Operationalisation of the Provision of Chapter X A of the Customs Act, 1962-Issuance of SEZ Rules and Regulations

Earlier Rule 9 provided that depreciation would be allowed @20% per annum for ‘computer and computer peripherals’ and for ‘capital goods other then computer and computer peripherals’, the rate of depreciation is @ 10% per annum. The rule has been amended to  provide a different rate of depreciation now for which the notfn may be referred to. The depreciation will be allowed in straight line method. For the purpose of  computing rate of depreciation for any part of a quarter, full such quarter shall be taken into account. Value for charging duty at the time of removal of capital goods would be based on the depreciated value and not on the transaction value. There will be no upper limit for depreciation. In other words 100% depreciation is permissible.

Earlier it was provided that SEZ unit could transfer only manufactured goods and capital goods to EOU/EHTP/STP/SEZ. Rule 11 has now been amended to allow transfer of all goods to EOU/EHTP/STP/SEZ.  However, transfer of raw materials to EOU/EHTP/STP and other SEZ should be allowed only in those cases where the SEZ units are  unable to utilise the raw material for a valid reason [ Also refer paras 7.11.and of the EXIM Policy read with para 19.1,19.2 and  28.1 of the HandBook of Procedures]. Sale of unutilized raw materials to a DTA unit or to another EOU/EPZ/EHTP/STP unit can arise only in exceptional cases and can not be a regular basis.

It has also been provided that in case the goods procured by SEZ Unit from DTA are transferred, directly or via another SEZ, to EOU/EHTP/STP, as it is, or after subjecting them to  processes not amounting to manufacture, the SEZ units would be required to pay back the duty drawback or DEPB benefits which was taken at the time of procurement of such goods from DTA either by the DTA unit or the SEZ unit, as the case may be. This provision has been introduced to ensure that supplies from DTA to EOU/EHTP/STP do not get benefit of DBK or DEPB indirectly.

(iii)

In rule 12 , earlier there was a provision that in case of destruction of goods procured from DTA, the SEZ unit shall be liable to pay back the export benefits allowed against such goods. However, the rule has been amended so as to provide that where payment for such goods have already been made in foreign exchange, the SEZ unit will not be liable to repay back the export benefits taken against such goods. However the scrap generated through such destruction would be assessed on merits. E.g. if the scrap is HMS it will pay duty under heading 7204.4900   if cleared to DTA.

The SEZ units are now not required to submit any separate return to the jurisdictional customs. They are only required to endorse a copy of the annual/ quarterly return which they submit to  the concerned Development Commissioner in the format as specified in Appendix 14-IF of HOP. Rule 14 has been amended to this effect.

The SEZ unit  or a developer would be required to execute a bond with the  Deputy Commissioner or Assistant Commissioner of Customs instead of Commissioner of Customs. Rule 18 has been amended to this effect.

Monitoring of the  SEZ would now be done by jurisdictional customs through the Unit Approval Committee of the Zone where the jurisdictional Commissioner of Customs will be represented. Rule 19 has been amended accordingly.

In the event of closure of an SEZ, goods may be transferred to EOU/EHTP/STP or another SEZ without payment of duty subject to restrictions as mentioned in clause 3(ii) above.  Rule 20 has been amended accordingly.

In the original SEZ regulations, it was provided that  two or more zone units shall not be allowed to operate from the  same ‘premises’. Since the term “premises” is subject to different interpretations, Regulations 3 has been amended to provide that each unit would be ‘a distinct establishment and identifiable  or distinct and partitioned from other zone unit’.

Regulation 10 has been amended to provide that where goods are procured from DTA by SEZ unit or the developer and where no export benefit has been obtained or where such goods  or sale proceeds are not counted towards fulfillment of export obligation  under any export promotion scheme , admission of goods would be allowed against ‘Domestic procurement Certificate’ and ARE-I and there would be no requirement for filing any Bill of Export. For detailed procedure the relevant provision of the regulations may please be referred to. However , where the duty paid  goods are procured from Domestic Tariff Area  and  no duty concession or export incentives are being claimed against such supplies the goods shall be allowed admission into the zone on the basis of invoice issued by the supplier of the goods and connected transport documents, if any.

