PPR 5
PPR 5
PPR 5
(a) Exports and Imports shall be ‘Free’ except when regulated by way of
‘prohibition’, ‘restriction’ or ‘exclusive trading through State Trading
Enterprises (STEs)’ as laid down in Indian Trade Classification
(Harmonised System) [ITC (HS)] of Exports and Imports.
(b) Further, there are some items which are ‘free’ for import/export, but subject
to conditions stipulated in other Acts or in law for the time being in force.
(a) ITC (HS) is a compilation of codes for all merchandise / goods for export/
import. Goods are classified based on their group or sub-group at 2/4/6/8
digits.
(b) ITC (HS) is aligned at 6 digit level with international Harmonized System
goods nomenclature maintained by World Customs Organization.
However, India maintains national Harmonized System of goods at 8 digit
level.
(c) The import/export policies for all goods are indicated against each item in
ITC (HS). Schedule 1 of ITC (HS) lays down the Import Policy regime while
Schedule 2 of ITC (HS) details the Export Policy regime.
Identity proof
PAN
Digital photograph
Principles of Restrictions
DGFT may, through a Notification, impose restrictions on export and import, necessary
for: -
Documents
Export Import
Documents Documents
Commercial Regulatory
Documetns Documents
Export Documents
1) Commercial Documents
The commercial documents includes the following documents.
a) Commercial Invoice :
This is the first basic and the only complete document in an export
transaction. It is, in fact, a document of contents containing information
about goods. Harmonized System Nomenclature (HSN), price charged,
the terms of shipment and marks and numbers on the packages
containing the merchandise.
The exporter needs this document for other purposes also such as:
b) Bill of Lading :
Bill of lading (B/L) is a document which is issued by the shipping company
acknowledging that the goods mentioned therein are either being shipped
or have been shipped. This is also an undertaking that the goods in like
order and condition as received will be delivered to the consignee,
provided that the freight specified therein has been duly paid.
Bill of lading serves three distinct functions:
i. It is an evidence of the contract of affreightment (transport).
The bill of lading gives the details about the exporter, carrying vessel,
goods shipped, port of shipment, destination, consignee and the party to
be notified on arrival of the goods at destination. Bill of ladings is made
the sets.
c) Airway Bill :
In air carriage, the transport document is known as the airway bill. This
document performs three functions of a forwarding note for the goods,
receipt for the goods tendered, and authority to obtain delivery of goods.
Since it is non-negotiable, so it does not carry the same validity as a bill
of lading for sea transport carries.
d) Bill of Exchange (B/E) :
Bill of exchange is an instrument or draft used for the payment in
international / export business. It is an instrument in writing containing an
unconditional order, signed by the marker, directing a certain person to
pay a certain sum of money only to or to the order of a person or to the
bearer of the instrument. The person to whom the bill of exchange is
addressed is to pay either on demand or at a fixed or a determinable
future.
There are three parties involved in a bill of exchange:
1. The Drawer (Exporter) :
The person who makes and executes the B/E or say, the person
to whom payment is due
.
2. The Drawee (Importer) :
The person on whom the B/E is drawn and who is required to meet
the terms of the document.
3. The Payee (Exporter or Exporter’s Bank) :
The party to receive the payment.
e) Letter of Credit :
It is a written instrument issued by the buyer’s (importer’s) bank,
authorising the seller (exporter) to draw in accordance with certain terms
and stipulating in a legal form that all such bills (drafts) will be honoured.
Letter of credit provides the exporter with more security than open
accounts or bills of exchange.
A commercial letter of credit involves the following three parties :
i. The opener or importer – the buyer who opens the credit
ii. The issuer – the bank that issues the letter of credit.
2) Regulatory Documents :
There are two types of regulatory documents :
i. Documents needed for registration, and
(ii) Importers and exporters’ code numbers from the Chief Controller
of Imports and Exports,
They will return the duplicate copy which is submitted to the negotiating
bank along with other documents after shipment of goods. The
negotiating bank sends the duplicate copy to the RBI after the export
proceeds have been realised.
b) PP Form :
Exports to all countries by parcel post (PP), except when made on ‘value
payable’ or ‘cash on delivery’ basis should be declared on PP forms.
c) VP/COD Form :
d) EP Form :
e) SOFTEX Form :
f) Shipping Bill :
The shipping bill is the main document on the basis of which the
custom’s permission for export is given. Post parcel consignment
requires customs declaration form to be filled in. There are three types
of shipping bills available with the customs authorities.
