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1. (1) This Act may be called the Foreign Trade
(Development and Regulation)
Amendment Act, 2010. |
Short title and
commencement. |
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(2) It shall come into force on such date as
the Central Government may, by notification
in the Official Gazette, appoint: |
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Provided that different dates may be appointed
for different provisions of this Act
and any reference in any such provision to the commencement of this Act
shall be construed as a reference to the coming into force of that
provision.
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Amendment
of section 2. |
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2. In section 2 of the Foreign Trade
(Development and Regulation) Act, 1992 (hereinafter
referred to as the principal Act),—
(a) for clause (e), the following shall be substituted, namely:—
‘(e) “import” and “export” means,—
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22 of 1992. |
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(I) in relation to goods, bringing into, or
taking out of, India any
goods by land, sea or air;
(II) in relation to services or technology,—
(i) supplying, services or technology—
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(A) from the territory of another country into
the
territory of India;
(B) in the territory of another country to an Indian
service consumer;
(C) by a service supplier of another country, through
commercial presence in India; |
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(D) by a service supplier of another country,
through
presence of their natural persons in India;
(ii) supplying, services or technology—
(A) from India into the territory of any other country;
(B) in India to the service consumer of any other country; |
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(C) by a service supplier of India, through
commercial
presence in the territory of any other country;
(D) by a service supplier of India, through presence of
Indian natural persons in the territory of any other country: |
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Provided that “import” and “export” in relation
to the goods, services
and technology regarding Special Economic Zone or between two Special
Economic Zones shall be governed in accordance with the provisions
contained
in the Special Economic Zones Act, 2005.’; |
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(b) after clause (i), the following clauses
shall be inserted, namely:— |
28 of 2005. |
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‘(j) “services” means service of any
description which is made available
to potential users and includes all the tradable services specified
under the
General Agreement on Trade in Services entered into amongst India and
other
countries who are party to the said Agreement:
Provided that, this definition shall not apply to the domain of
taxation; |
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(k) “service supplier” means any person who
supplies a service and who
intends to take benefit under the foreign trade policy; |
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(l) “specified goods or services or technology”
means the goods or services or technology, the export, import, transfer,
re-transfer, transit and transshipment of which is prohibited or
restricted because of imposition of conditions on the grounds of their
being pertinent or relevant to India as a Nuclear Weapon State, or to
the national security of India, or to the furtherance of its foreign
policy or its international obligations under any bilateral,
multilateral or international treaty, convenant, convention or
arrangement relating to weapons of mass destruction or their means of
delivery to which India is a party or its agreement with a foreign
country under the foreign trade policy formulated and notified under
section 5 of the Act; |
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(m) “technology” means any information
(including information embodied in software), other than information in
the public domain, that is capable of being used in— |
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(i) the development, production or use of any
goods or software;
(ii) the development of, or the carrying out of, an industrial or
commercial activity or the provision of service of any kind. |
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Explanation,— For the purpose of this clause— |
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(a) when technology is described wholly or
partly by reference to the uses to which it (or the goods to which it
relates) may be put, it shall include services which are provided or
used, or which are capable of being used in the development, production
or use of such technology or goods; |
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| 21 of 2005. |
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(b) “public domain” shall have the same meaning
as assigned to it in clause (i) of section 4 of the Weapons of Mass
Destruction and their Delivery Systems (Prohibition of Unlawful
Activities) Act, 2005.’. |
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3. In the principal Act, in sub-heading below
“Chapter II”, for the words “EXPORT
AND IMPORT POLICY”, the words “FOREIGN TRADE POLICY” shall be
substituted. |
Amendment of title of Chapter II. |
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4. In section 3 of the principal Act,—
(a) in sub-section (2),— |
Amendment of section 3. |
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(i) for the words “import or export of goods”,
the words “import or export of goods or services or technology” shall be
substituted;
(ii) after sub-section (2), the following proviso shall be inserted,
namely:— |
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“Provided that the provisions of this
sub-section shall be applicable, in case of import or export of services
or technology, only when the service or technology provider is availing
benefits under the foreign trade policy or is dealing with specified
services or specified technologies.”.
