Regulatory Frameworks of Indias Industrial Policies

Regulatory Frameworks of Indias industrial PoliciesCHAPTER 3THE REGULATORY FRAMEWORK3.1 INTRODUCTION THE PARADIGM SHIFTThe industrial form _or_ system of government pursued in India for the disunite four decades afterward independence was based on the socialist school of thought that India embraced, break amodal valuely to alienate it egotism from the compound past and more so owe to the obvious achievements of the socialist movement in the post world-war two period. Thus, by means of a Resolution dated April 6, 1948 the organization narrow down out the policy to be pursued in the Industrial field, wherein to secure continuous augment in output and equitable distribution, the country opted for a centrall(a)y planned development strategy, with the give in playing a major role. For this purpose, the National Planning Commission was pointed for planning, co-ordination, integration of national frugal application and to formulate programmes of development and to secure the ir execution.On October 30, 1956, at the beginning of the Second Five Year Plan, the disposal adopted a New Industrial policy Resolution, which reiterated the above objective and classified industries into iii categories as followsSchedule A were those industries whose future development was the scoop shovel responsibility of the raise. Schedule B consisted of industries which would be progressively state-owned, wherein the state would take initiative in establishing impertinently labors and private enterprise would be expected to supplement the effort of the state. Schedule C included all remaining industries whose further development was left over(p) to the initiative and enterprise of the private field. This led to the expansion of the public empyrean in India, whose sh ar in gross domestic intersection increased from 9.91% in 1960-61 to 27.12% in 1988-89. However, the stir of concern was that a large hail of public orbit enterprises particularly the Non-departme ntal non- monetary enterprises were making losses and had to be subsidized.Industrial to a lower headtakings in the private sector were render to control and regulation like the Industries Development and Regulation (IDR) routine (1951) and were expected to align their duty strategy and goals with the tolerant economic and social objectives of the State. The IDR vested with the government inquireed powers to regulate and control existing and future undertakings in a number of specified industries. A license was indispensable for establishing a newfound undertaking, taking up the manufacture of a new article in an existing unit, effecting substantial expansion, carrying on the care of an existing undertaking and changing the location of an existing unit. A letter of Intent (LOI) was issued for sectors/activities under compulsory license under the IDR Act, 1951. The LOI was converted into Industrial License on end of specified formalities.Further, to prevent monopolies and concentration of economic power in the hands of private sector, in 1969, the Monopoly and Restrictive Trade Practices Act (MRTP) was enacted. All these regulations and controls led to increase in bureaucracy, inhibiting enterprise and industry.Also, given the state of the economy with bound resources, scarce tipital and vast population base, the development ideology revolved around the legal opinion of conservation and optimum utilization of heavy(p) so as to maximize employment (and non necessarily output). Deployment of new capital was strictly controlled and regulated so as to meet social need and maximize employment. Further, once the capital was committed to any(prenominal) activity and a certain employment was created, it was protected at any cost even if it was non-viable in the face of market forces.Labour intensive applied science and employment generation were also the rationale behind the initial advocacy of puny-scale industry. However, later, when it was real ized that new-fashi peerless(prenominal)d small scale industry was not necessarily labour intensive, the argument turned to encouraging the entry of new entrepreneurs in industry. A range of products were uncommunicative for exclusive performance in the small-scale sector, eliminating potential competition from long suit and large firms. There were no pressures on the smaller firms to improve technology, update production techniques or reduce cost modernize or specialize. There was an inherent disincentive to grow beyond a certain size, if they had to continue production of a mute product. Thus economies of scale could not be leveraged and market distortions were widespread.Until 1991, the guiding principle of Indias industrial policy was self reliance, which focused on indigenous production and reduced dependence on contrasted capital and immaterial technology ir leverive of the cost and/or quality. This did premise to the creation of a large industrial base, diversificati on of products, ownership and location. But in the absence of domestic competition, export rivalry and competition of imports, industry grew with a lack of cost and quality consciousness, lead to slow growth, increasing deficits and debt and finally the crisis in 1991 which paved the way for economic reforms in India. Some of the components of the reform mail boat includeReforms in Industrial Policies in terms of delicensing of most industries and deregulation of industries earlier monopolized by the public sectorLiberalisation of foreign trade through and through steady reduction in tariffs and liberation up of the foreign enthronization limits in most industries combined with measures to attract FDI into the countryMacroeconomic stabilization through substantial reduction in financial deficits and governments draft on the private sectors savings otherwise reforms including those in taxation, financial sector, insurance sector, public sector, and so onDuring the at long last decade and half, these reforms project reoriented India from a slow-paced, centrally directed and highly controlled economy to a strong, vibrant, fast-growing and market-friendly one. There straight exists an internationally competitive private sector with varied scope for quislingisms and adjunction ventures and a facilitating regulatory modeling that is evolving to match the international standards.This Chapter seeks to give an overview of the broad framework of regulations governing business in India particularly in the context ofIndustrial insurance abroad coronation indemnityAnti Trust RegulationsLabour LawsProtection of Intellectual Property RightsOther economical Laws Procedures3.2 INDUSTRIAL POLICYThe Industrial Policy Resolution 1956, substantially augmented through the statement of Industrial Policy 1991 and subsequent announcements which liberalized the economy tenders the basic framework for the overall industrial policy of the establishment of India.3.2.1 Industrial LicensingThe requirement of obtaining an industrial license for manufacturing has been abolished for all projects except for a short list of industries connected with certificate and strategic concerns ( reserved for public sector), social reasons, dubious chemicals and overriding environmental concerns. The list of items requiring compulsory licensing is reviewed on an ongoing butt. The stage of LOI has been dispensed with for all sectors/activities