BMC Advisors. MCA Update SEBI Update RBI Update. Income Tax Update IPR Update Service Tax. Excise Update Custom Update GST Update.

Transcription

1 Issue: April 2018 Vol. 4 No. 5 BMC Advisors Corporate Laws and Intellectual Property Rights Consultants MCA Update SEBI Update RBI Update Income Tax Update IPR Update Service Tax Excise Update Custom Update GST Update DGFT Update 1

2 WEEKLY UPDATES APRIL 23 RD, APRIL 29 TH,

3 INDEX MCA UPDATE Condonation of Delay Scheme, Notification regarding designation of special court for the state of Uttar Pradesh 5 SEBI UPDATE Amendment to SEBI Circular No. IMD/FPIC/CIR/P/2018/61 dated April 5, 2018 on Monitoring of Foreign Investment limits in listed Indian companies 6 RBI UPDATE Investment by Foreign Portfolio Investors (FPI) in Debt - Review 7-9 External Commercial Borrowings (ECB) Policy Rationalisation and Liberalisation CUSTOM UPDATE Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver- Reg Import of EOUs/EHTP/STP /BTP without payment of duty following Rule 5 of Customs (Import of Goods at concessional rate of Duty) Clarification reg DGFT UPDATE Amendment in import policy of Peas under Chapter 7 of the ITC (HS) 2017, Schedule -1 (Import 16 Policy) Amendment in Para 1.05(b) Foreign Trade Policy

4 MCA UPDATES F.No.02/04/2017-CL-V GOVERNMENT OF INDIA MINISTRY OF CORPORATE AFFAIRS General Circular No. 03/2018 5th Floor, 'A' Wing Shastri Bhawan, Dr. R.P. Road, New Delhi Dated: To, All Regional Directors, All Registrars of Companies, All Stakeholders. Subject: Condonation of Delay Scheme, Sir, In continuation to the Ministry's General Circular No. 16/2017 dated 29/12/2017 and General Circular No. 02/2018 dated on the subject cited above and to state that the closing date of the scheme viz is falling under gazetted holiday on account of 'Budh Purnima', therefore, this Ministry has decided to give one day extension of the said scheme i.e. up to This issues with the approval of the competent authority. Yours faithfully, (KMS Narayanan) Assistant Director Tel:

5 [To be Published in the Gazette of India, Extraordinary, Part-II, Section-3, Sub-Section (ii)] GOVERNMENT OF INDIA MINISTRY OF CORPORATE AFFAIRS Notification New Delhi, 23 rd April, 2018 S.O. (E) In exercise of the powers conferred by sub- section(1) of Section 435 of the Companies Act, 2013 (18 of 2013), the Central Government, with the concurrence of the Chief Justice of the High Court of Allahabad hereby designates the following Court mentioned in the column (1) of the Table below as Special Court for the purpose of providing speedy trial of offences punishable with imprisonment of two years or more under the said sub-section namely:- Table Court (1) 9 th of Additional District and Session Judge, Kanpur Nagar. Jurisdiction as Special Court (2) State of Uttar Pradesh. [F. No. 01/12/2009-CL-I (Vol.IV)] K.V.R. Murty Joint Secretary to the Government of India 5

6 SEBI UPDATES CIRCULAR IMD/FPIC/CIR/P/2018/74 April 27, 2018 To 1. All Foreign Portfolio Investors (through their designated Custodian of Securities) 2. The Depositories (NSDL and CDSL) 3. The Stock Exchanges (BSE, NSE and MSEI) Dear Sir / Madam, Sub: Amendment to SEBI Circular No. IMD/FPIC/CIR/P/2018/61 dated April 5, 2018 on Monitoring of Foreign Investment limits in listed Indian companies 1. SEBI vide Circular No. IMD/FPIC/CIR/P/2018/61 dated April 5, 2018 introduced a new system for Monitoring of Foreign Investment limits in listed Indian companies and prescribed guidelines w.r.t the necessary infrastructure, data to be provided by listed Indian companies and other related matters. 2. In this regard, it is clarified as under: 2.1. The deadline for the companies to provide the necessary data to the depositories has been extended to May 15, The new system for monitoring foreign investment limits in listed Indian companies shall be made operational on May 18, This circular is issued in exercise of powers conferred under Section 11 (1) of the Securities and Exchange Board of India Act, A copy of this circular is available at the web page Circulars on our website Custodians are requested to bring the contents of this circular to the notice of their FPI clients. Yours faithfully, ACHAL SINGH Deputy General Manager Tel No.: achals@sebi.gov.in 6

