WT/DS582/R  
 
17 April 2023 
(23-2703) Page: 1/146 
  Original: English  
 
  
 
 
INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION 
AND COMMUNICATIONS TECHNOLOGY SECTO R 
 
REPORT OF THE PANEL  WT/DS582/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  15 
1.1   Complaint by the European Union  ................................ ................................ ................. 15 
1.2   Panel establishment and composition  ................................ ................................ ............ 15 
1.3   Panel proceedings  ................................ ................................ ................................ .......15 
1.3.1   General  ................................ ................................ ................................ .................. 15 
1.3.2    Organizational phase - Working Procedures and timetable  ................................ ............ 16 
1.3.3    Format of the substantive meetings  ................................ ................................ ........... 18 
1.3.3.1    Format of the first substantive meeting  ................................ ................................ ...18 
1.3.3.2    Format of the second substantive meeting  ................................ ............................... 19 
1.3.4    Requests for enhanced third -party rights  ................................ ................................ ....20 
1.3.5    Disclosure of a panelist's professional engagements  ................................ ..................... 22 
1.3.6    Preliminary ruling  ................................ ................................ ................................ ....22 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 23 
2.1   The measures at issue  ................................ ................................ ................................ 23 
2.2   India's customs regime  ................................ ................................ ............................... 23 
2.2.1    Main legal instruments  ................................ ................................ ............................. 23 
2.2.2    Parliament's power to amend the First Schedule  ................................ .......................... 24 
2.2.3    The Government's power to modify the applied duty rates  ................................ ............ 24 
2.2.3.1    Power to increase tariff rates  ................................ ................................ .................. 24 
2.2.3.2    Power to exempt goods from import duties  ................................ .............................. 25 
2.2.4    Conclusion  ................................ ................................ ................................ .............. 26 
2.3   India's WTO Schedule  ................................ ................................ ................................ .26 
3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  29 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  30 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  30 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 30 
6.1   General issues concerning India's WTO tariff commitments  ................................ .............. 30 
6.1.1    Whether India's assumption that the transposition of its WTO Schedule to the  
HS2007 would not expand the scope of its WTO tariff commitments from its  ITA  
undertakings formed an essential basis of India's consent to be bound by its WTO Schedule  .......30 
6.1.2    Whether the circumstan ces were such as to put India on notice of a possible  
expansion of its WTO tariff commitments from its ITA undertakings  ................................ ......... 32 
6.2   Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the  
GATT 1994  ................................ ................................ ................................ ........................ 33 
6.2.1    Tariff item 8504.40 ex02 of India's WTO Schedule  ................................ ....................... 33 
6.2.2    Tariff item 8517.12 of India's WTO Schedule  ................................ ............................... 34 
6.2.3    Tariff items 8517.61 and 8517.70 ex01, ex02, and ex03 of India's WTO Schedule  ........... 34 
7   FINDINGS  ................................ ................................ ................................ .................  34 
7.1   Introduction  ................................ ................................ ................................ ............... 34 
7.2   The legal standard under Articles II:1(a) and (b) of the GATT 1994  ................................ ..35 WT/DS582/R  
 
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  7.3   General issues concerning India's WTO tariff commitments  ................................ .............. 37 
7.3.1    Overview  ................................ ................................ ................................ ................ 37 
7.3.2    The relevance of the ITA  ................................ ................................ ........................... 38 
7.3.2.1    Introduction  ................................ ................................ ................................ ......... 38 
7.3.2. 2   Whether the ITA sets forth India's legal obligations  ................................ ................... 41 
7.3.2.2.1    Main arguments of the parties  ................................ ................................ ............. 41 
7.3.2.2.2    Main arguments of the third parties  ................................ ................................ ......41 
7.3.2.2.3    Panel's assessment  ................................ ................................ ............................ 43 
7.3.2.3    Whether the ITA limits or modifies the scope of the tariff commitments set forth  
in India's WTO Schedule  ................................ ................................ ................................ .....45 
7.3.2.3. 1   Main arguments of the parties  ................................ ................................ ............. 45 
7.3.2.3.2    Main arguments of the third parties  ................................ ................................ ......47 
7.3.2.3.3    Panel's assessment  ................................ ................................ ............................ 49 
7.3.2.4    Conclusion  ................................ ................................ ................................ ........... 54 
7.3.3    Article 48 of the Vienna Convention  ................................ ................................ ........... 54 
7.3.3.1    Introduction  ................................ ................................ ................................ ......... 54 
7.3.3.2    Article 48(1)  ................................ ................................ ................................ ......... 57 
7.3.3.2.1    Main arguments of the parties  ................................ ................................ ............. 57 
7.3.3.2.2    Main arguments of the third parties  ................................ ................................ ......58 
7.3.3.2.3    Panel's assessment  ................................ ................................ ............................ 59 
7.3.3.2.3.1    General considerations  ................................ ................................ ..................... 59 
7.3.3.2.3.2    Whether, at the time when the changes to its WTO Schedule were certified  
following the HS2007 transposition pro cess, India assumed that the scope of its WTO tariff 
commitments would not be expanded beyond the scope of its ITA undertakings  ........................ 60 
7.3.3.2.3.3    Whether India's assumption regarding the alleged expansion of its WTO tariff 
commitments from its ITA undertakings relates to a "fact or situation" within the meaning  
of Article 48(1)  ................................ ................................ ................................ .................. 63 
7.3.3.2.3.4    Whether India's assumption that the transposition of its WTO Schedule to the 
HS2007 would not expand the scope of its WTO tariff commitments from its ITA  
undertakings formed an essential basis of India's consent to be bound by its WTO Schedule  .......64 
7.3.3.2.3.5    Whether India's assumption that its tariff commitments would not be  
expanded beyond the scope of its ITA undertakings was in error  ................................ .............. 68 
7.3.3.2.3.6    Conclusion regarding Article 48(1)  ................................ ................................ .....72 
7.3.3.3    Article 48(2)  ................................ ................................ ................................ ......... 72 
7.3.3.3.1    Main arguments of the parties  ................................ ................................ ............. 72 
7.3.3.3.2    Main arguments of the third parties  ................................ ................................ ......74 
7.3.3.3.3    Panel's assessment  ................................ ................................ ............................ 75 
7.3.3.3.3.1    General considerations  ................................ ................................ ..................... 75 
7.3.3.3.3.2    Whether the circumstances were such as to put India on notice of a possibl e 
expansion of its WTO tariff commitments from its ITA undertakings  ................................ ......... 76 
7.3.3.3.3.3    Whether India contributed by its own conduct  to the alleged expansion in the  
scope of its WTO tariff commitments from its ITA undertakings  ................................ ............... 83 
7.3.3.3.3.4    Conclusion regarding Article 48(2)  ................................ ................................ .....85 
7.3.3.4    Conclusion  ................................ ................................ ................................ ........... 85 WT/DS582/R  
 
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  7.3.4    India's rectification request under the 1980 Decision  ................................ .................... 85 
7.3.4. 1   Introduction  ................................ ................................ ................................ ......... 85 
7.3.4.2    Main arguments of the parties  ................................ ................................ ................ 86 
7.3.4.3    Main arguments of the third parties  ................................ ................................ ......... 88 
7.3.4.4    Panel's assessment  ................................ ................................ ............................... 89 
7.3.5    Conclusion  ................................ ................................ ................................ .............. 93 
7.4   Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the  
GATT 1994  ................................ ................................ ................................ ........................ 94 
7.4.1    Overview  ................................ ................................ ................................ ................ 94 
7.4.2    Tariff item 8504.40 ex02 of India's WTO Schedule  ................................ ....................... 94 
7.4.2.1    India's WTO tariff commitments  ................................ ................................ .............. 94 
7.4.2.1.1    Main arguments of the parties  ................................ ................................ ............. 94 
7.4.2.1.2    Panel's assessment  ................................ ................................ ............................ 95 
7.4.2.2    India's tariff treatment  ................................ ................................ .......................... 95 
7.4.2.2.1    Main arguments of the parties  ................................ ................................ ............. 95 
7.4.2.2.2    Panel's assessment  ................................ ................................ ............................ 96 
7.4.2.3    Comparison of India's tariff treatment to its WTO tariff commitments  .......................... 97 
7.4.2.3.1    Main arguments of the parties  ................................ ................................ ............. 97 
7.4.2.3.2    Panel's assessment  ................................ ................................ ............................ 98 
7.4.2.4    Conclusion  ................................ ................................ ................................ ........... 98 
7.4.3    Tariff item 8517.12 of India's WTO Schedule  ................................ ............................... 98 
7.4.3.1    General issues  ................................ ................................ ................................ ......98 
7.4.3.1.1    Main arguments of the parties  ................................ ................................ ............. 98 
7.4.3.1.2    Panel's assessment  ................................ ................................ ............................ 99 
7.4.3.2    India's WTO tariff commitments  ................................ ................................ ............  100 
7.4.3.2.1    Main arguments of the parties  ................................ ................................ ...........  100 
7.4.3.2.2    Panel's assessment  ................................ ................................ ..........................  100 
7.4.3.3    India's tariff treatment  ................................ ................................ ........................  100 
7.4.3.3.1    Main arguments of the parties  ................................ ................................ ...........  100 
7.4.3.3.2    Panel's assessment  ................................ ................................ ..........................  101 
7.4.3.4    Comparison of India's tariff treatment to its WTO tariff commitments  ........................  102 
7.4.3.4.1    Preliminary issues  ................................ ................................ ............................  102 
7.4.3.4.1.1    Whether the measure at issue includes the tariff treatment of "smartphones"  ....... 102 
7.4.3.4.1.2    Whether the challenged measure has ceased to exist  ................................ .........  107 
7.4.3.4.2    Comparison of applied and bound duty rates  ................................ .......................  108 
7.4.3.5    Conclusion  ................................ ................................ ................................ .........  108 
7.4.4    Tariff item 8517.61 of India's WTO Schedule  ................................ .............................  109 
7.4.4.1    India's WTO tariff commitments  ................................ ................................ ............  109 
7.4.4.1.1    Main arguments of the parties  ................................ ................................ ...........  109 
7.4.4.1.2    Panel's assessment  ................................ ................................ ..........................  109 
7.4.4.2    India's tariff treatment  ................................ ................................ ........................  109 WT/DS582/R  
 
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  7.4.4.2.1    Main arguments of the parties  ................................ ................................ ...........  109 
7.4.4.2.2    Panel's assessment  ................................ ................................ ..........................  110 
7.4.4.3    Comparison between India's WTO tariff commitments and its tariff treatment  ............  110 
7.4.4.4    Conclusion  ................................ ................................ ................................ .........  111 
7.4.5    Tariff item 8517.62 of India's WTO Schedule  ................................ .............................  111 
7.4.5.1    India's WTO tariff c ommitments  ................................ ................................ ............  111 
7.4.5.1.1    Main arguments of the parties  ................................ ................................ ...........  111 
7.4.5.1.2    Panel's assessment  ................................ ................................ ..........................  111 
7.4.5.2    India's tariff treatment  ................................ ................................ ........................  112 
7.4.5.2.1    Main arguments of the parties  ................................ ................................ ...........  112 
7.4.5.2.2    Panel's assessment  ................................ ................................ ..........................  113 
7.4.5.3    Comparison between India's WTO tariff commitments and its tariff treatment  ............  115 
7.4.5.3.1    Main arguments of the parties  ................................ ................................ ...........  115 
7.4.5.3.2    Panel's assessment  ................................ ................................ ..........................  115 
7.4.5.4    Conclusion  ................................ ................................ ................................ .........  117 
7.4.6    Tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule  ............................  117 
7.4.6.1    General issues  ................................ ................................ ................................ .... 117 
7.4.6.1.1    Main arguments of the parties  ................................ ................................ ...........  117 
7.4.6.1.2    Panel's assessment  ................................ ................................ ..........................  118 
7.4.6.2    India's WTO tariff commitments  ................................ ................................ ............  119 
7.4.6.2.1    Main arguments of the parties  ................................ ................................ ...........  119 
7.4.6.2.2    Panel's assessment  ................................ ................................ ..........................  119 
7.4.6.3    India's tariff treatment  ................................ ................................ ........................  120 
7.4.6.3.1    Main arguments of the parties  ................................ ................................ ...........  120 
7.4.6.3.2    Panel's assessment  ................................ ................................ ..........................  121 
7.4.6.3.2.1    Tariff treatment at the time of the Panel's establishment  ................................ .... 121 
7.4.6.3.2.2    Tariff t reatment as of 1 January 2022  ................................ ..............................  125 
7.4.6.4    Comparison of India's tariff treatment to its WTO tariff commitments  ........................  128 
7.4.6.4.1    Main arguments of the parties  ................................ ................................ ...........  128 
7.4.6.4.2    Panel's assessment  ................................ ................................ ..........................  129 
7.4.6.5    Conclusion  ................................ ................................ ................................ .........  132 
7.4.7    Tariff item 8518.30 ex01 of India's WTO Schedule  ................................ .....................  133 
7.4.7.1    India's WTO tariff commitments  ................................ ................................ ............  133 
7.4.7.1.1    Main arguments of the parties  ................................ ................................ ...........  133 
7.4.7.1.2    Panel's assessment  ................................ ................................ ..........................  133 
7.4.7.2    India's tariff treatment  ................................ ................................ ........................  133 
7.4.7.2.1    Main arguments of the parties  ................................ ................................ ...........  133 
7.4.7.2.2    Panel's assessment  ................................ ................................ ..........................  135 
7.4.7.3    Comparison of India's tariff treatment to its WTO tariff commitments  ........................  138 
7.4.7.3.1    Main arguments of the parties  ................................ ................................ ...........  138 WT/DS582/R  
 
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  7.4.7.3.2    Panel's assessment  ................................ ................................ ..........................  139 
7.4.7.4    Conclusion  ................................ ................................ ................................ .........  139 
7.4.8    Tariff item 8544.42.00 ex01 of India's WTO Schedule  ................................ ................  140 
7.4.8.1    India's WTO tariff commitments  ................................ ................................ ............  140 
7.4.8.1.1    Main arguments of the parties  ................................ ................................ ...........  140 
7.4.8.1.2    Panel's assessment  ................................ ................................ ..........................  140 
7.4.8.2    India's tariff treatment  ................................ ................................ ........................  140 
7.4.8.2.1    Main arguments of the parties  ................................ ................................ ...........  140 
7.4.8.2.2    Panel's assessment  ................................ ................................ ..........................  141 
7.4.8.3    Comparison of India's tariff treatment to its WTO tariff commitments  ........................  144 
7.4.8.3.1    Main arguments of the parties  ................................ ................................ ...........  144 
7.4.8.3.2    Panel's assessment  ................................ ................................ ..........................  144 
7.4.8.4    Conclusion  ................................ ................................ ................................ .........  145 
8   CONCLUSIONS AND RECOMMENDATIONS  ................................ ...............................  145  
 
 
  WT/DS582/R  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures concerning meetings with remote participation for the 
first substantive meeting  11 
Annex  A-3 Additional Working Procedures concerning meetings with remote participation for the 
second substantive meeting   14 
ANNEX B  
ARGUMENTS OF THE PARTIES  
EUROPEAN UNION  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of the European Union  18 
Annex  B-2 Second integrated  executive summary of the arguments of the European Union  26 
 
INDIA  
Contents  Page  
Annex  B-3 First integrated executive summary of the arguments of India 31 
Annex  B-4 Second integrated  executive summary of the arguments of India 44 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  53 
Annex  C-2 Integrated executive summary of the arguments of Canada  55 
Annex  C-3 Integrated executive summary of the arguments of Japan  58 
Annex C -4 Integrated executive summary of the arguments of the Republic of Korea  63 
Annex C -5 Integrated executive summary of the arguments of Norway  66 
Annex C -6 Integrated executive summary of the arguments of Singapore  67 
Annex C -7 Integrated executive summary of the arguments of Chinese Taipei  69 
Annex C -8 Integrated executive summary of the arguments of Türkiye  72 
Annex C -9 Integrated executive summary of the arguments of Ukraine  76 
Annex C -10 Integrated executive summary of the  arguments of the United States  78 
ANNEX D 
COMMUNICATIONS BY THE PANEL CONCERNING THE SUBSTANTIVE MEETINGS  
Contents  Page  
Annex  D-1 Panel's communication to the parties  (31 March 2021 ) 84 
Annex  D-2 Panel's communication to the parties (21 April 2021)  85 
Annex  D-3 Panel's communication to the parties (31 August 2021)  88 
Annex D -4 Panel's communication to the parties (20 September 2021)  91 
ANNEX E 
OTHER DECISIONS BY THE PANEL  
Contents  Page  
Annex  E-1 Panel's decision on requests for enhanced third -party rights  94 
Annex  E-2 Panel's decision on India's preliminary objection and preliminary ruling request  95 
  WT/DS582/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Import Measures  Appellate Body Reports, Argentina – Measures Affecting the 
Importation of Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / 
WT/DS445/AB/R , adopted 26 January 2015, DSR 2015:II, p. 579  
Argentina – Textiles and Apparel  Appellate Body Report, Argentina – Measures Affecting Imports of 
Footwear, Textiles, Apparel and Other Items , WT/DS56/AB/R  and 
Corr.1, adopted 22 April 1998, DSR 1998:III, p. 1003  
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated 
Coconut , WT/DS22/AB/R , adopted 20 March 1997, DSR 1997:I, 
p. 167 
China – Auto Parts  Appellate Body Reports, China – Measures Affect ing Imports of 
Automobile Parts , WT/DS339/AB/R  / WT/DS340/AB/R  / 
WT/DS342/AB/R , adopted 12  January  2009, DSR 2009:I, p. 3  
China – Publications and Audiovisual 
Products  Appellate Body Report, China – Measures Affecting Trading Rights 
and Distribution Services for Certain Publications and Audiovisual 
Entertainment Products , WT/DS363/AB/R , adopted 19 January 2010, 
DSR 2010:I, p. 3  
Colombia – Textiles  Appellate Body Report, Colombia – Measures Relating to the 
Importation of Textiles, Apparel and Footwear , WT/DS461/AB/R  and 
Add.1, adopted 22 June 2016, DSR  2016:III, p. 1131  
Dominican Republic – Safeguard 
Measures  Panel Report, Dominican Republic – Safeguard Measures on Imports 
of Polypropylene Bags and Tubular Fabric , WT/DS415/R , 
WT/DS416/R , WT/DS417/R , WT/DS418/R , and Add.1, adopted 22 
February 2012, DSR 2012:XIII, p. 6775  
EC – Approval and Market ing of 
Biotech Products  Panel Reports, European Communities – Measures Affecting the 
Approval and Marketing of Biotech Products , WT/DS291/R , Add.1 to 
Add.9 and Corr.1 / WT/DS292/R , Add.1 to Add.9 and Corr.1 / 
WT/DS293/R , Add.1 to Add.9 and Corr.1, adopted 21 November 
2006, DSR 2006:III, p. 847  
EC – Chicken Cuts  Appellate Body Report, European  Communitie s – Customs 
Classification of Frozen Boneless Chicken Cuts , WT/DS269/AB/ R, 
WT/DS286/AB/R , adopted 27 September 2005, and Corr.1, DSR 
2005:XIX, p . 9157  
EC – Chicken Cuts  Panel Reports, European Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/R  (Brazil)  / WT/DS286 /R 
(Thailand) , adopted 27 September 2005, as modified by Appellate 
Body Report WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX , 
p. 9295 / DSR 2005:XX, p. 9721 
EC – Computer Equipment  Appellate Body Report, European Communities – Customs 
Classification of Certain Computer Equipment , WT/DS62/AB/R , 
WT/DS67/AB/R , WT/DS68/AB/R , adopted 22 June 1998, DSR 
1998:V, p. 1851  
EC – Export Subsidies on Sugar  Appellate Body Report, European Communities – Export Subsidi es on 
Sugar , WT/DS265/AB/R , WT/DS266/AB/R , WT/DS283/AB/R , adopted 
19 May 2005, DSR 2005:XIII, p. 6365  
EC – Hormones (Canada)  Panel Report, European Communities – Measures Concerning Meat 
and Meat Products (Hormones), Complaint by Canada , 
WT/DS48/R/CAN , adopted 13 February 1998,  as modified by 
Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 
1998:II, p. 235  
EC – Hormones (Canada) (Article 
22.6 – EC) Decision by the Arbitrator, European Communities – Measures 
Concerning Meat and Meat Products (Hormones), Original Complaint 
by Canada – Recourse to Arbitration by the European Communities 
under Article 22.6 of the DSU , WT/DS48/ARB , 12 July 1999, DSR 
1999:III, p. 1135  
EC – Hormones (US) (Article 22.6 – 
EC) Decision by the Arbitrator, European Communities – Measures 
Concerning Meat and Meat Products (Hormones), Original Complaint 
by the Unite d States – Recourse to Arbitration by the European 
Communities under Article 22.6 of the DSU , WT/DS26/ARB , 12 July 
1999, DSR 1999:III, p. 1105  
EC – IT Products  Panel Reports, European Communities and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  
/ WT/DS376/R  / WT/DS377/R , adopted 21 September 2010, DSR 
2010:III, p. 933  WT/DS582/R  
 
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  Short Title  Full Case Title and Citation  
EC and certain member States – 
Large Civil Aircraft  Panel Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/R , 
adopted 1 June 2011, as modified by Appellate Body Report 
WT/DS316 /AB/R, DSR 2011:II, p. 685  
EU – Poultry Meat (China)  Panel Report, European Union – Measures Affecting Tariff 
Concessions on Certain Poultry Meat Products , WT/DS492/R  and 
Add.1, adopted 19 April 2017, DSR 2017:III, p. 1067  
Greece – Phonograph Records  Group of Experts Report, Greek Increase in Bound Duty  L/580, 9 
November 1956, unadopted  
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R , WT/DS175/R , and Corr.1, adopted 5 April 2002, DSR 
2002:V, p. 1827  
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical 
and Agricultural Chemical Products , WT/DS50/AB/R , adopted 16 
January 1998, DSR 1998:I, p. 9  
India – Quantitative Restrictions  Panel Report, India – Quantitative Restrictions on Imports of 
Agricultural, Textile and Industrial Products , WT/DS90/R , adopted 22 
Septembe r 1999, upheld by Appellate Body Report WT/DS90/AB/R, 
DSR 1999:V, p. 1799  
India – Solar Cells  Panel Report, India – Certain Measures Relating to Solar Cells and 
Solar Modules , WT/DS456/R  and Add.1, adopted 14 October 2016, as 
modified by Appellate Body Report WT/DS456/AB/R, DSR 2016:IV, 
p. 1941  
Japan – Apples  Appellate Body Rep ort, Japan – Measures Affecting the Importation 
of Apples , WT/DS245/AB/R , adopted 10 December 2003, DSR 
2003:IX, p. 4391  
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on 
Imports of Certain Dairy Products , WT/DS98/AB/R , adopted 12 
January 2000, DSR 2000:I, p. 3  
Korea – Procurement  Panel Report, Korea – Measures Affecting Government Procurement , 
WT/DS163/R , adopted 19 June 2000, DSR 2000:VIII, p. 3541  
Mexico – Taxes on So ft Drinks  Appellate Body Report, Mexico – Tax Measures on Soft Drinks and 
Other Beverages , WT/DS308/AB/R , adopted 24  March  2006, DSR 
2006:I, p.  3 
Russia – Tariff Treatment  Panel Report, Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products , WT/DS485/R , Add.1, Corr.1, and Corr.2, 
adopted 26 September 2016, DSR 2016:IV, p. 1547  
Russia – Traffic in Transit  Panel Report, Russia  – Measures Concerning Traffic in Transit , 
WT/DS512/R  and Add.1, adopted  26 April 2019  
Thailand – Cigarettes (Philippines)  Appellate Body Report, Thailand – Customs and Fiscal Measures on 
Cigarettes from the Philippines , WT/DS371/AB/R , adopted 15 July 
2011, DSR 2011:IV, p. 2203  
Turkey – Textiles  Panel Report, Turkey – Restrictions on Imports of Textile and 
Clothing Products , WT/DS34/R , adopted 19 November 1999, as 
modified by Appellate Body Report WT/DS34/AB/R, DSR 1999:VI, p. 
2363 
US – Certain EC Products  Appellate Body Report, United States – Import Measures on Certain 
Products from the European Communities , WT/DS165/AB/R , adopted 
10 January 2001, DSR 2001:I, p. 373  
US – COOL  Panel  Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/R  / WT/DS386/R , adopted 23 July 
2012, as modified by Appe llate Body Reports WT/DS384/AB/R / 
WT/DS386/AB/R, DSR 2012:VI, p. 2745  
US – COOL (Article 21.5 – Canada 
and Mexico)  Panel Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements – Recourse to Article 21.5 of the DSU by 
Canada and Mexico , WT/DS384/RW  and Add.1 / WT/DS386/RW  and 
Add.1, adopted 29 May 2015, as modified by Appellate Body Reports 
WT/DS384/AB/RW / WT/DS386/AB/RW, D SR 2015:IV, p. 2019  
US – Countervailing and Anti -
Dumping Measures (China)  Appellate Body Report, United States – Countervailing and Anti -
Dumping Measures on Certain Products from China , WT/DS449/AB/R  
and Corr.1, adopted 22 July 2014, DSR 2014:VIII, p. 3027  
US – Countervailing and Anti -
Dumping Measures (China)  Panel Report, United States – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/R  and Add.1, 
adopted 22 July 2014, as modified by Appellate Body Report 
WT/DS449/AB/R, DSR 2014:VIII, p. 3175  
US – Countervailing Measures 
(China)  Appellate Body Report, United States – Countervailing Duty Measures 
on Certain Products from China , WT/DS437/AB/R , adopted 16 
January 2015, DSR 2015:I, p. 7 WT/DS582/R  
 
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  Short Title  Full Case Title and Citation  
US – FSC  Appellate Body Report, United  States – Tax Treatment for "Foreign 
Sales Corporations" , WT/DS108/AB/R , adopted 20  March  2000, DSR 
2000:III, p.  1619 
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/R , adopted 20 March 2000, as modified by 
Appellate Body Report WT/DS1 08/AB/R, DSR 2000:IV, p. 1675  
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign 
Sales Corporations" – Recourse to Article 21.5 of the DSU by the 
European Communities , WT/DS108/AB/RW , adopted 29 January 
2002, DSR 2002:I, p. 55  
US – Large Civil Aircraft (2nd 
complaint)  Panel Report,  United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/R , adopted 23 March 2012, 
as modified by Appellate Body Report WT/DS353/AB/R, DSR 2012:II, 
p. 649  
US – Washing Machines  Panel Report, United States – Anti-Dumping and Countervailing 
Measures on Large Residential Washers from Korea , WT/DS464/R  
and Add.1, adopted 26 September 2016, as modified by Appellate 
Body Report WT/DS464/AB/R, DSR 2016:V, p. 2505  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of 
Woven Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 
23 May 1997, and Corr.1, DSR 1997:I, p. 323  
 
 
 WT/DS582/R  
 
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  LIST OF FREQUENTLY CITED EXHIBITS  
Panel Exhibit  Short Title  
(where applicable)  Full Title  
Exhibit EU -2 Customs Act  1962 The Customs Act, 1962, Act No. 52 of 1962 (13 December 
1962)  
Exhibit EU -3 Customs Tariff Act 
1975 The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 
1975)  
Exhibit EU -4  Hon'ble Supreme Court in the case of Kasinka Trading and 
ANR v. Union of India and ANR , 1994 (74) ELT 782 (S.C.)  
Exhibit EU -5  Hon'ble Supreme Court in the case of Share Medical Care v. 
Union of India and ORS , 2007 (209) ELT 321 (S.C.)  
Exhibit EU -6  Hon'ble CESTAT, Cipla Ltd. v. Commissioner of Customs , 
2007 (218) ELT 547 (Tri. – Chennai)  
Exhibit EU -7  Hon'ble CESTAT, Burroughs Wellcome (I) Ltd. v. 
Commissioner of Central Excise , 2007 (216) ELT 522 (Tri. – 
Chennai)  
Exhibit EU -9 Notification No. 
24/2005 Notification No. 24/2005 (1 March 2005)  
Exhibit EU -10 Notification No. 
25/2005  Notification No. 25/2005 (1 March 2005)  
Exhibit EU -11 Notification No. 
67/2017  Notification No. 67/2017 (14 July 2017)  
Exhibit EU -12 Notification No. 
57/2017  Notification No. 57/2017 (30 June 2017)  
Exhibit EU -13 Notification No. 
22/2018  Notification No. 22/2018 (2 February 2018)  
Exhibit EU -14 Notification No. 
23/2019  Notification No. 23/2019 (6 July 2019)  
Exhibit EU -15 Finance Act 2018  The Finance Act, 2018, No. 13 of 2018 (28 March 2018)  
Exhibit EU -16 Notification No. 
02/2019  Notification No. 02/2019 (29 January 2019)  
Exhibit EU -19 Finance Act 2019  The Finance (No. 2) Act, 2019, No. 23 of 2019 (1 August 
2019)  
Exhibit EU -24 Notification No. 
133/2006  Notification No. 133/2006 (31 December 2006)  
Exhibit EU -28 Finance Act 2020  The Finance Act, 2020, No. 12 of 2020 (27 March 2020)  
Exhibit EU -29 Notification No. 
38/2018  Notification No. 38/2018 (2 April 2018)  
Exhibit EU -30 Notification No. 
76/2018  Notification No. 76/2018 (11 October 2018)  
Exhibit EU -31 Notification No. 
02/2020  Notification No. 02/2020 (2 February 2020)  
Exhibit EU -34 Notification No. 
50/2017  Notification No. 50/2017 (30 June 2017)  
Exhibit EU -35 Notification No. 
36/2018  Notificati on No. 36/2018 (2 April 2018)  
Exhibit EU -40 Constitution of India 
2015 The Constitution of India, Government of India (9 November 
2015)  
Exhibit EU -41 Rules of Procedure in 
Lok Sabha  Rules of Procedure and Conduct of Business in Lok Sabha, 
15th edn, (Lok Sabha Secretariat, 2014)  
Exhibit EU -42 Notification No. 
6/2018  Notification No. 6 /2018 (2 February 2018)  
Exhibit EU -43  "Draft Articles on the Law of Treaties with commentaries" in 
Yearbook of the International Law Commission  (1966), Vol. 
II, Commentary to Article 45  
Exhibit EU -44 WCO, HS Committee 
document 41.337 E  World Customs Organization, Harmonized System Committee 
document 41.337 E (19 August 1997)  
Exhibit EU -45 WCO, HS Committee 
document 42.034 E  World Customs Organization, Harmonized System Committee 
document 42.034 E (30 January 1998)  
Exhibit EU -46 WCO, HS Committee 
document 42.100 E  World Customs Organization, Harmonized System Committee 
document 42.100 E (31 March 1998)  
Exhibit EU -49 Notification No. 
36/20 19 Notification No. 36/2019 (30 December 2019)  
Exhibit EU -51 HS2002 Explanatory 
Notes to Chapter 85  World Customs Organization, Harmonized System 
Nomenclature 2002 Explanatory Notes to Section XVI, 
Chapter 85  WT/DS582/R  
 
- 12 - 
 
  Panel Exhibit  Short Title  
(where applicable)  Full Title  
Exhibit EU -54 General Rules for the 
Interpret ation of the 
Harmonized System  World Customs Organization, General Rules for the 
Interpretation of the Harmonized System  
Exhibit EU -55 WCO, Classification 
Opinion on 
"smartphones" (2018)  World Customs Organization, Classification Opinion on 
"smartphones" (2018)  
Exhibits EU -56, 
IND-9 HS2007 Section Notes 
to Section XVI  World Customs Organization, Harmonized System 
Nomenclature 2007, Section Notes to Section XVI  
Exhibit EU -59 First Schedule as of 
2016/2017  First Schedule to India's Customs T ariffs Act, Consolidated 
Version 2016/2017  
Exhibit EU -60  World Customs Organization, Classification Opinions on 
subheading 8517.62 (2015)  
Exhibit IND -2  International Court of Justice, Case concerning  Sovereignty 
over Certain Frontier Land (Belgium v. N etherlands) , 
Judgment of 20 June 1959: ICJ Reports 1959, p. 209  
Exhibit IND -3  International Court of Justice, Case concerning the  Temple of 
Preah Vihear (Cambodia v. Thailand) , Merits, Judgment of 15 
June 1962: ICJ Reports 1962, p. 6   
Exhibit IND -6 HS1996 Explanatory 
Notes to Heading 
8525 World Customs Organization, Harmonized System 
Nomenclature 1996 Explanatory Notes, 2nd edn (1996), 
Heading 8525  
Exhibit IND -8 HS2007 Expla natory 
Notes to Heading 
8517 World Customs Organization, Harmonized System 
Nomenclature 2007 Explanatory Notes, 4th edn (2007), 
Heading 8517  
Exhibit IND -13  M. E. Villiger, Commentary on the 1969 Vienna Convention 
on the Law of Treaties  (Martinus Nijhoff,  2009)  
Exhibit IND -14  T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach 
(eds.), Vienna Convention on the Law of Treaties , 2nd edn 
(Springer, 2018)  
Exhibit IND -39  Notification No. 24/2005 (1 March 2005) as amended by 
Notification Nos. 132/2006, 11/2014, 19/2016, 32/2016, 
67/2016, 58/2017, 38/2018, 76/2018, 36/2019 and 06/2020  
Exhibit IND -40  Notification No. 25/2005 (1 March 2005) as amended by 
Notification Nos. 133/2006, 26/2007, 15/2012, 67/2017, 
39/2018, 23/2019, 36/2019 and 07/2020  
Exhibit IND -41  Notification No. 50/2017 (30 June 2017) as amended by 
Notification Nos. 76/2017, 92/2017, 6/2018, 29/2018, 
32/2018, 40/2018, 72/2018, 03/2019, 25/2019, 30/2019, 
31/2019, 37/2019, 01/2020, 35/2020, 42/2020 and 02/2021  
Exhibit IND -42  Notification No. 57/2017 (30 June 2017) as amended by 
Notification Nos. 22/2018, 37/2018, 69/2018, 75/2018, 
02/2019, 24/2019 and 02/2020  
Exhibit IND -50 Email from IDB, WTO, 
to India (8 November 
2013)  Email correspondence dated 8 November 2013 from IDB, 
WTO, t o the Permanent Mission of India to the WTO, 
Subject: "HS2007 transposition file: India"  
Exhibit IND -51 Email from Market 
Access Intelligence 
Section, WTO, to 
India (12  
February 2014)  Email correspondence dated 12 February 2014 from Market 
Access Intelligence Section, WTO, Senior Statistical Officer, 
to the Permanent Mission of India to the WTO, Subject: "RE: 
HS2007 transposition file . India"  
Exhibit IND -54 Notification No. 
3/2021  Notification No. 3/2021 (1 February 2021)  
Exhibit IND -57 HS2017 Explanatory 
Notes to Heading 
8518 World Customs Organization, Harmonized System  
Nomenclature  2017 Explanatory Notes, 4th edn (2017), 
Heading 8518  
Exhibit IND -59 HS2017 Explanatory 
Notes to Hea ding 
8517 World Customs Organization, Harmonized System 
Nomenclature 2017 Explanatory Notes, 4th edn (2017), 
Heading 8517  
Exhibit IND -66 Finance Act 2021  The Finance Act 2021, No. 13 of 2021  
Exhibit IND -73 Notification No. 
15/2022  Notification No. 15/2022 (1 February 2022)  
Exhibit IND -78 India's rectification 
request , 
G/MA/TAR/RS/572  Rectification and Modification of Schedules, Schedule XII - 
India, Communication to the Secretariat (25 September 
2018), G/MA/TAR/RS/572  
Exhibit IND -79 Prof. M. Waibel, Legal 
Opinion on Error  Prof. M. Waibel's Legal Opinion on Error and Curriculum Vitae  
Exhibit IND -81  Circular No. 04/2022 (27 February 2022)  WT/DS582/R  
 
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  Panel Exhibit  Short Title  
(where applicable)  Full Title  
Exhibit IND -82 Indian Wireless 
Telegraphy Act 1933  The Indian W ireless Telegraphy Act 1933, No. 17 of 1933  
Exhibit IND -83  Notification No. 71 (25 September 1953)  
Exhibit IND -85  Cambridge Advanced Learner's Dictionary online, definition 
of "impair" 
https://dictionary.cambridge.org/dictionary/english/impair  
(accessed 22 May 2022)  
Exhibit IND -87 Chapter 85 of the 
HS2022  World Customs Organization, Harmonized System 
Nomenclature, 7th edn (2022), Chapter 85  
Exhibit IND -88  World Customs Organization, Harmonized System 
Committee, 49th Session, "Classification of the Machines 
Commercially Referred to as 'Tablet Computers'" (13 
February 2012) document NC1730E1a; and World Customs 
Organization, Harmonized System Committee, 50th Session, 
"Possible Amendments to the Compendium of Classifica tion 
Opinions and Explanatory Notes arising from the Decisions 
taken by the Committee at its 49th Session" (19 July 2012) 
document NC1775E1a  
Exhibit IND -89 Notification No. 
57/2021  Notification No. 57/2021 (29 December 2021)  
Exhibit IND -90 Notification No. 
02/2022  Notification No. 02/2022 (1 February 2022)  
Third-party 
Exhibits JPN -22, 
TPKM -6 Provisional Collection 
of Taxes Act 1931  The Provisional Collection of Taxes Act, 1931, Act No. 16 of 
1931 (28 September 1931)  
Third-party Exhibit 
JPN-4 Letter from Japan to 
India (9 November 
2018)  Letter dated 9 November 2018 from the Permanent Mission 
of Japan  to the Permanent Mission of India , Rectification and 
Modification of Schedule (India's WTO Schedule XII)  
Third-party Exhibit 
TPKM -3 Letter from C hinese 
Taipei to India (19 
October 2018)  Letter dated 19 October 2018 from the Permanent Mission of 
the Separate Customs Territory of Taiwan, Penghu, Kinmen 
and Matsu to the Permanent Mission of India  
 
 WT/DS582/R  
 
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  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
1980 Decision  GATT Decision of 26 March 1980 on Procedures for Modification and 
Rectification of Schedules of Tariff Concessions, L/4962  
CBIC Central Board of Indirect Taxes and Customs  
Customs Act 1962  The Customs Act, 1962, Act No. 52 of 1962 (13 December 1962)  
Customs Rules 1996  Customs (Import of Goods at Concessional Rate of Duty for Manufacture of 
Excisable Goods) Rules, 1996  
Customs Rules 2017  Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017  
Customs Tariff Act 1975  The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 1975)  
General Council Decision 
on HS2002 Transposition 
Procedures  General Council Decision of 18 July 2001 on Concessions under the Harmonized 
Commodity Description and Coding  System, A Procedure for Introduction of 
Harmonized System 2002, Changes To Schedules of Concessions, WT/L/407  
General Council Decision 
on HS2007 Transposition 
Procedures  General Council Decision of 15 December 2006 on A Procedure for the 
Introduction of Harmonized System 2007 Changes to Schedules of Concessions 
Using the Consolidated Tariff Schedules (CTS) Database, WT/L/673  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT  General Agreement on Tariffs and Trade  
GATT 1947  General Agreement on Tariffs and Trade 1947  
GATT 1994  General Agreement on Tariffs and Trade 1994  
HS Harmonized System  
HS1996  Harmonized System Nomenclature 1996 Edition  
HS2002  Harmonized System Nomenclature 2002 Edition  
HS2007  Harmonized System Nomenclature 2007 Edition  
HS2017  Harmonized System Nomenclature 2017 Edition  
HS2022  Harmonized System Nomenclature 2022 Edition  
ICJ International Court of Justice  
ICT Information communication technology  
India's WTO Schedule  Schedule XII – India 
ITA Ministerial Declaration on Trade in Information Technology Products, 
WT/MIN(96)/16  
ITA Expansion  Ministerial Declaration on the Expansion of Trade in Information Technology 
Products, WT/MIN(15)/25  
PCBA  Printed circuit board assembly  
PCIJ Permanent Court of International Justice  
Transposition Note  Email correspondence dated 8 November 2013 from IDB, WTO, to the 
Permanent Mission of India to the WTO, Subject: "HS2007 transp osition file: 
India", Attachment 3, CTS HS2007 Transposition Note XII - India 
Vienna Convention  Vienna Convention on the Law of Treaties, done at Vienna (23 May 1969), UN 
Treaty Series Vol. 1155, p. 331  
WCO World Customs Organization  
WTO World Trade Organization  
 WT/DS582/R  
 
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  1  INTRODUCTION  
1.1  Complaint by the European Union  
1.1.  On 2 April 2019, the European Union requested consultations with India pursuant to Articles 1 
and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) 
and Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994)  with respect to 
the measures and claims set out below.1 
1.2.  Consultations were held on 21 May 2019 but failed to resolve the dispute.  
1.2  Panel establishment and composition  
1.3.  On 17 February 2020, the European Union requested the establishment of a panel pursuant to 
Article  6 of the DSU with standard terms of reference.2 At its meeting on 29 June 2020, the 
Dispute  Settlement Body (DSB) established a panel pursuant to the request of the European  Union 
in document WT/DS 582/9 , in accordance with Article  6 of the DSU.3 
1.4.  The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the ma tter referred to the DSB by the  European  Union in 
document WT/DS582/9 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.4 
1.5.  Brazil, Canada, China, Indonesia, Japan, the R epublic of Korea, Norway, Pakistan, the 
Russia n Federation , Singapore, Chinese Taipei, Thailand, Türkiye5, Ukraine, and the United States  
notified their interest in participating in the Panel proceedings as third parties.  
1.6.  On 19 August 2020 , the European Union requested the Director -General to determine the 
composition of the panel, pursuant to Article 8.7 of the DSU . On 31 August 2020, the 
Director -General accordingly composed the Panel as follows:  
Chairperson:  Mr Paul O'CONNOR  
 
Members:   Ms Samantha ATAYDE ARELLANO  
   Mr Fabián VILLARROEL R ÍOS 
 
1.3  Panel proceedings  
1.3.1   General  
1.7.  The Panel held an organizational meeting with the parties on 19 November 2020.6 
1.8.  The Panel adopted its  Working Procedures7 and timetable8 on 4 December 2020, after 
consultin g with the parties .  
1.9.  The European Union submitted its first written submission on 28 January 2021. India submitted 
its first written submission on 8 April 2021.  
 
1 WT/DS582/1.  
2 WT/DS582/9 . 
3 Dispute Settlement Body, Minutes of the meeting held on 29 June 2020, WT/DSB/M/442, p. 13.  
4 WT/DS582/ 10. 
5 Formerly "Turkey". (See WT/INF/43/Rev.23).  
6 For more details regarding the organizational phase of the dispute, see section 1.3.2 below.  
7 The Panel revised its Working Procedures on 27 January 2021 . 
8 The P anel's timetable was revised on 4 May 2021, 26 October 2021, 28 April 2022, 30 September 
2022 and 6 February 2023 . WT/DS582/R  
 
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  1.10.   On 22 April 2021, the Panel received third -party submissions from Brazil, Canada , Japan, 
Korea, Norway, Chinese Taipei, Türkiye , Ukraine, and the United States.  
1.11.   On 20 July 2021, the Panel sent questions for written responses before the first substantive 
meeting and the third -party session to the parties and third parties. The parties and third parties9 
submitted their written responses on 20 September 2021.  
1.12.   The Panel held its first substantive meeting with the parties in virtual format on 5 -6 October 
2021.10 Prior to the meeting, the Panel sent the parties a list of questions to be an swered orally at 
the meeting.11 A joint session with the third parties in this dispute and in the other two disputes in 
which the same panelists had been appointed12 took place in virtual format on 13 October 2021. 
Following these meetings, the Panel sent written questions to the parties and third parties on 
18 October 2021. The parties and third parties sent their written responses on 24 November 2021.  
1.13.   The parties submitted their second written submissions on 15 February 2022.  
1.14.   The Panel held its second sub stantive meeting with the parties on 29-30 March  2022 in hybrid 
format.13 Prior to the substantive meeting, the Panel sent the parties a list of questions to be 
answered orally at the meeting. Following the meeting, the Panel sent written questions to the 
parties. Written responses to these questions were received on 23 May 2022, and comments on the 
other party's responses were received on 21 June 2022.  
1.15.   On 5 July 2022, the Panel issued the descriptive part of its Report to the parties. The parties 
provided written comments on 26 July 2022.  
1.16.   The Panel issued its Interim Report to the parties on 28 October 2022 and its Final Report on 
27 February 2023.  
1.3.2   Organizational phase - Working Procedures and timetable  
1.17.   On 16 October 2020, noting that the same panelists served on India – Tariffs on ICT Goods 
(EU) (DS582), India – Tariffs on ICT Goods (Japan)  (DS584), and India – Tariffs on ICT Goods 
(Chinese Taipei)  (DS588),  and mindful of Article 9.3 of the DSU, the Pane l sent a pre -organizational 
meeting questionnaire to the parties seeking their views on how to set  up the timetable and working 
procedures in  the three disputes.14 The Panel also invited the parties to indicate whether they agreed 
to have a single organiza tional meeting for this dispute and the other two disputes in which the same 
panelists were serving, or whether they preferred separate organizational meetings.  
1.18.   While the European Union agreed to have a single joint organizational meeting for the three 
disputes in which the same panelists had been appointed15, India requested that consecutive 
separate organizational meetings be held for each dispute .16 
1.19.   Additionally, the European Union considered that the Panel should hold joint substantive 
meetings for the three disputes, as in the case of a single panel under Article 9.1 of the DSU, and a 
joint third -party session. Should the Panels decide not to hold joint substantive meetings, the 
European Union considered that "those third parties which are a complainant  in one of the other two 
 
9 Brazil, Canada, Japan, Korea, Chinese Taipei, Türkiye, Ukraine, and the United States  provided 
responses to the Panel.  
10 For details regard ing the organization of the first substantive meeting by remote means, see 
section  1.3.3.1  below.  
11 Panel's communication to the parties (29 September 2021).  
12 The same panelists were appointed in India – Tariffs on ICT Goods (EU)  (DS582), India – Tariffs on 
ICT Goods (Japan)  (DS584) , and India – Tariffs on ICT Goods (Chinese Taipei)  (DS588) . 
13 For details regarding the organization of the second substantive meeting in hybrid format, see 
section  1.3.3.2  below.  
14 In the pre -organizational meeting question naire, the Panel enquired in particular about the extent to 
which the timetables in the three proceedings in which the same panelists had been appointed could and 
should be harmonized, how the parties envisaged the scheduling and organization of the substa ntive meetings 
and the third -party session in those three disputes, and whether the parties intended to request the Panel to 
adopt additional working procedures for the protection of confidential information.  
15 European Union's communication  (22 October 20 20). 
16 India's communication (22 October 2020).  WT/DS582/R  
 
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  proceedings must be accorded enhanced third party rights in the two other proceedings, including 
the right to attend the entire substantive meeting." The European Union further indicated that 
"[p]ursuant to Article 9.3 of the DSU, the Panel should, to the greatest extent possible, conduct a 
single panel process, with a single record, resulting in separate reports contained in a single 
document in such a manner that the rights that parties or third parties would otherwise have enjoye d 
are in no way impaired." For the European Union, documents submitted by the parties to the Panel 
as well as questions from the Panel to the parties should be shared with the parties in the other two 
disputes.17  
1.20.   India stated that "the three disputes invo lve distinctly different claims and arguments " and 
"the measures identified by the complainants in their respective requests for the establishment of a 
panel are also different. " India ha d no objection to the timetables in the three proceedings being 
harmo nized "to the extent that they allow India, a developing country respondent, sufficient time to 
effectively respond to three different complaints. " To that end, India agreed to hav e common dates 
set for the written submissions of the complainants.  Furthermore, "[g]iven the likely differences in 
the complainants' presentation of their claims and arguments" , India request ed sufficient time to 
prepare and present its arguments. Insofar as meetings were concerned, India stated that " the 
timetables cannot collapse the proceedings into a single, identical process by holding common 
substantive meetings for all the three disputes. " India consider ed that "its ability to respond to 
distinct claims and arguments requir es separate substantive meeti ngs to be devoted to each 
dispute. " Therefore, India request ed that "the substantive meetings between the respective parties 
be held separately and sequentially on consecutive days ". India suggested  that, "[i]n order to 
achieve efficiency, a single, consol idated third  party session may be held " and " encourage d" each  
third part y to submit a single submission, "identifying the dispute(s) to which its views related ". 
India indicated that it would not object if the Panel adopted identical working procedures for  the 
three disputes .18  
1.21.   On 23 October 2020, the Panel invited the parties to comment on each other's responses to 
the pre -organizational meeting questionnaire. On 26 October 2020, India informed the Panel that 
the Permanent Mission of India to the World Tr ade Organization (WTO) had shut down because 
several staff members had been diagnosed as COVID -19 positive. India requested that, "[i]n view 
of these extraordinary circumstances", the Panel postpone the organizational meeting by 10 days 
and extend by two w eeks the deadline to submit comments on the other party's responses to the 
pre-organizational meeting questionnaire.19 On the same date the Panel postponed the 
organizational meeting and extended the deadline to submit comments on the parties' responses to  
the pre -organizational meeting questionnaire.20 The parties submitted their comments  on each 
other's responses to the pre -organizational meeting questionnaire on 10 November 2020. On 
19 November 2020, the Panel held an organizational meeting with the parties.21 
1.22.   The Panel adopted its Working Procedures and timetable on 4 December 2020.22 In its 
communication transmitting the Working Procedures and timetable  to the parties, the Panel indicated 
that it had noted the parties' agreement as well as differences of views regarding the conduct of the 
proceedings in this dispute and in the other two disputes in which the same panelists had been 
appointed. In taking its decisions in relation to the Working Procedures and timetable, the Panel 
endeavoured to balance the efficient conduct of the proceedings with the parties' due process rights 
under the DSU , bearing in mind  Article 9.3 of the DSU . The Panel decided, inter alia, that the first 
substantive meeting with the parties would be held separately for each dispute and the meetings 
would be scheduled on consecutive dates and in the sequential order of the DS numbers of the 
disputes. A joint third -party session would b e held in DS582, DS584 and DS588. The Panel added 
that it would advise on the conduct of the second substantive meeting in due course, after consulting 
with the parties. Finally, the deadlines for submissions were harmonized in the three disputes.23 
 
17 European Union's communication (22 October 2020).  
18 India's communication (22 October 2020), p. 1.  
19 India's communication (26 October 2020).  
20 Panel's communication to the parties (26 October 2020).  
21 The Panel held separate consecutive organizational meetings in DS582, DS584, and DS588.  
22 When adopting the timetable for these proceedings the Panel took into account Article 12.10 of the 
DSU and ensured that India, a developing country Member and the respond ent in this dispute, had sufficient 
time to prepare and present its argumentation.  
23 Panel's communication to the parties (4 December 2020).  WT/DS582/R  
 
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  1.3.3   Format  of the substantive meetings  
1.23.   The COVID -19 pandemic disrupted the work of the Panel, contributing to delays in the 
proceedings. Moreover, restrictions related to COVID -19, in particular on international travel, obliged 
the Panel to modify the format of the substantive meetings. This section provides an overview of 
the process leading to the Panel's decision to conduct its first and second substantive meetings in 
virtual and hybrid format, respectively.  
1.3.3.1   Format  of the first substantive meeting  
1.24.   The first substa ntive meeting of the Panel was initially scheduled for 1-2 June 2021. On 
31 March 2021, the Panel sent a communication to the parties noting that the C OVID -19 pandemic 
continued to present serious challenges for international travel and in -person meetings . The Panel 
concluded that , in light of those challenges, it would not be possible to hold its first substantive 
meeting with the parties and the third -party session in the traditional face -to-face format in Geneva 
on the WTO premises. The Panel indicated t hat, under the prevailing circumstances, and taking into 
account the objective of prompt settlement of disputes set out in Article 3.3 of the DSU and the need 
to preserve the parties' due process rights, the Panel intended  to hold both its first substantiv e 
meeting and the third -party session with remote participation, through the Cisco Webex platform. 
The Panel provided the parties with draft  Additional Working Procedures concerning meetings with 
remote participation  and invited the parties to comment on t he proposed arrangements for the first 
substantive meeting and the third -party session, and on the draft Additional Working Procedures.24 
1.25.   The European Union agreed with the Panel's proposed arrangements for the first substantive 
meeting and third-party session.25 India informed the Panel that it would not be able to participate 
in the first substantive meeting remotely for several reasons. India requested the Panel "to wait, 
observe the [COVID -19] situation in India and hold the first substan tive meeting in this dispute only 
when the situation improves so as to permit face to face meetings".26 
1.26.   On 13 April 2021, the Panel invited the parties to comment on each other's comments on the 
Panel's proposed arrangements for the first substantive meeti ng and third -party session, and on the 
draft Additional Working Procedures concerning meetings with remote participation.27 On the same 
date, t he Panel also invited the third parties to express their views on the parties' comments  
regarding the Panel's com munication of 31 March 2021 .28 
1.27.   The European Union submitted t hat the Panel "has the ultimate power to decide on procedural 
matters as per Article 12.1 and 2 of the DSU, even where the parties are unable to come to an 
agreement on this matter and it should exercise that power in a way that ensure s both respect of 
due process and the prompt settlement of the dispute ". For the European Union , online hearings 
were "perfectly possible from a technical perspective and there are several  precedents for the 
particip ation of panelists in WTO proceedings via remote video/audio communication tools ". 
Furthermore, "[v] ideoconferencing enable s effective communication, avoid s unnecessary delays, 
keeps people safe in troubled pandemic times, and reduce s CO2 emissions. " Finally, the European 
Union observed that online hearings were widely employed by domestic courts, as a temporary 
measure during the pandemic , including by t he European Court of Justice , the US Supreme Court , 
the International Court of Justice , and the Supreme Court of India . Given the unpredictable nature 
of the C OVID -19 pandemic,  the European Union considered that  it was crucial  to prevent any further 
delays in the timetable.29 
1.28.   India inform ed the Panel that , since submitting its comments on 12 April 2021, India  had 
"witnessed a surge of 42% in positive [COVID -19] cases in a period of just 5 days ". India reiterated 
that it was "not in a position to participate in full -fledged dispute settlement proceedings … t hrough 
remote participation". India drew attention to several ongoing panel proceedings where the panels 
had decided to postpone the substantive meeting due to the COVID -19 pandemic. India submitted 
 
24 Panel's communication to the parties (31 March 2021). A copy of this communication can be found in 
Annex D-1 of t he Report.  
25 European Union's communication (7 April 2021).  
26 India's communication (12 April 2021).  
27 Panel's communication to the parties (13 April 2021).  
28 Panel's communication to the third parties (13 April 2021).  
29 European Union's communication (16 April 2021).  WT/DS582/R  
 
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  that "a virtual meeting format without the consent of all  parties would be inconsistent  with Article  3.1 
and 3.2" of the DSU and that "[t]he margin of discretion held by panels under Article 12.1 does not 
extend to modifying 'substantive provisions' of the DSU." For India, "the manner in which domestic 
judicial proceedings are conducted is not germane to the issue before the Panel." India reiterated 
its concerns regarding security and confidentiality of the proceedings, as well as the difficulty of 
extending technical support to members of its delegation who were  working remotely. India 
considered that the Panel could not "amend the working procedures and conduct the first substantive 
meeting in virtual format as it would modify substantive provisions of the DSU and impair the 
respondent's due process rights."30 
1.29.   On 16 April 2021, Canada, China, Japan, Singapore, Chinese Taipei, and the United States, 
as third parties  to the dispute, submitted comments on the parties' views regarding the Panel's 
proposed arrangements for the first substantive meeting and third -party session.  
1.30.   In a communication dated 21 April 2021, the Panel noted that the DSU did not prescribe a 
particular format for panel meetings and, therefore, the Panel was not precluded from amending its 
Working Procedures and conducting meetings in the format i t deemed appropriate, after consulting 
the parties to the dispute, as provided for in Article 12.1 of the DSU. However, mindful of the 
alarming rate of growth in COVID -19 cases in India, the Panel deemed it appropriate to postpone 
the first substantive mee ting in this dispute , and in the other two disputes in which the same three 
panelists had been appointed , until the weeks of 4 and 11 October 2021 . The Panel further indicated 
that it would confirm the format of the first substantive meeting by 31 August 2 021.31 
1.31.   On 31 August 2021, the Panel informed the parties and third parties that, in view of the 
epidemiological situation, the first substantive meeting and the third -party session would be 
conducted in virtual format on 5-6 and 13 October 2021, respectively.32 On 6 September 2021, the 
Panel invited the parties to comment on the Panel's draft Additional Working Procedures concerning 
meetings with remote participation.  
1.32.   On 20 September 2021, the Panel confirmed its decision of 31 August 2021 to conduct the 
first sub stantive meeting in a virtual format.33 On the same date, the Panel adopted Additional 
Working Procedures concerning meetings with remote participation for the first substantive 
meeting.34 
1.3.3.2   Format of the second substantive meeting  
1.33.   On 22 February 2022, noting that measures related to COVID -19 had been relaxed in certain 
parts of the world, the Panel sent a communication to the parties enquiring about the feasibility of 
an in -person meeting in Geneva. The Panel invited the parties to indicate whether, taking into 
consideration remaining restrictions on international travel and their more general policy on official 
travel, the parties would be in a position to attend the second substantive meeting in person at the 
WTO premises on 29-30 March  2022. In  light of the Panel's decision to hold separate meetings on 
consecutive days in the three disputes in which the same panelists had been appointed, the Panel 
decided to consolidate all four parties' views regarding the organization of the seco nd substantive 
meetings. To th at end, the Panel copied its  communication to the representatives of the 
complainants in DS584 and DS588 and asked that the parties do so as well when conveying their 
views.35 
 
30 India's communication (16 April 2021) (quoting Appellate Body Report, India – Patents (US) , 
para. 92). 
31 Panel's communication to the parties (21 April 2021). A copy of this communication can be found in 
Annex D-2 of the Report.  
32 Panel's communication to the parties and third parties (31 August 2021). A copy of the Panel's 
communication to the parties can b e found in Annex D-3 of the Report.  
33 Panel's communication to the parties (20 September 2021). A copy of this communication can be 
found in Annex D-4 of the Report.  
34 The Panel's Additional Procedures for the first substantive meeting can be found in Annex A-2 of the 
Report.  
35 Panel's communication to the parties (22 February 2022).  WT/DS582/R  
 
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  1.34.   The European Union  confirmed that its representati ves would attend the second substantive 
meeting in person at the WTO premises on 29 -30 March 2022.36  
1.35.   India requested that the Panel provide for a hybrid hearing, in which the parties' 
representatives could attend the meeting in -person at the WTO premises and also participate 
through a virtual mode.37 
1.36.   On 2 March 2022, the Panel informed the parties that, in light of the responses of the parties 
in DS582, DS584, and DS58838, the Panel intended to hold the second substantive meeting in the 
three disputes in a  hybrid format, thus allowing for both in -person participation at the WTO premises 
and simultaneous remote participation via the Webex platform.39 On 18 March 2022, the Panel 
adopted Additional Working Procedures concerning meetings with remote participati on for the 
second substantive meeting.40 
1.3.4   Requests for enhanced third -party rights  
1.37.   On 22 and 23 December 2020, the Panel received requests for enhanced third -party rights 
from Chinese Taipei and Japan, respectively. Japan  and Chinese Taipei requested that t he Panel 
grant them the following enhanced third -party rights:  (i) to receive copies of all written submissions 
of the parties, their oral statements, rebuttals and responses to questions from the Panel and each 
other, through all stages of the proceedings ; (ii) to be present for the entirety of all substantive 
meetings of the Panel with the parties; (iii) to be allowed to make oral statements, to orally reply to 
questions , and to ask questions to the parties or other third parties, as appropriate, in those  
meetings;  and (iv) to review the draft summary of their own arguments in the descriptive part of 
the Panel Report.41  
1.38.   Japan and Chinese Taipei noted that enhanced third -party rights ha d been granted in previous 
disputes to address "practical consideration s arising from a third party 's involvement as a party in a 
parallel panel proceeding ".42 According to Japan and Chinese Taipei, their  interest in the parallel 
disputes extend ed beyond the "substantial ' interest " in Article 10.2 of the DSU because of the ir 
involvement as part ies in, respectively,  DS58 4 and DS588 .43 Japan and Chinese Taipei argued that 
the decision to compose the panels in the three disputes with the same three panelists, as well as 
the decision by  the Panel to hold a joint third -party session in DS582, DS584 and DS588 – at the 
request of India – confirmed the fact that the matters in those disputes overlapped substantially.44 
Japan and Chinese Taipei stated that they had "an exceptionally strong in terest in the Panel's 
assessment of the matter in the two parallel disputes" and it was "a matter of due process for [them] 
to have the possibility of hearing and following the discussions in the substantive meetings in the 
parallel proceedings in order to  be in a position to properly defend [their] interests during the 
substantive meeting[s] in [their] own case[s]".45 
 
36 European Union's communication (23 February 2022).  
37 India's communication (25 February 2022).  
38 Noting the rapidly changing situation concerning the C OVID -19 pandemic and  the resulting possibility 
that not all members of Japan's delegation m ight be able to travel to Geneva, Japan suggested that the second 
substantive meeting be held in a hybrid format . (Japan 's communication  in DS584 (25 February 2022 )). 
Chinese Taipei ind icated that, with the rapidly changing situation concerning the COVID -19 pandemic, it did not 
intend to send a delegation to attend the second substantive meeting in person at the WTO premises . 
(Chinese  Taipei 's communication  in DS588 (25 February 2022 )). 
39 Panel's communication to the parties (2 March 2022).  
40 The Panel's Additional Procedures for the second substantive meeting can be found in Annex A-3 of 
the Report.  
41 Japan's communication (23 December 2020), p. 1; Chinese Taipei's communication (22  December 
2020), pp. 1 -2. 
42 Japan 's communication (23 December 2020), pp. 1 -2; Chinese Taipei's communication (22  December 
2020), p. 2. Both communications refer to Panel Report s, EC – Hormones (Canada) , para. 8.17; US – COOL , 
para. 2.7; US – COOL (Article 21.5 – Canada and Mexico) , paras. 1.15-1.16; and Decisions of the Arbitrators, 
EC – Hormones (Canada) (Article 22.6 – EC) / EC – Hormones (US) (Article 22.6 – EC), para. 7.  
43 Japan 's communication (23 December 2020), p. 2; Chinese Taipei's communication (2 2 December 
2020), p. 2.  
44 Japan 's communication (23 December 2020), p. 2; Chinese Taipei's communication (22  December 
2020), p. 2.  
45 Japan's communication (23 December 2020), p. 2; Chinese Taipei's communication (22  December 
2020), pp. 2 -3. WT/DS582/R  
 
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  1.39.   The Panel invited the parties and the other third parties to comment on the requests. While 
the European Union agreed with the requests by J apan and Chinese Taipei46, India asked the Panel 
to reject those requests.47  
1.40.   India stated that granting the enhanced third -party rights requested by Japan and Chinese 
Taipei  would require the parties ' agreement , so as not to affect the balance guaranteed by the DSU 
(such as the right to confidentiality) and in order to avoid  due process concerns. India submitted 
that the only reason cited  in the requests , (i.e. the ir status as a complainant in a parallel proceeding ) 
"cannot be the only factor on the basis of which such extraordinary rights may be granted " over the 
objection of a party .48  
1.41.   According to India, a  panel's discretion to grant enhanced third -party rights wa s circumscribed 
by the relevant DSU provisions49 and by due process considerations.50 In itself, the status as a 
complainant in a parallel dispute did not "automatically result[] in an interest over and above those 
held by other third parties in this dispute" and the requesting third parties had not established 
compelling circumstances for seeki ng such additional rights.51 India submitted that, without 
prejudice to the applicability of Article  9 of the DSU to this dispute and the other two disputes where 
the same panelists were appointed, this provision "has been found to not address the question  of 
rights of third parties" in parallel disputes.52 For India, "any due process consideration in having a 
right to be heard and having an adequate opportunity thereto, are already sufficiently addressed by 
[the requesting third parties'] exercise of their right to initiate panel procedures under the DSU an d 
their standard third party rights under Article 10 [of the] DSU in this dispute."53 The requests for 
enhanced third -party rights "would inappropriately blur the distinction with the complainant".54 India 
was of the view that the first two rights requested by Japan and Chinese Taipei affected India's "right 
to confidentiality of its submissions and positions under Article 18.2 [of the] DSU" and the last two 
rights implied those third parties' "active  involvement at par with that of the complaining party 
[which] would also entail an additional burden" for India.55 
1.42.   China, the Russian Federation, Türkiye, and the United States, as third parties, provided 
comments on the requests submitted by Japan and Ch inese Taipei.56  
1.43.   On 27 January 2021, the Panel informed the parties and third parties , that "[a] fter carefully 
reviewing the requests and the views of the parties and other third parties, the Panel has concluded 
that the particular circumstances of this di spute warrant[ed] the granting of certain enhanced 
third-party rights to Japan and Chinese Taipei."  The enhanced rights granted by the Panel comprised 
"access to (i) the parties' second written submissions, (ii) the final written versions of the parties' 
oral statements made during the first and second substantive meetings, (iii) each party's responses 
to questions from the Panel and to any questions posed by the other party following the first and 
second substantive meetings, and (iv) each party's comments  on the other party's responses to 
 
46 European Unio n's communications (11 January 2021).  
47 India's communications (11 January 2021).  
48 India's communications (11 January 2021), para. 3.  
49 India's communications (11 January 2021), para. 5 (referring to Appellate Body Report s, India – 
Patents (US) , para. 92 ; and  US – FSC (Article 21.5 – EC), para. 241 ). 
50 India's communications (11 January 2021), para. 5 (referring to Appellate Body Report, Thailand – 
Cigarettes (Philippines) , para. 147 ). 
51 India's communications (11 January 2021), para. 6.  
52 India's communications (11 January 2021), para. 7.  
53 India's communications (11 January 2021), para. 9 (referring to Panel Report, US – Washing 
Machines , para. 1.12).  
54 India's communications (11 January 2021), para. 11 (referring to Panel Report, India – Quantitative 
Restrictions , para. 5.95).  
55 India's communications (11 January 2021), paras. 14 -15. 
56 China and Türkiye generally supported the requests w hile the United States opposed them. The 
Russian Federation noted that, if granted,  enhanced third -party rights should extend to all third parties . WT/DS582/R  
 
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  those questions following the second substantive meetin g." The Panel rejected the remainder of the 
requests.57 On the same date, the Panel revised the Working Procedures  to reflect its decision .58  
1.3.5   Disclosure of a panelis t's professional engagements  
1.44.   On 4 February 2021, the Chairperson of the Panel informed the parties that a panelist had 
signed a new disclosure form under the Rules of Conduct for the DSU, reflecting an update of 
professional engagements. The update conveye d the information that the consortium employing the 
panelist was eligible, alongside with other law firms, to provide legal services to a WTO Member in 
the field of international law, trade negotiations and dispute settlement, on request by the 
Government of that Member. The panelist further indicated that this information was publicly 
available and that, as of the date of the communication, the consortium had not provided any legal 
service to that WTO Member. The Panel invited the parties to comment in thi s regard.59  
1.45.   The European Union indicated that it had no comments on the Panel's communication.60  
1.46.   India noted that the situation disclosed involved a WTO Member which was part of the 
European  Union when consultations took place , and which could exercise i ts right to join as a third 
party in this dispute.  India was therefore concerned that the situation disclosed might present a 
direct conflict of interest that ought to be avoided. India requested the panelist concerned to provide 
an undertaking that the pa nelist's employer would avoid incurring any obligation or accepting any 
benefit from the Member in question that could result in a direct or indirect conflict or give rise to 
justifiable doubts as to the proper performance of the panelist's dispute settlem ent duties, in 
particular  with respect to  instructions which directly or indirectly relate d to the subject matter of, 
and measures  at issue in , this dispute .61 
1.47.   In a communication sent to the parties on 12 February 2021, the Panel indicated that, in its 
view, the information disclosed by the panelist concerned did not give rise to any direct or indirect 
conflict of interest in respect of the subject matter of the proceedings, or to justifiable doubts 
regarding that panelist's independence or impartiality.  The Panel noted that, consistent with the 
requirements in Section III of the Rules of Conduct for the DSU, the panelist concerned had 
reiterated the undertaking to disclose any new information that was likely to affect or give rise to 
justifiable doubts a s to that panelist's independence or impartiality and would take due care to avoid 
any direct or indirect conflicts of interest in respect of the subject matter of the proceedings.  
1.3.6   Preliminary  ruling  
1.48.   On 8 April 2021,  India made a preliminary objection and requested a preliminary ruling , both  
incorporated in its  first written submission.  In its preliminary objection, India claimed that the Panel's 
composition had been determined in violation of Articles 8.6 and 8.7 of the DSU and requested that 
the Panel dec line to exercise jurisdiction in this dispute.62 In its preliminary ruling request, India 
claimed that the European Union's panel request did not satisfy the conditions laid down in Article  6.2 
of the DSU.63 
1.49.   On 14 April 2021, the Panel invited the European  Union to comment on India's preliminary 
objection and preliminary ruling request . Third parties that wished to comment on these matters 
were also invited to do so.  
 