except for items reserved for SSI sector and an Industrial License is now issued without going through the stage of LOI. The following industries require compulsory license-Alcoholics drinksCigarettes and tobacco productsElectronic, aerospace and defense equipmentExplosivesHazardous chemicals such(prenominal) as hydrocyanic acid, phosgene, isocynates and di-isocynates of hydro carbon and derivatives, etc.Non-small-scale industrial units or units in which foreign righteousness is more than 24% require license to manufactu re items reserved from small scale sector. All former(a) industries are exempt from licensing and no industrial boon is demand. Entrepreneurs are only required to file an Industrial Entrepreneurs Memorandum (IEM) with the secretariate for Industrial Assistance (SIA), providing information on new projects and substantial expansions.There are however, certain locational restrictions in metropolitan areas. No industrial thanksgiving is required from the establishment for locations right(prenominal) 25 kms of the outskirt of cities having a population of more than one million except for those industries where industrial licensing is compulsory. Non-polluting industries such as electronics, computer software packet and printing cigaret be dictated at bottom 25 kms of the periphery of cities with more than one million population. Permission to other industries is permited in such locations only if they are located in an industrial area so designated introductory to 1991. Zon ing and Land Use Regulations as well as environmental Legislations have to be followed.Appropriate incentives and investment fundss in enabling radical are provided to promote dispersal of industry particularly to the rural and backward areas and to reduce over-crowding in cities. Recently, the Government approved a package of fiscal incentives and other concessions for the North East Region namely the North East Industrial and enthronisation Promotion Policy (NEIIPP), 2007, effective from 1.4.2007.Also, under the broad framework of the national industrial policy, different Indian States announce their respective Industrial Policies periodically, which highlight the areas in which the State would focus on and provide incentives to attract investment, the various sector location specific schemes offered to private investors, the plans for development of enabling infrastructure, opportunities for public-private- fusion, etc.3.2.2 Policies for PrivatisationThe post 1991 liberalisa tion process brought with it deregulation of trade and industry, dismantling of bureaucratic controls, technological development and financial sector reforms. Privatising some of the activities which heretofore were the exclusive domain of public sector also became part of this initiative to get on enterprise and professional management of resources to enhance economic growth and competitiveness. Revolutionary policy measures were undertaken to encourage private appointment in sectors like telecom, information broadcasting, power, ports, airports, situateing, etc. Over the old age, the government has reduced the number of industries reserved for the public sector to the two which are deemed significant from gage and strategic perspective, viz., Atomic energy and Railways.However, in the last few years the railways announced opening up of its containerized military operations to other private and public sector companies, thitherby ending the monopoly enjoyed by the Container mass of India (CONCOR). Interested companies could avail of the dispatch-specific or all-India permission by paying a registration fee which is valid for an operation period of 20 years (further extendible by 10 years). There is freedom to decide the tariffs to be charged to the customers for various operate and also the spill norms involve transfer of the operational writes to some other eligible operator with the railway sycophancy.3.2.3 Policies for comminuted Scale SectorThe provisions in the Industrial Policy Statement of 1991 and the subsequent policies are aimed at back up the Small Scale Industries (SSI) sector though various measures and packages focusing not only on policy of backlog but also on harm and purchase preference policy for marketing SSI products, credit and fiscal livelihood to SSIs, incarnate for cluster based development, technology upgradation, etc.The IDR Act 1951 provided for the reservation of items for exclusive manufacture in SSI sector p rimarily with the objectives of increasing production of consumer goods in the small scale sector and railroad siding of employment opportunities. In 1967, 47 items were reserved for exclusive manufacture in the small scale sector. This number was increased to 836 items in 1989. However, since 1997, a large number of items were dereserved from the list in the phased manner. As of treat 2007, only 114 items are reserved for exclusive manufacture in the small scale sector.In addition to the policy of reservation, the Government has initiated various measures offering support for Cluster based Development, Technologies and Quality Upgradation, Marketing, Entrepreneurial and Managerial Development and Schemes for Empowerment of Women Owned Enterprises.Further, with a view to allay the development of micro, small and medium enterprises (MSME), the Micro, Small and Medium Enterprises Act 2006, was implemented. The Act provides the new classification of each category of enterprises. As per the Act, MSME are defined as followsin the case of the enterprise occupied in the manufacture or production of goods pertaining to any industry specified in the first schedule to the IDR Act 1951 a micro enterprise is the one where the investment in adjust and machinery does not exceed twenty five lakh rupees.a small enterprise is one where the investment in plant and machinery is more than twenty five lakh rupees but does not exceed five crore rupees ora medium enterprise is one in which the investment in plant and machinery is more than five crore rupees but does not exceed ten crore rupeesin the case of enterprises occupied in providing or rendering of services a micro enterprise is one where the investment in equipment does not exceed ten lakh rupeesa small enterprise is one in which the investment in equipment is more than ten lakh rupees but does not exceed two crore rupees ora medium enterprise is where the investment in equipment is more than two crore rupees but does n ot exceed five crore rupeesIn February 2007, the Government announced a package for promotion of the SSI sector as follows denotation Support The package aims at increasing the number of beneficiaries of the credit provided by the Small Industries Development Bank of India (SIDBI) by 50 lakhs, over five years beginning from 2006-07. For this purpose, the Government has provided assign to SIDBI to augment its Portfolio Risk Fund. Besides, in an attempt to increase demand-based small loans to micro enterprise, the Government announced a provision of grant to SIDBI to create a Risk Capital Fund (as a pilot scheme in 2006-07). The eligible loan limit under the Credit take in charge Fund Scheme has been raised to Rs. 50 lakh. The credit guarantee cover has also been raised from 75% to 80% for micro enterprises for loans upto Rs. 5 lakhs.Fiscal support The Government has increased the General Excise Exemption (GEE) limit from Rs. 100 