawan, New Delhi
Tel: 389 172
7. Executive Director
Indian Investment Centre
Jeevan Vihar Building 4th Floor,Sansad Marg
New Delhi 110001
Tel: 373 3673, 373 3679
Fax: 373 2245
8. Joint Director
Director General of Foreign Trade
Udyog Bhawan, New Delhi 110011
Tel: 301 4801
B. Chambers of commerce and industry and other business organizations
1. Secretary General
Federation of Indian Chambers of Commerce & Industry
Federation House,Tansen Marg
New Delhi 110001
Tel: 331 9251
Fax: 332 0714
2. Secretary General
Associated Chambers of Commerce & Industry of India
Allahabad Bank Building,17 Parliament Street,
New Delhi 110001
Tel: 310 704
Fax: 312 193
3. Director General
Confederation of Indian Industry
23-26 Institutional Area, Lodhi Road
New Delhi 110003
Tel: 462 9994
Fax: 463 3168
4. Secretary General
PHD Chamber of Commerce & Industry
PHD House,Opposite Asian Games Village,
New Delhi 110016
Tel: 685 3024
5. Indian Trade Promotion Organization
Pragati Maidan, New Delhi 110001
Tel: 331 8143
Fax: 331 8142
6. Federation of Indian Export Organizations
PHD House, Opposite Asian Games Village
New Delhi 11016
Tel: 666 582-3
Fax: 686 3087
7. Bureau of Indian Standards
9, Bahadur Shah Zafar Marg
New Delhi 110002
Tel: 331 0131
Fax: 331 4062
C. Financial Institutions
1. Reserve Bank of India
Central Office Building,
11th Floor, Shahid Bhagat Singh Road,
P.O. Box 1055
Tel: 286 1602 (Controller; Foreign Investment and Technology Transfer)
Fax: 266 5330
Industrial Development Bank of India
Nariman Bhawan, 227 Vinay K. Shah Marg,
Nariman Point, P.B. 10020
Tel: 219 1111
Industrial Finance Corporation of India
Bank of Baroda Building,16 Sansad Marg
New Delhi 110001
Tel: 332 7827
Industrial Credit & Investment Corp. of India Ltd
163 Backbay Reclamation
Tel: 202 5115
5. Managing Director
Export-Import Bank of India
Centre One, Floor 21
World Trade Centre, Cuffe Parade
Tel: 218 5272
Fax: 218 807