57 The Panel's decision can be found in Annex E-1 of the Report . On 24 February 2021, the Panel 
received a communication from India commenting on the Panel's decision.  In that communication, India stated 
that "reasons for granting the  additional privileges are not available in [the Panel's]  decision " and that " India 
reserve s the right to request the Panel to revisit this decision  as these proceedings progress ." (India's 
communication (24 February 2021) ). The Panel acknowledged receipt of India's communication and took note 
of India's views. (Panel's communication to the parti es and third parties (25 February 2021)).  
58 The revision concerned paragraphs 21bis and 30(d) of the Working Procedures.  
59 Panel's communication to the parties (4 February 2021).  
60 European Union's communication (5 February 2021).  
61 India's communication ( 9 February 2021).  
62 India's first written submission, paras. 21 and 238.  
63 India's first written submission, para. 36.  WT/DS582/R  
 
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  1.50.   On 23 June 2021, the Panel informed the parties that it intended to issue a communication 
regarding India's preliminary objection and preliminary ruling request on 28  June 2021. On 28 June 
2021, India requested the Panel to defer the issuance of its communication so as to ensure that 
these issues "are properly discussed and considered at the fi rst substantive meeting."64 On the same 
day, the Panel informed the parties that, in light of India's communication, it would suspend the 
issuance of the Panel's communication  and invited the European Union to comment on India's 
request.65 
1.51.   The European Uni on responded that it had a legitimate interest in obtaining a ruling from the 
Panel on these fundamental questions promptly and requested the Panel to issue the preliminary 
rulings requested by India as soon as possible.66 
1.52.    On 7 July 2021, the Panel issued  a communication to the parties and third parties regarding 
India's preliminary objection and preliminary ruling request.67  
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  The European Union  challenges the duties applied by India to imports of certain information 
communication technology (ICT) products, on the ground that such duties are in excess of the 
relevant tariff bindings set forth in India's WTO Schedule.68 According to the European U nion, the 
ICT products concerned fall within the scope of the following tariff items69 in India's WTO Schedule: 
8504.40  ex02; 8517.12; 8517.61; 8517.62; 8517.70 ex01, ex02, and ex03; 8518.30 ex01; and 
8544.42 ex01.70 The European Union identifies a number of legal instruments through which India 
applies the alleged tariff treatment to products falling under these tariff items.71  
2.2  India's customs regime  
2.2.1   Main legal instruments  
2.2.  The main legislative instruments governing the imposition of customs duties on impo rts of 
goods into India are the Customs Act, 1962, Act No. 52 of 13 December 1962  (Customs Act 1962)72 
and the Customs Tariff Act, 1975, Act No. 51 of 18 August 1975  (Customs Tariff Act 1975).73  
2.3.  Section 12 of the Customs Act 1962, titled "Dutiable goods", provides as follows:  
Except as otherwise provided in this Act, or any other law for the time being in force, 
duties of customs shall be levied at such rates as may be specified under the … [Customs 
Tariff Act], or any other law for the time being in force, on goods imported into, or 
exported from, India.74 
 
64 India's communication (28 June 2021).  
65 Panel's communications to the parties (28 and 29 June 2021).  
66 European Union's communication ( 29 June 2021).  
67 The Panel's decision can be found in Annex E-2 of the Report.  
68 Request for the establishment of a panel by the European Union (European Union's panel request), 
WT/DS582/9.  
69 We understand that under the Harmonized System (HS) nomenclature , entries at the four -digit level 
are referred to as "headings", entries at the six -digit level are referred to as "subheadings", and entries at the 
eight, or more, digit level are referred to as "tariff lines". We also note that the parties do not adhere 
consistently to this nomenclature. (See e.g. European Union's first written submission, para. 13;  and India's 
first written submission, para. 38). In this Report, we use the term "tariff item" to refer to subheadings and 
tariff lines set forth in India's W TO Schedule and First Schedule. Where useful for the purposes of clarity, we 
use the terms "subheading" and "tariff line" as per the HS nomenclature.  
70 European Union's panel request, p. 1.  
71 European Union's panel request.  We address the parties' assertio ns regarding these legal instruments 
in the context of assessing the merits of the European Union's claims in section 7 below.  
72 Customs Act  1962, (Exhibit EU -2). 
73 Customs Tariff Act  1975, (Exhibit EU -3).  
74 Customs Act  1962, (Exhibit EU -2), section 12.  WT/DS582/R  
 
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  2.4.  Section 2 of the Customs Tariff Act 1975, in turn, is titled "Duties specified in the Schedules to 
be levied" and provides as follows:  
The rates at which duties of customs sha ll be levied under the Customs Act, 1962 (52  of 
1962), are specified in the First and Second Schedules.75 
2.5.  The First Schedule of the Customs Tariff Act 1975 sets out maximum  duty rates leviable on 
imports of goods into India.76 The First Schedule is based o n the World Customs Organization's 
(WCO's) Harmonized System (HS) Nomenclature.77 At the time of the Panel's establishment, India's 
First Schedule was based on the HS Nomenclature 2017 Edition (HS2017).78 Subsequently, during 
the Panel proceedings, India a mended its First Schedule to align it with the HS Nomenclature 
2022 Edition (HS2022).79 
2.6.  The duty rates set out in the First Schedule may be modified by the Indian Parliament or by 
the Central Government of India (the Government),  as illustrated below.  
2.2.2   Parliament's power to amend the First Schedule  
2.7.  The Indian Parliament may amend the First Schedule through a Finance Bill or Finance Act.80 
A Finance Bill becomes a Finance Act once passed by both Houses of Parliament and assented to by 
the President.81 
2.2.3   The Government's power to modify the applied duty rates  
2.8.  The Government has the power to (i) increase tariff rates in the First Schedule thro ugh customs 
notifications or amendments, and (ii) provide exemptions from duties leviable, through customs 
notifications.  
2.2.3.1   Power to increase tariff rates  
2.9.  Section 8A(1) of the Customs Tariff Act 1975 authorizes the Government to increase the duty 
rates set out in the First Schedule through customs notifications. Section 8A(1), titled 
"Emergency  power of Central Government to increase import duties" provides as follows:  
Where in respect of any article included in the First Schedule, the Central Government 
is satisfied that the import duty leviable thereon under section 12 of the Customs Act, 
1962 (52 of 1962) should be increased and that circumstances exist which render it 
necessary to take immediate action, it may, by notification in the Official Gazette, di rect 
 
75 Customs Tariff Act  1975, (Exhibit EU -3), section 2.  
76 The European Union put on record the 2016/2017 consolidated version of the First Schedule. 
(First Schedule as of 2016/2017 , (Exhibit EU -59)). The European Union also not es that the tariff duties 
applicable to various products have changed over time, and therefore the consolidated version of the 
First Schedule submitted by the European Union does not necessarily reflect the changes to those tariff rates. 
(European Union's response to Panel question No. 100(b), para. 36). Moreover, in its third -party submission, 
Japan notes that India has not officially published the First Schedule in a single document. However, according 
to Japan, the latest First Schedule can be found in h ard-copy format published by third -party publications, and 
online on the website of the Central Board of Indirect Taxes and Customs  (CBIC), Department of Revenue, 
Ministry of Finance, India. (Japan's third -party submission, para. 25.  See also Chinese Taipe i's third -party 
submission, para. 3.26 ). The parties to this dispute do not contest these assertions.  
77 European Union's response to Panel question No. 99, para. 34; India's r esponse to Panel question 
No. 99, para. 37.  
78 India's response to Panel question No. 26, para. 78.  The European Union does not contest this 
assertion.  
79 India's second written submission, para. 105 (referring to Finance Act 2021 , (Exhibit IND -66)). The 
European Union does not contest this assertion.  
80 European Union's first written su bmission, paras. 38 -41. See also Chinese Taipei's third -party 
submission, para. 3.27.  India does not contest this assertion. Moreover, pursuant to Section 3 of the 
Provisional Collection of Taxes Act , a Bill that provides for the imposition or increase of a customs duty may 
enter into force the day after it is introduced to Parliament. Such Bill ceases to have  force of law when it comes 
into operation as an enactment. ( Provisional Collection of Taxes Act  1931, (Japan's third -party Exhibit JPN -22 / 
Chinese Taipei's third -party Exhibit TPKM -6), sections 3, 4(1), and 4(2)(a)).  
81 The Constitution of India 2015, (Exhibit EU-40), Articles 109 -122; Rules of Procedure in Lok Sabha, 
(Exhibit EU -41), rule 219.  WT/DS582/R  
 
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  an amendment of that Schedule to be made so as to provide for an increase in the 
import duty leviable on such article to such extent as it thinks necessary:  
Provided that the Central Government shall not issue any notification under this 
subsection fo r substituting the rate of import duty in respect of any article as specified 
by an earlier notification issued under this sub -section by that Government before such 
earlier notification has been approved with or without modifications under sub -section 
(2).82 
2.10.   Notifications issued by the Government pursuant to section 8A(1) of the Customs Tariff Act 
1975 are approved by each House of Parliament by way of resolution.83 Such notifications may also 
be rescinded by the Government at any time by subsequent notifi cation.84  
2.2.3.2   Power to exempt goods from import duties  
2.11.   Section 25(1) of the Customs Act 1962, titled "Power to grant exemption from duty",  provides 
as follows:  
If the Central Government is satisfied that it is necessary in the public interest so to do, 
it ma y, by notification in the Official Gazette, exempt generally either absolutely or 
subject to such conditions (to be fulfilled before or after clearance) as may be specified 
in the notification goods of any specified description from the whole or any part o f duty 
of customs leviable thereon.85 
2.12.   Section 25(1) thus empowers the Government to exempt goods from imposition of all 
applicable import duties or part of the import duties leviable. The exemptions may also be subject 
to conditions.  
2.13.   Notifications exempti ng goods from import duties (exemption notifications) may be amended, 
superseded or rescinded by other exemptions notifications issued by the Government in the exercise 
of its powers under Section 25(1) of the Customs Act  1962.86 The Government can also withdraw 
exemptions  issued under Section 25 at any time i f the "'public interest ' so demand[s] " and the 
Government determines that the exemption does not require to be extended any further .87 In certain 
instances, two exemption notifications or two di fferent entries in the same exemption notification 
may apply to the same tariff item. In such cases, an importer can claim the treatment afforded 
under the most beneficial exemption notification or entry.88  
 
82 Customs Tariff Act  1975, (Exhibit EU -3), section 8.  
83 Customs Tariff Act  1975, (Exhibit EU -3), section 7(3). Section 7(3) provides that "[e]very notification 
under sub -section (2), in so far as it relates to increase of such duty, shall be laid before each House of 
Parliament if it is sitting as s oon as may be after the issue of the notification, and if it is not sitting within seven 
days of its re -assembly, and the Central Government shall seek the approval of Parliament to the notification 
by a resolution moved within a period of fifteen days beg inning with the day on which the notification is so laid 
before the House of the People and if Parliament makes any modification in the notification or directs that the 
notification should cease to have effect, the notification shall thereafter have effect  only in such modified form 
or be of no effect, as the case may be, but without prejudice to the validity of anything previously done 
thereunder."  
84 Customs Tariff Act  1975, (Exhibit EU -3), section 7(4). Further, section 11A(1)  of the Customs Tariff 
Act 19 75 empowers the Government to amend the First Schedule where it is satisfied that it is necessary to do 
so in the public interest,  by notification in the Official Gazette. (Ibid.  section 11A (1)). Notifications issued under 
section 11A(1) must also be appro ved by both Houses of Parliament. (Ibid. section 11A(2)).  
85 Customs Act  1962, (Exhibit EU -2), section 25(1).  
86 European Union's first written submission, para. 55.  India does not contest this assertion.  
87 Hon'ble Supreme Court in the case of Kasinka Trading and ANR v. Union of India and ANR , 1994 (74) 
ELT 782 (S.C.) ,(Exhibit EU -4), pp. 462 -463).  
88 Hon'ble Supreme Court in the case of Share Medical Care v. Union of India and ORS , 2007 (209) 
ELT 321 (S.C.) , (Exhibit EU -5); Hon'ble CESTAT, Cipla Ltd. v. Commissioner of Customs , 2007 (218) ELT 547 
(Tri. – Chennai) , (Exhibit EU -6); and Hon'ble CESTAT, Burroughs Wellcome (I) Ltd. v. Commissioner of Central 
Excise , 2007 (216) ELT 522 (Tri. – Chennai) , (Exh ibit EU -7). See also European Union's response to Panel 
question No. 24(b), paras. 70 -71; and India's response to Panel question No. 78, paras. 62 -63. WT/DS582/R  
 
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  2.2.4   Conclusion  
2.14.   From the foregoing, and in light of the clarifications of the parties, we understand that , under 
India's customs regime , the duty rates set out in the First Schedule are not necessarily the duty 
rates applied to imported products. Rather, t he applied duty rate is based not only on the 
First Schedule, but also on any relevant customs notifications which relate to the tariff item at 
issue.89 In sum, the duty rates applicable to imports of goods into India are to be understood from 
reading the First Schedule in light of relevant customs notifica tions.  
2.3  India's WTO Schedule  
2.15.   Schedule XII – India (India's WTO Schedule) sets forth concessions and commitments 
undertaken by India in relation to trade in goods. While the parties contest a number of  issues 
related to India's WTO Schedule, we nevertheless consider it useful to describe at the outs et certain 
uncontested background facts regarding  that Schedule.  
2.16.   India's WTO Schedule  is based on the HS nomenclature, which is a multilaterally agreed 
system of classifying goods for customs purposes.90 The HS nomenclature , which is established 
under the  HS Convention,  is administered by the WCO.91 The WCO regularly amends  the HS to 
update the nomenclature. When an updated nomenclature is published, the WCO publishes 
correlation tables,  also referred to as concordance tables,  which identify the correlations between 
the product scope of HS headings and subheadings  in the previous version of the nomenclature as 
compared to the new version.92  
2.17.   In the WTO, Members' Schedules are regularly up dated in order to reflect newer versions of 
the HS nomenclature.  This process of updating a Member's Schedule is referred to as  a transposition. 
Prior to the establishment of the WTO, procedures were adopted that required the Contracting 
Parties to the Gen eral Agreement on Tariffs and Trade 1947 (GATT 1947) to incorporate updated 
nomenclature into their Schedules and, if necessary, conduct negotiations under Article XXVIII of 
the GATT 1947 if the transposition resulted in a change in the scope of the conces sion.93 
2.18.   On 13 December 1996, a number of WTO Members concluded the Ministerial Declaration on 
Trade in Information Technology Products (ITA). India joined the ITA on 26 March 1997. The ITA 
participants agreed among themselves to bind and eliminate customs duties and other duties and 
charges of any kind, within the meaning of Article II:1(b) of the GATT 1994, with respect to certain 
products.94 The Annex to the ITA requires that participants "shall incorporate" such measures into 
their Schedules annexed to t he GATT 1994, and indicates that their Schedules should be modified 
 
89 India's response to Panel question No. 27, para. 80, and No. 79, para. 67. The European Union refers 
to the duties set out in the First Schedule as "basic customs duty (BCD) rate". (European Union's first written 
submission, paras. 34 -35, and 38). In its first written submission, India uses the term "BCD" to refer to the 
duty rates set forth in the First Sc hedule. ( See e.g. India's first written submission, paras. 149, 166, 173 , and 
185). Subsequently, India clarified that its reference to "basic customs duty" in its first written submission 
should be read as "standard rate". (India's response to Panel quest ion No. 79, para. 67). In this Report, w hen 
referring to the duty rates set out in the First Schedule  we do so explicitly. We use the term  "applied duty rate" 
to refer to the rate applied  to imports,  taking into account all relevant legal instruments (incl uding relevant 
customs notifications) .  
90 See e.g. India's response to Panel question No. 1, para s. 10-11.  
91 India is a contracting party to the HS Convention . (Japan's third -party submission, para. 17; 
Chinese  Taipei's third -party submission, para. 3.24). This assertion is uncontested by the parties.  
92 See e.g. General Council Decision of 18 July 2001  on Concessions under the Harmonized Commodity 
Description an d Coding System, A Procedure for Introduction of Harmonized System 2002, Changes to 
Schedules of Concessions  (General Council Decision on HS2002 Transposition Procedures) , WT/L/407 , 
Attachment A, p. 2 ; General Council Decision of 15 December 2006 on A Proc edure for the Introduction of 
Harmonized System 2007 Changes to Schedules of Concessio ns Using the Consolidated Tariff Schedules (CTS) 
Database ( General Council Decision on HS2007 Transposition Procedures), WT/L/673,  Annex 2,  para. 7.  
93 GATT, Procedures to  Implement Changes in the HS, L/6905, Annex , paras. 2 -4. Under these 
procedures, transpositions "shall not involve any alteration in the scope of concessions nor any increase in 
bound rates of duty unless their maintenance results in undue complexity in th e national tariffs". ( Ibid. para. 1 . 
See also WTO, Decision on Establishment of Consolidated Loose -Leaf Schedules on Goods, G/L/138 ). 
94 The relevant products are identified in the ITA as "(a) all products classified (or classifiable) with 
[HS1996] headings  listed in Attachment A to the Annex [to the ITA]; and (b) all products specified in 
Attachment B to the Annex [to the ITA], whe ther or not they are included in Attachment A". (Ministerial 
Declaration on Trade in Information Technology Products (ITA), WT/M IN(96)/16 , para. 2) . WT/DS582/R  
 
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  in accordance with the GATT Decision of 26 March 1980 on Procedures for Modification and 
Rectification of Schedules  of Tariff Concessions (1980 Decision).95 India, as a participant in the ITA, 
proposed a modification to its WTO Schedule, which was circulated on 2 April 1997 for review by all 
WTO Members, pursuant to the  1980 Decision . These changes to India's  Schedule, which were based 
on the HS Nomenclature 1996 Edition (HS1996),  were certified on 2 October  1997.96  
2.19.   Subsequently, WTO Members agreed to update their WTO Schedules to align them with the 
HS Nomenclature 2002 Edition (HS2002) . For the transposition to HS2002, additional procedures 
regarding the transposition process were adopted by the General Council, but the obligation 
remained on Members to perform the transposition process.97  
2.20.   In 2006, in preparation for the transposition of Members' Schedules from the HS2002 to the 
HS Nomenclature 2007 Edition (HS2007) , the General Co uncil adopted a Decision concerning 
"A Procedure for the Introduction of Harmonized System 2007 Changes to Schedules of Concessions 
Using the Consolidated Tariff Schedules (CTS) Database" (Decision on HS2007 Transposition 
Procedures).98 Pursuant to that De cision, developed country Members were to prepare their own 
transpositions from the HS2002 to the HS2007, and the WTO Secretariat was requested to 
"transpose the schedules of developing country Members, except for those who undertake to prepare 
their own t ransposition and submit a notification to this effect".99  
2.21.   Since India did not indicate that it intended to undertake the transposition of its Schedule 
from the HS2002 to the HS2007, the WTO Secretariat undertook to prepare India's transposition. 
On 8 Nove mber 2013, the Secretariat communicated to India via email the draft files for the HS2007 
transposition of India's Schedule.100  
2.22.   Following receipt of the draft transposition files prepared by the WTO Secretariat, India 
provided comments on the draft files .101 The Secretariat then communicated a revised file to India 
for approval.102 A multilateral review session was held in the Committee on Market Access on 
23 April 2015, during which the draft files were approved  by Members in the Committee on Market 
Access .103 The draft modifications to the Schedule were circulated on 12 May 2015 and, since no 
objections were received within three months of circulation, on 12 August 2015 the changes to the 
Schedule w ere certified.104   
2.23.   On 25 September 2018, India requested that its Schedule be rectified, in accordance with the 
1980 Decision , in order to correct "certain errors contained in its HS2007 Schedule".105 Specifically, 
India requested that its commitments with respect to 15 tariff items be rectified to "Unbound", 
including certain of the tariff items at issue in this dispute.106 In its request, India stated that "[w]hile 
transposing the HS2002 schedule to HS2007 schedule on the products concerned, errors occurred, 
 
95 Paragraphs 1 and 2 of the Annex to the ITA. See also GATT Decision of 26 March 1980 on Procedures 
for Modification and Rectification of Schedules of Tariff Concessions (1980 Decision) , L/4962. Pursuant to 
paragraph 2 of the Annex to the ITA, each ITA participant's proposed modification of their WTO Schedules is 
subject to review, and approval on a consensus basis, by all ITA participants.  
96 WT/Let/181.  
97 General Council  Decision on HS2002 Transposition Procedures , WT/L/407.  
98 General Council  Decision on HS2007 Transposition Procedures , WT/L/673.  
99 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.  
100 Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50).   
101 Email from Market Access Inte lligence Section , WTO, to India  (12 February 2014) , (Exhibit  IND-51). 
India did not provide comments or seek clarifications regarding the transposition of the tariff item s at issue in 
this dispute .  
102 India's response to Panel question No. 19, paras. 60 -61. 
103 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India, 
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.  
104 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India, 
Communicati on from the Secretariat, G/MA/TAR/RS/409, 12 May 2015 , as certified in WT/Let/1072, effective 
12 August 2015 ; India's response to Panel question No. 19, para. 61.  
105 India's rectification request , G/MA/TAR/RS/572 , (Exhibit IND -78), p. 1.  
106 India requested that, inter alia , the following tariff items be rectified to "unbound": 8517.12 
(telephones for cellular networks or for other wireless networks); 8517.61 (base stations); ex 8517.62 (other 
machines for the recept ion, conversion and transmission or regeneration of voice, images or other data 
including switching and routing apparatus ); ex 8517 .70 (parts of 8517 .12, 8517 .61, ex 8517 .62 and ex 
8517.69); and ex 8517.70 (o ther parts ). (India's rectification request , G/M A/TAR/RS/572 , (Exhibit IND -78), 
Appendix 2, p. 3). WT/DS582/R  
 
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  resulting in wron g bound tariff commitments on certain lines  which were inadvertently included in 
the Schedule."107 According to India, "the various tariff subheadings for which India is seeking 
rectification to its HS2007 Schedule" were not covered by the commitments in th e ITA, and "[t]he 
new products became part of the schedule on account of the WCO transposition from HS2002 to 
HS2007".108 India considered  that the rectification did not alter its commitments "either under 
GATT  1994 or the ITA[]"109, and that "[t]he errors in the HS2007 scheduling should be interpreted 
as an inadvertent oversight by India on binding of products not covered by the ITA [] at 0%".110  
2.24.   Several Members, including Canada111, China112, the European Union113, Japan114, 
Chinese  Taipei115, Switzerland116, and the United States117 objected to India's proposed rectification  
under the 1980 Decision . In light of these objections, and in accordance with the 1980 Decision118, 
India's rectification request has not, to date , been  certified.   
2.25.   In light of the foregoing, India's WTO Schedule  presently indicates , inter alia , the following 
tariff commitments119: 
 
Ex Description  Bound 
rate 
85  Electrical machinery and equipment and parts thereof; sound recorders and 
reproducers, television image and sound recorders and reproducers, and parts 
and accessories of such articles   
8504  Electrical transformers, static converters (for example, rectifiers) and 
inductors.   
8504.40   -Static converters   
8504.40  02 --Static converters for automatic data processing machines and units thereof, 
and telecommunication apparatus  0% 
8517  Telephone sets, including telephones for cellular networks or for other wireless 
networks ; other apparatus for the transmission or reception of voice, images 
or other data, including apparatus for communication in a wired or wireless 
network (such as a local or wide area network), other than transmission or 
reception apparatus of heading 84 .43, 85.25, 85 .27 or 85 .28  
8517.12   --Telephones for cellular networks or for other wireless networks  0% 
8517.61   --Base stations  0% 
8517.62  
  --Machines for the reception, conversion and transmission or regeneration of 
voice, images or other data, including switching and routing apparatus  0% 
 
107 India's rectification request , G/MA/TAR/RS/572 , (Exhibit IND -78), p. 1. 
108 India's rectification request , G/MA/TAR/RS/572 , (Exhibit IND -78), Appendix 1, p. 2 . 
109 India's rectification request , G/MA/TAR/RS/572 , (Exhibit IND -78), p. 1. 
110 India's rectification request , G/MA/TAR/RS/572 , (Exhibit IND -78), Appendix 1, p. 2 .  
111 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134, p.  40; 
Committee on Market Access,  Minutes of the meeting held on 11 November 2019, G/MA /M/71, p ara. 15.4 . 
112 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019 , G/C/M/134, 
para. 12.5; Committee of Participants on the Expansion of Trade in Information Technology  Products, Minutes 
of the meeting held on 14 May 2019, G/IT/M/70, para. 1.14 . 
113 Council for Trade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, 
para. 18.4 ; Committee of Participants on the Expansion of Trade in Information Te chnology Products, Minutes 
of the meeting held on 30 October 2018 , G/IT/M/69, paras. 1.19 -1.21; and Committee on Market Access, 
Minutes of the meeting held on  9 October 2018,  G/MA/M/68, para. 134 . 
114 Letter from Japan  to India  (9 November 2018) , (Japan's third -party Exhibit JPN -4); Council for Trade 
in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, para. 18.13 . 
115 Letter from Chinese Taipei  to India  (19 October 2018) , (Chinese Taipei's third -party Exhibit TPKM -3); 
Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of the 
meeting held on 30 October 2018, G/IT/M/69, para. 1.36.  
116 Council for Trade in Goods, Minutes of the meet ing held on 11 and 12 April 2019 , G/C/M/134 , 
para. 12.12.  
117 Council for Trade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, 
paras. 18.7 -18.8; Committee on Market Access, Minutes of the meeting held on 9 October 2018, G/MA/M/ 68, 
para. 131 . 
118 The 1980 Decision indicates that proposed changes shall become a certification provided that no 
objection has been raised by a Member within three months of being communicated to all Members. (GATT, 
1980 Decision, L/4962, para. 3).  
119 WT/Let/181;  WT/Let/1 072.  WT/DS582/R  
 
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Ex Description  Bound 
rate 
8517.70.00   -Parts  
8517.70.00  01 --Parts and accessories of the machines of heading 84.71: For populated PCBs  0% 
8517.70.00  02 --Parts and accessories of the machines of heading 84.71: Other  0% 
8517.70.00  03 --Other  0% 
8518  Microphones and stands therefor; loudspeakers, whether or not mounted in 
their enclosures; headphones and earphones, whether or not combined with a 
microphone, and sets consisting of a microphone and one or more 
loudspeakers ; audio -frequency electric amplifiers; electric sound amplifier sets.   
8518.30   -Headphones, earphones and combined microphone/speaker sets   
8518.30  01 --Line telephone handsets  0% 
8544  Insulated (including enamelled or anodised) wire, cable (including co -axial 
cable) and other insulated electric conductors, whether or not fitted with 
connectors; optical fibre cables, made up of individually sheathed fibres, 
whether or not assembled with electric conductors or fitted with connectors.   
8544.4   -Other electric conductors, for a voltage not exceeding 1,000 V:   
8544.42  01 --Of a kind used for telecommunications  0% 
 
 
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.   The European Union requests the Panel to find that, by applying ordinary customs duties in 
excess of the tariff bindings set forth in its WTO Schedule, with regard to products falling under the 
tariff items identified by the European Union, India is acting  inconsistently with its obligations under 
Articles II:1(a) and (b) of the GATT 1994.120 The European Union further requests, pursuant to 
Article 19.1 of the DSU,  that the Panel recommend that India bring its measures into conformity 
with its WTO obligation s.121 
3.2.  India requests the Panel to find that:  
a. The products at issue are not covered under the ITA , and the HS2007 Schedule which was 
certified in error included products not originally covered by the ITA122; 
b. Since the products at issue are not covered under the ITA, the draft rectification circulated 
by India is of a "purely formal character".123 Therefore, the objection raised by the 
European Union to the draft rectification was unfounded, contrary to paragraph  3 of the 
1980 Decision , and impeded India's righ t to rectify its Schedule under the 
1980 Decision124; 
c. India is not imposing duties on the following imported products and is therefore acting in 
line with its commitments under the ITA:  
i. Line telephone handsets;  
ii. Products falling under subheadings 8544.42 an d 8544.49 of its WTO Schedule125; and 
d. The commitments under the contested subheadings of India's WTO Schedule are invalid 
due to "error" within the meaning of Article 48 of the Vienna Convention  on the Law of 
Treaties (Vienna Convention) .126 
 
120 European Union's first written submission, para. 175.  
121 European Union's first written submission, para. 176.  
122 India's first written submission, para. 239(c); second written submission, para. 168 (b).  
123 India's first written submission, para. 239 (d); second written submission, para. 168 (c).  
124 India's second written submission, para. 160; response to Panel question No. 74, para. 53.  
125 India's first written submission, paras. 239(e) and (f).  
126 India's first written submission, para. 239(h); second written submission, para. 168(a).  WT/DS582/R  
 
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  4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 23 of the Working Procedures adopted by the Panel (see Annexes B -1, 
B-2, B-3, and B -4). 
5  ARGUMENTS OF THE TH IRD PARTIES  
5.1.  The arguments of Brazil, Canada, Japan, the Republic of Korea, Norway, Singapore, 
Chinese  Taipei, Türkiye, Ukraine, and the United States are reflected in their executive summaries, 
provided in accordance with paragraph 26 of the Working Proced ures adopted by the Panel 
(see Annexes C -1, C-2, C-3, C-4, C-5, C-6, C-7, C-8, C-9, and C -10). China, Indonesia, Pakistan, 
the Russian Federation, and Thailand did not submit written or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1.   On 28 October 2022, the Panel issued its Interim Report to the parties. On 18 November 2022, 
the European Union and India each submitted written requests for the Panel to review aspects of 
the Interim Report. Neither party submitted any comments on the other's party's requests fo r 
review. Moreover, neither party requested an interim review meeting.  
6.2.  In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's 
response to the parties' requests made at the interim review stage, including certain request s 
discussed in greater detail below . The numbering of some of the paragraphs and footnotes in the 
Final Report has changed from the numbering in the Interim Report.   
6.3.  Certain of the parties' requests for review of the Interim Report include requests to pro vide 
more detailed summaries of the parties' arguments. In certain instances, we considered it useful 
and appropriate to modify the summaries of the parties' arguments, in response to such requests. 
We wish to highlight in this regard that t hroughout the R eport, we have summarized the parties' 
arguments  with a view to making an objective assessment of the matter before us, in order to make 
such findings as will assist the DSB in making the recommendations or rulings provided for in the 
relevant covered agre ements . The Report therefore does  not comprehensively reproduce every 
aspect of the parties' arguments, which are more fully reflected in the executive summaries annexed 
to this Report.  
6.4.  Certain of the parties' requests for review of the Interim Report als o include requests to modify 
or clarify aspects of the Panel's substantive reasoning. In certain instances, we have sought to clarify 
or simplify our reasoning. In other instances, however, we consider that the Interim Report was 
sufficiently clear on its face, and no modifications were required. In several instances (both with 
respect to the summaries of the parties' arguments and our own reasoning) we have modified the 
Report in response to a party's request, but without necessarily using the precise draf ting requested 
by the parties, or by adjusting paragraphs/footnotes other than those specifically identified by the 
parties.  
6.5.  We have also made typographical and other editorial modifications in the Report, including in 
response to the parties' requests for  review.  
6.6.  We address below certain specific issues raised by the parties' requests for review.  
6.1  General issues concerning India's WTO tariff commitments  
6.1.1   Whether India's assumption that the transposition of its WTO Schedule to the 
HS2007 would not expand the  scope of its WTO tariff commitments from its ITA 
undertakings formed an essential basis of India's consent to be bound by its WTO 
Schedule  
6.7.  Section 7.3.3.2.3.4 of the Report addresses whether India's assumption that the transposition 
of its WTO Schedule to  the HS2007 would not expand the scope of its WTO tariff commitments from 
its ITA undertakings formed an essential basis of its consent to be bound by its WTO Schedule.  WT/DS582/R  
 
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  6.8.  In its request for interim review, India asserts that the Panel's reasoning in paragra phs 7.135 
to 7.137 of the Interim Report  "inverts rather than addresses India's arguments".127 India considers 
that "it is irrelevant what India's conduct signalled to the WTO members (if anything at all)" and 
"[w]hat is relevant is whether India was provid ed with the required flagging of the relevant tariff 
lines – the absence of which led to India's flawed assumption".128 India requests the Panel to "provide 
further clarity on its reasoning and conclusion, including for the Panel's basis to seek additional 
evidence from India regarding the 'conditional basis for accepting the changes to its Schedules' to 
confirm the existence of an assumption".129  
6.9.  The European Union does not comment on India's request.  
6.10.   At the outset, we recall that it is uncontested that the  burden of proof under Article 48(1) of 
the Vienna Convention falls on the party invoking Article 48. With that in mind, we note that 
throughout the course of these proceedings, India has argued that the "error" (within the meaning 
of Article 48 of the Vie nna Convention) that occurred during the transposition of its Schedule was 
an expansion of India's WTO tariff commitments beyond those contained in the ITA.130 On this basis, 
India has argued that the "assumption" which allegedly constituted an "essential b asis" of India's 
consent to be bound by its Schedule was that its WTO tariff commitments would not be expanded 
beyond the ITA .131  
6.11.   Thus, in applying the distinct elements of Article 48(1), we have assessed, inter alia , whether 
India has demonstrated that its  assumption (i.e. that the transposition of its WTO Schedule to the 
HS2007 would not expand the scope of its WTO tariff commitmen ts beyond  its ITA undertakings ) 
formed an essential basis of its consent to be bound by its WTO Schedule .132 Having reviewed the 
evidence and arguments adduced by the parties, including with respect to India's conduct at the 
time of the transposition, we ha ve concluded that India has failed to meet its burden of proof with 
respect to this element of the analysis under Article 48(1). Briefly put, there is no persuasive 
evidence before us that, at the time of the transposition process, an essential basis for I ndia's 
consent to be bound by its transposed WTO Schedule was that the scope of its WTO tariff 
commitments would be no broader than the ITA (with respect to relevant ITC products). In response 
to India's request, we have modified paragraph 7.137 of the Int erim Report to clarify this.  
6.12.   Regarding other aspects of India's request, we first note India's assertion that we required 
"additional evidence" from India "to confirm the existence of an assumption". That is incorrect. In 
the first step of our analysis under Article 48(1) (in section 7.3.3.2.3.2), we address the "existence" 
of India's assumption and, on balance, accept in good faith India's assertion that it held that 
assumption at the time of the transposition exercise. As a distinct step, in assessing the third element 
of the test un der Article 48(1) (in section 7.3.3.2.3.4), we address whether India has demonstrated 
that its assumption constituted an "essential basis of its consent to be bound". It is in that specific 
respect that we consider that India has failed to substantiate its  burden of proof.  
6.13.   Regarding India's observation that its conduct during the transposition process is irrelevant 
to the question of whether India's stated assumption constituted an essential basis for its consent 
to be bound, we disagree. To the contrary, India's actions during the transposition process provide 
some indication of what constituted India's essential bases for its consent to be bound by its 
transposed Schedule.  
6.14.   We further note that India also argues that what matters in this context is whethe r India "was 
provided with the required flagging of the relevant tariff lines".133 We disagree. We recall that this 
step of the analysis assesses whether India's assumption regarding the scope of the ITA and the 
scope of its WTO Schedule constituted an esse ntial basis of its consent to be bound by that Schedule. 
 
127 India's request for interim review, para. 15.  
128 India's request for interim review, para. 15.  
129 India's request for interim review, para. 1 6.  
130 See e.g. India's first written submission, para. 57; second written submi ssion, para. 19.  
131 India states that it "assumed at the time of the certification of [India's] 2007 Schedule that the 
HS2007 transposition did not expand India' s tariff commitments beyond India' s obligations under the ITA []". 
(India's first written submis sion, para. 59). Similarly, India states that " its mistaken assumption was that the 
HS2007 did not expand India' s tariff commitments beyond India' s obligations under the ITA []. That remains 
India' s clearly articulated position. " (India's opening statement at the second meeting of the Panel, p. 2).  
132 See section 7.3.3.2.3.4  below.  
133 India's request for interim review, para. 15.  WT/DS582/R  
 
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  Regardless  of whether the relevant tariff items were adequately flagged by the WTO Secretariat, 
there is no indication before us that India's consent to be bound by its WTO Schedule was conditional 
upon the product scope of its WTO tariff commitments not exceeding the product scope of the ITA. 
In other words, even if the WTO Secretariat had failed to flag the relevant tariff items, that would 
not prove (or even seem to be relevant to) India's assertio ns regarding its stated assumption being 
an essential basis of its consent to be bound.134 Thus, India's argument regarding the alleged failure 
of the Secretariat to flag the relevant tariff items is not pertinent to our assessment of this specific 
aspect o f India's arguments under Article 48(1).  
6.1.2   Whether the circumstances were such as to put India on notice of a possible 
expansion of its WTO tariff commitments from its ITA undertakings  
6.15.   Section 7.3.3.3.3.2 of the Report addresses whether the circumstances o f the transposition 
of India's Schedule were such as to put India on notice of a possible expansion of its WTO tariff 
commitments from its ITA undertakings (one of two elements arising under Article 48(2) of the 
Vienna Convention).   
6.16.   India notes the Panel's  conclusion that the WTO Secretariat "fulfilled its obligation to flag the 
complex technical transpositions … thereby put[ting] India on notice of the error", notwithstanding 
the Panel's observation in paragraph 7.192 of the Interim Report that "both parti es … may read 
document G/MA/283 differently".135 India states that it is unclear "how a document like G/MA/283 
should be read differently by different parties on a contested issue, and yet somehow justifiably 
meet its purpose".136 India requests the Panel to "address the contradictions arising out of its legal 
reasoning and make suitable modifications".137  
6.17.   The European Union does not comment on India's request.  
6.18.   While we consider that the Interim Report sufficiently conveyed the Panel's reasoning on t his 
issue, we have in any event modified paragraphs 7.191  to 7.192  of the Interim Report in order to 
further elucidate that reasoning. For the sake of additional clarity, we consider it useful to note here 
that although the parties appear  to agree that doc ument G/MA/283 does not flag any tariff items, 
the parties are in fact saying two different things when they make their respective assertions. The 
European Union explains that its " position is that the transposition from HS2002 to HS2007 did not 
modify the  scope of the tariff concessions at issue in this dispute. Therefore, there was nothing to 
be 'flagged ' by the Secretariat. "138 The European Union elaborates that,  "[t]he 2012 Methodology 
Note … informed all Members that 'the scope of heading 85.17 has been  expanded and the 
transposition of heading 85.25 entails the transfer of certain products to heading 85.17 '. These 
changes to the HS nomenclature, however, did not imply a modification of the scope of the tariff 
concessions at issue in this dispute. "139  Thus, the European Union  appears to assert that the WTO 
Secretariat w as only required to flag those  tariff items for which there  were actual changes in the 
scope of concessions. That assertion, however, does not square with the plain language of the 
flagging  obligation imposed on the WTO Secretariat – "[a]ny tariff line for which a change in the 
scope of a concession may have occurred  due to the complex technical nature of the transposition 
shall be clearly flagged."140 The European Union  does not reconcile, o n the one hand, its assertion 
that because there were no changes in scope the Secretariat was not required to flag any tariff 
items, with, on the other hand, the obligation on the Secretariat to flag any tariff item for which a 
change in scope may have occ urred. In any event, for our purposes, we understand that  when the 
European Union says that the WTO Secretariat did  not flag any tariff items, the European Union 
 
134 India's arguments during interim review might be interpreted as suggesting that its "assumption" for 
purposes of Article 48 was that the WTO Secretariat would flag the relevant tariff items. Notwithstanding that 
India has not framed its alleged error under Article  48 in this manner, we recall that in the context of applying 
Article 48(2), we have indeed assessed India's arguments regarding the WTO Secretariat's alleged failure to 
flag the relevant tariff items, and concluded that the WTO Secretariat correctly and appropriately flagged all 
relevant tariff items . (See paras. 7.175 -7.193  below ). Thus, if India had alleged that the "error" under Article 
48(1) was that the WTO Secretariat had failed to flag the relevant tariff items ( quod non ), our findings indicate 
that no such error occurred.  
135 India's request for interim review, para. 17.  
136 India's request for interim review, para. 1 8. 
137 India's request for interim review, para. 1 8. 
138 European Union's comments on India's response to Panel question No. 90(a)(i) and (ii), para. 4.  
139 European Union's comments on India's response to Panel question No. 90(a)(i) and (ii), para. 4.  
140 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  WT/DS582/R  
 
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  means that the WTO Secretariat  did not flag any tariff items whose product scope ha d, in fact, 
changed.  
6.19.   That assertion by the European Union  that the WTO Secretariat did not flag any tariff items 
because their product scope ha d not actually  changed is not the same as India's assertions that the 
WTO Secretariat failed to flag any tariff i tems for which the product scope of the concession may 
have changed. In contrast  to the European Union , India acknowledges that the flagging obligation 
on the WTO Secretariat applie d to possible changes of scope, but India maintains that, contrary to 
that obligation, the WTO Secretariat did  not flag any relevant tariff items. Thus, when India says 
that document G/MA/283 does not flag any tariff items, India means that document G/MA/283 does 
not flag any tariff items for which the product scope of the conces sions may have  changed.  
6.20.   In short, while the parties appear  to agree that the WTO Secretariat did not flag any relevant 
tariff items, they are in fact making different assertions. In our findings regarding this issue, we 
have addressed distinctly: (i) Indi a's arguments regarding whether the Secretariat satisfied its 
obligation to flag tariff items for which the product scope  of the concession may have changed141; 
and (ii) the European Union's argument that the Secretariat did not flag any tariff items for wh ich 
the product scope  of the concession actually  changed .142 
6.21.   India also notes that in paragraph 7.196 of the Interim Report , the Panel "concludes that 
India's argument deletes the word 'possible ' as contained in Article 48(2)  …, thereby requiring the 
state to 'be unmistakeably aware of the actual error '".143 India considers that " the word 'possible ' 
has little to do with the customary international law standard which applies in the present instance 
'that no interested party shoul d fail to notice the error ' or indeed a 'possible error '."144 India states 
that the " thrust of that international legal standard is in relation to how evident an error (or a possible 
error) must be for a State to be put on notice under Article 48(2) ".145 According to India, " that 
standard is in the context of the prominence of an error or a possible error, and not in the context 
of the range of errors that might be covered in its scope ".146 India requests the Panel to provide 
"further clarity" on the conclusio ns reached by the Panel on this issue.147  
6.22.   The European Union does not comment on India's request.  
6.23.   We note that t he issue being addressed in the relevant paragraph s is India's argument that 
"for a state to be put on notice of a possible error, the circumsta nces should be such that no 
interested party should fail to notice the error or be under a misapprehension about it."148 The Report 
address es this argument  and ultimately conclude s that the relevant standard under this element of 
Article 48(2) is whether the State was on notice of a possible  error, not an actual error. Those are 
plainly different things. We see no need to modify or further clarify our  reasoning  on this issue.  
6.2  Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the 
GATT 1994  
6.2.1   Tariff item 8504.40 ex02 of India's WTO Schedule  
6.24.   India requests us to delete language in paragraph 7.260 , and footnote 660 there to, of the 
Interim Report highlighting a contradiction in India's argument regarding the tariff treatment 
accorded to static converters for cellular mobile phones.  India maintains that it chose to not contest 
the assertions made by the European Union on the duty rate applied to such products.149 The 
European Un ion does not comment on India's request. We note that, as illustrated in paragraph 
7.258, India indeed made different arguments on the tariff treatment accorded to such products. 
Nonetheless, we have made modifications in order to more precisely reflect In dia's arguments.  
 
141 See paras. 7.175 -7.191  below.  
142 See para. 7.192  below.  
143 India's request for interim review, para. 19.  
144 India's request for interim review, para. 19.  
145 India's request for interim review, para. 19.  
146 India's request for interim review, para. 19.  
147 India's request for interim review, para. 20.  
148 India's second written submission, para. 29. See also India's first written submission, para. 73 .  
149 India's request for interim review, paras. 21 -22.  WT/DS582/R  
 
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  6.2.2   Tariff item 8517.12  of India's WTO Schedule  
6.25.   India submits that the description of the parties' arguments regarding the tariff treatment 
accorded to products classified under tariff item 8517.12 is " not accurate when viewed at the 8 -digit 
HS level ".150 India requests the deletion of language in paragraph 7.284  of the Interim Report to 
the effect that it is uncontested that, at the Panel's establishment, India's First Schedule imposed a 
standard duty rate of 20% on products classified under ta riff item 8517.12. India suggests that a 
more accurate reflection of the parties' arguments is that it is uncontested that India's First Schedule 
imposed a standard duty rate of 20% on products classified under tariff items 8517.12.11 and 
8517.12.19, and t hat those tariff items "would come under the tariff item 8517.12".151  
6.26.   The European Union does not comment on India's request for review.  
6.27.   We recall that t he parties agree that at the time of the Panel's establishment, India's First 
Schedule imposed a stand ard duty rate of 20% on products classified under tariff items 8517.12.11, 
8517.12.19 and 8517.12.90 (all of which fall under tariff item 8517.12).152 Therefore, paragraph 
7.284  of the Interim Report  accurately reflects the parties' arguments. Moreover, tha t same 
paragraph also indicates that the tariff treatment accorded to products under tariff item 8517.12.90 
differed from that set forth in the First Schedule, as products falling thereunder were exempted from 
customs duties. This information is also uncon tested by the parties.153 We therefore decline to make 
the changes requested by India.  
6.2.3   Tariff items 8517.61  and 8517.70 ex01, ex02, and ex03 of India's WTO Schedule  
6.28.   During the interim review process, we considered it useful to clarify certain factual issues 
pertaining to Serial No. 425 of Notification No. 50/2017. On 14 December 2022, we sent a question 
to the parties concerning this issue. On 21 December 2022, the pa rties responded to that question. 
On 11 January 2023, the parties indicated that they had no comments on the other party's response. 
In its response to our question, India referred to Notification No. 02/2022. On 18 January 2023, we 
invited India to submit  Notification No. 02/2022 as an exhibit. On 20 January 2023, India submitted 
Notification No. 02/2022 as Exhibit IND -90.  
6.29.   We understand that, in light of the parties' responses to our question, and on the basis of 
Notification No. 02/2022, Serial No. 425 o f Notification No. 50/2017 was omitted from that 
Notification pursuant to Notification No. 02/2022.154 Therefore, with effect from 1 February 2022, 
the tariff treatment applicable to base station controllers, base transreceiver stations, and antenna 
systems , as well as parts of those products, pursuant to that Serial No., is no longer applicable.155 
We have accordingly modified relevant paragraphs in sections 7.4.4 and 7.4.6.  
7  FINDINGS  
7.1  Introduction  
7.1.  The European Union claims that India is acting inconsistently  with Articles II:1(a) and (b)  of 
the GATT 1994 by imposing tariff treatment on certain information communication technology (ICT) 
products that is inconsistent with the commitments inscribed in India's WTO Schedule.156 The 
European Union specifically chall enges the tariff treatment accorded by India to products falling 
under the following tariff items157 of India's WTO Schedule: 8504.40 ex02; 8517.12; 8517.61; 
8517.62; 8517.70  ex01, ex02, and ex03 ; 8518.30 ex01 and 8544.42.00 ex01. The European Union 
conside rs that such tariff treatment is provided through India's domestic customs regime, comprising 
 
150 India's request for interim review, para. 23.  
151 India's request for interim review, para. 23.  
152 European Union's first written submission, para. 94 (referring to Finance Act 2019 , (Exhibit EU -19); 
India's first written submission, para. 149.  
153 European Union's first written submission, para.  104; and India's response to Panel question No. 
108(a), para. 58.  
154 India's response to Panel question No. 134.  
155 Notification No. 02/2022, (Exhibit IND -90). 
156 European Union's second written submission, par a. 78.  
157 As noted above, we use the term "tariff item" to refer to subheadings and tariff lines set forth in 
India's WTO Schedule and First Schedule. Where useful for the purposes of clarity, we use the terms 
"subheading" and "tariff line" as per the HS no menclature. (See fn 69 to para. 2.1 above).  WT/DS582/R  
 
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  in particular India's First Schedule and various customs notifications. Essentially, the European Union 
submits that the tariff treatment provided by India is inc onsistent with India's WTO Schedule 
because: (i) duties applied by India to certain such products are in excess of the duty -free rates that 
India is obliged to provide under its WTO Schedule; and (ii) duty -free treatment that is accorded to 
certain product s is subject to conditions that are not set forth in India's WTO Schedule.  
7.2.  For tariff items 8518.30 ex01 and 8544.42 .00 ex01, India acknowledges that the tariff 
commitments set forth in its WTO Schedule indeed constitute relevant binding tariff commitment s, 
but submits that products falling under such tariff items are subject to duty -free treatment, without 
being subject to any conditions, and consequently such tariff treatment is consistent with its WTO 
tariff commitments.158 With respect to the other tari ff items at issue in this dispute, India argues 
that "there is no violation of Article [s] II:1(a) and (b) of the GATT 1994 since the contested 
sub-headings under the 2007 Schedule are a result of an error."159 India argues that when India's 
WTO Schedule was  transposed from the HS2002 to the HS2007, "an error by India and a likely 
oversight by other [WTO] Members" occurred, such that India's "schedule of concessions was 
certified in error".160 India argues that it had "communicated to the wider WTO membership 
previously that it did not intend to expand its tariff commitments beyond those contained in the ITA" 
and that "it would not have agreed to the certification of its schedule of concessions if it were aware 
that such certification would effectively expand India's commitments beyond those contained in the 
ITA[]".161 India submits that, pursuant to Article 48 of the Vienna Convention, the tariff commitments 
for these tariff items in its WTO Schedule were certifie d in error, and consequently are both invalid 
and unbound.162 India refers to the Legal O pinion of Professor Michael Waibel who asserts that the 
WTO Secretariat "bears at least some of the responsibility for the errors".163 India also asserts that 
the complainant violated paragraph 3 of the GATT Decision of 26 March 1980 on Procedures for 
Modification and Rectification of Schedules of Tariff Concessions (1980 Decision ) by objecting to 
India's request to rectify its Schedule, through that Decision.164 Finally, with respect to certain 
specific aspects of the European Union's claims, India claims that the European Union has failed to 
adequately identify the products at issue.165 India also argues that a number of the conditions 
challenged by the European Union are not of a kind that are required to be inscribed in a WTO 
Schedule.166 
7.3.  We proceed with our analysis in several steps. We first describe the legal standard under 
Articles II:1(a) and (b)  of the GATT 1994. Having set forth the  legal standard, we address three 
general  issues concerning India's WTO tariff commitments and the application of  ArticlesII:1(a) and 
(b) in the circumstances of this dispute, namely: (i) the relevance of the ITA; (ii) India's plea of 
error under Article 4 8 of the Vienna Convention; and (iii) India's arguments concerning its 
rectification request under the 1980 Decision. Having addressed these general  issues, we then turn 
to assess whether India is acting inconsistently with Articles II:1(a) and (b) .  
7.2  The l egal standard under Articles II:1(a) and (b)  of the GATT 1994  
7.4.  Articles II:1(a) and (b) provide that:  
(a) Each Member shall accord to the commerce of the other Members treatment no 
less favourable than that provided for in the appropriate Part of the appro priate 
Schedule annexed to this Agreement.  
(b) The products described in Part I of the Schedule relating to any Member, which 
are the products of territories of other Members, shall, on their importation into the 
territory to which the Schedule relates, an d subject to the terms, conditions or 
qualifications set forth in the Schedule, be exempt from ordinary customs duties in 
 
158 India's response to Pan el question No. 66, para. 29; second written submission, para. 4.  
159 India's response to Panel question No. 50, para. 106.  
160 India's second written submission, para. 1.  
161 India's second written submission, para s. 3 and 25 . See also India's first written s ubmission, 
para. 57. 
162 India's first written submission, paras. 90 -91.  
163 India's response to Panel question No. 90(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on 
Error, (Exhibit IND -79), para. 39).  
164 India's second written submission, para. 160.  
165 See e.g. India's response to Panel question No. 105 , paras. 52 -55, and No. 117, para. 71.  
166 See e.g. India's response to Panel question No. 103, paras. 48 -49.  WT/DS582/R  
 
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  excess of those set forth and provided therein. Such products shall also be exempt from 
all other duties or charges of any kind impose d on or in connection with the importation 
in excess of those imposed on the date of this Agreement or those directly and 
mandatorily required to be imposed thereafter by legislation in force in the importing 
territory on that date.  
7.5.  Previous panels have fo und that "Article II generally … protects expectations of a competitive 
relationship (or conditions of competition) and not expectations of any particular trade volume."167 
Moreover, the Appellate Body has stated that Article II:1 "serves the important func tion of 
preventing Members from applying duties that exceed the bound rates agreed to in tariff negotiations 
and incorporated into their Schedules of Concessions" .168  
7.6.  We agree with prior interpretations of Articles II:1(a) and (b)  such that, while paragrap h (a) of 
Article II:1 "contains a general prohibition against according treatment less favourable to imports 
than that provided for in a Member's Schedule"169, paragraph (b) "prohibits a specific kind of practice 
that will always be inconsistent with paragr aph (a) : that is, the application of ordinary customs 
duties in excess of those provided for in the Schedule."170 Similarly, where a measure is inconsistent 
with Article II:1(b) , first sentence,  on the ground that the tariff treatment is subject to "terms, 
conditions or qualifications" that are not set forth in the relevant WTO Schedule, such tariff treatment 
would necessarily constitute treatment less favourable than that set forth in the Schedule. In short, 
where a measure is inconsistent with Article  II:1(b), first sentence,  it is also inconsistent with 
Article  II:1(a).171 Thus, in a situation where a measure is challenged under both Article II:1(a) and 
Article II:1(b) , first sentence,  it is logical to begin the analysis by assessing the measure's 
consisten cy with Article II:1(b) since the language of Article II:1(b), first sentence, "is more specific 
and germane".172  
7.7.  Applying Article II:1(b) , first sentence,  in the context of this dispute entails comparing the 
treatment that India is obligated to provide in  its WTO Schedule with the tariff treatment that India 
accords to the products at issue under the challenged measures.173 If we determine that India 
imposes ordinary customs duties174 on products in excess of the bound rate set forth in India's WTO 
Schedule,  or alternatively grants the required tariff treatment to those products but subject to terms, 
conditions or qualifications that are not set forth in the Schedule, then we would conclude that India 
is acting inconsistently with Articles II:1(a) and (b) .175 
 