lakh to Rs. 150 lakhs since April 2007. It further p roposes to break down the eligibility of extending the time limit for payment of delete duty by micro and small enterprises and extending the GEE benefits to small enterprises on their graduation to medium enterprises for a limited period.3.3 FOREIGN INVESTMENT POLICYIn recognition of the importance of of foreign direct investment as an instrument of technology transfer, augmentation of foreign interchange reserves and globalization of the Indian economy, the Government of India revamped its foreign investment policy as part of the reform process.3.3.1 exotic Direct enthronementForeign Direct Investment (FDI) regime in India was increasingly liberalized during ni acquities (more particularly post 1996) and today India has the most liberal and trans elevate policies on FDI among the emerging economies, with restrictions on foreign investments cosmos removed and procedures simplified. Some of the prominent features of the FDI policy in India are elucidated belowThe acclaim mec hanism for FDI has a two tier system.Under the self-moving approval travel guidebook, companies can issue shares and receive inbound remission of sintances for investment in areas identified and upto the limits of foreign equity prescribed, with a reporting requirement, deep down a period of 30 days. In these sectors, investment could be do without previous approval of the central government.Although, in case of the machine-controlled route, it is no longer obligatory to obtain the in principle permission from Reserve bank of India (run batted in) before receiving overseas investment or for issuing shares to foreign investors, the partnership, would, however, have to make a report to the RBI within 30 days after issue of shares to the foreign investors.Proposals for investment in public sector units and also for Special Economic Zones (SEZs) / Export lie Units (EOUs)/ Export Processing Zones (EPZs) qualify for automatic approval subject to satisfaction of certain prescribed sector specific parameters.FDI upto 100% is permitted under the automatic route for setting up Industrial Parks. Proposals for FDI/NRI investment in Electronic Hardware Technology Park (EHTP) and Software Technology Park (STP) Units are eligible for approval under the automatic route, except for those requiring preceding approval of the Central Government (as discussed below).FDI in sectors that are not covered under the automatic route requires prior approval of the Central Government. Activities/sectors require prior approval of the Government for FDI in the following circumstances-Activities/items that require an industrial licenseProposals in which the foreign married person has an existing financial/ proficient collaboration in India in the same field (except in IT and mining sector)All proposals travel distant notified sectoral policy/CAPSProposals in which more than 24% foreign equity is proposed to be inducted for manufacture of items reserved for the Small Scale Sector The approval is disposed(p) by Foreign Investment Promotion Board (FIPB), which is a peculiarly empowered board set up for the purpose, chaired by the Secretary, Union Ministry of finance.Proposals for FDI could be sent to the FIPB Unit, Department of Economic Affairs, Ministry of Finance or through any of Indias diplomatical missions abroad. FIPB has the flexibility to examine all proposals in totality, free from predetermined parameters.Recommendations of FIPB regarding all proposals falling in the non-automatic route and involving an investment of Rs.6 billion or less are considered and approved by the Finance Minister. objects with investment greater than this value are submitted by the FIPB to the Cabinet commissioning on Economic Affairs for approval. undeniable regulatory approvals from the state governments and local authorities for construction of building, water, environmental headway, etc. need to be acquired after the grant of approval for FDI by FIPB or for the secto rs falling under automatic route. integrity window clearance facilities and investor escort services are available in various states to simplify the approval process for new ventures.Decisions on all foreign investments are usually taken within 30 days of submitting the application.In cases where captain investment is made in convertible foreign exchange, free repatriation of capital investment and profits thereon is permitted.Sectors prohibited for FDI includeRetail trading (except Single Brand Product retailing)Atomic dynamismLottery BusinessGambling and Betting3.3.1.1 Investment in SEZsIn order to enhance competitiveness of Indian exports and attract investment in these sectors, Indias Foreign Trade Policy promotes the setting up of SEZs and thus provides for a hassle-free environment with world-class institutional and physical infrastructure and supporting logistics. Some of the existing EPZs/FTZs have also been converted into SEZs. All the State Governments have been advise d to give priority to waste and barren background for acquisition purposes. According to the total waste product Land area surveyed by the Ministry of Forest, 5,52,692.26 hectares was available for such purpose.FDI upto 100% is permitted under the automatic route for setting up of SEZ. Proposals not covered under automatic route require approval from FIPB. The policy provides for setting up of SEZ in the public, private or joint sectors or by state governments. These could be product specific or multi-product SEZs. Designated exempt enclaves are treated as foreign territory for trade operations and duties and tariffs, and duty-free goods need to be utilised within the approved period. The permitted activities cover an array of manufacturing and services like production, processing, assembling, reconditioning, re-engineering, packaging, trading, etc.Proposals for setting up units in SEZ, other than those requiring industrial license are approved by the Development Commissioner (DC) . The approval for those requiring industrial license is granted by the DC after receiving clearance from the Board of Approval. The Letter of Permission (LOP)/Letter of Intent (LOI) issued by the DC is construed as a license for all purposes, including procurement of raw material and consumables either directly or through a canalising agency. The LOP/LOI of necessity to inform the items of manufacture/service activity, annual capacity, projected annual export for the first year in dollar terms, Net Foreign Exchange shekels (NFE), limitations, if any, regarding sale of finished goods, by products and rejects in the DTA and such other matter as may be necessary and also impose such conditions as may be required.According to the policy, SEZ units have to be positive net foreign exchange earners and the performance of these units would be monitored by a unit approval committee consisting of the DC and the Customs Authority.3.3.2 Entry Options for Foreign InvestorsA foreign company h as the option to set up business operations in India as an Incorporated Entity or as an Un co-ordinated Entity.An Incorporated Entity would be a company registered under Companies Act, 1956, through joint ventures or wholly owned subsidiaries. Foreign equity in such Indian companies can be up to 100% depending on the requirements of the investor, subject to any equity caps prescribed in respect of area of