EXIM Policy, Objective

EXIM Policy, short for Export-Import Policy, outlines a country’s strategies and regulations governing the import and export of goods and services. It serves as a roadmap for promoting international trade and economic development by establishing guidelines for tariffs, quotas, subsidies, and other trade-related measures. The main objectives of an EXIM policy typically include enhancing export competitiveness, reducing import dependency, attracting foreign investment, and fostering economic growth. By providing clarity and direction to businesses and policymakers, EXIM policies aim to facilitate trade, stimulate investment, and create a conducive environment for sustainable economic development.

Objectives of EXIM Policy:

  • Promoting Export Competitiveness:

One of the primary goals of an EXIM policy is to enhance the competitiveness of domestic goods and services in international markets. This may involve providing incentives, subsidies, or assistance to exporters, as well as implementing measures to improve the quality and efficiency of export-oriented industries.

  • Facilitating Import Substitution:

EXIM policies often aim to reduce dependency on imported goods by promoting domestic production and manufacturing. This may involve imposing tariffs or quotas on certain imports, providing incentives for domestic industries, or implementing measures to improve productivity and efficiency.

  • Attracting Foreign Direct Investment (FDI):

Encouraging foreign investment is another objective of many EXIM policies. By creating an attractive investment climate through regulatory reforms, tax incentives, and other measures, countries aim to attract foreign capital to support export-oriented industries and stimulate economic growth.

  • Achieving Balance of Payments Stability:

EXIM policies seek to achieve a balance between exports and imports to ensure stability in the country’s balance of payments. This may involve implementing trade restrictions, promoting export diversification, or managing currency exchange rates to prevent trade imbalances.

  • Fostering Economic Growth and Development:

EXIM policies play a crucial role in driving economic growth and development by promoting trade, investment, and industrialization. By supporting export-oriented industries and fostering entrepreneurship, countries aim to create jobs, generate income, and improve living standards.

  • Enhancing Technology Transfer and Innovation:

EXIM policies may encourage technology transfer and innovation by facilitating collaboration and partnerships between domestic and foreign firms. This can help domestic industries adopt advanced technologies, improve productivity, and enhance their competitiveness in global markets.

  • Promoting Regional and Bilateral Trade Relations:

Many EXIM policies aim to strengthen regional and bilateral trade relations through the negotiation of trade agreements, free trade zones, and preferential trade arrangements. By fostering closer economic ties with trading partners, countries seek to expand market access and create opportunities for mutual trade and investment.

  • Ensuring Compliance with International Trade Norms:

EXIM policies often seek to ensure compliance with international trade norms and agreements, such as those established by the World Trade Organization (WTO). This may involve harmonizing trade regulations, resolving trade disputes, and participating in multilateral trade negotiations to promote a rules-based global trading system.

History of EXIM Policy of India:

  • Pre-Independence Era:

Before India gained independence in 1947, its trade policies were heavily influenced by colonial rule. The British Raj controlled India’s trade, primarily for the benefit of the colonial power. India’s trade was characterized by the export of raw materials and agricultural products to Britain and other colonies, while imports consisted largely of manufactured goods.

  • Post-Independence and Import Substitution:

After independence, India pursued a policy of import substitution industrialization (ISI), aimed at reducing dependency on imports by promoting domestic industrialization. The government imposed high tariffs and import restrictions to protect domestic industries and encourage self-sufficiency in manufacturing.

  • Liberalization in the 1990s:

In response to economic crises and mounting pressure from international financial institutions, India began to liberalize its economy in the early 1990s. The government initiated a series of economic reforms, including trade liberalization measures such as tariff reductions, exchange rate reforms, and dismantling of trade barriers.

  • Introduction of EXIM Policy:

The first EXIM Policy of independent India was announced in 1992-1997, marking a significant departure from the previous era of import substitution. The policy aimed to promote exports, attract foreign investment, and integrate India into the global economy. It introduced various export promotion schemes, incentives for exporters, and simplified export procedures to boost India’s competitiveness in international markets.

  • Evolution and Amendments:

Since the introduction of the first EXIM Policy, there have been several revisions and amendments to reflect changing economic conditions and global trade dynamics. Subsequent EXIM Policies, now referred to as Foreign Trade Policies (FTPs), have continued to focus on export promotion, import facilitation, and trade facilitation measures.

  • Modernization and Digitization:

In recent years, India’s EXIM Policy has undergone modernization and digitization to streamline trade processes, enhance transparency, and reduce transaction costs. The introduction of online platforms and electronic documentation systems has facilitated trade procedures and improved efficiency in customs clearance and export-import transactions.

  • Alignment with Global Trade Norms:

India’s EXIM Policy has been aligned with international trade norms and obligations under various multilateral agreements, including those of the World Trade Organization (WTO). The policy aims to balance India’s trade interests while promoting compliance with international trade rules and commitments.

Institutions Connected With EXIM Trade

The primary aim to set up machinery for consultation is to create the required forum and environment for consulting various quarters interested and engaged in foreign trade.

It facilitates to develop a dialogue between Government, industry and the entrepreneurs, at various levels, to discuss varied problems faced by the enterprises and suggest necessary measures to solve the problems. Export is a dynamic industry and faces stiff international competition. It requires innovation, flexible approach and expeditious action to catch the swift changes that emerge as new opportunities. Further, orientation in attitude has to be developed to visualize and anticipate the changes that may overtake the scene. Equally, appropriate Government policies are important to support for rapid growth in international trade. To gear up with the changes, exporter needs guidance and assistance at different stages of export effort. For this purpose, Government has set up several institutions whose function is to support exporter in his endeavors. Institutions that are engaged in expo falls in six distinct tiers. The set-up is:

Department of Commerce

Primary Government agency responsible for formulating and directing Foreign Trade Policy and programs including establishing relations with other countries where needed

Board of Trade

Mechanism to maintain continuous dialogue with trade and industry for appropriate policy measures and corrective action by Government

Commodity specific organizations

Tackling problems connected with individual commodities and groups of commodities Service Institutions Assist exporters to expand their operations to reach world markets more effectively Government Trading organizations

Handling export/import of specified commodities & supplementing efforts of private enterprises in export promotion and import management

Government Policy Making and Consultations

The following bodies are involved in policy making and consultation process:

  1. Department of Commerce

Ministry of Commerce is the apex ministry at the central level to formulate and execute India’s foreign trade policy and to initiate various exports promotional measures. e main functions of the Ministry are formulation of international commercial policy, negotiation of trade agreements, formulation of export-import policy and their implementation. has created a network of commercial sections in Indian embassies and high commissions various countries for export-import trade flows. It has set up an “Exporters’ Grievances dressal Cell” to assist exports in quick redressal of grievances. The department of Commerce, in the Ministry of Commerce, has been made responsible for India’s external trade and all matters connected with the same. This is the main organization to formulate and guide India’s foreign trade, formed with the responsibility of promoting India’s interest in international market. The Department of Commerce has six divisions and their functions are as under:

  • Trade Policy Division: To keep abreast of the developments in the International organizations like UNCTAD, WTO, the Economic Commissions for Europe, Africa, Latin America and Asia and Far East
  • Foreign Trade Territorial: Development of trade with different countries and regions of the world
  • Export Products Division: Problems connected with production, generation of surplus and development of markets for the various products under its jurisdiction
  • Export Industries Division: Development and Regulation of tobacco, Rubber and cardamom.
  • Export Services Division: Export promotion activities relating to handlooms, textiles, woolens, readymade garments, silks, jute and jute products, handicrafts, coir and coir products Problems of Export Assistance
  • Economic Division: Formulation of exports strategies, Export planning, Periodic appraisal and Review of policies
  1. Board of Trade

It has been set up on May 5, 1989 with a view to provide an effective mechanism to maintain continuous dialogue with trade and industry in respect of major developments in the field of international trade. It provides regular consultation, monitoring and review of India’s foreign trade policies and operations. The board has the representatives from commerce and other important Ministries, Trade and Industry Associations and Export Services Organizations. It is an important national platform for a regular dialogue between the Government and trade and industry. The deliberations in the Board of Trade provide guidelines to the Government for appropriate policy measures for corrective action.