167 Panel Report, Russia – Tariff Treatment , para. 7.18 (referring to Panel Report s, EC – IT Products , 
para. 7.757).  
168 Appellate Body Report, Colombia – Textiles , para. 5. 34 (referring to Appellate Body Report, 
Argentina – Textiles and Apparel , para. 47).  
169 Appellate Body Report, Argentina – Textiles a nd Apparel , para. 45.  
170 Appellate Body Report, Argentina – Textiles and Apparel , para. 45.  
171 Panel Reports, EC – Chicken Cuts , para. 7. 64; EC – IT Products , para. 7. 747.  
172 See e.g. Panel Report, Russia – Tariff Treatment , para. 7.48 (referring to Appella te Body Report, 
Argentina – Textiles and Apparel , para. 45).  
173 In assessing claims under Articles II:1(a) and II:1(b), previous panels have examined whether the 
complainant had established the following three elements: (a) the treatment accorded to the products at issue 
in the relevant schedule; (b) the treatment acc orded to the products at issue under the challenged measures 
at issue; and (c) whether the challenged measures result in less favourable treatment of the products at issue 
than that provided for in the relevant schedule and, more specifically, whether the challenged measures result 
in the imposition of duties and charges on the products at issue in excess of those provided for in the relevant 
schedule. (Panel Reports, EC – Chicken Cuts , para. 7.65; EC – IT Products , para. 7.100).  
174 The parties do not disput e that where the tariff treatment at issue in this dispute concerns "duties" 
applied by India, such duties constitute "ordinary customs duties" within the meaning of Article II:1(b). We 
note that a previous panel found that the expression "ordinary customs  duties" refers to "duties collected at 
the border which constitute 'customs duties' in the strict sense of the term ( stricto sensu )" and "this expression 
does not cover possible extraordinary or exceptional duties collected in customs". (Panel Report, 
Dominican  Republic – Safeguard Measures , para. 7.85). In our view, the duties at issue in this dispute are 
indeed ordinary customs duties within the meaning of Article II:1(b) , first sentence . 
175 We also note that it is not necessary to find that all products falling under a specific tariff item  are 
treated inconsistently with the WTO Schedule, to conclude that India is acting inconsistently with 
Article  II:1(b) , first sentence . As the panel in EC – IT Products  found, "if we were to determine that some  
products fall within the scope of duty -free concessions in the EC Schedule, then if the challenged measures 
provide for the application of duties to those products covered by the concession, this wou ld be sufficient to 
find a breach of Article II." (Panel Report s, EC – IT Products , para. 7.116).  WT/DS582/R  
 
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  7.8.  We further note that, in response to a question from the Panel, both parties agree that the 
reference in Article II:1(b) , first sentence,  to "terms, conditions or qualifications" does not  extend 
to general conditions for importation.176 Indeed, in our view, to the extent that a Member imposes 
a general condition on importation (i.e. a condition that must be satisfied in order for the product to 
enter the market ), this would not necessarily mean that such condition constitutes a term, condition, 
or qualificat ion that must be met in order to receive certain tariff treatment. Such a general 
condition, where it is not tied to tariff treatment, do es not appear to be a term, condition , or 
qualification , that must be inscribed in a Member's Schedule, pursuant to Art icle II:1(b) , 
first sentence . Where, however, a condition is tied to certain tariff treatment, such that a relevant 
product must satisfy the condition in order to be eligible for the tariff treatment provided for in a 
Member's Schedule, Article  II:1(b) , first sentence,  requires such condition to be inscribed in the 
Member's Schedule.  
7.9.  Pursuant to Article II:7 of the GATT 1994, Members' WTO Schedules of concessions are an 
integral part of the GATT 1994. They are also, therefore, integral parts of the WTO Agr eement, 
binding on all Members, pursuant to Article II:2 of the WTO Agreement. Moreover, they form part 
of the covered agreements listed in Appendix 1 of the DSU. Pursuant to Article 1.2 of the DSU, the 
rules and procedures of the DSU apply to such covered  agreements. Consequently, Article 3.2 of the 
DSU, which states that the provisions of the covered agreements are to be clarified "in accordance 
with customary rules of interpretation of public international law ", applies to the interpretation of 
Members' WTO Schedules and the concessions set out therein.177 When interpreting Members' 
Schedules in accordance with customary rules of treaty interpretation, the Harmonized System (HS) 
and its Explanatory Notes have been found to constitute relevant "context" pursuant to Article 31(1) 
of the Vienna Convention.178 However, the relevance of the HS depends on the specific interpretative 
question at issue, including whether the relevant concessions were based on the HS.179  
7.10.   To our understanding, the foregoing interpretative elements of the legal standard under 
Article II :1(a) and Article II:1(b), first sentence,  are uncontested by the parties. We turn next to 
address certain contested issues pertaining to the scope and content of India's WTO tariff 
commitments.  
7.3  General issues concerning India's WTO tariff commitments  
7.3.1   Overview  
7.11.   As explained above, under Articles II:1(a) and (b)  of the GATT 1994, WTO Members are 
obligated to provide tariff treatment that is in accordance with the commitments set forth in "the 
appropriate Schedule annexed to [the GATT 1994]". Thus, to assess whether a Member is acting 
inconsistently with Articles II:1(a) and (b) , a panel must compare a Member's obligations as set 
forth in the relevant WTO Schedule to the tariff treatment applied by that Member under the 
measures at issue.180 
 
176 See parties' responses to Panel question No. 103.  
177 Along these lines, the Appellate Body found in EC – Computer Equipment  that Members' Schedules of 
conce ssions must be interpreted in accordance with the general rules of treaty interpretation set out in the 
Vienna Convention. The Appellate Body stated that:  
The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the 
common intentions of the parties. These common intentions cannot be ascertained on the basis of 
the subjective and unilaterally determined "expectations" of one of the parties to a treaty. Tariff 
concessions provided for in a Member's Schedule – the interpr etation of which is at issue here – 
are reciprocal and result from a mutually advantageous negotiation between importing and 
exporting Members. A Schedule is made an integral part of the GATT 1994 by Article II:7 of the 
GATT 1994. Therefore, the concession s provided for in that Schedule are part of the terms of the 
treaty. As such, the only rules which may be applied in interpreting the meaning of a concession 
are the general rules of treaty interpretation set out in the Vienna Convention.  
(Appellate Body R eport, EC – Computer Equipment , para. 84. See also Appellate Body Report, EC – 
Export Subsidies on Sugar , para. 167;  and Panel Report s, EC – Chicken Cuts , para. 7.87)  
178 See Appellate Body Reports, EC – Computer Equipment , para. 89; EC – Chicken Cuts , paras . 
195-197; and China – Auto Parts , para s. 146 and 149 . 
179 See e.g. Panel Reports, EC – IT Products , para. 7.443.  
180 We understand that tariff item s for which a Member has not made a tariff binding need not be 
included in the WTO Schedule. (See e.g. European Union's response to Panel question No. 101, para. 48; and 
India's comments on the European Union's response to Panel question No. 101, paras. 18 -19).  WT/DS582/R  
 
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  7.12.   In the present disp ute, it is uncontested that the "appropriate Schedule" for the purpose of 
assessing India's compliance with Articles II:1(a) and (b)  is India's WTO Schedule. It is further 
uncontested that the tariff commitments for two tariff items set forth in India's WT O Schedule 
(namely tariff items 8518.30 ex01 and 8544.42 .00 ex01) constitute binding WTO tariff commitments 
with which we must assess India's compliance in the present proceedings. However, with respect to 
the other tariff items at issue in this dispute (n amely tariff items 8504.40 ex02; 8517.12; 8517.61; 
8517.62; and 8517.70  ex01, ex02, and ex03 ), the parties disagree over the content of India's WTO 
tariff commitments.  
7.13.   Throughout the course of these proceedings India has argued that: (i) the relevant bind ing 
tariff commitments are set forth in the Information Technology Agreement (ITA) and those 
commitments are static and did not change due to their incorporation into India's WTO Schedule181; 
(ii) pursuant to Article 48 of the Vienna Convention, aspects of India's WTO Schedule are invalid 
(and the relevant tariff commitments unbound) as a consequence of an error on the part of India 
during the transposition of the Schedule from the HS2002 to the HS2007182; and (iii) the errors in 
India's WTO Schedule are of a  formal nature and were therefore capable of rectification pursuant to 
the 1980 Decision.183  
7.14.   The European Union, for its part, considers that: (i) India's WTO tariff commitments are set 
forth in India's WTO Schedule and the ITA did not render the commitmen ts in that Schedule static184; 
(ii) there was no error in the transposition of India's Schedule to the HS2007 and, even if there was 
such an error, India either contributed to or was put on notice of the possibility of that error, such 
that the requirements  of Article 48 are not satisfied in this dispute185; and (iii) there is no basis for 
the Panel to make the findings requested by India regarding the European Union's objection to 
India's rectification request under the 1980 Decision.186  
7.15.   We proceed by addres sing, in turn, the parties' arguments concerning: (i) the ITA; 
(ii) Article  48 of the Vienna Convention; and (iii) India's rectification request under the 
1980 Decision.  
7.3.2   The relevance of the ITA  
7.3.2.1   Introduction  
7.16.   As described in section 2.3 above, on 13 December 1996 a number of WTO Members 
concluded the ITA. India joined the ITA on 26 March 1997. The ITA participants agree d among 
themselves to bind and eliminate customs duties and other duties and charges of any kind, within 
the meaning of Article II:1(b) of the GATT 1994, with respect to certain products.187 The Annex to 
the ITA requires that participants "shall incorporate " such measures into their Schedules annexed to 
the GATT 1994, and indicates that their Schedules should be modified in accordance with the 
1980 Decision.188 India, as a participant in the ITA, proposed a modification to its WTO Schedule, 
which was circulat ed on 2 April 1997 for review by all WTO Members, pursuant to the 1980 Decision. 
These changes to India's Schedule, which were based on the HS1996, were certified on 2  October 
1997.189  
 
181 See e.g. India's opening statement at the second meeting of the Panel, p. 5.  
182 See e.g. India's first w ritten submission, paras. 55 -91.  
183 See e.g. India's response to Panel question No. 74, para. 53.  In India's view, the European Union's 
objection to India's request to rectify its Schedule under the 1980 Decision was unfounded in law, inconsistent 
with the 1980 Decision, and impeded India's right to rectify its Schedule, and India requests the Panel to find 
accordingly . 
184 See e.g. European Union's opening statement at the first meeting  of the Panel , paras. 56-78; and 
second written subm ission, paras. 43 -62.  
185 See e.g. European Union's opening statement at the first meeting  of the Panel , paras. 10 -55; and 
second written submission, paras. 3 -17.   
186 See e.g. European Union's second written submission, paras. 18 -42.   
187 The relevant produc ts are identified in the ITA as "(a) all products classified (or classifiable) with 
[HS1996] headings listed in Attachment A to the Annex [to the ITA]; and (b) all products specified in 
Attachment B to the Annex [to the ITA], whether or not they are includ ed in Attachment A". (ITA, 
WT/MIN(96)/16 , para. 2) . 
188 Paragraphs 1 and 2 of the Annex to the ITA. See also 1980 Decision, L/4962.  
189 WT/Let/181.  WT/DS582/R  
 
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  7.17.   In section III (titled "Background") of its first written submission in  this dispute, the 
European  Union, inter alia , describes certain aspects of the ITA. The European Union notes the ITA's 
conclusion in December 1996, India's joining the ITA in March 1997, and the requirement under 
paragraph 2 of the ITA for all participant s to bind and eliminate customs duties and other duties and 
charges within the meaning of Article II:1(b) of the GATT 1994 on all products identified in 
Attachments A and B.190 The European Union further notes that, pursuant to paragraph 2 of the ITA 
Annex,  ITA participants were required to modify their WTO Schedules in order to implement their 
obligations under the ITA.191 In the next sub -section of section III of its first written submission, the 
European Union refers to two subsequent  transpositions of Ind ia's WTO Schedule , including the 
transposition of India's WTO Schedule to the HS2007.192 Thereafter, in setting forth its legal 
argument underpinning its claims that India is acting inconsistently with Articles II:1(a) and (b)  of 
the GATT  1994, the European Union does not refer to the ITA, but compares India's commitments 
in its present WTO S chedule to the tariff treatment provided by India to certain imported products 
pursuant to India's First Schedule and relevant customs notifications.193 
7.18.   In its first written submission, India states that the European Union suggested that India's 
concessions were based on the ITA, "although without actually establishing that the products at 
issue were covered under the ITA[]".194 India elaborate d that it would subsequently seek to establish 
that the products at issue were not covered under the ITA, and therefore the 2007 Schedule was 
certified in error and the objections against India's rectification request under the 1980 Decision 
were without merit.195 India further states that "the burden of proof is on the EU to prima facie 
demonstrate that the pr oducts at issue were covered by the ITA[]" and "the EU does not even offer 
a hint of which entries in the ITA[] allegedly covered the products at issue".196 India devotes 
approximately 32 pages197 of its first written submission to demonstrating that the pro ducts at issue 
are not covered by the ITA.198 A significant component of India's argument is its view that "the 
intention of the parties [to the ITA] … was not to include the vast range of information technology 
products which would be developed in the futu re".199  
7.19.   In response to questions from the Panel, the European Union clarified that its claim is under 
Articles II:1(a) and (b)  of the GATT 1994, and that the "legal obligations at issue in the present case 
are therefore Article II:1 of the GATT 1994, and I ndia's Schedules and the tariff bindings provided 
for in those schedules."200 The European Union indicated that the ITA "is not the source of India 's 
legal obligations relevant in the present case" .201 The European Union further considered that "the 
developm ent of new technologies and new products does not alter the content or scope of the legal 
obligations provided for in India's Schedule of concessions", and that "[w]hat counts is … not whether 
a product is 'new' or whether it has undergone technical advanc ements", but rather "whether a 
specific product is within the scope of a tariff schedule, and in particular within the scope of the 
product descriptions in that schedule".202 
7.20.   In response to questions from the Panel, India further clarified its views regardi ng the 
relevance of the ITA in the context of this dispute. India explained that, in its view, its "obligations 
under the ITA[] are static, i.e., are limited to the product scope as defined in the ITA[]", and "[t]he 
 
190 The European Union elaborates that Attachment A to the ITA contained a "table listing HS1996 
headings (four digits) and subheadings (six digits) with their corresponding 'HS descriptions'", including certain 
"HS1996 subheadings covering products at issue in this dispute". (European Union's first written submission, 
para. 24) . 
191 European Union's first written sub mission, paras. 21 -27.  
192 European Union's first written submission, paras. 28 -31.  
193 European Union's first written submission, section IV.  
194 India's first written submission, para. 92.  
195 India's first written submission, para. 93.  
196 India's first writ ten submission, para. 126.  
197 See India's first written submission, paras. 92 -221. 
198 India's first written submission, para. 126.  
199 India's first written submission, para. 102. In addition to referring to the ordinary meaning of the 
text of the ITA, India considers that subsequent practice indicates that the scope of the ITA does not extend to 
new products. (Ibid. paras. 96 -123). India highlights, in particular, that the participants in the ITA "have 
agreed that the product scope of the ITA[] does not adequately cover the rapid growth of information 
technology products, and therefore an expansion  of the ITA[] was required in order to liberalize the IT product 
sector". (Ibid. para. 109 (underlining original)) . 
200 European Union's response to Panel question No. 3, para. 11.  
201 European Union's response to Panel question No. 3, para. 11. (emphasis original)  
202 European Union's response to Panel question No. 8, paras. 21 and 23.  WT/DS582/R  
 
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  transposition of India 's schedule from H S1996 to HS2002 or HS2007 does not affect or change 
India's obligations under the ITA[]".203 India elaborated that "the ITA[] did not include the range of 
additional products that could be developed in the future".204 India further considered this relevant 
to the present dispute, because "the EU develops arguments in relation to sub -headings 8517.12, 
8504.40, 8517.61, 8517.62, and 8517.70, which presently relate to products that were not covered 
by the ITA[] as they were beyond the scope of commitments made u nder the ITA[]".205 India argued 
that its "obligations under the ITA[] are distinguishable and 'separate from' the commitments under 
the contested sub -headings in the 2007 Schedule", and "India has made no commitments regarding 
the contested products since such contested products are not covered under the ITA[]".206  
7.21.   Throughout the course of these dispute settlement proceedings, the parties continued to 
exchange views on the relevance of the ITA to this dispute. In India's view, the European Union 
itself asse rts that the "source of India's commitments for the products at issue is the ITA[]" and the 
European Union's claims must fail because "the products at issue are not covered by the ITA[]".207 
India considers that "a resolution of this issue lies in interpret ing the scope of ITA[] which is relevant 
to the present dispute in various ways".208 In response to a question from the Panel regarding the 
legal relevance of the ITA, India responded that: (i) "[t]he ITA[] is an instrument that is critical to 
this dispute and applies in different ways for the European Union  and India. Indeed, it is instr umental 
for analysing India's claim under Article 48 of the VCLT"; and (ii) " the ITA[] also serves as an 
important comparative benchmark for determining if the draft rectification request to the 
2007 Schedule submitted by India in 2018 was of a purely form al character".209  
7.22.   The European Union for its part, continues to insist that it is India's "schedule which is at the 
centre of this case and which contains India's international legal obligations relevant in this case, 
not the ITA[]".210 The European Union c onsiders that the ITA is not a covered agreement and the 
"question of the consistency of India's measures with the ITA[] is not before this Panel".211 In the 
European Union's view, India misrepresents the European Union's position, and it is clear that the 
European Union made reference to the ITA solely "for the purposes of providing the background of 
the case", not in order to base  its legal claim on the ITA.212 The European Union submits that it does 
not bear any burden of showing that the products at issue  are covered by the ITA.213 The 
European  Union further considers that the ITA has no relevance for the interpretation of any of the 
tariff items at issue in this dispute, because "the content of those tariff lines is clear".214  
7.23.   The parties' (and in particular India's) references to the ITA raise several threshold issues 
concerning certain of India's WTO tariff commitments. Specifically, the parties appear to contest 
whether certain of India's WTO tariff commitments in this disput e are set forth in the ITA, as well as 
whether the ITA limits the scope of the tariff commitments set forth in India's WTO Schedule 
(including with respect to new products that only came into existence after the signing of the ITA).  
7.24.   We therefore proceed t o address, in this section: (i) whether the ITA sets forth India's 
tariff commitments for purposes of applying Articles II:1(a) and (b)  of the GATT 1994; and 
(ii) whether the ITA otherwise limits the scope of the tariff commitments contained in India's WTO  
Schedule. We note, in doing so, that the parties' arguments concerning the ITA pertain specifically 
to the European  Union's claims regarding products covered by tariff items 8504.40, 8517.12, 
8517.61, 8517.62, and 8517.70 of India's WTO Schedule.215 
 
203 India's response to Panel question No. 1, para. 1.  
204 India's response to Panel question No. 1, para. 5.  
205 India's response to Panel question No. 1, para. 8.  
206 India's response to Panel q uestion No. 1, para. 9.  
207 India's opening statement at the first meeting  of the Panel , para. 22. See also India's first written 
submission, para. 126;  and response to Panel question No. 4, para. 19.   
208 India's opening statement at the first meeting  of the  Panel , para. 22.  
209 India's response to Panel question No. 65, paras. 24 and 26. See also India's second written 
submission, paras. 34 and 36.  
210 European Union's opening statement at the second meeting  of the Panel , para. 19.  
211 European Union's second wr itten submission, para. 46.  
212 European Union's second written submission, paras. 48 -49.  
213 European Union's second written submission, para. 51.  
214 European Union's second written submission, para. 55.  
215 See India's first written submission, paras. 124 -221; response to Panel question No. 66, para. 29; 
and second written submission, paras. 83 -148. WT/DS582/R  
 
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  7.3.2.2   Whethe r the ITA sets forth India's legal obligations  
7.3.2.2.1   Main arguments of the parties  
7.25.   India argues that the legal issue that lies "[a]t the heart of this dispute" is whether the 
products identified by the European Union are covered under the ITA.216 India states th at "it is clear 
that the parties to the dispute agree that the source of the purported commitments could only be 
the ITA[]."217 India states that it " consider[s] itself bound by the obligations under the ITA[]" but 
argues that those obligations are "separate from the commitments under the contested 
sub-headings that were certified in error via the HS2007 transposition".218  
7.26.   The European Union considers that the "legal obligations at issue in the present case are … 
Article II:1 of the GATT 1994, and In dia's Schedules and the tariff bindings provided for in those 
schedules."219 The European Union submits that the ITA "is not the source of India's legal obligations 
relevant in the present case" .220 The European Union elaborates that insofar as it makes refe rence 
to the ITA, "such reference is for the purposes of providing the background of the case".221 The 
European Union further considers that the ITA is not a covered agreement within the meaning of the 
DSU.222 
7.3.2.2.2   Main arguments of the third parties  
7.27.   Brazil consi ders that the ITA "is not a covered agreement within the meaning of Article 1.1 of 
the DSU, and, therefore, the Panel has no authority to interpret the ITA[]".223 In Brazil's view, "the 
main issue of the present dispute concerns the correct interpretation o f India 's Schedule, not the 
interpretation of the ITA[]."224 
7.28.   Canada argues that the ITA "is not a 'covered agreement' within the meaning of Article 1.1 
of the DSU as it is not an agreement listed in Appendix 1 to the DSU".225 Canada considers that "it 
is not  necessary in the case at hand to interpret the ITA[] itself", and rather "the Panel's task is to 
interpret India's tariff commitments set forth in its Schedule of Concessions annexed to the 
GATT  1994".226 Canada considers that the ITA "may be considered as  relevant context within the 
meaning of Article 31 of the Vienna Convention for the purposes of interpreting the terms of the 
concessions at issue, but the ITA[] is not itself the subject of the Panel's analysis in this case."227 
7.29.   Japan submits that the ITA is not a covered agreement within the meaning of Article 1.1 of 
the DSU, and consequently "the  Panel lacks jurisdiction to clarify the rights and obligations of the 
parties under the ITA[]".228 Japan considers that the ITA "is not directly relevant to the interpretation 
of India's tariff concessions at issue."229 In Japan's view, India errs when it refers to 'the obligations 
under the ITA[]'", because what is relevant is India's obligations under  Article II:1 of the GATT 1994 
and under India's WTO Schedule.230 Japan argues that "the focus of the interpretative exercise is on 
the relevant tariff concessions made by India in its Schedule, not the ITA[]".231  
 
216 India's first written submission, para. 24.  
217 India's  opening statement at the first meeting of the Panel, para. 23.  
218 India's first written submission, para. 92. 
219 European Union's response to Panel question No. 3, para. 11.  
220 European Union's response to Panel question No. 3, para. 11. (emphasis original)  
221 European Union's second written submission, para. 49.  
222 European Union's opening statement at the firs t meeting  of the Panel , paras. 62-67; second written 
submission, paras. 46 -53. 
223 Brazil's third -party response to Panel question No. 1, para. 2.  
224 Brazil's third -party response to Panel question No. 1, para. 2.  
225 Canada's third -party response to Panel question No. 1, para. 1.  
226 Canada's third -party response to Panel question No. 1, para. 2.  
227 Canada's third -party response to Panel question No. 1, para. 2.  
228 Japan's third -party response to Panel question No. 1, para. 2.  
229 Japan's third -party response to Panel question No. 2, para. 8.  
230 Japan's third -party response to Panel question No. 15, para . 4. 
231 Japan's third -party response to Panel question No. 15, para. 5.  WT/DS582/R  
 
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  7.30.   Korea "is of the view that the agreement at issue in this dispute is not the ITA[], but the 
GATT  1994."232 Korea considers that the ITA "may be used as 'context' to interpret India 's 
tariff concessions at issue in this dispute".233 
7.31.   Norway submits that the IT A is not a "covered agreement" within the meaning of Article 1.1 
of the DSU, but could serve as relevant context within the meaning of Article 31(2)(b) of the 
Vienna  Convention. For Norway, the Panel's main task in this dispute is to interpret India's 
comm itments contained in its WTO Schedule.234 
7.32.   Chinese Taipei argues that the ITA is not a covered agreement within the meaning of 
Article  1.1 of the DSU  and consequently there is no basis for the Panel to interpret the ITA in 
accordance with the rules of the Vi enna Convention.235 Chinese Taipei considers that "the Panel must 
interpret the relevant tariff concessions in India's Schedule in accordance with the rules of the 
Vienna  Convention", and that "India's tariff concessions made pursuant to the ITA[] are prope rly 
inscribed in its currently certified Schedule of Concessions reflecting the 2007 HS nomenclature".236 
According to Chinese Taipei, the ITA "formed the basis for India to enter into the commitments to 
provide duty -free treatment to products falling under  the tariff concessions at issue, and, as such, 
constitutes an important part of the factual background in this dispute" .237 Chinese Taipei further 
states , however, that the "relevant treaty for the interpretation of the tariff concessions at issue in 
this dispute is India's currently certified Schedule of Concessions reflecting the 
2007 HS nomenclature".238 
7.33.   Türkiye submits that the claims raised in this dispute "have to be analysed with a view to 
ensur ing that the rights of the Members of the ITA are not adv ersely affected as a result of any 
improper interpretation of the scope of this Agreement" and the Panel "should decide if products 
with newly developed technologies fall under [the] ITA without any further negotiations." For 
Türkiye, this case raises "imp ortant questions with respect to the interpretation of the tariff 
concessions made by WTO Members pursuant to the ITA" .239 
7.34.   Ukraine notes that "ITA concessions are included in the participants ' WTO schedules of 
concessions and become part of that Member 's obligations under the WTO covered agreements".240 
Ukraine argues that "taking into account the connection between ITA[] and the GATT 1994, in 
Ukraine 's view, the ITA[] is a 'covered agreement' within the meaning of Article 1.1 of the DSU."241 
7.35.   The United Stat es considers that the ITA is not a covered agreement under the DSU and, 
pursuant to its terms of reference, the Panel "is not tasked with interpreting the ITA[] in this 
dispute".242 According to the United States, "the Panel is tasked with interpreting the relevant 
provisions of the GATT 1994, including the tariff concessions in India 's Schedule, rather than the 
 
232 Korea's third -party response to Panel question No. 3, p. 1.  
233 Korea's third -party response to Panel question No. 3, p. 1.  
234 Norway's third -party statement, para. 2.  
235 Chinese Taipei's  third-party response to Panel question No. 1, para. 2 , incorporating Chinese Taipei's 
response to panel question No. 2 in India – Tariffs on ICT Goods (Chinese Taipei ) (DS588) . (In its responses of 
20 September 2021 to questions from the Panel to the thir d parties before the first substantive meeting, 
Chinese Taipei responded to Panel question Nos. 1 to 12 by stating "Please see our response to this question 
posed to the parties in DS588".  In a communication to the parties in this dispute, the Panel confir med its 
understanding that Chinese Taipei's responses to the Panel's questions as a party in DS588, are on the record 
in this dispute, DS582 . The parties did not object or otherwise comment. (See European Union's 
communication, 7 July 2022; and India's com munication, 7 July 2022)).  
236 Chinese Taipei's third -party response to Panel question No. 1 , para. 1,  and No. 2, para. 2 , 
incorporating Chinese Taipei's response to panel question No. 2, para. 4, and No. 3, para. 7, in India – Tariffs 
on ICT Goods (Chinese  Taipei)  (DS588)) .  
237 Chinese Taipei's third -party response to Panel question No. 2, para. 2 , incorporating Chinese Taipei's 
response to panel question No. 3, para. 11, in India – Tariffs on ICT Goods (Chinese Taipei)  (DS588) . 
238 Chinese Taipei's third -party response to Panel question No. 2, para. 2 , incorporating Chinese Taipei's 
response to panel question No. 3, para. 11, in India – Tariffs on ICT Goods (Chinese Taipei)  (DS588) . 
239 Türkiye's third -party submission, paras. 2, 4 and 9.  
240 Ukraine's third -party response to Panel question No. 1, para. 8.  
241 Ukraine's third -party response to Panel question No. 1, para. 9.  
242 United States' third -party response to Panel question No. 1, par as. 2-3.  WT/DS582/R  
 
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  ITA[]".243 The United States therefore considers that "India is mistaken that its commitments are 
'under the ITA[]'".244 
7.3.2.2.3   Panel's assessment  
7.36.   In our vie w, the parties' arguments raise the question of whether certain of India's legal 
obligations, at issue in this dispute, are set forth in the ITA.  
7.37.   We recall that the European Union's claim in this dispute is that India is acting inconsistently 
with its obl igations under Articles II:1(a) and (b)  of the GATT 1994.245 The European Union has not, 
in any of its submissions, articulated any claim based on a provision of the ITA. We recognize that 
the European Union described the ITA, in its first written submissio n, as relevant factual  background 
to explain the history of India's tariff commitments at issue in this dispute. However, we do not read 
the European Union's references to the ITA as articulating any claim of inconsistency or requesting 
us to find that Ind ia is acting inconsistently with the ITA. Thus, in our view, the European Union has 
not asserted that India is acting inconsistently with the ITA nor does the European Union request us 
to make any such finding.246  
7.38.   As described above247, the legal standard u nder Articles II:1(a) and (b)  entails comparing the 
treatment that India is obligated to provide in its WTO Schedule with the tariff treatment that India 
accords to the products at issue. This provision does not refer to the ITA, nor does any other 
provisi on in the GATT 1994. We therefore see no textual link in the GATT 1994 indicat ing that 
Members' legal obligations, for the purposes of applying Articles II:1(a) and (b) , could be  contained 
in the ITA.  
7.39.   As to the ITA itself, we note that paragraph 2 of the ITA indicates that:  
Pursuant to the modalities set forth in the Annex to this Declaration, each party shall 
bind and eliminate customs duties and other duties and charges of any kind, within the 
meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 1994, with 
respect to the following: (a) all products classified (or classifiable) with Harmonized 
System (1996) ("HS") headings listed in Attachment A to the Annex to this Declaration; 
and (b) all products specified in Attachment B to th e Annex to this Declaration, whether 
or not they are included in Attachment A; through equal rate reductions of customs 
duties beginning in 1997 and concluding in 2000, recognizing that extended staging of 
reductions and, before implementation, expansion o f product coverage may be 
necessary in limited circumstances.  
7.40.   With respect to the "modalities set forth in the Annex", paragraph 1 of the Annex to the ITA 
indicates that:  
Each participant shall incorporate the measures described in paragraph 2 of the 
Decla ration into its schedule to the General Agreement on Tariffs and Trade 1994, and, 
in addition, at either its own tariff line level or the Harmonized System (1996) ( "HS") 
6-digit level in either its official tariff or any other published versions of the tar iff 
schedule, whichever is ordinarily used by importers and exporters. Each participant that 
is not a Member of the WTO shall implement these measures on an autonomous basis, 
pending completion of its WTO accession, and shall incorporate these measures int o its 
WTO market access schedule for goods.  
7.41.   Thus, the ITA specifically requires WTO Members who are participants in the ITA to 
incorporate their ITA undertakings into  their WTO Schedules annexed to the GATT 1994. It appears 
to us, therefore, that any under takings made under the ITA only become binding WTO obligations 
 
243 United States' third -party response to Panel question No. 1, para. 3.  
244 United States' third -party response to Panel question No. 5, para. 9.  
245 European Union's first written submission, paras. 1 -4, 86-87, 106 -107, 117 -118, 131 -132, 153 -154, 
162-163, and 173 -175. See also European Union's second written submission, para. 78; and panel  request , 
p. 3.   
246 Indeed, to the extent that such a claim was brought, we struggle to see how it would fall within our 
terms of reference, read in light of the Eu ropean Union's panel request in this dispute.  
247 See section 7.2 above.  WT/DS582/R  
 
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  under Articles II:1(a) and (b)  of the GATT 1994 if they are incorporated into Members' 
WTO Schedules. Once incorporated into a Member's WTO Schedule, such concession shall be treated 
no differe ntly to any other concession contained in that Schedule. Consequently, it is the WTO 
Schedule of each ITA participant that sets forth those legal obligations within the broader WTO legal 
structure – not the ITA.  
7.42.   In this respect, we observe that the ITA do es not constitute a covered agreement within the 
meaning of the WTO Agreement and the DSU. The DSU indicates that its rules and procedures apply 
to disputes brought pursuant to the dispute settlement provisions of the agreements listed in 
Appendix 1 of the  DSU and concerning Members' rights and obligations under provisions of the 
WTO Agreement.248 The ITA is not listed in Appendix 1 of the DSU, nor is the ITA listed in Annexes 
1 to 4 of the WTO Agreement. Thus, in contrast to India's WTO Schedule249, the ITA is not a "covered 
agreement" within the meaning of the WTO Agreement and the DSU.250  
7.43.   We recognize that, in India's view, the ITA is the relevant instrument imposing India's legal 
obligations in this dispute. We also recognize that the signing of the ITA fo rms part of the factual 
and historical background to this dispute. That the ITA may have induced  India, as a factual matter, 
to undertake certain WTO tariff commitments does not mean that, as a legal matter, the ITA sets 
forth India's WTO legal obligations  at issue in this dispute. Furthermore, having reviewed India's 
submissions, we see no argument that explains how the ITA can be read into Articles II:1(a) and 
(b) as the "source" of a Member's legal obligations under those provisions. To the extent that I ndia's 
arguments related to the ITA focus on its relevance for purposes of interpreting the obligations set 
forth in  India's WTO Schedule, we address those arguments below.251 We note India's view that the 
European Union refers  to the ITA as the relevant source of law in this dispute.252 As explained above, 
however, we disagree with that understanding of the European Union's arguments and claims.  
7.44.   As a final point of note with respect to this issue, we observe India's argument th at "the 
European Union asserts that a comparison with the ITA[] is not relevant because the ITA[] is not a 
'covered agreement' within the meaning of Article 1.1 of the DSU" .253 According to India,  "by that 
token, India 's Schedule in WT/Let/886 (i.e., its Sc hedule based on the HS2002) which is no longer 
 
248 Article 1.1 of the DSU indicates that the rules and procedures of the DSU  shall apply to "disputes 
brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1" 
of the DSU, as well as "consultations and the settlement of disputes between Members concerning their rights 
and obliga tions under the provisions of the Agreement Establishing the World Trade Organization … and of this 
Understanding taken in isolation or in combination with any other covered agreement."  
249 See para. 7.9 above.  
250 We note India's argument that "at the very least, the contents of Attachment A and Attachment B of 
the ITA[] were incorporated in WT/LET/181 dated July 2, 1997 which is a covered agreement wit hin the 
meaning of Article 1 of the [DSU]". (India's response to Panel question No. 2, para. 14) . We understand that 
document WT/Let/181 contained certain changes to India's WTO Schedule that were certified on 2 October  
1997. For the reasons already explai ned above, we understand that India's WTO Schedule is indeed a covered 
agreement. That does not make the ITA a covered agreement. We also note India's argument that if the ITA is 
not a covered agreement, then "India's Schedule in WT/Let/886 (i.e. its Sched ule based on the HS2002) which 
is no longer in currency can equally not be considered a covered agreement." (India's comment s on the 
European Union's response to Panel question No. 89, para. 2) . We address this argument in paras. 7.44-7.45 
below.   
251 See section 7.3.2.3  below.  
252 In response to a question from the Panel asking why India considered that the European Union bore 
the burden of demonstrating that the products at issue were covered by the ITA, India responds that:  
India re iterates that the EU fails to clearly articulate the precise source of India's commitments 
under the contested sub -headings. For instance, as also noted previously, India notes that the EU 
does not identify the precise commitments of the ITA[], which would  cover the products at issue. 
Indeed, the EU's difficulty in articulating the source of India's commitments under the contested 
sub-headings is apparent in their submissions which (while principally basing themselves on the 
2007 Schedule) attempt to link t he present dispute to India's commitments under the ITA[] without 
identifying the basis of such linkage. For instance, the EU argues that HS1996 sub -headings 
8471.80, 8473.30, ex8504.40, 8517.22, 8517.30, 8517.50, 8517.80, 8517.90, ex8518.30, 
ex8525.10, 85 25.20, ex8529.90 and ex8544.41 cover "the products at issue in this dispute. " 
However, the EU has failed to demonstrate the relevance of these sub -headings in the dispute or 
how the products at issue are covered by the aforementioned sub -headings. India ma intains that 
the burden of proof is on the EU to substantiate its claim and to prima facie demonstrate that the 
products at issue were covered by the ITA[].  
(India's response to Panel question No 5, paras. 21 -22 (emphasis original))  
253 India's comments on the European Union's response to Panel question No. 89(b), para. 2.  WT/DS582/R  
 
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  in currency can equally not be considered a covered agreement".254 India considers that "there is no 
legal basis to term a schedule (WT/Let/886), which has been replaced with a subsequent schedule 
(WT/Let/1072) , as a covered agreement".255  
7.45.   We have examined the relevant documents surrounding each transposition of India's 
WTO Schedule and we understand that following a transposition exercise it is not the case that a 
"new" Schedule replaces an "old" Schedule. Rath er, the documents that are agreed upon by 
Members, adopted as binding, and certified as such by the Director -General, contain certain changes 
to the relevant Schedules.256 Indeed, the process through which these changes are certified is under 
the 1980 Decis ion.257 That Decision does not set forth procedures for replacing  a Member' s Schedule, 
but rather sets forth procedures for "modification" and "rectification", and the adoption of 
"changes".258 Thus, the files that are certified following each transposition process do not set forth 
all of India's tariff concessions, but rather only those tariff items that have changed as a result of 
the transposition exercise.259 India is therefore incorrect when it suggests that its HS2002 Schedule 
was "replaced with" its HS2 007 Schedule. To the contrary, India only has one WTO Schedule  
concerning trade in goods , which is indeed a covered agreement, and which has been changed 
several times over the years through various recourses to the 1980 Decision.260 The fact that India's 
WTO Schedule is a covered agreement does not imply ipso facto  that the ITA is a covered agreement.  
India's WTO Schedule is explicitly recognized as an integral part of the covered agreements.261 The 
ITA, which is a distinct legal instrument from India's WTO Schedule,  is not.  
7.46.   To conclude, we understand that the European Union's claims in this dispute are exclusively 
under Articles II:1(a) and (b)  of the GATT 1994. Having reviewed the ITA, we understand that the 
undertakings contained therein were only operati onalized within the WTO legal system through their 
incorporation into Members' Schedules. We also note that the ITA is not a covered agreement within 
the meaning of the WTO Agreement and the DSU. While we recognize that the ITA may have been 
relevant to In dia's decision to undertake certain WTO tariff commitments, we consider that those 
WTO legal obligations are distinct from the ITA. Moreover, it is those WTO tariff commitments, set 
forth in India's WTO Schedule, that are the source of India's legal obliga tions for the purposes of 
applying Articles II:1(a) and (b) . In short, we consider that India's legal obligations, for purposes of 
assessing its compliance with Articles II:1(a) and (b) , are the tariff commitments set forth in India's 
WTO Schedule.262  
7.3.2.3   Whether the ITA limits or modifies the scope of the tariff commitments set forth 
in India's WTO Schedule  
7.3.2.3.1   Main arguments of the parties  
7.47.   India considers that the ITA "represents a static source of commitments on ICT products".263 
According to India, those commitments "were negotiated and agreed to in the context of HS1996, 
and were then incorporated into the schedules of concessions of member countries – including 
India."264 India considers that "[t]hose static commitments did not become elastic by virtue of their 
 
254 India's comments on the European Union's response to Panel question No. 89(b), para. 2.  
255 India's comment s on the European Union's response to Panel question No. 8 9(b), para. 2.  
256 See WT/Let/181 ; WT/Let/886 ; and WT/Let/1072.  
257 See WT/Let/181 ; WT/Let/886 ; and WT/Let/1072.  
258 1980 Decision, paras. 1 -3 and 5.  
259 See WT/Let/181 ; WT/Let/886 ; and WT/Let/1072.  
260 In this Report, we consider it useful to use the nomenclature of " India's WTO HS1996 Schedule", 
"India's WTO HS2002 Schedule", and " India's WTO HS2007 Schedule" to refer to India's Schedule as it existed 
following each transposition to that iteration of t he HS nomenclature. References in this Report to India's WTO 
Schedule, without identifying any version of the HS nomenclature, refer to India's WTO Schedule as most 
recently transposed (i.e. based on the HS2007). This nomenclature, however, should not be r ead to imply that 
India has been bound by three distinct WTO Schedules.  
261 See para. 7.9 above.  
262 Regarding India's argument that the European Union bears the burde n of demonstrating that certain 
products fell within the scope of the ITA, since we do not consider that the ITA constitutes a source of India's 
legal obligations in this dispute, we also do not consider that, in order to prevail in its claims under 
Articles II:1(a) and (b), the European Union must demonstrate that the products at issue fall within the scope 
of the ITA. Rather, the European Union must demonstrate that the products at issue fall within the scope of 
relevant tariff commitments set forth in In dia's WTO Schedule.  
263 India's opening statement at the second meeting  of the Panel , p. 5.   
264 India's opening statement at the second meeting  of the Panel , p. 5.  WT/DS582/R  
 
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  incorporation into concession schedules."265 In India's view, the ITA "was a sui -generis instrument 
with commitments over a limited scope of products and required those  commitments to reflect in 
the relevant tariff sub -headings of the schedule of concessions of parties."266 India considers that, 
"[u]nder Article 31(4) of the Vienna Convention, those sub -headings would require to be interpreted 
in accordance with the special meaning the parties intended them to have – by engag ing with 
HS1996 and its explanatory notes, read in the context of ITA[]."267 As a general matter, India 
considers that the ITA constitutes "interpretative context to India's schedule of concessions".268  
7.48.   In support of its arguments regarding the static natur e of its commitments on these 
ICT products, India refers, as an example, to "Transmission Apparatus for Radio -Telephony or 
Radio -Telegraphy" (which fell under HS1996 heading 8525, and was covered under Attachment A of 
ITA). India submits that the product s cope of its commitment s with respect to such products "was 
limited by the then HS Explanatory Notes to devices capable of transmitting (1) speech, 
(2) messages, or (3) still pictures".269 India notes that this "limitation [was] also reflected in 
HS2002".270 India submits that, "[c]learly, that static product definition is a closed and limited one 
which could not have covered cellular phones capable of transmitting videos, base stations, and 
LTE equipment."271  
7.49.   Also in support of its arguments regarding the sta tic nature of its commitments under the 
ITA, India refers to the WTO S chedules of concessions of various participants in the ITA who were 
later also participants in the Ministerial Declaration on the Expansion of Trade in Information 
Technology Products ( ITA Expansion ).272 India submits that, "[a]n analysis of the Schedules of 
Concessions of 36 such participants to the ITA[] reveal that they did not grant any concessions to 
certain products at issue until they modified their concessions in keeping with the I TA Expansion."273 
According to India,  "the very purpose of the ITA Expansion was to extend concessions to a wider 
range of products accounting for technological progress and market evolution which could not be 
covered within the ITA[]", and "[t]he  fact that  the ITA Expansion covers almost all products at issue 
in the present case - explicitly those under sub -headings 8504.40, 8517.61, 8517.62, 8517.70, 
8518.30 - is a clear affirmation that those products are in addition to and were beyond the scope of 
the ITA[]".274 India also refers to what it considers constitutes "subsequent practice" in support of 
its interpretation, namely: "the HS2007 schedules of some WTO Members reflect NIL duty for certain 
contested tariff lines, whereas these Members continue to impo se duties on such tariff lines"; "some 
ITA[] Participants have not committed to a NIL duty for certain contested tariff  lines"; and "certain 
ITA[] participants who are not participants to the ITA Expansion continue to impose duties on 
products covered under certain contested tariff lines."275 
7.50.   The European Union considers that the ITA could be considered to be "context" within the 
meaning of Article 3 1(2)(b) of the Vienna Convention, but argues that the ITA is not relevant to the 
interpretation of the tariff items of India's WTO Schedule at issue because "the content of those tariff 
lines is clear".276 The European Union also considers that the content of the ITA is not "limited to 
such products or technical features of products which existed at that signing" and notes that the ITA 
"uses broad language and generic terms".277 In the European Union's view, "the products at issue 
in the present case were all  covered by the ITA[]".278 Regarding the ITA Expansion, the European 
Union considers that "nothing in the text of the ITA -Expansion indicates that the ITA -Expansion 
 
265 India's opening statement at the second meeting  of the Panel , p. 5.  
266 India's opening statem ent at the second meeting  of the Panel , p. 5. (emphasis original)  
267 India's opening statement at the second meeting  of the Panel , p. 5.  
268 India's second written submission, para. 35.  
269 India's opening statement at the second meeting  of the Panel , p. 5.  
270 India's opening statement at the second meeting  of the Panel , p. 5.  
271 India's opening statement at the second meeting  of the Panel , p. 5.  
272 Under the ITA Expansion, the participants agreed to "bind and eliminate customs duties and other 
duties and charges o f any kind ", within the meaning of Article II:1(b) of the GATT 1994, with respect to certain 
specified products. ( Ministerial Declaration on the Expansion of Trade in Information Technology Products , 
WT/MIN(15)/25, Annex, para. 1; WT/L/956, para. 1). We un derstand that the participants in the ITA Expansion 
do not include all participants in the ITA. In particular, India is not a participant in the ITA Expansion. (See 
India's opening statement at the first meeting  of the Panel , para. 5).  
273 India's opening statement at the second meeting  of the Panel , p. 6.  
274 India's opening statement at the second meeting  of the Panel , p. 6.  
275 India's opening st atement at the second meeting  of the Panel , p. 6.  
276 European Union's second written submission, paras. 54 -55.  
277 European Union's opening statement at the first meeting  of the Panel , para. 77.  
278 European Union's opening statement at the second meeting  of the Panel , para. 21.  WT/DS582/R  
 
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  covers only such products which were not covered by the ITA[] and that therefore the product  scope 
of these two documents is mutually exclusive".279  
7.51.   The European Union further considers that "neither the ITA -Expansion nor the practices of 
participants to the ITA -Expansion can be regarded as 'subsequent practice' within the meaning of 
Article 31.3 (b)" of the Vienna Convention .280 Regarding India's assertion that the ITA Expansion 
could be a supplementary means of interpretation, within the meaning of Article 32 of the 
Vienna  Convention, the European Union submits that the meaning of the ITA is neith er ambiguous 
nor obscure, such that the conditions for recourse to supplementary means of interpretation are not 
fulfilled in the present case.281 Moreover, regarding the alleged "subsequent practice" identified by 
India, the European Union considers that t he official statements quoted by India "are general political 
statements, which do not establish a specific interpretation of the ITA[]".282 The European Union 
also considers that the "applied tariff schedules of other WTO Members do not purport to interpre t 
the ITA[]", and "even if those Members imposed tariff duties on products which are subject to this 
claim, the practice of such Members and potential incompliance with their commitments under 
GATT  Article II does not provide a relief for India from its ob ligation to respect the commitments in 
its certified WTO Schedule".283  
7.3.2.3.2   Main arguments of the third parties  
7.52.   Brazil states that "the task before the Panel concerns the interpretation of India 's Schedule in 
line with the objective of ensuring the predictabili ty and security of the reciprocal and mutually 
agreed concessions that are the cornerstone of the WTO architecture."284 Brazil further considers 
that "technological evolution cannot lead to unilateral reclassifications by importing Members in ways 
that may circumvent the tariff commitments they negotiated and registered in their 
WTO Schedules".285 Brazil argues that, "[o]therwise, the security and predictability of the 
tariff concessions in the Schedules will be seriously undermined".286 
7.53.   Canada considers that "the scope of coverage of a concession is determined by an 
examination of the meaning of the terms contained in the commitments set out in a Member's 
Schedule".287 Canada considers that the ITA "may be considered as relevant context for the p urposes 
of interpreting the meaning of these terms".288 Canada further argues that "tariff concessions under 
the Uruguay Round and ITA[] are not static and do not encompass only those products in existence 
at that time."289 Canada considers that "[t]he HS is  updated to account for new products and 
Members' obligations and tariff bindings will either apply to these new products to the extent that 
they fall within existing tariff lines or will not apply to such new products should a Member exclude 
them from cov erage".290 Canada argues that "the Panel's task in this case is to determine whether 
India has made tariff commitments with respect to the products at issue, and if so, whether duties 
have been imposed on the products at issue in this case in excess of the tariff bindings set out in 
India's 2007 Schedule."291 Canada considers that an interpretation that finds that a Member's WTO 
tariff commitments "are static and unable to capture technological advancement would undermine 
the WTO system of tariff concessions by allowing Members to simply disregard tariff commitments 
on the basis that a product incorporates, or has become, a new technology" .292 
7.54.   Japan submits that "the concessions at issue are those included in the currently certified 
schedule of India" and the ITA "does not appear to be legally relevant by virtue of either Article 31 
or Article 32 of the Vienna Convention with regard to the interpretation of India's concessions as 
 
279 European Union's second written submission, para. 61.  
280 European Union's second written submission, para. 62.  
281 European Union's opening statement at the second meeting  of the Panel , para. 39.  
282 European Union's opening statement at the second meeting  of the Panel , para. 33 (referring to 
India's first written submission, fn 157 to para. 104).  
283 European Union's opening statement at the second meeting  of the Panel , para. 36.  
284 Brazil's third -party response to Panel question No. 2, para. 10.  
285 Brazil's third -party response to Panel question No. 6, para. 15.  
286 Brazil's third -party response to Panel question No. 6, para. 15.  
287 Canada's third -party response to Panel question No. 2, para. 4.  
288 Canada's  third-party response to Panel question No. 2, para. 4.  
289 Canada's third -party response to Panel question No. 6, para. 1 0. 
290 Canada's third -party response to Panel question No. 6, para. 10.  
291 Canada's third -party response to Panel question No. 6, para. 13.  
292 Canada's third -party response to Panel question No. 6, para. 14.  WT/DS582/R  
 
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  included in its currently certified Schedule".293 Japan considers that "[n]either techno logical 
development nor product development modify the scope of a tariff concession."294 Japan also 
considers that "the ITA Expansion qualifies as neither context, nor a supplementary means of 
interpretation, and is therefore not relevant for the purposes o f interpreting the concessions at 
issue".295 Japan asserts that "India's argument based on the ITA[] is irrelevant, and thus, the Panel's 
analysis should focus on the text of India's currently certified tariff concessions".296 
7.55.   Korea considers that the ITA "m ay be used as 'context' to interpret India 's tariff concessions 
at issue in this dispute".297 Korea submits  that "as a general matter, modifications to the scope of a 
Member's rights and obligations under certain schedule of concessions can only be made by actually 
changing the schedule itself."298 Korea clarifies, however, that "this is not to say that the 
development of new technologies and new products cannot be incorporated into the previously 
established scope of tariff concessions in a Member 's WTO Sche dule as a matter of interpretation ."299 
Korea also notes that "the mere existence of the products in the scope of the ITA Expansion does 
not lead to the conclusion that these products were not accounted for in the ITA[]."300 
7.56.   Norway argues that "the obvious s tarting point … must be the commitments made in the 
schedules".301 Furthermore, in Norway's view, "an interpretation which implies that a product 
segment could automatically be released from binding commitments upon technological 
advancement would seriously  undermine the system".302 Norway therefore "strongly disagrees with 
India's perceived assertion that including technological advancement within a product segment 
falling within the tariff line listed in Attachment A would involve expansion of 'new' product s".303 
7.57.   Chinese Taipei argues that "the ITA[] and India's Schedule of Concessions are two separate 
distinct documents" and that "[t]his  dispute concerns the implementation  of India's concessions as 
provided in its Schedule".304 In Chinese Taipei's view, "if t ariff concessions were not subject to 
HS transpositions, they would become static", which would "render tariff concessions meaningless 
over time, as the relevant products may no longer exist or become obsolete".305 Chinese Taipei 
considers that "Members would be forced to conduct constant renegotiations for concessions on 
'new' products, and the scope of tariff concessions would be uncertain", which "is not how 
tariff concessions are meant to operate so as to achiev e security and predictability".306 
7.58.   Türkiye submits that "[a]lthough a large number of high -tech products were covered [by the 
ITA, it] envisages the incorporation of additional products in parallel to technological developments 
provided that the parties to the ITA negotiate and agree by consensus."307 Türkiye further considers 
that the products at issue in this dispute are not covered by the ITA, and that as "[a]ny 
technologically newly developed product cannot automatically be considered as covered by ITA[], … 
the duty -free treatment cannot be extende d to all variants of the products."308 Türkiye considers 
that the Panel's "interpretation of concessions in ITA[] should not disrupt the balance which is 
negotiated by the parties".309 Türkiye shares India's view that the product scope of the ITA "has 
remain ed the same since 1997", and is "defined in accordance with the product coverage envisaged 
in HS1996 at that point in time".310 Türkiye also shares India's view that new "'products which are 
a result of technological progress are not covered under the ITA[]'".311 Türkiye considers that the 
 
293 Japan's third -party response to Panel question No. 2, paras. 11 and 16.  
294 Japan's third -party response to Panel question No. 6, para. 2 2.  
295 Japan's third -party response to Panel question No. 9, para. 32.  
296 Japan's third -party response to Panel question No. 15, para. 6.  
297 Korea's third -party response to Panel question No. 3, p. 1.  
298 Korea's third -party response to Panel question No. 7, p. 2.  
299 Korea's third -party response to Panel question No. 7, p. 2. (emphasis original)  
300 Korea's third -party response to Panel question No. 10, p. 3.  
301 Norway's third -party submission, para. 7.  
302 Norway's third -party submission, para. 8.  
303 Norway's third -party s ubmission, para. 9.  
304 Chinese Taipei's third -party response to Panel question No. 15, para. 1. (emphasis original)  
305 Chinese Taipei's third -party response to Panel question No. 15, para. 2.  
306 Chinese Taipei's third -party response to Panel question No. 15, para. 2.  
307 Türkiye's third -party response to Panel question No. 2, p. 2.  
308 Türkiye's third -party response to Panel question No. 2, p. 3. 
309 Türkiye's third -party response to Panel question No. 3, p. 3.  
310 Türkiye's third -party response to Panel question Nos. 4 -5, p. 4.  
311 Türkiye's third -party response to Panel question Nos. 8 -10, p. 8 (quoting India's first written 
submission, para. 28).  WT/DS582/R  
 
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  complainant seek s "an overly broad or inclusive construction of ITA[] commitments, damaging the 
balance established during the negotiation process of ITA[]."312 Türkiye submits that "India has no 
obligation to extend concess ions to products which were not included in the scope of an HS heading 
or sub -heading at the time ITA[] concessions were negotiated".313 
7.59.   The United States considers that "the Panel may consider the ITA[] as relevant context within 
the meaning of Article 31 of the Vienna Convention".314 The United States also considers that "[t]he 
tariff concessions in a WTO Member 's Schedule apply to all products – regardless of technological 
development – that meet the terms of the concession, interpreted based on its ordina ry meaning in 
context and in light of the GATT 1994 's object and purpose".315 The United States argues that "India's 
position would undermine the fundamental obligations of Article II:1 of the GATT 1994 by allowing 
Members to disregard tariff commitments on  the basis that a product incorporates or constitutes a 
perceived new technology".316 In the United States' view, "[t]he ITA Expansion is not relevant to the 
Panel's interpretation of India 's concessions under the customary rules of interpretation reflected  in 
the VCLT."317 The United States also argues that "India is mistaken that the coverage of a product 
under the ITA Expansion necessarily excludes the product from the scope of the ITA[]".318 
7.3.2.3.3   Panel's assessment  
7.60.   We understand that, in India's view, its commi tments under the ITA are "static" and, 
therefore, India considers that its WTO tariff commitments exclude new products resulting from 
technological innovations that occurred after the ITA was concluded.319  
7.61.   We have addressed above the question of whether th e ITA sets forth India's legal obligations 
in this dispute and concluded that it does not. In order to assess the European Union's claims, and 
apply Articles II:1(a) and (b)  of the GATT 1994, we will not look at the ITA, but rather at India's 
legal obligat ions as set forth in those provisions and in India's WTO Schedule. To a large extent, 
therefore, India's contentions regarding whether the ITA imposes "static" or "elastic" obligations are 
not relevant  to the task before us.  
7.62.   Having said that, we note India 's argument that its "static commitments" in the ITA "did not 
become elastic by virtue of their incorporation into concession schedules".320 We also note India's 
argument that certain tariff items of its WTO Schedule have a "special meaning" intended by the  
parties, pursuant to Article 31(4) of the Vienna Convention. We therefore consider it relevant to 
examine whether, as a matter of legal interpretation, the ITA limits or modifies the scope of India's 
WTO tariff commitments as set forth in its WTO Schedule  (notwithstanding that it does not set forth 
those tariff commitments).  
7.63.    We start by recall ing that Members' WTO Schedules, as an integral part of the GATT 1994 
and the WTO  Agreement, are to be interpreted in accordance with customary rules of interpretation 
of public international law, pursuant to Article 3.2 of the DSU.321 We also understand that a tariff 
concession in a Member' s WTO Schedule appl ies to all products, falling under the terms of the 
concession, as interpreted based on its ordinar y meaning when read in context, and in light of the 
object and purpose of the agreement. This includes new products that come into existence as a 
result of technological innovation, and which did not exist at the time that the concession in the 
Schedule w as agreed upon. In this respect, we agree with prior interpretations of the scope of 
Members' obligations under their WTO Schedules.322  
 
312 Türkiye's third -party response to Panel question Nos. 8 -10, p. 9.  
313 Türkiye's third -party response to Panel question No. 15, p. 2.  
314 United States' third -party response to Panel question No. 3, para. 4.  
315 United States' third -party response to Panel question  No. 6, para. 13.  
316 United States' third -party response to Panel question No. 6, para. 14.  
317 United States' third -party response to Panel question No. 8, para. 18.  
318 United States' third -party response to Panel question No. 9, para. 2 1. 
319 In India's view, the ITA "did not include the range of additional products that could be developed in 
the future." (India's response to Panel question No. 1, para. 5).  
320 India's opening statement at the second meeting  of the Panel , p. 5.  
321 See para. 7.9 above. See also Appellate Body Reports, EC – Computer Equipment , para. 84; EC – 
Export Subsidies on Sugar , para. 167; and Panel Report s, EC – Chicken Cuts , para. 7.87.  
322 In China – Publications and Audiovisual Products , China argued that the principle of progressive 
liberalization contained in Article XIX of the GATS "does not allow for the expansion of the scope of the WT/DS582/R  
 
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  7.64.   We further recall that, when interpreting Members' Schedules in accordance with customary 
rules of treaty interpretation,  the HS has been found to constitute relevant "context" pursuant to 
Article 31(1) of the Vienna Convention.323 However, the relevance of the HS depends on the specific 
interpretative question at issue (including whether the relevant concessions were based o n the 
HS).324 It is also uncontested by the parties that, pursuant to the rules of interpretation of the HS, 
any product at any moment in time must fall within the product scope of a tariff item in the 
HS nomenclature.325 This necessarily includes new  produc ts that come into existence, for instance 
as a consequence of technological innovations, subsequent to a given HS nomenclature having been 
concluded. We agree with the parties on this point.326 
7.65.   Thus, for those Members whose WTO Schedules are based on the HS , such as India327, where  
a product is classified under a particular HS heading or subheading of a Member's Schedule, that 
product would also fall within the scope of a WTO Member's obligations unless the Schedule specifies 
otherwise. This includes new products that only come into  existence following the binding of a 
Member's commitment s with respect to the relevant heading or subheading.  
7.66.   From the foregoing, it is clear that as a general rule the product scope of Members' tariff 
concessions evolves over time to capture products th at may come into existence as a result of 
technological developments. The only question that arises in this dispute is whether that general 
rule is modified by virtue of the existence of the ITA. In this respect, India essentially argues that, 
because the product scope of the ITA is static, so is the scope of its tariff commitments in its 
WTO Schedule with respect to undertakings made pursuant to the ITA.  
 
