What are the legal formalities for setting up an export unit in an export processing zone?

Answer 1

Introduction :

The Ministry of Commerce, Government of India has outlined the principal objectives of our Export Import Policy, keeping in view the need for boosting our export efforts. The policy has been reoriented and many new schemes introduced to achieve the above objective by facilitating better and smooth administration and eliminating ambiguity and procedural constraints. The principal objectives of the Government policy in this regard are :

1. To establish the framework for globalisation of India's Foreign Trade,
2. To promote the productivity, modernisation and competitiveness of Indian industry, agriculture and services with a view to enhance the export capabilities;
3. To encourage the attainment of high and internationally accepted standards of quality for India's products abroad;
4. To augment India's exports by facilitating access to raw materials, intermediaries, components, consumables and Capital goods from international market;
5. To minimise controls in the framework of India's Foreign Trade; and
6. To streamline the procedures connected with export and import. Unless our exports pick up in a big way, the gap in the balance of trade cannot be bridged in order to bring our economy on a sound footing.

Registration of Business Organisation :

An export business can be started either by a Manufacturer Exporter or a Merchant Exporter. The business can be started as a sole proprietorship concern, or as a partnership firm or as a company with limited liability (which again can be either Private or Public). No registration whatsoever is necessary for a proprietary concern. In the case of partnership, all that is needed is drawal of a partnership deed. Registration of the partnership is not compulsory. In case it is decided to incorporate a private or public limited company, the same has to be registered with the Registrar of Companies as provided for in the Companies Act.

IEC NUMBER :

Every person (whether individual, firm or company) importing or exporting goods into or from India is required to obtain a Code Number from the office of the Regional Licensing Authority of Imports and Exports Department. The application for grant of IEC Number should be made to the Regional Licensing Authority in the prescribed form. The application should be supported with the following documents:

1. Bank Receipt or D.D. for payment of a fee of Rs. 1000/-.
2. The following documents pertaining to the applicants:

   a) Income Tax Permanent Account Number

   b) Certificate from the Banker in the form given in the application itself.

   c) Industrial Licence or intimation of registration of a new unit.

SALES TAX REGISTRATION :

Goods which are to be shipped out of India as exports are exempted from both the State and Central Sales Tax. For this purpose, the exporting concern should be registered with the Sales Tax Authorities and follow the

procedures prescribed therein.

REGISTRATION WITH EXPORT PROMOTION COUNCIL:

Any person applying for a licence to export or import or for any benefit or concession under Export Import Policy 2002-07 is required to register himself with an appropriate authority - i.e.. Export Promotion Councils, Commodity Boards etc. and obtain the Registration Cum Membership Certificate (RCMC). For different products there are different authorities like Engineering Export Promotion Council for engineering goods, Electronics and Computer Software Export Promotion Council for electronic goods, Agriculture and Processed Food Products Export Development Authority for processed foods. etc.

Application for such registration should be accompanied by a copy of the IEC Number and Bank Certificate in support of the applicant's financial soundness. Once the registration is granted, RCMC will be issued indicating the status of the applicant as Merchant Exporter or Manufacturer Exporter. The RCMC will be valid for 5 years.

Membership to the Export Promotion Council and having RCMC entitles the Exporter to export his goods on a mere bond to be executed before the Maritime Collector of the Central Excise Department, as registered Exporters alone are exempted from Bank guarantee while executing the bond. The bond will be for the equivalent of Central Excise duty on the goods exported.

EXPORT PROCESSING ZONE AND 100% EXPORT ORIENTED UNITS :

Since Export Processing Zones and 100% Export Oriented Units have a big role to play in the export efforts of our country, the initial formalities connected with setting up units in the zone and 100% EOUs outside the zone are also given below.