The procedure for   transfer of manufactured goods or capital goods from  one zone unit to another zone unit as envisaged  in earlier regulation 12 would also apply in case of transfer of raw material from one zone unit to another zone unit. Regulation 12 has been amended accordingly.

In respect of export of gem and jewellery through personal baggage, the SEZ unit shall not be required to submit advance  remittance certificate . Regulation 15 has been accordingly amended

In respect of exchange of jewellery, wastage would be allowed. Regulation 20 stands amended to that effect.

As explained above at para 3(ii), rule  11 has been amended  so as to provide transfer of raw material also alongwith manufactured goods and capital goods from a zone unit  to EOU/EHTP/STP/SEZ. Corresponding changes have been made in Regulation 21.

Goods procured by a zone unit from DTA , when supplied back to DTA, are to be considered as re-import  and  all the procedures  and conditions as applicable in case of normal re-import of goods  would apply. However, when import duty on such goods is ‘nil’ and no export benefits were taken during procurement of such goods, in such cases , the goods may be allowed to be supplied back to DTA on the basis of invoice only and filing of Bill of Entry etc is not required. Regulation 22(6) has been amended accordingly.

In case of jobwork following important provisions have been introduced in regulation 25 , namely:-

(a)

In the regulation  25(1)(iii ), it was earlier provided that while considering  application for jobwork the proper officer would ensure that there is no attempt to parcel out ‘substantial manufacturing process’ to DTA. The word ‘substantial’ has been substituted by the word ‘entire’. This entails that the zone unit would not be allowed to parcel out entire manufacturing activity in DTA in the name of jobwork.

In addition to the status holders, units having unblemished track record, which have not come to the adverse notice of Customs authorities for a period of at least last two years are also exempted from furnishing security/bank guarantee for taking goods into DTA for the purpose of jobwork.

Earlier there was provision that SEZ unit could  subcontract  production only  up to a limit of 50% of FOB value of exports made in the previous year. However, this limitation in respect of subcontracting of production  has been withdrawn. However, the zone unit should have the production facility in the zone and only to meet excess demand etc sub-contracting of production should be allowed.

Where the  duty free goods procured from DTA are destroyed due to natural calamities and where export benefits have been allowed against such goods, the SEZ units would not be required to pay back the export benefits provided  the payment for such goods have been made by the SEZ unit in foreign exchange. Regulation 28(2) has been amended to this effect.

The bond executed by the SEZ unit would be a running bond. Debiting and crediting of the bond would now be done on quarterly basis instead of transaction basis . The bond value would be equal to 25% of duty forgone on the sanctioned requirement of capital goods to be procured or imported duty free, plus duty on raw materials to be held in stock for three months by the zone unit. The unit having a turn over of rupees one crore or above or a unit which is in existence for more than a period of three years with an unblemished track record, would be exempted from  furnishing surety or security.  Regulation 29 has been amended accordingly.

The developer of SEZ is now not required to apply to any Committee for duty free import or procurement of goods. The requirement of goods shall be assessed by a Chartered Engineer and approval would be given by the concerned  Development Commissioner. On the basis of approval given by the Development Commissioner, the jurisdictional Deputy Commissioner or Assistant Commissioner would allow duty free import or procurement of  goods  by the developer for the purpose of authorized operations. The developer would be required to submit certificate of utilisation of duty free goods from a Charterd Engineer other than one who assessed the requirement of goods, within six months of every import or procurement of goods, to the Development Commissioner. In addition , other conditions as specified in the regulation would be required to be followed. It may be noted that  in the case of new zones , there would be no regular Deputy Commissioner or Assistant Commissioner of Customs in the zone. Hence all the  functions of Deputy Commissioner or Assistant Commissioner under the regulation 33 would be exercised by the jurisdictional Deputy Commissioner or Assistant Commissioner  customs. However, once a regular Deputy Commissioner or Assistant Commissioner  of customs is posted in the zone, such functions would be exercised by the Assistant Commissioner  customs in the zone.