activities under the FDI policy. Funding could be via equity, debt (both foreign and local) and internal accruals.For registration and incorporation, an application has to be filed with the Registrar of Companies (ROC). once a company has been duly registered and incorporated as an Indian company, it is subject to Indian laws and regulations as applicable to other domestic Indian companies. Companies in India can be incorporated as a private company or a public company.In comparison with branch and linkup patchs (discussed subsequently), a subsidiary company company provides ma ximum flexibility for conducting business in India. However, the exit procedure norms of such companies are relatively more cumbersome.An Unincorporated Entity could be Liaison persona/interpreter Office or confinement Office or secernate Office. Such offices can undertake activities permitted under the Foreign Exchange Management (Establishment in India of arm Office of other place of business) Regulations, 2000. They are also governed by the Companies Act 1956, which contains special provisions for regulating such entities.3.3.2.1 Liaison Office/Representative OfficeThe role of a liaison office is primarily toCollect information about the marketDisseminate information about the company and its products to future Indian customersPromote exports/imports from/to IndiaFacilitate technical collaboration between parent company and companies in IndiaA liaison office cannot undertake any moneymaking(prenominal) activity directly or indirectly and cannot, therefore, earn any income i n India. Approval for establishing a liaison office in India is granted by the RBI.3.3.2.2 take in OfficeForeign Companies planning to make out specific projects in India can set up temporary project/site offices in India. RBI has granted general permission to foreign entities to establish Project Offices subject to specified conditions. Such offices cannot undertake or carry on any activity other than the activity relating and incidental to execution of the project. Project Offices may remit outside India the surplus of the project on its completion, general permission for which has been granted by the RBI.Since a Project Office is an extension of the foreign incorporation in India, it is taxed at the rate applicable to foreign corporations.3.3.2.3 separate OfficeForeign companies engaged in manufacturing and trading activities abroad are allowed to set up Branch Offices in India for the following purposes Export/Import of goodsRendering professional or consultancy servicesCarry ing out research work, in which the parent company is engaged.Promoting technical or financial collaborations between Indian companies and parent or overseas group companyRepresenting the parent company in India and acting as buying/ selling agents in IndiaRendering services in Information Technology and development of software in IndiaRendering technical support to the products supplied by the parent/ group companiesForeign airline/shipping companyBranch Offices established with the approval of RBI, are allowed to remit outside India profit of the branch net of applicable taxes (which are at rates applicable to foreign companies) however, subject to RBI guidelines. Permission for setting up branch offices is granted by the RBI.Branch Offices could also be on stand alone basis in SEZ. Such Branch Offices would be isolated and restricted to the SEZ alone and no business activity/transaction would be allowed outside the SEZs in India, which include branches/subsidiaries of its pare nt office in India. No approval shall be necessary from RBI for a company to establish a branch/unit in SEZs to undertake manufacturing and service activities, subject to the conditions thatthey function in sectors in which 100% FDI is permittedthey comply with part XI of the Companys Act (Section 592 to 602)function on a stand alone basisin the event of convoluted up of business and for remittance of winding-up proceeds, the branch should approach an authorized dealer in foreign exchange in the with documents required as per FEMA.A Branch Office provides the advantage of ease in operations and an uncomplicated closure. However, since the operations are strictly regulated by exchange control guidelines, a Branch may not provide a foreign corporation with most optimum structure for its expansion/diversification plans.Box 3.1Investment in a firm or a proprietorship Concern by NRIsA Non-Resident Indian or a Person of Indian Origin (PIO) resident physician outside India may invest by way of contribution to the capital of a firm or a proprietary concern in India on non-repatriation basis providedi) Amount is invested by inward remittance or out of NRE/FCNR/NRO account maintained with Authorised Dealers of RBI (AD)ii) The firm or proprietary concern is not engaged in any outlandish/plantation or real estate business i.e. dealing in land and immovable property with a view to earning profit or earning income there from.iii) Amount invested shall not be eligible for repatriation outside India.NRIs/PIO may invest in sole proprietorship concerns/ partnership firms with repatriation benefits with the approval of Department of Economic Affairs, Government of India /RBI.Box 3.2Investment in a firm or a Proprietary Concern by Other than NRIsNo person resident outside India other than NRIs/PIO shall make any investment by way of contribution to the capital of a firm or a proprietorship concern or any association of persons in India. The RBI may, on an application made to it, permit a person resident outside India to make such investment subject to such terms and conditions as may be considered necessary.3.3.3 Financing Options for CorporatesCompanies registered in India can raise cash in hand through Share Capital or Debentures and Borrowings.3.3.3.1 Share CapitalThe Companies Act, 1956 allows for two kinds of share capital, viz., Preference share capital (preferred stock) and equity share capital (with/without ballot rights). Apart from this, private companies which are not subsidiaries of public company have the option of raising funds through Venture Capital.The issue of shares to the public is governed by the guidelines issued by the Securities Exchange Board of India (SEBI) the body that regulates and oversees the functioning of Indian Stock markets and the RBI.A company issuing shares or debentures has to comply with SEBI disclosure requirements with regards to its prospectus. The prospectus has to be approved by the stock exchange and s crutinized by SEBI and then filed with the Registrar of Companies.Indian companies having foreign investment approval through FIPB route do not require any further clearance from RBI for receiving inward remittance and issue of shares to the foreign investors. The companies are required to notify the concerned Regional office of the RBI of receipt of inward remittances within 30 days of such receipt and within 30 days of issue of shares to the foreign investors or NRIs.Equity participation by international financial institutions such as ADB, IFC, CDC, DEG, etc., in domestic companies is permitted through automatic route, subject to SEBI/RBI regulations and sector specific cap on FDI.In all other cases a company may issue shares as per the RBI regulations. Other relevant guidelines of SEBI and RBI, including the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, wherever