7 RBI UPDATES Investment by Foreign Portfolio Investors (FPI) in Debt Review RBI/ /168 A.P. (DIR Series) Circular No. 24 April 27, 2018 To All Authorized Persons Madam / Sir Investment by Foreign Portfolio Investors (FPI) in Debt Review Attention of Authorised Dealer Category-I (AD Category-I) banks is invited to Schedule 5 to the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000 notified vide Notification No. FEMA.20/2000-RB dated May 3, 2000, as amended from time to time and the relevant directions issued thereunder. 2. In terms of AP (DIR Series) Circular No. 22 dated April 6, 2018, the revised framework for Foreign Portfolio Investors (FPI) in debt was announced. It was further stated that a separate notification would be issued announcing other changes affecting operational aspects of FPI investments in debt, in consultation with SEBI. 3. Accordingly, the changes to operational aspects of FPI investment are set forth below. (a) Revision of minimum residual maturity requirement (i) In terms of A.P. (DIR Series) Circular No. 13 dated July 23, 2014, FPIs were required to invest in Government bonds with a minimum residual maturity of three years. The minimum residual maturity requirement for Central Government securities (G-secs) and State Development Loans (SDLs) categories stands withdrawn, subject to the condition that investment in securities with residual maturity below 1 year by an FPI under either category shall not exceed, at any point of time, 20% of the total investment of that FPI in that category. (ii) In terms of A.P. (DIR Series) Circular No. 71 dated February 03, 2015, FPIs were required to invest in corporate bonds with a minimum residual maturity of three years. Henceforth, FPIs are permitted to invest in corporate bonds with minimum residual maturity of above one year. (b) Revision of security-wise limit The cap on aggregate FPI investments in any Central Government security, currently at 20% of the outstanding stock of that security, in terms of A.P. (DIR Series) Circular No. 19 dated October 6, 2015, stands revised to 30% of the outstanding stock of that security. (c) Online monitoring of G-sec utilisation limits 7

8 Currently, FPIs are permitted to invest in G-secs till the limit utilization reaches 90%, after which the auction mechanism is triggered for allocation of the remaining limit. With Clearing Corporation of India Ltd. (CCIL) commencing online monitoring of utilisation of G-sec limits, it has been decided to discontinue the auction mechanism with effect from June 1, Utilisation of FPI limits shall be monitored online thereafter. (d) Concentration limit Investment by any FPI (including investments by related FPIs), in each of the three categories of debt, viz., G-secs, SDLs and corporate debt securities, shall be subject to the following concentration limits: (i) Long-term FPIs: 15% of prevailing investment limit for that category. (ii) Other FPIs: 10% of prevailing investment limit for that category. (iii) In case an FPI has investments (INV0) in excess of the concentration limit on the effective date (date on which these concentration limits come into existence), it will be allowed the following relaxations, subject to availability of overall category limits, as a one-time measure: (a) In case an FPI has investments (INV0) in excess of the concentration limit on the effective date, it will be allowed to undertake additional investments such that its portfolio size at any point in time (INVt) does not exceed INV0 plus 2.5% of investment limit for the category on the effective date. Once INVt falls below the prevailing concentration limit for the category, the FPI shall be free to make investments up to the applicable concentration limit. (b) In case an FPI has investments (INV0) within the concentration limit, but in excess of 7.5% (12.5% in case of FPIs in the Long-term sub-category) of the investment limit for the category on the effective date, that FPI shall be allowed to undertake additional investments such that its portfolio size at any point in time (INVt) does not exceed INV0 plus 2.5% of the investment limit for the category on the effective date. Once INVt falls below the prevailing concentration limit for the category, the FPI shall be free to make investments up to the applicable concentration limit. (c) All other FPIs will be allowed to invest up to the applicable concentration limit. (e) Single/Group investor-wise limit in corporate bonds FPI investment in corporate bonds shall be subject to the following requirements: (i) Investment by any FPI, including investments by related FPIs, shall not exceed 50% of any issue of a corporate bond. In case an FPI, including related FPIs, has invested in more than 50% of any single issue, it shall not make further investments in that issue until this stipulation is met. (ii) No FPI shall have an exposure of more than 20% of its corporate bond portfolio to a single corporate (including exposure to entities related to the corporate). In case an FPI has exposure in excess of 20% to any corporate (including exposure to entities related to the corporate), it shall not make further investments in that corporate until this stipulation is met. A newly registered FPI shall be required to adhere to this stipulation starting no later than 6 months from the commencement of its investments. 4. Other changes: No FPI shall invest in partly paid instruments. 8

