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Chapter 1 SPECIAL ECONOMIC ZONE SCHEME 1.1 Introduction to SEZ Scheme Special
Economic Zone (SEZ) Scheme was introduced by the Government with effect from
1.4.2000 with the objectives to provide an internationally competitive and
hassle-free environment for earning of foreign exchange, attracting Foreign
Direct Investment (FDI), generation of employment and to facilitate transfer of
technology. Special Economic Zones are considered to be growth engines to boost
manufacturing, augment exports and generate large scale employment. The
unique feature of the SEZ Scheme is that an SEZ is considered to be foreign
territory for the purposes of trade operations and duties and tariffs. Supplies
of goods & services into SEZ from Domestic Tariff Area (DTA) are treated as
exports and goods & services coming from SEZ into DTA are to be treated as
if these are being imported. The
SEZ scheme envisages association of private sector with the development of SEZ.
SEZs could be set up in the public, private, joint sector or the State
Governments. Developers of an SEZ were eligible for duty free
procurement/import of goods and services for the purpose of development,
operation and maintenance of Zone. Legislative
journey of SEZ since its inception in the year 2000 could be divided into three
distinct phases. Three phases are as explained in the following paragraphs:— Phase I :
Conversion of operational EPZs into SEZs To
begin with, in the year 2000, the operational EPZs (Export Processing Zones) at
Mumbai, Kandla, Surat & Cochin were converted into SEZs with effect from
1.11.2000. Later remaining five EPZs located at Visakhapatnam, Bangalore,
Cochin, Surat and Noida were also converted into SEZs. Initially, the
manufacturing activities of SEZ units were covered under Section 3 of the
Central Excise Act, 1944 as it was duly amended and was made charging section
in respect of goods manufactured by SEZ units and cleared into the Domestic
Tariff Area. The
duty free import & procurement of indigenous goods by the SEZ units/developer
was governed by exemption notifications issued under the provisions of Customs
Act, 1962 and Central Excise Act, 1944 respectively. Services provided by any
service provider located in DTA to the Developer & SEZ Units, in terms of
the EXIM Policy (now, renamed as Foreign Trade Policy) and consumed inside the
SEZs, were also exempt from payment of service tax. Central Sales Tax, paid by EOU/EPZ units in respect of purchase
of goods, which used to be reimbursed to EPZ units, was exempted in case of SEZ
units. The supplies of goods from DTA to SEZ unit or SEZ developer for their
approved activities were considered as deemed exports and such supplies were
eligible for deemed export benefits in terms of the then EXIM Policy. The
above stated dispensation was in force
from 1-4-2000 to 10-5-2004 With
the passage of time and considering the encouraging performance of SEZ scheme
in terms of increased export, the
Government decided to provide for an exclusive legal dispensation for
SEZ. In the Finance Act, 2002, the Government incorporated exclusive legal
provisions for SEZ in the form of Chapter XA in the Customs Act, 1962. However,
Chapter XA of the Customs Act, 1962 could only be operationalised with effect
from 11-5-2004. Simultaneously, chargeability of all the manufacturing
activities of the units located in the SEZ were taken out of the ambit of
Central Excise Act, 1944. In other
words, the Central Excise Act, 1944 was made inapplicable to SEZ. In
accordance with the provision of specially incorporated Chapter XA of the
Customs Act, 1962, the Department of Revenue notified Special Economic Zones
Rules, 2003 and Special Economic Zones (Customs Procedure) Regulation, 2003,
which were operationalised with effect from 11-5-2004. Under these provisions,
the supplies from DTA to SEZ unit or SEZ developer for their authorized
operations were to be considered as ‘exports’ for the DTA supplier & supplies
to DTA from SEZ Units were to be considered as ‘imports’ into DTA. In case of
DTA sale by SEZ units, the duty was leviable in terms of Section 76F of the
Customs Act which was equal to the duty of Customs leviable on such goods when
imported into India. The supplies of goods manufactured in DTA to SEZ were no
longer considered as ‘deemed exports’ and were considered as ‘physical
exports’. The export related benefits such as Duty Drawback/DEPB was made
admissible on these supplies from DTA to SEZ. Phase III : Introduction of SEZ Act (from 10.2.2006 to till date) In
this phase, the Government put in place a single legislation for establishment,
development and management of the Special Economic Zones, for the promotion of
exports and for matters connected therewith or incidental thereto. In 2005, the
Government of India in the Ministry of Commerce & Industries enacted the
Special Economic Zones Act, 2005 (28 of 2005). Under the provision of SEZ Act,
Special Economic Zones Rules, 2006 were formulated and notified on 10.2.2006.