commitments of a WTO Member by interpreting the terms used in th e Schedule based on the meaning of those 
terms at the time of interpretation." (Appellate Body Report, China – Publications and Audiovisual Products , 
para. 390) . The Appellate Body stated that "the terms used in China's GATS Schedule ('sound recording' and  
'distribution') are sufficiently generic that what they apply to may change over time." (Ibid. para. 396) . 
According to the Appellate Body, "GATS Schedules, like the GATS itself and all WTO agreements, constitute 
multilateral treaties with continuing obli gations that WTO Members entered into for an indefinite period of time, 
regardless of whether they were original Members or acceded after 1995." (Ibid.) . The Appellate Body 
elaborated that:  
[I]nterpreting the terms of GATS specific commitments based on th e notion that the ordinary 
meaning to be attributed to those terms can only be the meaning that they had at the time the 
Schedule was concluded would mean that very similar or identically worded commitments could 
be given different meanings, content, and c overage depending on the date of their adoption or the 
date of a Member's accession to the treaty. Such interpretation would undermine the predictability, 
security, and clarity of GATS specific commitments, which are undertaken through successive 
rounds of  negotiations, and which must be interpreted in accordance with customary rules of 
interpretation of public international law.  
(Ibid. para. 397 (footnotes omitted))   
Similarly, in Greece – Phonograph Records , a GATT  1947 Group of Experts addressed whether  "long-
playing" records were covered by the bound duty for "gramophone record" given that "such records did 
not exist at the time the Greek Government granted the … concession [at issue], that they contained a 
volume of recordings up to five times that of the old records, that they were lighter than conventional 
records, that they were made of different material and that, therefore, as a new product, they were not 
covered by the item bound" in Greece's Schedule. (Group of Experts  Report , Greece – Phonograph  
Records , p. 1). The Group of Experts "agreed that the practice generally followed in classifying new 
products was to apply the tariff item, if one existed, that specified the products by name, or, if no such 
item existed, to assimilate the new products to  existing items in accordance with the principles 
established by the national tariff legislation." (Ibid. p. 1) . The Group found that long -playing 
gramophones, developed after Greece made the relevant tariff concession, were covered by the 
description of " gramophone records" in Greece's Schedule . (Ibid. p. 2) . 
323 See Appellate Body Reports, EC – Computer Equipment , para. 89; EC – Chicken Cuts , paras. 
195-197; and China – Auto Parts , para s. 146 and 149 . 
324 See e.g. Panel Reports, EC – IT Products , para. 7.443.  
325 India's response to Panel question No. 10, para. 31 ("[t]he General Rules of Interpretation, annexed 
to the [HS Convention], allow for all products to be classified under one or the other heading of any version of 
the HS, and therefore, also the Schedul e of Concessions of any given country (if unbound tariff lines are also 
included in the Schedule of Concessions)" (emphasis original)); European Union's response to Panel question 
No. 101 ("[t]he European Union considers that the HS nomenclature is exhaust ive in the sense that every good 
must find its place in the HS").  
326 We observe that the General Rules for the Interpretation of the Harmonized System, in addition to 
setting out detailed rules for classification, set forth a residual interpretative rule th at goods which cannot 
otherwise be classified "shall be classified under the heading appropriate to the goods to which they are most 
akin". (See General Rules for the Interpretation of the Harmonized System, (Exhibit EU -54), para. 4).  
327 See para. 2.16 above.  WT/DS582/R  
 
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  7.67.   In our view, India's argument rests on two premise s: (i) the product scope of Attachment A 
of the ITA is static, such that it "does not include technological advancements"328; and (ii) the ITA 
similarly limits the product scope of India's WTO Schedule.329 We note that it would only be necessary 
to interpret the ITA for purposes of assessing India's first pre mise if India is correct regarding the 
second  premise . Given that the ITA is not a covered agreement, and does not set forth the tariff 
concessions at issue in this dispute, we proceed on an arguendo basis to assess whether, assuming 
that the product scope  of the ITA is indeed static, the ITA limits the product scope of India's 
WTO Schedule.  
7.68.   We therefore turn to address whether, assuming that the product scope of the ITA is static, 
it limits the scope of certain Members' WTO tariff commitments. We recall t he general rule that if, 
at any given point in time, a product falls within the scope of a Member's WTO tariff commitment s 
pursuant to the general rules of interpretation under Article 31 of the Vienna Convention, then a 
Member's obligations extend to that  product. We understand that, under India's interpretation of 
the relationship between the ITA and its WTO Schedule, while the general rule described above 
would continue to apply to WTO Members who are not participants in the ITA, WTO Members who 
are participants in the ITA would be subject to a different rule. In other words, under India's 
approach, a tariff concession  set forth in an ITA participant's WTO Schedule would have a different 
product scope to  the same tariff concession set forth in a non -ITA participant's Schedule.  
7.69.   In our view, India's  interpretation  is at odds with the multilateral principles of reciprocity and 
mutually advantageous arrangements underpinning the multilateral trading system.330 To interpret 
the product s cope of ITA participants' WTO Schedules differently from the Schedules of Members 
that are not participants in the ITA, when the product scope of those commitments is on its face 
identical, would also substantially undermine the security and predictability  of Members' 
tariff commitments.  
7.70.   We note that India has not pointed to any provision in the ITA indicating that the ITA excluded 
from the scope of participants' WTO tariff commitments new products resulting from technological 
developments, if such new pro ducts were to fall within the scope of the relevant tariff commitments 
in Members' Schedules as interpreted pursuant to the general rules of treaty interpretation. We are 
aware of  India's argument that the ITA specifically requires ITA participants to "mee t periodically" 
and modify the product scope of the ITA "in light of technological developments".331 In our view, the 
requirement that parties should meet periodically to review the product scope of the ITA suggests 
that the ITA participants anticipated exp anding the scope of the ITA to include additional tariff items 
that were not initially included. We fail to see how this requirement could imply that products coming 
into existence after the conclusion of the ITA and otherwise falling within the scope of M embers' 
tariff commitments as set forth in their WTO Schedules would be excluded  from the coverage of 
Members' existing WTO commitments.   
7.71.   We also note India's argument that its WTO Schedule should be given a "special meaning", 
pursuant to Article 31(4) of the Vienna Convention, because the participants to the ITA "intended to 
limit the scope of Attachment A to the HS1996 Nomenclature".332 Article 31 of the Vienna Convention 
 
328 India's first written submission, subheading IV.A.  
329 India's opening statement at the second meeting of the Panel , p. 5.  
330 See the third recital of the preamble to the WTO Agreemen t.  
331 India's first written submission, para. 101 (quoting ITA, Annex: Modalities and Product Coverage, 
para. 3).  
332 India's second written submission, para. 45. Aspects of India's arguments in this regard frame its 
invocation of Article 31(4) as concerning the special meaning that the participants in the ITA allegedly intended 
to attribute to the ITA. For the reasons explained above, we do not consider the ITA to set forth India's legal 
obligations, and, hence, we do not need to assess whether the participants in the ITA intended to ascribe a 
special meaning to certain terms in that agreement. Nevertheless, we understand that India's references to 
Article 31(4) may  also be read as advocating an interpretation of India's WTO Schedule whereby the ITA limits 
the scope of India's WTO tariff commitments.  We recall India's argument that the "static commitments" 
contained in the ITA "did not become elastic by virtue of the ir incorporation into concession schedules, and that 
the ITA "was a sui -generis instrument with commitments over a limited scope of products and required those  
commitments to reflect in the relevant tariff sub -headings of the schedule of concessions of par ties." (India's 
opening statement at the second meeting  of the Panel , p. 5 (emphasis original)). It would seem to follow that 
if India considers that the parties to the ITA intended for a special meaning to be ascribed to the terms of the 
ITA, pursuant to Article 31(4) of the Vienna Convention, and India considers that the terms of the ITA limits 
the terms of its WTO Schedule, then, in India's view, the terms of its WTO Schedule are also subject to a WT/DS582/R  
 
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  sets forth the "General rule of interpretation" of international treaties. Paragraph  4 of Article 31 
indicates that:  
A special meaning shall be given to a term if it is established that the parties so intended.  
7.72.   In our view, the reference in this provision to "the parties" includes all parties to a treaty, and 
not some  of those parties.333 We note that India's WTO Schedule forms part of the GATT 1994 and 
the WTO Agreement. The "parties" to the GATT 1994 and the WTO Agreement include all Members 
of the WTO. Moreover, India's WTO Schedule governs its tariff obligations with respect to all impo rts 
from all WTO Members, and not solely the participants in the ITA. We understand that the ITA was 
not signed by all WTO Members. Since the ITA was agreed  to by only some  of the Members of the 
WTO, we do not see how the ITA could signal the intentions of  the parties to the WTO Agreement 
with respect to any of its treaty terms (including the terms set forth in India's WTO Schedule). We 
therefore consider that the present circumstances do not satisfy the requirements of Article 31(4), 
since the ITA does not  express the intentions of the parties to the WTO Agreement.  
7.73.   For these reasons, we see no basis to interpret India's WTO Schedule differently to how we 
would interpret the Schedule of a WTO Member who was not  a participant in the ITA. Consequently, 
a numb er of India's interpretative arguments regarding the static nature of the ITA are not relevant 
for purposes of interpreting India's WTO Schedule, as elaborated  below.  
7.74.   India argues that Members' intentions to maintain a static product scope for the ITA is 
demonstrated by the content of the ITA itself, various subsequent practice of the participants in the 
ITA, and the product scope of the ITA Expansion. Regarding the con tent of the ITA itself, India 
argues that "[t]here is no language [in the ITA] to suggest that all ICT products which may exist at 
the time of signing or in the future will be included in the product scope of the ITA[]".334 India also 
refers to paragraph 3 of the Annex to the ITA, which states that "[p]articipants shall meet periodically 
under the auspices of the Council on Trade in Goods to review the product coverage specified in the 
Attachments, with a view to agreeing, by consensus, whether in the light of technological 
developments, experience in applying tariff concessions, or changes to HS nomenclature, the 
Attachments should be modified to include additional products."335 Regarding the subsequent 
practice of the participants in the ITA, India argues th at "various statements and pronouncements 
made by multiple Participants as 'subsequent practice' to the ITA[] … establish that the Participants 
agree that the product scope of the ITA[] is limited and not automatically updated".336 Regarding 
the ITA Expansi on, India argues that the scopes of the ITA and the ITA Expansion are mutually 
exclusive and therefore any products covered by the ITA Expansion fall outside the scope of the 
ITA.337  
7.75.   We understand that India's arguments in this respect pertain to the respe ctive scope and 
content of the ITA and the ITA Expansion. Thus, India relies on two agreements concluded by some  
Members to interpret the rights and obligations of all Members. As explained above, the 
interpretation advocated by India would essentially rea d identical tariff commitments of various 
WTO Members differently, depending on whether they were participants in the ITA and the 
 
special meaning intended by the parties, pursuant to Arti cle 31(4) of the Vienna Convention. For the sake of 
comprehensiveness, we address this issue hereunder.  
333 The plain language of Article 31(4) refers to "the parties" and not "some" or "certain" of the parties 
to the treaty. We also note that Article 41 of the Vienna Convention concerns "[a]greements to modify 
multilateral treaties between certain of the parties only". We find it meaningful that this provision uses the 
language in its title of "certain of the parties". The drafters of the Vienna Convention c ould have used similar 
language in Article 31(4), but chose not to do so. Furthermore , regarding the content of Article 41, the drafters 
of the Vienna Convention specifically accounted for a situation where certain parties to a treaty wish to modify 
the tr eaty as between themselves. This situation is treated distinctly under the Vienna Convention from a 
situation where the parties to a treaty wish to give a "special meaning" to a term in that treaty. These two 
provisions should not be conflated. Moreover, t he existence of Article 41 suggests that Article 31(4) is not a 
mechanism through which some parties to a treaty can modify the treaty for all parties to the treaty.  
334 India's first written submission, para. 99.  
335 India's first written submission, para. 101 (quoting ITA, Annex, para. 3) . 
336 India's second written submission, para. 49.  
337 See e.g. India's first written submission, paras. 140 -148; opening statement at the second meeting  
of the Panel , p. 6;  and respons e to Panel question No. 62, para. 20.  WT/DS582/R  
 
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  ITA Expansion. In our view, the scope and content of the ITA and ITA Expansion cannot modify the 
scope and content of India's tariff commitments as set forth in its WTO Schedule.  
7.76.   Similarly, the statements and pronouncements referred to by India as relevant "subsequent 
practice" relate to the ITA, and not to the content of India's WTO Schedule. If we were to take into 
considerati on the actions of certain participants in the ITA for purposes of interpreting India's 
WTO Schedule, it would conflate these two agreements in a manner that is legally incorrect. ITA 
participants may debate the scope and content of their obligations under the ITA. However, even 
assuming that those debates constitute "subsequent practice" to the ITA – an issue on which we 
refrain from taking any position – they do not concern India's WTO Schedule and necessarily exclude 
a considerable portion of the WTO Memb ership who are not participants in the ITA. As stated above, 
we do not consider that a group of WTO Members can define treaty terms for all WTO Members.  
7.77.   Having said that, given the importance that India appears to attribute to the product scope 
of the ITA Expansion, we wish to briefly note there is no indication in the ITA Expansion that the 
product scope of that agreement does not overlap with the ITA. We understand, in fact, that the 
negotiating history of the ITA Expansion suggests that there is indeed s uch an overlap of products.338 
We do not consider it necessary, for purposes of resolving this dispute, to enter into the question of 
which products are covered by the ITA as compared to the ITA Expansion. We simply note that it 
does not necessarily follow that the fact that a product is covered by the ITA Expansion implies that 
such product did not already fall within the scope of the ITA itself (or, more importantly, the 
concessions set forth in relevant Members' WTO Schedules).  
7.78.   Finally, we note  India's ar gument that the ITA "qualifies as context to Schedule [s] of 
Concessions under Article  31(2)(b) of the Vienna Convention and is therefore relevant for 
interpreting the tariff concessions at issue in this dispute".339 In our view, however, India is not 
relyin g on the ITA as context to interpret its WTO Schedule but rather is seeking  to replace the 
content of that WTO Schedule with the content of the ITA. The application of Articles II:1(a) and (b)  
of the GATT 1994 entails the application of Members' obligation s as contained in their WTO 
Schedules, not the ITA. Those legal instruments are not the same and, for the reasons articulated 
above, we do not consider that the existence of the ITA replaces or modifies the content of India's 
WTO Schedule, or calls for a s pecific interpretative approach to certain tariff commitments contained 
in that Schedule. We also recall that the relevance of contextual aids to interpreting Members' 
Schedules can vary depending on the interpretative question at issue.340  
7.79.   We understand that India relies on the ITA as context to interpret its WTO Schedule 
specifically to show that the concessions set forth in its WTO Schedule cover products that were not 
covered by the ITA. In our view, to the extent that a product is, on its f ace, covered by India's 
WTO Schedule, that legal obligation would not be changed merely because  that product is not 
covered by the ITA. Since India's arguments invoking the ITA as "context" for purposes of 
interpreting its Schedule are focused on replacing  the content of the WTO Schedule with the content 
of the ITA (rather than on interpreting tariff commitments in that Schedule using the ITA as context), 
and since any differences in scope would not modify the scope of India's WTO Schedule, we do not 
consid er it necessary to further take into account the ITA as "context" for purposes of determining 
the scope of India's tariff commitments as set forth in its WTO Schedule.  
 
338 Document G/IT/SPEC/15 contains a compilation of "Proposed Additions to Product Coverage: 
Compilation of Participants' Submissions", and notes that for certain proposed tariff item s to be included in the 
ITA Expansio n, "part of the tariff line is already covered in the ITA". (Proposed Additions to Product Coverage: 
Compilation of Participants' Submissions, G/IT/SPEC/15, p. 1).  We note India's argument that this document 
"was issued during the negotiations under Paragr aph 3 of the Annex to the ITA[]", that "these negotiations 
ultimately failed to reach a consensus" and were "relaunched in the year 2012". (India's opening statement at 
the first meeting  of the Panel , para. 39). Given that India itself indicates that "the negotiations were 
relaunched", we do not see why India considers that this document "is not a part of the negotiating history of 
ITA Expansion". (Ibid.).  
339 India's response to Panel question No. 4, para. 18. We note the finding of the panel s in EC – IT 
Products that the ITA "may serve as context within the meaning of Article 3 1(2)(b) of the Vienna Convention 
for the purpose of interpreting tariff concessions ". (Panel Report s, EC – IT Products , para. 7.383). The panel s 
in that dispute considered that the ITA  represented an instrument "made by one or more parties in connection 
with the conclusion of the treaty". (Ibid. para. 7.384) .  
340 See para. 7.64 above.  WT/DS582/R  
 
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  7.80.   For the foregoing reasons, we consider it appropriate to assess the scope of India's WT O tariff 
commitments by looking at India's WTO Schedule . Where necessary, we will interpret the scope of 
that Schedule by applying the general rules of interpretation set forth in Article 31 of the Vienna 
Convention. For the reasons articulated above, we do not consider it relevant to examine the product 
scope of the ITA as "context" to interpret India's WTO Schedule. In addition, we do not consider that 
Members' subsequent practice with respect to the ITA (such as the scope of the ITA Expansion)  can 
modify the scope of India's WTO Schedule.341 
7.3.2.4   Conclusion  
7.81.   We have addressed above India's contentions that the ITA is the source of India's legal 
obligations in this dispute. We disagree. We have also addressed above whether the ITA modifies or 
limits th e scope of India's WTO tariff commitments set forth in its WTO Schedule. Without taking a 
position on whether the scope of India's concessions under the ITA is "static" in nature, we consider 
that the ITA cannot overwrite the tariff commitments set forth i n India's WTO Schedule (which are 
not static in nature). We therefore proceed to apply Articles II:1(a) and (b)  by comparing, on the 
one hand, the tariff treatment accorded by India to certain products, and, on the other hand, India's 
WTO tariff commitment s as set forth in its WTO Schedule. Before doing so, however, we address 
India's arguments regarding Article 48 of the Vienna Convention and its rectification request under 
the 1980 Decision.342  
7.3.3   Article 48 of the Vienna Convention  
7.3.3.1   Introduction  
7.82.   As described  in section 2.3 above, in 2006, in preparation for the transposition of Members' 
Schedules from the HS2002 to the HS2007, the General Council adopted a Decision on  HS2007 
Transposition Procedures . Pursuant to that Decision, developed country Members were to prepare 
their own transpositions from the HS2002 to the HS2007, and the WTO Secretariat was requested 
to "transpose the schedules of developing country Members, except for those who undertake to 
prepare their own transposition and submit a notification to this effect".343 Since India did not 
indicate that it intended to undertake the transposition of its Schedule from the HS2002 to the 
HS2007, the WTO Secretariat p repared India's transposition and, on 8  November 2013, 
communicated to India via email the draft files for the HS2007 transposition of India's Schedule.344 
Following receipt of the draft transposition files prepared by the WTO Secretariat, India provided 
comments on the draft files.345 The Secretariat then communicated a revised file to India for 
approval.346 A multilateral review session was held in the Committee on Market Access on 
23 April 2015, during which the draft files were approved by Members.347 The d raft modifications to 
the Schedule were circulated on 12 May 2015 and, since no objections were received within three 
months of circulation, on 12 August 2015 the changes to the Schedule were certified.348   
7.83.   India submits that, at the time of the transposit ion of its WTO Schedule to the HS2007, it had 
understood that the scope of its tariff concessions would not be expanded from the commitments it 
had undertaken under the ITA. However, in India's view, the transposition of its Schedule resulted 
 
341 We note t hat India also relies on the ITA as evidence to demonstrate that an error occurred in the 
transposition of its WTO Schedule to the HS2007. We address these arguments, which concern the 
interpretation of the ITA as a factual question, not as a legal questio n, below. (See section 7.3.3.2.3.5  below).  
342 In addition to the foregoing arguments regarding the ITA, India also raises the ITA in the context of 
arguing that certain aspects of its WTO Schedule are invalid pursuant to Article 48 of the Vienna Convention. 
Moreover, India considers the ITA to be rel evant in relation to  its request for findings concerning its 
rectification request under the 1980 Decision. We address these arguments below. (See sections 7.3.3 - 7.3.4 
below).  
343 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.  
344 Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50).   
345 India did not provide comments or seek clarifications regarding the transposition of the tariff item s at 
issue in this dispute. ( Email from Market Access Intelligence Section , WTO, to India  (12 February 2014) , 
(Exhibit  IND-51)). 
346 India's response t o Panel question No. 19, paras. 60 -61. 
347 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India, 
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.  
348 Committee on Market Access, Rectification and Modifi cation of Schedules, Schedule XII – India, 
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015, as certified in WT/Let/1072, effective 
12 August 2015; India's response to Panel question No. 19, para. 61.  WT/DS582/R  
 
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  in an expansi on of its tariff commitments from the ITA.  India contends that it "was not put on clear 
notice (via WTO communication or otherwise) as to the exact changes being effected due to the 
increased product complexity of the ITA product coverage via the contested  sub-headings".349 India 
argues that Article 48 of the Vienna  Convention is an applicable rule of law which codifies the 
principle of customary international law whereby "freedom of consent [i]s an indispensable condition 
for treaty validity" such that "a S tate cannot have freely concluded a treaty if at the time of giving 
its consent it was under a misapprehension relating to the subject matter of the treaty".350 India 
considers that "the core issue before the Panel is whether the products at issue are entit led for 
exemption from customs duty as a result of informed and free consent of India, or a result of 
technicalities invoked by" the complainant.351 India further submits that, although Article 48 would 
ordinarily lead to the invalidation of the entire trea ty, in these circumstances the contested tariff 
items are separable from the rest of the Schedule such that only the contested tariff items  are 
invalid, in accordance with Article 44 of the Vienna Convention.352 India submits that since the 
contested tariff items  are invalid, they are "rendered unbound".353  
7.84.   The European Union agrees with India that Article 48 of the Vienna Convention constitut es 
customary international law that is applicable in WTO dispute settlement.354 However, the 
European  Union considers that the present circumstances fail to satisfy the substantive requirements 
of paragraphs 1 and 2 of Article 48. Specifically,  the European  Union argues that the alleged error 
does not relate to a "fact or situation" within the meaning of Article 48(1) . The European Union 
further argues that , in any event , India cannot avail itself of Article 48(1) because India contributed 
by its own conduct  to the error and the circumstances were such as to put India on notice of a 
possible error, within the meaning of Article  48(2).355 The European Union also considers that India 
has not demonstrated that the requirements of Articles 44 and 45 of the Vienna Convention are 
satisfied in the present proceedings.356  
7.85.   Article 48 of the Vienna Convention is titled "Error" and provides as follows:  
1. A State may invoke an error in a treaty as invalidating its consent to be bound by 
the treaty if the error relates to a fact or situation which was assumed by that State to 
exist at the time when the treaty was concluded and formed an essential basis of its 
consent to be bound by the treaty.  
2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to 
the error or if the circumstances were such as to put that State on notice of a possible 
error.  
3. An error relating only to the wording of the text of a treaty does not affect its validity; 
article 79 then applies.  
7.86.   A Commentary on the Vienna Co nvention states that Article 48 is "based on the premise that 
freedom of consent … is an indispensable condition for the validity of a treaty" and a "State cannot 
be considered to have freely concluded a treaty if at the time of giving its consent, it was under a 
misapprehension about the subject matter of the treaty".357 The Commentary also notes that 
"reliance on error as a ground for invalidating consent may easily be abused", and consequently 
Article 48 seeks to "preserve the 'reality of consent' while a t the same time protecting the stability 
of treaties and the good faith of the other parties by clearly defining the conditions under which an 
error is capable of invalidating consent".358  
 
349 India's first written submission, fn 101 to para. 65.  
350 India's first written submission, para. 55.  
351 India's second written submission, para. 5.  
352 India's first written submission, paras. 8 6-90. 
353 India's first written submission, para. 91.  
354 European Un ion's response to Panel question No. 14, paras. 41 -52. 
355 European Union's opening statement at the first meeting  of the Panel , paras. 18-55; second written 
submission, paras. 3 -17. 
356 European Union's response to Panel question No. 91, paras. 9 -22.  
357 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties , 2nd edn (Springer, 2018) , (Exhibit IND -14), p. 879.  
358 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties, 2nd edn (Springer, 2018) , (Exhibit IND -14), p p. 879-880. (emphasis omitted)  WT/DS582/R  
 
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  7.87.   Paragraph 1 of Article 48 sets out the essential criteria that must  be satisfied in order for a 
State to claim that its consent to be bound by a treaty was invalid due to an error related to a fact 
or situation, including the requirements that the error both (i) was assumed to exist by the State in 
question at the time wh en the treaty was concluded, and (ii) formed an essential basis for its consent 
to be bound. Paragraph 2 establishes that, in certain circumstances, a State cannot invoke error as 
a ground for invalidating its consent to be bound, even if the requirements of paragraph 1 are 
satisfied. Specifically, the State in question cannot take advantage of paragraph 1 if (i) it has 
"contributed by its own conduct to the error" or (ii) the circumstances were "such as to put that 
State on notice of a possible error".  
7.88.   We understand that the requirements of paragraphs 1 and 2 are cumulative – if any of the 
requirements of either paragraph are not satisfied, then a party's invocation of error under Article  48 
fails. Paragraph 3, which distinguishes Article 48 from Article 79  of the Vienna Convention, is not 
relevant in the present dispute.359  
7.89.   A threshold issue concerns whether Article 48 of the Vienna Convention constitutes an 
applicable rule of law that can be invoked in WTO dispute settlement. While the parties to this disp ute 
agree that Article 48 is applicable in WTO dispute settlement, the issue of applicability is contested 
by several of the third parties.360 We note that one panel has previously found that customary 
international law regarding error in treaty formation  is applicable in WTO dispute settlement  and 
that Article 48 is a codification of that customary international law .361 In our view, it would only be 
necessary for us to take a position on this issue if it is the case that the substantive requirements of 
Article 48 are indeed satisfied. If the substantive requirements of Article 48 are not satisfied, then 
it is a moot question whether Article 48 is an applicable rule of law in WTO dispute settlement. We 
therefore defer addressing the question of applicability u ntil after we have examined  the substantive 
requirements of Article  48. A similar approach has been taken by several previous panels.362  
7.90.   We also note the parties' disagreement concerning Article 45 of the Vienna Convention.363 
Article  45 concerns the loss of a right to invoke a ground for, inter alia , invalidating the operation of 
 
359 Having said that, we note, without further comment, that India's argument that the errors set forth 
in its Schedule are merely "formal errors", such that objections to its  rectification request were unfounded (see 
section 7.3.4 below), is difficult to reconcile with India's reliance on Article 48 of the Vienna Convent ion, which 
explicitly indicates in Article 48(3) that errors relating only to the wording of a treaty do not affect the validity 
of the treaty and are addressed under Article 79 of the Vienna Convention, and not Article 48. In this respect, 
we tend to agre e with the European Union that "the error invoked by India under Article 48 of the VCLT in 
these proceedings and the error invoked by India in support of its request for a rectification under the 1980 
Procedures are legally distinct and manifestly incompat ible with each other." (See European Union's response 
to Panel question No. 74, para. 100) .  
360 See e.g. European Union's response to Panel question No. 14, paras. 41 -55; India's response to 
Panel question No. 16, paras. 47 -53; Chinese Taipei's third -party statement, paras. 11 -13; Japan's third-party 
response to Panel question No. 11, para. 3 8 and third-party statement, paras. 15 -20 and 25; Korea's third -
party response to Panel question No. 17, para s. 7-9 and third-party submissi on, para s. 11-12; and United 
States' third -party submission, para s. 42-43. 
361 See Panel Report, Korea – Procurement , para. 7.123. In Korea – Procurement , the panel found that 
"international law applies to the extent that the WTO treaty agreements do not 'contract out' from it" and that 
"to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies 
differently, we are of the view that the customary rules of international law apply to the WTO treaties and to 
the process of treaty formation under the WTO". ( Ibid. para. 7.96) . The panel further stated that "the 
relationship of the WTO Agreements to customary international law is broader than" indicated in Article 3.2 of 
the DSU. (Ibid.) .  
362 For example, in Russia  – Tariff Treatment , the panel noted the substantive requirements of Article 79 
of the Vienna Convention, and concluded that there was "no need … to examine whether Article 79 applie[d] in 
this dispute" since, in the circumstances, there was "no basis on w hich the alleged error in Russia's Schedule 
could be considered to have been corrected under either paragraph of Article 79". (Panel Report, Russia – 
Tariff Treatment , para. 7.55) . Similarly, in India – Autos , the panel considered that "the potential relev ance of 
the notion of res judicata  to this case would only arise if its commonly understood conditions of application 
were met on the facts". (Panel Report, India – Autos , para. 7.59) . The panel elaborated that if it were to find 
that the factual circumsta nces for the application  res judicata could not be met in that particular case, then "it 
would not be necessary to make a general ruling on the role of res judicata  in WTO dispute settlement". (Ibid.  
para. 7.60 ). The panel ultimately concluded that the doc trine of res judicata  could not apply to the facts of that 
dispute, and consequently the panel did "not seek to rule on whether the doctrine could potentially apply to 
WTO dispute settlement". (Ibid. para. 7.103 . See also Panel Reports, EC and certain member States – Large 
Civil Aircraft , para. 6.22;  and Turkey – Textiles , para. 9.182) .  
363 European Union's response to Panel question No. 91, paras. 17 -22; India's first written submission, 
paras. 79 -85.  WT/DS582/R  
 
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  a treaty.364 The parties contest whether, even assuming that the requirements of Article 48 are 
satisfied, India has nonetheless lost its right to inv oke Article 48 because, pursuant to Article 45(b), 
India "must by reason of its conduct be considered as having acquiesced in the validity of the treaty". 
As with  the issue of Article 48's applicability, we consider that it would only be necessary to addre ss 
the applicability and application of Article 45 if we were to conclude that the substantive 
requirements of Article 48 are satisfied and that Article 48 is applicable in WTO dispute settlement.  
7.91.   We further observe the parties' disagreement regarding Art icle 44 of the 
Vienna  Convention.365 We understand that under the structure and logic of the Vienna Convention, 
if the cumulative requirements of Articles 45 and 48 are applicable and satisfied, then, pursuant to 
the terms of Article 44(2) of the Vienna Con vention, this would invalidate the relevant State's 
consent to be bound by the entire treaty  – not specific aspects of that treaty.366 In the present case, 
the alleged error concerns India's WTO Schedule, which is annexed to the GATT 1994, which in turn 
forms part of the broader package of covered agreements constituting, as a whole, the 
WTO Agreement.367 India contends, however, that in accordance with the requirements of Article 
44(3) of the Vienna Convention, because India invokes error "only with respect to the contested 
sub-headings … such contested sub -headings are separable from the sub -headings comprising the 
2007 Schedule on the whole", and therefore only specific tariff items of India's WTO Schedule would 
need to be invalidated.368 While this issue is  contested by the parties, in accordance with our 
approach to issues arising under Article 45, we consider that it would only be necessary for us to 
address the applicability and application of Article 44(3) if we were to conclude in India's favour with 
respect to the substantive requirements of Article 48, and the applicability of that Article, as well as 
the applicability and application of Article 45.  
7.92.   We therefore assess the parties' arguments regarding , in turn, Article s 48(1) and (2).  
7.3.3.2   Article 48(1)  
7.3.3.2.1   Main arguments of the parties  
7.93.   India argues that certain tariff items in its WTO Schedule are invalid, and therefore unbound, 
because it "was in error as to the scope of the contested sub -heading commitments in the 
2007 Schedule, at the time of its certificat ion, as a result of the complex nature of the HS2002 to 
HS2007 transposition".369 India submits that it "would not have agreed to the contested sub -heading 
commitments if it was clear that the HS2007 transposition was effectively expanding India's 
commitmen ts beyond India's obligations under the ITA[]".370 India argues that this is "because … it 
never intended on joining the [ITA Expansion] and made several pronouncements regarding the 
same".371 India provides considerable argumentation seeking to demonstrate that its commitments 
 
364 Article 45 of the Vienna Convention is titled "Loss of a right to invoke a  ground for invalidating, 
terminating, withdrawing from or suspending the operation of a treaty", and states as follows:  
A State may no longer invoke a ground for invalidating, terminating, withdrawing from or 
suspending the operation of a treaty under art icles 46 to 50 or articles 60 and 62 if, after 
becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains 
in force or continues in operation, as the case may be; or (b) it must by reason of its conduct be 
considered  as having acquiesced in the validity of the treaty or in its maintenance in force or in 
operation, as the case may be.  
365 See European Union's response to Panel question No. 91, paras. 9 -16; India's first written 
submission, paras. 86 -91.  
366 Article 44 of the Vienna Convention, titled "Separability of treaty provisions", sets out in its second 
paragraph the general principle that "[a] ground for invalidating, terminating, withdrawing from or suspending 
the operation of a treaty recognized in the present Con vention may be invoked only with respect to the whole 
treaty except as provided in the following paragraphs or in article 60."  
367 See Article II:2 of the WTO Agreement.  
368 India's first written submission, para. 87. Article 44(3) states that:  
If the ground  [for invalidation/termination, withdrawal from or suspension of the treaty] relates solely to 
particular clauses, it may be invoked only with respect to those clauses where: (a) the said clauses are 
separable from the remainder of the treaty with regard t o their application; (b) it appears from the 
treaty or is otherwise established that acceptance of those clauses was not an essential basis of the 
consent of the other party or parties to be bound by the treaty as a whole; and (c) continued 
performance of the remainder of the treaty would not be unjust.  
369 India's first written submission, para. 57.  
370 India's first written submission, para. 63.  
371 India's first written submission, para. 63 (referring to WTO, Committee of Participants on the 
Expansion of Trade  in Information Technology Products, Minutes of the meeting held on  1 November 2012 ,  WT/DS582/R  
 
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  as set forth in its certified WTO Schedule cover products that are not covered by the ITA.372 India 
considers that its error "in relation to the material scope of the commitments under the contested 
sub-headings at the time the 2007 Schedule was certified" is a "fact or a situation" within the 
meaning of Article 48(1), because the word "situation"  covers "the overall condition or circumstance 
prevailing at a particular time".373 India notes that "a leading commentary … observes that 'Article  48 
does not exclude mixed questions of fact and law and the line between one and the other may not 
always be easy to draw'".374 India considers that "the fact that an error might have legal 
consequences (as indeed all contested errors would) does not make the error a legal error".375  
7.94.   According to the European Union, "India's mistaken 'assumption', at the time of t he 
certification of its 2007 GATT Schedule, 'that the HS2007 transposition did not expand India 's tariff 
commitments beyond India's obligations under the ITA[]'" was not in error, because the 
transposition of India's WTO Schedule did not "expand the scope of India 's pre -existing tariff 
concessions".376 Moreover, the European Union submits that "[t]he term 'relates to a fact or 
situation' makes it clear that an 'error of law' does not constitute a ground for invalidating 
consent".377 The European Union a rgues that the present alleged "error involves a misinterpretation 
by India of the terms of the treaty on which the European Union bases its claims" and such an error 
"is a manifest unmixed error of law", which falls outside the scope of Article 48(1).378 
7.3.3.2.2   Main arguments of the third parties  
7.95.   Brazil considers that "the 'material scope of commitments' resulting from [HS] transpositions 
is a 'fact' or 'situation' in relation to which a State could hypothetically be in error."379 Brazil refers 
to the complex natur e of the transposition process in support of its view that a "possible change in 
scope of a concession resulting from a HS transposition could be portrayed as an objective fact or 
situation within the meaning of Article 48".380 Brazil also states that "the current international 
jurisprudence regarding error in the consent of treaties and Article 48 establishes a very high 
threshold for demonstrating that the consent of a party to an agreement was made in error".381  
7.96.   Canada argues that "it is possible that the  certification of India's 2007 Schedule could be 
considered the conclusion of a treaty and, further, that a State's understanding as to the scope of 
its tariff concessions prior to certification of its Schedule could qualify as a 'fact or a situation … 
assumed by that State to exist at the time' within the meaning of Article 48."382 Canada considers 
that "the 'fact or situation' allegedly assumed by India here … captures the products at issue, the 
 
G/IT/M/56). See also ibid. para. 59 and fn 90 thereto (referring to Committee of Participants on the Expansion 
of Trade in Information Technology Products, Minutes of the  meeting held on 15 May 2012, G/IT/M/55, paras. 
1.5 and 3.11).  
372 India's first written submission, section IV.  
373 India's response to Panel question No. 67, para. 31.  
374 India's response to Panel question No. 67, para. 32 (quoting M. E. Villiger, Commentar y on the 1969 
Vienna Convention on the Law of Treaties  (Martinus Nijhoff, 2009) , (Exhibit IND -13), p. 608).   
375 India's response to Panel question No. 67, para. 32.  
376 European Union's opening statement at the second meeting of the Panel, para. 5 (quoting In dia's 
first written submission, para. 59).  
377 European Union's second written submission, para. 7. The European Union notes in this regard that 
the commentary of the International Law Commission to the Final Draft of the Vienna Convention indicates that 
the term "'fact or situation' was intended to make clear that an error of law does not constitute a ground for 
invalidating consent". (European Union's opening statement at the first meeting  of the Panel , para. 24 
(referring to "Draft Articles on the Law of Treaties with commentaries" in Yearbook of the International Law 
Commission  (1966), Vol. II, Commentary to Article 45 , (Exhibit EU -43), p. 244, para. 6) ). The European Union 
also notes that if "errors of law were covered by Article 48.1 of the VCLT, it would be open to the respondent in 
virtually every WTO dispute to invoke, as an alternative defence, the invalidity of its consent to the provisions 
relied upon by the claimant, on the ground that the respondent had made an error with regard to the correct  
interpretation of that provision". (Ibid. para. 2 9). 
378 European Union's second written submission, para. 11.  
379 Brazil's third -party response to Panel question No. 16, para. 4.  
380 Brazil's third -party response to Panel question No. 16, para. 7.  
381 Brazil's third-party submission, para. 21 (referring to International Court of Justice (ICJ), Case 
concerning the Temple of Preah Vihear (Cambodia v. Thailand) , Merits, Judgment of 15 June 1962: ICJ Reports 
1962, p. 6; ICJ, Kasikili/Sedudu Island (Botswana v. Namib ia), Judgment of 13 December 1999: ICJ Reports 
1999, p. 1045; Permanent Court of International Justice  (PCIJ) , Legal Status of Eastern Greenland (Denmark 
v. Norway) , Judgment of 5 September 1933, PCIJ (ser. A/B) No. 53.; and ICJ, Case concerning Sovereignt y 
over certain Frontier Land (Belgium v. Netherlands) , Judgment of 20 June 1959: ICJ Reports , p. 209).  
382 Canada's third -party response to Panel question No. 16, para. 3.  WT/DS582/R  
 
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  terms used to accurately describe them, and the context surro unding the decision to accept, or 
choose, the terms used to describe the concession", such that "it appears to be an error that includes 
factual elements".383 Canada also questions whether "purely formal or technical amendments to 
treaties, such as those wh ich occur during the certification of tariff schedules following a 
transposition process, could satisfy the requirement of forming an 'essential basis' of a State's 
consent to be bound by the treaty."384 
7.97.   Japan argues that India has failed to demonstrate tha t the present circumstances satisfy the 
requirements of Article 48(1) because: (i) India has failed to demonstrate the existence of an error, 
since the transposition to the HS2007 merely transposed existing commitments without changing 
the scope of those c oncessions; and (ii) India failed to demonstrate that a material error related to 
a "fact or situation" exists.385 Japan considers that "[t]here was no error because India's tariff 
concessions as included in its Schedule which was certified in 1997, after t he conclusion of the ITA[], 
already covered the products at issue."386 Japan considers that this "is demonstrated by the 
correlation tables between the HS 2002/HS 1996 and the HS 2007 which were prepared by the 
secretariat of the WTO ('WTO Secretariat') and  circulated to the WTO Members."387 Japan also 
submits that "[a]n error regarding the scope of a tariff commitment clearly does not concern 'a fact 
or situation' since it relates to the scope [of] a treaty provision".388 
7.98.   Korea argues that it is clear from In dia's statements that India's alleged error does not seem 
to involve an error relating to a "fact or situation", and relates, instead, to the scope of India's 
obligations or commitments under its Schedule.389 Korea argues that "the scope of a Member 's 
commi tment cannot be 'the existence of a fact'" but rather "is a legal question which requires 
interpretation of the treaty provision".390  
7.99.   Chinese Taipei submits that "no error occurred, and India has not shown otherwise".391 
Chinese Taipei further argues that, if it exists, India's alleged error is actually an error of law which 
falls outside the scope of Article 48.392 Chinese Taipei considers that "India's alleged mistaken view 
as to the 'material scope of the commitments' under the tariff concessions at issue is no more than 
a mistaken view of its obligations on tariff concessions", and "[e]rrors of law are not covered by 
Article 48(1) of the Vienna Convention".393 
7.100.   The United States argues that "it appears that the alleged error concerns India's legal 
interpretation of its WTO commitments and the terms of its WTO Schedule rather than a particular 
'fact or situation'".394 The United States notes India's characterization of the error "as concerning 
'the complex nature of the HS2002 to HS2007 transposition' " as well as India's position "that it 
'never intended to expand its tariff commitments with respect to ICT products beyond the remit of 
India's obligations as contained in the ITA[]'".395  
7.3.3.2.3   Panel's assessment  
7.3.3.2.3.1   General considerations  
7.101.   Article 48(1) indicates that:  
A State may invoke an error in a treaty as invalidating its consent to be bound by the 
treaty if the error relates to a fact or situation which was assumed by that State to exist 
 
383 Canada's third -party response to Panel question No. 16, para. 5.  
384 Canada's third -party response to Panel question No. 17, para. 7.  
385 Japan's third -party statement, paras. 22 -23.  
386 Japan's third -party response to Panel question No. 16, para. 10. (footnote omitted)  
387 Japan's third-party response to Panel question No. 16, para. 10. (footnotes omitted)  
388 Japan's third-party response to Panel question No. 16, para. 11.  
389 Korea's third -party submission, para. 13.  
390 Korea's third -party response to Panel question No. 16, para. 6.  
391 Chinese Taipei's third -party response to Panel question No. 16, para. 8.  
392 Chinese Taipei's third -party response to Panel question No. 16, paras. 5 -9. 
393 Chines e Taipei's third -party response to Panel question No. 16, para. 9.  
394 United States' third -party response to Panel question No. 16, para. 9.  
395 United States' third -party response to Panel question No. 16, para. 9 (quoting India's first written 
submission, para. 57).   WT/DS582/R  
 
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  at the time when the treaty was concluded and formed an essential basis of its consent 
to be bound by the treaty.  
7.102.   Article 48(1) sets forth four elements that must be demonstrated: (i) at the time when the 
treaty was concluded, the invoking State made an assumption; (ii) that was related to a "fact or 
situation"; (iii) which formed an essential basis of the State's consent to be bound by the treaty; 
and (iv) the assumption was in error.  
7.103.   It is uncontested that the burden of demonstrating that the requirements of Article 48(1) 
are satisfied in a given cas e rests on the party invoking Article 48.396 We recall that India's assertion 
of error is that India had assumed that the transposition of its Schedule to the HS2007 did not  result 
in an expansion of its tariff commitments beyond those set forth in the ITA,  while, according to India, 
such expansion did in fact occur.  
7.104.   Thus, in order for India to prevail under Article 48(1), India must demonstrate that: (i) at 
the time when the changes to its WTO Schedule were certified following the HS2007 transposition 
process, India assumed that the scope of its WTO tariff commitments would not be expanded beyond 
the scope of its ITA undertakings; (ii) that assumption related to a "fact or situation" within the 
meaning of Article 48(1); (iii) that assumption formed an essen tial basis of India's consent to be 
bound by those changes to its Schedule; and (iv) that assumption was incorrect, because following 
the HS2007 transposition process the scope of India's WTO tariff commitments w as expanded 
beyond the scope of its ITA unde rtakings. We proceed to address each issue in turn.    
7.3.3.2.3.2   Whether, at the time when the changes to its WTO Schedule were certified 
following the HS2007 transposition process, India assumed that the scope of its WTO 
tariff commitments would not be expanded bey ond the scope of its ITA undertakings  
7.105.   The first element of the test under Article 48(1) requires the invoking party to demonstrate 
that, at the time when the treaty was concluded, it made a certain assumption. In this dispute, India 
asserts that, at the ti me that it certified its WTO HS2007 Schedule, India assumed that "the HS2007 
transposition did not expand India's tariff commitments beyond India's obligations under the 
ITA[]".397 We therefore proceed to assess whether India held this assumption.  
7.106.   India arg ues that the existence of its assumption is demonstrated by the fact that, at the 
time of the certification of the changes to the Schedule, "India had already made its intention clear 
of not expanding its obligations under the ITA[] via the HS2007 transpos ition or otherwise", and 
"India was already levying duties beginning 2014 on certain ICT products which were ostensibly at 
variance with the commitments under the contested sub -headings it was entering into at the same 
time via the HS2007 transposition".398 India refers to "several pronouncements" made by India 
indicating that India did not intend to join the ITA Expansion.399 India submits that, "[c]learly, India's 
intent was never to expand upon its obligations under the ITA[], with such intent having been 
communicated in advance via various committee meetings as well as confirmed in practice via 
certain customs tariff levies."400  
7.107.   The European Union notes that India did not indicate to the WTO Secretariat or Membership 
its desire to not extend its WTO tariff  commitments beyond those contained in the ITA.401 
7.108.   We note at the outset that the evidence adduced by India does not conclusively indicate 
that, at the time of the transposition, it assumed that the scope of its WTO tariff commitments would 
 
396 European Union's response to Panel question No. 14, para. 45 ("[t]he burden of proof is on the 
defendant alleging the error"); In dia's response to Panel question No. 17, para. 57 ("the party invoking error 
bears the burden of proving that the conditions under Article 48(1) have been met").  
397 India's first written submission, para. 27.  
398 India's first written submission, para. 64.  
399 India's first written submission, para. 63.  
400 India's first written submission, para. 64.  
401 European Union's comment s on India's response to Panel question No. 95, para. 11.  WT/DS582/R  
 
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  not be expanded beyond the scope of its ITA undertakings. India points primarily to the following 
passage from the Minutes of the meeting held on 1 November 2012402: 
2.10 The representative of India thanked Korea for hosting both the technical 
discussions as well as the transparency session. India's position on the effects of ITA 
was well known as articulated during the symposium in May. India's IT manufacturing 
had dipped quite profusely due to the ITA I. In the spirit of constructiveness, India had 
conducted stakeholder consultations around the country. The general concern was the 
relevance of many of the IT products or the ICT sector. The consolidated list 
(JOB/IT/7/Rev.1) could create an inversion  in the duty structure, the multiple -use of 
many products and the difficulty in monitoring at the customs level for many of the 
products which had multiple -use. He informed the Committee about his government's 
national electronics policy with ambitious tar gets in terms of manufacturing in the 
electronics sector, as well as the overall manufacturing sector of the country. As a result, 
stakeholders had expressed serious reservations and he wanted to place these 
reservations on record.403 
7.109.   We understand that the  "technical discussions" referred to in this passage concerned a 
review of the product coverage of the ITA. In our view, these Minutes reveal that India had 
"reservations" regarding increasing the product scope of the ITA . We see no mention of India's WTO 
tariff commitments, the HS2007 transposition process or any indication of India's intentions with 
respect to that process.  
7.110.   India also refers to the following passages of the Minutes of the meeting held on 15 May 
2012404:  
1.5  The representative of India thanked the Chairman for his report on the IT 
Symposium and requested that his country 's name be removed from the sentence which 
stated that some countries had benefited from the ITA in terms of increasing 
employment, IT spending and investment .  
… 
3.11  The representative of India thanked the US delegation and other co -sponsors for 
the concept paper. He supported the statement made by El Salvador also on behalf of 
others (Guatemala, Honduras, Nicaragua and the Dominican Republic) on the fact that 
the Commit tee would need to take into account the flexibilities required by many 
developing countries in the expansion of IT products. He asked the United States and 
other co -sponsors a question on the concept paper regarding the issue of the critical 
mass. He wonde red whether there were any specific numbers in terms of the critical 
mass for product expansion as proposed by the co -sponsors. His second question 
concerned the mandate that the co -sponsors quoted, i.e., paragraph 3 of the Annex to 
the Ministerial Decisio n. He asked whether there was reference to both tariffs as well as 
to NTBs in the same paragraph or how the United States and other co -sponsors were 
trying to delink tariffs from NTBs. At the Symposium, many of the US industry 
participants were adamant tha t only tariffs should be addressed. On NTBs, he wanted 
to know whether any of the ITA Participants were looking at disciplining standards on 
IT products which he thought was a very critical area for NTBs and which were really 
the fundamental market access barriers to these products. The applied tariffs were not 
so substantial as so to create those market access barriers and many companies were 
managing to export their products. On the issue of classification divergences, he said 
that it was an issue that co mprised 55 products and had not been resolved for the past 
15 years. He doubted that one could just brush it aside in terms of saying that these 
were complicated by HS96, HS2002 or HS2007 nomenclature changes as otherwise the 
participants would have actual ly solved the problem in the first place. He posed a 
question to the Secretariat regarding procedures for consultations concerning the 
 
402 India's first written submission, fn 88 to para. 57, fn 90 to para. 59, fns  96-98 to paras. 63 -64, 
fn 102 to para. 66, fn 108 to para. 70, and fn 213 to para. 143.  
403 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of 
the meeting held on  1 November 2012, G/IT/M/56, para. 2.10.  
404 India's first written submission, fn 90 to para. 59.  WT/DS582/R  
 
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  decision of Paragraph 3 of the Annex to the Ministerial Declaration which gave the 
mandate to the CTG. He said that there  was a decision which came out later on the 
implementation of the Ministerial Declaration, G/L/160. In his view, it talked about the 
mandate of this particular Committee as well as the fact that the first review would be 
conducted in 1997 and 1998. However , there were no procedures in place for 
subsequent reviews. Thus he wished to have some clarification from the Secretariat on 
this.405 
7.111.   Paragraph 1.5 of these Minutes appears to suggest that India did not share the feeling of 
some other Members that they had  enjoyed certain economic benefits from participating in the ITA. 
This paragraph does not suggest that India assumed, at the time of the transposition of its 
WTO Schedule, that the transposition to the HS2007 would not expand the scope of its WTO tariff 
commitments beyond the scope of its ITA undertakings.  
7.112.   As to paragraph 3.11, we observe that India's delegate highlighted that the issue of 
classification divergences (presumably in relation to products covered by the ITA) was an issue that 
affected 55 produ cts, which had not been resolved since the signing of the ITA, and he "doubted 
that one could just brush it aside in terms of saying that these were complicated by HS96, HS2002 
or HS2007 nomenclature changes as otherwise the participants would have actuall y solved the 
problem in the first place".406 This passage indicates to us that India was fully aware of differences 
of opinion among the Members regarding the HS classification of certain ITA products. It does not 
indicate to us that India assumed that the transposition of its Schedule would not expand the scope 
of its WTO tariff commitments beyond the scope of its ITA undertakings.   
7.113.   We also note India's argument that its understanding and intentions with respect to its 
Schedule were clear from the fact tha t, as from 2014, prior to the certification of the changes to the 
Schedule, India had already begun levying duties on certain products that fall under the contested 
tariff items. In our view, however, this argument is partially undermined by the fact that,  prior to 
2014, India had indeed been according duty -free treatment to almost all products at issue in this 
dispute .407 Moreover, we understand that the majority of products at issue in this dispute continued 
to receive duty -free treatment until as recently as 2017 (and 2018 in the case of some products).408  
7.114.   We do not wish to speculate on India's reasons for applying certa in duties in 2014, some  
months before its transposed Schedule would be certified. We are wary, however, of accepting a 
Member's act of potential WTO-inconsistency as evidence that the Member misunderstood the scope 
of its WTO obligations.409 To a certain ex tent, it would be circular if parties invoking Article  48 of the 
Vienna Convention could rely on their violation of treaty obligations to demonstrate that they 
committed an "error" in agreeing to be bound by that treaty. We therefore do not consider that 
India's application of duties to certain products at issue in this dispute demonstrates that, at the 
time when the changes to its WTO Schedule were certified following the HS2007 transposition 
process, India assumed that the scope of its WTO tariff commitme nts would not be expanded beyond 
the scope of its ITA undertakings.  
7.115.   Notwithstanding our reservations regarding the evidence adduced by India, we recognize 
that evidence of an "assumption" may be difficult to obtain. To the extent that such an assumption 
is a widely held implicit understanding, there may be little to no documentary evidence. We therefore 
do not consider India's lack of documentary evidence sufficient to conclude that India has not met 
its burden of proof with respect to the existence of its assumption. We also note India's arguments 
 
405 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of 
the meeting held on  15 May 2012, G/IT/M/55, paras. 1.5 and 3.11.  
406 Committee of Participants on the Expans ion of Trade in Information Technology Products, Minutes of 
the meeting held on  15 May 2012, G/IT/M/55, para. 3.11.  
407 European Union's first written submission, paras. 67 -68. See also Chinese Taipei's third -party 
submission, para. 3.29 and section 4; Japan 's third -party submission, paras. 18, 33, 42, 49, 56, and 63.  
408 See European Union's first written submission, paras. 79 -84, 91 -104, 111 -115, 122 -129, and 
138-152. We recognize, in making these observations, that even if India's tariff commitments with re spect to 
these products were "unbound" prior to the conclusion of the transposition exercise, India was naturally free to 
apply duty -free treatment if it so wished. Nevertheless, the fact that India applied duty -free treatment to the 
overwhelming majority of the products at issue in this dispute until 2017 does undermine its assertion that its 
application of duties as from 2014 demonstrates its assumption regarding the transposition process.  
409 We also refer to our findings in section 7.4 below that India is acting inconsistently with 
Articles  II:1(a) and (b) of the GATT 1994.  WT/DS582/R  
 
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  and assertions in the course of these proceedings regarding the assumptions it held during the 
transposition process.410  
7.116.   On balance, taking into account the necessary evidentiary limitations attached to providing 
proof of an assumption, we accept in good faith  India's arguments and explanations in the course 
of these dispute settlement proceedings . Accordingly, we find that, at the time of the transposition, 
India assumed that the scope of its WTO commitments w as limited to the scope of its ITA 
undertakings, with respect to those tariff commitments adopted by India in order to implement its 
ITA undertakings, and that the scope of those tariff commitments would not be expanded through 
the HS2007 transposition process .411 
7.3.3.2.3.3   Whether India's assumption regarding the alleged expansion of its WTO tariff 
commitments from its ITA undertakings relates to a "fact or situation" within the meaning 
of Article 48(1)  
7.117.   The second element to be assessed in applying Article 48(1) is wheth er the invoking party's 
assumption relates to a "fact or situation" within the meaning of Article 48(1). In this dispute, this 
entails assessing whether India's assumption (i.e. that the scope of its WTO tariff commitments 
would not be expanded beyond the scope of its ITA undertakings) relates to "a fact or situation" 
within the meaning of Article 48(1).  
7.118.   India argues that "the difficulty in articulating a workable distinction between errors of law 
and errors of fact has been evident from as early as the dr afting of the VCLT".412 According to India, 
"[t]hat a mistaken 'fact or situation' may have legal consequences (as indeed all contested errors 
would) does not make the error a legal error".413 India submits that its "factual or situational error 
was in relat ion to the inadvertent expansion of the scope of its commitments via the 
2007 transposition, which was contrary to India 's stated position and intent of not expanding upon 
its ITA[] commitments".414 In India's view, "similar errors relating to technical ent ries have 
previously been considered as a potential ground for invalidity in international law."415 
7.119.   The European Union argues that the alleged "error involves a misinterpretation by India of 
the terms of the treaty on which the European Union bases its claims" and "[s]uch an error is a 
manifest unmixed error of law and, therefore, falls squarely outside the scope of Article 48.1 of the 
VCLT".416 The European Union further argues that "[i]f errors of law were covered by Article 48.1 of 
the VCLT, it would b e open to the respondent in virtually every WTO dispute to invoke, as an 
alternative defence, the invalidity of its consent to the provisions relied upon by the claimant, on the 
ground that the respondent had made an error with regard to the correct interp retation of that 
provision".417 
7.120.   We note that India does not dispute that purely legal errors (for instance, a mistaken 
interpretation of a legal obligation contained in a treaty) do not  qualify as errors relating to a fact or 
situation, within the meaning o f Article 48(1).418 Indeed, we agree with the parties that pure legal 
error falls outside the scope of Article 48(1).419 At the same time, we recognize that a Commentary 
 
410 See e.g. India's first written submission, para. 63; and opening statement at the second me eting of 
the Panel, p. 2.  
411 In coming to this conclusion, we note that the application of the legal standard under Article 48 not 
only requires that the invoking party held an assumption, but requires the invoking party to demonstrate that 
such assumption constituted an essential basis for its consent. (See section 7.3.3.2.3.4  below). In our view, 
this latter question imposes an additional evidentiary burden on the invoking party, over and above 
demonstrating that they made an assumption. It therefore follows, in our view, that taking India at its word 
with respect to this firs t step of the analysis does not alleviate India from its evidentiary burden under 
Article  48.  
412 India's response to Panel question No. 67, para. 3 2. See also India's second written submission, 
paras. 8 and 20 -23. 
413 India's second written submission, para.  22. See also India's response to Panel question No. 67, 
para. 33.  
414 India's second written submission, para. 22.  
415 India's response to Panel question No. 67, para. 33.  
416 European Union's second written submission, para. 11.  
417 European Union's opening statement at the first meeting  of the Panel , para. 29.  
418 See e.g. India's second written submission, paras. 21 -22; and response to Panel question No. 67.  
419 The principle th at errors of law fall outside the scope of Article 48(1) is outlined in the Commentary 
on the Vienna Convention. A Commentary on the Vienna Convention indicates that "[a]s a general rule, an WT/DS582/R  
 
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  to the Vienna Convention suggests that "[a]n error of law may … qualify as a ground for vitiating 
consent if it also raises questions of fact."420  
7.121.   We have concluded above that the ITA is not a covered agreement and does not set forth 
India's legal obligations at issue in this dispute. Thus, to the extent we take into account the ITA in 
this dispute, we do so as a factual matter. In our view, India's alleged error concerns the scope of 
the tar iff commitments contained in its WTO Schedule  and therefore  also concern s India's legal 
obligations. However, this , in itself , does not mean that the error necessarily falls outside the scope 
of Article 48(1). Since the ITA forms part of the relevant factu al background to India having 
undertaken certain tariff commitments in its WTO Schedule, and India's alleged error concerns the 
product scope of the ITA, it is not immediately clear to us that the alleged error can be characterized 
as either an exclusively  legal error or alternatively as a mixed question of fact and law.  
7.122.   We recall that, for India to prevail under Article 48(1), it must prevail with respect to each 
element thereof.  Therefore, i n light of our findings regarding the next element under Article  48(1)  
(in section 7.3.3.2.3.4  below ), we do not consider it necessary to make a determination as to 
whether India's alleged error relates to a fact or situation, w ithin the meaning of Article 48(1).   
7.3.3.2.3.4   Whether India's assumption that the transposition of its WTO Schedule to the 
HS2007 would not expand the scope of its WTO tariff commitments from its ITA 
undertakings formed an essential basis of India's consent to be b ound by its WTO 
Schedule  
7.123.   The third element to be assessed under Article 48(1) is whether the invoking party's 
assumption formed an essential basis of the State's consent to be bound by the treaty. In this 
dispute, this entails assessing whether India's ass umption (i.e. that the scope of its WTO tariff 
commitments would not be expanded beyond the scope of its ITA undertakings) constituted an 
essential basis for its consent to be bound by its HS2007 Schedule.  
7.124.   India argues that "it should be evident that Indi a would not have certified the contested 
sub-headings in its 2007 Schedule had it not been in error" and that "India had communicated to 
the wider WTO membership previously that it did not intend to expand its tariff commitments beyond 
those contained in t he ITA[]".421 As evidence of these communications, India refers to the same 
evidence and arguments adduced to demonstrate the existence of its assumption, specifically 
"several pronouncements" made by India indicating that India did not intend to join the 
ITA Expansion.422 India argues that "[c]learly, India's intent was never to expand upon its obligations 
under the ITA[], with such intent having been communicated in advance via various committee 
meetings as well as confirmed in practice via certain customs tariff levies."423 India argues that "if 
India were already aware that the HS2007 transposition was going to expand its commitments 
beyond the ITA[] and had gone as far as to caution against such potential expansion specifically, it 
would not have certified  the schedule in error as it did."424 
 
error of law cannot in itself be regarded as 'an error relating t o a fact or situation'" and that "[e]rrors relating 
to international law are genuine errors of law and are as such immaterial under Art 48 para. 1". ( T. Rensmann, 
"Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties , 2nd edn 
(Springer, 2018), (Exhibit IND -14), pp. 886 and 888 ). We agree with this reasoning. We further note that in 
the Eastern Greenland case, Petroleum Development v Sheikh of Abu Dhabi , and the Temple of Preah Vihear , 
the relevant international tribuna ls consistently found that errors of law may not be invoked as invalidating 
consent to be bound by a treaty . (Ibid. p. 887 (referring to PCIJ , Legal Status of Eastern Greenland  (Denmark 
v. Norway) , Judgment of 5 September 1933 , PCIJ (ser A/B ) No. 53, p. 22; Petroleum Development (Trucial 
Coast) Ltd v Sheikh of Abu Dhabi  (1951) 18 ILR 144; and ICJ, Case concerning the Temple of Preah Vihear 
(Cambodia v. Thailand) , Preliminary Objections, Judgment of 26 May 1961: ICJ Reports 1961 , p. 17, at p.  
30)). 
420 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties , 2nd edn (Springer, 2018) , (Exhibit IND -14), p. 888 . (emphasis omitted)  
421 India's second written submission, para. 24.  
422 India's first written submissi on, para. 63.  
423 India's first written submission, para. 64.  
424 India's response to Panel question No. 95, para. 31.  WT/DS582/R  
 
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  7.125.   The European Union notes that India did not indicate to the WTO Secretariat or Membership 
its desire to not extend its WTO tariff commitments beyond those contained in the ITA.425 
7.126.   We observe  that the procedures to be fol lowed in conducting the transposition of Members' 
Schedules to the HS2007 were regulated in a series of documents that were approved by 
WTO Members and which are publicly available. The overarching procedural framework for the 
transposition process was est ablished in the General Council Decision of 15 December 2006 on A 
Procedure for the Introduction of Harmonized System 2007 Changes to Schedules of Concessions 
Using the Consolidated Tariff Schedules (CTS) Database, WT/L/673  (General Council Decision on 
HS2007 Transposition Procedures ).426 The General Council Decision further indicates certain 
procedural steps to be followed by the Secretariat. Specifically, the Secretariat had to "abide by the 
technical procedures described in Annex 2 to th[e] Decision".427 Annex 2 of th at Decision indicates, 
inter alia , that "[t]he transposition shall be based on the information provided by the [WCO], which 
is included in the WTO documents G/MA/W/67 and G/MA/W/76" and "[a] detailed concordance table 
between the HS2002 and the HS2007 nomenclatures shall be prepared by the Secretariat using 
these documents as the basis".428 We note that document s G/MA/W/67 and G/MA/W/76 a re 
document s circulated by the Committee on Market Access, containing certain communication s from 
the WCO , including  (in document G/MA/W/76) correlation tables drawn up by the WCO Secretariat 
to implement changes  from the HS2002 to the HS2007, in accordance with instructions received 
from the HS Committee.429  
7.127.   We also note that, as part of the WTO Secretariat's preparations for the transposition of 
developing country Members' Schedules, the Committee on Market Access approved document 
G/MA/283, titled "Transposition of Members' CTS Files to the HS 2007 Nomenclature – Notes on 
Methodology" (hereafter "document G/M A/283").430 This document, in its introduction, explains that 
it "describes the guidelines that the Secretariat intend[ed] to follow for the implementation of the 
HS 2007 transposition" and "provides a detailed description of the methodology that the Secret ariat 
[would] follow in the HS 2007 transposition exercise".431 Furthermore, Annex I of document 
G/MA/283 contains the HS2002 to HS2007 correlation tables prepared by the WTO Secretariat, 
based on document G/MA/W/76, but updated to account for "[f]urther am endments to the HS by 
the WCO".432  
 
425 European Union's comment s on India's response to Panel question No. 95, para. 11.  
426 See e.g. India's first written submission, fn 52 to  para. 37, fn 71 to para. 48, and fn 100 to para. 65; 
European Union's response to Panel question No. 75, para. 107 and fn 74 thereto.   
427 General Council Decision on HS 2007 Transposition Procedures, WT/L/673, para. 5.  
428 General Council Decision on HS 200 7 Transposition Procedures, WT/L/673, Annex 2, para. 7.  
429 Committee on Market Access, International Convention on the Harmonized Commodity Description 
and Coding System – Changes in the Harmonized System to be introduced on 1 January 2007, G/MA/W/67; 
Comm ittee on Market Access, Harmonized Commodity Description and Coding System – Changes in the 
Harmonized System to be Introduced on 1 January 2007 , G/MA/W/76. We note that none of the parties 
appears to have referred to document G/MA/W/76 in their submission s to the Panel. It is, however, explicitly 
referenced in the General Council Decision on HS2007 Transposition Procedures , contained in document 
WT/L/673, which is referred to by the parties. (See e.g. India's first written submission, fn 100 to para. 65) . 
We therefore consider that the parties and the Panel were on notice of this document's potential relevance to 
the issues arising in this dispute.  Moreover, s ince document WT/L/673 is relied upon by the parties, and 
explicitly refers to document G/MA/W/76, we consider that, as a publicly accessible WTO document, document 
G/MA/W/76 is part of the official record. In our view, this approach accords with the approach taken by a 
previous panel in analogous circumstances. (See Panel Report, US – Countervailing an d Anti -Dumping 
Measures (China) , para. 7.370). We further note that , even to the extent that this publicly available WTO 
document was not specifically identified in the evidence adduced by the parties, we do not consider that this 
would preclude us from ta king it into account. In our view, panels are not obliged to disregard publicly 
available WTO documents of which they are aware, and which bear directly on the matters before them, simply 
because such documents were not raised by the parties to the dispute . 
430 Committee on Market Access, Transposition of Members' CTS Files to the HS 2007 Nomenclature – 
Notes on Methodology, approved on 26 April 2012, G/MA/283. We note that none of the parties referred to 
document G/MA/283 in their submissions to the Panel, u ntil this document was raised by the Panel in a 
question to the parties. It is, however, referenced numerous times in an Exhibit submitted to the Panel by 
India. (See Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS20 07 
Transposition Note XII - India). In accordance with our approach to document G/MA/W/76, we consider that 
document G/MA/283  is part of the official record.  (See fn 429 to para. 7.126  above).   
431 G/MA/283, paras. 1-2.  
432 G/MA/283, Annex I, fn 1 on p. 24.  WT/DS582/R  
 
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  7.128.   Having reviewed these documents governing the conduct of the transposition process, we 
see no mention of the ITA. We therefore understand that, for all intents and purposes, WTO Members 
and the WTO Secretariat did not consider the ITA to be relevant to the transposition process. Rather, 
WTO Members appeared to share an understanding that the transposition exercise would follow the 
correlation tables that were prepared at the multilateral level by the WCO, updated by the  WTO 
Secretariat, and approved multilaterally by the WTO Members themselves at the General Council 
and the Committee on Market Access.433 Importantly, these correlation tables identified the 
"correlations" between HS2007 tariff items and HS2002 tariff items – in other words, how the 
product scope of tariff items under the HS2002 overlapped with that of tariff items under the 
HS2007.434 Since these procedures did not contemplate any kind of comparison or discussion of the 
ITA, we understand that if India, or i ndeed any Member, had considered the ITA to be relevant to 
the transposition of their WTO tariff commitments, they would have had to make that clear.  
7.129.   These documents indicate that, in the absence of any evidence to the contrary, India's 
governing assumpti on and intention, during the transposition of its Schedule, was for the 
WTO Secretariat to follow the agreed -upon procedures, including the relevant agreed -upon 
correlation tables. The fact that India approved the content of these documents governing the 
transposition process, including at the General Council and in the Committee on Market Access, 
without objection, indicated at the time to the WTO Members and to the WTO Secretariat (and 
indicates to us now) that India intended for the transposition of its Schedule to follow those 
multilaterally approved procedures, including the relevant correlation tables.435  
7.130.   It is in this context that we observe India's assertion that "the WTO Membership, at large, 
including the European Union, could not have been unaware  of India's very public and unequivocal 
stance against the expansion of the ITA[] including the fact that it was already levying duties in 
derogation to the 2007 Schedule at the time of its certification".436 As evidence of its "persistent 
expression of its  stand to not be bound by commitments beyond the ITA[] via any process which 
would have such an effect", India refers to "several pronouncements" that it made.437 Specifically, 
India refers to the Minutes of two meetings of the Committee of Participants on the Expansion of 
Trade in Information Technology Products, held on 15 May 2012 and 1 November 2012.  
7.131.   We have reviewed the Minutes of these meetings in paragraphs 7.108  to 7.112  above. We 
see no indication in any of India's statements during those meetings that India's willingness to be 
bound by the changes to its WTO Schedule resulting from its transposition to the HS2007 Schedule 
was conditional on the product scope of that Sch edule being limited to its undertakings under the 
ITA. A simple comparison of India's arguments in these dispute settlement proceedings to the 
statements made by India during those meetings reveals no overlap. We therefore do not see any 
evidence of India' s alleged "persistent expression of its stand to not be bound by commitments 
beyond the ITA [] via any process which would have such an effect".438 
7.132.   In our view, aspects of these Minutes indicate  that Members disagreed as to the tariff 
classification of produ cts falling under the ITA .439 Thus, India was on notice that there was a 
difference of opinion among ITA participants  regarding certain classification issues, including with 
respect to the scope of their ITA undertakings. This makes  India's failure to highl ight its alleged 
assumption regarding the relationship between the ITA and its WTO tariff commitments during the 
transposition process even more glaring, considering  its present assertion that this assumption 
constituted an essential basis for its consent to be bound by its transposed Schedule.  
 
