External Commercial Borrowings

Gist of RBI circular dated 30th July, 2019 on the subject.

Attention of Authorized Dealer Category-I (AD Category-I) banks is invited to paragraphs 2.1.(v) and 2.1.(viii) of Master Direction No.5 dated March 26, 2019 on the above subject in terms of which, inter alia, ECB proceeds cannot be utilised for working capital purposes, general corporate purposes and repayment of Rupee loans except when the ECB is availed from foreign equity holder for a minimum average maturity period of 5 years. Further, on-lending for these activities out of ECB proceeds is also prohibited.

2. Based on the feedback from stakeholders and with a view to further liberalise the ECB framework, it has been decided, in consultation with the Government of India, to relax the end-use restrictions. Accordingly, eligible borrowers will now be permitted to raise ECBs for the following purposes from recognised lenders, except foreign branches/ overseas subsidiaries of Indian banks, subject to paragraph 2.2 of the direction ibid:

1. ECBs with a minimum average maturity period of 10 years for working capital purposes and general corporate purposes. Borrowing by NBFCs for the above maturity for on lending for the above purposes is also permitted.
2. ECBs with a minimum average maturity period of 7 years can be availed by eligible borrowers for repayment of Rupee loans availed domestically for capital expenditure as also by NBFCs for on-lending for the same purpose. For repayment of Rupee loans availed domestically for purposes other than capital expenditure and for on-lending by NBFCs for the same, the minimum average maturity period of the ECB is required to be 10 years.
3. It has been decided to permit eligible corporate borrowers to avail ECB for repayment of Rupee loans availed domestically for capital expenditure in manufacturing and infrastructure sector if classified as SMA-2 or NPA, under any one time settlement with lenders. Lender banks are also permitted to sell, through assignment, such loans to eligible ECB lenders, except foreign branches/ overseas subsidiaries of Indian banks, provided, the resultant external commercial borrowing complies with all-in-cost, minimum average maturity period and other relevant norms of the ECB framework.

3. The prescribed minimum average maturity provision, as above, for the aforesaid end-uses will have to be strictly complied with under all circumstances.

4. All other provisions of the ECB policy remain unchanged. AD Category - I banks should bring the contents of this circular to the notice of their constituents and customers.

5. The Master Direction No. 5 dated March 26, 2019 is being updated to reflect the above changes.

6. The directions contained in this circular have been issued under section 10(4) and 11(2) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions / approvals, if any, required under any other law.

Code on Wages Bill 2019

PIB press release dated 30th July, 2019

The Lok Sabha today passed The Code on Wages Bill, 2019. While opening the discussion for consideration and passing of the Bill,  Minister of State (I/C) for Labour and Employment Shri Santosh Kumar Gangwar said that it is a historic Bill which aims to transform the old and obsolete labour laws into more accountable and transparent ones which is need of the hour. As many as 17 present labour laws are more than 50 years old and some of them even belong to pre-independence era.

Among the four Acts being subsumed in The Code on Wages Bill, The Payment of Wages Act, 1936 belongs to pre-independence era and The Minimum Wages Act 1948 is also 71 years old. The Payment of Bonus Act, 1965 and The Equal Remuneration Act, 1976 are also being subsumed in the Code. 

He further said that wide consultations were held with trade unions, employers and State governments and tripartite consultations were held on 10^th March, 2015 and 13^th April, 2015. A draft of Wage Code was made available in public domain through Ministry’s website. Many persons gave their valuable suggestions. The Bill was introduced in last Lok Sabha on 10 August, 2017 and was referred to Parliamentary Standing Committee which submitted its Report on 18^th December 2018. Out of 24 recommendations made by standing committee, 17 were accepted by government.

He further said that the Code ensures minimum wages along with timely payment of wages to all the employees and workers. Many unorganized sector workers like agricultural workers, painters, persons working in restaurants and dhabas, chowkidars etc. who were out of the ambit of minimum wages will get legislative protection of minimum wages after the bill becomes an Act. It has been ensured in the bill that employees getting monthly salary shall get the salary by 7^th of next month, those working on weekly basis shall get the salary on last day of the week and daily wagers should get it on the same day.

He expressed hope that The Code on Wages will prove to be a milestone and give respectable life to 50 crore unorganized sector workers. The Minister responded to the debate in detail and thanked all the respected members for cooperation in passing the Bill.