Both SEZ Act (except sections 20, 21, 22, 23, 24 and 31 to 41) and SEZ Rules
were operationalised with effect from 10-2-2006. Thus, as on date, SEZs are
governed by the provisions of the SEZ Act, 2005 and the SEZ Rules, 2006. On
21-2-2007, the Department of Revenue rescinded SEZ Rules, 2003 & SEZ
(Customs Procedure) Regulations, 2003. However, with effect from 14.3.2006, by
exercising power under Section 52 of the SEZ Act, 2005, the Government notified
that Chapter XA of the Customs Act, 1962, SEZ Rules, 2003 & SEZ (Customs
Procedure) Regulations, 2003 would not apply to Special Economic Zones. The
Chapter XA of the Customs Act has also been repealed vide Finance Act,
2007. Thus, with effect from 10-2-2006,
all the activities relating to SEZ are governed under the single legislation
namely, the SEZ Act, 2005 and SEZ Rules, 2006 made thereunder. In
the last seven years of existence, the Special Economic Zone Scheme has
traversed a long distance. Number of Special Economic Zones in operation has
doubled during 2006 from eight in year 2000. In addition, large number of SEZ
(more than two hundred in number) have been given notified and are at various
stages of development. Salient
features of the scheme, SEZ Act, 2005 and SEZ Rules, 2006 along with related
issues have been discussed in the following paragraphs in user friendly manner.
Other useful details and updated information along with corresponding statutory
provisions have also been incorporated for the benefit of the readers. 1.2 Objectives of the Special Economic Zone
Scheme Major
objectives of the Special Economic Zone Scheme are:— (a) Generation of additional economic
activity; (b) Promotion of exports of goods and
services; (c) Promotion of investment from domestic
and foreign sources; (d) Creation of employment opportunities; (e) Development of infrastructure
facilities; and (f) Maintenance of sovereignty and
integrity of India, the security of the State and friendly relations with
foreign States. 1.3 Entitlements for the SEZ Developer at a
Glance The developer of an SEZ is
eligible for following entitlements:— v Duty free import of goods including
procurement from public or private bonded warehouse or international
exhibitions held in India for its authorized operations in terms of section
26(1)(a) of SEZ Act, read with rule 27 of the SEZ Rules, 2006). v Duty free procurement of goods from DTA
for its authorized operations, in terms of section 26(1)(c) of SEZ Act read
with rule 27 of the SEZ Rules, 2006. v Drawbacks, concessions or other benefits
such as DEPB/DFRC/Claim of rebate/discharge of export obligation of the DTA
supplier with reference to section 26(d) of SEZ Act, which are generally given
for export of goods out of India, are available in case of supplies of goods
from DTA to SEZ. v Exemption from payment of service tax as
provided under section 26(1)(e) of the SEZ Act and Rule 31 of the SEZ Rules.