The Minister of Commerce is the chairman of the Board of Trade. The official membership includes Secretaries of the Ministries of Commerce and Industry, Finance (Revenue), External Affairs (ER), Textiles, Chairman of ITPO, Chairman/MD of ECGC, MD of Exim Bank and Deputy Governor of Reserve Bank of India. The non-official members are President of FICCI, ASSOCHAM, CH, FIEO, All India Handloom Weavers Marketing Co-operative Society.

Cabinet Committee regular and effective monitoring of India’s foreign trade performance and related policies

  1. Empowered Committee of Secretaries

For speedier and quicker decision making, an Empowered Committee of Secretaries has been set up to assist the Cabinet Committee on Exports.

5. Grievances Cell

Grievances Cell has been established to entertain and monitor disposal of grievances and suggestions received. The purpose is to redress the genuine grievances, at the earliest. The grievance committee is headed by the Director General of Foreign. Trade. At the State level, the head of the concerned Regional Licensing authority heads the grievances committee. The committee also includes representatives of FIEO, concerned Export Promotion Council/ Commodity Board and other departments and organisations. The grievances may be addressed to the Grievances Cell, in the prescribed proforma.

  1. Director General of Foreign Trade (DGFT)

DGFT is an important office of the Ministry of Commerce to help formulation of India’s Export4mport formulation policy and implementation thereof. It has set up regional offices in almost all the states and Union territories. These offices are known as Regional Licensing Authorities. The Regional Licensing offices also act as Export facilitation centres.

  1. Ministry of Textiles

This is another ministry of Government of India which is responsible for policy formulation, development, regulation and export promotion of textile sector including sericulture, jute and handicrafts etc. It has a separate Export Promotion Division, advisory boards, development corporations, Export Promotion Councils and Commodity Boards. The advisory hoards have been set up to advise the government in the formulation of the overall development programmes in the concerned sector. It also devises strategy for expanding markets in India and abroad. The four advisory boards are as under:

(a) All India Hand loom Board

(b) All India Handicrafts Board

(c) All India Power loom Board

(d) Wool Development Board.

There are Development Commissioners, Handicrafts and Handlooms who advise on matters relating to development and exports of these sectors. There are Textile Commissioner and Jute commissioner who advise on the matters relating to growth of exports of these sectors. Textile committee has also been set up for ensuring textile machinery indigenously, especially for exports.

  1. Institutional Framework

Export Promotion Councils and Commodity Boards have been established with the objective of promoting and strengthening commodity specialization. They are the key institutions in the institutional framework, established in India for export promotion.

Export Promotion Councils: There are 19 Councils covering different products. These Councils advise the Government the measures necessary to facilitate future exports growth, assist manufacturers and exporters to overcome various constraints and extend them full range of services for the development of overseas market. The councils also have certain regulatory functions such as the power to de-register errant and defaulting exporters. An idea of the functions of the Export Promotion Council can be had from understanding some of the functions of the Engineering Export Promotion Council. Some of their functions are:

(a) To apprise the Government of exporters’ problems;

(b) To keep its members posted with regard to trade inquiries and opportunities;

(c) To help in exploration of overseas markets and identification of items with export potential;

(d) To render assistance on specific problems confronting individual exporters;

(e) To help resolve amicably disputes between exporters and importers of Indian engineering goods and (f) to offer various facilities to engineering exporters in line with other exporting countries.

Over the years, the role of Export Promotion Councils has reduced to traditional liaison work and has lost their importance. Now, the procedures connected with the foreign trade are more simplified. So, they have to redefine their role to offer concrete market promotional and consolidation programmes and services to their members.

Commodity Boards: There are 9 statutory Boards. These Boards deal with the entire range of problems of production, development, marketing etc. In respect of these commodities concerned, they act themselves as if they are the Export Promotion Councils. These Boards take promotional measures by opening foreign offices abroad, participating in trade fairs and exhibitions, conducting market surveys, sponsoring trade delegations etc.

  1. States’ Cell

This has been created under Ministry of Commerce. Its functions are to act as a nodel agency for interacting with state government or Union territories on matters concerning export or import from the state or Union territories. It provides guidance to state level export organizations. It assists them in the formulation of export plans for each state.

  1. Development Commissioner, Small Scale industries Organization

The Directorate has the headquarter in New Delhi and Extension Centres are located in almost all the States and Union Territories. They provide export promotion services almost at the door steps of small-scale industries and cottage units. The important functions are:

  • To help the small scale industries to develop their export capacities
  • To organize export training programmes
  • To collect and disseminate information
  • To help such units in developing their export markets
  • To take up the problems and other issues related to small-scale indus Corporation tries Besides, there are Directorates of Industries, National Small Scale Industries exports from small-scale industries.

Indian Patent Laws

Indian Patent Laws are governed primarily by the Patents Act, 1970, which was extensively amended in 2005 to align with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement under the World Trade Organization (WTO). The legislation provides a legal framework for granting patents, protecting inventions, and balancing the rights of inventors with public interest.

Objectives of Indian Patent Laws:

Indian patent laws aim to:

  • Encourage innovation by granting inventors exclusive rights to their inventions.
  • Foster technological advancement and knowledge dissemination.
  • Protect public interest by preventing monopolistic practices.
  • Ensure compliance with international intellectual property (IP) standards like TRIPS.

Definition and Scope of Patentable Inventions:

Under Indian law, an invention must meet three main criteria to be patentable:

  • Novelty: The invention should be new, meaning it must not have been previously published or used in India or elsewhere.
  • Inventive Step: It should involve a non-obvious advancement over existing technology.
  • Industrial Applicability: The invention must be capable of industrial application, meaning it can be made or used in some industry.

However, certain subject matters are specifically excluded from being patented, such as:

  • Discoveries, scientific theories, or mathematical methods.
  • Aesthetic creations, literary, dramatic, musical, or artistic works.
  • Methods of agriculture or horticulture.
  • Business methods, algorithms, and computer programs per se.
  • Medical, surgical, and diagnostic methods for treatment.

Application and Granting Process:

The patent application process in India is administered by the Indian Patent Office (IPO) and includes the following steps:

  • Filing:

Patent application must be filed with complete details of the invention, including specifications, claims, and drawings. Applications can be filed for ordinary, conventional, or PCT national phase patents.

  • Publication:

After 18 months, the patent application is published, making it accessible to the public. However, applicants may request early publication.

  • Examination:

After publication, an applicant must request examination within 48 months from the filing date. During this stage, the patent is scrutinized for compliance with legal standards, and the examiner may raise objections.

  • Response to Objections:

Applicants are given an opportunity to respond to objections and provide clarifications or amendments. This process ensures that only legitimate inventions are patented.

  • Grant:

Once the examination and objection process is satisfactorily completed, the patent is granted. The term of a patent in India is 20 years from the date of filing.

Rights and Responsibilities of a Patent Holder:

Patent grants the holder the exclusive right to make, use, sell, or import the patented invention. The holder can license or assign their rights to others, allowing them to commercialize the invention. However, with these rights come certain responsibilities:

  • Working Requirement:

The patentee must work the patent within India, meaning the invention should be made available to the public. Failure to do so can result in compulsory licensing or revocation.

  • Renewal:

Patent must be renewed annually by paying the renewal fee. Failure to pay results in patent lapse.

  • Disclosure Obligations:

Patent holder must disclose the best mode of carrying out the invention. Concealment can lead to invalidation of the patent.

