Corporate Law Alert February 1, J. Sagar Associates advocates and solicitors. External Commercial Borrowing

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1 External Commercial Borrowing The Reserve Bank of India (RBI) had vide A.P. (DIR Series) Circular No. 27 dated September 23, 2011 enhanced the External Commercial Borrowing (ECB) limits for eligible borrowers to USD 750 million or equivalent per financial year per borrower for permissible end uses. The RBI has now vide A.P. (DIR Series) Circular No. 64 dated January 5, 2012 stated that the maturity period under the automatic route will be as follows: (a) ECB upto USD 20 million or equivalent in a financial year with minimum average maturity of three years; and ECB above USD 20 million and upto USD 750 million or equivalent with minimum average maturity of five years. In view of the above change, the requirements of average maturity period, prepayment and call/put options specified vide A.P. (DIR Series) Circular No. 17 dated December 4, 2006 (for an additional amount of USD 250 million) have been dispensed with. The said circular also clarifies that eligible borrowers under the automatic route can raise Foreign Currency Convertible Bonds (FCCBs) up to USD 750 million or equivalent per financial year for permissible end-uses. Similarly, corporates in specified service sectors, i.e. hotel, hospital and software, can raise FCCBs up to USD 200 million or equivalent for permissible end-uses during a financial year subject to the condition that the proceeds of the ECB should not be used for acquisition of land. Further, the ECB / FCCB availed of for the purpose of refinancing the existing outstanding FCCB will be reckoned as part of the limit of USD 750 million available under the automatic route as per the extant norms. The said circular will come into force with immediate effect. External Commercial Borrowings Process Simplified In terms of the extant ECB guidelines, any request for cancellation of a Loan Registration Number (LRN) given by the Department of Statistics and Information Management (DSIM), RBI or change in the permissible end use of an existing ECB was required to be referred by the designated AD Category- I Bank to the Foreign Exchange Department, Central Office, RBI for necessary approval. The RBI has vide A.P. (DIR Series) Circular No. 69 dated January 25, 2012 simplified the process for cancellation of LRN and changes in the permissible end use for an existing ECB and has delegated powers to the designated AD Category- I Bank to approve the aforementioned requests from the ECB Borrowers subject to the satisfaction of the conditions set out below. (a) Cancellation of LRN - The designated AD Category- I Bank may directly approach DSIM for cancellation of LRN for ECBs availed, both under the automatic and approval routes, subject to the fulfillment of the following conditions: i. No draw down from the LRN has taken place; and The monthly ECB-2 returns till date in respect of the LRN have been submitted to DSIM. Change in end-use of ECB Proceeds The designated AD Category- I Bank may approve requests from ECB borrowers for change in end-use in respect of ECBs availed under the automatic route, subject to the following conditions:- i. the proposed end-use is permissible under the automatic route as per the extant ECB guidelines; i iv. there is no change in the other terms and conditions of the ECB; the ECB is in compliance with the extant guidelines; and the monthly ECB-2 returns till date in respect of the LRN have been submitted to DSIM. The AD Category- I Bank will continue to monitor the utilization of end-use proceeds, and any changes in the end-use should be promptly reported to DSIM, RBI in Form 83. Further any change in the end-use of ECBs availed under the approval route will continue to be referred to the Foreign Exchange Department, Central Office, RBI. February 1,

2 The said circular will come into force with immediate effect. Foreign investment in Single Brand Retail Trading - Amendment to the Foreign Direct Investment (FDI) Scheme The RBI vide A.P. (DIR Series) Circular No. 67 dated January 13, 2012 has notified the increase in the threshold of FDI in single brand retail from 51% to 100% subject to the satisfaction of the conditions set out in Press Note No. 1 (2012 Series) dated January 10, 2012 issued by the Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, Government of India. Investments by QFIs The RBI vide A.P. (DIR Series) Circular No. 66 dated January 13, 2012 has decided to allow Qualified Foreign Investors (QFI) to purchase, on a repatriation basis, equity shares of an Indian Company, subject to the following terms and conditions: (a) Eligible instruments and eligible transactions QFIs shall be permitted to invest through Securities and Exchange Board of India (SEBI) registered Depository Participants (DP) in the equity shares of listed Indian companies through recognized brokers on recognized stock exchanges in India, as well as in the equity shares of Indian companies which are offered to the public in India and in terms of the relevant and applicable SEBI guidelines/regulations. QFIs will also be permitted to acquire equity share by way of rights shares, bonus shares or equity shares on account of stock split / consolidation or equity shares by way of rights shares, bonus shares or equity shares on account of amalgamation, demerger or such corporate actions subject to the investment limits as prescribed in (d) below. QFIs will be permitted to sell the equity shares so acquired by way of sale: i. through recognized brokers or recognized stock exchanges in India; in an open offer in accordance with the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011; (c) i iv. in an open offer in accordance with the SEBI (Delisting of Securities) Guidelines 2009; or through a buyback of shares by a listed Indian company in accordance with the SEBI (Buyback) Regulations, Mode of Payment / Repatriation For QFI investments under the scheme, a separate single rupee pool bank account will be maintained by the DP with an AD Category 1 bank in India. The DP will purchase equity at the instruction of the respective QFIs within five working days (including the date of credit of funds to the single rupee pool bank account by way of foreign inward remittances through normal banking channels) failing which the funds would be immediately repatriated back to QFI s designated overseas bank account. The sale proceeds of the equity shares will also be received in such single rupee pool bank account of the DP and shall be repatriated to the designated overseas bank account of the QFI within five working days (including the date of credit of funds to the single rupee pool bank account by way of sale of equity shares) of having been received in the single rupee pool bank account of the DP. Within these five working days, the sale proceeds of the existing investment can also be utilized for fresh purchases of equity shares under the scheme, if so instructed by the QFI. Dividend payments on equity shares held by QFIs can either be directly remitted to the designated overseas bank account of the QFI or credited to the single rupee pool bank account. In case dividend payments are credited to the single rupee pool bank account they shall be remitted to the designated overseas bank accounts of the QFI within five working days (including the day of credit of such funds to the single rupee pool bank account). Within these five working days, the dividend payments can also be utilized for fresh purchases of equity shares under the scheme, if so instructed by the QFI. Demat accounts QFIs will be allowed to open a dedicated demat account with a DP in India for investment in equity shares under the scheme. The QFIs will however not be allowed to open any bank account in India. February 1,