applicable, would need to be followed.The Companies Act does not specify the nominal value of shares. According to RBI/SEBI Guidelines, in case of listed companies, the issue price shall be either at the aveRegulatory Frameworks of Indias Industrial PoliciesRegulatory Frameworks of Indias Industrial PoliciesCHAPTER 3THE REGULATORY FRAMEWORK3.1 INTRODUCTION THE PARADIGM SHIFTThe industrial policy pursued in India for the first four decades after independence was based on the socialist school of thought that India embraced, partly to alienate itself from the colonial past and more so owing to the obvious achievements of the socialist movement in the post world-war two period. Thus, through a Resolution dated April 6, 1948 the government set out the policy to be pursued in the Industrial field, wherein to secure continuous increase in production and equitable distribution, the country opted for a centrally planned development strategy, with the state playing a major role. For this purpose, the National Planning Commission was established for planning, co-ordination, integrat ion of national economic activity and to formulate programmes of development and to secure their execution.On October 30, 1956, at the beginning of the Second Five Year Plan, the Government adopted a New Industrial Policy Resolution, which reiterated the above objective and classified industries into three categories as followsSchedule A were those industries whose future development was the exclusive responsibility of the state. Schedule B consisted of industries which would be progressively state-owned, wherein the state would take initiative in establishing new undertakings and private enterprise would be expected to supplement the effort of the state. Schedule C included all remaining industries whose further development was left to the initiative and enterprise of the private sector. This led to the expansion of the public sector in India, whose share in GDP increased from 9.91% in 1960-61 to 27.12% in 1988-89. However, the cause of concern was that a large number of public sec tor enterprises particularly the Non-departmental non-financial enterprises were making losses and had to be subsidized.Industrial undertakings in the private sector were subject to control and regulation like the Industries Development and Regulation (IDR) Act (1951) and were expected to align their business strategy and goals with the broad economic and social objectives of the State. The IDR vested with the government necessary powers to regulate and control existing and future undertakings in a number of specified industries. A license was necessary for establishing a new undertaking, taking up the manufacture of a new article in an existing unit, effecting substantial expansion, carrying on the business of an existing undertaking and changing the location of an existing unit. A Letter of Intent (LOI) was issued for sectors/activities under compulsory license under the IDR Act, 1951. The LOI was converted into Industrial License on completion of specified formalities.Further, t o prevent monopolies and concentration of economic power in the hands of private sector, in 1969, the Monopoly and Restrictive Trade Practices Act (MRTP) was enacted. All these regulations and controls led to increase in bureaucracy, inhibiting enterprise and industry.Also, given the state of the economy with limited resources, scarce capital and vast population base, the development ideology revolved around the notion of conservation and optimum utilization of capital so as to maximize employment (and not necessarily output). Deployment of new capital was strictly controlled and regulated so as to meet social needs and maximize employment. Further, once the capital was committed to any activity and a certain employment was created, it was protected at any cost even if it was non-viable in the face of market forces.Labour intensive technology and employment generation were also the rationale behind the initial advocacy of small-scale industry. However, later, when it was realized t hat modern small scale industry was not necessarily labour intensive, the argument turned to encouraging the entry of new entrepreneurs in industry. A range of products were reserved for exclusive production in the small-scale sector, eliminating potential competition from medium and large firms. There were no pressures on the smaller firms to improve technology, update production techniques or reduce cost modernize or specialize. There was an inherent disincentive to grow beyond a certain size, if they had to continue production of a reserved product. Thus economies of scale could not be leveraged and market distortions were widespread.Until 1991, the guiding principle of Indias industrial policy was self reliance, which focused on indigenous production and reduced dependence on foreign capital and foreign technology irrespective of the cost and/or quality. This did lead to the creation of a large industrial base, diversification of products, ownership and location. But in the abs ence of domestic competition, export rivalry and competition of imports, industry grew with a lack of cost and quality consciousness, leading to slow growth, increasing deficits and debt and finally the crisis in 1991 which paved the way for economic reforms in India. Some of the components of the reform package includeReforms in Industrial Policies in terms of delicensing of most industries and deregulation of industries earlier monopolized by the public sectorLiberalisation of foreign trade through steady reduction in tariffs and freeing up of the foreign investment limits in most industries combined with measures to attract FDI into the countryMacroeconomic stabilization through substantial reduction in fiscal deficits and governments draft on the private sectors savingsOther reforms including those in taxation, financial sector, insurance sector, public sector, etc.During the last decade and half, these reforms have reoriented India from a slow-paced, centrally directed and high ly controlled economy to a strong, vibrant, fast-growing and market-friendly one. There now exists an internationally competitive private sector with varied scope for collaborations and joint ventures and a facilitating regulatory framework that is evolving to match the international standards.This Chapter seeks to give an overview of the broad framework of regulations governing business in India particularly in the context ofIndustrial PolicyForeign Investment PolicyAnti Trust RegulationsLabour LawsProtection of Intellectual Property RightsOther Economic Laws Procedures3.2 INDUSTRIAL POLICYThe Industrial Policy Resolution 1956, substantially augmented through the Statement of Industrial Policy 1991 and subsequent announcements which liberalized the economy provides the basic framework for the overall industrial policy of the Government of India.3.2.1 Industrial LicensingThe requirement of obtaining an industrial license for manufacturing has been abolished for all projects excep t for a short list of industries connected with security and strategic concerns (reserved for public sector), social reasons, hazardous chemicals and overriding environmental concerns. The list of items requiring compulsory licensing is reviewed on an ongoing basis. The stage of LOI has been dispensed with for all sectors/activities