(b) after sub-section (3), the following sub-section shall be inserted,
namely:— |
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“(4) without prejudice to anything contained in
any other law, rule, regulation, notification or order, no permit or
licence shall be necessary for import or export of any goods, nor any
goods shall be prohibited for import or export except, as may be
required under this Act, or rules or orders made thereunder.”. |
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5. For section 5 of the principal Act, the
following section shall be substituted, namely:— |
Substitution of new section for section 5. |
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5. The Central Government may, from time to
time, formulate and announce, by
notification in the Official Gazette, the foreign trade policy and may
also, in like
manner, amend that policy: |
Foreign Trade Policy. |
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Provided that the Central Government may direct
that, in respect of the Special Economic Zones, the foreign trade policy
shall apply to the goods, services and technology with such exceptions,
modifications and adaptations, as may be specified
by it by notification in the Official Gazette.”. |
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6. In section 6 of the principal Act, in
sub-section (2), for the words “export and import
policy”, the words “foreign trade policy” shall be substituted. |
Amendment of section 6. |
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7. In section 7 of the principal Act, the
following proviso shall be inserted, namely:— |
Amendment of section 7. |
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“Provided that in case of import or export of
services or technology, the Importer exporter Code Number shall be
necessary only when the service or technology provider
is taking benefits under the foreign trade policy or is dealing with
specified services
or specified technologies.”. |
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| Amendment of section 8. |
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8. In section 8 of the principal Act,— |
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(A) for sub-section (1), the following
sub-section shall be substituted, namely:—
“(1) Where— |
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(a) any person has contravened any of the
provisions of this Act or any rules or orders made thereunder or the
foreign trade policy or any other law for the time being in force
relating to Central excise or customs or foreign exchange or has
committed any other economic offence under any other law for the time
being in force as may be specified by the Central Government by
notification in the Official Gazette; or |
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(b) the Director General or any other officer
authorised by him has reason to believe that any person has made an
export or import in a manner prejudicial to the trade relations of India
with any foreign country or to the interests of other persons engaged in
imports or exports or has brought disrepute to the credit or the goods
of, or services or technology provided from, the country; or |
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(c) any person who imports or exports specified
goods or services or technology, in contravention of any provision of
this Act or any rules or orders made thereunder or the foreign trade
policy, |
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the Director General or any other officer
authorised by him may call for the record or any other information from
that person and may, after giving to that person a notice in writing
informing him of the grounds on which it is proposed to suspend or
cancel the Importer-exporter Code Number and after giving him a
reasonable opportunity of making a representation in writing within such
reasonable time as may be specified in the notice and, if that person so
desires, of being heard, suspend for a period, as may be specified in
the order, or cancel the Importer-exporter Code Number granted to that
person.”; |
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(B) in sub-section (2), for the words “import
or export any goods”, the words “import or export any goods or services
or technology” shall be substituted. |
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| Amendment of section 9. |
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9. In section 9 of the principal Act,— |
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(a) in sub-sections (1), (3), (4) and (5), for
the word “licence”, wherever it occurs, the words “licence, certificate,
scrip or any instrument bestowing financial or fiscal benefits” shall be
substituted;
(b) for sub-section (2), the following sub-section shall be substituted,
namely:— |
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“(2) The Director General or an officer
authorised by him may, on an application and after making such inquiry
as he may think fit, grant or renew or refuse to grant or renew a
licence to import or export such class or classes of goods or services
or technology as may be prescribed and, grant or renew or refuse to
grant or renew a
certificate, scrip or any instrument bestowing financial or fiscal
benefit, after recording
in writing his reasons for such refusal.”. |
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Insertion of
new Chapter
IIIA. |
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10. After Chapter III of the principal Act, the
following Chapter shall be inserted, namely:— |
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‘CHAPTER IIIA
QUANTITATIVE RESTRICTIONS |
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Power of Central
Government
to impose
quantitative
restrictions. |
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9A. (1) If the Central
Government, after conducting such enquiry as it deems fit, is satisfied
that any goods are imported into India in such increased quantities and
under such conditions as to cause or threaten to cause serious injury to
domestic industry, it may, by notification in the Official Gazette,
impose such quantitative restrictions on the import of such goods as it
may deem fit: |
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Provided that no such
quantitative restrictions shall be imposed on any goods originating from
a developing country so long as the share of imports of such goods
from that country does not exceed three per cent. or where such goods
originate from
more than one developing country, then, so long as the aggregate of the
imports from
all such countries taken together does not exceed nine per cent. of the
total imports of
such goods into India. |
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(2) The quantitative
restrictions imposed under this section shall, unless revoked earlier,
cease to have effect on the expiry of four years from the date of such
imposition: |
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Provided that if the
Central Government is of the opinion that the domestic industry has
taken measures to adjust to such injury or threat thereof and it is
necessary that the quantitative restrictions should continue to be
imposed to prevent such injury or threat and to facilitate the
adjustments, it may extend the said period beyond four years:
Provided further that in no case the quantitative restrictions shall
continue to
be imposed beyond a period of ten years from the date on which such
restrictions
were first imposed. |
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(3) The Central Government
may, by rules provide for the manner in which goods, the import of which