The salient features of the Code are as following:

• The Code on Wage universalizes the provisions of minimum wages and timely payment of wages to all employees irrespective of the sector and wage ceiling. At present, the provisions of both Minimum Wages Act and Payment of Wages Act apply on workers below a particular wage ceiling working in Scheduled Employments only. This would ensure "Right to Sustenance" for every worker and intends to increase the legislative protection of minimum wage from existing about 40% to 100% workforce. This would ensure that every worker gets minimum wage which will also be accompanied by increase in the purchasing power of the worker thereby giving fillip to growth in the economy. Introduction of statutory Floor Wage to be computed based on minimum living conditions, will extend qualitative living conditions across the country to about 50 crore workers. It is envisaged that the states to notify payment of wages to the workers through digital mode.

• There are 12 definitions of wages in the different Labour Laws leading to litigation besides difficulty in its implementation. The definition has been simplified and is expected to reduce litigation and will entail at lesser cost of compliance for an employer. An establishment will also be benefited as the number of registers, returns, forms etc., not only can be electronically filed and maintained, but it is envisaged that through rules, not more than one template will be prescribed.

• At present, many of the states have multiple minimum wages. Through Code on Wages, the methodology to fix the minimum wages has been simplified and rationalised by doing away with type of employment as one of the criteria for fixation of minimum wage. The minimum wage fixation would primarily based on geography and skills. It will substantially reduce the number of minimum wages in the country from existing more than 2000 rates of minimum wages.

• Many changes have been introduced in the inspection regimes including web based randomised computerised inspection scheme, jurisdiction-free inspections, calling of information electronically for inspection, composition of fines etc. All these changes will be conducive for enforcement of labour laws with transparency and accountability.

 • There were instances that due to smaller limitation period, the claims of the workers could not be raised. To protect the interest of the workers, the limitation period has been raised to 3 years and made uniform for filing claims for minimum wages, bonus, equal remuneration etc., as against existing varying period between 6 months to 2 years.

• It can be said that a historical step for ensuring statutory protection for minimum wage and timely payment of wage to 50 crore worker in the country has been taken through the Code on Wages besides promoting ease of living and ease of doing business.

Consumer Protection Bill 2019

PIB press release dated 30th July, 2019

The Lok Sabha today passed the Consumer Protection Bill 2019 after due consideration and discussion. The Union Minister for Consumer Affairs, Food and Public Distribution Shri Ram Vilas Paswan said that the bill aims at protecting the interests of consumers by establishing authorities for timely and effective administration and settlement of consumers’ dispute. Moving the Bill, Minister of State for Consumer Affairs, Food and Public Distribution, Shri Raosaheb Patil Danve said the Bill aims to simplify a number of rules. Shri Danve said consumers do not get quick redressal of their complaints and with the passage of the Bill, consumers will be able to get speedy justice. He said the government aims to simplify the entire process of redressal of consumer grievances.

Under the Bill, there is provision for central government to set up a Central Consumer Protection Authority (CCPA) to promote, protect and enforce the rights of consumers and will be empowered to investigate, recall, refund and impose penalties. It will regulate matters related to violation of consumer rights, unfair trade practices, and misleading advertisements. There is also a provision for class action law suit for ensuring that rights of consumers are not infringed upon. The authority will have power to impose a penalty on a manufacturer or an endorser of up to 10 lakh rupees and imprisonment for up to two years for a false or misleading advertisement. 

Salient Features of the Bill

1.         Central Consumer Protection Authority (CCPA): Executive Agency to provide relief to a class of consumers. The CCPA will be empowered to-

1. Conduct  investigations into violations of consumer rights and institute Complaints /Prosecution
2. Order recall of unsafe goods and services
3. Order discontinuance of Unfair Trade Practices and Misleading  Advertisements
4. Impose penalties on Manufactures /Endorsers /Publishers of Misleading Advertisements

2.         Simplified Dispute Resolution process

i) Pecuniary Jurisdiction enhanced to-

• District Commission –Up to Rs1 crore
• State Commission- Between  Rs1 crore and Rs 10 crore
• National Commission –Above Rs.10 crore

ii) Deemed admissibility after 21days of filing

iii) Empowerment of Consumer Commission to enforce their orders

iv) Appeals only on question of law after second stage

v) Ease of approaching consumer commission

• Filing from place of residence
• E-filing
• Videoconferencing for hearing 

3.         Mediation

• An Alternate Dispute Resolution (ADR) mechanism
• Reference to Mediation by Consumer Forum wherever scope for early settlement exists and parties agree for it.
• Mediation cells to be attached to Consumer Forum
• No appeal against settlement through mediation