Compulsory Licensing:

Compulsory licensing is a unique provision in Indian patent law, designed to prevent monopolistic abuse by patentees and ensure access to essential inventions:

  • Eligibility:

Compulsory licenses can be issued if the patented invention is not available to the public at a reasonable price, if it is not being worked in India, or if it is required to address public health crises or national emergencies.

  • Application for License:

Interested parties can apply for a compulsory license three years after the patent grant.

  • Reasonable Remuneration:

The licensee is required to pay the patent holder a reasonable royalty, balancing public interest with the patentee’s rights.

Compulsory licensing has been instrumental in India, particularly in the pharmaceutical sector, where access to affordable medication is crucial. For example, in 2012, India granted a compulsory license for the cancer drug Nexavar, ensuring its availability at a lower cost.

Patent Infringement and Remedies:

Patent infringement occurs when an unauthorized party makes, uses, sells, or imports a patented invention without the patent holder’s consent. Remedies for infringement under Indian law are:

  • Injunctions: The patent holder can seek a court order preventing further infringement.
  • Damages: The infringer may be liable for compensating the patent holder for losses incurred.
  • Accounts of Profits: The infringer may be required to account for and pay profits gained from the unauthorized use of the invention.

Patent Protection for Pharmaceuticals and Agrochemicals:

Indian patent law initially excluded pharmaceuticals and agrochemicals from patent protection to ensure affordable access. However, the 2005 amendment brought Indian patent law into TRIPS compliance, granting product patents for pharmaceuticals and agrochemicals, though with certain public health safeguards.

  • Section 3(d):

This provision prohibits patents for new forms of known substances unless they demonstrate significant efficacy. This aims to prevent “evergreening,” where companies make minor modifications to extend patent life.

  • Compulsory Licensing in Public Interest:

As mentioned, the law allows compulsory licensing to balance affordability and patent protection, especially for life-saving drugs.

Patent Cooperation Treaty (PCT) and International Patents:

India is a signatory to the Patent Cooperation Treaty (PCT), enabling Indian applicants to seek patent protection in multiple countries through a single application. Similarly, foreign inventors can apply for patents in India via PCT, facilitating global protection and reducing administrative burden.

Patent Law Amendments and Evolving Trends:

Indian patent law has evolved through amendments to address emerging challenges and global changes. The 2005 amendment was pivotal in making Indian law TRIPS-compliant and reintroducing product patents. Additionally, ongoing discussions focus on balancing innovation, access to essential medicines, and sustainable development.

Digital innovations, artificial intelligence (AI), and biotechnology have further challenged traditional patent law frameworks. The Indian Patent Office has been working to adapt examination guidelines and policies to accommodate these advances without compromising public interest.

Offences and Penalties under FEMA Act 1999

The term ‘compounding’ has not been defined either in the Foreign Exchange Management Act, 1999 or the rules issued there under. However, inference can be drawn from the definition given in the Companies Act, 1956. It defines ‘compounding’ as: ‘Any offence punishable under the Act (whether committed by the company or any officer thereof), not being an offence punishable with imprisonment only or with imprisonment and also with fine may, either before or after the institution of any prosecution, be compounded’. Various terms related to compounding have been defined under The Foreign Exchange (Compounding Proceedings) Rules, 2000.

The compounding of the contravention under FEMA was implemented by the Reserve Bank of India (RBI) by putting in place the simplified procedures for compounding with effect from 1.2.2005 with the following views enshrining the motto of enhancing transparency and effect smooth implementation of the compounding process:

  1. Minimization of transaction costs; and
  2. Taking a serious view of the willful, mala fide and fraudulent transactions.

It should be noted that FEMA is not a revenue law. The compounding proceedings have the intention of deterring people from making repetitive lapses.

  1. Relevant Provisions from FEMA, 1999:

Power to Compound Contravention (Section 15):

If any person contravenes any provision of the Foreign Exchange Management Act, 1999, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorization is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty. However, under section 15 of the Foreign Exchange Management Act, 1999 power to compound contraventions has been granted to the Director of Enforcement or such other officers of the Directorate of Enforcement and officers of the Reserve Bank as may be authorised in this behalf by the Central Government.

Any contravention may, on an application made by the person committing such contravention, be compounded within 180 days from the date of receipt of application. Where a contravention has been compounded no proceeding or further proceeding, as the case may be, shall be initiated or continued, as the case may be, against the person committing such contravention under that section, in respect of the contravention so compounded.

Penalties (Section 13):

(1) If any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues.

(2) Any Adjudicating Authority adjudging any contravention under sub-section (1), may, if he thinks fit in addition to any penalty which he may impose for such contravention direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any of the persons committing the contraventions or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf.

Explanation: For the purposes of this sub-section, “property” in respect of which contravention has taken place, shall include:

     (a) Deposits in a bank, where the said property is converted into such deposits

     (b) Indian currency, where the said property is converted into that currency

     (c) Any other property which has resulted out of the conversion of that property.

Enforcement of the orders of adjudicating authority (Section 14):

(1) Subject to the provisions of sub-section (2) of section 19 (dealing with Appeal to Appellate Tribunal), if any person fails to make full payment of the penalty imposed on him under section 13 within a period of ninety days from the date on which the notice for payment of such penalty is served on him, he shall be liable to civil imprisonment under this section.

(2) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Adjudicating Authority has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the Adjudicating Authority, for reasons in writing, is satisfied

     (a) That the defaulter, with the object or effect of obstructing the recovery of penalty, has after the issue of notice by the Adjudicating Authority, dishonestly transferred, concealed, or removed any part of his property, or

     (b) That the defaulter has, or has had since the issuing of notice by the Adjudicating Authority, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.

(3) Notwithstanding anything contained in sub-section (1), a warrant for the arrest of the defaulter may be issued by the Adjudicating Authority if the Adjudicating Authority is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Adjudicating Authority.

(4) Where appearance is not made pursuant to a notice issued and served under sub-section (1), the Adjudicating Authority may issue a warrant for the arrest of the defaulter.

(5) A warrant of arrest issued by the Adjudicating Authority under sub-section (3) or sub-section (4) may also be executed by any other Adjudicating Authority within whose jurisdiction the defaulter may for the time being be found.

(6) Every person arrested in pursuance of a warrant of arrest under this section shall be brought before the Adjudicating Authority issuing the warrant as soon as practicable and in any event within twenty-four hours of his arrest (exclusive of the time required for the journey):

Provided that, if the defaulter pays the amount entered in the warrant of arrest as due and the costs of the arrest to the officer arresting him such officer shall at once release him.

(7) When a defaulter appears before the Adjudicating Authority pursuant to a notice to show cause or is brought before the Adjudicating Authority under this section, the Adjudicating Authority shall give the defaulter an opportunity showing cause why he should not be committed to the civil prison.

(8) Pending the conclusion of the inquiry, the Adjudicating Authority may, in his discretion, order the defaulter to be detained in the custody of such officer as the Adjudicating Authority may think fit or release him on his furnishing the security to the satisfaction of the Adjudicating Authority for his appearance as and when required.

(9) Upon the conclusion of the inquiry, the Adjudicating Authority may make an order for the detention of the defaulter in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:

Provided that in order to give a defaulter an opportunity of satisfying the arrears, the Adjudicating Authority may, before making the order of detention, leave the defaulter in the custody of the officer arresting him or of any other officer for a specified period not exceeding fifteen days, or release him on his furnishing security to the satisfaction of the Adjudicating Authority for his appearance at the expiration of the specified period if the arrears are not satisfied.

(10) When the Adjudicating Authority does not make an order of detention under sub-section (9), he shall, if the defaulter is under arrest, direct his release.

(11) Every person detained in the civil prison in execution of the certificate may be so detained:

    (a) Where the certificate is for a demand of an amount exceeding rupees one crore up to three years, and

    (b) In any other case up to six months:

Provided that he shall be released from such detention on the amount mentioned in the warrant for his detention being paid to the officer-in-charge of the civil prison.