shall be subject to quantitative restrictions under this section, may be
identified and the manner in which the causes of serious injury or
causes of threat of serious injury in relation to such goods may be
determined. |
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(4) For the purposes of
this section—
(a) “developing country” means a country notified by the Central
Government in the Official Gazette, in this regard;
(b) “domestic industry” means the producers of goods (including
producers of agricultural goods)—
(i) as a whole of the like goods or directly competitive goods in India;
or |
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(ii) whose collective
output of the like goods or directly competitive goods in India
constitutes a major share of the total production of the said goods in
India;
(c) “serious injury” means an injury causing significant overall
impairment
in the position of a domestic industry; |
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(d) “threat of serious
injury” means a clear and imminent danger of serious injury.’. |
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11. In section 10 of the
principal Act, for sub-section (1), the following sub-section
shall be substituted, namely:— |
Amendment of section 10. |
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“(1) The Central
Government may, by notification in the Official Gazette, authorise any
person for the purposes of exercising such powers with respect to,— |
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(a) entering such premises
where the goods are kept, stored or processed, manufactured, traded or
supplied or received for the purposes of import or export and searching,
inspecting and seizing of such goods, documents, things and conveyances
connected with such import and export of goods; |
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(b) entering such premises
from which the services or technology are being provided, supplied,
received, consumed or utilised and searching, inspecting and seizing of
such goods, documents, things and conveyances connected with such import
and export of services and technology, |
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subject to such
requirements and conditions and with the approval of such officer, as
may be prescribed: |
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Provided that the
provisions of clause (b) shall be applicable, in case of import of
export of services or technology, only when the service or technology
provider is availing benefit under the foreign trade policy or is
dealing with specified services or specified technologies. |
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| Subsitution of new section for section 11. |
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12. For section 11 of the
principal Act, the following section shall be substituted, namely:— |
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Contravention
of provisions
of this Act,
rules, orders
and foreign
trade policy. |
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11. (1) No export or
import shall be made by any person except in accordance with the
provisions of this Act, the rules and orders made thereunder and the
foreign trade policy for the time being in force |
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(2) Where any person makes
or abets or attempts to make any export or import in contravention of
any provision of this Act or any rules or orders made there under or the
foreign trade policy, he shall be liable to a penalty of not less than
ten thousand rupees and not more than five times the value of the goods
or services or technology in respect of which any contravention is made
or attempted to be made, whichever is more. |
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(3) Where any person signs
or uses, or causes to be made, signed or used, any declaration,
statement or document submitted to the Director General or any officer
authorised by him under this Act, knowing or having reason to believe
that such declaration, statement or document is forged or tampered with
or false in any material
particular, he shall be liable to a penalty of not less than ten
thousand rupees or more
than five times the value of the goods or services or technology in
respect of which
such declaration, statement or document had been submitted, whichever is
more. |
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(4) Where any person, on a
notice to him by the adjudicating Authority, admits
any contravention, the Adjudicating Authority may, in such class or
classes or cases
and in such manner as may be prescribed, determine, by way of
settlement, an amount
to be paid by that person. |
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(5) A penalty imposed
under this Act may, if it is not paid by any person, be recovered by any
one or more of the following modes, namely:— |
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(a) the Director General
may deduct or require any officer subordinate to him to deduct the
amount payable under this Act from any money owing to such person which
may be under the control of such officer; or |
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(b) the Director General
may require any officer of customs to deduct the amount payable under
this Act from any money owing to such person which may be under the
control of such officer of customs, as if the said amount is payable
under the Customs Act, 1962; or |
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52 of 1962. |
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(c) the Director General
may require the Assistant Commissioner of Customs or Deputy Commissioner
of Customs or any other officer of Customs to recover the amount so
payable by detaining or selling any goods (including the goods connected
with services or technology) belonging to such person which are under
the control of the Assistant Commissioner of Customs or Deputy
Commissioner or Customs or any other officer of Customs, as if the said
amount is payable under the Customs Act, 1962; or |
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52 of 1962. |
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(d) if the amount cannot
be recovered from such person in the manner provided in clauses (a), (b)
and (c),— |
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(i) the Director General
or any officer authorised by him may prepare a certificate signed by him
specifying the amount due from such person and send it to the Collector
of the District in which such person owns any property or resides or
carries on business and the said Collector on receipt of such
certificate shall proceed to recover from such person the amount
specified thereunder as if it were an arrear of land revenue; or |
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(ii) the Director General
or any officer authorised by him (including an officer of Customs who
shall then exercise his powers under the Customs Act, 1962) and in
accordance with the rules made in this behalf, detain any movable or
immovable property belonging to or under the control of such person, and
detain the same until the amount payable is paid, as if the said amount
is payable under the Customs Act, 1962; and in case, any part of the
said amount payable or of the cost of the distress or
keeping of the property, remains unpaid for a period of thirty days next
after any such distress, may cause the said property to be sold and with
the proceeds of such sale, may satisfy the amount payable and costs
including cost of sale remaining unpaid and shall render the surplus, if
any to such person. |
52 of 1962.