4.         Product Liability

A manufacturer or product service provider or product seller to be responsible to compensate for injury or damage caused by defective product or deficiency in services

The Basis for product liability action will be:

• Manufacturing  defect
• Design defect
• Deviation from manufacturing specifications
• Not conforming to express warranty
• Failing to contain adequate instruction for correct use
• Services provided arefaulty, imperfect or deficient

New Bill- Benefit to Consumers

Presently Consumer only have a single point of access to justice, which is time consuming. Additional swift executive remedies are proposed in the bill through Central Consumer Protection Authority (CCPA)

Deterrent punishment to check misleading advertisements and adulteration of products

Product liability provision to deter manufacturers and service providers from delivering defective products or deficient services

Ease of approaching Consumer Commission and Simplification of Adjudication process

Scope for early disposal of cases through mediation

Provision for rules for new age consumer issues: e-commerce & direct selling

BEN-2 - extension of last date

MCA has issued a notification on 29th July, 2019 extending the last date for submission of BEN-2 form from 31st July, 2019 to 30th September, 2019.

Its good that MCA extended the last date because the form BEN-2 had too many complications, which the MCA was unable to understand and resolve. For eg. in one company, at the reporting company level, the member was a foreign company, but the ultimate holding was with a trust. So when we enter other body corporate as the member, we are unable to choose trustee as the SBO. This is an anomaly. This also shows the complexity of organisation structures created worldwide.

Secondly, the SBO id is not being pre-filled - so this is supposedly another technical issue, which I hope they sort it out soon.

This is a complicated form where the parties are totally reluctant to give out any information. In most cases the information has to come from abroad, which is taking a lot of time.

A copy of the notification can be found at the MCA site. 

motor vehicles - microdots

PIB press release dated 29th July, 2019

The Ministry of Road Transport & Highways has issued a draft notification GSR 521(E) dated 24^thJuly 2019, amending Central Motor Vehicle Rules, allowing motor vehicles and their parts, components, assemblies, sub-assemblies to be affixed with permanent and nearly invisible microdots that can be read physically with a microscope and identified with ultra violet light source.

Microdot technology involves spraying the body and parts of the vehicle or any other machine with microscopic dots, which give a unique identification. Use of this technology will help check theft of vehicles and also use of fake spare parts.  

The microdots and adhesive will become permanent fixtures/affixation which cannot be removed without damaging the asset, that is the vehicle itself. The notification says that the microdots, if affixed, will have to comply with AIS 155 requirements.

The Ministry has sought comments / objections on the draft notification within thirty days.

historical monuments

PIB press release dated 29th July, 2019

Union Culture Minister (IC) Shri Prahlad Singh Patel announced that opening hours of 10 historical Monuments across the country has been increased and now these Monuments will remain open from Sunrise to 9 pm for common public. The decision made public by Culture Minister while talking to media in New Delhi. Earlier these monuments used to open from 9am to 5.30 pm for general public. Shri Patel said that this decision has been made for the benefit of general public/tourists who can visit and appreciate the beauty of such historical sites for long hours.

The Minister also informed that other than these 10 monuments some other historical monuments are also under consideration for long opening hours for visitors. These 10 Monuments have been selected in first phase, he added.

The list of 10 historical Monuments is given below -

SL No.	Name Of Monuments	District	State
1	Rajarani Temple Complex	Bhubaneswar	Odisha
2	Dulhadeo Temple, Khajurao	Chattarpur	Madhya Pradesh
3	Sheikh Chilli Tomb, Thanesar	Kurukshetra	Haryana
4	Safdarjung Tomb	Delhi	Delhi
5	Humayun’s Tomb, Delhi	Delhi	Delhi
6	Group of Monuments at Pattadakkal, Karnataka	Bhagalkot	Karnataka
7	Gol Gumbaz	Vijayapura	Karnataka
8	Group of Temples, Markanda, Chamursi	Gadchiroli	Maharashtra
9	Man Mahal, Vaidhshala	Varanasi	Uttar Pradesh
10	Rani-ki-Vav	Patan	Gujarat

IBBI amendments

PIB press release dated 27th July, 2019

The Insolvency and Bankruptcy Board of India (IBBI) notified the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Amendment) Regulations, 2019 and the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019 today.

