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FOREIGN TRADE (DEVELOPMENT AND REGULATION) AMENDMENT ACT 2010

THE FOREIGN TRADE (DEVELOPMENT AND REGULATION) AMENDMENT
ACT, 2010
NO. 25 OF 2010
[19th August, 2010.]
An Act to amend the Foreign
Trade (Development and Regulation) Act, 1992.
BE it enacted by Parliament in the Sixty-first Year of the Republic of India as
follows:--
1. Short title and commencement. - (1) This Act may be called the Foreign Trade
(Development and Regulation) Amendment Act, 2010.
(2) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint:
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.
2. Amendment of section 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,--
(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--
(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;
(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;
(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:
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.';
(b) after clause (i), the following clauses shall be inserted, namely:--
`(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;
(k) "service supplier" means any person who supplies a service and who
intends to take benefit under the
foreign trade policy;
(l) "specified goods or services or technology" means the goods or
services or technology, the export, import,
transfer, re-transfer, transit and
trans-shipment 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;
(m) "technology" means
any information (including information embodied
in software), other than information in the public domain, that is capable of
being
used in--
(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.
Explanation.-- For the purpose of this clause--
(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;
(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.'.
3. Amendment of title of Chapter II. - 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.
4. Amendment of section 3. - In section 3 of the principal Act,--
(a) in sub-section (2),--
(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:
--
"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:--
"(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.".
5. Substitution of new section for section 5. - For section
5 of the principal Act, the
following section shall be substituted, namely:--
"5. Foreign Trade Policy. - 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:
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.".
6. Amendment of section 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.
7. Amendment of section 7. - In section 7 of the
principal Act, the following
proviso shall be inserted, namely:--
"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.".
8. Amendment of section 8. - IN SECTION 8 OF THE
PRINCIPAL ACT,--
(A) FOR SUB-SECTION (1), THE FOLLOWING SUB-SECTION SHALL BE SUBSTITUTED, NAMELY:
--
"(1) WHERE--
(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
(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
(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,
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.";
(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.
9. Amendment of section 9. - IN SECTION 9 OF THE PRINCIPAL ACT,--
(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:--
"(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.".
10. Insertion of new Chapter IIIA. - AFTER CHAPTER III OF THE
PRINCIPAL ACT, THE
FOLLOWING CHAPTER SHALL BE INSERTED, NAMELY:--
CHAPTER IIIA
QUANTITATIVE RESTRICTIONS
9A. Power of Central Government
to impose quantitative restrictions. - (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:
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
frommore 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.
(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:
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.
(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.
(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
(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;
(d) "threat of
serious injury" means a clear and imminent danger of serious
injury.'.
11. Amendment of section 10. - In section 10 of the principal
Act, for sub-section
(1), the following sub-section shall be substituted, namely:--
"(1) The Central Government may, by notification
in the Official Gazette,
authorise any person for the purposes of exercising such powers with respect to,--
(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;
(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,
subject to such requirements and conditions and with the approval of such officer, as may
be prescribed:
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.
12. Subsitution of new section for section 11. - For section 11 of the principal Act,
the following section shall be substituted,
namely:--
11. Contravention of provisions of this Act, rules, orders and foreign trade
policy. - (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.
(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 thereunder
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.
(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.
(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.
(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:--
(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
(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
(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
(d) if the amount cannot be recovered from such person in the manner
provided in clauses (a), (b) and (c),--
(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
(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
incase, 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.
(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.
(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.
(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.
(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."
13. Insertion
of new sections 11A and 11B. - After section 11 of the principal Act,
the following sections shall be inserted, namely:--
"11A. Crediting
sums realised by way of penalties in Consolidated Fund of
India. - All sums realised by way of penalties under this Act shall be
credited to the
Consolidated Fund of India.
11B. Empowering Settlement Commission for regularisa-tion of export obligation
default.
- 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.".
14. Amendment of section 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.
15. Insertion of a new Chapter IVA. - After Chapter IV of the principal Act,
following Chapter shall be inserted, namely:--
"CHAPTER IVA
CONTROLS ON EXPORT OF SPECIFIED GOODS, SERVICES AND TECHNOLOGY
14A. Controls
on export of specified goods, services and techno-logy. - (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.
(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.
(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
(b) shall apply to any goods, services or technologies with such
exceptions, modifications and adaptations
as may be specified in the
notification.
14B. Transfer controls. - (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.
(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.
14C. Catch-all controls. - 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.
14D.
Suspension or cancellation of a licence. - 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.
14E. Offences and penalties. - (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.
(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.
(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.".
16. Amendment of title of Chapter V. - In the principal Act, in sub-heading below
"CHAPTER
V", for the word "REVISION", the word "REVIEW" shall be substituted.
17. Amendment of section 15. - 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.
18. Substitution of new section for section 16. - For section 16 of the principal
Act,
the following shall be substituted, namely:--
16. Review. - "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--
(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.".
19. Amendment of section 17. - In section 17 of the principal Act, for the word
"Revision" wherever it occurs, the word "Review" shall be substituted.
20. Insertion of new section 18A. - After section 18 of the principal Act, the
following shall be inserted, namely:--
"18A. Application
of other laws not barred. - 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.".
21. Amendment of section 19. - 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:--
"(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;
(d) after clause (e),
the following clause shall be inserted, namely:--
"(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;";
(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;
(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;
(g) for clause (h), the following clause shall be substituted, namely:--
"(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:--
"(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.".
V. K. BHASIN,
Secy. to the Govt. of India.