In order to bridge the increasing deficit in balance of trade there is an imperative need to step up the growth of our country's exports as also to give incentives to Exporters, the Central Government has set up Export Processing Zones and has permitted setting up of 100% Export Oriented Units in the country. Export Processing Zones are enclaves separated from the Domestic Tariff Area by physical barriers providing a duty free environment for export production at low costs and at internationally competitive rates. There are 10 such zones in different parts of the country, each under a Development Commissioner. Such zones provide basic infra-structural facilities like developed land, standard designed buildings, roads, drainage, water supply etc. Within the zone, Customs facilities for clearance are offered at no extra cost. These facilities can be availed by any person, Indian or Foreigner who wants to start a unit for manufacturing products solely for export. Those who do not wish to avail these facilities but still want to start units for manufacturing products solely for export., can apply for starting a 100% EOU at the place of his choice enjoying similar facilities as in the case of Export Processing Zones. The Development Commissioner of the Zone who has jurisdiction over the area where the 100% EOU is situated, would be the Nodal Officer for these units, once the Govt. approval for the establishment of the unit is granted. Units in the Export Processing Zones as well as 100% EOUs have facility of procuring indigenous capital goods, intermediates, components and raw materials from other parts of the country without payment of Central Excise Duty for use in their factories in the zones or in the 100% EOU. Similarly such goods are also permitted to be imported free of Customs duty for use in these units for production of goods for export.

For setting up units in the EPZ and 100% EOU elsewhere in the country, certain formalities have been prescribed by the Govt. The various formalities for setting up such units and for their functioning are detailed below:

1. Approval by the Secretariat of Industrial Approvals, New Delhi.

Intending Entrepreneurs desirous of setting up industries in the EPZ and also 100% EOU outside the zone should made applications to the Secretariat for Industrial Approvals, Ministry for Industry, Department of Industrial Development, Udyog Bhavan, New Delhi in the prescribed format. These applications are to be submitted in 10 copies to S.I.A and will haves to be accompanied by a crossed Demand Draft for Rs. 2500/- (subject to revision) in favour of Pay and Accounts Officer, Department of Industrial Development, Ministry of Industry, payable at State Bank of India, Nirman Bhavan Branch, New Delhi. These applications will be considered by the Board headed by the Commerce Secretary. Letters of Intent and Letters of Approvals will be issued by S.I.A, once the Board accords sanction for the starting of these units.

2. Execution of Legal Undertaking/Bond with the Development Commissioner of Export Processing Zone :

Once the approval for setting up the unit has been received from the Secretariat of Industrial Approval, New Delhi, the unit is required to execute a bond/legal undertaking before the jurisdictional Development Commissioner of the Export Processing Zone, undertaking to earn foreign exchange by exporting 100% of its production for a period of 10 years. The details of the plant and machinery installed in the unit as reflected in the application for approval submitted to S.I.A will be an annexure to the bond. The bond has to be executed before the development commissioner on a Rs.60/- stamp paper (subject to revision) and signed before the D.C. There is a prescribed format for the bond. After executing the bond, the unit if it is a 100% EOU may also apply for a Green Card in a prescribed format. 100% EOUs are given a priority treatment in the disposal of their problems connected with Govt. Departments. For facilitating such units to be eligible for such priority treatment in matters relating to the setting up and implementation of their project, the Development Commissioner issues a Green Card. These Green Cards are issued only to those units which have taken effective steps for implementation of their projects after obtaining approval from S.I.A., New Delhi.

3. While those units manufacturing export products situated in the Free Trade Zones are exempted from licensing control and registration formalities by Rule 174 of Central Excise Rules 1944 - vide Notification No. 24/83 dated. 11.2.83, 100% EOUs are required to submit an application to the jurisdictional Superintendent of Central Excise (The Range Officer) to get the unit registered by the Central Excise Authorities. There is a prescribed format for such an application. This format has to be filled in and submitted to the Superintendent of Central Excise along with 3 copies of the Ground Plan of the unit, duly signed. Normally the licences are issued without any delay after an inspection of the unit by the Central Excise Officer.