The salient amendments affected by the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Amendment) Regulations, 2019 are:

(a) The amendments specify the process for withdrawal of applications before constitution of committee of creditors (CoC), after constitution of CoC but before issue of invitation for expression of interest, and after issue of invitation for expression of interest.

(b) The amendments require that while approving a resolution plan or deciding to liquidate the corporate debtor, the CoC may:

(i) approve a plan providing for contribution for meeting the liquidation costs, 

(ii) recommend sale of the corporate debtor or sale of business of the corporate debtor as a going concern, and

(iii) fix, in consultation with the RP, the fee payable to the liquidator, if an order for liquidation is passed by the Adjudicating Authority.

The salient amendments affected by the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019 are:

(i) The amendments specify the process for (i) sale of corporate debtor as going concern, and (ii) sale of business of corporate debtor as going concern under liquidation. These also provide that where a corporate debtor is sold as a going concern, the liquidation process shall be closed without dissolution of the corporate debtor.

(ii) The amendments require completion of liquidation process within one year of its commencement, notwithstanding pendency of applications for avoidance transactions. These provide a model timeline for each task in the liquidation process. It also specifies a maximum time of 90 days from the order of liquidation for completion of compromise or arrangement, if any, proposed by the stakeholders under section 230 of the Companies Act, 2013. These will ensure that liquidation process is closed at the earliest.

(iii) The amendments require the financial creditors, who are financial institutions, to contribute towards the liquidation cost, where the corporate debtor does not have adequate liquid resources to complete liquidation, in proportion to the financial debts owed to them by the corporate debtor, in case the CoC did not approve a plan for such contribution during corporate insolvency resolution process.  However, such contribution along with interest at bank rate thereon shall form part of liquidation cost, which is paid in priority.

(iv) The amendments provide for constitution of a Stakeholders’ Consultation Committee having representation from secured financial creditors, unsecured financial creditors, workmen and employees, government, other operational creditors, and shareholder/partners to advice the liquidator on matters relating to sale. However, the advice of this committee is not binding on the liquidator.

(v) The amendments require that a stakeholder may submit its claim or update its claim submitted during the corporate insolvency resolution process, as on the liquidation commencement date. Along with submission of claim, a secured creditor shall inform the liquidator of its decision to relinquish its security interest to liquidation estate or to realise its security interest.

(vi) The amendments have introduced a comprehensive compliance certificate to be submitted along with the final report to the Adjudicating Authority.

The amendment Regulations are effective from today. These are available at www.mca.gov.in and www.ibbi.gov.in.

Direct Selling Legislation

PIB press release dated 27th July, 2019

Ministry of Consumer Affairs, Food & Public Distribution, Department of Consumer Affairs notified the Direct Selling Guidelines, 2016 in the Gazette of India on 26.10.2016 as guiding principles for State Governments to consider regulating the business of direct selling and multi-level marketing and strengthen the existing regulatory mechanism on direct selling and multi-level marketing for preventing fraud and protecting the legitimate rights and interests of consumers. State Governments/Union Territories, being enforcement agencies, may take necessary action to implement these guidelines. In terms of the Direct Selling Guidelines, 2016, State Governments will set up a mechanism to monitor/supervise the activities of direct sellers, direct selling entities regarding compliance with the guidelines. Besides, the Consumer Protection Bill, 2019 has been introduced in Lok Sabha on 8th July, 2019 which seeks to provide the measures to be taken by the Central Government to prevent unfair trade practices in direct selling.

In terms of the Direct Selling Guidelines, 2016, no person or entity will participate in money circulation scheme in the garb of direct selling business. Ministry of Finance, Department of Financial Services has intimated that there is no information available with them that law enforcement agencies are wrongfully booking genuine direct selling firms under the Prize Chits and Money Circulation Scheme (Banning) Act, 1978.

This information was given in a written reply by the Minister of State for   Consumer Affairs, Food & Public Distribution, Shri Danve Raosaheb Dadarao in the Rajya Sabha today.