433 See WT/L/673, Annex 2, paras. 1 -7. See also G/MA/W/67; G/MA/W/76;  and G/MA/283.  
434 The WCO communication emphasizes that the correlation tables "are not to be regarded as 
constituting classification decisions" by the HS Committee, constitute "a guide published by the [WCO] 
Secretariat", and "do not have legal status". (G/MA/W/76, p. 1) . (emphasis omitted)  
435 WT/L/673; G/MA/W/67; G/MA/W/76; and G/MA/283.  
436 India's second written submission, para. 30.  
437 India's response to Panel question No. 95, para. 40; first written submission, para. 63  and fn 213 to 
para. 143 .  
438 India's response to P anel question No. 95, para. 30 .  
439 This may be read from the statement by India's delegate to the effect that differences of opinion of 
classification "comprised 55 products and had not been resolved for the past 15 years". (Committee of 
Participants on th e Expansion of Trade in Information Technology Products, Minutes of the meeting held on  
15 May 2012, G/IT/M/55, para. 3.11) . WT/DS582/R  
 
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  7.133.   We also note that in these dispute settlement proceedings India has not sought to 
demonstrate that any technical  errors occurred during the transposition process.440 India does argue 
that the WTO Secretariat, in prep aring India's transposition files, acted inconsistently with paragraph 
4 of the General Council Decision on HS2007 Transposition Procedures, because the Secretariat 
failed to clearly flag certain tariff items "for which a change in the scope of a concessio n may have 
occurred due to the complex technical nature of the transposition".441 We address that issue further 
below.442 For our present purposes, however, we note that India has not sought to demonstrate that 
the Secretariat incorrectly applied the correla tion tables that were agreed upon by Members (in 
particular the correlation tables that were approved by the General Council and the Committee on 
Market Access).  
7.134.   Thus, notwithstanding that the transposition was conducted  in accordance with the agreed -
upon correlation tables , India is (and asserts that it was at the time) unwilling to be bound by the 
transposed Schedule. India argues that it was only willing to be bound by its Schedule if the scope 
of its concessions in the transposed HS2007 Schedule was no broader than the scope of its 
obligations in the ITA. In our view, if India had held such condition to be fundamental to its 
willingness to be bound by the outcome of the transposition process, it would have made this 
condition obvious. Indeed, as discuss ed in greater detail below, India had numerous opportunities 
to do so.443 Based on the evidence before us, we can see no point at which India made such a 
statement or otherwise expressed that intention.  
7.135.   We note that in support of its arguments under Articl e 48, India submits as evidence a Legal 
Opinion by Professor Waibel.444 In our view, Professor Waibel's Legal Opinion is inapposite insofar 
as it relates to the evidentiary question of whether India's assumption  (during the transposition 
process and at the time of certifying the changes to its Schedule resulting from that process ), that 
the scope of its tariff concessions would be limited to the scope of its undertakings in the ITA, 
constituted an essential basis for India's willingness to be bound by the ch anges to its Schedule. 
There is no indication in Professor Waibel's Legal Opinion that he has any knowledge regarding th is 
factual question.  
7.136.   We recognize Professor Waibel's assertion that "[t]here is no indication, given India's 
persistently expressed des ire to the contrary, that India wished to expand the coverage of its existing 
tariff bindings under the ITA[]".445 As explained above, however, India's agreement on the 
correlation tables and procedures and failure to mention the ITA in the context of the transposition 
process signalled to WTO Members and the WTO Secretariat that it intended for the Secretariat to 
follow those correlation tables and procedures. If India had wished otherwise, it could and should 
have said so. According to the evidence before us, India did not do so. In short, there is no indication 
in the evidence before us that India's assumption that the scope of its concessions with respect to 
certain I CT products would be limited to the product scope of the ITA constituted an essential basis 
for its consent  to be bound by the changes to its Schedule .  
7.137.   To sum up, we recall that the burden of proof und er Article 48(1) is on India. With respect 
to this element of Article 48(1), India has provided no persuasive evidence that its assumption 
constituted an essential basis of its consent to be bound by the certified Schedule. To the contrary, 
India's conduct  throughout the transposition process indicates that such a condition was not an 
essential basis of its consent. On the basis of the evidence before us , we consider that India has 
failed to satisfy its burden of demonstrat ing that its assumption (i.e. that  the scope of its WTO tariff 
commitments would not be expanded beyond the scope of its ITA undertakings) constituted an 
essential basis for its consent to be bound by its HS2007 Schedule.  
 
440 See India's response to Panel question No. 95(b).  
441 India's first written submission, fn 101 to para. 65. 
442 See section 7.3.3.3.3.2  below.  
443 See para. 7.203  below.  
444 Prof. M. Waibel, Legal Opinion on Error , (Exhibit IND -79). 
445 Prof. M. Waibel, Legal Opinion on Error , (Exhibit IND -79), para. 3 7.  WT/DS582/R  
 
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  7.3.3.2.3.5   Whether India's assumption that its tariff commitments would not be  
expanded beyond the scope of its ITA undertakings was in error  
7.138.   The fourth element of the test under Article 48(1) is whether the invoking party's assumption 
was in error. In this dispute, that entails assessing whether the scope of India's WTO tariff 
comm itments w as expanded beyond the scope of its ITA undertakings.  
7.139.   India argues that the scope of its WTO tariff commitments w as expanded beyond the scope 
of its ITA undertakings, because the products covered by tariff items 8504.40, 8517.12, 8517.61, 
8517.62 , and 8517.70 of its WTO HS2007 Schedule were not covered by the ITA.446 India explains 
that if it "never intended to undertake tariff commitments on ICT products beyond those contained 
in the ITA[] (with the commitments under the contested sub -headings bei ng beyond those in the 
ITA[]) then India has only been consistent in its levy of customs duties except for the inadvertent 
error in understanding the scope of [its] complex HS2007 transposition (unintentionally subscribing 
to obligations beyond those in th e ITA[])".447 India also emphasizes that it never intended to 
undertake concessions with respect to products covered under the ITA Expansion, and that "[t]here 
were simply no negotiations or commitments undertaken by India with respect to products that are 
specifically covered within the ITA [Expansion]".448  
7.140.   The European Union argues that India's assumption was not in error because the 
transposition of its WTO Schedule to the HS2007 merely transposed pre -existing concessions into a 
new version of the HS nomenclature and "did not purport to expand and, in practice, did not expand 
the scope of India 's pre-existing tariff concessions".449 According to the European Union, "India did 
not err by assuming that the HS 2007 transposition could not expand the scope of pre -existing 
concessions in India 's GATT Schedule", but rather "India erred by assuming that those pre -existing 
concessions could not cover any products that did not exist at the time when the ITA[] was 
concluded."450 The European Union further argues th at the scope of the ITA is not "limited to such 
products or technical features of products which existed at that signing"451, and submits that "all of 
the products at issue in the present case are covered by the ITA[]."452 
7.141.   We recall that the ITA is not a cov ered agreement . Moreover, given the cumulative nature 
of the elements under Article 48(1) and our finding that India has failed to meet its burden of proof 
with respect to the third element, it is not strictly necessary for us to address the fourth element  of 
the test. Nevertheless, given the extensive debate by the parties regarding this issue , we wish to 
offer some observations, in the interest of assisting the parties in resolving their dispute.  
7.142.   First, we emphasize that India's assertion of error concer ns a purported expansion in the 
scope of its WTO tariff commitments as compared to the ITA. We recall that the HS2007 transposition 
process did not take into account and did not purport to transpose Members ' ITA undertakings. 
Rather , the HS2007 transpositi on process sought to transpose Members' WTO tariff commitments 
from the HS2002 to the HS2007. In this respect, India does not argue that any technical mistakes 
occurred in the transposition of its Schedule to the HS2007.453 As noted above, it is uncontested 
that the WTO Secretariat correctly followed the correlation tables communicated by the WCO, 
updated by the WTO Secretariat, and approved by the General Council and the Committee on Market 
Access .454  
 
446 India's first written submission, paras. 66 and 92 -221. 
447 India's first written submission, para. 66.  
448 India's first written submission, para. 68.  
449 European Union's opening statement at the first meeting  of the Panel , para. 19.  
450 European Union's opening statement at the first meeting  of the Panel , para. 20 .  
451 European Union's  opening statement at the first meeting  of the Panel , para. 77. 
452 European Union's response to Panel question No. 62(b), para. 27.  
453 See India's response to Panel question No. 95. Specifically, while India considers that certain 
chang es were not flagged by the WTO Secretariat, as required under the relevant procedures, India " does not 
argue or emphasize any other facets  of the technical exercise of transposing India's Schedules in accordance 
with the multilaterally agreed and approved procedures and correlation tables". (Ibid. para. 32). India also 
agrees that no mistakes occurred in any prior transpositions of its WTO Schedule. (India's response to Panel 
question No.  89). 
454 We therefore see no need to examine the accuracy of the WCO's correlation tables, the updated 
correlation tables prepared by the WTO Secretariat and approved by the General Council and the Committee on WT/DS582/R  
 
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  7.143.   As indicated, however, India argues that its "mistaken assumption " at the time that it agreed 
to be bound by its HS2007 Schedule was not in relation to the transposition of its tariff commitments 
from the HS2002 to the HS2007, but rather in relation to the scope of its ITA undertakings as 
compared to  its WTO Schedule.455 In this respect, we have already concluded above that India is 
mistaken with respect to the relationship between the ITA and its WTO Schedule.456 Specifically, we 
concluded that as a general rule the product scope of Members' tariff con cessions contained in their 
WTO Schedules evolves over time to capture products that may come into existence as a result of 
technological developments, and that this general rule is not changed for certain WTO Members by 
virtue of their participation in th e ITA.457 
7.144.   Second , we also note that the parties have conducted a substantial exchange of views 
regarding whether the ITA and India's WTO tariff commitments in its HS1996 Schedule covered 
"telephones for cellular networks or for other wireless networks". We note, in particular, that India's 
arguments with respect to several other products at issue in this dispute appear to be premised on 
its argument that telephones for cellular networks or for other wireless networks were not covered 
by the ITA.458 Given the importance  that the parties attribute to this issue, we consider it useful to 
address the parties' arguments as to whether these products were covered by India's tariff 
concessions in its WTO HS1996 Schedule.  
7.145.   In this respect, India argues that it is not  obliged to provide duty -free treatment to 
"telephones for cellular networks or for other wireless networks" in its WTO HS2007 Schedule, 
because its commitment s under the ITA did not extend to such products.459 India argues that 
"transmission apparatus" within  the meaning of tariff item 8525.20 of the HS1996 referred 
specifically to "transmission apparatus for radio -telephony or radio telegraphy".460 India submits 
that such transmission apparatus were defined in the HS1996 Explanatory Notes as apparatus "used 
for the transmission of signals (representing speech, messages or still pictures ) by means of electro -
magnetic waves which are transmitted through the ether without any line connection".461 India 
considers that this definition in the HS1996 Explanatory Notes sets forth a "cumulative and 
exhaustive list" of products falling under this tariff item, such that "no apparatus which can transmit 
signals representing any other media other than the three listed above, can be included in the scope 
of heading 8525".462 India considers that since "mobile phones transmit signals representing video 
information and other forms of multimedia", they fall outside the scope of heading 8525 of the 
HS1996.463 India acknowledges that the Explanatory Notes to the HS1996 were amended to  add 
mobile phones as an example of transmission apparatus covered by heading 8525.464 India 
considers, however, that this does not change the "main definition" of such transmission apparatus 
as being limited to apparatus capable of transmitting speech, mes sages, or still pictures.465 
Moreover, India argues  that "the product scope agreed upon by India was the product scope as 
delineated by the Explanatory Notes as on October 2, 1997" and since the amendment was adopted 
in 1998, it is not relevant to the inter pretation of India's tariff commitments.466 India submits that 
mobile phones capable of transmitting video were, in fact, classified under tariff item 8543.89 of the 
 
Market Access, or the transposition process as undertaken by the WTO Secretariat.  (See also para. 7.203  
below).  
455 India's opening statement at the second meeting of the Panel, p. 2.  
456 See section 7.3.2.3  above.  
457 See para. 7.66 above.  
458 The parties' arguments with respect to "telephone s for cellular networks or for other wireless 
networks" appear to be determinative as to whether products falling under tariff item s 8504.40 ex01, 8517.12, 
8517.61, and 8517.70 of India's WTO HS2007 Schedule were already covered by the ITA. (See India's first 
written submission, paras. 149 -184 and 204 -221).  
459 India considers that "[t]he issue before the Panel is whether sub -heading 8525 .20 [of the HS1996] – 
'Transmission apparatus incorporating reception apparatus ' could cover telephones for cellular networks." 
(India's first written submission, para. 151) . 
460 India's first written submission, para. 152. India highlights that tariff headi ng 8525 of the HS1996, 
referred to "transmission apparatus for radio -telephony, radio -telegraphy, …, whether or not incorporating 
reception apparatus or sound recording or reproducing apparatus". (Ibid. (referring to HS1996 Explanatory 
Notes to Heading 852 5, (Exhibit IND -6)). 
461 India's second written submission, para. 87 ( quoting HS1996 Explanatory Notes to Heading 8525 , 
(Exhibit  IND-6)). (underlining original)  
462 India's second written submission, para. 88.  
463 India's second written submission, para. 89.  
464 India's second written submission, paras. 91 -92.  
465 India's second written submission, para. 93.  
466 India's second written submission, para. 94.  WT/DS582/R  
 
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  HS1996, which covers "other" products falling under heading 8543, which covers "electrical 
machines and apparatus, having individual functions, not specified or included elsewhere in this 
Chapter".467 
7.146.   The European Union argues that telephones for cellular networks or for other wireless 
networks were classified as "transmission apparat us incorporating reception apparatus" under tariff 
item 8525.20 of the HS1996, and were therefore covered by India's ITA undertaking with respect to 
this tariff item.468 The European Union notes that the definition of "transmission apparatus for 
Radio -telephony or Radio -Telegraphy" in the Explanatory Notes to the HS1996 is broad and is not 
exhaustive, as indicated by the use of the words "inter alia".469 The European Union also notes that 
the Explanatory Notes were amended in 1998 to explicitly indicate that "[c]ellular telephones or 
mobile phones" were classified under heading 8525 of the HS1996.470 
7.147.   It is uncontested that, under the ITA, India undertook t o provide duty -free treatment to 
"transmission apparatus incorporating reception apparatus", falling under tariff item 8525.20 of the 
HS1996.471 India implemented this undertaking in its WTO HS1996 Schedule, such that a bound 
duty rate of 0% was inscribed w ith respect to "[t]ransmission apparatus incorporating reception 
apparatus" falling under tariff item 8525.20 of the HS1996.472 The issue debated by the parties is 
whether cellular telephones or mobile phones (presently classified under tariff item 8517.12 of 
India's WTO HS2007 Schedule) were classified under tariff item 8525.20 of India's WTO HS1996 
Schedule.  
7.148.   We understand that mobile phones, on their face, are indeed transmission apparatus 
incorporating reception apparatus.473 Based on its ordinary meaning,  we therefore  see no reason to 
consider that telephones for cellular networks or other wireless networks would not fall within the 
scope of tariff item 8525.20 of India's WTO HS1996 Schedule.  
7.149.   It is also uncontested that the HS1996 and its Explanatory Note s constitute relevant 
contextual aids for interpreting the scope of India's WTO tariff commitments as set forth in its 
HS1996 Schedule. We note India's argument that the HS1996 Explanatory Notes exhaustively 
defined relevant "transmission apparatus" fallin g under tariff item 8525.20 as apparatus "used for 
the transmission of signals (representing speech, messages or still pictures ) by means of electro -
magnetic waves which are transmitted through the ether without any line connection".474 India 
considers that  because "mobile phones transmit signals representing video information and other 
forms of multimedia", they fall outside the scope of heading 8525 of the HS1996.475 
7.150.   The parties do not dispute that mobile phones are indeed apparatus capable of transmitting 
speech, messages, or still pictures. In our view, the fact that mobile phones can also transmit other 
signals  does not eliminate the fact that they are capable of transmitting signals representing speech, 
messages, or still pictures. We do not read the HS Explanatory Notes prior to the 1998 amendment 
as excluding from the scope of tariff item 8525.20 products that completely satisfy the requirement 
of being capable of transmitting speech, messages, and still pictures, but nevertheless are also 
 
467 India's second written submission, para. 96.  
468 European Union's response to Panel question No. 62(b), para.  30. 
469 European Union's response to Panel question No. 62(b), para. 34.  
470 European Union's response to Panel question No. 62(b), paras. 36 -39 (referring to WCO, 
HS Committee document 41.337 E , (Exhibit EU -44); WCO, HS Committee document 42.034 E , 
(Exhibit  EU-45); and WCO, HS Committee d ocument 42.100 E , (Exhibit EU -46)).  
471 See e.g. India's first written submission, para. 150.  
472 WT/Let/181.  
473 A mobile phone is "[o]riginally: a radio telephone installed in a vehicle. In later use: a portable 
wireless telephone that transmits and receives signals via a cellular … network; a cell phone; esp. (in later use) 
a smartphone"  (Oxford English Dictionaries online, definiti on of "mobile phone" 
https://www.oed.com/view/Entry/253434?redirectedFrom=mobile+phone&  (accessed 17 October 2022)); "a 
phone that is connected to the phone system by radio instead of by a wire, and can be used anywhere its 
signals can be received" (Cambri dge Dictionary online, definition of "mobile phone" 
https://dictionary.cambridge.org/dictionary/english/mobile -phone  (accessed 17 October  2022) ); "a phone that 
you can carry with you and use to make or receive calls wherever you are" (Collins Dictionary online,  definition 
of "mobile phone" https://www.collinsdictionary.com/dictionary/english/mobile -phone  (accessed  17 October  
2022) ). 
474 India's second written submission, para. 87 (quoting HS1996 Explanatory Notes to Heading 8525 , 
(Exhibit IND -6)). (underlining original)  
475 India's second written submission, para. 89.  WT/DS582/R  
 
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  capable of tr ansmitting other signals .476 Thus, the unamended HS1996 Explanatory Notes suggest 
to us that cellular and mobile phones could fall within the scope of tariff item 8525.20 of India's WTO 
HS1996  Schedule . 
7.151.   We further note that the WCO amendment of the HS1996 Explanatory Notes, introduce d in 
1998, unambiguously indicates that cellular and mobile phones were indeed classified under tariff 
item 8525.20 of the HS1996.477 We disagree with India that this amendment is not relevant as it 
occurred subsequent to India's inscription of its duty -free commitment with respect to this tariff item 
in its WTO Schedule. As we have explained above, we consider that Members' WTO commitments 
are not static, and India has  not pointed to any provision of the ITA indicating that Members' WTO 
tariff commitments u ndertaken in relation to the ITA would exclude products that subsequently come 
into existence due to technological development and that would otherwise fall within the scope of 
that tariff item. In short, we see no basis to exclude this amendment of the Ex planatory Notes from 
our consideration. That amendment further suggests  that tariff item 8525.20 of the HS1996 covered 
mobile phones. This is reinforced  by the HS2002 Explanatory Notes, which also indicate that 
transmission apparatus for radio -telephony or  radio-telegraphy, falling under heading 8525 of the 
HS2002, covers "[p]ortable radio -telephones, usually battery operated, of the 'walkie -talkie' type, 
as well as cellular telephones (also called 'mobile phones')".478 
7.152.   We note that as an alternative to tari ff item 8525.20, India submits that mobile phones were 
in fact classified under tariff item 8543.89 of the HS1996, which covers "other" products falling under 
heading 8543 (covering "electrical machines and apparatus, having individual functions, not 
specified or included elsewhere in this Chapter").479 Under the General Rules for the Interpretation 
of the HS, when goods are classifiable under two or more headings, "[t]he heading which provides 
the most specific description shall be preferred to headings pro viding a more general description ."480 
Moreover, if goods cannot otherwise be classified, they shall be "classified under the heading 
appropriate to the goods to which they are most akin".481 In our view, heading 8525  of India's WTO 
HS1996 Schedule  provides a more specific description of "telephones for cellular networks or for 
other wireless networks" than heading 8543 of that Schedule and, in any event, such products are 
more akin to transmission apparatus capable of transmitting speech, messages, and still  pictures 
than they are to  the more generic definition of  "electrical machines and apparatus, having individual 
functions".   
7.153.   We therefore understand that India's WTO tariff commitments in its HS1996 Schedule with 
respect to "[t]ransmission apparatus incor porating reception apparatus" falling under tariff item 
8525.20 covered, inter alia , telephones for cellular networks or for other wireless networks. We note 
that when India's Schedule was transposed to the HS2002, th ese commitment s remained 
unchanged.482 Following the transposition of its Schedule to the HS2007, the commitment s under 
tariff item 8525.20 of the HS2002 w ere split into four distinct HS2007 tariff items, including 
tariff item 8517.12 of the HS2007, which covers "[t]eleph ones for cellular networks or for other 
wireless networks".483 Thus, India's WTO  tariff commitment s with respect to telephones for cellular 
 
476 We also note India's argument that "a radiotelephone is a device which uses radio signals between 
fixed points", whereas "telephones for cellular networks use radio waves to transmi t a signal to a base station 
nearby [which then] re -transmits the signal". (India's first written submission, para. 153). India considers that 
"'radio telephones' and 'telephones for cellular networks' are distinct products and cannot be clubbed into the 
same category". (Ibid.  para. 154  (emphasis omitted)) . We disagree. As India itself acknowledges, "telephones 
for cellular networks use radio waves to transmit a signal". (Ibid.  para. 153 ). This would seem to constitute the 
very definition of "radio -telephon y" within the meaning of the HS1996, including the Explanatory Notes 
thereto.  
477 The amendment of the Explanatory Notes adds the following language to the Explanatory Note for 
Heading 8517: "Cellular telephones or mobile phones, including car telephones, a re classified in heading 
85.25." Additionally, the amendment changes the Explanatory Note for Heading 8525, such that the group of 
apparatus constituting "transmission apparatus for radio -telephony or radio -telegraphy" includes, inter alia , 
"[p]ortable rad io-telephones, usually battery operated, of the 'walkie -talkie' type, as well as portable radio -
telephones (cellular telephones also called 'mobile phones') including apparatus which can be fitted inside a 
vehicle (car telephones)". ( WCO, HS  Committee docu ment 41.337 E, (Exhibit EU -44); WCO, HS Committee 
document 42.034 E,  (Exhibit  EU-45); and WCO, HS Committee document 42.100 E, (Exhibit EU -46)). 
478 HS2002 Explanatory Notes  to Chapter 85 , (Exhibit EU -51), p. 1667.  
479 India's second written submission, para.  96.  
480 See General Rules for the Interpretation of the Harmonized System, (Exhibit EU -54), para. 3(a).  
481 See General Rules for the Interpretation of the Harmonized System, (Exhibit EU -54), para. 4.  
482 WT/Let/886.  
483 See G/MA/283;  and WT/Let/1072.  WT/DS582/R  
 
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  networks or for other wireless networks w ere initially set forth as an undertaking in the ITA, w ere 
made binding WTO tariff commitments  pursuant to certain amendments introduced into India's WTO 
HS1996 Schedule, w ere not affected by the changes to India's Schedule during the HS2002 
transposition process, and following the HS2007 transposition exercise are presently set f orth in 
tariff item 8517.12 of India's HS2007 Schedule.484  
7.154.   To conclude, we recall that, in light of our findings with respect to the third element of Article 
48(1), it is not necessary for us to form a definitive conclusion on the fourth element. We 
nevert heless considered it useful to make certain observations regarding the parties' arguments on 
whether India erred in assuming that the scope of its WTO tariff commitments did not expand as 
compared to the ITA. To that end, we have observed, first, that Indi a has not argued that any 
transpositions of its WTO Schedule were conducted inconsistently with the relevant correlation tables 
agreed to by Members. We have further  observed that India's argument of "error" in invoking 
Article  48 relates to the scope of t he ITA as compared to its WTO HS2007 Schedule and, in this 
respect, we have already concluded that India misunderstands the relationship between the ITA and 
its WTO  Schedule. Second, we have observed that India's tariff commitments in its HS2007 Schedule 
with respect to products presently classified under tariff item 8517.12 did not expand from India's 
tariff commitments in its WTO HS1996 Schedule.485 While we do not consider these findings 
necessary to resolve the legal issues in this dispute, we neverthele ss hope that they may be useful 
to the parties.  
7.3.3.2.3.6   Conclusion regarding Article 48(1)  
7.155.   To conclude, we consider that India has failed to demonstrate that India's assumption that 
the scope of its tariff concessions in its WTO Schedule would be limited to the sc ope of its ITA 
undertakings constituted an essential basis for India's willingness to be bound by the changes to its 
Schedule. We therefore consider that India has failed to meet its burden of proof with respect to 
Article 48(1) of the Vienna Convention, a nd consequently reject India's invocation of error under 
Article 48 of the Vienna Convention as a ground for invalidating aspects of its WTO Schedule.  
7.156.   Having come to this conclusion with respect to Article 48(1), it could suffice for us to conclude 
our an alysis of Article 48 here.486 Nevertheless, we consider it useful for purposes of resolving the 
parties' dispute to continue to address the parties' arguments regarding Article 48(2).   
7.3.3.3   Article 48(2)  
7.3.3.3.1   Main arguments of the parties  
7.157.    India submits that the burden of "proving the vitiatin g circumstances" described in 
Article  48(2) falls on the "party opposing the plea of error" (i.e. the complainant).487 In any event, 
India argues that its error "was in the context of a complex and technical transposition exercise 
undertaken by the WTO Secr etariat" and that it "neither contributed actively to such an error nor 
was there a circumstance that put it on notice of such possible error".488 India submits that "for a 
State to be put on notice of a possible error, the circumstances should be such that  no interested 
party should fail to notice the error or be under any misapprehension about it."489 India further 
submits that Article 48(2) requires the party claiming error "to have employed all reasonable (rather 
 
484 We fur ther understand that, as a consequence of the foregoing interpretation, India's WTO tariff 
commitments with respect to products falling under tariff item s 8504.40, 8517.61, and 8517.70 of its WTO 
HS2007 Schedule similarly have not expanded.  This is because  India's arguments that products falling under 
tariff item s 8504.40, 8517.61, and 8517.70 of its WTO Schedule fall outside the scope of the ITA are directly 
premised on India's understanding that products falling under tariff item  8517.12 o f its WTO Schedule fall 
outside the scope of the ITA. (See India's first written submission, paras. 170, 182, 209, and 219).  
485 We also noted that this interpretation of India's tariff commitment with respect to tariff item 8517.12 
of Its WTO HS2007 Schedu le implies that India's tariff commitments with respect to products falling under 
tariff item s 8504.40, 8517.61, and 8517.70 of its WTO HS2007 Schedule similarly have not expanded . (See fn 
484 to para. 7.153  above).   
486 See para. 7.87 above.  
487 India's second written submission, para. 25 (referring to  T. Rensmann, "Article 48" in O. Dörr and K. 
Schmalenbach (eds.), Vienna Convention on the Law of Treaties , 2nd edn (Springer, 2018) , (Exhibit IND -14), 
p. 893). 
488 India's first written su bmission, para. 70. 
489 India's first written submission, para. 73.  See also India's second written submission, para. 29.  WT/DS582/R  
 
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  than possible) means of establishing the facts when concluding the treaty and of having taken 
precautions to avoid any error".490  
7.158.   India sub mits that its error "was not unlikely given the surrounding circumstances (including 
that of an admittedly complex technical transposition which was not flagged)".491 India also notes 
that "the communication (Transposition Note) received from the Secretaria t accompanying the 
Transposition Files specifically mentioned certain 'technical issues' and 'complex changes' – but … 
those notations by the Secretariat did not cover the tariff lines at issue in the present dispute."492 
India also submits that prior to th e certification of the Schedule, its "unequivocal public stance" had 
been that "it would not commit to obligations beyond those under the ITA[]".493 India considers that 
the panel's findings in Korea – Procurement suggest that "there exists a duty for all n egotiating 
parties to verify the concessions being offered" and "[i ]n the present context, that would imply that 
the EU ought to have reconciled India's stance of intending no further commitments on ICT products 
vis-à-vis its certification of the 2007 Sche dule".494 
7.159.   The European Union submits that, as the party invoking Article 48, India bears the burden 
of proving all the constituent elements of Article 48, including the conditions contained in Article 
48(2).495 The European Union argues that India had the po ssibility to prepare its own transposition 
and, "having chosen not to do so, India cannot shift the responsibility for the alleged error to the 
WTO Secretariat."496 Moreover, the European Union considers that India had "ample opportunity to 
review the draft s, to request clarifications and provide comments and, if necessary, to object to the 
transposition from HS2002 to HS2007 prepared by the WTO Secretariat", but India did not do so.497 
The European Union also considers that the findings of the panel in EC – IT Products "should have 
alerted India to the possibility that India's assumption that GATT concessions linked to the ITA[] did 
not cover 'new products' could be in error".498 
7.160.   As to the complexity of the process, the European Union submits that "it can be s afely 
presumed that the drafts prepared by the WTO Secretariat were, or at least could have been, 
reviewed by highly qualified Indian customs officials with the required ability to understand all their 
implications and identify any possibl [e] inconsistenci es with India's 'assumptions' regarding the 
 
490 India's first written submission, para. 69 (quoting  M. E. Villiger, Commentary on the 1969 Vienna 
Convention on the Law of Treaties (Martinus Nijhoff, 2009) , (Exhibit IND -13), p. 609; and referring to T. 
Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties , 2nd 
edn (Springer, 2018) , (Exhibit IND -14), p. 894 ). (emphasis omitted)  See also India's second written 
submission, para. 28 . 
491 India's second written submission, para. 30 . In a Legal Opinion submitted by India as evidence in 
support of its assertions, Professor Waibel submits that  "for the most part, the error was not of Ind ia's making, 
and any contribution by India to the error is minor and excusable rather than substantial". ( Prof. M. Waibel, 
Legal Opinion on Error , (Exhibit IND -79), para. 39) . Professor Waibel states that the "WTO Secretariat carried 
out the transposition with limited input from India … It was the Secretariat rather than India that was holding 
the pen. Consequently, the Secretariat bears at least some of the responsibility for the errors in this 
transposition process". (Ibid.) . Professor Waibel emphasizes t hat "[e]ven though [the transposition] procedure 
was not meant to lead to any change in the scope of concessions and other commitments, it did result in such 
changes, without the WTO Secretariat flagging the disputed changes to India." (Ibid. (referring to  WT/L/673, 
para. 3)  (emphasis omitted) ). 
492 India's response to Panel question No. 19, para. 60 (referring to Email from IDB , WTO, to India  
(8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 Transposition Note XII - India). 
493 India's first written submission, para. 75.  
494 India's first written submission, para. 77.  
495 European Union's response to Panel question No. 71, para. 91.  
496 European Union's opening statement at the first meeting  of the Panel , para. 35. The European Union  
considers this to be similar to the situation in the Temple of Preah Vihear case, where the ICJ "held that 
Thailand was barred from relying on a plea of error since the Thai authorities had themselves entrusted the 
work of producing the maps to the French  officers". (Ibid. para. 36 (referring to Case concerning the  Temple of 
Preah Vihear (Cambodia v. Thailand) , Merits, Judgment of 15 June 1962: ICJ Reports 1962 , p. 6, 
(Exhibit  IND-3), at pp. 26 -27)).  
497 European Union's opening statement at the first meeti ng of the Panel , para. 44. Specifically, the 
European Union notes that India sought no clarifications from the WTO regarding the draft HS07 file, and when 
India provided comments to the Secretariat, none of those comments concerned the tariff item s at issu e in this 
dispute. (Ibid. paras. 40-41). The European Union also notes that India did not raise any objection to the draft 
HS07 file during the multilateral review of the file, nor did India object to certification when the file was 
circulated for purposes  of certification. (Ibid. paras. 42-43). 
498 European Union's opening statement at the first meeting  of the Panel , para. 55.  WT/DS582/R  
 
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  scope of its pre -existing concessions".499 The European Union considers that the "the drafts 
communicated by the WTO Secretariat as part of the transposition process put India on notice that 
India's 'assumption' t hat the products at issue were not covered by the HS 2007 transposition, 
because they were 'new products' which did not exist yet at the time where the ITA[] was negotiated, 
was in error".500 The European Union also considers that the panel report s in EC – IT Products 
"addressed in detail the relevance of the status of technology at the time of negotiating the ITA[]" 
and "should have alerted India to the possibility that India's assumption that GATT concessions 
linked to the ITA[] did not cover 'new products ' could be in error" .501 
7.3.3.3.2   Main arguments of the third parties  
7.161.   Brazil does not take a position on the application of Article 48(2) in this dispute, but considers 
that "the current international jurisprudence regarding error in the consent of treaties and Arti cle 48 
establishes a very high threshold for demonstrating that the consent of a party to an agreement was 
made in error".502 
7.162.   Canada argues that "[u]pon review of the draft HS07 file, despite the available information, 
India did not inquire further as to th e scope of the concessions and thus, by its own conduct, arguably 
contributed to the alleged error regarding the scope of such concessions."503 Furthermore, according 
to Canada, "the availability of …[HS] 2007 concordance documentation may further suggest t hat the 
circumstances were such as to put India on notice as to a possible error in understanding the scope 
of the concessions".504 Canada considers that "[i]n the draft HS07 file prepared for India by the 
Secretariat, the tariff lines at issue in this case were not flagged by the Secretariat as possibly 
changing the scope of the concessions".505 Canada also considers that "[t]he  jurisprudence on Article 
48 further suggests that it is difficult to invoke Article 48 where qualified personnel of a State review 
the documentation at issue".506 Canada considers that, "absent any indication to the contrary by 
India, there is a presumption  that qualified personnel reviewed the draft HS07 file prior to its 
certification by India".507 Canada also considers that the jurisprudence on Article 48 "suggests that 
there is a certain level of diligence that is required on the part of the State invokin g the error in 
order to demonstrate that its conduct did not contribute to the error".508 Canada submits that "the 
Secretariat offered the results of its transposition procedures to India, and India, in exchange, was 
required to review and verify the Schedu le and to make any relevant inquiries if something was 
uncertain or unclear."509 
 
499 European Union's opening statement at the first meeting  of the Panel , para. 50. The European Union 
further argues that since the transposition process did not change the scope of any concessions, "there was no 
reason why the WTO Secretariat should have 'flagged' those tariff lines to India".  (European Union's second 
written submission, para. 16) . The European Union also consider s that India's error was not in assuming that 
the HS 2007 transposition did not expand the scope of pre -existing concessions, but in assuming that those 
pre-existing concessions did not cover products that did not exist when the ITA was concluded. The Euro pean 
Union submits that the transposition procedure "did not require the WTO Secretariat to anticipate that India 
would make that 'assumption' and to 'flag' to India that such 'assumption' would be in error". ( Ibid. para. 17) . 
500 European Union's opening st atement at the first meeting  of the Panel , para. 54.  
501 European Union's opening statement at the first meeting  of the Panel , para. 55.  
502 Brazil's third -party submission, para. 21 (referring to ICJ, Case concerning the Temple of Preah 
Vihear (Cambodia v. Thailand) , Merits, Judgment of 15 June 1962: ICJ Reports 1962, p. 6; ICJ, Kasikili/Sedudu 
Island (Botswana v. Namibia) , Judgment of 13 Dece mber 1999: ICJ Reports 1999, p. 1045; PCIJ, Legal Status 
of Eastern Greenland (Denmark v. Norway) , Judgment of 5 September 1933, PCIJ (ser. A/B) No. 53.; and ICJ, 
Case concerning Sovereignty over certain Frontier Land (Belgium v. Netherlands) , Judgment of 20 June 1959: 
ICJ Reports , p. 209). See also Brazil's third -party response to Panel question No. 17.  
503 Canada's third -party submission, para. 13.  
504 Canada's third -party submission, para. 13.  
505 Canada's third -party submission, para. 15.  
506 Canada's third -party submission, para. 19 (referring to ICJ, Case concerning the Temple of Preah 
Vihear (Cambodia v. Thailand) , Merits, Judgment of 15 June 1962: ICJ Reports 1962 , p. 6, (Exhibit IND -3), at 
p. 26). 
507 Canada's third -party submission, para. 19.  
508 Canada's third -party submission, para. 16 (referring to ICJ, Case concerning the Temple of Preah 
Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports 1962 , p. 6 , (Exhibit IND -3), at 
p. 26).   
509 Canada's third -party submission, para. 18.  WT/DS582/R  
 
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  7.163.   Japan  highlights that "during the negotiations leading to the certification of India's Schedule 
based on HS 2007, India's representatives repeatedly examined and had ample oppo rtunities to 
avoid the alleged error and correct it before the certification".510  
7.164.   Korea contends that "India appears to have contributed to the alleged error and was duly 
put on notice about it."511 According to Korea, "India had ample opportunity and acces s to 
appropriate redress mechanisms to avoid the alleged error and to fix it."512 Korea notes that "the 
process of transposition was done in accordance with a detailed procedure that allowed India to 
carefully examine the proposed updates and comment on the m."513 Korea also notes that the 
transposition procedures "provided for a multilateral review process during which modifications could 
be made to the updated schedules", but "India did not object to the now disputed tariff lines during 
the multilateral revi ew".514 In Korea's view, "India should not be entitled to shift responsibility for 
its error onto the WTO  Secretariat as India had not been proscribed from preparing its own HS2007 
transposition, and India neglected to verify the specifics of the transposit ion's effects despite 
knowing that it had the potential to change the scope of its concessions."515 
7.165.   The United States observes that "India participated in the process for transposition of its 
Schedule into HS2007 nomenclature in accordance with established WTO procedures, and … failed 
to raise any specific concern or objection during that process with respect to the tariff subheadings 
at issue".516 According to the United States, "India has not established that it did not contribute by 
its own conduct to the alleged error, or that the circumstances were such that India was not on 
notice of the alleged error."517  
7.3.3.3.3   Panel's assessment  
7.3.3.3.3.1   General considerations  
7.166.   Article 48(2) states that:  
Paragraph 1 [of Article 48] shall not apply if the State in question contributed  by its own 
conduct to the error or if the circumstances were such as to put that State on notice of 
a possible error.  
7.167.   For the purposes of applying Article 48(2) we proceed on an arguendo  basis and assume 
that India was indeed in error at the time that it agreed to the changes to its Schedule resulting 
from the transposition to the HS2007. Specifically, we assume that : (i) an essential basis for India's 
consent to be bound by the changes to its Schedule was India's assumption that the transposition 
of that Schedule to the HS2007 did not expand the scope of its tariff commitments beyond the scope 
of its ITA undertakings ; and (ii)  such an expansion occurred.  
7.168.   The question before us is whether India contributed by its own conduct to that error and/or 
the circums tances were such as to put India on notice of a possible error. The parties have expressed 
differing opinions on the burden of proof under Article 48(2). The European Union considers that 
India, as the party invoking Article 48, must demonstrate that it di d not contribute to the error and 
the circumstances were not such as to put India on notice of a possible error.518 India considers that 
the burden is on the European Union, as the party objecting to the invocation of Article 48, to 
demonstrate that India either contributed to the error or that the circumstances were such as to put 
India on notice of a possible error.519 In our view, there is a mple information before us (in the form 
 
510 Japan's third -party statement, para. 24.  
511 Korea's third -party submission, para. 14.   
512 Korea's third -party submission, para. 1 5. 
513 Korea's third -party submission, para. 15.  
514 Korea's third -party submi ssion, paras. 16 -17. 
515 Korea's third -party submission, para. 19.  
516 United States' third -party response to Panel question No. 16, para. 8.  
517 United States' third -party response to Panel question No. 16, para. 8.  
518 European Union's response to Panel question  No. 14, para. 45 ("[t]he burden of proof is on the 
defendant alleging the error"). See also European Union's opening statement at the first meeting  of the Panel , 
para. 14.  
519 India's second written submission, para. 25 (referring to  T. Rensmann, "Article 48" in O. Dörr and K. 
Schmalenbach (eds.), Vienna Convention on the Law of Treaties , 2nd edn (Springer, 2018) , (Exhibit IND -14), 
p. 893). WT/DS582/R  
 
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  of the arguments and evidence adduced by the parties) to apply Article 48(2), regardless of which 
party bears the burden of proof. As explained below, we do not consider the arguments and evidence 
of the parties to b e in equipoise . We therefore do not consider it necessary to resolve the question 
of which party bears the burden of proof under Article 48.520 
7.169.   We proceed by assessing in turn whether: (i) the circumstances were such as to put India 
on notice of a possible expansion of its WTO tariff commitments from its ITA undertakings; or (ii) 
India contributed by its own conduct to the alleged expansion in the scope of its WTO tariff 
commitments from its ITA undertakings . 
7.3.3.3.3.2   Whether the circumstances were such as to put India on notice of a possible 
expansion of its WTO tariff commitments from its ITA undertakings  
7.170.   We first assess whether the circumstances were such as to put India on notice of a possible 
error. In light of how India defines the alleged error, we examine whether the circumstances were 
such as to put India on notice of a possible expansion of its WTO tariff commitments from its ITA 
undertakings.  
7.171.   We recall that the evidence adduced by India in this dispute indicates that in 2012, three 
years prior to the ce rtification of the changes to India's WTO Schedule resulting from the HS2007 
transposition process, India was aware of differences of opinion among the Members regarding the 
HS classification of certain products falling with in the scope of the ITA.521 Speci fically, the Minutes 
of a meeting of the Committee of Participants on the Expansion of Trade in Information Technology 
Products indicate that "[o]n the issue of classification divergences, [India's delegate] said that it was 
an issue that comprised 55 prod ucts and had not been resolved for the past 15 years."522 India's 
delegate "doubted that one could just brush it aside in terms of saying that these were complicated 
by HS96, HS2002 or HS2007 nomenclature changes as otherwise the participants would have 
actually solved the problem in the first place."523 This statement by India suggests that India was 
aware not only of product classification differences among ITA participants, but that 
HS transpositions (including the HS2007 transposition process) could have substantial implications 
for those classification differences.  
7.172.   We further recall that Members agreed on the procedures to be followed in that transposition 
process, including the relevant correlation tables prepared by the WCO, updated by the 
WTO Secretar iat, and agreed upon by WTO Members.524 In addition to setting forth the correlation 
tables indicating the relevant overlaps in product coverage as between the HS2002 and the HS2007, 
those procedures also indicate that the scope of Members' tariff concessio ns could potentially  change 
through the transposition process.  
7.173.   In this respect, the General Council Decision on HS2007 Transposition Procedures instructs 
that, " to the extent possible , the scope of the concessions and other commitments shall remain 
unchan ged".525 The General Council Decision further indicates that "[a]ny tariff line for which a 
change in the scope of a concession may have occurred due to the complex technical nature of the 
transposition shall be clearly flagged."526 The General Council Decis ion also provides for the 
procedures to be followed in the event that a Member disagrees with the way in which the scope of 
a concession has changed.527 Specifically, paragraph  15 of the General Council Decision states that 
"[w]here the scope of a concession has been modified  as a result of the transposition in a way that 
 
520 See e.g. Panel Report, India – Solar Cells , fn 269 to para. 7.104.  
521 See para. 7.112  above.  
522 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of 
the meeting held on  15 May 2012, G/IT/M/55, para.  3.11. We recall that India adduced these Minutes. (See 
India's first written submission, para. 59 and fn 90 thereto).  
523 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of 
the meeting held on  15 May 2012, G/I T/M/55, para. 3.11.  
524 See paras. 7.126 -7.128  above.  
525 General Council De cision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  
526 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  
527 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  WT/DS582/R  
 
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  impairs the value of the concession, GATT Article XXVIII consultations and renegotia tions shall be 
entered into by the Member concerned."528  
7.174.   Thus, in our view, India was on notice that the scope of its tariff concessions could, 
potentially, be modified through the transposition process. Given that India, as a Member of the 
WTO, is also a member of the General Council, we consider that India was aware of the content of 
the General Council Decision  on HS2007 Transposition Procedures , and of the possibility that its 
tariff concessions might be modified through the transposition process, notwi thstanding that this 
was to be avoided "to the extent possible".  
7.175.   Indeed, India acknowledges that, pursuant to paragraph 15 of the General Council Decision, 
"[i]n ordinary circumstances, it would be the WTO Member … concerned aided by the procedures of 
the transposition exercise that would be responsible for determining whether a transposition process 
resulted in changes to the scope of its concessions".529 India argues, however, that "in the present 
instance, the role of the WTO Secretariat is nevertheless a lso relevant to the extent it was an active 
participant in the transposition process."530 India refers to Professor Waibel's Legal Opinion, which 
states that since "it was the Secretariat rather than India that was holding the pen … the Secretariat 
bears at  least some of the responsibility for the errors in this transposition process".531 Professor 
Waibel's Legal Opinion echoes multiple submissions by India in which India argues that "the 
contested tariff lines – all of which comprised complex technical trans positions which changed the 
scope of India's concessions – were required to be adequately flagged according to the procedure 
for transposition".532  
7.176.   We observe that India, referring to Professor Waibel 's Legal Opinion,  assert s that because 
the WTO Secretari at conducted the transposition of India's WTO Schedule on behalf of India, if there 
was a change in the scope of Members' concessions  then the burden was on the WTO Secretariat to 
identify that change in scope. A close reading of the General Council Decisi on on HS2007 
Transposition Procedures , however, indicates not that the WTO Secretariat had to affirmatively 
identify any changes in concessions, but rather that they had to clearly flag "[a]ny tariff line for 
which a change in the scope of a concession may have occurred due to the complex technical nature 
of the transposition ".533 In other words, the General Council Decision did not place an affirmative 
burden on the WTO Secretariat – or indeed Members preparing their own transpositions – to 
decisively concl ude on the question of whether there was a change in the scope of concessions. 
Rather, in any situation where the scope of a concession "may" have changed due to the "complex 
technical nature of the transposition", this possibility had to be flagged. To th e extent that the WTO 
Secretariat faithfully followed the correlation tables approved by the General Council and the 
Committee on Market Access, this, it seemed, would substantially mitigate against the possibility 
that there would be any disagreement as t o whether the scope of any Member's concessions changed 
through the transposition process. Since these correlation tables were specifically prepared and 
approved in order to indicate the overlaps in product coverages as between the HS2002 and the 
HS2007, i t would seem to follow that if the Secretariat followed those correlation tables (and it is 
uncontested that they did so), then there would have been no change in the scope of Members' 
concessions.  
 
528 General Cou ncil Decision on HS2007 Transposition Procedures, WT/L/673, para. 15. (emphasis 
added)  
529 India's response to Panel question No. 90(b), para. 14.  We note India's argument, regarding 
paragraph 15 of the General Council Decision on HS2007 Transposition Proced ures, that "the phrase 'the scope 
of [the] concession has been modified … in a way that impairs the value of the concession' does not necessarily 
apply to the present circumstance" because "the ordinary meaning of the term impair is to 'weaken or damage 
something so that it is less effective' … [and i]n the present instance, the value of concessions given by India 
has not been impaired, but in fact, has been extended without any reciprocal benefits." (Ibid. para. 16 (quoting 
Cambridge Advanced Learner's Dic tionary online, definition of "impair" 
https://dictionary.cambridge.org/dictionary/english/impair  (accessed 22 May 2022) , (Exhibit IND -85)). We do 
not consider it necessary to take a position on whether  paragraph 15 was applicable to India. Rather, we note 
that the existence of paragraph 15 (along with paragraph 4) put India on notice of the possibility  that the 
transposition process could result in a change to the value of the tariff concessions.  
530 India's response to Panel question No. 90(b), para. 14.  
531 India's response to Panel question No. 90(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on 
Error, (Exhibit IND -79), para. 39).  
532 India's response to Panel question No. 77, para. 59.  
533 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  WT/DS582/R  
 
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  7.177.   Nevertheless, we recognize that the General Council Decis ion on HS2007 Transposition 
Procedures acknowledged that such a possibility could occur, and required the WTO Secretariat (and 
Members in their preparation of their own transpositions) to clearly flag any tariff line for which a 
change in the scope of a co ncession may have occurred due to the complex technical nature of the 
transposition.534 
7.178.   In this context, we recall that on 8 November 2013 the WTO Secretariat transmitted to India, 
via email, the draft HS2007 transposition files prepared by the Secretariat.535 The Secretariat's cover 
email referred to four attached documents: (i) the draft HS07 file; (ii) an Excel version of the 
database; (iii) notes and comments from the Secretariat , titled "HS2007 Transposition Note" 
(hereafter "Transposition Note") ; and (i v) "document G/MA/283 describing in detail the methodology 
used by the Secretariat for th[e] exercise".536 Attachment 3 to that email, containing the 
Secretariat's Transposition Note for India's Schedule, also refers to document G/MA/283. 
Specifically, that  Transposition Note, under the heading "Processing strategy", indicates that "[a] 
detailed description of the transposition methodology is presented in documents G/MA/283 of 
22 May 2012 and WT/L/673 of 18 December 2006."537 
7.179.   Document G/MA/283, titled "Transposition of Members' CTS Files to the HS 2007 
Nomenclature – Notes on Methodology" , was approved by the Committee on Market Access on 
26 April 2012. The introduction to that document explains that it "describes the guidelines that the 
Secretariat int end[ed] to follow for the implementation of the HS 2007 transposition" and "provides 
a detailed description of the methodology that the Secretariat [would] follow in the HS  2007 
transposition exercise".538  
7.180.   At the most general level, document G/MA/283  indicates that two types of changes to 
Members' Schedules could result from the transposition process: (i) "clarifying changes" (which did 
not change the scope of the HS subheadings); and (ii) "structural changes" (which always changed 
product cov erage of one or more HS subheadings).539 Specifically with respect to structural changes, 
document G/MA/283 identifies 196 structural changes, defined by 355 groups of correlations, and 
elaborates that each of these structural changes can be categorized as:  (i) one -to-one relationships, 
where one HS2002 subheading corresponds exactly to one HS2007 subheading; (ii) splitting of one 
HS2002 subheading into two or more new HS2007 subheadings; (iii) merging two or more HS2002 
subheadings into one new HS2007 subhe ading; or (iv) more complex cases, involving both splitting 
and merging of whole or part of different HS2002 subheadings.540 With respect to the last of these 
categories, namely "complex changes", document G/MA/283 explains that:  
A complex change includes both splitting and merging of the whole or part of different 
subheadings. Since a specific change can combine splits and mergers differently, it is 
difficult to find a standard way of dealing with the transposition as it was in the previous 
cases. It is fo r this reason that manual intervention will be required for most of the 
complex changes. Moreover, some complex changes could involve as many as 20 to 30 
subheadings from different HS 2002 headings, Chapters, and even Sections. In order 
to maintain all the se concessions in the new HS 2007 nomenclature, complicated coding 
structures and descriptions need to be introduced. And the situation could be even more 
complicated if national breakouts are involved.541 
7.181.   Document G/MA/283 elaborates that "[t]he categoriza tion for each individual correlation is 
indicated in Annex I".542 Annex I of document G/MA/283 contains a correlation table prepared by 
the WTO Secretariat, which identifies, inter alia , all 355 groups of correlations (of HS2002 tariff 
items to HS2007 tarif f items), the "category" of the correlation group, and any remarks in the WCO's 
concordance table.  
 