3 (d) (e) (f) Limits The individual and aggregate investment limits for the QFIs shall be 5% and 10% respectively of the paid up capital of an Indian company. These limits shall be over and above the FII and NRI investment ceilings prescribed under the Portfolio Investment Scheme for foreign investment in India. Further, wherever there are composite sectoral caps under the extant FDI policy, these limits for QFI Investment in equity shares shall also be within such overall FDI sectoral caps. The onus of monitoring and compliance of these limits shall remain jointly and severally with the respective QFIs, DPs and Indian companies. Eligibility Only QFIs from jurisdictions which are FATF compliant and with whom SEBI has signed Memorandums of Understanding under the IOSCO framework will be eligible to invest in equity shares under this scheme. KYC DPs will ensure KYCs of the QFIs are as per the norms prescribed by SEBI. to five working days (including the day of credit of funds received by way of foreign inward remittance through normal banking channels from QFIs as well as by way of credit of redemption proceeds of the units of domestic Mutual Funds by QFIs in India). The RBI has also decided to allow credit of dividend payments to QFIs on account of units of Mutual Funds held by them to the single rupee pool bank account subject to the condition that in case dividend payments are credited to the single rupee pool bank account they shall be remitted to the designated overseas bank accounts of the QFIs within five working days (including the day of credit of such funds to the single rupee pool bank account). Within these five working days, the dividend can also be utilized for fresh purchases of units of domestic Mutual Funds under the scheme, if so instructed by the QFI. Fee for Inspection of Documents Revised The Company Law Board (CLB) vide Notification No. GSR 32(E) dated January 18, 2012 has revised the fee for inspection of records from INR 10/- per day to INR 50/- per day. Also, the fee for supply of certified copies of an order of the CLB or any other document has been revised from INR 5/- to INR 10/-. (g) (h) (i) Permissible currencies Foreign inward remittances by QFIS will be through normal banking channels in any permitted currency (freely convertible) directly into single rupee pool bank account of the DP maintained with an AD Category 1 bank. Pricing The pricing of all eligible transactions and investment in all eligible instruments by QFIs under this scheme will be in accordance with the relevant and applicable SEBI guidelines only. Reporting In addition to reporting to SEBI (as may be prescribed), DPs will also ensure reporting to the RBI in a manner and format as may be prescribed by the RBI from time to time. In addition to the above the RBI has also decided to modify the time period for which funds (by way of foreign inward remittance through normal banking channels for QFIs as well as by way of credit of redemption proceeds of the units of domestic Mutual Funds by QFIs in India) can be kept in the single rupee pool bank account of the DP under the scheme for investment by QFIs in units of domestic Mutual Funds ( as per terms and conditions specified in the A.P. (DIR Series) Circular No. 8 dated August 9, 2011 and A.P. (DIR Series) Circular No. 42 dated November 3, 2011) Supreme Court Ruling in Case of Default of Provident Fund Contribution The Supreme Court of India in the case of Regional Provident Fund Commissioner vs. Hooghly Mills 1 has held that even in the case of an exempted establishment, the provisions of Section 14B of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (EPF Act) will apply. Section 14B, inter alia, empowers the Central Provident Fund Commissioner to recover damages from an employer who fails to make a contribution to the provident fund. Exempted establishment means an establishment which is exempted under Section 17 of the EPF Act from all or any other provisions of the PF Scheme framed under the EPF Act. Such an exemption is provided by way of a government notification in cases of establishments which have their own private funds/schemes whose terms are not less favorable that those provided under the EPF Act. Subsequent to the Supreme Court s judgment an exempted establishment cannot plea that Section 14B of the EPF Act cannot be enforced against it due to its exempted establishment status. 1 Civil Appeal No. 655 of 2012 (Arising out of SLP (C) No /2009) February 1,

4 Refund of Statutory Fees Paid for Certain Services The Ministry of Corporate Affairs vide a press release dated January 30, 2012 has decided to refund the statutory fee for the following services (a) Multiple Payments of Form 1, Form 5; (c) Incorrect Payments; and Excess Payments. The refund process will not be applicable for certain services/e-forms like public inspection of documents, request for certified copies, payment for transfer deeds, stamp duty fee (D series SRN), IEPF Payment, STP forms, DIN e-form etc. February 1,

5 For further information please contact: Disclaimer: This newsletter is not an advertisement or any form of solicitation. This newsletter has been compiled for general information of clients and does not constitute professional guidance or legal opinion. Readers should obtain appropriate professional advice. J. Sagar Associates I advocates & solicitors Gurgaon New Delhi Mumbai Bangalore Hyderabad Copyright J. Sagar Associates all rights reserved February 1,