Arjun Raghavendra M
India has been consistently plagued by a policy dilemma on the matter of gold imports. Whenever any nation with high gold consumption levels tries to restrict or prohibit gold imports, the first outcome has always been an abundant increase in smuggling, like in the case of India (in the era of gold control) and more recently, Vietnam (post-2008 crisis).
A curious case of duty-free gold import from Indonesia under the ASEAN-India Free Trade agreement (AIFTA) by an importer (other than nominated agencies) has brought the focus back on our gold import policy and a glaring loophole therein. In the heart of this matter is premised a very important question -- who can import gold?
Gold imports are neither restricted nor prohibited in India today. The Foreign Trade Policy (FTP) prescribes that gold is a “free” commodity to import (other than monetary gold, which is gold owned by the government as part of financial assets or currency reserves), subject to Reserve Bank of India (RBI) regulations. Unless there is a notification under the Foreign Trade (Development and Regulation) Act (FTDRA) to regulate as to who is eligible to import gold, any person with a valid Import-Export Code, a license issued by the Directorate General of Foreign Trade (DGFT), can import gold. There is no notification, as on date, that defines any category of persons as eligible to import gold.
The first twist in this tale emanates from a basic misunderstanding that only nominated agencies detailed in the FTP can import gold. The act of defiance by an importer -- not notified as a nominated agency -- set in a motion a series of actions, intriguing and chaotic, in equal measure. The impugned goods (gold granules), as per media reports, were not cleared for home consumption in 2017 even though there are no restrictions notified by the DGFT. After protracted litigation, the Indirect Taxes Appellate Tribunal in Andhra Pradesh allowed the import and dismissed the plea of revenue for confiscation of gold. The drama continued and the High Court of Telangana, without ruling on the merits of the issue, pending adjudication of the legal question on who can import gold, allowed the re-export of gold granules on the request of the importer.
Although the FTP mandates the DGFT notify every procedure with regard to import or export of any goods including gold, the procedures defining nominated agencies (under 4.41 of the FTP) is for the purpose of exports only. All discussions in the FTP and Hand Book of Procedures are related to transaction of gold regarding exports. The permission or authorisation for import of gold into India is to be obtained only if gold were placed in the “restricted” list of commodities, which is not the case.
The RBI directions, addressed to the authorised banks, provides for the method of import and type of payments, in order to regulate remittances under the Foreign Exchange Management Act (FEMA). The RBI neither notifies the category of persons eligible to import gold nor imposes any restrictions on the import of gold, which are the mandate of the DGFT. Long story short, as per the law, any importer can import gold while satisfying the stipulations of the FTP and the RBI.
The 2018 NITI Aayog report ‘Transforming India’s gold markets’, while making a strong case for reduction in gold imports, has not adequately addressed alternatives for a nation that is absolutely obsessed with gold. The measures undertaken in the past, like the 80:20 gold scheme, to curb gold imports in order to tame the current account deficit, turned out to be scandalously disastrous. As witnessed in the past, uncertain policy measures, including increase in customs duty on gold imports, have only been counter-productive. Round tripping and circular trading remain perennial problems.
India must not emulate the opaque model of gold trade practiced by China -- the largest producer and consumer of gold -- and must instead open up free trade of gold, both imports and exports. Malaysia, Singapore, Thailand, Turkey and the United Arab Emirates (UAE) with high gold consumption patterns and significant share in the global gold jewellery trade, have eased their regulations and do not view gold as a commodity that creates imbalances in the trade.
In a country where domestic households possess trillion-dollars-worth of gold, to ‘restrict’ gold imports will only promote smuggling and breed further corruption. With the recent monetary policy comments indicating a shift towards capital account convertibility, the first positive step towards liberalising the overall gold policy regime would be to open up import and export. Any move otherwise, to plug the existing loophole, will only plunge us into further chaos.
Arjun Raghavendra M previously worked for the Government of India and is an advocate based out of Delhi. Views are personal.
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