534 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. 
535 Email from IDB , WTO , to India  (8 November 2013) , (Exhibit IND -50).   
536 Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50), p.  1. 
537 Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 
Transposition Note XII - India,  p. 1. 
538 G/MA/283, paras. 1-2.  
539 G/MA/283, para. 1.2.  
540 G/MA/283, para. 1.5.  
541 G/MA/283, para. 2.10.  
542 G/MA/283, para. 1.6.  WT/DS582/R  
 
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  7.182.   We observe that all the tariff items that changed during the HS2007 transposition process, 
and in respect of which India invokes Article 48 in this dispute,  are identified in the table of 
correlations set forth in Annex I of document G/MA/283.543 Their inclusion in that table indicates 
that such changes are "structural" in nature. The table also explicitly identifies the changes to these 
tariff items as "compl ex" and includes certain comments on the changes to these tariff items, namely 
that "[t]he structure of heading 85.17 has been revised based on technological progress in the high 
technology sector" and "[a]t the same time, the scope of heading 85.17 has be en expanded and the 
transposition of heading 85.25 entails the transfer of certain products to heading 85.17".544 We note 
that these comments on the changes to these tariff items also appear in document G/MA/W/76, 
containing the correlation tables as commun icated to the WTO by the WCO.545 
7.183.   From the foregoing, we wish to highlight certain salient points. First, regarding the 
WTO Secretariat's communication to India of the draft transposition files: (i) i n its cover email, the 
Secretariat highlighted that docume nt G/MA/283 described in detail the methodology used by the 
Secretariat to conduct the transposition; (ii) in the Transposition Note attached to that email the 
Secretariat again highlighted that a detailed description of its transposition methodology was 
presented in document G/MA/283; and (iii) document G/MA/283 was one of four attachments that 
the Secretariat included in that email to India. We therefore consider that India could not have been 
unaware of the contents of that document, and indeed its impor tance to the transposition process.  
7.184.   Second, regarding the contents of document G/MA/283 itself: (i) this document 
unambiguously identifies the changes from the transposition process resulting in HS2007 tariff items 
8517.12, 8517.61, 8517.62, and 8517.70 a s both "structural" and "complex in nature"; and (ii) the 
comments attached to these tariff items explicitly indicate that the scope of heading 8517 was 
expanded, and included the transfer of certain products to that heading. We note, in this respect, 
that this does not necessarily imply that the scope of Members' tariff concessions was expanded. 
Rather, this reference in document G/MA/283 to an expansion in the scope of heading 8517 simply 
means that products formerly falling under other tariff headings of  the HS2002 had been transferred 
to heading 8517 of the HS2007. It is entirely plausible (and indeed it was the intention of the 
transposition exercise) that there was no change in the scope of the tariff concessions, to the extent 
that the bound duty rate s inscribed in Members' Schedules for products falling under these HS2007 
tariff items, under heading 8517, were identical to the bound duty rates inscribed on the relevant 
correlated tariff items of the HS2002 Schedule. Nevertheless, document G/MA/283 highlighted that 
these changes were complex in nature and emphasized that the product scope of heading 8517 had 
expanded. In our view, by doing so, document G/MA/283 clearly flags that the scope of Members' 
concessions in their HS2007 Schedules, with respect to products falling under heading 8517 (and 
specifically set forth at tariff items 8517.12, 8517.61, 8517.62, and 8517.70 of their HS2007 
Schedules) may have undergone a change as a consequence o f the complex changes to those tariff 
items.  
7.185.   We note India's assertions that "the language in [document G/MA/283] is, at best, 
ambiguous and indicates a restructuring (between sub -heading 85.17 and sub -heading 85.25) and 
not the flagging of a clear expans ion in scope due to a complex technical transposition".546 India 
considers that "the complex technical nature of the transposition was such that India was not put 
on clear notice (via communication from the WTO Secretariat or otherwise) as to the exact chan ges 
being effected due to the increased product complexity of the ITA[] product coverage via the 
contested sub -headings".547  
7.186.   We recall that the General Council Decision on HS2007 Transposition Procedures did not 
require the WTO Secretariat to determine whe ther there had been a "clear expansion" in the scope 
of concessions. Rather, the Secretariat was expected to clearly flag "[a]ny tariff line for which a 
change in the scope of a concession may have occurred due to the complex technical nature of the 
transp osition ".548 Document G/MA/283 identifies the changes to the relevant tariff items as complex 
in nature, indicates that new products have been added to the scope of heading 8517, and highlights 
that the scope of heading 8517 has expanded. This, in our view,  suffices to identify to Members that 
 
543 See para. 7.127  above.  
544 G/MA/283, Annex I, en tries 299 -300, p. 41.  
545 G/MA/W/76, p. 30.  
546 India's response to Panel question No. 90(a), para. 8.  
547 India's response to Panel question No. 90(a), para. 8.  
548 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  WT/DS582/R  
 
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  the changes to these tariff items may have implicated the scope of concessions under those tariff 
items.  
7.187.   We also note India's argument that the Secretariat's Transposition Note contained in its 
email to India "describ ed certain complex changes to India's Schedule in specific relation to 
sub-heading 28.52 and sub -heading 3006.10" and India "sought clarifications and commented on 
HS 2007 sub -heading 28.52 via an email to the Secretariat".549 In India's view, the Secretari at's 
Transposition Note was an "exhaustive document in relation to entries that were sought to be 'clearly 
flagged' for the exercise of transposition".550  
7.188.   In this respect, we emphasize that document G/MA/283 is itself explicitly referenced in that 
same Tra nsposition Note. The Transposition Note, the cover email, and the inclusion of document 
G/MA/283 in the Secretariat's email to India all advised India to scrutinize document G/MA/283, 
which unambiguously identifies a significant number of changes occurring  during the transposition 
process as "complex" in nature. Moreover, a very brief review of the "comments" included in the 
correlation table contained in document G/MA/283 would have enabled India to observe that, 
according to the WCO, the product scope of numerous  headings and subheadings w as expanded 
through the transposition process, including heading 85.17.551 The fact that these possible changes 
of scope, all of which related to explicitly complex changes, were comprehensively flagged in 
document G/MA/28 3 means that India is incorrect that the only complex changes flagged by the 
Secretariat were those identified in the Secretariat's Transposition Note.  
7.189.   Moreover, we note that the specific section of the Secretariat's Transposition Note that, in 
India's vi ew, contains this allegedly "exhaustive"552 list of complex changes possibly changing the 
scope of the concessions appears under the subheading, "Additional Technical Issues". That is one 
of six subheadings in the Transposition Note: (i) "Introduction"; (ii ) "Sources"; (iii) "Processing 
strategy"; (iv) "Additional Technical Issues"; (v) "Problems encountered during processing"; and (vi) 
"Content of HS07 transposition database".553 Under this subheading, "Additional Technical Issues", 
the Transposition Note identifies certain issues pertaining to: (i) "AG – non-AG breakdown"; and (ii) 
"Simplified correlations".554 Under "[s]implified correlations", the Transposition Note states that 
"[b]ased on an analysis of HS2007 changes included in the WCO correlation table, the Secretariat 
proposed the simplification of some correlations as described in detail in Annex I of G/MA/283. If a 
Member intends to make use of the standard correlation tab le or take other approaches, it would 
need to inform the Secretariat."555 The Transposition Note further states that:  
 
549 India's response to Panel question No. 90( a), para. 10.  
550 India's response to Panel question No. 90 (a), para. 10.  
551 Document G/MA/283 indicates, inter alia , the following: "[t]he scope of subheading 3006.10 was 
expanded to cover also sterile absorbable surgical or dental yarn and sterile surgical or dental adhesion 
barriers, whether or not absorbable";  "[t]he scope of heading 38.21 was expanded to cover also prepared 
culture media for maintenance of micro -organisms and prepared culture media for the development and 
maintenance of plant, human or animal cells"; "[t]he scope of new subheadings 7321.19 and  7321.89 has 
been expanded to cover other cooking appliances and plate warmers, and other appliances of heading 73.21"; 
"the scope of heading 85.17 has been expanded"; "[t]he scope of subheading 9030.20 has been expanded to 
cover all kinds of oscilloscopes  and oscillographs"; "[t]he scope of instruments and apparatus of subheadings 
9030.31 and 9030.39 is no longer limited to instruments and apparatus without a recording device". 
(G/MA/283, Annex I, pp. 28, 30, 37, 41 , and 43).  
552 India's response to Panel qu estion No. 90( a), para. 10.  
553 Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 
Transposition Note XII - India, pp. 1-3. 
554 Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS200 7 
Transposition Note XII - India, p. 1. The technical issues arising in relation to "AG – non-AG breakdown" 
pertained to specific issues arising due to negotiating texts as well as two cases "where the HS2007 
transposition results in a mix of AG and non -AG products". (Ibid.) . 
555 Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 
Transposition Note XII - India, p. 2. We observe that document G/MA/283 describes in detail how there was a 
"need for simplification", in ord er to avoid excessively complex Schedules which would undermine the purpose 
of the transposition exercise. Specifically, according to document G/MA/283:  
In the HS 2002 transposition exercise, a significant amount of manual work by the Secretariat 
focused on a number of changes relating to chemical wastes in HS Chapter 38 and to paper in HS 
Chapter 48. These changes involved many subheadings and implied very complicated correlations 
between the HS 1996 and HS 2002. Since the methodology followed by the Secr etariat was a pure 
technical transposition without altering any concessions for these subheadings, the result was 
complex coding structures, and sometimes very complex technical descriptions, which had to be WT/DS582/R  
 
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  Two cases are described in G/MA/283 for new HS2007 heading 28.52 and subheading 
3006.10. Although the scope of HS2007 subheading 3006.10 was expanded to cover 
items classified under 34 different HS2002 subheadings, the main property of this 
subheading remains the same. Thus, the new HS2007 subheading 3006.10 is kept as 
one tariff line without adding any new breakouts for the ex -outs. In the case of 
subheading 2852.00 a simple average of all the HS2002 tariff lines under the 29 HS2002 
candidate subheadings was used for the duty of the new HS2007 subheading. The 
binding coverage was expanded if the subheading is partially bound, that i s the new 
HS2007 subheading is fully bound.  
7.190.   It is not clear to us why India interpreted this paragraph as setting forth an exhaustive list 
of tariff items whose scope may have changed due to complex changes occurring during the 
transposition process. Notwi thstanding that this paragraph of the Transposition Note does not 
purport to do so, a cursory review of document G/MA/283 would have revealed to India numerous 
other tariff items that were flagged by the Secretariat as having undergone complex changes, and  
whose scope was indicated by the WCO to have changed. We understand from the content of the 
Transposition Note that the reason two such instances are specially identified in this paragraph of 
the Transposition Note is because they were subject to a very s pecific issue addressed by the 
Secretariat, namely the simplification  of complex changes. We understand that these changes were 
therefore particularly worthy of mention. This did not mean – and the Transposition Note did not 
assert or otherwise represent – that these were the only two instances of complex changes that may 
have changed the scope of concessions.  
7.191.   Thus, with respect to whether the WTO Secretariat complied with its procedural obligations 
such as to put India on notice as to possible changes of scope, we consider that: (i) pursuant to the 
General Council Decision on HS2007 Transposition Procedures, the WTO Secretariat was required to 
flag any tariff item for which a change in the scope of a concession "may have occurred " due to the 
complex techni cal nature of the transposition556; and (ii) through document G/MA/283 (and the 
numerous references to this document in its communication to India), the WTO Secretariat satisfied 
that requirement. In our view, the WTO Secretariat clearly flagged all tariff items (including the tariff 
items at issue in this dispute)  for which a change in the scope of the concession "may have occurred" 
due to the complex technical nature of the transposition.557  
7.192.   We recognize that both parties to this dispute assert that the WT O Secretariat did not flag 
the relevant tariff items at issue.558 We have addressed India's arguments in this respect above. As 
to the European Union, we note the European Union's view that " the transposition from HS2002 to 
HS2007 did not modify the scope o f the tariff concessions at issue in this dispute " and that 
"[t]herefore, there was nothing to be 'flagged ' by the Secretariat ".559 The European Union's 
argument appears to imply that the WTO Secretariat was required to flag those tariff items for which 
there had, in fact, been a change in the scope of tariff concessions. We recall, however, that the 
Secretariat was not required to make such a determination. Rather, it was required to flag those 
tariff items with respect to which a change in product scope may have occurred  due to the complex 
 
introduced in order to retain all the details of  concessions. The advantage of this methodology is 
that it is technically correct (in the sense of representing exactly the same concessions as before), 
and thus it helps Members to avoid potential disputes and lengthy negotiations on changes in the 
conces sions resulting from the transposition. On the other hand, the disadvantage is that in many 
cases it resulted in very complicated product codes and descriptions, which often deviate from 
those found in national applied tariff schedules and caused difficult ies when making links between 
bound and applied tariffs. Moreover, this practice led to a proliferation of HS 1996 duty rates in HS 
2002 tariff lines which may in fact represent somewhat theoretical allocations, covering little or no 
actual trade. In fact,  some of the new breakouts might be virtually empty, with no traded products 
actually being classified under them. It could therefore be argued that the complication of the WTO 
schedules of concessions is in contradiction with the original purpose of these  HS changes, namely, 
a simplification of the tariff structure to better deal with current needs and to allow for a comparison 
of the bound and the applied duties.  
(G/MA/283, para. 4.2)  
556 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  (emphasis added)  
557 General Council Decision on HS2007 Transposition Procedures, WT/L/673,  para. 4.  
558 India's second written submission, paras. 29 -30; European Union's opening statement at the first 
meeting of the Panel, para. 47 and comments on India's response to Panel question No. 90(a)(i) and (ii), para. 
4. 
559 European Union's comments on India's respo nse to Panel question No. 90(a)(i) and (ii), para. 4.  WT/DS582/R  
 
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  nature of the transposition .560 In our view, the Secretariat did exactly that with respect to all relevant 
complex structural changes. The onus then shifted to the Members, in reviewing these complex 
changes, to assess whether they considered that "the scope of a concession has been modified as a 
result of the transposition in a way that impairs the value of the concession".561 Thus, pursuant to 
the General Council Decision on HS2007 Transposition Procedures , the W TO Secretariat was only 
required to flag those tariff items with respect to which the product scope of the concession may 
have changed. In our view, the WTO Secretariat did precisely that, and the European Union's 
arguments do not imply otherwise.  
7.193.   From th e foregoing we consider that India was on notice, prior to and during the 
transposition process, that the HS2007 transposition process could have substantial implications for 
the classification differences among ITA participants regarding their ITA underta kings. Furthermore, 
as a general matter, India was on notice, throughout the transposition process, that the scope of its 
tariff concessions could change. Moreover, we consider that the WTO Secretariat clearly flagged the 
relevant tariff items at issue in this dispute as having undergone complex changes that may have 
changed the scope of India's concessions.  
7.194.   Before concluding as to whether the foregoing factual circumstance satisfies the 
requirements of Article 48(2), we note India's interpretation of the legal standard under Article 48 
such that, "for a state to be put on notice of a possible error, the circumstances should be such that 
no interested party should fail to notice the error or be under a misapprehension about it."562 As 
support for this interp retation, India refers to two judgments by the International Court of Justice 
(ICJ), in which cases error was invoked as a basis to invalidate a State's consent to be bound by a 
treaty. India refers to Case concerning Sovereignty over Certain Frontier Land  (Belgium v. 
Netherlands) , where "in the contested map 'which was to become part of the Boundary Convention, 
it was shown clearly, and in a manner which could not escape notice, that the disputed plots belonged 
to Belgium'".563 India also refers to Case concerning the Temple of Preah Vihear (Cambodia v. 
Thailand) , where the ICJ concluded that "the map itself drew such pointed attention to the Preah 
Vihear  region that no interested person, nor anyone charged with the duty of scrutinizing it, could 
have failed  to see what the map was purporting to do in respect of that region".564 India also states 
that "Article 48 of the VCLT does not regard as relevant whether the error was the result of an 
intentional act or of negligence, or of bad faith".565 
7.195.   We note that the  two findings relied upon by India as support for its interpretation are both 
factual findings regarding the circumstances of those cases. In neither case did the ICJ conclude as 
a matter of legal interpretation that a State can only invoke an error if the  State could not but have 
been aware of the existence of the error. Rather, the ICJ's factual findings indicate that, regardless 
of how high or low that legal standard may be, the circumstances of those cases were such that the 
States in question must have  been aware of the error.  
7.196.   We also note that neither of the cases cited by India pertain s to the application of Article 48 
of the Vienna Convention. Indeed, we find the plain language of Article 48(2) impossible to square 
with India's interpretation of the  legal standard applicable thereto. Article 48(2) refers to the 
invoking State being put on notice of "a possible error". India asserts that for a State to be put on 
notice of a possible error , the circumstances should be such that "no interested party sho uld fail to 
notice the error ".566 India's interpretation of Article 48(2) deletes the word "possible", and requires 
that the State in question be unmistakeably aware of the actual error.  
7.197.   In our view, Article 48(2) is clear on its face. Contrary to India's argument that a State must 
necessarily  have known of the error in order to meet the standard of being "put on notice of a 
 
560 General Council Decision on HS2007 Transposition Procedures, WT/L/673,  para. 4.  
561 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 15.  
562 India's response to Panel question  No. 90( a), para. 11. See also India's second written submission, 
para. 29.  
563 India's second written submission, para. 29 (quoting  ICJ, Case concerning Sovereignty over Certain 
Frontier Land (Belgium v. Netherlands) , Judgment of 20 June 1959: ICJ Reports 1959, p. 209, (Exhibit IND -2), 
pp. 225 -227).  
564 India's second written submission, para. 29 ( quoting  ICJ, Case concerning the Temple of Preah 
Vihear  (Cambodia v. Thailand ), Merits, Judgment of 15 June 1962: ICJ Reports 1962 , p. 6, (Exhibit IND -3), at 
p. 26) . 
565 India's response to Panel question No. 20, para. 67.  
566 India's first written submission, para. 73.  (emphasis added)  WT/DS582/R  
 
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  possible error", we consider that Article 48(2) merely requires that the State was on notice of the 
possibility that such an error cou ld occur.  
7.198.   Applying that legal standard to the facts, as described above, we recall that India alleges 
that its "error" at the time of the certification of its Schedule was its mistaken assumption that the 
scope of its WTO tariff commitments would not be e xpanded beyond the scope of its ITA 
undertakings. We consider that India was on notice that the HS2007 transposition exercise could 
have implications for the classification differences of ITA participants regarding their ITA 
undertakings. Furthermore, in t he circumstances of the HS2007 transposition exercise, India was 
on notice of the possibility that the scope of the concessions set forth in tariff items 8517.12, 
8517.61, 8517.62, and 8517.70 of its HS2007 Schedule may have expanded as a consequence of 
the complex changes to those tariff items.567 If India was on notice of the possibility that its WTO 
tariff commitments in its HS2007 Schedule may have expanded from the scope of the commitments 
set forth in its HS2002 Sche dule, then India was also necessarily on notice that its WTO tariff 
commitments may have expanded as compared to the scope of its commitments in its HS1996 
Schedule, and the scope of its ITA undertakings. In our view, therefore, India was put on notice of 
the possibility of an "error", as India defines its error, within the meaning of Article  48(2).  
7.199.   It follows that, even if India had satisfied the requirements of Article 48(1), the requirements 
of Article 48(2) would not have been satisfied. Thus, pursuant to the terms of Article 48(2), 
paragraph 1 of Article 48 "shall not apply", and India's plea of error under Article 48 fails. Having 
reached this conclusion, it is unnecessary  for us to determine whether India "contributed by its 
conduct" to the alleged er ror. Nevertheless, we consider it useful in the circumstances of this dispute 
to make certain observations regarding this issue .  
7.3.3.3.3.3   Whether India contributed by its own conduct to the alleged expansion in the 
scope of its WTO tariff commitments from its ITA undertakings  
7.200.   Turning to assess whether India contributed by its own conduct to the alleged error, we note 
that this entails examining whether India contributed to the alleged expansion of its WTO tariff 
commitments from its ITA undertakings.  
7.201.   We recall tha t, having scrutinized the relevant documents available to us concerning the 
procedures and obligations governing the transposition process, we see no indication that in the 
HS2007 transposition process WTO Members or the Secretariat were expected to identi fy any 
differences in the product scope of the ITA as compared to the product scope of the HS2007. It 
appears to us that no Member, in preparing its own Schedule, was expected to identify any such 
differences in product coverage. This similarly applies to the WTO Secretariat, in its preparation of 
developing countries' transpositions on their behalf. Rather, Members and the WTO Secretariat were 
explicitly told by the General Council and the Committee on Market Access to follow the 
HS2002 -HS2007 correlation tables that had been reviewed and approved by Members.  
7.202.   We also note that India had multiple opportunities to intervene in the transposition process 
and to make clear that its consent to be bound by its transposed Schedule was contingent on the 
scope of its WTO tariff commitments being limited to the scope of its ITA undertakings. Moreover, 
India could have explicitly indicated to Members and the WTO Secretariat that its interpretation of 
those undertakings was such that they were static in nature, and di d not extend to new products 
resulting from technological advances that did not exist at the time that India joined the ITA.  
7.203.   India could have objected or made comments during any of the multilateral sessions 
reviewing and approving the correlation tables to be used by Members and the WTO Secretariat 
during the transposition process (i.e. the General Council when it decided on the Transposition 
Procedures and the Committee on Market Access when it approved document G/MA/283). India 
could also have objected or made comments when it received the draft transposition files from the 
WTO Secretariat in 2013. India could further have raised objections or made comments during the 
 
567 As to India's invocation of error with respect to tariff item  8504.40, we recognize  that India could not 
have been on notice of any possible error, since this tariff item  did not change during the transposition 
process. However, the fact that this tariff item  did not change during the transposition process also means that 
there could not  have been any error, on the part of India, during the transposition process. (See generally 
G/MA/W/76 ; G/MA/283; Email from IDB , WTO, to India  (8 November 2013) , (Exhibit IND -50); and Email from 
Market Access Intelligence Section , WTO, to India  (12 Februa ry 2014) , (Exhibit IND -51)). WT/DS582/R  
 
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  multilateral review session held in April 2015. Notwithstanding these three specific op portunities set 
forth in the transposition procedures, India, on its own initiative, could have raised any concerns or 
objections either bilaterally (to the WTO Secretariat) or multilaterally (in the Committee on 
Market  Access or other relevant WTO committ ees) at any time during the nine -year transposition 
process, which started in 2006 and (in the case of India) ended in 2015. India did not do so.   
7.204.   Additionally, we recall that India itself was aware of Members' differences of opinion with 
respect to produ ct classification under the ITA.568 Indeed, India was also on notice of the possibility 
that such differences of opinion with respect to product classification could have implications for the 
HS2007 transposition process.569 To the extent that India remained  silent on such issues in the 
context of the transposition exercise, WTO Members and the WTO Secretariat could only assume 
that India was satisfied that the transposition exercise would follow the multilaterally approved 
correlation tables.  
7.205.   In our view, i f India had raised its concerns, they could have been appropriately addressed 
in a timely fashion. Indeed, if India's concerns were not addressed in a manner satisfactory to India, 
then India could have refused to certify the changes to its WTO Schedule. B y failing to raise its 
concerns, and by then agreeing to certify the changes to its WTO Schedule, India agreed to become 
bound by the HS2007 Schedule, including with respect to any tariff items whose scope may have 
expanded. Moreover, by agreeing to the re levant correlation tables that unambiguously extended 
India's tariff concessions to the products at issue in this dispute, it appears to us that any differences 
in the scope of the ITA and the scope of India's WTO tariff commitments (regardless of whether the 
ITA is static in scope) are directly attributable to India's silence.  
7.206.   In short, we consider that India had both specific and general opportunities to highlight to 
Members and to the WTO Secretariat any concerns that it may have had regarding the relat ionship 
between the ITA and its HS2007 Schedule. India did not do so. In our analysis of Article 48(1) above, 
we concluded that India's failure to raise such concerns means that there is no evidence that India's 
concerns in this respect constituted an "ess ential basis" for its consent to be bound.570 For the 
purposes of applying Article 48(2), we moreover note that India's failure to raise those concerns 
would appear to have directly contributed to the alleged error arising in the first place.  
7.207.   We also highl ight that, as a Member of the WTO, it was India's responsibility to verify the 
scope of its legal commitments before undertaking to accept those commitments. Indeed, the 
transposition procedures , which had been  approved by India, explicitly required the Me mbers to 
assess whether the "scope of a concession has been modified as a result of the transposition in a 
way that impairs the value of the concession". This was not a minor responsibility. Moreover, India 
has not asserted that its customs officials or go vernment representatives lacked sufficient expertise 
to properly review or understand the implications of India's commitments as set forth in the draft 
Schedule prepared by the WTO Secretariat. India's failure to properly review its legal commitments 
is not a "minor and excusable"571 contribution to the creation of the alleged error, and would indeed 
seem to be a significant contributing factor in causing the error to occur, especially taking into 
account that India had already approved the correlation table s relied upon by the Secretariat, and 
was on notice that the changes to the tariff items at issue were complex, accounted for technological 
developments, and, in some instances, might have increased the scope of the tariff items. 
7.208.   We note that India appears  to consider that other  actors, such as other WTO Members and 
the WTO Secretariat, also contributed to the error. We understand however, that the 
WTO Secretariat correctly followed the transposition procedures that had been multilaterally agreed 
(including by India). While India has asserted that the Secretariat failed to follow the transposition 
procedures by failing to flag the relevant tariff items, this is contradicted by the existence of 
document G/MA/283, which was referred to numerous times in the Secretariat's communications to 
 
568 See para. 7.112  above.  
569 We recall that in the Committee of Participants on the Expansion of Trade in Information Technology 
Product s, India's delegate stated that "[o]n the issue of classification divergences, … it was an issue that 
comprised 55 products and had not been resolved for the past 15 years. He doubted that one could just brush 
it aside in terms of saying that these were co mplicated by HS96, HS2002 or HS2007 nomenclature changes as 
otherwise the participants would have actually solved the problem in the first place." (Committee of 
Participants on the Expansion of Trade in Information Technology Products, Minutes of the meeting held on  
15 May 2012, G/IT/M/55, para. 3.11) . 
570 See para. 7.155  above.  
571 Prof. M. Waibel, Legal Opinion on Error , (Exhibit IND -79), para. 39 . WT/DS582/R  
 
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  India, and which was included  in the bundle of documents transmitted by the Secretariat to India 
with the draft transpos ition files.572 Moreover, since India did not communicate any concerns 
regarding the ITA to the WTO Secretariat during the transposition process, the WTO Secretariat 
could not have contributed to India's apparent misunderstanding regarding the scope of its 
commitments under the ITA and the Schedule (even assuming that there was an increase in the 
scope of those commitments).  
7.209.   As to the contribution of other WTO Members, we note that, because the transposition 
procedures had been multilaterally approved and w ere followed to the letter, and since India itself 
had approved both the transposition procedures as well as the draft files prepared by the 
WTO Secretariat, there was no reason for any other Member to doubt India's willingness to be bound 
by the changes t o its Schedule. Indeed, even assuming arguendo  that there was any expansion of 
India's commitments, other WTO Members would have been justified in assuming that since all 
Members had approved the correlation tables, and since India had already approved the  draft 
Schedule, India was content with expanding the scope of its commitments. Thus, India's error cannot 
be attributed to other WTO Members or the WTO Secretariat.   
7.210.   In our view, India's inaction in the circumstances of its transposition would seem to sa tisfy 
the standard of "contributing by its conduct" to the error. We nevertheless do not consider it 
necessary to resolve this interpretative question, in light of our conclusion above that India was 
undoubtedly put on notice of the possibility of the erro r.  
7.3.3.3.3.4   Conclusion regarding Article 48(2)  
7.211.   We consider that, even assuming the existence of an error, India was put on notice of the 
possibility that the scope of its tariff concessions under heading 8517 of its HS2007 Schedule may 
have expanded from the scope  of its tariff concessions set forth in its HS2002 Schedule. 
Consequently, India was also on notice that the scope of its WTO tariff commitments may have 
expanded from its ITA undertakings. While India's actions (or inaction) could also be read as having 
contributed to that error, we do not consider it necessary to make a definitive finding on that 
question. It suffices to note that India was on notice of the possibility that its tariff concessions may 
have been expanded. Consequently, pursuant to the terms  of Article 48(2), India may not rely on 
Article 48(1) to invalidate its WTO Schedule , in whole or in part . 
7.3.3.4   Conclusion  
7.212.   We have concluded that India has failed to demonstrate that an essential basis for its consent 
to be bound by its HS2007 Schedule was its  assumption that its WTO tariff commitments would not 
be expanded beyond the scope of its ITA undertakings. We have also concluded that , during the 
transposition process, India was on notice of the possibility that the scope of its WTO tariff 
commitments c ould be expanded from the scope of its ITA undertakings.  
7.213.   For these reasons we do not consider that the circumstances of the present case satisfy the 
substantive requirements of Article s 48(1) and (2) of the Vienna Convention. There is therefore no 
basis u nder Article 48 for us to read aspects, or the entirety, of India's WTO Schedule as invalid. It 
is also unnecessary for us to address the parties' arguments regarding the applicability of Articles 
44, 45 and 48 of the Vienna Convention, or the substantive requirements under Articles 44 and 45.  
7.3.4   India's rectification request under the 1980 Decision  
7.3.4.1   Introduction  
7.214.   As described in section 2.3 above, on 25 September 2018 , India requested a rectification of 
its WTO Schedule in accordance with the 1980 Decision, "for the purpose of correcting certain errors 
contained in its HS2007 Schedule".573 India stated that the supposed errors occurred while 
 
572 India's only ground for arguing that the Secretariat did not follow those transposition procedures is 
that "the contested tariff items were not adequately flagged". (India's response to Panel question No. 77, 
paras. 59 and 61 . See also India's response to Panel question No. 95, para. 32 ). We have addressed that 
argument and dismissed it. In our view, the Secretariat did indeed follow the agreed -upon transposition 
procedures, including with respect to flagging possible changes of product scope.  
573 India's rectification request , G/MA/TAR/RS/572 , (Exhibit IND -78), p. 1.  WT/DS582/R  
 
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  transposing its HS2002 Sched ule to its HS2007 Schedule.574 India also stated that the draft 
rectification did not "alter India's commitments either under GATT 1994 or the ITA[], as contained 
in the WTO document WT/Let/181 dated 2 October 1997."575  
7.215.   Several WTO Members, including the Eu ropean Union, objected to India's draft 
rectification.576 The European Union took the view that the proposed rectification "did not constitute 
a change of a purely formal character, but rather that it altered the scope of India's GATT 1994 
commitments." The  European Union "considered that the changes were not within the terms of 
paragraph 2 of the 1980 Decision".577 
7.216.   In these proceedings, India argues that through its rectification request it sought to correct 
an "inadvertent error of a purely formal character", and that the draft rectification was in accordance 
with the 1980 Decision.578 According to India, the HS2007 Schedule is to be read in light of the 
originally negotiated concessions such that products that "have never been negotiated upon remain  
outside the scope of the 2007 Schedule."579 India requests us to "recognize and declare that the 
Draft Rectification was of a purely formal character and the European Union's objections on the same 
were unfounded."580 Specifically, India requests us to:  
[A]ssess the objection raised by the European Union. If the Panel were to find that the 
ITA[] did not cover the products at issue, it will be evident that the Draft Rectification 
was of a purely formal character. Therefore, the objection raised by the Europea n Union  
to the Draft Rectification would be unfounded in law and would be contrary to Paragraph 
3 of the 1980 [Decision]. Further, such a determination shall also establish that the 
European Union's action impeded India's right to rectify its Schedule under the 1980 
[Decision].581 
7.217.   India clarifies that it does not seek the certification of the draft rectification by the Panel 
through the dispute settlement mechanism.582 
7.3.4.2   Main arguments of the parties  
7.218.   India argues that the European Union "acted bey ond the prescriptions of Paragraph 3 of the 
1980 Decision by raising an objection unfounded in law", and that "the European Union's objections 
were an impediment to India's right to make a formal rectification to its Schedule of Concessions 
under the 1980 [Decision]."583 As to the legal basis for the Panel to make findings requested by 
India, India maintains that the 1980 Decision is a "covered agreement" within the meaning of Article 
1.1 of the DSU, by virtue of it being an "other decision[] of the Contract ing Parties to the GATT  1947" 
within the meaning of paragraph 1(b)(iv) of the GATT 1994 .584 Therefore, India posits that  the Panel 
has authority to interpret the draft rectification and clarify the rights and obligations of the Members 
under it pursuant to Article 3.2 of the DSU.585 India adds that Article 11 of the DSU obliges the Panel 
to "objectively assess the facts of the dispute and examine the conformity of Members' actions with 
 
574 India's rectification request , G/MA/TAR/RS/572 , (Exhibit IND -78), p. 1.  
575 India's rectification request , G/MA/TAR/RS/572 , (Exhibit IND -78), p. 1.  
576 Council for Tr ade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, 
para. 18.4 ; Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes 
of the meeting held on 30 October 2018 , G/IT/M/69, paras. 1.19 -1.21; Committee on Market Access, Minutes 
of the meeting held on  9 October 2018,  G/MA/M/68, para. 134 . 
577 Council for Trade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, 
para. 18.4.  
578 India's first written submission, para. 26.  
579 India's first written submission, para. 53 . See also India's  response to Panel question No. 50, para. 
109. 
580 India's first written submission, para. 53.  
581 India's response to Panel question No. 74, para. 53. See also India's second written submission, 
para. 166. 
582 India's second written submission, para. 167.  
583 India's response to Panel question No. 74, para. 49 . See also India's  second written submission, 
para. 160.  
584 India's response to Panel question No. 74, paras. 50 -51; second written submission, paras. 161 -162 
(referring to Panel Report, US – FSC, para. 7.63).  
585 India's response to Panel question No. 74, para. 52; second written submission, para. 164 (referring 
to Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 53).  WT/DS582/R  
 
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  covered agreements."586 India also submits that the Panel has an obligation  to assess "if the 
objection raised by the European Union is in good faith or if it is merely an instrument to force India 
to grant concessions on products, which it never agreed to."587 In response to an argument by the 
European Union that India's request is a "counter -claim", India submits that "India's claim with 
regard to the Draft Rectification is not a counter -claim".588 India submits that given that in its view 
the 1980 Decision is a "covered agreement", the Panel is "obligated to assess the complaint in light 
of the 1980 [Decision]" . For India, "[a]ny position to the contrary would result in the respondents 
not being able to raise any defence in proceedings before the Panel. India considers the assessment 
of the complainant's objections to the Draft Re ctification essential for an objective assessment of 
the facts of the dispute under Article 11 of the DSU."589 Moreover, India posits that if it is found that 
the proposed draft rectification is of a purely formal character, "it would lead to the conclusion  that 
the bound rates assigned to the products at issue were clearly in error and that such concessions 
were capable of rectification via the 1980 [Decision]."590 India also contends that as a consequence 
of such a finding, "it would be found that the bound  rates assigned to the products at issue are a 
consequence of a formal error and are therefore severally void. Therefore, there can be no violation 
of Article II:1(a) and Article II:1(b) of the GATT if the contested tariff lines of India's schedule of 
concessions are void."591 
7.219.   For its part, the European Union submits that there is no legal basis, under the DSU, for the 
Panel to recognize and declare that the Draft Rectification was of a purely formal character and that 
the European Union's objections on the same were unfounded.592 The European Union maintains 
that the 1980 Decision is not an "other decision[] of the Contracting Parties to the GATT 1947" within 
the meaning of paragraph 1(b)(iv) of the GATT 1994 , and is therefore not a covered agreement 
within t he meaning of Article 1.1 of the DSU.593 The European Union also indicates that because its 
panel request has not referred to India's draft rectification or to the 1980 Decision, the Panel lacks 
the authority, pursuant to its terms of reference, to make fin dings regarding India's draft rectification 
or the 1980 Decision.594 The European Union argues that India's request in this respect is a 
"counter -complaint" within the meaning of Article 3.10, second sentence, of the DSU because "India 
claims that the Europ ean Union violated paragraph 3 of the 1980 [Decision] by objecting to India's 
Draft Rectification Request and requests the Panel to make a positive finding to that effect".595 Thus, 
according to the European Union, Article 3.10 of the DSU precludes India fr om bring ing "counter -
claims against the complaining party".596 The European Union also maintains that its objection to 
the proposed rectification was "entirely founded" because "it was manifest that the proposed 
rectification was not of 'purely formal chara cter'".597 The European Union also considers that the 
error invoked by India under Article 48 of the Vienna Convention in these proceedings and the error 
invoked by India in support of its request for a rectification under the 1980 Decision are "legally 
distinct and manifestly incompatible with each other."598 For the European Union, the error alleged 
by India under Article 48 of the Vienna Convention in this dispute is "a very material one" and is "an 
error in India's consent relating to the scope of the commitments included in the 2007 certification" 
 
586 India's response to Panel question No. 74, para. 52.  
587 India's response to Panel que stion No. 74, para. 52; second written submission, para. 165.  
588 India's response to Panel question No. 97, para. 35.  
589 India's response to Panel question No. 97, para. 36.  
590 India's response to Panel question No. 74, para. 55. See also India's response to Panel question 
No. 97, para. 35.  
591 India's second written submission, para. 167.  
592 European Union's second written submission, paras. 19 -42. 
593 European Union's second written submission, paras. 22 -29. 
594 European Union's response to Panel question No. 96, p ara. 26.  
595 European Union's response to Panel question No. 98, paras. 28 -32. 
596 European Union's second written submission, para. 31.  
597 European Union's second written submission, para. 33. Addressing India's arguments that "[i]f the 
Panel were to find that  the ITA[] did not cover the products at issue, it will be evident that the Draft 
Rectification was of a purely formal character", the European Union submits that the "relevant comparison is 
between the existing text of a Member's WTO schedule, i.e. in thi s case the text of India's certified [WTO] 
Schedule following the transposition to HS 2007, and the text of the proposed rectification to that schedule". 
(Ibid. paras. 36 -37 (quoting India's response to Panel question No. 74, para. 53) ). For the European U nion, 
when that comparison is made, "it is beyond dispute that the rectification requested by India would 
substantially 'alter the scope of the concession' and cannot therefore be regarded as being of 'purely formal 
character'". ( Ibid. para. 38 (quoting In dia's response to Panel question  No. 53, para. 4, and No. 65, para. 26)).  
598 European Union's response to Panel question No. 74, para. 100.  WT/DS582/R  
 
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  but "not  an error in the text of the treaty"; while the error invoked under the 1980 Decision was 
allegedly a purely formal error, and was an error in the text of the treaty.599  
7.3.4.3   Main arguments of the third parties  
7.220.   Brazil submits that because "[t]here seems to be agreement amongst the parties that India's 
draft rectification has not been certified …, India's schedule has not been modified by virtue of the 
draft rectification, since the procedures under the 1980 Decision have not been completed given the 
objectio ns that were raised."600 Brazil therefore "does not see any basis in the DSU or in the Panel's 
terms of reference in [this] dispute[] for the Panel to overturn the objections that were raised in 
connection with India's draft rectification."601 
7.221.   Canada conside rs that a determination on whether India's draft rectification was of a purely 
formal character is not within the purview of a panel, and would amount to the Panel substituting 
its views for those of WTO Members, thereby overriding the procedures that have  been agreed to 
by all WTO Members.602 Canada also maintains that even assuming arguendo  the Panel had capacity 
to consider India's request for findings, the Panel would still need to analyse whether the products 
at issue were covered by the tariff items as  amended by the draft rectification, and determine 
whether India imposes on those products duties in excess of those set forth in its Schedule.603 
7.222.   Japan submits that there is no legal basis for the Panel to make the findings requested by 
India under the DSU  or any other covered agreement. Japan maintains that such findings go against 
the Panel's mandate, which is limited by Articles 3.2 and 11 of the DSU.604 Japan adds that there is 
no absolute right for a proposed rectification to be automatically accepted, or a corresponding 
obligation of other Members to accept that rectification request.605 Moreover, Japan considers that 
it is not for the Panel to rule on the nature of a rectification request, or objections on that request. 
Rather, when a Member's rectifica tion request is objected to, that Member ought to follow the 
procedure set out in Article XXVIII of the GATT 1994 in order to effectuate the proposed change .606 
Japan also argues that, given that WTO Members other than the complainants in this and the paral lel 
disputes objected to India's draft rectification, any findings by the Panel would risk undermining the 
rights of those WTO Members and raise serious systemic concerns regarding of the reliability and 
predictability of the system of tariff concessions.607 Finally, Japan maintains that any findings by the 
Panel on India's request would be inutile  because those findings would not affect the validity of 
objections by other WTO Members, and until the draft rectification is certified in accordance with the 
1980 Decision, the proposed changes would have no legal effect.608 
7.223.   Korea submits that the Panel's mandate is confined to its terms of reference, which do not 
include recognizing and declaring the invalidity of the complainant's objections to India's rectificat ion 
request.609 Further, Korea considers that negotiation and agreement among Members are the 
"essence of the modification and/or rectification procedure" under Article XXVIII of the GATT 1994 
and the 1980 Decision. Therefore, Korea is concerned that the po ssibility of negotiations under those 
procedures would be undermined if a Member's objection to a proposed rectification is declared 
unfounded by the Panel.610 Korea maintains that regardless of the Panel's findings on India's draft 
rectification, India's o bligations are to be assessed in light of India's existing Schedule because 
"treaty terms are not based on a subjective intent of one Party, but rather on a common intent of 
all relevant Parties interpreted through the general rule of treaty interpretation ".611  
 
599 European Union's response to Panel question No. 74, paras. 101-102. 
600 Brazil's third -party response to Panel question No. 19, para. 13.  
601 Brazil's third -party response to Panel question No. 19, para. 14.  
602 Canada's third -party response to panel question No. 19, para. 14, and No. 20, para. 16.  
603 Canada's third -party response  to panel question No. 20, para. 17.  
604 Japan's third -party response to Panel question No. 19, para. 23.  
605 Japan's third -party response to Panel question No. 19, para. 24.  
606 Japan's third -party response to Panel question No. 19, para. 25.  
607 Japan's third -party response to Panel question No. 19, para. 26.  
608 Japan's third -party response to Panel question No. 20, paras. 31 -32. 
609 Korea's third -party response to Panel question No. 19, para. 12 (referring to Appellate Body Report,  
Brazil – Desiccated Coconut , p. 2 2). 
610 Korea's third -party response to Panel question No. 19, para. 13.  
611 Korea's  third-party response to Panel question No. 20, para. 14 (referring to Appellate Body Report,  
EC – Computer Equipment , para. 84).  WT/DS582/R  
 
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  7.224.   Chinese Taipei submits that the DSU does not provide a legal basis for the Panel to "recognize 
and declare that the Draft Rectification was of a purely formal character and [the complainant's] 
objections on the same were unfounded ".612 For Chinese Tai pei, neither "India's Draft Rectification 
nor the 1980 [Decision]  are 'covered agreements ' within the meaning of Article 1.1 of the DSU ".613 
Chinese Taipei also argues that pursuant to its terms of reference, the Panel in this dispute "is neither 
required n or authorized" to make findings with respect to India's draft rectification or the 
1980 Decision.614 Chinese Taipei maintains that certification of a Schedule pursuant to the 1980 
Decision is subject to the agreement of all WTO Members, who are provided an opportunity to object 
to the proposed modifications , and therefore such a matter is not to be decided by a dispute 
settlement panel.615 Thus, for Chinese Taipei, the Panel is "called upon to determine whether India 
violates its commitments under Articles II :1(a) and II:1(b) of the GATT 1994 based on India's last 
certified Schedule under HS2007."616 
7.225.   The United States argues that there is no legal basis in the DSU for the Panel to determine 
that India's draft rectification request was of a purely formal charact er and the objections to that 
request were unfounded.617 According to the United States, although the 1980 Decision was agreed 
upon by WTO Members, it is not a "covered agreement" within the meaning of Article 1.1 of the 
DSU. Thus, the DSU does not contemplate that a panel would make findings regarding Member's  
actions under the 1980 Decision.618 The United States also considers that the findings requested by 
India could raise questions on altering the balance of rights and obligations struck with respect to 
India's WTO Schedule.619 Moreover, the United States argues that the 1980 Decision does not 
contemplate recourse to WTO dispute settlement where an objection is made.620 Finally, the United 
States maintains that pending any resolution of the objections raised by other WTO Members , the 
authentic text of India's Schedule remains unaltered.621 
7.3.4.4   Panel's assessment  
7.226.   We recall that India requests us to find that: (i) the European Union violated paragraph 3 of 
the 1980 Decision by raising an objection "unfounded in law", and (ii) the Europe an Union's objection 
constituted an "impediment to India's rights to make a formal rectification to its schedule of 
concessions under the 1980 [Decision]."622 The parties disagree on whether we have a legal basis 
under the DSU to address India's request for  findings.  
7.227.   According to India, the 1980 Decision is a covered agreement within the meaning of 
Article  1.1 of the DSU. Therefore, in India's view, we have the authority to "interpret the 
Draft Rectification and clarify the rights and obligations of the Memb ers under it" under Article 3.2 
of the DSU.623 India also argues that Article 11 of the DSU imposes an obligation on us to objectively 
assess the facts of the dispute and examine the conformity of Members' actions with the covered 
agreements.624 The European  Union disagrees that the 1980 Decision is a covered agreement within 
the meaning of Article 1.1 of the DSU.625 The European Union also indicates that because its panel 
request did not refer to India's draft rectification or the 1980 Decision, we lack juris diction to assess 
India's request and make the requested findings.626 Additionally, the European Union maintains that 
India is precluded from making a counter -complaint by Article 3.10 of the DSU.627  
 
612 Chinese Taipei's third -party response to Pan el question No. 19 , para. 16.  
613 Chinese Taipei's third -party response to Panel question No. 19, para. 1 7. 
614 Chinese Taipei's third -party response to Panel question No. 19, para. 18.  
615 Chinese Taipei's third -party response to Panel question No. 20, para. 21.  
616 Chinese Taipei's third -party response to Panel question No. 20, para. 22.  
617 United States'  third-party response to Panel question Nos. 19 -20, para. 16.  
618 United States'  third-party response to Panel question Nos. 19 -20, para. 17.  
619 United State s' third -party response to Panel question Nos. 19 -20, para. 18.  
620 United States' third -party response to Panel question Nos. 19 -20, para. 19 (referring to Panel Report, 
Russia – Tariff Treatment , paras. 7.50 -7.56).  
621 United States' third -party response to Panel question Nos. 19 -20, para. 20.  
622 India's second  written submission, para. 160.  
623 India's response to Panel question No. 74, paras. 50 -51; second written submission, paras. 161 -162 
(referring to Panel Report, US – FSC, para. 7.63).  
624 India's response to Panel question No. 74, para. 52.  
625 European Union's second written submission, para s. 22-29. 
626 European Union's response to Panel question No. 96, para. 26.  
627 European Union's response to Panel question No. 98, paras. 28 -32; European Union's second written 
submission, paras. 31 -32. WT/DS582/R  
 
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  7.228.   The parties' arguments raise two issues concerning the ex istence of a legal basis for us to 
address India's request for findings: (i) whether our terms of reference allow us to assess India's 
request for findings; and (ii) whether the 1980 Decision is a covered agreement within the meaning 
of Article 1.1 of the DSU. We consider it logical to first determine whether, pursuant to our terms of 
reference, we have jurisdiction over India's request for findings. We will only evaluate whether the 
1980 Decision is a "covered agreement" within the meaning of Article 1.1 o f the DSU if we determine 
that we have jurisdiction to address India's request.628 Moreover, i f we determine that we lack th e 
legal mandate  to address India's request for findings , we would not proceed to  address the substance 
of that request (i.e. whether the rectification request was purely of a formal character and whether 
the European Union's objection was "unfounded in law") . 
7.229.   Article 7.1 of the DSU sets out the "Terms of Reference of Panels". Specifically, this provision 
sets forth  the terms of referenc e that shall apply "unless the parties to the dispute agree otherwise 
within 20 days from the establishment of the panel". In this dispute, the parties did not "agree 
otherwise ", and consequently the standard terms of reference set out in Article 7.1 apply  to us . 
Accordingly, our terms of reference are:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the European Union in [its 
panel request] and to make such  findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.629 
7.230.   Regarding the "matter referred to the DSB", Article 6.2 of the DSU stipulates that a 
complainant's panel request shall, inter alia : (i) identify the specific measures at issue ; and 
(ii) provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly . In our view, these two elements of Article 6.2  define the "matter referred to the DSB".  
7.231.   We consider that, pursuant to Articles 6.2 and 7.1, our terms of reference as defined by the 
panel request delimit the scope of the dispute and in turn our jurisdiction.630 We note that the 
European Union's panel re quest identifies the specific measures at issue as "the duties applied by 
India on imports of certain ICT products in excess of the bindings set forth in its [WTO Schedule]". 
The panel request then indicates that the legal basis of the European Union's complaint  is India's 
tariff treatment of certain ICT products inconsistently with Articles II:1(a) and (b) of the GATT 
1994.631  
7.232.   Consequently, our mandate, pursuant to the explicit terms of the DSU, is limited to 
examining whether the tariff treatment imposed by India on certain ICT products is inconsistent with 
Articles  II:1(a) and (b) of the GATT 1994. To the extent that India's request for findings does not 
concern this matter, it would not fall within our terms of reference.  
7.233.   Turning to assessing whether In dia's request for findings is within those terms of reference, 
we note that in response to a question from the Panel concerning the effect of the requested findings 
on the European Union's claims under Articles II:1(a) and (b), India stated that " if it is found that 
the proposed Draft Rectification is, in fact, of a purely formal character, it would lead to the 
conclusion that the bound rates assigned to the products at issue were clearly in error and that such 
concessions were capable of rectification via the 1980 [Decision] ."632 We also note India's argument 
in its second written submission that "[i]f it is found that the Draft Rectification is, in fact, of a purely 
formal character, it would be found that the bound rates assigned to the products at issue a re a 
consequence of a formal error and are therefore severally void. Therefore, there can be no violation 
of Article II:1(a) and Article II:1(b) of the GATT if the contested tariff lines of India's schedule of 
concessions are void."633  
7.234.   We do not see how fi nding s that the rectification request was "of a purely formal character" 
and that the European Union's objection was "unfounded in law"  would modify  India's WTO tariff 
 
628 See also Panel Report, EU – Poultry  Meat (China) , fn 3 9 to para. 7.27.  
629 Constitution Note of the Panel, WT/DS582/10 , para. 2. 
630 See e.g. Appellate Body Reports, Argentina – Import Measures , para. 5.11 ; US – Countervailing 
Measures (China) , para. 4.6;  and US – Countervailing and Anti -Dumping Measures (China) , para. 4.6.  
631 European Union's panel request , pp. 1-2. 
632 India's response to Panel question No. 74, para. 55.  
633 India's second written submission, para. 167. WT/DS582/R  
 
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  commitments or otherwise affect our application of Article s II:1(a) and (b)  of the GATT 1994. India 
has clarified that it is not requesting us to certify its rectification request.634 In any case, we do not 
read the 1980 Decision to permit a panel to certify a rectification request made under the 
1980 Decision. We note that pursuant to paragra ph 3 of the 1980 Decision, changes to a Schedule 
requested through the 1980 Decision "become a Certification provided that no objection has been 
raised  by a [Member] within three months" . We recall that WTO Members other than the European 
Union – including  Japan and Chinese Taipei, complainants in the other two disputes in which the 
same panelists were appointed635 – objected to India's rectification request. Consequently, even 
assuming  arguendo  that we determined that India's draft rectification was of a "purely formal 
character " and that the European Union's objection on the same was "unfounded ", our findings would 
not have any effect  vis-à-vis India's WTO Schedule. Until all objections to India's rectification request 
are withdrawn (including objections by WTO Members who are not parties to this dispute ), and 
India's proposed changes are certified, India's WTO Schedule, as a legal matter, remains 
unmodified.636 Contrary to Ind ia's arguments, our findings in this regard would not render its bound 
rates "severally void"  and would not in any way modify India's WTO obligations under Articles II:1(a) 
and (b) or under its WTO Schedule .  
7.235.   Indeed, from our review of India's arguments, w e understand that India is in fact raising a 
claim that the European Union  acted inconsistently with its own WTO obligations. We note that a 
"claim" in WTO dispute settlement refers to an allegation that another Member has violated a 
provision of a covered  agreement, thereby nullifying or impairing the benefits accruing to the 
aggrieved Member.637 India, in its own words, requests us to find that "the European Union violated  
paragraph 3 of the 1980 [Decision]" and "imped[ed] India's rights … under the 1980 [ Decision]".638 
This, in our view, constitutes a claim  by India that the European Union has violated, and in effect 
nullified or impaired the benefits that accrue to India under, the 1980 Decision.639  
7.236.   Therefore, we consider that India's claim does not concer n the matter before the Panel, as 
defined in the European Union's panel request, namely whether the tariff treatment imposed by  
India on certain ICT products is inconsistent with Articles II:1(a) and (b) of the GATT 1994.640 
Consequently, India's request fo r findings appears to fall outside our terms of reference, pursuant 
to Articles 6.2 and 7.1 of the DSU.  
7.237.   We note India's argument that Article 11 of the DSU requires us to "objectively assess the 
facts of the dispute and examine the conformity of Members' actions with [the] covered 
agreements".641 We agree that Article 11 requires us to make an objective assessment of the facts 
 
634 India's second written submission, para. 167  ("India clarifies that it does not seek … certification of 
the Draft Rectification through the dispute settlement mechanism "). See also India's response to Panel 
question No. 97, para. 36.  
635 The same panelists were appointed in India – Tariffs on ICT Goods ( EU) (DS582) , India – Tariffs on 
ICT Goods (Japan)  (DS584) , and India – Tariffs on ICT Goods (Chinese Taipei)  (DS588 ). 
636 We note that several third parties agree with this understanding. (See e.g. Canada's third -party 
response to Panel question No. 19, para . 14, and No. 20, para 16; Japan's third -party response to Panel 
question No. 20, paras. 31 -32; Korea's  third-party response to Panel question No. 20, para. 14; Chinese 
Taipei's third -party response to Panel question No. 20, para. 21; and United States' th ird-party response to 
Panel question Nos. 19 -20, para. 20). A previous panel took a similar view, stating that "a proposed 
rectification to correct an alleged error in a Schedule would have no legal effect until such time as the text of 
the Schedule is cha nged through certification." (Panel Report, EU – Poultry Meat (China) , para. 7.536 . See also 
Panel Report, Russia – Tariff Treatment , para. 7.54 ). 
637 Appellate Body Report,  US – Countervailing and Anti -Dumping Measures (China) , para. 4. 8 (referring 
to Appellate Body Report, Korea – Dairy , para. 139 ). 
638 India's second written submission, para. 160. (emphasis added)  
639 We note that India itself refers to its request for findings as a "claim". India states in its second 
written submission:  
As pointed out by India in its previous submissions, the objections made by the European Union  
were unfounded and lacked legal merit. Therefore, India is claiming  that: (i) the European Union  
violated Paragraph 3 of the 1980 [Decision]  by raising an [objec tion] unfounded in law, and (ii) 
the European Union's  action was an impediment to India's rights to make a formal rectification to 
its schedule of concessions under the 1980 [Decision] . Such claims  warrant an exercise to establish 
that the 1980 [Decision]  is a "covered agreement."  
(India's second written submission, para. 160)  
640 We note that a respondent is not precluded from invoking in its defence a provision other than those 
which the complainant claims have been violated. However, as we have noted above, India is not raising a 
defence, but rather is making a claim against the  European Union.    
641 India's second written submission, para. 165.  WT/DS582/R  
 
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  of the case and the applicability of , and conformity with , the relevant covered agreements . However, 
we understand that India is not  requesting factual or even legal findings that would be relevant for 
assessing the consistency of the measures challenged by the European Union with the covered 
agreements. To the contrary, India is requesting legal findings that the European Union acted 
inconsistently with its own WTO obligations.  
7.238.   Article 11 requires that " a panel should make an objective assessment of the matter before  
it, including an objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered agreements ".642 In our view, "the matter" before us (under Article 11) 
constitutes the "matter referred to the DSB" (under Article 7.1), and is delimited by the 
complainant's panel request. We have found above that India's request for findi ngs is outside the 
scope of our terms of reference. We therefore see nothing in Article 11 of the DSU that permits us 
to make the findings requested by India.  
7.239.   India also refers to the findings of the Appellate Body in Mexico – Taxes on Soft Drinks  to 
suppo rt its position that Article 3.2 of the DSU requires us to "interpret the Draft Rectification and 
clarify the rights and obligations of the Members under it".643 India quotes the following finding by 
the Appellate Body:  
A decision by a panel to decline to exercise validly established jurisdiction would seem 
to 'diminish' the right of a complaining Member to 'seek the redress of a violation of 
obligations' within the meaning of Article 23 of the DSU, and to bring a dispute pursuant 
to Article 3.3 of the DSU.  This would not be consistent with a panel's obligations under 
Articles 3.2 and 19.2 of the DSU. We see no reason, therefore, to disagree with the 
Panel's statement that a WTO panel 'would seem … not to be in a position to choose 
freely whether or not to e xercise its jurisdiction'.644 
7.240.   We note, however, that India is not a complaining party in this dispute. By declining to 
"interpret the Draft Rectification"645, we are not diminishing India's rights to bring a dispute pursuant 
to the DSU. India is not preclude d from requesting the establishment of a panel with appropriate 
terms of reference to determine whether the European Union's actions "violated" the 1980 Decision. 
Moreover, we note that India has n either  entered into consultations with the European Union under 
Article 4 of the DSU, nor requested the establishment of a panel by the DSB under Article 6 of the 
DSU. In our view, if we were to assess the substance of India's request for findings, this would in 
fact diminish the rights of the complainant in this dispute, namely its right to seek a positive solution 
through consultations. The Appellate Body's findings in Mexico – Taxes on Soft Drinks  therefore do 
not support India's view that we are required to address India's requests for findings.  
7.241.   India also re fers to certain observations of the panel in Russia – Traffic in Transit . According 
to India, that panel found  that: (i) "WTO Members have an obligation to perform treaties in good 
faith, and if Members' actions are not in conformity with the relevant provi sions, the Panel has an 
obligation to review it "; and (ii) "systemic issues might arise if Members abuse provisions to 
circumvent obligations ".646 India argues that for these reasons, we have an obligation to "assess if 
the objection raised by the European Union is in good faith or if it is merely an instrument to force 
India to grant concessions on products, which it never agreed to."647  
7.242.   In our view, the observations of the panel in Russia – Traffic in Transit not only fail to  provide 
a legal basis for us to address India's request , but further reinforce our view on this issue . Regarding 
the requirement to assess whether Members' actions are in conformity with relevant provisions, we 
have explained above that this obligation un der Article 11 of the DSU is delimited by our terms of 
reference, and our terms of reference do not extend to the findings requested by India. As to whether 
systemic issues might arise if Members abuse provisions to circumvent obligations, we strongly 
agree. Address ing India's claim in the present proceedings  would seem to allow India to bring a 
 
642 Emphasis added.  
643 India's second written submission, para. 164.  
644 India's second written submission, para. 1 64 (quoting Appellate Body Report, Mexico – Taxes on Soft 
Drinks , para. 53) . 
645 India's second written submission, para. 164.  
646 India's second written submission, para. 1 65 (referring to Panel Report, Russia – Traffic in Transit , 
paras. 7.132 -7.133 ). 
647 India's second written submission, para. 1 65. WT/DS582/R  
 
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  claim before a panel without following the relevant procedural steps set forth in the DSU. This would 
not only amount to India circumvent ing its obligations under t he DSU , but could indeed raise 
significant  systemic issues concerning the function of panels and the procedural rights and 
obligations of Members with respect to WTO dispute settlement.  
7.243.   We also note the European Union's argument that India's request is a "counter -complaint" 
within the meaning of Article 3.10, second sentence, of the DSU, which India is precluded, by that 
provision, from bringing.648 India disputes that its arguments regarding the draft rectification are a 
"counter -claim".649 India argues tha t if we find that the contested products were not covered by the 
ITA, that finding would "validate the purely formal character of India's rectification request and 
reveal the European Union's objections to such rectification request to be unfounded."650  
7.244.   We have found in paragraph 7.235  above that India's request is a claim and not a defence. 
We have also found that we do not have a legal basis to evaluate whether Ind ia's rectification request 
was of a purely formal character within the meaning of paragraph 2 of the 1980 Decision, or whether 
the European Union's objection on the same was unfounded. Therefore, we do not consider it 
necessary to evaluate whether India's request is a "counter -complaint" within the meaning of 
Article  3.10, second sentence, of the DSU. We also do not express a view on the scope, relevance 
or application of Article 3.10 of the DSU in this dispute.  
7.245.   In sum, we conclude that, in accordance with  the provisions of the DSU, our terms of 
reference do not permit us to assess in the present proceedings whether: (i) the European Union 
violated paragraph 3 of the 1980 Decision by raising an objection unfounded in law; or (ii) the 
European Union's action  was an impediment to India's rights to make a formal rectification to its 
WTO Schedule under the 1980 Decision. We also note that, even if we did indeed have the legal 
mandate to make the findings requested by India, doing so  would not assist in resolving  this 
dispute.651 For these reasons, we do not consider it necessary to assess whether the 1980 Decision 
is a "covered agreement" within the meaning of Article 1.1 of the DSU, or the substance of India's 
arguments that its rectification request was purely of a formal natur e and the European Union's 
objection was inconsistent with its obligations under the 1980 Decision.652 
7.3.5   Conclusion  
7.246.   We have addressed above the parties' arguments concerning the ITA, Article 48 of the 
Vienna Convention, and India's rectification request under  the 1980 Decision. We have concluded 
that the ITA is not a covered agreement within the meaning of the WTO Agreement and the DSU, 
and does not set forth the legal obligations at issue in this dispute. Moreover, the ITA does not 
otherwise limit the scope o f India's tariff commitments as set forth in its WTO Schedule. In our view, 
the circumstances of this case do not satisfy the substantive requirements of Article 48 of the Vienna 
Convention, and we therefore decline to read aspects of India's WTO Schedule as invalid. Finally, we 
consider that India's request for findings that the complainant acted inconsistently with the 
1980 Decision is not within our terms of reference, and we consequently do not have the legal 
mandate to make such findings. Moreover, eve n assuming arguendo  that we had the legal mandate 
to address India's request for findings, we do not see how such findings would contribute to a positive 
resolution of this dispute.  
7.247.   We therefore proceed with the application of Articles II:1(a) and (b)  of the GATT 1994 in 
this dispute by comparing, on the one hand, India's WTO tariff commitments as set forth in its 
WTO Schedule653, and, on the other hand, the tariff treatment applied by India to imported products.  
 