except for items reserved for SSI sector and an Industrial License is now issued without going through the stage of LOI. The following industries require compulsory license-Alcoholics drinksCigarettes and tobacco productsElectronic, aerospace and defense equipmentExplosivesHazardous chemicals such as hydrocyanic acid, phosgene, isocynates and di-isocynates of hydro carbon and derivatives, etc.Non-small-scale industrial units or units in which foreign equity is more than 24% require license to manufacture items reserved from small scale sector. All other industries are exempt from licensing and no industrial approval is required. Entrepreneurs are only re quired to file an Industrial Entrepreneurs Memorandum (IEM) with the Secretariat for Industrial Assistance (SIA), providing information on new projects and substantial expansions.There are however, certain locational restrictions in metropolitan areas. No industrial approval is required from the Government for locations outside 25 kms of the periphery of cities having a population of more than one million except for those industries where industrial licensing is compulsory. Non-polluting industries such as electronics, computer software and printing can be located within 25 kms of the periphery of cities with more than one million population. Permission to other industries is granted in such locations only if they are located in an industrial area so designated prior to 1991. Zoning and Land Use Regulations as well as Environmental Legislations have to be followed.Appropriate incentives and investments in enabling infrastructure are provided to promote dispersal of industry particul arly to the rural and backward areas and to reduce congestion in cities. Recently, the Government approved a package of fiscal incentives and other concessions for the North East Region namely the North East Industrial and Investment Promotion Policy (NEIIPP), 2007, effective from 1.4.2007.Also, under the broad framework of the national industrial policy, different Indian States announce their respective Industrial Policies periodically, which highlight the areas in which the State would focus on and provide incentives to attract investment, the various sector location specific schemes offered to private investors, the plans for development of enabling infrastructure, opportunities for public-private-partnership, etc.3.2.2 Policies for PrivatisationThe post 1991 liberalisation process brought with it deregulation of trade and industry, dismantling of bureaucratic controls, technological development and financial sector reforms. Privatising some of the activities which heretofore we re the exclusive domain of public sector also became part of this initiative to boost enterprise and professional management of resources to enhance economic growth and competitiveness. Revolutionary policy measures were undertaken to encourage private participation in sectors like telecom, information broadcasting, power, ports, airports, banking, etc. Over the years, the government has reduced the number of industries reserved for the public sector to the two which are deemed significant from security and strategic perspective, viz., Atomic energy and Railways.However, in the last few years the railways announced opening up of its containerized operations to other private and public sector companies, thereby ending the monopoly enjoyed by the Container Corporation of India (CONCOR). Interested companies could avail of the route-specific or all-India permission by paying a registration fee which is valid for an operation period of 20 years (further extendable by 10 years). There i s freedom to decide the tariffs to be charged to the customers for various services and also the exit norms involve transfer of the operational writes to another eligible operator with the railway approval.3.2.3 Policies for Small Scale SectorThe provisions in the Industrial Policy Statement of 1991 and the subsequent policies are aimed at supporting the Small Scale Industries (SSI) sector though various measures and packages focusing not only on policy of reservation but also on price and purchase preference policy for marketing SSI products, credit and fiscal support to SSIs, support for cluster based development, technology upgradation, etc.The IDR Act 1951 provided for the reservation of items for exclusive manufacture in SSI sector primarily with the objectives of increasing production of consumer goods in the small scale sector and widening of employment opportunities. In 1967, 47 items were reserved for exclusive manufacture in the small scale sector. This number was increa sed to 836 items in 1989. However, since 1997, a large number of items were dereserved from the list in the phased manner. As of March 2007, only 114 items are reserved for exclusive manufacture in the small scale sector.In addition to the policy of reservation, the Government has initiated various measures offering support for Cluster based Development, Technologies and Quality Upgradation, Marketing, Entrepreneurial and Managerial Development and Schemes for Empowerment of Women Owned Enterprises.Further, with a view to facilitate the development of micro, small and medium enterprises (MSME), the Micro, Small and Medium Enterprises Act 2006, was implemented. The Act provides the new classification of each category of enterprises. As per the Act, MSME are defined as followsin the case of the enterprise engaged in the manufacture or production of goods pertaining to any industry specified in the first schedule to the IDR Act 1951 a micro enterprise is the one where the investment in plant and machinery does not exceed twenty five lakh rupees.a small enterprise is one where the investment in plant and machinery is more than twenty five lakh rupees but does not exceed five crore rupees ora medium enterprise is one in which the investment in plant and machinery is more than five crore rupees but does not exceed ten crore rupeesin the case of enterprises engaged in providing or rendering of services a micro enterprise is one where the investment in equipment does not exceed ten lakh rupeesa small enterprise is one in which the investment in equipment is more than ten lakh rupees but does not exceed two crore rupees ora medium enterprise is where the investment in equipment is more than two crore rupees but does not exceed five crore rupeesIn February 2007, the Government announced a package for promotion of the SSI sector as followsCredit Support The package aims at increasing the number of beneficiaries of the credit provided by the Small Industries Development B ank of India (SIDBI) by 50 lakhs, over five years beginning from 2006-07. For this purpose, the Government has provided grant to SIDBI to augment its Portfolio Risk Fund. Besides, in an attempt to increase demand-based small loans to micro enterprise, the Government announced a provision of grant to SIDBI to create a Risk Capital Fund (as a pilot scheme in 2006-07). The eligible loan limit under the Credit Guarantee Fund Scheme has been raised to Rs. 50 lakh. The credit guarantee cover has also been raised from 75% to 80% for micro enterprises for loans upto Rs. 5 lakhs.Fiscal support The Government has increased the General Excise Exemption (GEE) limit from Rs. 100 lakh to Rs. 150 lakhs since April 2007. It further proposes to examine the eligibility