2. Import documents
a) Consular Invoice :
It is usually issued on the specified form by the consulate of the
importing country situated in the exporting country. It gives a declaration
about the true value of goods shipped. The customs authorities of
importing company charge valorem based on the value mentioned on
consular invoice.
b) Certificate of Origin :
This certificate is issued by the independent bodies like chamber of
commerce or export promotion council in the exporting country. This is
a certification that the goods being exported were actually produced in
that particular country.
d) Customs Invoices :
It is also made out on a specified form prescribed by the customs
authority of the importing country. The details given on the document will
enable the customs authority of the importing country to levy and charge
import duty.
e) Certified Invoice :
This is the self-certified invoice by the exporter about the origin of the
goods.
MODES OF THE ENTRY INTO UNITED STATES MARKET
Make the necessary filings with the state in which you decide to form your
company (usually Delaware)
Hire a service company (CSC and CT Corp are the most common, but there
are many others) to serve as the company’s “agent for service of process”
in the state in which you decide to form it.
Depending on who is involved and whether anyone is investing, you might have
some securities filings, too. None of this is incredibly complex, but there are lots
of ways to mess up, some of which have very bad consequences. So it’s best not
to do it as a DIY project. Find a lawyer and pay for a corporate filing service to
handle the filings for you (again, CT Corp. and CSC are the best known but there
are many others).
U.S. Regulations
When the company form a U.S. entity, company create a legal person in the
U.S. That means that some activities abroad may come under U.S. regulations
that wouldn’t apply if no U.S. person were involved. There are two types of raise
issues – the Foreign Corrupt Practices Act and U.S. “export” regulations.
The federal Foreign Corrupt Practices Act basically prohibits U.S. persons from
bribing foreign officials, political parties and party officials to obtain or retain
business, including bribes paid through intermediaries. It allows payments that
merely “expedite” a routine official action (such as clearing a shipment through
customs that is legally entitled to be cleared). If we form an entity in the U.S., both
the entity and its directors, officers and employees, when acting on its behalf, are
subject to the FCPA, even if all operations and personnel are located outside the
U.S. We need to form a Delaware corporation and then bribe a local official to
“overlook” some building code violations in our office, we have violated the
FCPA. By contrast, if the company is in India and did the same thing, U.S. law
would not apply. The FCPA is a criminal statute, so the consequences of violating
it are potentially very serious. The federal government has enforced the FCPA
very aggressively in recent years.
Export Regulations
The United States has a very complicated set of laws and regulations governing
the “export” of certain technologies from the U.S., as well as other commercial
dealings between U.S. persons and certain countries (especially Cuba, Iran and
North Korea). These laws normally don’t apply to foreign national’s resident
outside the United States, except to the extent they actually conduct business in
the U.S
Tax
The two entities are most likely to use to “incorporate” a business in the U.S. are
the corporation and the LLC. The equity holders in a corporation are called
shareholders or stockholders and the equity holders in an LLC are called
members. From a non-tax perspective, the LLC is generally preferable because it
is more flexible. For example, an LLC can have a board of directors and officers
if that makes sense, but it can also be managed directly by its members.
The normal income tax treatment of corporations and LLCs is very
different. Corporations are normally considered to be a separate taxpayer. That
means that the corporation pays income tax on its income. When it pays dividends
to its stockholders, they are taxed again on receiving the dividends. By contrast,
LLCs are normally not taxed separately. Rather, they “pass through” all of their
tax attributes (income, deductions, credits etc.) to their members, who then pay
tax individually. A corporation can make an election to be taxed on a pass-through
basis. This is called an “s” election and corporations that make it are referred to
as “s” corporations. Nonresident foreigners are not allowed to hold stock in an “s”
corporation, however, so it’s not an option for Indian company.
As a rule, venture backed startups (and startups that hope to be venture backed)
form as taxable “c” corporations, rather than as pass-through LLCs. There are
several reasons for this:
Venture capital firms do not like “pass through” taxation because it can
complicate life for them, particularly if they have pension funds or university
endowments as investors (most of them do).