(12) A defaulter released from detention under this section shall not, merely by reason of his release, be discharged from his liability for the arrears but he shall not be liable to be arrested under the certificate in execution of which he was detained in the civil prison.

(13) A detention order may be executed at any place in India in the manner provided for the execution of warrant of arrest under the Code of Criminal Procedure, 1973 (2 of 1974).

  1. Indicative Points RBI considers while compounding:

The RBI considers the following indicative points while examining the nature of contravention under FEMA and Rules and Regulations made thereunder:

  1. whether the contravention is technical and/ or minor in nature and need only an administrative cautionary advice;
  2. whether the contravention is serious and warrants compounding of the contravention; and
  3. whether the contravention, prima facie, involves money laundering, national and security concerns involving serious infringements of the regulatory framework.

If, before disposal of the compounding application by issue of a compounding order the RBI finds that there is sufficient cause for further investigation, it may recommend the matter to Directorate of Enforcement (DoE) for further investigation and necessary action under FEMA, by them or to the Anti-Money Laundering Authority instituted under PMLA, 2002 or to any other agencies, as deemed fit. Since the compounding application will have to be disposed of within 180 days, the application will be disposed of by returning the application to the applicant in view of investigation required to be conducted. The FEMA lapses may be either the procedural lapses or innocent lapses or serious lapses or violations. Under the Compounding Rules, the contraventions are compounded considering the following factors:

  1. the amount of gain or unfair advantage, wherever quantifiable, made as a result of the contraventions;
  2. the amount of loss caused to any authority or agency or exchequer as a result of the contravention;
  3. economic benefits accruing to the contravener from delayed compliance or compliance avoided;
  4. the repetitive nature of the contravention, the track record and/ or the history of non-compliance of the contravener;
  5. contravener’s conduct in undertaking the transaction and in disclosure of full facts in the application and submissions made during the personal hearing; and
  6. any other factor as considered relevant and appropriate.

It should be reiterated here that the contraventions which are wilful, intentional or having mala fide and fraudulent intention shall not be considered for compounding in terms of the Compounding Rules issued by the RBI.

  1. RBI Advisory to Authorised Dealers (RBI Circular 76, 17/01/2013):
  2. In terms of section 11(2) of FEMA, 1999, the Reserve Bank may, for the purpose of ensuring the compliance with the provisions of the Act or of any rule, regulation, notification, direction or order made thereunder, direct any authorized person to furnish such information, in such manner, as it deems fit. Accordingly, RBI has entrusted to the Authorised Dealers (ADs) the responsibility of complying with the prescribed rules/regulations for the foreign exchange transactions and reporting the same as per the directions issued from time to time.
  3. During the compounding process, on a number of occasions, it has been brought to our notice by the applicants that the contraventions of the provisions of FEMA by corporates and individuals are due to the acts of omission and commission of the Authorised Dealers and some of the applicants have also produced documentary evidence in support of their claim. Such contraventions being dealt with by the Reserve Bank mainly relate to:
  4. Draw down of External Commercial Borrowing (ECB) without obtaining Loan Registration Number (LRN) [Regulations 3 and 6 of FEMA 3/2000];
  5. Allowing draw down of ECB under the automatic route from unrecognised lender, to ineligible borrower, for non-permitted end uses, etc. [Regulations 3 and 6 of FEMA 3/2000];
  6. Non-filing of form ODI for obtaining UIN before making the second remittance to overseas WOS/JV for Overseas Direct Investment (ODI) [Regulation 6(2)(vi) of FEMA 120/2004];
  7. Non-submission of Annual Performance Reports (APRs)/copies of Share Certificates to the AD (and non-reporting thereof by the AD to Reserve Bank) in respect of overseas investments [Regulation 15 of FEMA 120/2004];
  8. Delay in submission of the Advance Reporting Format in respect of Foreign Direct Investment (FDI) to the concerned Regional Office of the Reserve Bank [paragraph 9(1)(A) of Schedule I to FEMA 20/2000];
  9. Delay in filing of details after issue of eligible instruments under FDI within 30 days in form FC-GPR to the concerned Regional Office of the Reserve Bank [paragraph 9(1)(B) of Schedule I to FEMA 20/2000];
  10. Delay in filing of details pertaining to transfer of shares for FDI transactions in form FC-TRS by resident individual/companies [Regulation 10(A)(b) of FEMA 20/2000]; etc.
  11. From the data on compounding cases received by Reserve Bank, it is observed that more than 70% of the total cases pertain to FDI within which about 72% relate to delay in advance reporting/submission of FCGPR. In the case of ECB, 24% of the cases received relate to drawdown without obtaining LRN. Similarly, 66% of the ODI cases relate to non-reporting of overseas investments online. Authorised Dealers have an important role to play in avoidance of such contraventions and accordingly, the dealing officials in the banks need to be sensitised and trained to discharge this function efficiently.
  12. All the transactions involving Foreign Direct Investment (FDI), External Commercial Borrowing (ECB) and Outward Foreign Direct Investment (ODI) are important components of our Balance of Payments statistics which are being compiled and published on a quarterly basis. Any delay in reporting affects the integrity of data and consequently the quality of policy decisions relating to capital flows into and out of the country. Authorised Dealers are, therefore, advised to take necessary steps to ensure that checks and balances are incorporated in systems relating to dealing with and reporting of foreign exchange transactions so that contraventions of provisions of FEMA, 1999 attributable to the Authorised Dealers do not occur.
  13. In this connection, it is reiterated that in terms of section 11(3) of FEMA, 1999, the Reserve Bank may impose on the authorized person a penalty for contravening any direction given by the Reserve Bank under this Act or failing to file any return as directed by the Reserve Bank.

Competition Act, 2002, Objectives, Remedies

Competition Act, 2002, is an Indian legislation designed to prevent anti-competitive practices, promote fair competition, and protect consumer interests. Replacing the Monopolies and Restrictive Trade Practices (MRTP) Act, it establishes the Competition Commission of India (CCI) as the regulatory authority to monitor and address anti-competitive activities, such as cartels, abuse of dominant market position, and mergers or acquisitions that may harm competition. The Act aims to foster a competitive market environment, enabling consumer choice, innovation, and economic efficiency. Its provisions ensure that businesses operate transparently, preventing practices that could distort or limit fair market competition.

Objectives of the Competition Act 2002:

  • Promote and Sustain Competition

The Act aims to promote healthy competition among businesses, ensuring that markets remain open and competitive. It fosters an environment where companies compete fairly, which encourages efficiency, innovation, and consumer choice. By limiting monopolistic control, the Act ensures a level playing field for businesses.

  • Prevent Abuse of Dominant Position

A critical objective of the Act is to prevent companies from abusing their dominant market position. The Act prohibits practices like imposing unfair conditions, pricing unfairly, and restricting market access for smaller competitors, which could harm market fairness and consumer welfare. This provision ensures that dominant firms do not exploit their power to limit competition.

  • Prohibit Anti-Competitive Agreements

Act prohibits anti-competitive agreements, such as cartels and collusions, which distort market dynamics and harm consumer interests. Such agreements may involve price-fixing, production control, or market-sharing, all of which limit consumer choice and lead to higher prices. The CCI is empowered to investigate and penalize such activities to maintain market integrity.

  • Regulate Mergers and Acquisitions

Act requires certain mergers and acquisitions to obtain CCI’s approval to ensure they do not harm market competition. By evaluating the impact of mergers and acquisitions on market structure and competition, the Act ensures that consolidations do not lead to monopolies or reduce consumer options.

  • Protect Consumer Interests

Competition Act focuses on safeguarding consumer interests by promoting fair market practices. By preventing practices that can lead to price-fixing, limited product options, or lower quality, the Act protects consumers from exploitation, ensuring they benefit from a competitive marketplace.