The exemption is available in respect of any service provider providing taxable
services to the developer for authorized operations of the developer. [Note : However till date no terms and
conditions for exemption as envisaged under SEZ Act and Rules have been
notified. The notification No. 4/2004-ST dated 31.3.04 issued by CBEC provides
exemption in respect of services utilised within the SEZ.] v Exemption from payment of taxes, duties or
cess, in terms of section 7 of the SEZ Act, under the enactments specified in
the first Schedule in respect of goods imported into, or procured from DTA for
authorized operations of the developer. v Exemption from payment of taxes, duties or
cess, in terms of section 7 of the SEZ Act, under the enactments specified in
the fist schedule in respect of goods, in case of export of goods out of India
from the SEZ. [Export duty under Customs Tariff Act, 1975, however, would not
be exempted as the Custom Tariff Act does not find entry under the First
Schedule of the SEZ Act.]. v Exemption from payment of Central Sales
Tax under section 26(1)(g) of the SEZ Act, 2005, in respect of goods brought
into the SEZ by an SEZ developer in connection with authorized operations. v Exemption from Income Tax in terms of
section 80AB of Income Tax Act i.e. deduction of 100% of profits and gains
derived from business of developing an SEZ by the developer in respect of SEZ
notified on or after 01.04.2005 under SEZ Act. (In a block of 10 years in 15
years as per choice of the developer). v Exemption from Income Tax in terms of
80-IA of Income Tax Act i.e. deduction of 100% of profits and gains derived
from business of developing by the developer in respect of SEZs notified
earlier. (In a block of 10 years in 15 years as per choice of the developer). v Exemption from payment of stamp duty in
terms of amendment of charging section of Indian Stamp Act, 1899 undertaken
vide Third Schedule of the SEZ Act, with reference to the notification issued
under section 57 of the SEZ Act in respect of a particular SEZ. (Different
dates may be notified for different SEZs in terms of section 57 of SEZ Act). v Exemption from Dividend Distribution Tax
[Section 115-O(6) of the Income Tax Act]. v Exemption from Minimum Alternate Tax
[Section 115JB(6) of the Income Tax Act]. 1.4 Entitlements for the SEZ Unit at a Glance A
unit set up in an SEZ for the purpose of undertaking manufacturing/production
activities or rendering service or warehousing or trading is eligible for
following entitlements:— v Duty free import of goods in terms of
section 26(1)(a) of SEZ Act, including procurement from public or private
bonded warehouse or international exhibitions held in India for its authorized
operations including for setting up or maintenance of the factory building. v Duty free procurement of goods from DTA
without payment of Central Excise duty for its authorized operations, in terms
of section 26(1)(c) of SEZ Act including for setting up or maintenance of the
factory building as provided under Rule 27 of the SEZ Rules, 2006. v Drawback/DEPB/DFRC/Claim of
rebate/Discharge of export obligation of the DTA supplier and such other
benefits with reference to section 26(1)(d) of SEZ Act. v Exemption from payment of service tax as
provided for under section 26(1)(e) of the SEZ Act and Rule 31 of SEZ Rules, in
respect of taxable services provided to unit for its authorized operations
including for setting up or maintenance of the factory building. [Note: However till date no terms and
conditions for exemption as envisaged under SEZ Act and Rules have been
notified. Presently, the exemption from service tax is limited to services
utilised within the SEZ under
notification No. 4/2004-ST dated 31.3.04 issued by CBEC. v Exemption from payment of taxes, duties or
cess, in terms of section 7 of then SEZ Act, under the enactments specified in
the first Schedule in respect of goods imported into, or procured from DTA for
authorized operations of the unit including for setting up or maintenance of
the factory building. Export duty under Customs Tariff Act, 1975, however,
would not be exempted as the Custom Tariff Act does not find entry under the
First Schedule of the SEZ Act. v Exemption from payment of taxes, duties or
cess, in terms of section 7 of the SEZ Act, under the enactments specified in
the first Schedule in respect of goods, in case of export of goods out of
India. v Exemption from payment of Central Sales
Tax in respect of goods brought into the SEZ by an SEZ unit in connection with
authorized operations including for setting up or maintenance of the factory
building with reference to section 26(1)(g). v Exemption from Income-tax in respect of
export income of the manufacturing & service SEZ unit including trading
unit under section 10AA of SEZ unit. (For the units commencing operations after
01.04.2005). The exemption in respect of units set up prior to this date is
regulated under section 10A of Income Tax Act. For the purpose of Second Schedule
of the SEZ Act regarding income tax exemption under section 10AA in respect of
