ECB Policy - An overview New Delhi November 07, 2015 ECB Policy- An Overview External Commercial Borrowings Commercial Loans, buyer / suppliers credit, securitized instruments (Bonds, Preference shares etc.) with a minimum average maturity of 3 years. External External Commercial Commercial Borrowing Borrowing (ECB) (ECB) Automatic Automatic Route Route U$ 750 M-Maximum U$ 200 M- Hotel, Hospital, S/W and Miscellaneous Service; U$ 10 M- NGO in MF MFI; Specified NBFC and SIDBI as per conditions Approval Route Approval route applicable when not covered in Automatic
route Minimum average maturity 3 or 5 years depending on the quantum of ECB Short term debt not encouraged 2 ECB Policy- At a glance Eligible Lender International Banks International Capital Markets Multilateral Financial Institutions Export credit agencies Suppliers of equipment Foreign collaborators Foreign Equity Holders (min. 25%) For ECB > USD 5M ECB Liability- Equity 4:1 Indirect Equity Holder- Only if indirect Holding in IC is 51% Group Co.- Only if Lender & Borrower are Subs of same Parent
Maturity & interest Minimum avg. maturity period USD 20 M 3 years >USD 20 upto 750 M 5 years All in Cost Ceiling 3-5 years - LIBOR + 350 b.p. >5 years - LIBOR + 500 b.p. Eligible Borrowers Corporates NGOs in Micro Finance SEZ Units (except financial intermediaries, individuals, Trusts) NBFC-IFC, NBFC-AFC MFI, NGO Companies in Miscellaneous
Services i.e. Training Activities, R&D; and Infra Support; (except Edu Inst., Trading business, Logistic Services, Financial Services, and Consultancy Services) only from its Direct/Indirect Equity Holder/Group Cos SIDBI (for on lending to MSME Sector) Other specified Prohibition On lending, Investment in capital market or acquiring a company in India Real Estate General corporate purposes Repayment of existing INR Loan End Use Real/ Industrial sector (SME) Import of capital goods, New Projects, Expansion/ modernization of existing units ODI in JV/ WoS abroad Payment of Interest During
Construction (IDC) First stage acquisition of shares in the disinvestment process and also in the mandatory second stage offer under GOIs disinvestment program Payment for obtaining License/ permit for 3G spectrum. For lending to self help groups or for micro credit by NGOs Repayment of rupee loans by companies in infrastructure sector manufacturing and hotel sector (with project cost of NR 250 or more) General corporate purpose from foreign direct equity holder 3 Other permitted end uses
Import of capital goods; New projects; Modernization/expansion of existing projects in real sector (industrial sector including SME and infrastructure sector); Hotel Sector (fixed capital investment of Rs. 200 Crore) Convention Centers (fixed capital investment of Rs. 300 Crore) Common infrastructure for Industrial Parks, SEZ, Tourism Facilities; Capital investment for fertilizers; Post harvest infrastructure for agricultural and horticultural produce including cold storage; Soil testing laboratories; Cold chain for farm level pre-cooling, preservation, storage or agricultural and allied produce, marine produce and meat; ODI in JV/WOS abroad; Acquisition of shares in disinvestment process of PSU shares; IDC for Indian Infrastructure sector; Capital expenditure in maintenance and operations of toll system; Refinancing of Bridge finance availed for import of capital goods in infrastructure sector; Import of services, technical know-how, payment of license fee etc.; General corporate purposes from FDEH in manufacturing, infrastructure, hotels, hospitals and IT sector (minimum average maturity 7 years);
Payment of spectrum allocation; 2015 Deloitte Touche Tohmatsu India Private Limited 4 ECB PolicyGuarantee Issuance of guarantee, standby letter of credit, letter of undertaking or letter of comfort by banks, Financial Institutions and Non-Banking Financial Companies (NBFCs) from India relating to ECB is not permitted. Pledge of shares by promoters, domestic associate companies of the borrower Corporate Guarantee, Personal Guarantee , Creation of Charge over immoveable assets and financial securities is Possible only after obtaining no objection from AD bank. Incase of enforcement of charge property will be transferred only to person resident in India
Now Authorised Dealer can permit: Change in Name; Change in Lender; Change in End Use, Change in All-in-Cost Transfer of ECB, Currency Reschedulement, Reduction in amount of ECB Cancellation of LRN Conversion of ECB into Equity Conditions: Activities to be under Automatic Route / FIPB approval obtained Sectoral Cap not breached Pricing: Listed as per SEBI; Unlisted: At a Fair Value arrived by CA/MB based on IAP on ALP on the date of conversion Conversion Rate: Maximum at exchange rate prevailing on the date of the agreement between the parties. Reporting structure Full conversion of outstanding ECB into equity Form FC-GPR to AD & Form ECB-2 to DSIM within 7 working days from the close of the month Partial conversion of outstanding ECB into equity Form FC-GPR for converted portion & Form ECB-2 to DSIM mentioning converted and unconverted portion 2015 Deloitte Touche Tohmatsu India Private Limited 6 ECB Policy- Procedures & Compliance
Execution of Loan Agreement(filing is not compulsory) Filing of Form 83 duly certified by CA/CS to AD AD to process the request and send to RBI for LRN Drawn should take place post allotment of LRN Filing of Monthly Return in ECB 2 by 7th of next month 2015 Deloitte Touche Tohmatsu India Private Limited 7 Practical Aspects 2015 Deloitte Touche Tohmatsu India Private Limited 8 Practical Aspects
Treatment of certain securities - Non convertible, optionally convertible or partially convertible preference shares. Concept of Deemed ECB. RBI has not granted the LRN even after 2 months Can I drawdown the first tranche. Can I convert ECB into equity including Interest what about interest on Interest. ECB for Trading sector. Does software sector include IT/ITeS non STPI units. Can I use MIBOR for INR denominated ECBs?
