A system of exchange control was first time introduced through a series of rules under the Defense of India Act, 1939 on temporary basis. The foreign crises persisted for a long time and finally it got enacted in the statute under the title “Foreign Exchange Regulation Act, 1947”. Subsequently, this act was replaced by the Foreign Exchange Regulation Act, 1973(FERA) which was came into force with effect from January 1, 1974 and regulating foreign exchange for more than 26 years under this Act.
In 1991 Government of India initiated the policy of economic liberalization. After this foreign investment in many sector were permitted in India. In 1997, Tarapore committee on Capital Account Convertibility, constituted by the Reserve Bank of India, recommended change in the legislative framework governing foreign exchange transactions. Accordingly, the Foreign Exchange Regulation Act, 1973 was repealed and replaced by the new Foreign Exchange Management Act, 1999 (FEMA) with effect from June 01, 2000. Under FEMA the emphasis was on management of foreign exchange.
APPLICABILITY OF FEMA
The Foreign Exchange Management Act, 1999 was enacted to consolidate and amend the law relating to foreign exchange with the objective of facilitating external trade and for promoting the orderly development and maintenance of foreign exchange market in India. FEMA extends to the whole of India. The Act also applies to all branches, offices and agencies outside India owned or controlled by a person resident in India and also to any contravention committed there under outside India by any person to whom this Act is applies.
The overall structure of Foreign Exchange Management Act, 1999is covered by legislations, rules and regulations. These legislations, rules and regulations relating to Foreign Exchange Management Act, 1999, can be divided in to the followings:
FEMA contains 7 Chapters divided into 49 sections of which 12 sections cover operational part and the rest 37 sections deal with contraventions, penalties, adjudication, appeals, enforcement directions, etc. FEMA makes provisions for dealings in foreign exchanges. Broadly, all current account transactions are free. However, Central Government can impose reasonable restrictions by issuing rules. The capital account transactions will be regulated by RBI/Central Government for which necessary circulars/notifications will have to be issued under FEMA.
All chapters of FEMA divided into 49 sections. Besides the FEMA, there are 5 Rules and 23 regulations under the Act which help in implementation of the Act are classified here:
Chapter I : Preliminary (Section 1 &2)
Chapter II : Regulation and Managements of Foreign Exchange (Section 3 -9)
Chapter III : Authorised Person (Section 10-12)
Chapter IV: Contraventions and Penalties (Section 13-15)
Chapter V: Adjudication and Appeal (Section 16-35)
Chapter VI: Directorate of Enforcement (Section 36-38)
Chapter VII: Miscellaneous (Section 39-49)
The Rules made by Central Government under section 46 of FEMA are:
1. Foreign Exchange Management (Encashment of Draft, Cheque, Instruments and Payment of Interest) Rules, 2000
2. Foreign Exchange Management (Authentication of Documents) Rules, 2000
FEMA in itself is not an independent and isolated law. The provisions of FEMA are spread at different place and so there are regulatory bodies. Reserve Bank of India makes Regulations for FEMA and the Rules are made by Central Government. Authorities governing the enforcement of FEMA are:
· Foreign Exchange Department of Reserve Bank of India.
· Directorate of Enforcement, Department of Revenue, Ministry of Finance.
· Capital Market Division, Department of Economic Affairs, Ministry of Finance.
· Foreign Trade Division, Department of Economic Affairs, Ministry of Finance.
Machinery responsible for various aspect of FEMA is:
1. Enforcement Directorate:To investigate provisions of the Act, the Central Government, have established the Directorate of Enforcement with Directors and other officers as officers of the Enforcement.
2. Adjudicating Authorities: The Adjudicating Authorities will issue a notice to the person who has contravened the provisions of the Foreign Exchange Management Act, Rules, Regulations, Notifications or any directions issued by the RBI.
3. Special Director (Appeals): Any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director of Enforcement or a Deputy Director of Enforcement can prefer an appeal to the Special Director (Appeals.)
4. Appellate Tribunal: Any person aggrieved by an order made by the adjudicating Authority, or the Special Director (Appeals) can prefer an appeal to the Appellate Tribunal.
FEMA envisages that RBI shall have controlling role in management of foreign exchange. Since RBI cannot directly handle foreign exchange transactions, it authorizes “Authorised Persons” to deal in foreign exchange as per direction issued by RBI.RBI is empowered to issue direction to such “Authorised Persons”. These Directions are issued through AP(DIR) Circulars. (AP stand for Authorised Person and DIR stand for Directions)
I already went through it few hours ago before replying to you, but it is not clear about kind of permission required for the above said lease. If you become aware of any Notifications regarding the same then please make me aware of it. Anyway thanks for your response.
Company Secretary and Compliance Officer