trading only the export income in respect of re-export of imported goods shall
be considered. (Note: Vide Finance Act,
2007, section 10AA of the Income Tax Act, 1961 has been amended retrospectively
w.e.f. 10.2.2006 so as to deny exemption to the units which are
set up in SEZ by way of shifting of DTA unit or by splitting of an
enterprise in DTA etc. v Exemption from payment of stamp duty in
terms of amendment of charging section of Indian Stamp Act, 1899 undertaken
vide Third Schedule of the SEZ Act, with reference to the notification issued
under section 57 of the SEZ Act in respect of a particular SEZ. Different dates
may be notified for different SEZs in terms of section 57 of SEZ Act. There are
problems in its implementation. This
has been discussed in Chapter 16 of this book. v Exemption from Dividend Distribution Tax
[Section115-O(6) of the Income Tax Act]. v Exemption from Minimum Alternate Tax
[Section 115JB(6) of the Income Tax Act. [The
Finance Act, 2007 excluded section 10A from the ambit of exemption from minimum
alternative tax under section 115JB(6)]. 1.5 Incentives/Facilities to Special Economic
Zone Units v SEZ unit may import or procure from the
domestic sources, public or private bonded warehouses, or international
exhibitions held in India, duty free, all goods, namely capital goods, raw
materials, consumables, spares, packing materials, office equipment, DG sets
etc. without any licence or specific approval, including goods required for
setting up of unit. v Goods imported/procured locally duty free
may be utilized within validity period of LOP. v 100% Income Tax exemption under section
10A of the Income Tax Act, 1961 for first 5 years, 50% for 3 years thereafter
to the SEZ units (for unit set up prior to 1.4.2005). v 100% Income Tax exemption under section
10AA of the Income Tax Act, 1961 for first 5 years, 50% for next 5 years and
for next 5 years 50% of the profit if such profit is re-invested to the SEZ
units who begins to manufacture or produce articles or things or provide any
services during the previous year relevant to any assessment year commencing on
or after the 1st day of April, 2006. v The SEZ units are exempted from payment of
Cess on goods exported out of SEZ or imported into SEZ or procured from DTA
which is leviable under the following Acts :— (i) The Agricultural Produce Cess Act, 1940 (27 of
1940). (ii) The Coffee Act, 1942 (7 of 1942). (iii) The Mica Mines Labour Welfare Fund Act, 1946
(22 of 1946). (iv) The Rubber Act, 1947 (24 of 1947). (v) The Tea Act, 1953 (29 of 1953). (vi) The Salt Cess Act, 1953 (49 of 1953). (vii) The Medicinal and Toilet Preparations (Excise
Duties) Act, 1955 (16 of 1955). (viii) The Additional Duties of Excise (Goods of
Special Importance) Act, 1957 (58 of 1957). (ix) The Sugar (Regulation of Production) Act, 1961
(55 of 1961). (x) The Textiles Committee Act, 1963 (41 of 1963). (xi) The Produce Cess Act, 1966 (15 of 1966). (xii) The Marine Products Export Development
Authority Act, 1972 (13 of 1972). (xiii) The Coal Mines (Conservation and Development
Act), 1974 (28 of 1974). (xiv) The Oil Industry (Development) Act, 1974 (47 of
1974). (xv) The Tobacco Cess Act, 1975 (26 of 1975). (xvi) The Additional Duties of Excise (Textiles and
Textile Articles) Act, 1978 (40 of 1978). (xvii) The Sugar Cess Act, 1982 (3 of 1982). (xviii) The Jute Manufacturers Cess Act, 1983 (28 of
1983). (xix)
The Agricultural and Processed Food
Products Export Cess Act, 1985 (3 of 1986). (xx) The Spices Cess Act, 1986 (11 of 1986). (xxi) The Research and Development Cess Act, 1986 (32
of 1986). (iv) Foreign
Direct Investment v
FDI upto
100% is allowed through the automatic route for all manufacturing activities in
Special Economic Zones (SEZs), except for the following activities:— Ø Arms and ammunition, explosives and allied
items of defence equipment, defence aircrafts and warships; Ø Atomic substances; Ø Narcotic and Psychotropic substances and
hazardous chemicals; Ø Distillation and brewing of alcoholic
drinks; and Ø Cigarettes/Cigars and manufactured tobacco
substitutes. v
Sectoral
norm as notified by Government shall apply to foreign investment in services. v
The cases
not covered by automatic route are considered and approved by the Board of
Approvals. (v) Off-shore
Banking Units (OBUs) v
Setting up
of Off-shore Banking Units allowed in SEZs. These banks are virtually foreign
branches of the banks but located in India. These OBUs are exempted from Cash
Reserve Ratio (CRR), SLR (Statutory Liquidity Ratio) and would give access to
SEZ units and SEZ developers finance at international rates. (RBI Notification No. 42/23.13.004/2002-03
dated 2/11/2003). v
The major
incentive available to Off-shore Banking Unit is 100% income tax exemption for
5 consecutive years and 50% for next 5 years under Section 80LA of the Income
Tax Act (Second Schedule to the SEZ Act). v
Application
for setting up of Off-shore Banking Unit need to be made to the Reserve Bank of
India in Form-VI prescribed under Section 23 of the Banking Regulation Act,