648 European Union's second written submission, paras. 30 -32; response to Panel question No. 98, 
paras. 28 -32. 
649 India's response to Panel question No. 97, paras. 35 -36; comments on t he European Union's  
response to Panel question No. 96, para. 14, and No. 98 , para. 15. 
650 India's comments on t he European Union's  response to Panel question No. 96, para. 14. 
651 See para. 7.234  above.  
652 See also Panel Report, EU – Poultry Me at (China) , fn 39 to para. 7.27.  
653 Unless otherwise specified, all references in this Report to India's "WTO Schedule" are to the HS2007 
version of that Schedule.  WT/DS582/R  
 
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  7.4  Whether India's tariff treatment is inconsis tent with Articles II:1(a) and (b) of the 
GATT 1994  
7.4.1   Overview  
7.248.   The European Union  claims that India is acting inconsistently with Article s II:1(a) and (b) of 
the GATT 1994 by imposing  on certain products  tariff treatment that is inconsistent with the 
commitments inscribed in India's WTO Schedule. The European Union specifically challenges t he 
tariff treatment accorded by India to products falling under the following tariff items of India's 
WTO Schedule: 8 504.40 ex02; 8517.12; 8517.61; 8517.62; 8517.70  ex01, ex02, and ex03 ; 
8518.30 ex01 and 8544.42.00 ex01.654  
7.249.   For its part, India contests certain assertions by the European Union regarding the scope 
and content of its WTO tariff commitments, and considers th at the European Union has failed to 
substantiate its burden of demonstrating that the tariff treatment of certain products is inconsistent 
with Articles II:1(a) and (b).655  
7.250.   We proceed with our analysis by assessing each tariff item in turn. We recall that where a 
measure is inconsistent with Article  II:1(b), it is also inconsistent with Article  II:1(a) .656 We also 
recall that a pplying Article II:1(b) in the context of this dispute entails comparing the treatment that 
India is obligated to provide in its WTO Schedule with the tariff treatment that India accords to the 
products at issue under the challenged measures .657 We therefore conduct our assessment of each 
tariff item by: (i) identifying, as a legal matter, India's WTO tariff commitments; (ii) assessing, as a 
factual matter, the parties' assertions regarding the tariff treatment accorded by India to certain 
products; (iii) comparing the challenged tariff treatment to India's WTO tariff commitments; and (iv) 
on the basis of that comparison, forming a conclu sion as to whether India is acting inconsistently 
with Articles II:1(a) and (b). In addition to these four steps, we also consider it useful to address 
certain general issues arising with respect to certain of the tariff items. Where necessary, we address 
these general issues at the outset, before conducting our four -step analysis of whether India is 
acting inconsistently with Articles II:1(a) and (b).  
7.4.2   Tariff item 8504.40 ex02 of India's WTO Schedule  
7.4.2.1   India's WTO tariff commitments  
7.4.2.1.1   Main arguments of the par ties 
7.251.   The European Union assert s that India's WTO tariff binding for static converters for automatic 
data processing machines and units thereof, and telecommunication apparatus, set forth at tariff 
item 8504.40 ex02 of India's WTO Schedule , is 0%.658 The Eur opean Union also clarifies that its 
claim in relation to this tariff binding is limited to "static converters for cellular mobile phones".659 
According to the European Union, cellular mobile phones are telecommunication apparatus, and 
therefore India's WTO tariff binding for static converters for cellular mobile phones is 0%.660 
7.252.   India acknowledges that it committed to providing duty -free tariff treatment to products 
falling under tariff item  8504.40 ex02, i.e. "static converters for … telecommunications 
appar atus".661 However, India maintains that "the scope of concessions for the sub -heading has 
expanded"662 and that India did not commit to the "liberalization of 'static converters for telephones 
for cellular network'" under the ITA since "such static converter s are specific to the development of 
telephones for cellular networks".663 India also submits that while cellular mobile phones  were not 
 
654 See para. 7.1 above.    
655 See para. 7.2 above.  
656 See para. 7.6 above.  
657 See para. 7.7 above.  
658 European Union's first written submission, para. 76.   
659 European Union's response to Panel question No. 81(a), para. 116.  
660 European Union's first written submission, para.  85; response to Panel question No. 81(b), 
paras.  117-125. 
661 India's first written submission, para. 167.  
662 India's response to Panel question No. 72, para. 40.  
663 India's first written submission, para. 170. See also India's second written submission, para. 146; 
response to Panel questio n No. 66, para. 30, and No. 72, para. 45.  WT/DS582/R  
 
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  covered under the ITA  or the HS1996 , such products may qualify as telecommunication apparatus 
under the HS2007.664 India also contends that its tariff commitments under tariff item 8504.40 ex02 
as reflected in its WTO Schedule based on  the HS2007 were certified in error.665 
7.4.2.1.2   Panel's assessment  
7.253.   We have addressed India's arguments that its WTO Schedule was certified in err or above, 
and held that India's tariff commitments are set forth  in India's WTO Schedule.666 We have also 
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff 
commitments in its WTO HS2007 Schedule.667 We also reca ll that, in our view, the tariff 
commitments set forth in India's WTO Schedule are not static in nature.668  
7.254.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2007 Schedule provides, inter alia , the following669:  
 Product description  Bound 
rate 
8504.40  - Static converters   
8504.40 e x02 -- Static converters for automatic data processing machines and units 
thereof, and telecommunication apparatus  0% 
 
7.255.   We observe that the product description attached to India's tariff item 8504.40 ex02 is "static 
converters for… telecommunication apparatus". We also note that India confirms that cellular mobile 
phones are "telecommunication apparatus" under the HS2007.670 Hence, there is no disagreement 
that static converters for cellular mobile phones are static converters for telecommunication 
apparatus withi n the meaning of the HS2007. We consider, therefore, that static converters for 
cellular mobile phones are covered under tariff item 8504.40 ex02 of India's WTO Schedule. Having 
found that India's WTO Schedule, which is based on the HS2007, sets forth Indi a's WTO tariff 
commitments, we conclude that India's tariff commitments regarding "static converters for cellular 
mobile phones" are set out in tariff item 8504.40 ex02 of its WTO Schedule.   
7.256.   Given that the relevant tariff binding for static converters for cellular mobile phones  set forth 
in India's WTO Schedule is 0%, and given that the WTO Schedule indicates no terms, conditions, or 
qualifications attached to that bound duty rate, we conclude  that India is obligated to provide 
unconditional duty -free treatment to static converters for cellular mobile phones  falling under tariff 
item 8504.40 ex02 of its WTO Schedule .  
7.4.2.2   India's tariff treatment  
7.4.2.2.1   Main arguments of the parties  
7.257.   The European Union sub mits that India's First Schedule imposes a standard duty rate of 
20% on imports classified under tariff item 8504.40 of that Schedule, namely "[s]tatic 
converters".671 The European Union considers that static converters for telecommunication 
apparatus impor ted into India are classified under tariff item 8504.40.90 of the First Schedule, which 
is a residual category described as "other".672 According to the European Union, static converters for 
 
664 India's second written submission, para. 147; response to Panel question No. 72, paras. 40 -45, and  
No. 127, para. 81.  
665 India's response to Panel question No. 18, para. 58, and No. 66, paras. 28 and 30. India arg ues that 
"[i]t is irrelevant that the sub -headings were not included in the Draft Rectification to India's 2007 Schedule." 
(India's response to Panel question No. 18, para. 58).  
666 See para. 7.213  above.   
667 See para. 7.81 above.  
668 See para. 7.245  above.  
669 WT/Let/1072.  
670 India's second written submission, para. 147; res ponse to Panel question No. 127, para. 81.  
671 European Union's first written submission, para. 77 (referring to First Schedule of the Customs Tariff 
Act, as amended by Finance Act 2020,  (Exhibit EU -28)). 
672 European Union's first written submission, para s. 77-78; response to Panel question No. 29, 
paras.  74-77. WT/DS582/R  
 
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  cellular mobile phones, to which its claim is limited673, are class ified under this tariff item.674 The 
European Union submits that Notification No. 25/2005, as amended by Notification No. 67/2017, 
exempts "static converters for … telecommunication apparatus, other than static converters for 
cellular mobile phones" from im position of customs duties.675 The European Union also notes that 
Notification No. 57/2017, as amended by subsequent notifications, reduces the duty rate applicable 
to "[a]ll goods other than charger or power adapter" to 10%.676 Therefore, according to the E uropean 
Union, India subjects static converters for cellular mobile phones to a 10% or 20% duty rate.677 
7.258.   India submits that "[s]tatic converters for automatic data processing machines and units 
thereof and telecommunication apparatus are classifiable under sub-heading 8504.40" in its 
domestic classification.678 In response to questioning from the Panel before the first substantive 
meeting, India states that it imposes a 20% duty on static converters for cellular mobile phones.679 
In its second written submission, India submits that static converters for cellular mobile phones are 
subject to a "10% or 20%" duty rate.680 Subsequently, asked by the Panel to clarify the tariff 
treatment accorded to these products, India submits that static converters for cellular mobile phones 
are subject to a 20% duty rate.681  
7.4.2.2.2   Panel's  assessment  
7.259.   It is uncontested that "static converters for … telecommunication apparatus" are classified 
under tariff item 8504.40.90 of India's First Schedule.682 It is also uncontested that India's First 
Schedule sets the standard duty rate leviable on sta tic converters classified under tariff item 
8504.40.90 at 20%.683 Our review of the First Schedule, as amended by the Finance Act 2020, 
confirms that India set the standard duty rate for static converters falling under tariff item 
8504.40.90 of that Schedul e at 20%.684 
7.260.   We recall that the duty rate applied by India to certain products may be different from that 
set forth in the First Schedule, depending on any relevant customs notifications. In this respect, the 
European Union submits that India applies a "10%  or 20%" duty rate on static converters for cellular 
mobile phones.685 India clarifies that such products are subject to a 20% duty rate.686  
7.261.   Based on the evidence on the record, we observe that the duty rate applied to products 
classified under tariff item 8504.40.90 of the First Schedule is subject to various customs 
notifications. Pursuant to Notification No. 25/2005, India exempted static converters for automatic 
data processing machines and units thereof, and telecommunication apparatus from the customs 
duties leviable under the First Schedule.687 Notification No. 25/2005 was subsequently amended by 
Notification No. 67/2017, to exclude "static converters for cellular mobile phones" from that 
exemption.688 Therefore, we understand that static converters for cellular mobile phones, the 
products at issue in this dispute , are not eligible for the duty -free treatment available under 
 
673 European Union's  response to Panel question No. 81(a), para. 116.  
674 European Union's first written submission, para s. 78-85. See also response to Panel question No. 29, 
paras. 74 -77. 
675 European Union's first written submission, para s. 79-81 (referring to Notification No. 25/2005, 
(Exhibit EU -10), as amended by Notification No. 67/2017, (Exhibit EU -11)). 
676 European Union's first written submission, para s. 83-84 (referring to Notification No. 57/2017, 
(Exhibit EU -12), as amended by Notification No. 22/2018, (Exhibit EU -13), and Notification No. 02/2020, 
(Exhibit EU -31)). 
677 European Union's first written submission, para . 86. 
678 India's second written submission, para. 137; response to Panel question No. 78, para. 65.  
679 India's response to Panel question No. 30, para. 84.  
680 India's second written submission, para. 139.  
681 India's response to Panel question No. 128, para. 85.  
682 European Union's response to Panel question No. 29, paras. 74 -77. India does not dispute th e 
European Union's  assertion  in this respect . 
683 European Union's first written submission, para. 78; India's first written submission, para. 166. 
684 First Schedule  as of 2016/2017 , (Exhibit EU -59), p. 750, as amended by Finance Act 20 20, 
(Exhibit  EU-28), p. 100.  
685 European Union's first written submission, para. 86.  
686 India's response to Panel question No. 128, para. 85.  
687 Serial No. 4 of Notification No. 25/2005, (Exhibit IND -40). 
688 Notification No. 67/2017, (Exhibit EU -11). WT/DS582/R  
 
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  Notification No. 25/2005, as amended by Notification No. 67/2017. The parties agree with this 
understanding.689  
7.262.   We also note that th e parties refer to Notification No. 57/2017, as amended by Notification 
Nos. 22/2018 , 02/2020, and 03/2021, which accords a reduced duty rate of 10% to all goods 
classified under tariff item 8504.40 , other than (a) charger or power adapters, and (b) solar 
inverters.690 India has clarifi ed that static converters for cellular mobile phones, the products at issue 
here, are not covered by any exemption notifications, and are therefore subject to the 20% duty 
rate stipulated in the First Schedule.691 Therefore, absent any custom notifications ex empting such 
products from the duty rate set out in the First Schedule either in whole or in part692, such products 
are subject to that standard duty rate of 20%.  
7.263.   In light of the foregoing, we conclude that static converters for cellular mobile phones are 
subject to the standard duty rate of 20%.693 
7.4.2.3   Comparison of India's tariff treatment to its WTO tariff commitments  
7.4.2.3.1   Main arguments of the parties  
7.264.   The European Union considers that static converters for cellular mobile phones falling within 
the scope of tariff item 8504.40.90 of India's First Schedule are covered by India's tariff 
commitments inscribed under tariff item 8504.40 ex02 of India's WTO Schedule.694 The European 
Union submits that India is acting inconsistently with Articles II:1(a) and (b) of the GATT  1994 
because it imposes customs duties on these products in excess of those set forth in its 
WTO Schedule.695  
7.265.   India submits that it provides duty -free treatment to all static converters for automatic data 
processing machines and units thereof, and telecommunication apparatus except cellular mobile 
phones,  in accordance with its ITA commitments. This is because according to India, cellular mobile 
phones are not covered under the ITA. Therefore, in its view, by providing duty -free treatment to 
all sta tic converters for telecommunication apparatus except static converters for cellular mobile 
phones, India "has not breached its commitments under the ITA[]".696  
 
689 Europe an Union's first written submission, paras. 81 -82; India's response to Panel question No. 126, 
para. 80.  
690 Notification No. 57/2017 as amended by Notification Nos. 22/2018 and 02/2020, (Exhibit IND -42), 
and Notification No. 03/2021, (Exhibit IND -54). 
691 India's response to Panel question No. 30, para. 84. See also India's response to Panel question 
No. 128, para. 85.  We note that India submits that "[s]tatic converters for automatic data processing 
machines and units thereof and telecommunication appara tus are classifiable under sub -heading 8504.40. 
Serial No. 4 of Notification No. 25/2005 dated March  1, 2005, provides a complete exemption to 'Static 
converters for automatic data processing machines and units thereof, and telecommunication apparatus, oth er 
than static converters for cellular mobile phones,' while Serial No. 13 of Notification No. 57/2017 dated June 
30, 2017, exempts all goods classifiable under sub -heading 8504.40 (except charger, power adapter and solar 
adapter) from any duty above 10% ( to simplify, 10% duty is applicable on such products). Therefore, even 
though 'Static converters for automatic data processing machines and units thereof' are classifiable under sub -
heading 8504.40, the importer may choose the more beneficial exemption not ification upon importation, i.e., 
Notification No. 25/2005. … Therefore, an importer/exporter can choose to import their goods under either of 
the notifications to reap the benefit intended to be handed out to 'Static converters for automatic data 
processi ng machines and units thereof, and telecommunication apparatus.'" (India's second written 
submission, paras. 13 7-138). We note that in other submissions, India clarifies  that static converters for 
cellular telephones are not covered in an y exemption notifi cation  and are therefore subject to the standard 
duty rate set out in the First Schedule . (India's response to Panel question No. 30, para. 84).  
692 See paras. 2.11-2.13 above.  
693 We also consider that, since it is clear that static converters for cellular mobile phones are subject to 
duties in excess of the duty rate  set forth in India's WTO Schedule , the question of whether such products may 
be subject to a 10% or 20% duty rate does not concern India's WTO -consistency, but rather the degree  to 
which India is acting inconsistently with its WTO obligations. In our view, it is unn ecessary to delimit the 
precise extent to which India may be acting inconsistently .  
694 European Union's first written submission, para. 85.   
695 European Union's first written submission, paras. 86 -87. 
696 India's response to Panel question No. 126, para. 80.  WT/DS582/R  
 
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  7.4.2.3.2   Panel's assessment  
7.266.   We recall that, pursuant to its WTO Schedule, India is obligated to accord u nconditional 
duty-free treatment to static converters for telecommunication apparatus falling under tariff item 
8504.04 ex02 of that Schedule.697 We also consider that, as India's Schedule is based on the 
HS2007, and given that under the HS2007 "telecommuni cation apparatus" includes "cellular mobile 
phones", India is obligated to accord unconditional duty -free treatment to static converters for 
cellular mobile phones.698  
7.267.   In our view, these tariff commitments apply to static converters for cellular mobile pho nes 
imported into India and classified under tariff item 8504.40.90 of India's First Schedule. We recall 
that such static converters for cellular mobile phones imported into India are subject to a 20% duty 
rate. 
7.268.   A comparison between India's WTO tariff comm itments and India's tariff treatment indicates 
that India is imposing ordinary customs duties on static converters for cellular mobile phones 
imported into India in excess of the bound rate set forth in India's WTO Schedule.  
7.4.2.4   Conclusion  
7.269.   Based on the foregoi ng, we find that India's tariff treatment of static converters for cellular 
mobile phones , falling within the scope of tariff item 8504.40 ex02  of India's WTO Schedule, is 
inconsistent with Article II:1(b), first sentence, of the GATT 1994, because such pr oducts are subject 
to ordinary customs duties in excess of those set forth and provided in India's WTO Schedule .  
7.270.   We recall that the application of ordinary customs duties in excess of those provided for in 
a Member's Schedule, inconsistent with the first sentence of Article II:1(b), also constitutes "less 
favourable" treatment  within the meaning of Article II:1(a). Consequently, we find that India's tariff 
treatment of such products is less favourable than that provided in its WTO Schedule, and India is 
therefore acting inconsistently with Article II: 1(a) of the GATT 1994.  
7.4.3   Tariff item 8517.12 of India's WTO Schedule  
7.4.3.1   General issues  
7.4.3.1.1   Main arguments of the parties  
7.271.   The European Union challenges the tariff treatment accorded by India to products falling 
under t ariff item 8517.12  of India's WTO Schedule, covering  telephones for cellular networks or for 
other wireless networks .699 The European Union argues that at the time of the Panel's establishment, 
India classified such products under tariff items 8517.12.11, 8517.12.19 and 8517.12.90 of its 
First Schedule.700 The European Union submits that pursuant to India's amendment of its First 
Schedule to reflect the HS2022, "India now classifies these products under two new tariff lines in its 
domestic customs system, namely 8517.13 and 8517.14".701 In response to an argument by India 
that the measure challenged by the European Union has c eased to exist, the European Union argues 
that "the  measures which are the subject of the European Union's claims in the present case have 
not disappeared or have been changed: India continues to impose customs duties on the same 
products (previously class ified under a different tariff line number), and in doing so is acting 
inconsistently with its obligations under Article II of the GATT 1994 and its certified schedule of 
concessions".702 
7.272.   India argues that the measure identified by the European Union has ce ased to exist, as its 
First Schedule was amended to align it with the HS2022, and therefore the Panel cannot issue rulings 
 
697 See para. 7.254  above.  
698 We recall that it is uncontested that, under the HS2007, telecommunication apparatus includes 
cellular mobile phones. (See para. 7.255  above).  
699 European Union's first written submission, paras. 13 and 15.  
700 European Union's first written submission , paras. 88-90. 
701 European Union's response to Panel question No. 106, para. 63.  
702 European Union's response to Panel question No. 106, para. 64.  WT/DS582/R  
 
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  or recommendations on the measures pertaining to tariff item 8517.12.703 According to India, "if a 
product is to be classified under a  tariff entry, then the heading and description both must be 
examined to determine the commitments prescribed in the schedule."704 In this regard, India argues 
that the scopes and descriptions of tariff items 8517.13 and 8517.14 are different from those of 
tariff item 8517.12.705 India also submits that "the term 'smartphones' does not appear in the ITA[] 
or in the 2007 Schedule. Accordingly, no commitments exist with respect to such smartphones. 
Further, there exists no certified schedule with respect to sub -headings 8517.13 and 8517.14."706 
India asserts that "[t]he burden of proof is on the complainant to identify the sub -heading under 
which smartphones were classified under HS2007, and whether India has violated its commitments 
viz-a-viz such sub -headings. However, the complainant [has] not made any such claims with regard 
to smartphones."707 India also submits that "[w]ith regard to 'other telephones for cellular networks' 
classified under sub -heading 8517.14, … such phones would have been classified under 8 517.12.11 
or 8517.12.19 of the HS2007 and India's other legal arguments would continue to apply."708 
7.4.3.1.2   Panel's assessment  
7.273.   Before turning to assess the merits of the parties' arguments with respect to the European 
Union's claim concerning products classified under tariff item 8517.12 of India's WTO Schedule, we 
consider it useful to briefly address certain threshold issues concerning our terms of reference.  
7.274.   We recall that the measure challenged by the European Union is the imposition of customs 
duties on products falling within the scope of tariff item 8517.12 of India's WTO Schedule.709 India 
argues that: (i) the measure as challenged by the European Union has ceased to exist, as a result 
of certain amendments to India's First Schedule; and (ii) the European Union has failed to 
demonstrate that "smartphones" fall within the scope of tariff item 8517.12 of India's WTO Schedule. 
We note that these arguments, on their face, appear to raise threshold issues concerning the scope 
of the European Union's cla im and our terms of reference. Nevertheless, in our view, it is not possible 
to address the merits of these arguments without assessing: (i) as a factual matter , the effect, if 
any, of India's amendments to its First Schedule on the measure as challenged b y the European 
Union; and (ii) as a legal matter, whether smartphones are products covered by tariff item 8517.12 
of India's WTO Schedule, such that the tariff treatment of such products is part of the measure as 
challenged by the European Union.  
7.275.   We there fore consider it appropriate to proceed with our analysis by first identifying India's 
WTO tariff commitments with respect to products classified under tariff item 8517.12 of its 
WTO Schedule. We then address, as a factual matter, the parties' arguments co ncerning the tariff 
treatment applied by India to certain products, including smartphones. In our view, this factual 
assessment is essential to our determination of whether, as alleged by India, the measure at issue 
has ceased to exist. Finally, we will co mpare our factual findings concerning India's tariff treatment 
to India's WTO tariff commitments  for purposes of determining whether India is acting inconsistently 
with Articles II:1(a) and  (b) of the GATT 1994. In that context, we will also assess whether  the 
European Union has demonstrated that smartphones are classified under tariff item 8517.12 of 
India's WTO Schedule, such that  the tariff treatment of such products constitutes part of the measure 
challenged by the European Union and thereby falls withi n our terms of reference; and  whether the 
measure challenged by the European Union has ceased to exist or has otherwise been amended .  
 
703 India's second writte n submission, para. 151.   
704 India's response to Panel question No. 102, para. 46.  
705 India's response to Panel question No. 102, para. 46.  
706 India's second written submission, para. 151. See also India's response to Panel question No. 102, 
para. 46.  
707 India's response to Panel question No. 108, para. 60.  
708 India's response to Panel question No. 108, para. 59.  
709 European Union's panel request, p. 1.  WT/DS582/R  
 
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  7.4.3.2   India's WTO tariff commitments  
7.4.3.2.1   Main arguments of the parties  
7.276.   The European Union assert s that India's bound duty  rate for products falling under tariff item  
8517. 12 of India's WTO Schedule , covering telephones for cellular networks or for other wireless 
networks, is 0%.710  
7.277.   India contends that the tariff commitments under tariff item 8517.12 as reflected in its 
WTO Schedule based on the HS2007 were certified in error.711 India maintains that it did not intend 
to make commitments on telephones for cellular networks, which in its view were not covered under 
the ITA  or the HS1996 .712 According to India, the commitment s under tariff item 8517.12 were 
undertaken in error, are void pursuant to Article 48 of the Vienna Convention, and are therefore 
rendered unbound.713 
7.4.3.2.2   Panel's assessment  
7.278.   We have addressed India's arguments that its WTO Schedule was certified in error above , 
and held that India's tariff commitments are set forth  in India's WTO Schedule.714 We have also 
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its 
tariff commitments in its WTO HS2007 Schedule.715 Moreover, we have de clined to make the findings 
requested by India regarding its request to rectify its WTO Schedule pursuant to the 
1980 Decision.716  
7.279.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2007  Schedule provides, inter alia, the following 717: 
 Product description  Bound rate  
8517 Telephone sets, including telephones for cellular networks or for 
other wireless networks; other apparatus for the transmission or 
reception of voice, images or other data, including apparatus for 
communication in a wired or wireless network (such as a local or 
wide area network), other than transmission or reception 
apparatus of heading 84.43, 85.25, 85.27 or 85.28.   
8517.1  - Telephone sets, including telephones for cellular networks  or for 
other wireless networks:   
8517.12.00  -- Telephones for cellular networks or for other wireless networks  0% 
7.280.   Given that the relevant tariff binding for "[t] elephones for cellular networks or for other 
wireless networks " set forth in India's WTO Sch edule is 0%, and given that the WTO Schedule 
indicates no terms, conditions, or qualifications attached to that bound duty rate, we observe that 
India is obligated to provide unconditional duty -free treatment to t elephones for cellular networks 
or for othe r wireless networks  falling under tariff item 8517.12 of its WTO Schedule . 
7.4.3.3   India's tariff treatment  
7.4.3.3.1   Main arguments of the parties  
7.281.   The European Union submits that, at the time of the Panel's establishment, India's First 
Schedule set a standard duty rate of 20% on imports of telephones for cellular networks and 
telephones for other wireless networks, which were classified under tariff items 8517.12.11, 
 
710 European Union's first written submission, para. 88.   
711 India's first written submission, paras. 57 -91. 
712 India's first written submission, paras. 150 -164. 
713 India's first written submission, paras. 90 -91. 
714 See para. 7.213  above.  
715 See para. 7.81 above.  
716 See para.  7.245  above.  
717 WT/Let/1072.  WT/DS582/R  
 
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  8517.12.19 and 8517.12.90 of that Schedule.718 The European Union also notes that Notification 
No. 57/2017 exempted from customs duties "[t]elephones for other wireless networks, other than 
cellular  networks", classified under tariff item 8517.12.90 of India's First Schedule.719 The European 
Union clar ifies that its claim does not include telephones for other wireless networks, because such 
products are exempted from customs duties.720 The European Union submits that telephones for 
cellular networks were subject to a 20% duty rate, as such products were not exempted from 
customs duties.721 The European Union acknowledges that during these proceedings tariff items 
8517.12.11, 8517.12.19 and 8517.12.90 of India's First Schedule were replaced with tariff items 
8517.13.00 and 8517.14.00. The European Union sub mits that, following these amendments, India's 
First Schedule set a standard duty rate of 20% on imports of such products, namely smartphones 
and other telephones for cellular networks or other wireless networks.722 The European Union also 
notes that Notifi cation No. 57/2017, as amended by Notification No. 57/2021, exempts " other 
telephones for other wireless networks ", presently classified under tariff item 8517.14.00,  from 
customs duties .723 
7.282.   India does not dispute that at the time of the Panel's establishme nt, it imposed a 20% duty 
rate on telephones for cellular networks, and exempted telephones for other wireless networks from 
customs duties.724 India also does not dispute that, following its amendments  to the First Schedule, 
India imposes a 20% duty rate o n products classified under tariff item 8517.13.00 (smartphones) 
and certain products classified under tariff item 8517.14.00 (namely other telephones for cellular 
networks).725 India submits that Notification No. 57/2017, as amended by Notification No. 57/ 2021, 
exempts certain products classified under tariff item 8517.14.00 (namely other telephones for other 
wireless networks) from customs duties.726 
7.4.3.3.2   Panel's assessment  
7.283.   We proceed with our assessment by examining the tariff treatment accorded to products 
that, at the time of the Panel's establishment, fell under tariff item 8517.12 of India's First Schedule. 
We then assess the effects of India's amendment of the First Schedule during these proceedings .  
7.284.   It is uncontested that at the time of the Panel's estab lishment, India's First Schedule imposed 
a standard duty rate of 20% on products classified under tariff item 8517.12, covering "[t]elephones 
for cellular networks or for other wireless networks".727 It is also uncontested that, through 
Notification No. 57/ 2017, India exempted "[t]elephones for other wireless networks, other  than 
cellular networks" from customs duties.728 Therefore, at the time of the Panel's establishment, 
India's tariff treatment of products under tariff item 8517.12 of its First Schedule w as as follows:  
Tariff item  Product description  Applied duty rate  
8517.12  -- Telephones for cellular networks or for other 
wireless networks:  
--- Telephones for cellular networks   
8517.12.11  ---- Mobile phones, other than push button type  20% 
8517.12.19  ---- Mobile phones, push button type  20% 
8517.12.90  --- Telephones for other wireless networks  0% 
 
 
718 European Union's first written submission, para. 94 (referring to First Schedule as amended by 
Finance Act 2019,  (Exhibit EU -19)). 
719 European Union's first written submission, para. 104 (referring to Notification No. 57/2017, 
(Exhibit  EU-12)). (emphasis original)  
720 Europea n Union's response to Panel question No. 107, para. 66.  
721 European Union's first written submission, para.  106. 
722 European Union's response to Panel question No. 111, para. 74.  
723 European Union's communication (12 July 2022).  
724 India's first written submi ssion, para. 149.  
725 India's response to Panel question No. 110, para. 64.  
726 India's response to Panel question No. 108(a), para. 58 (referring to Notification No. 57/2017 as 
amended by Notification No. 57/2021, (Exhibit IND -89)).  
727 European Union's first written submission, para. 94; India's first written submission, para. 149. See 
also First Schedule  as of 2016/2017 , (Exhibit EU -59), as amended by Finance Act 2019,  (Exhibit EU -19). 
728 Notification No. 57/2017, (Exhibit EU -12). See also European Union's first written submission, 
para. 104; and India's response to Panel question No. 108(a), para. 58.  WT/DS582/R  
 
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  7.285.   During the Panel proceedings, India amended its First Schedule through the Finance Act 
2021 to align it with the HS2022. The Finance Act 2021 came into effect on 1 January 2022. The 
amendments to the First Schedule include changes to tariff item 8517.12.  The Finance Act 2021 
provides that the words "including telephones" occurring against heading 8517 be substituted with 
the words "includin g smartphones and other telephones". The Finance Act 2021 also amended the 
First Schedule, as follows: "for sub -heading 8517 12, tariff items 8517 12 11 to 8517 12 90 and the 
entries relating thereto" were substituted with  tariff item 8517.13.00, relating to "smartphones", 
and tariff item 8517.14.00, relating to "other telephones for other cellular networks or other wireless 
networks".729 As amended, India's First Schedule imposed a standard duty rate of 20% on products 
classified under tariff items 8517.13. 00 and 8517.14.00.730  
7.286.   We also observe that pursuant to India's Notification No. 57/2017, as amended by 
Notification No. 57/2021, India exempts certain products covered by tariff item 8517.14.00, namely 
"telephones for other wireless networks, other than ce llular networks", from customs duties.731 It is 
uncontested that all other products covered by tariff items 8517.13.00 and 8517.14.00, (i.e. 
"smartphones" and "other telephones for cellular networks") are subject to a tariff treatment of 
20%.732 Therefore, p ursuant to Notification No. 57/2017 (as amended) as well as the First Schedule, 
India's tariff treatment of products classified under tariff items 8517.13.00 and 8517.14.00 of its 
First Schedule is presently as follows:  
Tariff item  Product description  Applied duty rate  
8517.13.00  -- Smartphones  20% 
8517.1 4.00 -- Other telephones for cellular networks  20% 
8517.1 4.00 -- Other telephones for other wireless networks  0% 
 
7.4.3.4   Comparison of India's tariff treatment to its WTO tariff commitments  
7.4.3.4.1   Preliminary issues  
7.287.   As indicated above, India argues that the measure as challenged by the European Union has 
ceased to exist, as a consequence of the amendments to India's First Schedule  to reflect the HS2022. 
India also argues that the European Union has  failed to demonstrate that smartphones are products 
classified under tariff item 8517.12 of India's WTO Schedule. We proceed with our comparison of 
India's tariff treatment to its WTO tariff commitments by first assessing these preliminary issues.  
7.288.   In our  view, it is useful to first address India's arguments concerning the European Union's 
alleged failure to demonstrate that smartphones are classified under tariff item 8517.12 of India's 
WTO Schedule. This is because the measure at issue , as defined by the  European Union, only extends 
to the tariff treatment of products falling under that tariff item. To the extent that a product (such 
as smartphones) falls outside the scope of that tariff commitment, it would also fall outside our 
terms of reference. Since  this assessment will define the scope of the measure as challenged by the 
European Union, we consider it useful to first assess this issue, before turning to assess whether the 
measure, as challenged, has ceased to exist.  
7.4.3.4.1.1   Whether the measure at issue inc ludes the tariff treatment of "smartphones"  
Main arguments of the parties  
7.289.   The European Union asserts that "smartphones" are "telephones for cellular networks" and 
are covered by India's commitments under tariff item 8517.12 of India's WTO Schedule. The 
European Union notes that smartphones have additional functions other than "pure telephone calls", 
but maintains that the main function remains telecommunication via a cellular network by a 
SIM card.733 The European Union considers that because, in its view, t he principal function of 
 
729 Finance Act 2021, (Exhibit IND -66), p. 176 . 
730 Finance Act 2021, (Exhibit IND -66), p. 176.  
731 Notification No. 57/2017 as amended by Notification No. 57/2021, (Exhibit IND -89). See also India's 
response to Panel question No. 108(a), para. 58 (referring to Notification No. 57/2017 as amended by 
Notification No. 57/2021, (Exhibit IND -89)); and European Union's communication (12 July 2022).  
732 European Union's response to Panel question No. 111, para. 74; India's response to Panel  question 
No. 110, para. 64.  
733 European Union's response to Panel question No. 109, para. 67.  WT/DS582/R  
 
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  smartphones is telecommunication via a cellular network, tariff item 8517.12 is the appropriate 
classification for such products.734 The European Union submits that Note 3 to Section XVI of the 
HS Nomenclature provides that "[u]nles s the context otherwise requires, composite machines 
consisting of two or more machines fitted together to form a whole and other machines designed for 
the purpose of performing two or more complementary or alternative functions are to be classified 
as if consisting only of that component or as being that machine which performs the principal 
function ."735 The European Union argues that applying this Note, the WCO adopted a Classification 
Opinion in 2018 confirming that smartphones are classified under tariff  item 8517.12 of the 
HS2007.736 The European Union also contends that the manner in which a specific tariff item for 
smartphones was created in the HS2022 and adopted by India confirms that prior to the change, 
smartphones were categori zed under tariff item 8517.12 in the HS2007.737 
7.290.   India maintains that "the term 'smartphones' does not appear in the ITA [] or in the [HS] 
2007 Schedule."738 India submits that "HS2007, HS2012 and HS2017 solely used the 'type of 
network' a particular telephone uses to classify telephones under sub -headings 8517.11 and 
8517.12 ", while tariff item 8517.13.00 in the HS2022 "is based on functionality of the phone and 
the type of network ."739 In India's view, smartphones could not have been classified under tariff 
item 8517.12, which "solely used the 'type of network'" to classify telephones.740 Relying on 
Chapter  Note 5 to Chapter 85  in the HS2022 , India considers that "smartphones are multifu nctional 
devices, and the principal function of these devices is not that of telephones".741 India also submits 
that "since 'smartphones' were not granted a dedicated tariff sub -heading in HS2007, they were 
classifiable under different tariff items, dependi ng on the functionality of the smartphones".742 India 
also notes that tablet computer s were classified under HS2007 subheading 8471.30 , and while " not 
tak[ing] a definitive position on the issue" , considers that "tablets too could potentially be classifiabl e 
as 'smartphones' (within the meaning of HS2022), being capable of making calls over a cellular 
network."743 India argues  that "smartphones could have been classified under various tariff lines 
under HS2007 (on the basis of the primary functionality of the  machine) and not just under 
sub-heading 8517.12."744 
Panel's assessment  
7.291.   We recall that the product description of subheading 8517.12 of India's WTO Schedule is 
"telephones for cellular networks or for other wireless networks".745 The European Union submits  
that "smartphones" are "telephones for cellular networks", and are therefore classified under this 
 
734 European Union's response to Panel question No. 109, para. 70.  
735 European Union's response to Panel question No. 109, para. 69 ( quoting  HS2007 Section Notes to 
Section XVI , (Exhibit EU -56), Note 3).  (underlining original)  
736 European Union's response to Panel question No. 109, para. 68 (referring to WCO, Classification 
Opinion on "smartphones" (2018) , (Exhibit EU -55)). 
737 European Union's response to Panel question  No. 109, paras. 71 -72 (referring to Finance Act 2021, 
(Exhibit IND -66), pp. 173 and 176).  
738 India's second written submission, para. 151. 
739 India's response to Panel question No. 108, para. 60, and No. 109, para. 63. 
740 India notes that tablets were defined in a WCO Classification Opinion as " machines which are 
'designed to be primarily operated by using its  touch screen. It can process data, execute programs, and 
connect to the Internet via a wireless network in order to, for example, exchange and ma nage e -mails, 
exchange or download files, download software applications, conduct video or VoIP ('Voice over Internet 
Protocol') communications, etc." ( India's comments on the European Union's  response to Panel question No. 
109, para. 31 (quoting  WCO, HS Committee, 49th Session, "Classification of the Machines Commercially 
Referred to as 'Tablet Computers'" (13 February 2012) document NC1730E1a; and WCO, HS Committee, 50th 
Session, "Possible Amendments to the Compendium of Classification Opinions and Explan atory Notes arising 
from the Decisions taken by the Committee at its 49th Session" (19 July 2012) document NC1775E1a , (Exhibit 
IND-88))).  
741 India's response to Panel question No. 108, para. 60 (referring to Chapter 85 of the HS2022 , (Exhibit 
IND-87), Note 5). Chapter Note 5 to Chapter 85 in the HS2022 reads: "[f]or the purposes of heading 85.17, 
the term 'smartphones' means telephones for cellular networks, equipped with a mobile operating system 
designed to perform the functions of an automatic data proces sing machine such as downloading and running 
multiple applications simultaneously, including third -party applications, and whether or not integrating other 
features such as digital cameras and navigational aid systems."  
742 India's response to Panel question  No. 108, paras. 60 and 62 . 
743 India's comments on the European Union's  response to Panel question No. 109, para. 31. 
744 India's comments on  the European Union's  response to Panel question No. 109, para. 31. 
745 See para. 7.279  above.  WT/DS582/R  
 
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  subheading.746 India maintains that smartphones could have been classified under other 
subheadings of its WTO Schedule depending on their primary functionali ty, and not just under 
subheading 8517.12.747 We note that, to the extent that smartphones are not classified under 
subheading 8517.12, they would fall outside the scope of the measure as challenged by the European 
Union. We therefore proceed to address whe ther "smartphones" are classified under subheading 
8517.12 of India's WTO Schedule.  
7.292.   We recall India's argument that the term "smartphones" does not appear in the ITA or in 
the HS2007 Schedule.748 We have rejected India's arguments that the ITA limits the sc ope of its 
tariff commitments in its WTO HS2007 Schedule.749 Therefore, we consider that the absence of the 
term "smartphones" from the ITA is not determinative of the scope of India's WTO tariff 
commitments. Further, the absence of the term "smartphones" i n the HS2007 Schedule is not 
determinative of this issue either because tariff concessions in Members' WTO Schedules apply to 
all products falling within the terms of the concession, when interpreted in accordance with 
customary rules of interpretation.750 We will therefore assess whether "smartphones" are covered 
by subheading 8517.12 of India's WTO Schedule by interpreting the relevant terms in such Schedule 
in accordance with customary rules of interpretation.  
7.293.   The terms of the treaty at issue as reflect ed in subheading 8517.12 of India's WTO Schedule 
are "telephones for cellular networks". We note that the phrase  "telephones for cellular network" is 
not defined in India's WTO Schedule.  
7.294.   We consider, however, that the HS2007 Explanatory Notes may serve as  relevant  context 
when interpreting India's WTO  Schedule , which is based on the HS2007 .751 In this regard, we 
observe that the HS2007 Explanatory Notes provide that the product description "[t]elephones for 
cellular networks or for other wireless networks" covers "telephones for use on any wireless 
networks", and indicate that "[s]uch telephones receive and emit radio waves which are received 
and retransmitted, e.g. by base stations or satellites", including, inter alia ,"[c]ellular phones or 
mobile phones" a nd "[s]atellite phones".752 The key point of disagreement between the parties is 
whether "smartphones" are "cellular phones or mobile phones".  
7.295.   The dictionary meaning of "smartphone" is "a mobile phone capable of running general -
purpose computer application s, now typically with a touch -screen interface, camera, and internet 
access" .753 Other dictionaries define "smartphone" as a "cell phone that includes additional software 
functions (such as email or an Internet browser)"754 and "a mobile telephone with compu ter features 
that may enable it to interact with computerized systems and access the web".755 The foregoing 
suggests that "smartphones" are indeed "telephones for cellular networks", to the extent that they 
have the same functions as (and indeed are defined  as) "mobile phones" and "cell phones".  
7.296.   However, t he dictionary definitions described above indicate that "smartphones" have 
functions additional  to those of "telephones ", such as "computer features" . Given that smartphones 
have various functions, the parties disagree on whether such products would necessarily be classified 
under subheading 8517.12.756 In this regard, w e observe that, pursuant to  the General Rules for the  
Interpretation of the HS, classification shall be determined accordi ng to the terms of the headings 
and any relative Section or Chapter Notes. These Rules further provide that classification of goods 
 
746 European Union's response to Panel question No. 109, paras. 67 -73. 
747 India's comments on the European Union's response to Panel question No. 109, pa ra. 31.  
748 India's second written submission, para. 151.  
749 See para. 7.81 above.  
750 See para. 7.65 above . 
751 Appellate Body Report, EC – Computer Equipment , para. 89.  
752 HS2007 Explanatory Notes to Heading 8517, (Exhibit IND -8). 
753 Oxford  English Dictionary online, definition of "smartphone"  
https://www.oed.com/view/Entry/381083?redirectedFrom=smartphones#eid (accessed 17 October 2022).   
754 Merriam -Webster Dictionary online, definition of "smartphone" https://www.merriam -
webster.com/dictionary/smartphone  (accessed  17 October 2022) . 
755 Collins Dictionary online, definition of "smartphone" 
https://www.collinsdictionary.com/dictionary/english/smartphone (accessed 17 October 2022) .  
756 For India, because of t hese additional functions, "the principal function no longer appears to be that 
of a telephone." Therefore, according to India, smartphones " were classifiable under different tariff items, 
depending on the functionality of the smartphones ." (India's respon se to Panel question No. 108(a), para. 60).  WT/DS582/R  
 
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  shall be determined according to the terms of those subheadings and any related Subheading 
Notes .757  
7.297.   We note that Chapter No te 3 to Section XVI provides as follows regarding Chapter 85, the 
relevant Chapter relating to the products at issue:  
Unless the context otherwise requires, composite machines consisting of two or more 
machines fitted together to form a whole and other machines designed for the purpose 
of performing two or more complementary or alternative functions are to be classified 
as if consisting only of that component or as being that machine which performs the 
principal function .758  
7.298.   Therefore, for composite machines falling under Chapter 85, including subheading 8517.12, 
the general rule is to classify such products "as being that machine which performs the principal 
function ". We observe that the definitions of "smartphone" set out above indicate that the principal 
function of a smartphone is that of a "cell phone" or a "mobile phone". The other functionalities, 
which indeed differ  among smartphones, are additional  functions or capabilities. In this light, we 
understand that the General Rules for the Interpretation of the HS and the Chapter Note to Section 
XVI of the HS2007 suggest that smartphones are classified under tariff item 8 517.12 of India's 
WTO Schedule.  
7.299.   We also note that the WCO, applying the General Rules for the Interpretation referred to 
above, issued a Classification Opinion in which it classified "smartphones" under subheading 
8517.12.759 Classification Opinions, which are issued by the Harmonized System Committee of the 
WCO, are not binding upon parties to the WCO. However,  pursuant to Article 7(1)(b) of the 
HS Convention , such Classification Opinions serve as guides to interpreting the HS. In this regard, 
we agree with a previous panel which considered WCO decisions to be "a very useful source of 
information on the subsequent practice of WTO Members, a large proportion of whom are signatories 
to the HS Convention and, therefore, are members of the HS Committee".760 We therefore consider 
it relevant to our interpretative exercise that this WCO Classification Opinion indicates that 
smartphones are "telephones for cellular networks", and are appropriately classified under 
subheading 8517.12 of India's WTO Schedule.761  
7.300.   We understand that the term "smartphones" was introduced into the HS nomenclature 
through the HS2022 amendment. We consider that the HS2022 may constitute relevant context to 
verify our understanding of where such products were classified in the HS2007. In t his regard, we 
note that Chapter Note 5 to Chapter 85 of the HS2022 provides that for the purposes of heading 
8517, the term "smartphones" means " telephones for cellular networks , equipped with a mobile 
operating system designed to perform the functions of  an automatic data processing machine such 
as downloading and running multiple applications simultaneously, including third -party applications, 
and whether or not integrating other features such as digital cameras and navigational aid 
systems."762 This defi nition is consistent with the dictionary definitions we have referred to above. 
Moreover, it supports our assessment that the principal function of smartphones is that of telephones 
for cellular networks, with their additional capabilities being ancillary functions. Indeed, as this 
definition indicates, some of the additional functions that India refers to, such as "photography and 
videography"763 are not core functions of smartphones.764  
 
757 General Rules for the Interpretation of the Harmonized System, (Exhibit EU -54), paras. 1 and 6.  
758 HS2007 Section Notes to Section XVI , (Exhibit EU -56), Note 3. (emphasis added)  
759 WCO, Classification Opinion on "smartphones" (2018) , (Exhibit EU -55).  
760 Panel Reports, EC – Chicken Cuts , para. 7.298. See also Appellate Body Report, EC – Computer 
Equipment , para. 90.  
761 We note that this Classification Opinion was issued in 2018, with regard to the HS2017. We also 
observe that subheading 8517.12 remains unchanged between HS2007 and HS2017. Therefore, this 
Classification Opinion is relevant to our interpretation of India' s WTO Schedule, which is based on the HS2007.  
762 Chapter 85 of the HS2022 , (Exhibit IND -87), Note 5. (emphasis added)  
763 India's response to Panel question No. 109(b), para. 63. See also India's response to Panel question 
No. 108(a), para. 60.  
764 We emphasize  that the definition of a smartphone includes the language " whether or not  integrating 
other features such as digital cameras". ( Chapter 85 of the HS2022 , (Exhibit IND -87), Chapter Note 5).  
(emphasis added)  WT/DS582/R  
 
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  7.301.   The structure and content of the HS2022 further supports this interpre tation. The relevant 
sections of the HS2022 read as follows765:  
 Product description  
8517 Telephone sets, including smartphones and other telephones for cellular networks  
or for other wireless networks; other apparatus for the transmission or reception of  
voice, images or other data, including apparatus for communication in a wired or 
wireless network (such as a local or wide area network), other than transmission or 
reception apparatus of heading 84.43, 85.25, 85.27 or 85.28.  
 -  Telephone sets, including smartphones and other telephones for cellular networks  
or for other wireless networks:  
8517.11 -- Line telephone sets with cordless handsets  
8517.1 3 -- Smartphones  
8517.1 4 -- Other telephones for cellular networks or for other  wireless networks  
 
7.302.   We observe that the product description s of heading 8517 of HS2022 and the single -hyphen 
entry immediately following it read "[t]elephone sets, including smartphones and other telephones 
for cellular networks or for other wireless networks ."766 Subheading 8517.14, in turn, refers to 
"[o]ther telephones for cellular networks or for other wireless networks". The use of the word 
"other"767 preceding the term "te lephones for cellular networks" in heading 8517 and in subheading 
8517.14 indicates that products in addition to  smartphones are also telephones for cellular networks. 
Thus, the HS2022 indicates that "smartphones" are "telephones for cellular networks" . The fact that 
the HS2022 further splits the classification of "telephones for cellular networks" into two subheadings 
(namely smartphones, and a residual category, comprising "other telephones for cellular networks") 
confirms this conclusion.  
7.303.   Finally, we not e that the manner in which India amended its First Schedule indicates that, 
in India's domestic customs regime, smartphones are telephones for cellular networks. We 
understand that the product description attached to heading 8517 of India's First Schedule as of 1 
January 2022 reads "including smartphones and other telephones for other cellular networks ".768 
Moreover, the product description attached to tariff item 8517.14.00 of the First Schedule is " [o]ther 
telephones for cellular networks ". These product d escriptions  suggest that smartphones  are a type 
of telephone for cellular networks . We further note that the Finance Act 2021 itself clarifies that 
"[f]or the purposes of heading 8517, the term 'smartphones' means telephones for cellular 
networks ."769 
7.304.   While India argues that " smartphones could have been classified under various tariff lines 
under HS2007 (on the basis of the principal functionality of the machine)", India does not 
demonstrate under which subheading of its WTO Schedule it considers such p roducts should have 
been classified. We note that India suggests that tablet computers, which are defined as "machines 
which are 'designed to be primarily operated by using its  touch screen" because they "can process 
data, execute programs, and connect to the Internet via a wireless network in order to, for example, 
exchange and manage e -mails, exchange or download files, download software applications, conduct 
video or VoIP ('Voice over Internet Protocol') communications, etc" could "potentially be classif iable 
as 'smartphones' (within the meaning of HS2022), being capable of making calls over a cellular 
network."770 India also submits that it "does not take a definitive position on the issue".771 We do 
not consider it necessary to discuss whether tablet comp uters could potentially be classifiable as 
smartphones. Notwithstanding that India does not take a firm view on the issue , the question before 
us is not whether tablets are classified as smartphones in India's WTO Schedule (indeed, the term 
 
765 Emphasis added.  
766 Chapter 85 of the HS2022 , (Exhibit IND -87). (emphasis added)  
767 The word "other" means "[s]eparate or distinct from that or those already specified or implied; 
different; (hence) further, additional ." (Oxford English  Dictionary online, definition of " other " 
https://www.oed.com/view/En try/133219?rskey=Z7lVMl&result=1&isAdvanced=false#eid  (accessed 17 
October 2022) ). 
768 Emphasis added. We recall that the description of heading 8517 in the First Schedule at the time of 
Panel establishment read "including telephones for other cellular networks".  India's Finance Act 2021 provides 
that the words "'including telephones'" in the description attached to heading 8517 be substituted with the 
words "including smartphones and other telephones".  (Finance Act 2021, p. 176 ).  
769 Finance Act  2021, (Exhibit IND -66), p. 44. (emphasis added)  
770 India's comments on the European Union's response to Panel question No. 109(a), para. 31.  
771 India's comments on the European Union's response to Panel question No. 109(a), para. 31.  WT/DS582/R  
 
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  "smartphone" do es not appear in that Schedule), but rather whether smartphones are classified as 
"telephones for cellular networks" within the meaning of India's WTO Schedule.  
7.305.   In light of the foregoing, we conclude that smartphones are cellular mobile phones within 
the m eaning of subheading 8517.12 of India's WTO Schedule.  
7.4.3.4.1.2   Whether the challenged measure has ceased to exist  
Main arguments of the parties  
7.306.   India argues that, following the "amendments" to its First Schedule, "subheading 8517.12 
has ceased to exist", and there fore the measure challenged by the European Union has ceased to 
exist. India also submits that "[s]martphones and [t]elephones for cellular networks are now 
classified under sub -headings 8517.13 and 8517.14, respectively." India observes that "[t]he 
descri ption of sub -headings 8517.13 and 8517.14 is different from the description of the erstwhile 
sub-heading 8517.12." According to India, "if a product is to be classified under a tariff entry, then 
the heading and description both would have to be seen toget her to determine the commitments 
prescribed in the schedule." India maintains that "the term 'smartphones' does not appear in the 
ITA[] or in the 2007 Schedule. Accordingly, no commitments exist with respect to such 
smartphones." Further, according to Indi a, "there exists no certified schedule with respect to 
sub-headings 8517.13 and 8517.14." Therefore, "India submits that the measure identified by the 
European Union has ceased to exist, and the Panel cannot issue any rulings or recommendation on 
the measu res pertaining to sub -heading 8517.12."772 
7.307.   The European Union submits that the measure at issue is "the imposition of certain tariff 
duties on certain products", which the European Union "identified by reference to India's schedule 
of concessions (based on HS2007),  and by their descriptions".773 The European Union asserts that, 
subsequent to the amendments to India's First Schedule its measure has "not disappeared or … been 
changed: India continues to impose customs duties on the same products (previously cla ssified 
under a different tariff line number)".774  
Panel's assessment  
7.308.   We observe that in its panel request, the European Union challenged "the duties applied by 
India on imports of certain ICT products" in excess of the bindings set forth in India's WTO S chedule. 
The panel request also states that "[t]he ICT products concerned fall within the scope of the bindings 
included in India's WTO Schedule with respect to the following tariff lines (based on the HS 2007)": 
inter alia , 8517.12.775 Therefore, the measu re at issue is the imposition of customs duties by India 
on products falling within the scope of tariff item 8517.12 of India's WTO Schedule.  
7.309.   We recall that the product description attached to tariff item 8517.12 of India's 
WTO Schedule is "[t] elephones fo r cellular networks or for other wireless networks ".776 At the time 
of the Panel's establishment, India classified these products under tariff items 8517.12.11, 
8517.12.19 and 8517.12.90 of its First Schedule.777 India's First Schedule  as of 1 January 2022 
substituted  tariff items 8517.12.11, 8517.12.19 and 8517.12.90 with tariff items 8517.13.00 and 
8517.14.00.778 Therefore, as India argues, tariff item 8517.12 does not exist in its First Schedule 
subsequent to the amendments. We also observe that, as India argues, the product descriptions 
attached to tariff items 8517.13.00 and 8517.14.00 differ from those attache d to tariff items 
8517.12.11, 8517.12.19 and 8517.12.90 of the First Schedule at the time of the Panel's 
establishment.  
7.310.   However, these facts are not dispositive of whether the measure challenged by the European 
Union has ceased to exist. As we have observe d above, the European Union challenges the imposition 
 
772 India's second writte n submission, para. 151.  
773 European Union's response to Panel question No. 106, para. 62.  
774 European Union's response to Panel question No. 106, para. 64.  
775 European Union's panel request,  p. 1. 
776 WT/Let/1072.  
777 India's First Schedule  as of 2016/2017 , (Exh ibit EU -59), as amended by Finance Act 2019, 
(Exhibit  EU-19), p. 139.  
778 Finance Act 2021, (Exhibit IND -66), p. 176.  WT/DS582/R  
 
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  of customs duties on products falling under tariff item 8517.12 of India's WTO Schedule . India's 
WTO Schedule has not been amended.779 It is uncontested that products falling under tariff item 
8517.12 of  India's WTO Schedule were previously classified under tariff items 8517.12.11, 
8517.12.19 and 8517.12.90 of India's First Schedule. We also recall India's submission that "'other 
telephones for cellular networks' classified under sub -heading 8517.14 [of I ndia's First Schedule  as 
of 1 January 2022] … would have been classified under 8517.12.11 or 8517.12.19 of the HS2007".780 
Therefore, it is uncontested that "other telephones for cellular networks" classified under subheading 
8517.14 of India's First Schedu le as of 1 January 2022 fall within the scope of tariff item 8517.12 of 
India's WTO Schedule. Moreover, given our finding above that "smartphones" are classified under 
tariff item 8517.13 of India's First Schedule as of 1 January 2022 are telephones for ce llular 
networks, such products also fall within the scope of tariff item 8517.12 of India's WTO Schedule.  
7.311.   We recall that the measure as challenged by the European Union is the tariff treatment 
accorded to products classified under tariff item 8517.12 of I ndia's WTO Schedule, namely 
"telephones for cellular networks or for other wireless networks". We have concluded above that 
"smartphones" and "other telephones for cellular networks"  constitute "telephones for cellular 
networks or for other wireless networ ks", which fall within the scope of tariff item 8517.12 of India's 
WTO Schedule.781 We also note that, since 1 January 2022, India continues to impose customs duties 
on these products. We therefore conclude that the measure as challenged by the European Uni on 
has not ceased to exist.   
7.4.3.4.2   Comparison of applied and bound duty rates  
7.312.   We recall that pursuant to its WTO Schedule, India is obligated to accord unconditional 
duty-free treatment to telephones for cellular networks or for other wireless networks. We also  recall 
that, effective 1 January 2022, such products are classified under tariff items 8517.13.00 and 
8517.14.00 of India's First Schedule.  
7.313.   We have also found that India applies a 20% duty rate on smartphones covered under tariff 
item 8517.13.00, and oth er telephones for cellular networks covered under tariff item 8517.14.00. 
India exempts "other telephones for other wireless networks" covered under tariff item 8517.14.00 
from customs duties.  
7.314.   Therefore, with regard to smartphones and other telephones for  other cellular networks, 
India imposes a duty rate that is in excess of the bound duty rate set forth in India's WTO Schedule. 
India exempts "other telephones for other wireless networks" from customs duties, and therefore 
accords to such products uncondi tional duty -free treatment, in accordance with the terms of its  
WTO Schedule.  
7.4.3.5   Conclusion  
7.315.   Based on the foregoing, we find that India's tariff treatment of certain products falling within 
the scope of tariff item 8517.12 of India's WTO Schedule, is inconsistent with Article II:1(b), first 
sentence, of the GATT 1994, because certain such products  are subject to ordinary customs duties 
in excess of those set forth and provided in India's WTO Schedule.  
7.316.   We recall that the application of ordinary customs duties in excess of those provided for in 
a Member's Schedule, inconsistent with the first senten ce of Article II:1(b), also constitutes "less 
favourable" treatment within the meaning of Article II:1(a). Consequently, we find that India's tariff 
treatment of certain such products is less favourable than that provided in its WTO Schedule, and 
India is therefore acting inconsistently with Article II:1(a) of the GATT 1994.  
 