9 5. These directions would be applicable with immediate effect. 6. The directions contained in this circular have been issued under sections 10(4) and 11(1) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions/ approvals, if any, required under any other law. Yours faithfully (T. Rabi Sankar) Chief General Manager 9

10 External Commercial Borrowings (ECB) Policy Rationalisation and Liberalisation RBI/ /169 A.P. (DIR Series) Circular No.25 April 27, 2018 To All Category-I Authorised Dealer Banks Madam / Sir, External Commercial Borrowings (ECB) Policy Rationalisation and Liberalisation Attention of Authorized Dealer Category-I (AD Category-I) banks is invited to Master Direction No.5 dated January 1, 2016 on External Commercial Borrowings, Trade Credit, Borrowing and Lending in Foreign Currency by Authorised Dealers and Persons other than Authorised Dealers, as amended from time to time. 2. Corporates and other entities planning to avail ECB to meet their capital needs have been approaching RBI for relaxations in the existing ECB framework. In light of the requests received and experience gained in administering the ECB regime, it has been decided, in consultation with the Government of India, to further rationalise and liberalize the ECB guidelines as under:- (i) Rationalisation of all-in-cost for ECB under all tracks and Rupee denominated bonds (RDBs): With a view to harmonising the extant provisions of Foreign Currency and Rupee ECBs and RDBs, it has been decided to stipulate a uniform all-in-cost ceiling of 450 basis points over the benchmark rate. The benchmark rate will be 6 month USD LIBOR (or applicable benchmark for respective currency) for Track I and Track II, while it will be prevailing yield of the Government of India securities of corresponding maturity for Track III (Rupee ECBs) and RDBs. (ii) Revisiting ECB Liability to Equity Ratio provisions: It has been decided to increase the ECB Liability to Equity Ratio for ECB raised from direct foreign equity holder under the automatic route to 7:1. This ratio will not be applicable if total of all ECBs raised by an entity is up to USD 5 million or equivalent. (iii) Expansion of Eligible Borrowers list for the purpose of ECB: It has been decided to permit: a) Housing Finance Companies, regulated by the National Housing Bank, as eligible borrowers to avail of ECBs under all tracks. Such entities shall have a board approved risk management policy and shall keep their ECB exposure hedged 100 per cent at all times for ECBs raised under Track I. b) Port Trusts constituted under the Major Port Trusts Act, 1963 or Indian Ports Act, 1908 to avail of ECBs under all tracks. Such entities shall have a board approved risk management policy and shall keep their ECB exposure hedged 100 per cent at all times for ECBs raised under Track I. c) Companies engaged in the business of Maintenance, Repair and Overhaul and freight forwarding to raise ECBs denominated in INR only. (iv) Rationalisation of end-use provisions for ECBs: 10