  • Promote Economic Efficiency

Act aims to improve economic efficiency in production, distribution, and service delivery. By fostering competition, it encourages businesses to operate efficiently, which results in better quality goods and services, competitive pricing, and more sustainable practices.

  • Support Globalization of Indian Economy

In an increasingly globalized world, the Act seeks to prepare Indian businesses to compete on an international scale. By fostering a competitive domestic market, it enhances the capabilities of Indian companies to operate effectively both locally and globally.

  • Ensure Fair Competition in the Market

Overarching objective of the Act is to ensure a fair and transparent marketplace where companies can thrive based on merit, quality, and consumer trust. This promotes sustainable business growth and fosters an environment conducive to entrepreneurship and innovation.

Remedies of the Competition Act2002:

  • Cease and Desist Orders

CCI can issue a “cease and desist” order to entities engaged in anti-competitive practices. This order mandates the business to immediately stop actions like collusion, abuse of dominance, or cartel formation. Cease and desist orders prevent further harm to the market and protect consumers from anti-competitive behavior.

  • Penalties and Fines

Act allows the CCI to impose monetary penalties on firms or individuals found violating competition laws. For example, penalties for cartel activities may amount to 10% of the average turnover over the past three years or three times the profit from the infringing activity. These fines act as a deterrent against anti-competitive practices and encourage compliance.

  • Divestiture or Structural Remedies

In cases where an entity’s market dominance poses a threat to competition, the CCI can order structural remedies, including divestiture or breaking up parts of a business. For instance, a company might be required to sell off assets or divisions to restore competition in the market. Divestiture is especially relevant in cases of mergers and acquisitions that risk monopolizing a market.

  • Modification of Agreements

CCI may direct companies to modify their agreements if they contain anti-competitive terms. This remedy applies to agreements that involve price-fixing, market-sharing, or exclusive dealing arrangements that harm competition. Modifying such agreements ensures that they align with fair trade practices and support open market access.

  • Void Agreements

Under Section 3 of the Act, the CCI has the authority to declare anti-competitive agreements null and void. Agreements found to limit competition, restrict production, or fix prices can be invalidated. This measure removes restrictive terms from the market, ensuring fair competition.

  • Merger Control Orders

For mergers and acquisitions that may harm competition, the CCI can approve, modify, or block the transaction. By examining the impact of proposed mergers on competition, the CCI ensures that consolidations do not create monopolies or restrict consumer choice.

  • Interim Orders

CCI can issue interim orders to temporarily halt practices that may be anti-competitive until a full investigation is completed. Interim orders are useful when immediate action is needed to prevent irreparable harm to the market.

  • Leniency Program

To encourage whistle-blowing, the Act includes a leniency program where individuals or companies involved in anti-competitive activities can provide evidence and receive reduced penalties. This helps the CCI uncover hidden cartels and other unfair practices more effectively.

  • Compensation for Affected Parties

Individuals or businesses harmed by anti-competitive practices can seek compensation from the CCI. This remedy provides a form of restitution for losses incurred due to anti-competitive behavior, such as inflated prices or restricted access to goods or services.

Audit Committee, Composition, Role, Responsibilities, Importance

Audit Committee is typically composed of independent non-executive directors, with at least one member having expertise in finance, accounting, or auditing. Its main purpose is to assist the board of directors in fulfilling its oversight responsibilities, particularly related to financial reporting, internal control, and compliance with laws and regulations. The committee works closely with both external and internal auditors to monitor the effectiveness of the audit process and ensure that financial statements provide a true and fair view of the company’s financial performance and position.

Composition of the Audit Committee:

  • Independent Directors:

The audit committee must include a majority of independent non-executive directors to ensure impartiality and prevent conflicts of interest. The inclusion of independent directors ensures objectivity in overseeing the audit process.

  • Financial Expert:

At least one member of the audit committee must have financial expertise to understand complex accounting principles, financial statements, and audit processes.

  • Chairperson:

The chairperson of the audit committee is typically an independent director. This role is crucial in ensuring the proper functioning of the committee and its collaboration with auditors and the board.

Role and Responsibilities of the Audit Committee:

  • Overseeing Financial Reporting:

The committee ensures that the company’s financial statements are prepared in accordance with applicable accounting standards and regulatory requirements. It reviews the annual financial reports before submission to the board and shareholders.

  • Monitoring Internal Control Systems:

The audit committee evaluates the effectiveness of the company’s internal control systems, ensuring that policies and procedures are in place to mitigate risks, prevent fraud, and ensure the accuracy of financial records.

  • Reviewing the External Audit Process:

The committee selects and appoints external auditors and ensures their independence. It meets regularly with auditors to discuss their audit findings, key concerns, and any issues that may affect the company’s financial reporting.

  • Risk Management Oversight:

The audit committee is involved in reviewing the company’s risk management framework and processes. It assesses potential risks (financial, operational, or compliance-related) and evaluates how they are being managed or mitigated.

  • Compliance with Laws and Regulations:

The committee ensures that the company complies with legal and regulatory requirements, such as tax laws, securities regulations, and corporate governance standards. It plays a key role in overseeing compliance with laws that affect financial reporting.

  • Internal Audit Function:

The audit committee is responsible for overseeing the internal audit function, which evaluates the company’s internal controls and operational effectiveness. The committee works with internal auditors to identify areas for improvement and ensures timely action is taken.

Importance of the Audit Committee

  • Enhancing Transparency:

By ensuring proper oversight of the financial reporting process and the internal and external audits, the audit committee enhances transparency and accountability in the company’s financial disclosures. This boosts the confidence of shareholders, investors, and other stakeholders in the financial health of the company.

  • Strengthening Corporate Governance:

The audit committee is a cornerstone of good corporate governance. It promotes transparency, ethical conduct, and sound financial practices, helping the company to operate in a manner that is aligned with the best interests of its shareholders.

  • Improving Internal Controls and Risk Management:

The audit committee helps identify weaknesses in internal controls and ensures corrective actions are implemented. This strengthens the company’s ability to manage risks effectively and ensures that operations are running efficiently and securely.

  • Facilitating Effective Auditing:

The audit committee ensures that auditors have the resources, access, and independence they need to perform their duties. It facilitates the smooth functioning of the auditing process by acting as a bridge between the auditors and the company’s management.

  • Protecting Stakeholder Interests:

By ensuring proper financial reporting and compliance, the audit committee helps protect the interests of stakeholders, including shareholders, employees, regulators, and creditors.

Regulatory Framework Governing Audit Committees

In many countries, including India, the establishment of an audit committee is mandated by law for listed companies and certain public interest entities. In India, the Companies Act, 2013 and SEBI (Securities and Exchange Board of India) regulations require that listed companies form an audit committee. Some key requirements under Indian law include:

  • The committee must consist of at least three directors, with a majority of independent directors.
  • The committee must meet at least four times a year, with a quorum of two members present for meetings.
  • The audit committee must review and discuss financial statements, the internal audit process, the external audit’s scope, and the company’s risk management strategy.

CSR Committee, Composition, Role and Responsibilities, Importance, Challenges

Corporate Social Responsibility (CSR) Committee is a specialized committee formed within a company’s board of directors to oversee and implement its CSR activities. The committee ensures that the company fulfills its social, environmental, and ethical obligations in accordance with the law and promotes sustainable development. It plays a vital role in strategizing, monitoring, and evaluating CSR initiatives to align them with the organization’s vision and regulatory requirements.

Meaning and Legal Mandate

CSR Committee is mandated under Section 135 of the Companies Act, 2013 in India for companies that meet specific criteria related to net worth, turnover, or net profit. It is responsible for formulating and monitoring CSR policies and ensuring compliance with statutory obligations. The formation of a CSR Committee underscores the growing importance of corporate accountability towards societal and environmental welfare.