of extending the time limit for payment of excise duty by micro and small enterprises and extending the GEE benefits to small enterprises on their graduation to medium enterprises for a limited period.3.3 FOREIGN INVESTMENT POLICYIn re cognition of the importance of of foreign direct investment as an instrument of technology transfer, augmentation of foreign exchange reserves and globalization of the Indian economy, the Government of India revamped its foreign investment policy as part of the reform process.3.3.1 Foreign Direct InvestmentForeign Direct Investment (FDI) regime in India was increasingly liberalized during 1990s (more particularly post 1996) and today India has the most liberal and transparent policies on FDI among the emerging economies, with restrictions on foreign investments being removed and procedures simplified. Some of the prominent features of the FDI policy in India are elucidated belowThe approval mechanism for FDI has a two tier system.Under the automatic approval route, companies can issue shares and receive inward remittances for investment in areas identified and upto the limits of foreign equity prescribed, with a reporting requirement, within a period of 30 days. In these sectors, in vestment could be made without prior approval of the central government.Although, in case of the automatic route, it is no longer necessary to obtain the in principle permission from Reserve bank of India (RBI) before receiving overseas investment or for issuing shares to foreign investors, the company, would, however, have to make a report to the RBI within 30 days after issue of shares to the foreign investors.Proposals for investment in public sector units and also for Special Economic Zones (SEZs) / Export Oriented Units (EOUs)/ Export Processing Zones (EPZs) qualify for automatic approval subject to satisfaction of certain prescribed sector specific parameters.FDI upto 100% is permitted under the automatic route for setting up Industrial Parks. Proposals for FDI/NRI investment in Electronic Hardware Technology Park (EHTP) and Software Technology Park (STP) Units are eligible for approval under the automatic route, except for those requiring prior approval of the Central Governm ent (as discussed below).FDI in sectors that are not covered under the automatic route requires prior approval of the Central Government. Activities/sectors require prior approval of the Government for FDI in the following circumstances-Activities/items that require an industrial licenseProposals in which the foreign collaborator has an existing financial/technical collaboration in India in the same field (except in IT and mining sector)All proposals falling outside notified sectoral policy/CAPSProposals in which more than 24% foreign equity is proposed to be inducted for manufacture of items reserved for the Small Scale SectorThe approval is granted by Foreign Investment Promotion Board (FIPB), which is a specially empowered board set up for the purpose, chaired by the Secretary, Union Ministry of Finance.Proposals for FDI could be sent to the FIPB Unit, Department of Economic Affairs, Ministry of Finance or through any of Indias diplomatic missions abroad. FIPB has the flexibility to examine all proposals in totality, free from predetermined parameters.Recommendations of FIPB regarding all proposals falling in the non-automatic route and involving an investment of Rs.6 billion or less are considered and approved by the Finance Minister. Projects with investment greater than this value are submitted by the FIPB to the Cabinet Committee on Economic Affairs for approval.Necessary regulatory approvals from the state governments and local authorities for construction of building, water, environmental clearance, etc. need to be acquired after the grant of approval for FDI by FIPB or for the sectors falling under automatic route. Single window clearance facilities and investor escort services are available in various states to simplify the approval process for new ventures.Decisions on all foreign investments are usually taken within 30 days of submitting the application.In cases where original investment is made in convertible foreign exchange, free repatriation o f capital investment and profits thereon is permitted.Sectors prohibited for FDI includeRetail trading (except Single Brand Product retailing)Atomic EnergyLottery BusinessGambling and Betting3.3.1.1 Investment in SEZsIn order to enhance competitiveness of Indian exports and attract investment in these sectors, Indias Foreign Trade Policy promotes the setting up of SEZs and thus provides for a hassle-free environment with world-class institutional and physical infrastructure and supporting logistics. Some of the existing EPZs/FTZs have also been converted into SEZs. All the State Governments have been advised to give priority to waste and barren land for acquisition purposes. According to the total Waste Land area surveyed by the Ministry of Forest, 5,52,692.26 hectares was available for such purpose.FDI upto 100% is permitted under the automatic route for setting up of SEZ. Proposals not covered under automatic route require approval from FIPB. The policy provides for setting up of SEZ in the public, private or joint sectors or by state governments. These could be product specific or multi-product SEZs. Designated duty-free enclaves are treated as foreign territory for trade operations and duties and tariffs, and duty-free goods need to be utilised within the approved period. The permitted activities cover an array of manufacturing and services like production, processing, assembling, reconditioning, re-engineering, packaging, trading, etc.Proposals for setting up units in SEZ, other than those requiring industrial license are approved by the Development Commissioner (DC). The approval for those requiring industrial license is granted by the DC after receiving clearance from the Board of Approval. The Letter of Permission (LOP)/Letter of Intent (LOI) issued by the DC is construed as a license for all purposes, including procurement of raw material and consumables either directly or through a canalising agency. The LOP/LOI needs to specify the items of manufact ure/service activity, annual capacity, projected annual export for the first year in dollar terms, Net Foreign Exchange Earnings (NFE), limitations, if any, regarding sale of finished goods, by products and rejects in the DTA and such other matter as may be necessary and also impose such conditions as may be required.According to the policy, SEZ units have to be positive net foreign exchange earners and the performance of these units would be monitored by a unit approval committee consisting of the DC and the Customs Authority.3.3.2 Entry Options for Foreign InvestorsA foreign company has the option to set up business operations in India as an Incorporated Entity or as an Unincorporated Entity.An Incorporated Entity would be a company registered under Companies Act, 1956, through joint ventures or wholly owned subsidiaries. Foreign equity in such Indian companies can be up to 100% depending on the requirements of the investor, subject to any equity caps prescribed in respect of area of activities under the FDI policy. Funding could be via equity, debt (both foreign and local) and internal accruals.For registration and incorporation, an application has to be filed with the