In India, all transactions that include foreign exchange were regulated by Foreign Exchange Regulations Act (FERA), 1973. Due to the policy leaning toward nationalized economy the main objective of FERA was conservation and proper utilization of the foreign exchange resources of the country. It also sought to control certain aspects of the conduct of business outside the country by Indian companies and in India by foreign companies. It was a criminal legislation which meant that its violation would lead to imprisonment and payment of heavy fine. It had many restrictive clauses which deterred foreign investments.
Over the years as the economy opened up with steady pace of reforms a need was felt for more, liberalized foreign exchange controls and restrictions on foreign investment.FERA was replaced by a new Act called the Foreign Exchange Management Act(FEMA), 1999.
The Act applies to all branches, offices and agencies outside India, owned or controlled by a person resident in India. FEMA is now a purely a civil legislation in the sense that its violation implies only payment of monetary penalties and fines. However, under it, a person will be liable to civil imprisonment only if he does not pay the prescribed fine within 90 days from the date of notice but that too happens after formalities of show cause notice and personal hearing. FEMA also provides for a two year sunset clause for offences committed under FERA which may be taken as the transition period granted for moving from one ‘harsh’ law to the other ‘industry friendly’ legislation.
FEMA has been formulated with clear cut objective to: (i) To facilitate external trade and payments; and (ii) To promote the orderly development and maintenance of foreign exchange market. The Act has assigned an important role to the Reserve Bank of India (RBI) in the administration of FEMA. The rules, regulations and norms pertaining to several sections of the Act are laid down by the Reserve Bank of India, in consultation with the Central Government. The Act requires the Central Government to appoint as many officers of the Central Government as Adjudicating Authorities for holding inquiries pertaining to contravention of the Act. There is also a provision for appointing one or more Special Directors (Appeals) to hear appeals against the order of the Adjudicating authorities. The Central Government also establish an Appellate Tribunal for Foreign Exchange to hear appeals against the orders of the Adjudicating Authorities and the Special Director (Appeals). The FEMA provides for the establishment, by the Central Government, of a Director of Enforcement with a Director and such other officers or class of officers as it thinks fit for taking up for investigation of the contraventions under this Act.
FEMA permits only authorised person to deal in foreign exchange or foreign security. Such an authorised person, under the Act, means authorised dealer,money changer, off-shore banking unit or any other person for the time being authorised by Reserve Bank.
When a business enterprise imports goods from other countries, exports its products to them or makes investments abroad, it deals in foreign exchange. Foreign exchange means ‘foreign currency’ and includes: – (i) deposits, credits and balances payable in any foreign currency; (ii) drafts, travellers’ cheques, letters of credit or bills of exchange, expressed or drawn in Indian currency but payable in any foreign currency; and (iii) drafts, travellers’ cheques, letters of credit or bills of exchange drawn by banks, institutions or persons outside India, but payable in Indian currency.
The Act thus prohibits any person who:-
Deal in or transfer any foreign exchange or foreign security to any person not being an authorized person;
Make any payment to or for the credit of any person resident outside India in any manner;
Receive otherwise through an authorized person, any payment by order or on behalf of any person resident outside India in any manner;
Enter into any financial transaction in India as consideration for or in association with acquisition or creation or transfer of a right to acquire, any asset outside India by any person is resident in India which acquires, hold, own, possess or transfer any foreign exchange, foreign security or any immovable property situated outside India.
The Act deals with two types of foreign exchange transactions.
There are various guides and books on fema laws, which can be used by professionals to have an in depth knowledge. CCH India is having various publication related to this topic as well as FEMA online which can be accessed at http://www.cchindia.co.in .
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