Composition of CSR Committee

  • Members:

CSR Committee should consist of at least three directors, with at least one being an independent director. For private companies, the committee may include only two directors, and for unlisted public companies without independent directors, it is not mandatory to have an independent director on the committee.

  • Chairperson:

The committee often elects a chairperson from among its members to lead its activities.

The composition ensures diversity in perspectives and expertise, enabling the committee to design and execute effective CSR strategies.

Role and Responsibilities of CSR Committee

The CSR Committee is tasked with several critical responsibilities, including:

a. Formulating CSR Policy

  • Developing a detailed CSR policy that outlines the company’s CSR vision, objectives, and areas of focus, such as education, healthcare, environmental sustainability, and community welfare.
  • Aligning the policy with the company’s long-term goals and the provisions of Schedule VII of the Companies Act, 2013.

b. Recommending CSR Activities

  • Identifying specific CSR projects or programs to be undertaken.
  • Ensuring that these activities align with the objectives mentioned in the CSR policy.

c. Budget Allocation

  • Recommending the amount of expenditure to be incurred on CSR activities.
  • Ensuring that the prescribed percentage of profits (2% of the average net profit of the preceding three years) is allocated for CSR activities.

d. Monitoring and Implementation

  • Monitoring the implementation of CSR projects to ensure compliance with the CSR policy and timelines.
  • Evaluating the impact of CSR initiatives and ensuring that they contribute positively to the targeted beneficiaries.

e. Reporting

  • Preparing an annual report on CSR activities, including details of projects undertaken, expenditure incurred, and outcomes achieved.
  • Ensuring that the report is included in the company’s board report and submitted to regulatory authorities.

Importance of CSR Committee

CSR Committee plays a pivotal role in bridging the gap between corporate objectives and societal needs. Its importance can be summarized as follows:

  • Strategic Oversight: Provides a structured approach to CSR by integrating it into the company’s strategic framework.
  • Compliance: Ensures adherence to legal mandates and regulatory requirements related to CSR.
  • Sustainability: Promotes sustainable development through impactful initiatives addressing social and environmental concerns.
  • Accountability: Enhances transparency and accountability by monitoring and reporting CSR activities.
  • Corporate Reputation: Strengthens the company’s image as a socially responsible organization, fostering goodwill among stakeholders.

Key Activities of the CSR Committee

Some of the typical activities undertaken by the CSR Committee:

  • Identifying key areas of intervention such as education, healthcare, sanitation, rural development, and environmental sustainability.
  • Partnering with non-governmental organizations (NGOs), government bodies, or other organizations for effective project implementation.
  • Reviewing and approving CSR proposals and budgets.
  • Assessing the long-term impact of CSR projects and making necessary adjustments to the CSR policy or projects as needed.

Challenges Faced by CSR Committees

  • Limited Resources: Balancing financial constraints with the need for impactful CSR initiatives.
  • Measuring Impact: Accurately assessing the outcomes of CSR projects can be challenging.
  • Stakeholder Engagement: Ensuring alignment with the expectations of all stakeholders, including communities, employees, and shareholders.
  • Regulatory Compliance: Keeping up with changes in CSR regulations and ensuring adherence.

CSR Committee in India

In India, the Companies Act, 2013 makes CSR mandatory for companies meeting certain financial thresholds:

  • Net worth: ₹500 crore or more.
  • Turnover: ₹1,000 crore or more.
  • Net profit: ₹5 crore or more.

Such companies must spend at least 2% of their average net profit from the preceding three financial years on CSR activities. The CSR Committee ensures that these requirements are met effectively.

Certificate of Commencement of Business

Certificate of Commencement of Business is an official document issued by the Registrar of Companies (RoC), which authorizes a company to begin its operations. This certificate is a key legal requirement under the Companies Act, 2013, particularly for public companies. It signifies that the company has met all the necessary conditions stipulated by law and can officially commence its business activities.

In India, the need for a Certificate of Commencement of Business was initially required only for public companies that issued shares to the public. However, with amendments to the Companies Act, 2013, the issuance of this certificate remains a critical step for such companies.

Requirements for Obtaining the Certificate of Commencement of Business:

Before a company can commence its business, it must fulfill several legal obligations. These requirements include:

  • Incorporation of the Company:

The company must first complete the process of incorporation. This involves the submission of the necessary documents, such as the Memorandum of Association (MoA), Articles of Association (AoA), and the directors’ details to the Registrar of Companies (RoC).

  • Minimum Subscription:

A public company must raise a minimum subscription for its issued shares. This ensures that there is adequate financial backing to commence business. The company must receive at least 90% of the issued capital within a specified period, as stipulated by the Companies Act, 2013.

  • Filing of Declaration:

The directors of the company are required to submit a declaration stating that the minimum subscription has been received, and the company is ready to commence business. This declaration is filed with the RoC.

  • Payment of Share Capital:

The company must ensure that the shareholders have paid the full amount of the subscribed capital. In the case of shares issued at a premium, the company must ensure that the premium is collected as well.

  • Appointment of Statutory Auditor:

The company must appoint its first statutory auditor, who will be responsible for auditing the company’s financial statements.

  • Filing with RoC:

After fulfilling the above requirements, the company must submit the necessary forms (Form 20A) to the Registrar of Companies (RoC) for approval.

Once these conditions are met and the Registrar of Companies is satisfied, the Certificate of Commencement of Business is issued. This certificate serves as official proof that the company is legally permitted to commence its business operations.

Importance of the Certificate of Commencement of Business:

  • Legality of Operations:

The certificate signifies that the company has fulfilled all legal requirements to begin its business activities. Without this certificate, the company cannot engage in any commercial transactions, sign contracts, or carry out its operations.

  • Investor Confidence:

Investors often rely on the Certificate of Commencement of Business to ensure that a company is in compliance with the law and is legally allowed to begin its operations. This document assures investors that their investments are secure and that the company is operational.

  • Financial Security:

By obtaining the certificate, the company assures its stakeholders, including creditors and suppliers, that it has met the necessary capital requirements and is ready to begin its business activities. This adds a layer of credibility and financial stability to the company.

  • Legal Compliance:

For public companies, obtaining the certificate is an essential part of complying with the Companies Act, 2013. It ensures that the company follows the regulatory framework governing business activities in India.

  • Commencement of Legal Transactions:

The certificate serves as the official permission for the company to commence legal transactions. This includes signing contracts, borrowing funds, and engaging in business dealings that are crucial for the company’s success.

  • Avoiding Penalties:

Failure to obtain the Certificate of Commencement of Business within the prescribed period may result in penalties or legal consequences. The company may face fines or the possibility of being struck off from the register of companies if it does not comply.

Consequences of Not Obtaining the Certificate:

If a company fails to obtain the Certificate of Commencement of Business, it cannot legally engage in any business activity. The consequences include:

  • Inability to operate: The company cannot begin its business operations, sign contracts, or make transactions.
  • Legal penalties: The company may be fined or even struck off from the Registrar of Companies.
  • Loss of investor confidence: Lack of this certificate may cause investors to question the legitimacy of the company.

Objectives & Functions of EXIM Bank

The Export and Import Bank of India, popularly known as the EXIM Bank was set up in 1982. It is the principal financial institution in India for foreign and international trade. It was previously a branch of the IDBI, but as the foreign trade sector grew, it was made into an independent body.

The main function of the Export and Import Bank of India is to provide financial and other assistance to importers and exporters of the country. And it oversees and coordinates the working of other institutions that work in the import-export sector. The ultimate aim is to promote foreign trade activities in the country.

The management of the EXIM bank is done by a board, headed by the Managing Director. There are 17 other Directors on the board. The whole paid-up capital of the bank (100 crores currently) is subscribed by the Central Government exclusively.