Registrar of Companies (ROC). Once a company has been duly registered and incorporated as an Indian company, it is subject to Indian laws and regulations as applicable to other domestic Indian companies. Companies in India can be incorporated as a private company or a public company.In comparison with branch and liaison offices (discussed subsequently), a subsidiary company provides maximum flexibility for conducting business in India. However, the exit procedure norms of such companies are relatively more cumbersome.An Unincorporated Entity could be Liaison Office/Representative Office or Project Office or Branch Office. Such offices can undertake activities permitted under the Foreign Exchange Management (Establishment in India of Branch Office of other place of business) Regulations, 2000. They are also governed by the Companies Act 1956, which contains special provisions for regulating such entities.3.3.2.1 Liaison Office/Representative OfficeThe role of a liaison office is primarily toCollect information about the marketDisseminate information about the company and its products to prospective Indian customersPromote exports/imports from/to IndiaFacilitate technical collaboration between parent company and companies in IndiaA liaison office cannot undertake any commercial activity directly or indirectly and cannot, therefore, earn any income in India. Approval for establishing a liaison office in India is granted by the RBI.3.3.2.2 Project OfficeForeign Companies planning to execute specific projects in India can set up temporary project/site offices in India. RBI has granted general permission to foreign entities to establish Project Offices subject to specified conditions. Such offices cannot undertake or carry on any activity other than the activity relating and incidental to execution of the project. Project Offices may remit outside India the surplus of the project on its completion, general permission for which has been granted by the RBI.Since a Project Office is an extension of the foreign incorporation in India, it is taxed at the rate applicable to foreign corporations.3.3.2.3 Branch OfficeForeign companies engaged in manufacturing and trading activities abroad are allowed to set up Branch Offices in India for the following purposes Export/Import of goodsRendering professional or consultancy servicesCarrying out research work, in which the parent company is engaged.Promoting technical or financial collaborations between Indian companies and parent or overseas group companyRepresenting the parent company in India and acting as buying/ selling agents in IndiaRendering services in Information Technology and development of software in IndiaRendering technical support to the products supplied by the parent/ group companiesForeign airline/ shipping companyBranch Offices established with the approval of RBI, are allowed to remit outside India profit of the branch net of applicable taxes (which are at rates applicable to foreign companies) however, subject to RBI guidelines. Permission for setting up branch offices is granted by the RBI.Branch Offices could also be on stand alone basis in SEZ. Such Branch Offices would be isolated and restricted to the SEZ alone and no business activity/transaction would be allowed outside the SEZs in India, which include branches/subsidiaries of its parent office in India. No approval shall be necessary from RBI for a company to establish a branch/unit in SEZs to undertake manufacturing and service activities, subject to the conditions thatthey function in sectors in which 100% FDI is permittedthey comply with part XI of the Companys Act (Section 592 to 602)function on a stand alone basisin the event of winding up of business and for remittance of winding-up proceeds, the branch shou ld approach an authorized dealer in foreign exchange in the with documents required as per FEMA.A Branch Office provides the advantage of ease in operations and an uncomplicated closure. However, since the operations are strictly regulated by exchange control guidelines, a Branch may not provide a foreign corporation with most optimum structure for its expansion/diversification plans.Box 3.1Investment in a firm or a Proprietary Concern by NRIsA Non-Resident Indian or a Person of Indian Origin (PIO) resident outside India may invest by way of contribution to the capital of a firm or a proprietary concern in India on non-repatriation basis providedi) Amount is invested by inward remittance or out of NRE/FCNR/NRO account maintained with Authorised Dealers of RBI (AD)ii) The firm or proprietary concern is not engaged in any agricultural/plantation or real estate business i.e. dealing in land and immovable property with a view to earning profit or earning income there from.iii) Amount in vested shall not be eligible for repatriation outside India.NRIs/PIO may invest in sole proprietorship concerns/ partnership firms with repatriation benefits with the approval of Department of Economic Affairs, Government of India /RBI.Box 3.2Investment in a firm or a Proprietary Concern by Other than NRIsNo person resident outside India other than NRIs/PIO shall make any investment by way of contribution to the capital of a firm or a proprietorship concern or any association of persons in India. The RBI may, on an application made to it, permit a person resident outside India to make such investment subject to such terms and conditions as may be considered necessary.3.3.3 Financing Options for CorporatesCompanies registered in India can raise finances through Share Capital or Debentures and Borrowings.3.3.3.1 Share CapitalThe Companies Act, 1956 allows for two kinds of share capital, viz., Preference share capital (preferred stock) and Equity share capital (with/without voting righ ts). Apart from this, private companies which are not subsidiaries of public company have the option of raising funds through Venture Capital.The issue of shares to the public is governed by the guidelines issued by the Securities Exchange Board of India (SEBI) the body that regulates and oversees the functioning of Indian Stock markets and the RBI.A company issuing shares or debentures has to comply with SEBI disclosure requirements with regards to its prospectus. The prospectus has to be approved by the stock exchange and scrutinized by SEBI and then filed with the Registrar of Companies.Indian companies having foreign investment approval through FIPB route do not require any further clearance from RBI for receiving inward remittance and issue of shares to the foreign investors. The companies are required to notify the concerned Regional office of the RBI of receipt of inward remittances within 30 days of such receipt and within 30 days of issue of shares to the foreign investor s or NRIs.Equity participation by international financial institutions such as ADB, IFC, CDC, DEG, etc., in domestic companies is permitted through automatic route, subject to SEBI/RBI regulations and sector specific cap on FDI.In all other cases a company may issue shares as per the RBI regulations. Other relevant guidelines of SEBI and RBI, including the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, wherever applicable, would need to be followed.The Companies Act does not specify the nominal value of shares. According to RBI/SEBI Guidelines, in case of listed companies, the issue price shall be either at the ave