1949 (Rule 21). v
The
guidelines governing the operation of Off-shore Banking Units are indicated in
the Notification No. FEMA 71/2002-RB dated 7.9.2002 issued by the Reserve Bank
of India. (vi)
Banking/External Commercial Borrowings v
External
commercial borrowings by units up to USD 500 million a year allowed without any
maturity restrictions. v
Freedom to
bring in export proceeds without any time limit. (RBI A.P.(DIR Series) Circular No. 91 dated 1/4/2002 Master Circular
No. 9/2006-07, dated 01/07/2006 ). v
Flexibility
to keep 100% of export proceeds in EEFC account. Freedom to make overseas
investment from it. v
Commodity
hedging permitted. v
Exemption
from interest rate surcharge on import finance. v
'Write-off'
of unrealized export bills allowed to SEZ units. (vii) Exemption
from Central Sales Tax v
Exemption
from payment of Central Sales Tax on sales made from Domestic Tariff Area to
SEZ units under section 26(1)(g) of SEZ Act, 2005. (viii) Exemption
from Service Tax v Services rendered to the SEZ developers or SEZ unit are
exempted from payment of service tax under section 26(1)(e) of the SEZ Act,
2005. (ix) Requirement
under Environment (Protection) Act v
Information
Technology SEZ do not require environment clearance. However, environmental
clearance as required under the law is required and the Board of Approvals does
not include environmental clearance. v
For
development of SEZs, public hearing is not exempted and the process of Environmental
Impact Assessment (EIA) as laid down in the notification of the Ministry of
Environment would have to be adhered to. (x ) Concession
under companies Act v
Enhanced limit of Rs. 2.4
crores per annum allowed for managerial remuneration. v
Regional office of Registrar
of Companies in SEZs. v
Exemption from requirement of
domicile in India for 12 months prior to appointment as Director. (xi) Concession
under Drugs and Cosmetics Act v
Exemption from port
restriction under Drugs & Cosmetics Rules. v
SEZ units may sub-contract
part of production or production process through units in the Domestic Tariff
Area or through other EOU/SEZ units. v
SEZ units may also
sub-contract part of their production process abroad. v
SEZ units may also undertake
job-work from DTA unit for export. (xiii) Labour Laws
for SEZ units The
labour laws of the land apply to all units inside the Zone. However, the
respective State Government may declare units within the SEZ as public
utilities and may delegate the powers of the Labour Commissioner to the
Development Commissioner of the SEZ. (i) Public
Utility Status : SEZ have been declared as a public utility by the State
Governments of Andhra Pradesh, Madhya Pradesh, Maharashtra, West Bengal,
Karnataka and Uttar Pradesh from the inception of the Zone. Public utility
status is at present given for six months at a time as per the Industrial
Disputes Act to prevent strikes without due notice. (ii) Delegation
of powers of Labour Commissioner to the Development Commissioner :
Governments of Andhra Pradesh, West Bengal, Karnataka and Uttar Pradesh have
delegated the powers of Labour Commissioner to the Development Commissioner of
SEZ in respect of the units located in the Zone. (xiv) Exemption
from Employees Provident Fund Act and ESI Act As
per the Ministry of Labour, in respect of SEZs, the State Government may apply
for exemption to the Central Government under Section 16(2) of the Employees'
Provident Fund and Miscellaneous Provisions Act, 1952, from the applicability
of the provisions of the said Act to SEZ for 5 years. The decision is required
to be taken on case-to-case basis. In
respect of the Employees’ State Insurance Act, 1948, the State Government,
being the appropriate Government, may take a decision as per the powers
provided under the Act. (xv) Benefits to
Domestic Supplies/Supplier to SEZ Supplies
from Domestic Tariff Area (DTA) to SEZ are treated as physical exports and
supplies are entitled to:— v Duty drawback/DEPB/DFRC/Advance License v Exemption from payment of Central Excise
duty v CST exemption v Exemption from State Levies v Discharge of Export Obligation, if any, on
the supplier Duty
drawback/DEPB can be claimed by the DTA supplier subject to production of
disclaimer from SEZ unit/Developer. 1.6
Comparative Chart showing Advantage under EOU & SEZ Schemes
1.7
Summary of Changes in the SEZ Policy During the last one year,
following changes have been made in the SEZ Policy: v
Vide amendment dated
16.3.2007 in SEZ Rules, 2006, it has been provided that if a developer
subsequent to approval or notification of an SEZ, acquires more contiguous and
vacant land, which makes them eligible for another class of SEZ (in terms of
minimum land area requirement), BOA can consider such cases for conversion to
another class of SEZ. v
Vide amendment dated
16.3.2007 in SEZ Rules, 2006, it has
been provided in Rule 11 of the SEZ Rules, 2006 that quantum of infrastructure
for business or social purposes as approved by the BOA shall only be eligible
for tax exemptions/concession/drawback.