Objectives of EXIM Bank

  1. To ensure and integrated and co-ordinated approach in solving the allied problems encountered by exporters in India.
  2. To pay specific attention to the exports of capital goods
  3. Export projection
  4. To facilitate and encourage joint ventures and export of technical services and international and merchant banking
  5. To extend buyers’ credit and lines of credit;
  6. To tap domestic and foreign markets for resources for undertaking development and financial activities in the export sector.

Functions of the EXIM Bank

  1. Finances import and export of goods and services from India
  2. It also finances the import and export of goods and services from countries other than India.
  3. It finances the import or export of machines and machinery on lease or hires purchase basis as well.
  4. Provides refinancing services to banks and other financial institutes for their financing of foreign trade
  5. EXIM bank will also provide financial assistance to businesses joining a joint venture in a foreign country.
  6. The bank also provides technical and other assistance to importers and exporters. Depending on the country of origin there are a lot of processes and procedures involved in the import-export of goods. The EXIM bank will provide guidance and assistance in administrative matters as well.
  7. Undertakes functions of a merchant bank for the importer or exporter in transactions of foreign trade.
  8. Will also underwrite shares/debentures/stocks/bonds of companies engaged in foreign trade.
  9. Will offer short-term loans or lines of credit to foreign banks and governments.
  10. EXIM bank can also provide business advisory services and expert knowledge to Indian exporters in respect of multi-funded projects in foreign countries.

The Exim Bank has a 17-member Board of Directors, with Chairman and Managing Director as the chief executive and full-time director. The Board of Directors consists of the representative of the Government of India, RBI, IDBI, ECGC, commercial banks and the exporting community.

The authorised capital of Exim Bank is Rs. 200 crores, of which Rs. 75 crores is paid up. The banks have secured a long-term loan of Rs. 20 crores from the Government of India. It can also borrow from the RBI. It is empowered to raise resources in domestic and international markets.

The Bank began its lending operations from March, 1982. Till June, 1982, it has extended assistance up to Rs. 133 crores to the export sector in various ways.

The establishment of Exim Bank may be regarded as a right step in the export promotion policy and programmme of the Government.

During 1984, the Exim Bank sanctioned various programmes of funded assistance of Rs. 430 crores. It also launched a new programme to provide term finance for export-oriented units, under which assistance was provided through a consortium for establishing a 100 per cent export unit in the ceramics industry.

The Exim Bank also extended its financial assistance to Indian exports through letters of credit, re-lending facility, export bills rediscounting, overseas investment finance, facilities for deemed exports and assistance to hundred per cent export units and units in free trade zone.

At the end of December 1984, the Exim Bank’s outstanding underfunded and non-funded assistance amounted to Rs. 415 crores and Rs. 510 crores, respectively.

In 1984, the Exim Bank signed a loan agreement to borrow one billion yen from the Japanese commercial yen market.

In June 1986, the Exim Bank introduced a new programme called the Export Marketing Fund (EMF), under which finance is made available to Indian companies for undertaking export marketing activities. The programme also covers activities like desk research, minor product adaptation, overseas operations and travel to India by buyers overseas. During 1986, Rs. 78 lakhs were sanctioned, while Rs. 3.4 lakhs have been utilised under the EMF.

On whole, the Exim Bank concluded an agency credit line of US $ 15 million with the International Finance Corporation (IFC).

During 1994-95, Exim Bank sanctioned Rs. 2,466 crore and disbursed Rs. 2,130 crore of financial assistance under various lending project.

Porter Five Forces Model

The main purpose of industry analysis, in the context of strategic choice is to determine the industry attractiveness, and to understand the structure and dynamics of the industry with a view to find out the continued relevance to strategic alternatives that are there before a firm.

It follows that, for instance, if the industry is not, or no longer, sufficiently attractive (i.e. it does not offer long-term growth opportunities), then the strategic alternatives that lie within the industry should not be considered. It also means that alternative may have to be sought outside the industry calling for diversification moves.

Porter’s Five Forces is a business analysis model that helps to explain why different industries are able to sustain different levels of profitability. The model was originally published in Michael Porter’s book, “Competitive Strategy: Techniques for Analyzing Industries and Competitors” in 1980.

The model is widely used to analyze the industry structure of a company as well as its corporate strategy. Porter identified five undeniable forces that play a part in shaping every market and industry in the world. The forces are frequently used to measure competition intensity, attractiveness and profitability of an industry or market.

These Forces are:

  1. Threat of New entrants

This force determines how easy (or not) it is to enter a particular industry. If an industry is profitable and there are few barriers to enter, rivalry soon intensifies. When more organizations compete for the same market share, profits start to fall. It is essential for existing organizations to create high barriers to enter to deter new entrants.

  • Low amount of capital is required to enter a market;
  • Existing companies can do little to retaliate;
  • Existing firms do not possess patents, trademarks or do not have established brand reputation;
  • There is no government regulation;
  • Customer switching costs are low (it doesn’t cost a lot of money for a firm to switch to other industries);
  • There is low customer loyalty;
  • Products are nearly identical;
  • Economies of scale can be easily achieved.

New entrants raise the level of competition in an industry and reduce its attractiveness. Threat of new entrants depends on barriers to entry. More barriers to entry reduce the threat of new entrants. Some of the key entry barriers are:

  • Economies of scale

Industries where the fixed investment is high (such as automobiles), yield higher profits with larger scale of operations. In such industries, established players may have economies of scale of production which new entrants will not have, thus acting as a barrier.

  • Capital requirements

Industries that require large seed capital for establishing the business (such as steel) discourage new entrants that cannot invest this amount.

  • Switching costs

Customers may face some switching cost like having to buy new spare parts or train employees to run the new machine, in moving from one company to the other, thus discouraging movement of customers from existing players to new entrants.

  • Access to distribution

Established players may have access to the most efficient distribution channels. Distribution channel members may not tie up with new entrants who pose competition to their existing partners.

  • Expected retaliation

If existing players have large stakes in continuing their business (large investment, substantial revenues, strategic importance), or if they are dominant players, they would retaliate strongly to any new entrant.

  • Brand equity

Existing players have established product reputation and built a strong brand image over the years. New players would find it hard to convince customers to switch over to their offering. To incumbent competitors, industry attractiveness can be increased by raising entry barriers. In fact, one of the main objectives of existing players in the industry is to erect strong entry barriers to prevent new competitors from entering the industry.

  1. Bargaining Power of Suppliers

Strong bargaining power allows suppliers to sell higher priced or low quality raw materials to their buyers. This directly affects the buying firms’ profits because it has to pay more for materials. Suppliers have strong bargaining power when:

  • There are few suppliers but many buyers
  • Suppliers are large and threaten to forward integrate
  • Few substitute raw materials exist
  • Suppliers hold scarce resources
  • Cost of switching raw materials is especially high

Bargaining power of suppliers will be high when:

  • Many buyers and few sellers

There are many buyers and few dominant suppliers. Suppliers would be in a position to charge higher prices or cause instability in supply of essential products. The buyers should develop more suppliers by agreeing to invest in them and helping them with technologies.

  • Differentiated supplies

When suppliers offer differentiated and highly valued components, their bargaining power is higher, since the buyer cannot switch suppliers easily. When many suppliers offer a standardized product, their bargaining power reduces. The buyer should bring the processes that enable the supplier to make differentiated products in-house and buy only standard components from the supplier.

  • Crucial supplies

If the product sold by the supplier is a key component for the buyer, or it is crucial for its smooth operations, then the bargaining power of suppliers is higher. The buyer should always keep the production of key components with itself.

  • Forward integration

When there is a threat of forward integration into the industry by the suppliers, their bargaining power is higher. There is a strong threat of forward integration when the supplier supplies a very crucial part of the final product. The supplier of engines to an automobile maker is in a very strong position to contemplate making automobiles because it already has expertise over a key component of the final product.