In case of confusion on whether a sector qualifies under automatic route, can I still follow automatic route. 2015 Deloitte Touche Tohmatsu India Private Limited 9 Compounding of Contraventions Compounding ofCompounding Contravention of Contraventions Means.. Settle an offence committed by the contravener through imposition of a monetary penalty without going in for litigation after the contravener acknowledges having committed the contravention.. Objective.. To provide comfort by minimizing transaction costs, while taking severe view of willful, malafide and fraudulent transactions. But it is not equal to withdrawal of a charge or a complaint but an agreement not to pursue the legal battle and spare the accused from further consequences. Filling the Application
Application Form Nature of the contravention Under which provisions of FEMA the transaction would be handled How and which of the FEMA provisions were contravened while undertaking the transaction Transaction:- Parties involved, Date of the transaction and Amount involved DD in favour of RESERVE BANK OF INDIA Payable at RO/MUMBAI Jurisdiction of RBI Offices Regional Offices - Delay in AR,FC-GPR Non Allotment/Refund in 180 days Violation of Pricing Guidelines Issue of Ineligible Instruments Issue of securities without RBI/FIPB approval Delay in Filing of FC-TRS-NR/R-R/ NR
Recording of Transfer by Company without FC-TRS Central Offices New Delhi - Acquisition of IMP in/outside India - LO, BO and PO - Deposits Mumbai - ECB - ODI - Export, Import and Others Compounding Salient Features Voluntary No suo-motto investigation Time Bound completion (Within 180 days)
No further proceedings for contravention so compounded Payment of sum of contravention (within 15 days) Once the order is passed, no contravener seek to withdraw the order or to hold it as void or request a review of the order No appeal against the Order Non payment shall be deemed as no application is made No compounding before expiry of 3 years of previous order for similar contravention No Compounding of cases where approval of any statutory authority/Govt. etc. was required unless such approvals has been sought Ascertainment of Nature of Contravention by RBI Depends on whether the contravention is Technical/ Minor in nature and needs only Cautionary Advice. Serious in nature and warrant Compounding; Prima facie, involves Money-Laundering, National and Security concerns involving serious infringement of the regulatory framework; However, RBI reserves the right to classify the contraventions and no body else has any right to classify any contravention as technical suo moto. Decision of Sum of contravention by RBI depends on
Amount of Gain of unfair advantage made from contravention; Amount of Loss to any agency/authority/exchequer from contravention; Economic benefits accruing to the contravener from delayed compliance or compliance avoided; Repetitive nature of the contravention, Track Record, History of non-compliance of the Contravener; Contraveners conduct in undertaking the transaction, Disclosure of full facts in the application and submissions made during the personal hearing; Any other factor considered relevant and appropriate Contraventions & Penalties at a glance Contravention Application for Condonation Application for compounding Adjudication proceedings Penalty/ Confiscation Quantifiable offence - Upto 3 times Non quantifiable offence - Upto Rs. 200,000 Continuing penalty - Rs. 5000 per day Imprisonment if penalty not paid
within prescribed time Discussion 2014 Deloitte Touche Tohmatsu India Private Limited Atul Mittal, Director Deloitte Heskin & Sells LLP. 9810065744 16
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