4. EPZs and 100% EOUs are to work under Customs Bond. As far as EPZ, which are already declared as Warehousing Stations under Section 9 of the Customs Act, the units can straight away start functioning. In the case of 100% EOUs, it should be ensured that the place where the EOU is situated is declared as Warehousing Station. If it is found that the Village or Panchayat where the EOU is situated has not been declared as a Warehousing Station, an application has to be submitted to the Chief Commissioner of Customs & Central Excise of the Zone concerned requesting for the issue of the Notification declaring the Panchayat or Village as a Warehousing Station. While submitting this application, a copy of the S.I.A. approval, of the unit, a copy of the Legal Agreement executed before the Development Commissioner and a copy of the Green Card may also be sent. This application should contain the details of the name of the Panchayat, Taluk, District and State. The Principle Commissioner of Central Excise and Customs, having jurisdiction over the State would consider and issue the required Notification.

5. As far as units in the Export Processing Zones are concerned, there is no need for applying to the Customs Authorities for granting a licence for private bonded warehouse to enable the functioning of the unit in bond, as the entire zone itself is a bonded area. However, in respect of 100% EOUs, the unit is required to make an application to the Asst. Commissioner of Customs or Asst. Commissioner of Central Excise having Customs jurisdiction over the area for granting a licence for private bonded warehouse under Sec. 58 of the Customs Act. There is a prescribed format for this application. Since the Capital Goods etc. imported by the 100% EOU without payment of duty have to be installed in the unit, and manufacturing in bond is to be carried on in the unit, the licence has to be applied for and obtained.

6. When all the above requirements are complied with, the unit is free to import capital goods, raw materials, components and intermediates from abroad free of Customs Duty and instal them and use them in the premises. To enable the units to clear the goods imported from abroad without payment of Customs Duty and to move them from the Port of importation to the premises of EPZ or 100% EOUs a bond has to be executed before the jurisdictional Customs Authority to cover the duty amount involved in the goods imported (Sec. 65 of the Customs Act) for warehousing them (Sec. 59(2) of the Customs Act) and undertaking to fulfill export obligation. Along with this bond, complete details of goods imported with their value and duty involved have also to be furnished.

7. To procure indigenous capital goods, components, intermediates and raw materials without payment Central Excise Duty, another bond is require to be executed before the Asst. Commissioner of Central Excise having jurisdiction over the unit. Details of such goods, their value and duty involvement have to be furnished alongwith this bond.

8. There are separate formats prescribed for these bonds. Once these bonds are executed and accepted by the concerned authority, the stage is set for the receipt of imported goods and indigenous goods into the premises of the unit, without payment of duty.

9. On arrival of imported goods from abroad, into Bond Bills of Entry have to be filed in the Custom House where the imported goods ordered for, arrive. After completion of assessment and producing proof of execution of bond with the jurisdictional Asst. Collector of the Unit, the goods can be transferred to the EOU as provided for in Sec. 67 of the Customs Act. As soon as the goods reach the unit, intimation thereof should be sent to the Customs House concerned.

10. As far as procurement of indigenous goods is concerned, they can be ordered for and obtained free of Central Excise duty under cover of CT3 Certificates issued by the Central Excise jurisdictional authorities. The goods can move out of the manufacturing unit of the suppliers only after CT3 Certificates are received by them. Some simplification has been brought in, in the matter of issue of CT3 Certificates. Instant of applying for and obtaining CT3 Certificates from Central Excise Authorities for every purchase, the board decided that pre-unauthenticated CT3 booklets may be made use of by the units for their local purchases.

11. Once the goods are received in the factory unit, production can be commenced and of course there are records to be maintained by the unit regarding capital goods, raw materials etc. brought into the unit for production and details of production and exports made.

12. Although 100% EOUs are to work under 100% physical supervision of Customs Officers, Govt. have prescribed certain norms by which 100% physical supervision can be dispensed with, enabling the units to work under Self Removal Procedure.