  • Backward integration

When there is threat of backward integration by buyers, the bargaining power of suppliers becomes weaker, as the supplier may become redundant if the buyer starts making the same product. The buyer should always have an idea of the technologies that are being employed in making crucial and differentiated products and should be capable of putting together the resources to make these components. Suppliers should always understand that if the buyer is cornered, he will start making the components himself.

  • Level of dependence

When the industry is not a key customer group for suppliers, their bargaining power increases. Buyers are dependent on suppliers, though suppliers do not focus on the customer group. The suppliers can survive even when they stop supplying to the buyers as the major part of their business is coming from some other industry. The buyers should be careful in selecting their suppliers. They should select suppliers who have strong stake in the buyers’ industry and not those who only have peripheral interests in the buyers’ industry.

  1. Bargaining Power of Buyers

Buyers have the power to demand lower price or higher product quality from industry producers when their bargaining power is strong. Lower price means lower revenues for the producer, while higher quality products usually raise production costs. Both scenarios result in lower profits for producers. Buyers exert strong bargaining power when:

  • Buying in large quantities or control many access points to the final customer
  • Only few buyers exist
  • Switching costs to other supplier are low
  • They threaten to backward integrate
  • There are many substitutes
  • Buyers are price sensitive

Higher bargaining power of customers implies that they can seek greater compliance from the companies of the industry.

  • Few dominant customers

When there are few dominant customers and many sellers, customers can exercise greater choice. They also dictate terms and conditions to the supplier. This is true in industrial markets where many suppliers make standard components for a few Original Equipment Manufacturers. The OEMs are able to extract big concessions on price and coerce the suppliers to provide expensive services like just-in-time supplies. The suppliers have to agree to debilitating terms of the buyers if they have to continue to supply to them.

  • Non-differentiated products

If products sold by the players in the industry are standardized, or there are little differences among them, buyers can easily switch over to competitors, increasing their bargaining power. This is increasingly happening in consumer markets. Customers are not able to tell one manufacturer’s product from that of another. The result is that the customers are buying mostly on price and the manufacturers are reducing prices to lure customers.

The problem with such an approach is that with reduced profits, a company’s ability to differentiate its product further goes down. The manufacturer is caught in the spiral of low differentiation-low price-low profits- further low differentiation-further low prices-further low profits. The manufacturer has to break this chain and collect resources to differentiate its product so that it can fetch a higher price and profit.

  • Small proportion of customer’s total purchase

If the product offered by the firm is not important or critical for the customer, the bargaining power of customers is higher. The product may be of a relatively smaller value in the overall disposable income of the customer. This may work out to be to the advantage of the seller.

The customer will not be overly worried if the supplier raises its price by small amount as the slightly increased expenditure will not be a big dent in the income of the customer. As level of economic prosperity rises, manufacturers of packaged foods and other fast moving consumer goods can increase the quality and price of their products. Customers would not mind paying slightly higher prices for better products.

  • Backward integration

Customers may threaten to integrate backward into the industry, and compete with suppliers. This may be a reality in industrial markets but it is very rare in consumer markets. Most customers do not have the resources to start making what they buy.

  • Forward integration

Suppliers can threaten to integrate forward into customers’ industry. The customers have to understand and contain the imminent threat of competition from their suppliers. This threat is meaningless in consumer markets but the threat is real in industrial markets, particularly when the supplier is supplying a key component.

  • Key supplies

The industry is not a key supplying group for buyers. In consumer markets, one manufacturer supplies only a small fraction of his total purchases.

  1. Threat of Substitutes

This force is especially threatening when buyers can easily find substitute products with attractive prices or better quality and when buyers can switch from one product or service to another with little cost. For example, to switch from coffee to tea doesn’t cost anything, unlike switching from car to bicycle.

  • Buyer’s willingness to substitute

Buyers will substitute when the industry’s product is not strongly differentiated, so the buyers will not have developed strong preference for the product. In industrial markets, the product should be either enhancing value of the final product it becomes a part of, or is enhancing the operation of the buyer.

  •  Relative prices and performance of substitutes

If the substitute enhances the operation of the customer without incurring additional costs, substitute product would be preferred.

  • Costs of switching over to substitutes

In industrial markets, if a company has to buy another manufacturer’s product, the company will have to buy new spare parts and will have to train its operations and maintenance staff on the new machine.

The substitute products satisfy the same general need of the customer. The customer evaluates various aspects of the substitute products such as prices, quality, availability, ease of use etc. Relative substitutability of products varies among customers. The threat of substitute products depends on how sophisticated the needs of the buyers are, and how strongly entrenched their habits are. Some people will continue to drink coffee, and will never ever switch to drinking tea, no matter how costly coffee may become.

A company can lower threat of substitute products by building up switching costs, which may be monetary or psychological-by creating strong distinctive brand personalities and maintaining a price differential commensurate with perceived consumer value.

  1. Rivalry among existing competitors

This force is the major determinant on how competitive and profitable an industry is. In competitive industry, firms have to compete aggressively for a market share, which results in low profits. Rivalry among competitors is intense when:

  • There are many competitors
  • Exit barriers are high
  • Industry of growth is slow or negative
  • Products are not differentiated and can be easily substituted
  • Competitors are of equal size
  • Low customer loyalty

The intensity of rivalry between competitors depends on:

  • Structure of competition

An industry witnesses intense rivalry amongst its players, when it has large number of small companies or a few equally entrenched companies. An industry witnesses less rivalry when it has a clear market leader. The market leader is significantly larger than the industry’s second largest player, and it also has a low cost structure.

  • Structure of costs

In an industry which has high fixed costs, a player will cut price to attract competitors’ customers to fill capacity. A player may be willing to price just above its marginal cost, and since the industry’s marginal cost is low, it is not unusual to see price cuts of 50-70 per cent Such price cuts are almost always matched by competitors, because all of them are trying to fill capacity. The inevitable result is a price war.

  • Degree of differentiation

Players of an industry whose products are commoditized will essentially compete on price, and hence price cuts of a player will be swiftly matched by competitors, resulting in intense rivalry. But when players of an industry can differentiate their products, they understand that customers do not associate the industry’s products with a single price, and that the price of a product is dependent on its features, benefits and brand strength. Players of such an industry compete on features, benefits and brand strength, and hence rivalry is less intense. When a player cuts price, its competitor can react by adding more features, providing more benefits, or hiring a celebrity in its advertisements, instead of cutting price.

  • Switching costs

Switching cost is high when product is highly specialized, and when the customer has expended lot of resources and efforts to learn how to use it. Switching cost is also high when the customer has made investments that will become worthless if he uses any other product. Since a customer of a company is not likely to be lured by competitors’ price cuts and other manoeuvres, competitive rivalry is less in such an industry.

  • Strategic objectives

When competitors are pursuing build strategies, they will match the price cuts of a player because they do not want to lose market share to the player who has cut price. Therefore, rivalry will be intense. But when competitors are pursuing hold or harvest strategies, they will not be too keen to match the price cuts of a player, because they are more interested in profits than market share. Therefore, rivalry will be less intense.

  • Exit barriers

When players cannot leave an industry due to factors such as lack of opportunities elsewhere, high vertical integration, emotional barriers or high cost of closing down a plant, rivalry will be more intense. In such an industry, players will compete bitterly as they do not have the option to quit. But, when exit barriers are low, players who are not good enough, or who have found more attractive industries to enter, can exit. With fewer numbers of players in the industry now, rivalry will be less intense.

Although, Porter originally introduced five forces affecting an industry, scholars have suggested including the sixth force: complements. Complements increase the demand of the primary product with which they are used, thus, increasing firm’s and industry’s profit potential. For example, iTunes was created to complement iPod and added value for both products. As a result, both iTunes and iPod sales increased, increasing Apple’s profits.

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