Companies whose shares are publicly traded are almost always taxable
corporations (there’s few advantages and some disadvantages to being
anything else).
People forming tech startups usually plan to profit from the endeavor by
selling their equity in the business, either in a sale of the company or in a
public market after an IPO. Since they never plan for the company to pay
dividends, it doesn’t bother them that they would get taxed twice (the
corporation pays tax on its income and then the shareholder pays tax on
receiving the dividend) if it did.
Now that we’ve reviewed the available entities, let’s review how the U.S. taxes
nonresident foreign nationals. First, it taxes income that is “effectively connected”
with a U.S. business roughly the same way it would tax a U.S. citizen or resident. If
that income results from an interest in an LLC that “passes through” its tax items
to its members, the LLC is required to make a “withholding” payment to the federal
government to cover the member’s liability. Second, certain categories of “U.S.
source” passive income (such as dividends, royalties and interest) are subject to
a flat 30% tax. This tax is, again, enforced by a requirement that the U.S. payer
withhold it at the source. On the other hand, capital gains (e.g. from the sale of
stock) are generally not taxed.
Both of these taxes are modified by a tax treaty between the U.S. and India. In
particular, the rate of the flat tax on passive income is reduced to 15 or 25%
(depending on corporate structure) for dividends, 10 or 15% (again, depending on
corporate structure) for interest, and 15% for royalties. One unusual twist in the
U.S. India tax treaty is that it gives particularly favorable treatment to income from
consulting or technical services that are ancillary to the use of licensed
technology. So it might be beneficial to develop the technology in India, license it
to the U.S. entity, and then provide consulting/technical services (such as software
maintenance and updates) for a fee. But it is worth reemphasizing that the U.S.
doesn’t tax capital gains earned by nonresident foreign nationals. So if there is no
plan to move to U.S. at any point during the development of the business and your
ultimate goal is a capital “exit” (i.e. a sale of the company or a sale of your stock in
an IPO or a private secondary market), the best strategy might be to use a taxable
corporation.
Summary of Key Visas Available to Indian Small Business Owners, Investors
and Entrepreneurs in United States of America
Visa available to
✔ ✔ ✖ ✔
Indian nationals
Ability of
dependent
✔ ✖ ✔ ✔
Spouse to work
in US
✖ ✔
✖
An L-1 visa is a visa document used to enter the United States for the purpose of
work in L-1 status. It is a non-immigrant visa, and is valid for a relatively short
amount of time, from three months (for Iran nationals) to five years (India, Japan,
Germany), based on a reciprocity schedule. With extensions, the maximum stay is
seven years.
Spouses of L-1 visa holders are allowed to work without restriction in the US (using
an L-2 visa) once EAD is granted, and the L-1 visa may legally be used as a
stepping stone to a green card under the doctrine of dual intent.
H1B Visa
The H-1B is a non-immigrant visa in the United States under the Immigration and
Nationality Act, section 101(a)(17)(H). It allows U.S. employers to temporarily
employ foreign workers in specialty occupations. If a foreign worker in H-1B status
quits or is dismissed from the sponsoring employer, the worker must either apply
for and be granted a change of status to another non-immigrant status, find another
employer (subject to application for adjustment of status and/or change of visa), or
leave the U.S.
E-VISAS
The E category includes treaty traders and investors who come to the U.S. under
a treaty of commerce and navigation between the U.S. and the country of which
the treaty trader or investor is a citizen or national. This category also includes
Australian specialty occupation workers.
Treaty traders pursue substantial trade in goods, including but not limited to
services and technology, principally between the U.S. and the foreign country of
which they are citizens or nationals. Treaty investors direct the operations of an
enterprise in which they have invested, or are actively investing, a substantial
amount of money.
Before entering the U.S., treaty traders or investors must apply for and receive an
E-1 or E-2 visa from a U.S. Consulate or Embassy overseas. However, a U.S.
company may also request a change of status to E-1 or E-2 for a nonimmigrant
that is already in the U.S. USCIS processes change of status and extensions of
stay requests for nonimmigrants whose companies have filed such petitions.