11 Currently, a positive end-use list is prescribed for Track I and specified category of borrowers, while negative end-use list is prescribed for Track II and III. It has now been decided to have only a negative list for all tracks. The negative list for all Tracks would include the following: a) Investment in real estate or purchase of land except when used for affordable housing as defined in Harmonised Master List of Infrastructure Sub-sectors notified by Government of India, construction and development of SEZ and industrial parks/integrated townships. b) Investment in capital market. c) Equity investment. Additionally for Tracks I and III, the following negative end uses will also apply except when raised from Direct and Indirect equity holders or from a Group company, and provided the loan is for a minimum average maturity of five years: d) Working capital purposes. e) General corporate purposes. f) Repayment of Rupee loans. Finally, for all Tracks, the following negative end use will also apply: g) On-lending to entities for the above activities from (a) to (f). 3. All other provisions of the ECB policy shall remain unchanged. AD Category - I banks may bring the contents of this circular to the notice of their constituents and customers. 4. The aforesaid Master Direction No. 5 dated January 01, 2016 is being updated to reflect the changes. 5. The directions contained in this circular have been issued under section 10(4) and 11(2) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions / approvals, if any, required under any other law. Yours faithfully Shekhar Bhatnagar Chief General Manager-in-Charge 11

12 CUSTOM UPDATES [TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART-II, SECTION-3, SUB- SECTION (ii)] Government of India Ministry of Finance (Department of Revenue) (Central Board of Excise and Customs) Notification No. 34/2018-CUSTOMS (N.T.) New Delhi, 27th April, Vaisakha, 1940 (SAKA) S.O. (E). In exercise of the powers conferred by sub-section (2) of section 14 of the Customs Act, 1962 (52 of 1962), the Central Board of Excise & Customs, being satisfied that it is necessary and expedient so to do, hereby makes the following amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 36/2001-Customs (N.T.), dated the 3rd August, 2001, published in the Gazette of India, Extraordinary, Part-II, Section-3, Sub-section (ii), vide number S. O. 748 (E), dated the 3rd August, 2001, namely:- In the said notification, for TABLE-1, TABLE-2, and TABLE-3 the following Tables shall be substituted namely: - Sl. No. Chapter/ heading/ subheading/tariff item TABLE-1 Description of goods Tariff value (US $Per Metric Tonne) (1) (2) (3) (4) Crude Palm Oil RBD Palm Oil Others Palm Oil Crude Palmolein RBD Palmolein Others Palmolein Crude Soya bean Oil Brass Scrap (all grades) Poppy seeds 2485 Sl. No. Chapter/ heading/ subheading/tariff item Description of goods Tariff value (US $) (1) (2) (3) (4) 1 Gold, in any form, in respect of 71 or 98 which the benefit of entries at serial number 356 and 358 of the Notification No. 50/2017-Customs dated is availed 425 per 10 grams 12

13 2 71 or 98 Silver, in any form, in respect of which the benefit of entries at serial number 357 and 359 of the Notification No. 50/2017-Customs dated is availed TABLE per kilogram TABLE-3 Sl. No. Chapter/ heading/ subheading/tariff item Description of goods Tariff value (US $ Per Metric Tonne) (1) (2) (3) (4) Areca nuts 3946 [F. No. 467/01/2018 -Cus-V] (B. Konthoujam) Under Secretary to the Govt. of India Note: - The principal notification was published in the Gazette of India, Extraordinary, Part-II, Section-3, Sub-section (ii), vide Notification No. 36/2001 Customs (N.T.), dated the 3 rd August, 2001, vide number S. O. 748 (E), dated the 3 rd August, 2001 and was last amended vide Notification No. 20/2018-Customs (N.T.), dated the 15 th March, 2018, e-published in the Gazette of India, Extraordinary, Part-II, Section-3, Sub-section (ii), vide number S. O (E), dated 15 th March,