Any such infrastructure created in addition or in excess thereof shall
not be eligible for such tax exemptions/concessions/drawback. For this purpose,
no specific guidelines relating to approval of quantum of such infrastructure
have been issued by Department of Commerce. However, it has been gathered that
following yardsticks are being adopted for the purpose:— IT/ITES, Bio-technolgoy, Gems
& Jewellery SEZ q
Shopping arcade/Retail Space
not exceeding 1000 Sq. M. q
Housing/Service apartments
with total area not exceeding 10,000 Sq. m. Sector
Specific SEZ q Office space/shopping arcade/retail space/multiplex not
exceeding 50,000 sq. m. q Upto 7500 houses with total space not exceeding 7,50,000
sq. m. q Hotel with 100 rooms/100 service apartments with total
built up area not exceeding 10,000 sq.m. q Clinic & medical centers including a maximum 100 bed
Hospital q School/educational institution of total built-up area not
exceeding 25,000 sq.m. Multi-Product
SEZs q Office Space/Shopping Arcade/Retail Space/Multiplex not
exceeding 2,00,000 sq. m. q upto 25,000 houses with total space not exceeding 25,00,000
sq. m. q Hotel with 250 rooms/250 service apartments with total
built up area not exceeding 25,000 sq. m. q School/educational institution of total built-up area not
exceeding 2,50,000 sq. m. q Further, while allowing the material for construction of
the houses in non-processing area, the approval committee/development
commissioner normally give approval in phases after taking into consideration
of occupation of processing area and housing constructed in each phase. q Vide amendment dated 16.3.2007 in the SEZ Rules, 2006, the
format of Application Form for setting up a SEZ has been revised considerably
and a Check List has been incorporated as part of the Application Form. In the Check list, details of projected
investment, share capital and reserve of the developer, source of fund, net
worth of the developer, extent of Foreign Direct Investment and its source are
required to be given. q Vide Notification S.O. 1806(E), dated 23.10.2007, the
Department of Commerce has notified one hundred one SEZ as inland container
Depot under section 7 of the Customs Act, 1962. q Vide Notification No. GSR 1744 (E), dated 12.10.2007,
minimum Processing Area for all categories of SEZs has been increased from 35%
to 50% and Maximum area limits for multi-product SEZs has been specified as
5000 hectares [in the light of decision of the EGOM held on 4.4.2007]. q Vide Notification dated 12.11.2007, the Directors, Software
Technology Park of India (STPI) have been empowered to act as Development
Commissioner in respect of the specified Information Technology
(IT)/Information Technology Enabled Services (ITES)/Electronic Hardware Special
Economic Zones. q Vide amendment dated 12.10.2007, clause (g) of sub-rule (4)
of rule 18 of SEZ Rules, 2006, which prohibited use of any plant and machinery
(in SEZ) if such plant and machinery was previously used for any purpose in
DTA, has been omitted. This has been done subsequent of denial of income-tax
exemption under section 10AA of Income Tax Act, 1961 as amended vide Finance
Act, 2007 in case of shifting of existing unit from DTA to SEZ. |
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