EB5 VISA
The EB-5 visa provides a method of obtaining a green card for foreign nationals
who invest money in the United States. To obtain the visa, individuals must invest
$1,000,000 (or at least $500,000 in a Targeted Employment Area - high
unemployment or rural area), creating or preserving at least 10 jobs for U.S.
workers excluding the investor and their immediate family. Initially, under the first
EB-5 program, the foreign investor was required to create an entirely new
commercial enterprise; however, under the Pilot Program investments can be
made directly in a job-generating commercial enterprise (new, or existing -
"Troubled Business"), or into a "Regional Center" - a 3rd party-managed
investment vehicle (private or public), which assumes the responsibility of creating
the requisite jobs. Regional Centers may charge an administration fee for
managing the investor's investment.
If the foreign national investor's petition is approved, the investor and their
dependents will be granted conditional permanent residence valid for two years.
Within the 90-day period before the conditional permanent residence expires, the
investor must submit evidence documenting that the full required investment has
been made and that 10 jobs have been maintained, or 10 jobs have been created
or will be created within a reasonable time period.
Govt. of India has also created various other services and support institutes to
facilitate the task of promoting exports through export finance, market research,
export credit insurance, resource personnel for exports, publicity, packaging,
quality control, transport, etc.
2. Commodity Boards
These are organisations set up for the development of certain commodities for
export and deal with all problems of production, development and marketing of the
commodities concerned.
India needed trained and skilled personnel for the development of export trade and
IIFT was set up in 1963 as an autonomous body registered under Societies
Regulation Act.
Activities of ITPO
1. Identifies and nurtures specific export products with long range growth
prospects
2. Organises various trade fairs and exhibitions in India and potential foreign
countries
6. Conducts in house and need based research on export trade and promotion
7. Manages the extensive trade five complete pragati maidan Delhi and
establishes such fair facilities in various states to promote exports from India
9. Enlists the involvement and support of the state governments in India for
promotion of foreign trade.
With the objective of exporting Indian goods of good quality with international
standards and for lending any dense in overseas buyers the government of India
passed export quality control and inspection Act 1963
Govt. of India in collaboration with the industry has set up IIP in 1966 with Mumbai
as its headquarters to match the packaging standards of export goods with that of
international standards and sophistication
Govt. of India has set up in 1965 ICA as Apex arbitration body to solve disputes
between exporters and importers.
1. To deal with all matters relating to merchant shipping like navigation and
administration of merchant shipping etc.
The Apex body titled All India shippers council was set up in Delhi with five regional
shippers organisation like Easter, Western, Southern, Northern and South
Western Shippers council to provide periods consultation with all parties
concerned on matters of common interest such as freight structure, conference
practices, conference lines like availability of shipping space, port facilities port
charges etc. for export import cargoes.
Functions
Apart from the above there are consultative bodies such as central advisory council
on trade and zonal export import advisory committees have been created to
discuss various problems relating to export and import and suggest ways and
means for promoting exports trade. On the deliberations of such organizations the
Govt.. of India, frames and formulates its export and import promotion policies and
successful implementation of export schemes.
This was set up in 1978 by merging Board of trade and advisory council on trade
headed by Union Minister of Commerce. This consists of 28 members from
Reserve Bank of India, Exim Bank, Federation of Indian Exports Organisation
Member of parliaments and industrialists and hold office for two years.
Functions
These are set up as follows in four zones namely Northern, Southern, Eastern and
Western Zonal Export Import advisory committees Functions of the Zonal export
import advisory committees are
1. Supply of inputs for dairying in form of fodder, animal feed plant, vetenery
aids for the animal (cattle and buffalos).
2. Milk is taken out from the mulching animal on the daily basis by the dairy
farmers (large, medium and small scale farmers).
4. Milk collected by the cooperative societies are sent to the dairy plants where
chilling of milk, processing and packaging of milk and milk product,
transportation of milk and milk product is carried out.
5. The transportation of chilled milk and milk products from one place to
another is done through the means of refrigerated vans, or insulated milk
tankers vans of private, government and cooperatives societies.
6. Final processed milk and milk products are transported to various retails
outlets, supermarkets, and to retails markets from where the processed milk
and milk products finally reaches to their end customers.