14 Circular No. 10/2018- Customs F. No. DGEP/EOU/16/2018 Govt. of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes & Customs Directorate General of Export Promotion To, All Principal Chief Commissioners / Chief Commissioners of Customs/ Customs (Preventive) All Principal Chief Commissioners / Chief Commissioners of Central Tax and Central Excise All Principal Chief Commissioners / Commissioners of Customs/ Customs (Preventive) All Principal Commissioners / Chief Commissioners of Central Tax and Central Excise Madam/sir, Subject: Import by EOU / EHTP/ STP/ BTP without payment of duty by following Rule 5 of Customs (Import of Goods at Concessionl Rate of Duty) Rules, Clarification regarding. Representations have been received from EOUs regarding difficulties faced on imports due to requirement of submitting information to the DC/AC of Customs at the custom station of importation by way of forwarding a copy of such information by the Jurisdictional AC/DC of Customs (Import of Goods at concessional Rate of Duty) Rules, It is further represented that due to recent reorganisation of Customs formations and associated administrative constraints, EOUs are not able to get approved / signed copy of said information from the Jurisdictional DC/AC of Customs in time, for submitting the said copy to the DC/AC of Customs at the Custom Station of Importation for Scheduled imports. 2. In order to clarify the issue, it is pertinent to broadly recall the procedure required to be followed by the EOUs as well as Custom Officers under Rule 5 of Customs (Import of Goods at concessional Rate of Duty) Rules, 2017.The EOUs are required to provide information in duplicate regarding estimated quantity and value of goods to be imported to the DC/AC of Customs at the Custom Station of Importation who shall allow the benefit of exemption notification to importer on the basis of said information provided to him. Thus the rule 5 of the said rules, nowhere prescribed that information provided by EOU under sub-rule (1) (a) of the said Rule 5 is required to be approved by Jurisdictional DC/ AC of Customs on prior basis for imports. It appears that the misconception is arising out of wrong interpretation of sub-rule (3) of Rule 5 of the said rules wherein it has been prescribed that the Jurisdictional DC/AC of Customs shall forward one copy of said information received from importer to DC/AC of Customs at the Custom Station of importation. However, this sub-rule nowhere makes this forwarded copy by Jurisdictional DC/AC of Customs a prerequisite for allowing duty free import by the DC/AC of Customs at the Custom Station of importation. Further sub-rule (4) of Rule 5 clearly mentions that DC/AC of Customs at the Custom Station of importation shall allow the benefit of exemption notification on receipt of copy of information from the importer under clause (b) of sub-rule (1) of said rule In view of above, it is again clarified that the importer EOU need not get prior approval of the information submitted under sub-rule (1)(a) of Rule 5 of Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017 from Jurisdictional DC/AC of Customs for duty free import at the Custom Station of importation. Information submitted to the DC/AC of Customs at the Custom Station of importation by EOU is sufficient for importing goods without payment of duty under exemption notification No. 52/2003-Customs dated

15 4. The Board further prescribes that Jurisdictional DC/AC of Customs of EOU/EHTP/STP/BTP shall ensure that the intimation received under sub-rule (1)(a) of Rule 5 of the said rules are properly scrutinized so that only eligible goods as prescribed under notification No. 52/2003-Customs dated as well as those eligible as per Letter of Permission (LOP) granted by Jurisdictional Development Commissioner are imported duty free by the EOUs. After prompt scrutiny, one copy of such information shall be forwarded to DC/AC of Customs at the Custom Station of importation as prescribed under sub-rule (3) of the Rule 5 of said rules. The DC/AC of Customs at Custom Station of importation would reconcile the Bill of Entry against which goods were imported duty free by EOU on receipt of such information from Jurisdictional DC/AC of Customs at Custom Station of importation would inform the Jurisdictional DC/AC of Customs for taking necessary steps to protect revenue. 5. Difficulties, if any, should be brought to the notice of the Board. 6. This issues with the approval of Central Board of Indirect Taxes & Customs. Yours faithfully, (Saroj Kumar Behera) Joint Director 15