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(6) Where the terms of any
bond or other instrument executed under this Act or any rules made
thereunder provide that any amount due under such instrument may be
recovered in the manner laid down in sub-section (5), the amount may,
without prejudice to any other mode of recovery, be recovered in
accordance with the provisions of that sub-section. |
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(7) without prejudice to
the provisions contained in this section, the Importer- Exporter Code
Number of any person who fails to pay any penalty imposed under this
Act, may be suspended by the Adjudicating Authority till the penalty is
paid or recovered, as the case may be. |
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(8) Where any
contravention of any provision of this Act or any rules or orders made
thereunder or the foreign trade policy has been, is being, or is
attempted to be, made, the goods (including the goods connected with
services or technology) together with any package, covering or
receptacle and any conveyances shall, subject to such conditions and
requirements as may be prescribed, be liable to confiscation by the
Adjudicating Authority. |
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(9) The goods (including
the goods connected with services or technology) or the conveyance
confiscated under sub-section (8) may be released by the Adjudicating
Authority, in such manner and subject to such conditions as may be
prescribed, on payment by the person concerned of the redemption charges
equivalent to the market value of the goods or conveyance, as the case
may be.” |
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13. After section 11 of
the principal Act, the following sections shall be inserted, namely:— |
Insertion of new sections 11A and 11B. |
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“11A. All sums realised by
way of penalties under this Act shall be credited to the Consolidated
Fund of India. |
Crediting sums realised by way of penalties in Consolidated Fund of
India. |
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11B. Settlement of customs
duty and interest thereon as ordered by the Settlement
Commission as constituted under section 32 of the Central Excise Act,
1944, shall be
deemed to be a settlement under this Act.”. |
Empowering Settlement Commission for regularisation of export
obligation default. |
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14. In
section 14 of the principal Act, for the word “goods” at both the places
where
it occurs, the words and brackets “goods (including the goods connected
with services or technology)” shall be substituted. |
Amendment of section 14. |
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15. After Chapter IV of
the principal Act, following Chapter shall be inserted, namely:— |
Insertion of a new Chapter IVA. |
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“CHAPTER IVA
CONTROLS ON EXPORT OF SPECIFIED GOODS, SERVICES AND TECHNOLOGY |
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| 21 of 2005 |
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14A. (1) In regard to
controls on export of specified goods, services and technology referred
to in this Chapter, the Weapons of Mass Destruction and their Delivery
Systems (Prohibition of Unlawful Activities) Act, 2005 shall apply to
exports, transfers, re-transfers, brought in transit, trans-shipment of,
and brokering in specified goods, technology or services. |
Controls on export of specified goods, services and technology |
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(2) All terms, expressions
or provisions of the Weapons of Mass Destruction and their Delivery
Systems (Prohibition of Unlawful Activities) Act, 2005 shall apply to
the specified goods, services or technology with such exceptions,
modifications and adaptations as may be specified by the Central
Government by notification in the
Official Gazette. |
21 of 2005
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(3) The Central Government
may, by notification in the Official Gazette, direct that any of the
provisions of this Chapter—
(a) shall not apply to any goods, services or technologies, or |
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(b) shall apply to any
goods, services or technologies with such exceptions,
modifications and adaptations as may be specified in the notification. |
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| Transfer controls. |
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14B. (1) The Central
Government may, by notification in the Official Gazette, make rules in
conformity with the provisions of the Weapons of Mass Destruction and
their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005
for, or, in connection with, the imposition of controls in relation to
transfer of specified goods, services or technology. |
21 of 2005
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(2) No goods, services or
technology notified under this Chapter shall be exported, transferred,
re-transferred, brought in transit or transshipped except in accordance
with the provisions of this Act, the Weapons of Mass Destruction and
their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 or
any other relevant Act. |
21 of 2005
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| Catch-all controls. |
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14C. No person shall
export any material, equipment or technology knowing that such material,
equipment or technology is intended to be used in the design or
manufacture of a biological weapon, chemical weapon, nuclear weapon or
other nuclear explosive device, or in their missile delivery systems. |
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Suspension or
cancellation
of a licence. |
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14D. The Director General
or an officer authorised by him may, by order, suspend or cancel a
licence to import of export or specified goods or services or technology
without giving the holder of the licence a reasonable opportunity of
being heard but such person shall be given a reasonable opportunity of
being heard within six months of such order and thereupon the Director