16 DGFT UPDATES To be published in the Gazette of India Extraordinary Part-II, Section - 3, Sub Section (ii) Government of India Ministry of Commerce & Industry Department of Commerce Directorate General of Foreign Trade Notification No. 04/ New Delhi, Dated: 25th April, 2018 Subject: Amendment in Export Policy of peas under Chapter 7 of ITC (HS) 2017, Schedule-I (Import Policy) S.O. (E) : In Exercise of Powers conferred by Section 3of FT (D&R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, , as amended from time to time, the Central Government hereby amends the import policy of items of Chapter 7 of the ITC (HS) 2017, Schedule-1 (Import Policy) as under: Exim Code Item description Peas (Pisum Sativum) Existing Policy Existing Policy Condition Revised Import Policy Revised Policy Condition Free - Restricted Restricted for the period from 01 st April to 30 th June 2018 and subject to Policy Condition 4 of this Chapter Policy Condition 4: During the period from 01 st April to 30 th June 2018total quantity of one lakh MT of Yellow Peas minus the quantity already imported from till date will be allowed against license as per procedure to be notified by DGFT. Already Imported will include shipment already arrived from till and those shipments backed by irrevocable Commercial Letter of Credit (ICLC) and Advance Payment made through banking channel before Both these categories will be required to be registered with Jurisdictional Regional Authority as per para 1.05 of Foreign Trade Policy, Effect of this Notification: Import Policy of Yellow Peas under Exim code is revised from free to restricted for a period of three months only. (Alok Vardhan Chaturvedi) General Director of Foreign Trade dgft@nic.in 16

17 To be published in the Gazette of India Extraordinary Part-II, Section - 3, Sub Section (ii) Government of India Ministry of Commerce & Industry Department of Commerce Directorate General of Foreign Trade Notification No. 05/ New Delhi, Dated: 25th April, 2018 Subject: Amendment in Para 1.05(b) of Foreign Trade Policy S.O. (E) : In Exercise of Powers conferred by Section 3of FT (D&R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, , as amended from time to time, the Central Government hereby amends provision in Para 1.05 (b) of the Foreign Trade Policy ( ) on Transitional Arrangements as under: 1. Transitional Arrangements Existing Para (b) In case an export or import that is permitted freely under FTP is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted, notwithstanding such restriction or regulation, unless otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter of credit, established before the date of imposition of such restriction and it shall be restricted to the balance value and quantity available and time period of such irrevocable letter of credit. For operationalising such irrevocable letter of credit, the applicant shall have to register the Letter of Credit with jurisdictional Regional Authority (RA) against computerized receipt, within 15 days of the imposition of any such restriction or regulation. Revised Para (b) Item wise Import/Export Policy is delineated in the ITC (HS) Schedule I and Schedule II respectively. The importability/ exportability of a particular item is governed by the policy as on the date of import/export. The date of import/ export is defined in para 2.17 of HBP, Bill of Lading and Shipping Bill are the key documents for deciding the date of import and export respectively. In case of change of policy from free' to 'restricted/prohibited/state trading' or 'otherwise regulated', the import/export already made before the date of such regulation/restriction will not be affected. However the import through High Sea sales will not be covered under this facility. Further, the import/export on or after the date of such regulation/restriction will be allowed for importer/exporter has a commitment through Irrevocable Commercial Letter of Credit (ICLC) before the date of imposition of such restriction/ regulation and shall be limited to the balance quantity, value and period available in the ICLC. For operationalising such ICLC, the applicant shall have to register the ICLC with jurisdictional RA against computerized receipt within 15 days of imposition of any such restriction/regulation. Whenever, Government brings out a policy change of a particular item, the change will be applicable prospectively (from the date of Notification) unless otherwise provided for. 2. Effect of this Notification: Transitional Arrangements provision has been detailed under para 1.05 (b) of Foreign Trade policy ( ). (Alok Vardhan Chaturvedi) General Director of Foreign Trade dgft@nic.in 17

18 (Corporate Laws and Intellectual Property Rights Consultants) Delhi I Mumbai I Pune I Kanpur Corporate Office: 63/12, First Floor, Main Rama Road, New Delhi Ph: /17, Mob: brijesh@bmcadvisors.in, brijesh@brijeshmathur.com Website: 18