General or the officer so authorised may, if necessary, by order in
writing, confirm, modify or revoke such order. |
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14E. (1) In case of a
contravention relating to specified goods, services or technologies, the
penalty shall be in accordance with the provisions of the Weapons of
Mass Destruction and their Delivery Systems (Prohibition of Unlawful
Activities) Act, 2005. |
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21 of 2005 |
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(2) Where any person
contravenes or attempts to contravene or abets, any of the provision(s)
of this Chapter in relation to import or export of any specified goods
or services or technology, he shall, without prejudice to any penalty
which may be imposed on him, be punishable with imprisonment for a term
stipulated in the Weapons of Mass Destruction and their Delivery Systems
(Prohibition of Unlawful Activities) Act, 2005. |
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(3) No court shall take
cognizance of any offence punishable under this Chapter without the
previous sanction of the Central Government or any officer authorised in
this behalf by the Central Government by general or special order.”. |
40 21 of 2005 |
Amendment
of title of
Chapter V. |
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16. In the principal Act,
in sub-heading below “CHAPTER V”, for the word “REVISION”, the word
“REVIEW” shall be substituted. |
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| Amendment of section 15. |
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17. In section 15 of the
principal Act, in sub-section (2), in the proviso, for the word
“goods”, the words and brackets “the goods (including the goods
connected with services or technology)” shall be substituted. |
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18. For section 16 of the
principal Act, the following shall be substituted, namely:— |
Substitution of new section for section 16. |
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16. “The Central
Government, in the case of any decision or order made by the Director
General, or the Director General in the case of any decision or order
made by any officer subordinate to him, may on its or his own motion or
otherwise, call for and examine the records of any proceeding, for the
purpose of satisfying itself or himself, as the case may be, as to the
correctness, legality or propriety of such decision or order and make
such orders thereon as may be deemed fit:
Provided that no decision or order shall be varied under this section so
as to prejudicially affect any person unless such person— |
Review. |
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(a) has, within a period
of two years from the date of such decision or order, received a notice
to showcause why such decision or order shall not be varied; and
(b) has been given a reasonable opportunity of making representation
and, if he so desires, of being heard in his defence.”. |
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19. In section 17 of the
principal Act, for the word “Revision” wherever it occurs, the
word “Review” shall be substituted. |
Amendment of section 17. |
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20. After
section 18 of the principal Act, the following shall be inserted,
namely:— |
Insertion of new section 18A. |
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“18A. The
provisions of this Act shall be in addition to, and not in derogation
of, the provisions of any other law for the time being in force.”. |
Application of other laws not barred. |
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21. In
section 19 of the principal Act, in sub-section (2), —
(a) in clause (b), for the word “licence”, the words “licence,
certificate, scrip or any instrument bestowing financial or fiscal
benefits” shall be substituted;
(b) for clause (c), the following clause shall be substituted, namely:— |
Amendment of section 19. |
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“(c) the
class or classes of goods (including the goods connected with service or
technology) for which a licence, certificate, scrip or any instrument
bestowing financial or fiscal benefits may be granted under sub-section
(2) of section 9;”;
(c) in clauses (d) and (e), for the word “licence”, the words “licence,
certificate,
scrip or any instrument bestowing financial or fiscal benefits” shall be
substituted; |
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(d) after
clause (e), the following clause shall be inserted, namely:— |
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“(ea) the
matter in which goods the import of which shall be subject to
quantitative restrictions, may be identified and the manner in which the
causes of serious injury or causes of threat of serious injury in
relation to such goods may be determined under sub-section (3) of
section 9A;”; |
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(e) in
clause (f), for the word “goods”, the words and brackets “goods
(including the goods connected with the service or technology)” shall be
substituted; |
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(f) in
clause (g), for the words, brackets and figures “sub-section (3) of
section 11”, the words, brackets and figures “sub-section (4) of the
section 11” shall be substituted; |
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(g) for
clause (h), the following clause shall be substituted, namely:— |
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“(h) the
requirements and conditions subject to which goods (including the goods
connected with the service or technology) and conveyances shall be
liable to confiscation under sub-section (8) of section 11;”;
(h) for clause (i), the following clause shall be substituted, namely:— |
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45 |
“(i) the
manner in which and the conditions subject to which goods (including the
goods connected with the service or technology) and conveyances may be
released on payment of redemption charges under sub-section (9) of
section 11.”. |
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