779 Indeed, India notes that "there exists no certified schedule with respect to sub -headings 8517.13 
and 8517.14".  (India's second written su bmission, para. 151).  
780 India's response to Panel question No. 108(a), para. 59.  
781 See para. 7.286  above.  WT/DS582/R  
 
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  7.4.4   Tariff item 8517.61  of India's WTO Schedule  
7.4.4.1   India's WTO tariff commitments  
7.4.4.1.1   Main arguments of the parties   
7.317.   The European Union  asserts  that India's bound duty  rate for products falling under tariff item  
8517.61 of India's WTO Schedule , base stations,  is 0%.782 
7.318.   India contends that the tariff commitments under tariff item 8517.61 as reflected in its 
WTO Schedule based on the HS2007 were certified in error.783 India maintains that it did not intend 
to make commitments on base stations, which in its view were not covered under the ITA  or the 
HS1996 , and were introduced to the HS Nomenclature in the 2007 edition .784 According to India, 
the commitments under tariff item 8517.61 were undertaken in error, are void pursuant to Article  48 
of the Vienna Convention, and are therefore rendered unbound.785 
7.4.4.1.2   Panel's assessment  
7.319.   We have addressed India's arguments that its WTO Sc hedule was certified in error above, 
and held that India's tariff commitments are set forth  in India's WTO Schedule.786 We have also 
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff 
commitments in its WTO HS20 07 Schedule.787 Moreover, we have declined to make the findings 
requested by India regarding its request to rectify its WTO Schedule pursuant to the 
1980 Decision.788 
7.320.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2007 Schedule provides, inter alia , the following789: 
 Product description  Bound 
rate 
8517.61  -- Base stations   0% 
 
7.321.   A review of India's WTO Schedule  shows t hat India committed to a bound duty rate of 0% 
for products falling under tariff item  8517.61 , namely "[b]ase stations".790 We also note that India 's 
WTO Schedule does not indicate  any terms, qualifications or conditions  that must be met in order 
for products under tariff item 8517.61 to receive the 0% bound duty rate .791 Therefore, in accordance 
with its WTO Schedule,  India is obligated to provide unconditional duty -free treatment to base 
stations falling under tariff item 8517.61 of its WTO Schedule.  
7.4.4.2   India's tariff treatment  
7.4.4.2.1   Main a rguments of the parti es  
7.322.   The European Union argues that India's First Schedule imposes a standard duty rate of 20% 
on imports of base stations, which India classifies under tariff item 8517.61 of its First Schedule.792 
The European Union also submits that  pursuant to Serial No. 425 of Notification No. 50/2017, India 
exempts base station controllers, base transreceiver stations, and antenna systems from customs 
duties, subject to the condition that they are imported by a  person licenced by the Department of 
 
782 European Union's first written submission, para. 108.  
783 India's first written submission, paras. 55 -91. 
784 India's first written submission, paras. 174 -184. 
785 India's first written submission, paras. 90 -91. 
786 See para. 7.213  above.   
787 See para.  7.81 above.   
788 See para. 7.245  above.   
789 WT/Let/1072.  
790 WT/Let/1072.  
791 WT/Let/1072.  
792 Europea n Union's first written submission, paras. 110 and 117.  WT/DS582/R  
 
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  Telecommunications of India for the purpose of providing Public Mobile Trunked Service.793 The 
European Union maintains that this condition is "provided for in Notifications issued by the 
Government of India on statutor y customs duties" and relates to "the payment of customs duties 
and not the importation of such products as such".794 
7.323.   India does not dispute that the applied duty rate on base stations is 20%.795 India also  does 
not dispute that certain products are exempt f rom customs duties if they meet the condition set out 
in Serial No. 425. However, India maintains that "the licensing requirement is applicable for the 
possession of the specified wireless apparatus in the country – whether it is procured domestically 
or imported."796 According to India, there is no requirement to record such "procedural and 
documentary formalities for the importation of goods" in its WTO Schedule.797 India also submits 
that Serial No. 425 was omitted from Notification No. 50/2017 through Not ification No.  02/2022.798 
Finally, India maintains that the products covered by Serial No. 425 (base station controllers, base 
transreceiver stations, and antenna systems) are " sub-systems and not complete base stations ", 
and are therefore not covered by tariff item 8517.61.00 of India's First Schedule.799 
7.4.4.2.2   Panel's assessment  
7.324.   India's First Schedule imposes  a standard duty rate of 20% on products falling under tariff 
item 8517.61.800  
7.325.   At the time of the Panel's establishment, Serial No. 425 of Notification No. 50/2017 
exempt ed from cu stoms duties base station controllers , base transreceiver stations , and antenna 
systems  if imported by a person licenced by the Department of Telecommunications for the purpose 
of providing Public Mobile Radio Trunked Service .801 Notification No. 02/2022 am ended Notification 
No. 50/2017 and omitted Serial No. 425 from that Notification with effect from 1 February 2022.802 
Therefore, with effect from 1 February 2022, the three products at issue are not eligible for 
exemption, even assuming that such products a re classified under tariff item 8517.61 of the First 
Schedule.803  
7.326.   In sum, we find that India imposes a duty rate of 20% on products falling under tariff item 
8517.61.     
7.4.4.3   Comparison between India's WTO tariff commitments  and its tariff treatment  
7.327.   We recall our finding above that pursuant to its WTO Schedule, India is obligated to provide 
unconditional duty -free treatment to base stations, under tariff item 8517.61 of that Schedule.  
7.328.   We have found that India imposes a 20% customs duty on products fa lling under tariff item 
8517.61 of its First Schedule. We consider that such products are covered by India's WTO  tariff 
commitments with respect to base stations, falling under tariff item 8517.61 of India's 
WTO Schedule. A comparison between India's bound  duty rate and India's tariff treatment indicates 
 
793 European Union's response to Panel question No. 83, para. 126, No. 112, para. 75, and No.  113, 
para. 76 (referring to Notification No. 5 0/2017, (Exhibit EU-34)). See also European Union's response to Panel 
question No.  134, para. 4.  
794 European Union's response to Panel question No. 104, para. 54.  
795 India's first written submission, para. 173.  
796 India's response to Panel question No. 103, para. 48 (referring to Circular No. 04/2022 (27  Febru ary 
2022) , (Exhibit IND -81); Indian Wireless Telegraphy Act 1933, (Exhibit IND -82); and Notification No.  71 (25 
September 1953) , (Exhibit IND -83)). 
797 India's response to Panel question No. 103, para. 49.  
798 India's response to Panel question No. 134.  
799 India's response to Panel question No. 134.  
800 First Schedule  as of 2016/2017 , (Exhibit EU -59). 
801 Serial No. 425 of Notification No. 5 0/2017, (Exhibit IND -41). 
802 Notification No. 02/2022, (Exhibit IND -90). 
803 We note India's arguments that base station controlle rs, base transreceiver stations, and antenna 
systems are "sub -systems and not complete base stations", and  are therefore not necessarily classified under 
tariff item 8517.61.00  of India's First Schedule. (India's response to Panel question No. 134). Given that Serial 
No. 425 is no longer in effect, we do not consider it necessary for the resolution of this dispute to address the 
classification of these products.  WT/DS582/R  
 
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  that India is imposing ordinary customs duties on those products in excess of the bound duty rate 
set forth in India's WTO Schedule.  
7.4.4.4   Conclusion  
7.329.   Based on the foregoing, we find that India's tariff treatmen t of base stations , falling within 
the scope of tariff item 8517. 61 of India's WTO Schedule, is inconsistent with Article II:1(b), first 
sentence, of the GATT 1994, because such products are subject to ordinary customs duties in excess 
of those set forth a nd provided in India's WTO Schedule.  
7.330.   We recall that the application of ordinary customs duties in excess of those provided for in 
a Member's Schedule, or subject to terms, conditions or qualifications not set forth in the Schedule, 
inconsistent with the f irst sentence of Article II:1(b), also constitutes "less favourable" treatment 
within the meaning of Article II:1(a). Consequently, we find that India's tariff treatment of such 
products is less favourable than that provided in its WTO Schedule, and India is therefore acting 
inconsistently with Article II: 1(a) of the GATT 1994.  
7.4.5   Tariff item 8517.62 of India's WTO Schedule  
7.4.5.1   India's WTO tariff commitments  
7.4.5.1.1   Main arguments of the parties   
7.331.   The European Union  asserts  that India's bound duty  rate for products falli ng under tariff item  
8517.6 2 of India's WTO Schedule , machines for the reception, conversion and transmission or 
regeneration of voice, images or other data, including switching and routing apparatus,  is 0%.804  
7.332.   India contends that the tariff commitments un der tariff item 8517.62 as reflected in its 
WTO Schedule based on the HS2007 were certified in error.805 India maintains that it did not make 
commitments on machines for the reception, conversion and transmission or regeneration of voice, 
images or other da ta, including switching and routing apparatus, which in its view were not covered 
under the ITA  or the HS1996 .806 India also submits that the commitments under tariff item 8517.62 
were undertaken in error, are void pursuant to Article  48 of the Vienna Conve ntion, and are therefore 
rendered unbound.807 
7.4.5.1.2   Panel's assessment  
7.333.   We have addressed India's arguments that its WTO Schedule was certified in error above, 
and held that India's tariff commitments are set forth  in India's WTO Schedule.808 We have also 
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff 
commitments in its WTO HS2007 Schedule.809 We have also considered that the fact that a product 
is covered by the ITA Expansion does not necessarily imply that such product did not already fall 
within the scope of tariff concessions set forth in relevant Members' WTO Schedules.810 Moreover, 
we have declined to make the findings requested by India regarding its request to rectify its 
WTO Schedule pursuant to the 19 80 Decision.811 
7.334.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2007 Schedule provides, inter alia , the following812: 
 
804 European Union 's first written submission, para. 119.  
805 India's first written submission, paras. 57 -91. 
806 India's first written submission, paras. 196 -201; second written submission, paras. 117 -131. 
807 India's first written submission, paras. 90 -91. 
808 See para. 7.213  above.   
809 See para.  7.81 above.   
810 See para. 7.77 above.   
811 See para. 7.245  above.   
812 WT/Let/1072.  WT/DS582/R  
 
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   Product description  Bound 
rate 
8517.62  --Machines for the reception, conversion and transmission or 
regeneration of voice, images or other data, including switching and 
routing apparatus  0% 
 
7.335.   A review of India's WTO Schedule  shows t hat India committed to a bound duty rate of 0% 
for products falling under tariff item  8517.6 2, namely "[m]achines for the reception, conversion and 
transmission or regeneration of voice, images or other data, including switching and routing 
apparatus ".813 We also note that India 's WTO Schedule does not indicate  any terms, qualifications 
or conditions  that m ust be met in order for products falling under tariff item 8517.62 to receive the 
0% bound duty rate .814 Therefore, in accordance with its WTO Schedule,  India is obligated to provide 
unconditional duty -free treatment to m achines for the reception, conversio n and transmission or 
regeneration of voice, images or other data, including switching and routing apparatus  falling under 
tariff item  8517.6 2 of India's WTO Schedule.  
7.4.5.2   India's tariff treatment  
7.4.5.2.1   Main a rguments of the parties  
7.336.   The European Union argues that India's First Schedule sets a standard duty rate of 20% on 
imports of certain products which India classifies under tariff item 8517.62.90 of its First Schedule, 
namely certain machines for the reception, conversion and transmission or regeneration of voic e, 
images or other data, including switching and routing apparatus.815 The European Union submits 
that Notification  No. 24/2005 initially exempted "all goods" under  tariff item 8517 from tariff duties, 
but Notification No. 58/2017  subsequently limited the s cope of the exemption to  certain products 
which did not include those covered by tariff item 8517.62.90.816 The European Union also submits 
that Notification No. 57/2017, as amended by Notification No. 02/2019, reduced the duty rate 
applicable to certain products falling under tariff item 8517.62.90 to 10%.817 The European Union 
further notes that Notification N o. 36/2019 exempts "routers" from customs duties.818 Thus, 
according to the European Union, India imposes a duty rate of 10% or 20% to products falling under 
tariff item 8517.62.90819, except for routers which are exempted from customs duties.820  
7.337.   India submi ts that the applied duty rate on products classified under tariff item 8517.62.90 
of the First Schedule is 10% or 20%.821 India notes that  Notification No. 57/2017 which reduces the 
applicable duty rate to 10% for certain products covered by tariff item 851 7.62.90 applies to 
products covered by tariff items "8517.62.90 or 8517.69.90".822 India submits that the products 
described in that Notification "may not be classified under tariff item 8517.62.90".823 India argues 
that the European Union has failed to demo nstrate that th ese products listed in Notification  No. 
57/2017 fall within the scope of tariff item 8517.62.90 of India's First Schedule.824 Thus, according 
 
813 WT/Let/1072.  
814 WT/Let/1072.  
815 European Union's first written submission, paras. 121 -123 (referring to First Schedule as amended 
by the Finance Act 2018, (Exhibit EU -15)).  
816 European Union's first written submission, paras. 124 -127 (referring to Notification No. 24/2005 , 
(Exhibit EU -9); Notification No. 58/2017, (Exhibit EU -9)). 
817 European Union's first written submission, para. 129 (referring to Notification No. 57/2017 as 
amended by Notification No. 02/2019, (Exhibit EU -16)). See also European Union's response to Panel  question 
No. 36, para. 86.  
818 European Union's response to Panel question No. 84, para. 127 (referring to Notification 
No. 36/2019, (Exhibit EU -49)). 
819 European Union's first written submission, para. 131.  
820 European Union's response to Panel question No. 84, para. 127 (referring to Notification 
No. 36/2019, (Exhibit EU -49)). 
821 India's first written submission, para. 185; second written submission, para. 109.  
822 India's first written submission, paras. 186 -187; second written submission, paras. 112 -113 
(referring to Notification No. 57/2017), (Exhibit IND -42)). 
823 India's first written submission, para. 188.  
824 India's second written submission, para. 113; response to Panel question No. 105, para. 53.  WT/DS582/R  
 
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  to India, those goods "fall outside the scope of the dispute to the extent they are appropriately 
classified under sub -heading 8517.69".825  
7.4.5.2.2   Panel's assessment  
7.338.   We observe that India's First Schedule  provides as follows with regard to tariff item 
8517.62826: 
Tariff 
item Product description  Standard 
duty rate  
8517.62  -- Machines for the reception, conversion and transmission or 
regeneration of voice, images or other data, including switching 
and routing apparatus   
8517.62.10  --- PLCC equipment  0% 
8517.62. 20 --- Voice frequency telegraphy  0% 
8517.62. 30 --- Modems (modulators -demodulators)  0% 
8517.62. 40 --- High bit rate digital subscriber line system (HSDL)  0% 
8517.62. 50 --- Digital loop carrier system (DLC)  0% 
8517.62. 60 --- Synchronous digital hierarchy system (SDH)  0% 
8517.62.70  --- Multiplexers, statistical multiplexers  0% 
8517.62.90  --- Other  20% 
 
7.339.   India's First Schedule thus imposes a standard duty rate of 20% on  products falling under 
tariff item 8517.6 2.90, covering "other" machines for the reception, conversion and transm ission or 
regeneration of voice, images or other data, including switching and routing apparatus. The 
European Union's claim and arguments relate exclusively to the tariff treatment accorded to products 
classified under this residual category, i.e. tariff item 8517.62.90. The European Union does not 
dispute that the First Schedule exempts all other products falling under tariff item 8517.62 of that 
Schedule from customs duties.827  
7.340.   The applied duty rate for products classified under tariff item 8517.62.90 is  subject to several 
customs notifications. We observe that Notification No. 36/2019  presently exempts routers, falling 
under tariff item 8517.62.90, from customs duties. Thus, India a ccords unconditional duty -free 
treatment  to such products .828 
7.341.   Additionally, Notification No. 57/2017, as amended by  Notification No. 22/2018 , subjects all 
other goods falling under tariff item 8517.62.90 of the First Schedule "other than wrist wearable 
devices (commonly known as smart watches)" t o a reduced duty rate of 10% .829 Thus, while smart 
watches classified under tariff item 8517.62.90 remained subject to the standard duty rate of 20%, 
as set forth in the First Schedule, all other products classified under tariff item 8517.62.90 (other 
than routers830) became subject to a duty rate of 10% . 
7.342.   Subsequently, Notification No. 57/2017 was amended by  Notification No. 75/2018  to expand 
the list of goods subject to the standard duty rate of 20%, as follows831: 
S. No.  Tariff item  Description  
20 8517.62.90  (a) Wrist wearable devices (commonly known as smart watches)  
(b) Optical transport equipment  
(c) Combination of one or more of Packet Optical Transport Product or 
Switch (POTP or POTS)  
 
825 India's second written submission, para. 11 4. See also India's response to Panel question No. 105, 
para. 53.  
826 First Schedule  as of 2016/2017 , (Exhibit EU -59), as amended by the Finance Act 2018,  (Exhibit 
EU-15). 
827 European Union's first written submission, paras.  121-123. 
828 Notification No. 36/2019, (Exhibit EU -49). The European Union agrees with this position. (European 
Union's response to Panel question No. 84, para. 127).  
829 Notification No. 57/2017 as amended by  Notification No. 22/2018 , (Exhibit IND -42). 
830 We recall that in India's customs regime, two or more customs notifications may apply 
simultaneously, such that an importer can benefit from the most beneficial tariff treatment available under any 
applicable notification. (See para. 2.13 above).  
831 Notification No. 57/2017 as amended by  Notification No. 75/2018 , (Exhibit IND -42). WT/DS582/R  
 
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  S. No.  Tariff item  Description  
(d) Optical Transport Network (OTN) products  
(e) IP Radi os 
21 8517.69.90  (a) Soft switches and Voice over Internet Protocol (VoIP) equipment, 
namely, VoIP phones, media gateways, gateway controllers and session 
border controllers  
(b) Carrier Ethernet Switch, Packet Transport Node (PTN) products, 
Multiprotocol Label Switching -Transport Profile (MPLS -TP) products  
(c) Multiple Input/Multiple Output (MIMO) and Long Term Evolution 
(LTE) products  
 
7.343.   All other goods falling under tariff item 8517.62.90 that were not listed under Serial No. 20 
remained subject to a reduced duty rate of  10% (except for routers, which, as indicated above, are 
subject to unconditional duty -free treatment).  
7.344.   Finally, Notification No. 57/2017 was amended by  Notification No. 02/2019, which merged 
Serial Nos. 20 and 21 as follows832:  
S. No.  Tariff item  Descrip tion 
20 8517.62.90 or 
8517.69.90  (a) Wrist wearable devices (commonly known as smart watches)  
(b) Optical transport equipment  
(c) Combination of one or more of Packet Optical Transport Product or 
Switch (POTP or POTS)  
(d) Optical Transport Network (OTN) products  
(e) IP Radios  
(f) Soft switches and Voice over Internet Protocol (VoIP) equipment, 
namely, VoIP phones, media gateway s, gateway controllers and 
session border controllers  
(g) Carrier Ethernet Switch, Packet Transport Node (PTN) products, 
Multiprotocol Label Switching -Transport Profile (MPLS -TP) products  
(h) Multiple Input/Multiple Output (MIMO) and Long Term Evolution 
(LTE) products  
 
7.345.   Thus, taking into account all evidence before us, we understand that:  
a. Pursuant to Notification No. 36/2019 , routers , classified under tariff item 8517.62.90 of 
India's First Schedule, are unconditionally exempted from all customs duties ; and  
b. All other goods falling under tariff item 8517.62.90 are subject to a reduced duty rate of 
10%, except for those products listed under Serial No. 20 of Notification No. 57 /2017, as 
amended by Notification No. 02/2019, which are subject to the standard  duty rate of 20%.  
7.346.   We note that the parties disagree on whether the products listed under Serial No. 20  of 
Notification No. 57/2017, as amended  by Notification No. 02/2019 , are classified under tariff item 
8517.62.90 or 8517.69.90 of India's First  Schedule. The European Union submits that they are  
covered by tariff item 8517.62.90833, while India maintains that the European Union has failed to 
demonstrate that they are classi fied under that tariff item. For India, to the extent that these 
products are appropriately classified under tariff item 8517.69, "such products are … outside the 
scope of the present [p]anel request".834  
7.347.   At this stage of our analysis, we do not consider i t necessary to address whether the tariff 
treatment of certain products falls outside the scope of the European Union's claim. We simply note, 
as a factual matter, the tariff treatment described above. We address below, in the context of our 
comparison of that tariff treatment to India's WTO legal obligations, the question of whether certain 
tariff treatment falls outside the scope of the European Union's claim.  
 
832 Notification No. 57/2017 as amended by  Notification No. 02/2019, (Exhibit IND -42). 
833 European Union's response to Panel question No. 114, paras. 79 -88. 
834 India's response to Panel question No. 105, para. 53.  WT/DS582/R  
 
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  7.4.5.3   Comparison between India's WTO tariff commitments  and its tariff treatment  
7.4.5.3.1   Main arguments of t he parties  
7.348.   The European Union argues that products falling under tariff item 8517.62.90 of India's 
First Schedule are classified under tariff item 8517. 62 of India's WTO Schedule, which are therefore 
required to be subject to duty -free treatment.835 In resp onse to India's argument that the products 
listed in Notification No. 02/2019 and subject to a 20% duty rate may be classified under tariff item 
8517.62.90 or 8517.69.90, the European Union submits that such products are "properly to be 
categorized under t ariff line 8517.62" and are therefore within the scope of the European Union's 
claim.836 
7.349.   India argues that the European Union is required  to identify the specific products at issue 
and their correct classification in order to demonstrate that there has been  a violation of Article s 
II:1(a) and (b) of the GATT 1994.837 According to India, the European Union has not provided any 
evidence to show that the products described in Serial No. 20 of Notification No. 57/2017, as 
amended by Notification No. 02/2019, are classified under tariff item  8517.62.90 of the 
First Schedule and not tariff item  8517.69.90 .838 India further argues that , because the 
European  Union's claim is limited to products classified under tariff item  8517.62, "to the extent that 
the products desc ribed [in Notification No. 57/2017] are appropriately classified under sub -heading 
8517.69, such products are outside the scope of the present [p]anel request."839 
7.4.5.3.2   Panel's assessment  
7.350.   We recall our finding above that pursuant to its WTO Schedule India is obligated to provide 
unconditional duty -free treatment to machines for the reception, conversion and transmission or 
regeneration of voice, images or other data, including switching and routing apparatus, classified 
under tariff item 8517.62 of that Schedu le. We note that tariff item 8517.62 of India's First Schedule 
covers machines for the reception, conversion and transmission or regeneration of voice, images or 
other data, including switching and routing apparatus. It is uncontested that products falling  under 
tariff item 8517.62 of India's First Schedule are products covered by tariff item 8517.62 of India's 
WTO Schedule. We therefore understand that all products falling under tariff item 8517.62 of India's 
First Schedule are required to be subject to un conditional duty -free treatment.  
7.351.   We recall that routers classified under tariff item 8517.62.90 of India's First Schedule are 
unconditionally exempted from all customs duties . These products therefore receive tariff treatment 
in accordance with India's WT O tariff commitments. We further recall that all other products 
classified under tariff item 8517.62.90 of India's First Schedule are either subject to a duty rate of 
10% or, if they fall within the scope of Serial  No. 20 of Notification No. 57/2017, as am ended by 
Notification No. 02/2019, the standard duty rate of 20%.  
7.352.   We note that the parties disagree over whether Serial No. 20 of Notification No. 57/2017, 
as amended by Notification No. 02/2019, covers products falling within the scope of the European 
Union's claim. In this respect, we recall that the European Union's claim concerns products falling 
within the scope of tariff item 8517.62 of India's WTO Schedule.840 In order for the European Union 
to prevail in its claim, it needs to demonstrate that at le ast some products falling under tariff item 
8517.62 of India's WTO Schedule are subject to tariff treatment that is inconsistent with India's WTO 
obligations.841 
7.353.   The European Union claims and has demonstrated that products falling under tariff item 
8517.62. 90 (which necessarily fall under tariff item  8517. 62) of India's First Schedule are classified 
under tariff item 8517. 62 of India's WTO Schedule.842 The European Union is not claiming that 
 
835 European Union's first written submission, paras. 119 -121.  
836 European Union's response to Panel question No. 114, para. 79.  
837 India's response to Panel question No. 105, para. 52.  
838 India's second written submission, para. 113; response to Panel question No. 105, para. 53.  
839 India's first written submission, para. 188 . See also India's  second written submission, para. 114 ; 
respo nse to Panel question No. 105, para. 53.  
840 European Union's first written submission, para. 13; panel request, p. 1.  
841 See also fn 175 to para. 7.7 above; and Panel Reports, EC – IT Products , para. 7.116.  
842 See para. 7.350  above.  WT/DS582/R  
 
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  products classified under other  tariff items of India's First Schedu le (such as 8517.69.90) fall under  
the scope of India's WTO tariff commitments inscribed at tariff item 8517.62 of its WTO Schedule.843  
7.354.   The European Union has also established that India's First Schedule imposes a 20% duty  rate 
on products classified under  tariff item 8517.62.90.844 Moreover, it is uncontested that India's 
customs notifications modify the tariff treatment accorded to certain products  classified under tariff 
item 8517.62.90 (namely routers)  by exempting them from customs duties in whole, or by 
exempting certain other products from customs dut ies in part (subjecting such products to a reduced 
duty rate of 10%).845 In addition, we have found that India's exemptions do not extend to products 
listed under Serial No. 20 of Notification No. 57/2017, as amended by Notification No. 02/2019 , 
(which may be classified under tariff item 8517.62.90846) and that those products are subject to the 
20% duty rate set forth in India's First Schedule. We therefore consider that the European Union 
has established that some  of the products classified under tariff item 8517.62 of India's WTO 
Schedule are subject  to a duty rate of 10% or 20%, and are therefore taxed in excess of the bound 
duty rate . In light of the foregoing, w e do not consider it necessary to identify which  of the products  
listed under Serial No. 20 of Notification No. 57/2017, as amended by Noti fication No. 02/2019,  are 
classified under  tariff item 8517.62.90.847 This, in our view, suffices for the purposes of assessing 
whether India is acting inconsistently with Article s II:1(a) and (b) of the GATT 1994.  
 
843 Moreover, since the product description of tariff item 8517.62 of India's First Schedule perfectly 
matches the product description of tariff item 8517.62 of India' s WTO Schedule, it follows that products not 
classified under tariff item 8517.62 of India's First Schedule are also not covered by tariff item 8517.62 of 
India's WTO Schedule. Since the European Union's claim specifically concerns the tariff treatment of products 
covered by tariff item 8517.62 of India's WTO Schedule, it follows that products not classified under tariff item 
8517.62 of India's First Schedule are not within the scope of the European Union's claim and fall outside our 
terms of reference.  
844 See para. 7.338  above.  
845 See para. 7.351  above.  
846 Indeed, Notification No. 02/2019 relates to products classified under tariff items "8517.62.90 or 
8517.69.90". (emphasis added) This wording indicates that at least some  of the products listed therein may be 
classified under tariff item 8517.62.90.  If no products described therein fell within the scope of that tariff item , 
there would be no reason for the Notification to refer to that tariff item  in the first place.  
847 Nevertheless, for the purpose of providing clarity, we consider it useful to note that the evolution of 
Notification No. 57/2017 , as amended by Notification No. 02/2019,  suggests that certain of the products 
described in Serial No. 20 can be classified under tariff item  8517.62.90. Specifically, Notification No. 22/2018 
amended the duty rate applied to smart  watches falling under tariff item  8517.62.90.  (See para. 7.341  above). 
Similarly, Notification No. 75/2018 amended the duty rate applied to optical transport equipment, combination 
of one or more of Packet Optical Transport Product or Switch, Optical Transport Network products, and IP 
radios falling under tariff item  8517.62.90.  (See para. 7.342  above).  This suggests that certain of the products 
described in Serial No. 20 are classified under tariff item  8517.62.90  of India's First Schedule . We also note 
that the European Union considers that all the products listed in Serial No. 20 of Notification No. 57/2017, as 
amended  by Notification No. 02/2019 , are classified under tariff item 8517.62. The European Union submits 
that the core function of smartwatches is to "allow the connection and transmission of data to and from a 
device worn around a person's wrist", and therefore such products fall within the scope of tariff item  8517.62 . 
(European Union's response to Panel question No. 114, para. 81). The European Union also relies on WCO 
Classification Opinion s on smart  watches to support this assertion. (European Union's response to Panel 
question No. 114, para. 81  (referring to World Customs Organization, Classification Opinions on subheading 
8517.62 (2015) , (Exhibit EU -60), Nos. 21 -24). We note that India has not adduced any arguments or evidence 
to rebut the European Union's assertion in this regard. Regarding the products listed und er (b-h) in paragraph  
7.344  above , the European Union submits that the HS2007 Explanatory Notes "to tariff line 8517.62" refer to 
the "functions an d working methods of the products concerned" and that the contested products are classified 
under tariff item  8517.62 on that basis. (European Union's response to Panel question No. 114, paras. 8 2-83 
(referring to HS2017 Explanatory Notes to Heading 8517 , (Exhibit IND -59), p. 6) ). For its part, India argues 
that the section of the Explanatory Note relied upon pertains to "Other Communication Apparatus"  whereas t he 
description of tariff item  8517.69 is "Other ", suggesting that  this Explanatory Note does not necessarily relate 
to tariff item  8517.62. (India's comments on the European Union's response to Panel question No. 114, para. 
38). India is correct that this Explanatory Note does not distinguish between tariff items  8517.62 and 8517.69 , 
but relates to a residual category of "other communication apparatus" which, based on the structure of that 
Note, could apply to tariff item  8517.62 or 8517.69. Thus, this Explanatory Note would appear to only indicate  
that the listed products, and those with characteristi cs such as those stipulated therein, are classified under 
heading 8517 , without definitively identifying the relevant tariff item . In any case, as we have stated above, 
we do not consider it necessary to determine which of  the products  listed under Serial No. 20 of Notification 
No. 57/2017, as amended by Notification No. 02/2019,  are classified under  tariff item  8517.62.90.  WT/DS582/R  
 
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  7.4.5.4   Conclusion  
7.355.   Based on the foregoing, we fin d that India's tariff treatment of machines for the reception, 
conversion and transmission or regeneration of voice, images or other data, including switching and 
routing apparatus , falling within the scope of tariff item 8517. 62 of India's WTO Schedule, i s 
inconsistent with Article II:1(b), first sentence, of the GATT 1994, because  certain such products 
are subject to ordinary customs duties in excess of those set forth and provided in India's 
WTO Schedule.  
7.356.   We recall that the application of ordinary custo ms duties in excess of those provided for in 
a Member's Schedule, inconsistent with the first sentence of Article II:1(b), also constitutes "less 
favourable" treatment within the meaning of Article II:1(a). Consequently, we find that India's tariff 
treatme nt of certain such products is less favourable than that provided in its WTO Schedule, and 
India is therefore acting inconsistently with Article II: 1(a) of the GATT 1994.  
7.4.6   Tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule  
7.4.6.1   General issues  
7.4.6.1.1   Main  arguments of the parties  
7.357.   The European Union challenges the tariff treatment accorded by India to products falling 
under tariff items 8517.70  ex01, ex02, and ex03 of India's WTO Schedule, covering parts and 
accessories of the machines of heading 84.71.848 In order to identify the tariff treatment applied by 
India to such products, the European Union initially referred to the tariff treatment accorded to 
products classified under tariff items 8517.70.10 and 8517.70.90 of India's First Schedule.849 In 
response to a question from the Panel following the second substantive meeting, the European Union 
clarified that,  following certain  amendment s to India's First Schedule, pursuant to the Finance Act 
2021, the relevant products are presently covered by tariff items 8517.71.00, 8517.79.10, and 
8517.79.90.850 The European Union argues that the " alteration of India' s domestic customs 
legislation … does not change the fact that India does impose customs duties on the products covered 
by its bindings, namely on those products which are within the scope of its certified schedule of 
concessions under tariff lines 8517.70.10 and 8517.70.90 ".851 According to the European Union, 
"this change in India's domestic customs legislation, which does not alter the inconsistency of this 
legislation with India 's international legal obligations, cannot prevent a finding of inconsistency and 
an indication that India should bring its domestic legislation into compliance with its international 
obligations ".852 In response to an argument by India that the European Union had failed to meet its 
burden of proof by being unable to identify the exact products at issue and the duty applicable on 
such products, the Europ ean Union argues that "India' s argument is based on an incorrect 
understanding of the requirement to identify specific products falling into the scope of a tariff line ". 
The European Union elaborates that since the European Union explained " the particulars  of the 
exemptions available for certain products  … it has identified with sufficient clarity the measure at 
issue".853 
7.358.   India notes that " as opposed to the replacement of tariff line 8517.12 with tariff lines 
8517.13 and 8517.14, the replacement of tariff l ines 8517.70.10 and 8517.70.90 has only resulted 
in a change in headings, and not the descriptions " and therefore " India has not raised any defense 
concerning the replacement of HS2007 tariff lines 8517.70.10 and 8517.70.90 with HS2022 tariff 
lines 8517.79 .10 and 8517.79.90 ".854 India nevertheless argues that " all submissions made by it 
with regard to sub -heading 8517.70, including that the complainant has failed to identify the 
products at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90, extend to  sub-heading 
 
848 Europea n Union's first written submission, para. 13.  
849 See e.g. European Union's first written submission, paras. 13 3-154.  
850 European Union's response to Panel question No. 117, paras. 91 -94.  
851 European Union's response to Panel question No. 117, para.  93. (em phasis original)  
852 European Union's response to Panel question No. 117, para. 9 4. 
853 European Union's response to Panel question No. 37, para. 93.  
854 India's response to Panel question No. 117, para. 71. India also states that "the change in domestic 
custom s legislation pursuant to the introduction of HS2022 has not resulted in any substantial change in the 
applied duty of products covered under HS2007 tariff lines 8517.70.10 and 8517.70.90." (India's comments on 
the European Union's response to Panel questi on No. 117, para. 40).  WT/DS582/R  
 
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  8517.79.10 and 8517.79.90, respectively ".855 In this respect, India argues, inter alia , that the 
burden is on the complainant to "identify the specific products at issue and their correct classification 
in order to demonstrate that there has be en a violation of Article s II:1(a) and (b) of the 
GATT  1994."856 With respect to tariff item 8517.70.10 of the First Schedule (as it existed at the time 
of the Panel's establishment), India argues that the European Union "has been unable to identify the 
exact products at issue and the duty applicable on such products" .857 As to tariff item 8517.70.90 of 
the First Schedule (as it existed at the time of the Panel's establishment), India considers that the 
European Union failed to demonstrate that any products  mentioned in the European Union's panel 
request and first written submission , other than parts of cellular mobiles and inputs for such parts, 
were classified under tariff item 8517.70.90 of India's First Schedule.858 India submits that such 
products "must be  held to be outside the scope of the present dispute"859 and that the European 
Union's " failure to explicitly confirm the classification of the products at issue must lead to the 
rejection of its claim."860 
7.4.6.1.2   Panel's assessment  
7.359.   Before turning to assess the mer its of the parties' arguments with respect to the 
European  Union's claims concerning products classified under tariff item 8517.70 ex01, ex02, and 
ex03 of India's WTO Schedule, we consider it useful to address two general issues. First, we address 
the impa ct, on our assessment, of India's amendment of the First Schedule during these 
proceedings. Second, we address the complainant's burden of proof under Articles II:1(a) and (b) 
of the GATT 1994 with respect to the domestic tariff classification of the produ cts at issue.  
7.360.   First, regarding India's amendments to the First Schedule during these proceedings, we 
recall that India's Finance Act 2021 came into effect on 1 January 2022 , resulting in certain 
amendments to India's First Schedule.861 Specifically, products previously classified under tariff 
items 8517.70.10 and 8517.70.90 of the First Schedule are presently classified under tariff items 
8517.71.00, 8517.79. 10, and 8517.79.90.862 India has clarified that " the replacement of tariff lines  
8517.70.10 and 8517.70.90 has only resulted in a change in headings, and not the descriptions "863 
and that these changes have " not resulted in any substantial change in the applied duty of products 
covered under HS2007 tariff lines 8517.70.10 and 8517.70.9 0".864  
7.361.   We note that the European Union does not request us to make distinct assessments of India's 
WTO-consistency with respect to the situation before and after India's amendment of its First 
Schedule.865 We also note that India does not consider that its amendments to the First Schedule 
have changed the product descriptions or the tariff treatment accorded by India to the products at 
issue.866 We therefore proceed with our analysis by observing the evolution of India's tariff treatment 
during these proceedi ngs, and assessing the WTO -consistency of the measure at issue based on the 
most up -to-date information available to the Panel (i.e. based on the situation as it stands following 
India's amendment of the First Schedule on 1 January 2022).  
7.362.   Turning to the se cond issue, we note India's argument that the Panel should reject the 
European Union's claim on the grounds that the burden is on the European Union to demonstrate 
India's domestic classification of the products at issue, that the European Union has failed  to confirm 
the domestic classification of those products, and that they consequently fall " outside the scope of 
the present dispute".867 We agree with India that the burden of demonstrating India's inconsistency 
with Articles II:1(a) and (b) of the GATT 19 94 falls on the complainant. We note, however, that 
there is a distinction between the burden of demonstrating a violation of a WTO provision, and the 
 
855 India's response to Panel question No. 117, para. 71.  
856 India's response to Panel question No. 105, para. 52.  
857 India's first written submission, para. 205.  
858 India's first written submission, para. 212. 
859 India's first written submission, para. 212. 
860 India's response to Panel question No. 105, para. 55.  
861 See para. 7.285  above.  
862 European Union's response to Panel  question No. 117, paras. 91 -94; India's response to Panel 
question No. 117, para. 71 .  
863 India's response to Panel question No. 117, para. 71.  
864 India's comments on the European Union's response to Panel question No. 117, para. 40.  
865 See European Union's responses to Panel question Nos. 102 and 106.  
866 India's comments on the European Union's response to Panel question No. 117, para. 40.  
867 India's first written submission, para. 212 . WT/DS582/R  
 
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  burden of demonstrating a particular factual assertion.868 In this respect, "the party who asserts a 
fact, whether the claimant or the respondent, is responsible for providing proof thereof".869 
7.363.   We recall that the European Union's claim concerns products falling within the scope of tariff 
items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule.870 In order to  apply the legal standard 
under Articles  II:1(a) and (b) of the GATT 1994, we will first identify India's WTO tariff commitments 
with respect to such products. We will then turn to assess the parties' respective factual assertions 
regarding the tariff trea tment applied by India to certain products under its domestic customs 
regime. In that context, we will assess whether the European Union's factual assertions are 
supported by sufficient evidence to raise a presumption that such assertions are correct and, if so, 
whether India has adduced sufficient evidence to rebut that presumption. As a final step, we will 
compare our factual findings concerning India's tariff treatment to India's WTO tariff commitments. 
In that context, we will assess, inter alia , whethe r the challenged tariff treatment concerns products 
falling within the scope of India's WTO tariff commitments concerning tariff items 8517.70 ex01, 
ex02, and ex03 of its WTO Schedule.  
7.4.6.2   India's WTO tariff commitments  
7.4.6.2.1   Main arguments of the parties  
7.364.   The Europ ean Union argues that the bound duty  rate for tariff items 8517.70 ex01 , ex02, 
and ex 03 of India's WTO Schedule , covering parts and accessories of the machines of heading 84.71 , 
is 0%.871 
7.365.   India contends that the tariff commitments under tariff item 8517.70 as reflected in its 
WTO Schedule based on the HS2007 were certified in error.872 India maintains that it did not intend 
to make commitments on printed circuit assemblies for telephones for cellular networks, or on parts 
of telephones for cellular networks, which in its view were not covered under the ITA or the HS1996, 
and were introduced to the HS Nomenclature in the 2007 edition.873 According to India, the 
commitments under tariff item 8517.70 were undertaken in error, are void pursuant to Article 48 of 
the Vienna Convention, and are therefore rendered unbound.874  
7.4.6.2.2   Panel's assessment  
7.366.   We have addressed India's arguments that its WTO Schedule was certified in error above, 
and held that India's tariff commitments are set forth  in India's WTO Schedule.875 We have also 
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff 
commitments in its WTO HS2007 Schedule.876 Moreover, we have declined to make the findings 
requested by India regarding its request to rectify its WTO  Schedule pursuant to the 
1980 Decision.877 
7.367.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. A  review 
of India's WTO HS2007 Schedule  shows t hat India committed to a bound duty rate of 0% for products 
 
868 As the Appellate Body stated in Japan – Apples , "[i]t is important to d istinguish, on the one hand, the 
principle that the complainant must establish a prima facie  case of inconsistency with a provision of a covered 
agreement  from, on the other hand, the principle that the party that asserts a fact is responsible for providin g 
proof thereof. In fact, the two principles are distinct. " (Appellate Body Report, Japan – Apples , para. 157). 
(footnotes omitted)  
869 Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at p. 335. The 
Appellate Body also observed that "t he burden of proof rests upon the party, whether complaining or 
defending, who asserts  the affirmative of a particular claim or defence. If that party adduces evidence 
sufficient to raise a presumption that what is claimed is  true, the burden then shifts  to the other party, who will 
fail unless  it adduces  sufficient evidence to rebut the presumption ." (Ibid.).  
870 European Union's first written submission, para. 13; panel request, p. 1.  
871 European Union's first written submission, paras. 133 -134. 
872 India's first written submission, paras. 55 -91. 
873 India's first written submission , paras. 204-221. 
874 India's first wr itten submission , para. 91.  
875 See para. 7.213  above.   
876 See para.  7.81 above.   
877 See para. 7.245  above.   WT/DS582/R  
 
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  falling under tariff item s 8517. 70 ex01, ex02, and ex03.878 Such tariff items collectively cover "parts" 
(tariff item 8517.70.00) of " telephone sets, including telephones for cellular networks or for other 
wireless networks " and " other apparatus for the transmission or reception of voice, images or other 
data, including apparatus for communication in a wired or wireless network (such as a local or wide 
area network), other than transmission or reception apparatus of heading 84 .43, 85 .25, 85 .27 or 
85.28" (hereafter we ref er to these products as "parts of telephone sets and other certain apparatus 
for transmission or reception of voice, images, or data")879: 
 Product description  Bound 
rate 
8517 Telephone sets, including telephones for cellular networks or for 
other wireless  networks ; other apparatus for the transmission or 
reception of v oice, images or other data, including apparatus for 
communication in a wired or wireless network (such as a local or 
wide area network), other than transmission or reception 
apparatus of head ing 84 .43, 85 .25, 85 .27 or 85 .28  
8517.70.00  - Parts  
8517.70.00  ex01 -- Parts and accessories of the machines of heading 84.71: For 
populated PCBs  0% 
8517.70.00  ex02 -- Parts and accessories of the machines of heading 84.71: Other  0% 
8517.70.00  ex03 -- Other  0% 
 
7.368.   India's WTO Schedule does not indicate any terms, qualifications or conditions that must be 
met in order for such products to receive the 0% bound duty rate.  Therefore, in accordance with its 
WTO Schedule,  India is obligated to provide unconditional duty -free treatment to parts of telephone 
sets and other certain apparatus for transmission or reception of voice, images, or data  falling under 
tariff items  8517. 70 ex01, ex02, and ex03 of its WTO Schedule.  
7.4.6.3   India's tariff treatment  
7.4.6.3.1   Main arguments of the parties  
7.369.   The European Union's arguments focus on the tariff treatment that was, at the time of the 
Panel's establishment , accorded by India to products falling under  tariff items 8517.70.10 and 
8517.70.90 of India's First Schedule.880 With respect to the tariff treatment of products falling under 
tariff item 8517.70.10 of the First Schedule, the European Union argues that, under the First 
Schedule, as amended by the Fi nance Act 2020, the duty rate applied to such products was 20%, 
unless exempted from that duty rate pursuant to a  notification.881 The European Union submits that 
Notification No. 24/2005 initially exempted "all goods" of tariff item  8517.70.10 from tariff duties, 
but Notification No. 38/2018 subsequently limited the scope of the exemption to "all goods other 
than Printed Circuit Board Assembly (PCBA) for cellular phones".882 The European Union argues that 
"Notification 76/2018 further limits the exemption an d makes it subject to certain conditions".883 
The European Union notes that Notification No. 50/2017 set the applicable duty rate to 0% for 
certain products, if those products are "used in the manufacture of static converters for automatic 
data processing m achines and units thereof" and if "the importer follows procedures set out in 
specific customs rules".884 The European Union also argues that, although Notification No. 57/2017, 
 
878 WT/Let/1072.  
879 WT/Let/1072. With respect to tariff items  8517.70 ex01 and 8517.70 ex02 we note that "machines 
of heading 84.71"  of the HS2007  are "[a]utomatic data processing machi nes and units thereof; magnetic or 
optical readers, machines for transcribing data onto data media in coded form and machines for processing 
such data, not elsewhere specified or included". (Ibid.) .  
880 European Union's first written submission, paras. 135 -154. 
881 European Union's first written submission, para. 138 (referring to Finance Act 2020 , (Exhibit EU -28), 
pp. 69 and 100). The European Union also notes that Notification No. 36/2018 had previously set the duty rate 
applied to such products at 10%. (Ibi d. (referring to Notification No. 36/2018 , (Exhibit  EU-35)). 
882 European Union's first written submission, para. 142 (referring to Notification No. 24/2005, (Exhibit 
EU-9), and Notification No. 38/2018 , (Exhibit  EU-29)).   
883 European Union's first written s ubmission, para. 143 (referring to Notification No. 76/2018 , 
(Exhibit  EU-30)). 
884 European Union's first written submission, paras. 145 -146 (referring to Notification No. 50/2017 , 
(Exhibit EU -34), p. 30).  WT/DS582/R  
 
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  as amended by Notification No. 02/2020, set the duty rate for certain goods fal ling under tariff item  
8517.70.10 at 10%, that reduced rate was only available until 31 March 2020.885  
7.370.   With respect to products falling under tariff item 8517.70.90  of India's First Schedule , the 
European Union  submits that "the Finance Act 2018 fixed the applicable tariff rate for tariff line 
8517.70.90 at 15%."886 The European Union acknowledges that Notification No. 57/2017 exempts 
certain products from that duty rate but submits that those exemptions " do not cover all products 
of that [tariff line] , and are subject to conditions " not set forth in India's WTO Schedule.887  
7.371.   The European Union acknowledges that, as of 1 January 2022 , tariff items 8517.70.10 and 
8517.70.90 of India's First Schedule were replaced wi th tariff items 8517.71, 8517.79.10, and 
8517.79.90.888 The European Union highlights, however, that the " products covered by these tariff 
lines are currently subject to the following tariff duties, namely 20  % (8517.71.00), 20 % 
(8517.79. [1]0) and 15 % (85 17.79.90) ."889 The European Union submits that the " alteration of 
India' s domestic customs legislation therefore does not change the fact that India does impose 
customs duties on the products covered by its bindings ".890 
7.372.   With respect to tariff item 8517.70.1 0 of the First Schedule at the time of the Panel's 
establishment , India argues that the E uropean Union  "has been unable to identify the exact products 
at issue and the duty applicable on such products". According to India, the European Union "has 
merely st ated that the basic customs duty on imports of products under tariff item 8517.70.10 is 
20% and that 'all goods other than Printed Circuit Board Assembly for cellular phones' are exempt 
from such duty." India further submits that, although the European Uni on argued that certain duty 
exemptions are "limited", the European Union was "unable to demonstrate the manner in which the 
scope of these exemptions [was] limited".891 With respect to tariff item 8517.70.90 of the First 
Schedule, India does not contest tha t "'connectors for use in manufacture of cellular mobile phones' 
and certain limited camera modules such as those used in the manufacture of cellular mobile phones " 
are subject to a 10% duty rate .892  
7.373.   With respect to the tariff treatment accorded after 1  January 2022 , India states that "the 
change in domestic customs legislation pursuant to the introduction of HS2022 has not resulted in 
any substantial change in the applied duty of products covered under HS2007 tariff lines 8517.70.10 
and 8517.70.90."893  
7.4.6.3.2   Panel's assessment  
7.374.   We proceed with our assessment by examining the tariff treatment accorded to products 
that, at the time of the Panel's establishment, fell under tariff items 8517.70.10 and 8517.70.90 of 
India's First Schedule. We then tu rn to assess the effects of India's amendment of the First Schedule 
during these proceedings.  
7.4.6.3.2.1   Tariff treatment at the time of the Panel's establishment  
7.375.   It is uncontested that, at the time of the P anel's establishment , India's First Schedule 
imposed: (i) a  standard duty rate of 20% on products falling under tariff item 8517.70.10, covering 
"[p]opulated, loaded or stuffed printed circuit boards" constituting parts of telephone sets or other 
certain apparatus for transmission or reception of voice, images, or  data; and (ii) a standard duty 
 
885 European Union's first written submission, para. 1 48 (referring to Notification No. 57/2017, (Exhibit 
EU-12), and Notification No. 02/2020 , (Exhibit  EU-31)). See also  European Union's response to Panel question 
No. 119, para. 106.  
886 European Union's first written submission, para. 135.  
887 European Union's first written submission, para. 150 . See also European Union's response to Panel 
question No. 118, paras. 95 -105. 
888 European Union's response to Panel question No. 117, para. 91.  
889 European Union's response to Panel question No. 117, para. 92. In its resp onse to the Panel's 
question, the European Union referred to tariff item 8517.79.90 twice. We understand that this was a 
typographical error and that the first reference to this tariff item was intended to refer to tariff item 
8517.79.10.  
890 European Union 's response to Panel question No. 117, para. 93. (emphasis omitted)  
891 India's first written submission, para. 205.  
892 India's first written submission, para. 212. 
893 India's comments on the European Union's response to Panel question No. 117, para. 40 . WT/DS582/R  
 
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  rate of 15% on products falling under tariff item 8517.70.90, covering "[o]ther" parts of telephone 
sets or other certain apparatus for transmission or reception of voice, images, or data894: 
Tariff 
item Product description  Standard 
duty rate  
8517 Telephone sets, including telephones for cellular networks or for 
other wireless networks: other apparatus for the transmission or 
reception of v oice, images or other data, including apparatus for 
communication in a wired or wireless network (such as a local or 
wide area network), other than transmission or reception apparatus 
of heading 8443, 8525, 8527 or 8528   
 - Parts  
8517.70.10  -- Populated, loaded or stuffed printed circuit boards  20% 
8517.70.90  -- Other  15% 
 
7.376.   It is further uncontested that the duty rate applied to certain products falling within the 
scope of these tariff items was subject to several customs notifications. We have examined the 
assertions and evidence adduced by the parties and certain third parties895 regarding the content of 
relevant customs notifications, in order to determine, as a factual matter, the tariff treatment 
accorded to products falling under these tariff items.896 Based on our examination of the evidence, 
we consider the following factual findings to be adequately supported by the evidence on the record.  
7.377.   Turning, first, to products falling under tariff item 8517.70.10 of India's First Schedule, we 
note that this tariff item covered populated, loaded or stuffed printed circuit boards consti tuting 
parts of telephone sets or other certain apparatus for transmission or reception of voice, images, or 
data.897 As indicated above, the standard duty rate applicable to such products under the First 
Schedule was 20%.898 However, the applied duty rate is subject to customs notifications, as follows:  
a. Pursuant to Serial No. 22 of Notification No. 57/2017 , as amended by  Notification 
No. 02/2020 , PCBAs for certain specified products899, falling under this tariff item,  became  
unconditionally subject to a 10% duty rate .900  
b. Pursuant to Serial No. 13S of Notification No. 24/2005, as amended by Notification No. 
76/2018 , product s falling under  this tariff item other than PCBAs for cellular mobile phones 
and the products identified in footnote 899 above were eligible for dut y-free treatme nt if 
they satisf ied certain  conditions .901 Specifically, in order for the product to receive such 
duty-free treatment: (i) the importer had to follow the procedure s set out in the Customs 
Rules 2017 ; and (ii)  at the time of importation , the importer had to furnish an undertaking 
to the Deputy Commissioner of Customs or the Assistant Commissioner of the Customs , 
as the case may be, to the effect that imported goods would not be used in the 
manufacture of certain specified goods902 and in the event of failure to comply with that 
 
894 First Schedule as of 2016/ 2017, (Exhibit EU -59), pp. 7 88; Finance Act 2020 (Exhibit EU -28), pp. 69 
and 100. 
895 Specifically, Japan and Chinese Taipei . 
896 We recall that the burden of demonstrating a factual assertion falls on the party making that factual 
assertion.  (See para. 7.362  above).  
897 See para. 7.375  above.  
898 See para. 7.375  above.  
899 Specifically PCBAs for: b ase stations; optical transport equipment; combination of one or more of 
Packet Optical Transport Product or Switch; Optical Transport Network products; IP radios; soft switches and 
Voice over Internet Protocol equipment, namely, Voice over Internet Protocol  phones, media gateways, 
gateway controlle rs and session border controllers; carrier ethernet switches, Packet Transport Node products , 
and Multiprotocol Label Switching -Transport Profile products; and Multiple Input/Multiple Output and Long 
Term Evolution products . (See fn 900 to para. 7.377  below).  
900 Serial No. 22 of Notification No. 57/2017 as a mended by Notification No. 02/2020 , (Exhibit IND-42).  
901 Serial No. 13S of Notification No. 24/2005  as amended by Notification No s. 132/2006 , 58/2017 , 
38/2018 , and 76/2018, (Exhibit IND -39). 
902 Specifically, the imported goods were not to be used in the manufacture of: cellular mobile phones; 
base stations; optical transport equipment; combination of one or more of Packet Optical Transport Product or 
Switch; Optical Transport Network products; I P radios; soft switches and Voice over Internet Protocol 
equipment, namely, Voice over Internet Protocol phones, media gateways, gateway controllers and session 
border controllers; carrier ethernet switches, Packet Transport Node products , and Multiprotoco l Label 
Switching -Transport Profile products; and Multiple Input/Multiple Output and Long Term Evolution products . WT/DS582/R  
 
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  condition the importer would be  liable to pay an amount equal to the difference between 
the duty leviable on the imported goods but for the exemption under this notification and 
that already paid at the time of impo rtation.903  
c. Pursuant to Serial No. 402 of Notification No. 50/2017 , all populated printed circuit boards 
falling under tariff item  8517.70.10 of India's First Schedule were eligible for duty -free 
treatment if they were used in the manufacture of static con verters for automatic data 
processing machines and units thereof of tariff item s 8443.31.00, 8443.32.00, 8471, 
8517.62, 8528.42.00, 8528.49.00, 8528.52.00 or 8528.62.00 of India's First Schedule.904  
7.378.   Any products falling under tariff item 8517.70.10 that di d not benefit from the tariff 
treatment available under these customs notifications (for instance PCBAs for cellular mobile 
phones905) remained subject to the 20% standard duty rate set forth in the First Schedule.  
7.379.   We recall that Article II:1(b) does not re quire Members to inscribe general conditions for 
importation in their WTO Schedules. However, where conditions are tied to tariff treatment, such 
that a product must satisfy those conditions in order to be eligible for the tariff treatment set forth 
in a M ember's WTO Schedule, Article II:1(b) requires that such conditions must be inscribed in the 
Member's WTO Schedule.  
7.380.   In our view, the conditions attached to the duty -free treatment available under Serial No. 
13S of Notification No. 57/2012 and Serial No. 4 02 of Notification No. 50/2017 are not general 
conditions for importation.  Regarding the condition that the importer follow the procedure s set out 
in the Customs Rules 2017 , we note that India argues that this condition "merely requires the 
intimation of intent to avail concessional rates of duties and registration of bills of entry" and that 
"[t]hese processes have been automated, where all details can be uploaded on a common portal."906 
In support of its assertion, India submits Circular No. 04/2022 as an  exhibit.907 We note that Circular 
No. 04/2022 makes certain amendments to the Customs Rules 2017.908 Circular No. 04/2022 
indicates that these amendments are "aimed at simplifying the procedures with a focus on 
automation and making the entire process conta ct-less".909 We also note that Circular No. 04/2022 
provides the procedure to be followed by "[a]n importer who intends to import goods at a 
concessional rate of duty ."910 On the basis of the procedures set out in Circular No. 04/2022, the 
"Deputy Commission er or Assistant Commissioner of Customs at the port of importation shall allow 
the benefit of exemption notification ."911 The language in Circular No.  04/2022 therefore indicates 
that the conditions therein relate to the tariff treatment accorded to the goods at issue, and not to 
importation per se . The foregoing indicates that the requirement that the importer follow the 
procedure set out in the Customs Rules 2017 is a condition that an importer must meet in order to 
be eligible for exemption from customs duties. There is no indication that a failure to comply with 
such conditions would prevent the importer from importing th e products. We therefore do not see 
anything on the record to suggest that these are general conditions for importation of goods.  
7.381.   As to the requirement that the importer undertake not to use the products in the 
manufacture of certain specified goods, this  condition makes clear on its face that failure to comply 
will lead to the application of the "duty leviable … but for the exemption".912 This, on its face, is a 
 
(Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 38/2018 , and 
76/2018 , (Exhibit IND -39)). 
903 Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 
38/2018 , and 76/2018 , (Exhibit IND -39). 
904 Serial No. 402 of Notification No. 50/2017, (Exhibit IND-41).  
905 Pursuant to Serial No. 21 of Notification No. 57/2017, PCB As for cellular mobile phones were subject 
to a duty rate of 10%, without being subject to any conditions, until 31 March 2020 when this partial 
exemption expired. (Notification No. 57/2017  as amended by Notification No. 02/2020 , (Exhibit IND -42)). 
PCBAs f or cellular mobile phones do not appear to fall within the scope of any of the exemptions applicable to 
products falling under tariff item  8517.70.10 of India's First Schedule.   
906 India's response to Panel question No. 103, para. 48 (referring to Circular No. 04/2022 
(27 February  2022) , (Exhibit IND -81)).   
907 Circular No. 04/2022  (27 February 2022), (Exhibit IND -81), p. 1.  
908 Circular No. 04/2022 (27 February 2022), (Exhibit IND -81), p. 1.  
909 Circular No. 04/2022 (27 February 2022), (Exhibit IND -81), p. 1.  
910 Circular No. 04/2022 (27 February 2022) , (Exhibit IND -81), para. 4.1. (emphasis added)  
911 Circular No. 04/2022 (27 February 2022) , (Exhibit IND -81), para. 4.8. (emphasis added)  
912 Serial No.  13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 
38/2018 , and 76/2018 , (Exhibit IND -39). WT/DS582/R  
 
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  condition for beneficial tariff treatment. As to the condition that certain products be used in  the 
manufacture of other specified products, we understand that failure to comply with this condition 
would not prevent the products from being imported – rather, they would be imported subject to 
the 20% standard duty rate. Indeed, with respect to all re levant conditions described above, we 
understand that failure to comply with those conditions would not prevent the products from being 
imported, but rather would result in importation subject to the 20% standard duty rate set forth in 
the First Schedule. Thus, these conditions are conditions for tariff treatment and not general 
conditions for importation.  
7.382.   Turning to products falling under tariff item 8517.70.90 of India's First Schedule, at the time 
of the Panel's establishment this tariff item covered "o ther" parts of telephone sets or other certain 
apparatus for transmission or reception of voice, images, or data,  (namely " other " than populated, 
loaded or stuffed printed circuit boards ).913 The standard duty rate appli cable to such products under 
the Firs t Schedule was 15%.914 However, the applied duty rate was subject to customs notifications, 
as follows:  
a. Pursuant to Serial Nos. 468, 506 -508, and 513 of Notification No. 50/2017, as amended 
by Notification Nos. 37/2019 and 01/2020, certain products falling under tariff item 
8517.70.90 of the First Schedule:  (i) were unconditionally eligible for duty -free 
treatment915; or (ii) were eligible for duty -free treatment subject to the condition  that the 
importer follow ed the procedure s set out in the Customs Rules 2017 .916 
 
913 See para. 7.375  above.  
914 See para. 7.375  above.  
915 Pursuant to Serial No. 468  of Notification No. 50/2017, t he following products falling under Chapter 
84 or 85 of the First Schedule (i.e. including products falling under tariff item  8517.70.90 ) of the First Schedule  
were unconditionally eligible for duty -free treatment: (i) micro ATMs as per standards version 1.5.1; (ii) 
fingerprint reader s/scanner s other than fingerprint reader s/scanner s for use in manufacturing of cellular mobile 
phones; (iii) iris scanners; (iv) miniaturized POS card readers for mPOS (other than mobile phones or tablet 
computers). (Notification No. 50/2017 as amended by Notification No. 01/2020, (Exhibit IND -41)).  
916 The following products falling under tariff item  8517.70.90 of the First Schedule , subject to the 
condition that the importer follow the procedures set out in the Customs Rules 2017 , were eligible for duty -free 
treatment under Notification No. 50/2017:  (1) pursuant to Serial  No. 468 , parts and components for use in the 
manufacture of : (i) micro ATMs as per standards version 1.5.1 ; (ii) fingerprint reader s/scanner s other than 
fingerprint reader s/scanner s for use in manufacturing of cellular mobile phones; (i ii) iris scanner s; and (iv) 
miniaturized POS card reader s for mPOS (other than mobile phone s or tablet computer s); (2) pursuant to 
Serial Nos. 506, 507, and 508 : (i) parts, components and accessories for use in manufacture of broadband 
modem falling under tariff item  8517.62.30 of the First Schedule, other than populated printed circuit boards , 
charger s and power adapter s; (ii) parts, components and accessories for use in  the manufacture of routers 
falling under tariff item  8517.62.90 of the First Schedule,  other than populated printed circuit boards , charger s, 
and power adapter s; (iii) parts, components and accessories for use in the manufacture of set -top boxes for 
gaining access to internet falling under tariff item  8517.69.60 of the First Schedule, other than populated 
printed circuit boards , charger s, and  power adapter s; and (iv) sub-parts for use in the manufacture of items 
covered in (i) through (iii) above ; and (3) pursuant to Serial No. 513 : (i) parts or components for use in the 
manuf acture of populated printed circuit board s of; (a) broadband modem s falling under tariff item  8517.62.30 
of the First Schedule; (b) router s falling under tariff item  8517.62.90 of the First Schedule; and (c) set-top 
boxes for gaining access to internet fal ling under tariff item  8517.69.60 of the First Schedule;  and (ii) sub-
parts for use in the manufacture of the parts or components in item (i) above. (Notification No. 50/2017 as 
amended by Notification No s. 37/2019  and 01/2020 , (Exhibit IND -41)). In making  these factual findings, we 
observe that other Serial Nos. of Notification No. 50/2017 set forth conditional exemptions for other products, 
over and above the products we have identified above. Since no party or third -party has argued or asserted 
that the exemptions for those other products are relevant to the European Union's claims concerning products 
falling under tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule, we consider it uncontested 
that the exemptions for those products are not r elevant. We also note that  pursuant to Serial No. 425  of 
Notification No. 50/2017 , parts for manufacture of base station controllers , base transreceiver stations , and 
antenna system equipment , required for the manufacture of Public Radio Mobile Trunked Ser vice, were eligible 
for exemptions from customs duties subject to the condition  that the importer follow ed the procedure s set out 
in the Customs Rules 2017 . We further  note that India contends that such products were not "always classified 
under tariff item 8517.70.90 of India's First Schedule" and that they must be examined individually to 
ascertain their correct classification. (India's response to Panel question No. 134). The European Union submits 
that it cannot "conclude with certainty" that such products were classified under tariff item 8517.70.90 of 
India's First Schedule. (European Union's response to Panel question No. 134). As noted in paragraph 7.325  
above , Serial No. 425 was repealed by Notification No. 02/2022 and is no longer in effect, as from 1  February 
2022. (Notification No. 02/2022, (Exhibit IND -90)). Hence , we do not consider it necessary for the resolution of 
this dispute to make further factual findings regarding the tariff treatment accorded under Serial No. 425 of 
Notification No. 50/2017 at the time of the Panel's establishment.  WT/DS582/R  
 
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  b. Similarly, pursuant to Serial Nos. 5 to 8 of Notification No. 5 7/2017, as amended by 
Notificatio n Nos. 22/2018, 37/2018, 02/2019, 24/2019,  01/2020 , and 02/2020, certain 
products falling under tariff item 8517.70.90 of the First Schedule: (i) were unconditionally 
eligible for duty -free treatment917; (ii) were eligible for duty -free treatment subject to the 
condition  that the importer follow ed the procedure s set out in the Customs Rules 2017918; 
or (iii) became eligible for a  10% duty rate (rather than  the 15% standard duty rate  set 
forth in the First Schedu le) subject to the condition that the importer follow ed the 
procedure s set out in the Customs Rules 2017 .919  
7.383.   Regarding the conditional nature of the tariff treatment accorded to certain products falling 
under tariff item 8517.70.90, we recall our finding t hat the  condition  that an importer follow the 
procedures set out in the Customs Rules 2017  in order to receive beneficial tariff treatment 
constitutes a condition for tariff treatment and not a general condition for importation.920 We 
understand that if the  relevant products failed to satisfy such conditions they could be imported into 
India, but at the standard duty rate set forth in the First Schedule instead of the beneficial tariff 
treatment available under these Notifications.  
7.4.6.3.2.2   Tariff treatment as of 1 January 2022  
7.384.   Having addressed the tariff treatment applicable to products falling under tariff items 
8517.70.10 and 8517.70.90 at the time of the Panel's establishment, we recall that on 1 January 
 
917 Pursuant  to Serial No . 5 of Notification No. 57/2017, the following products  falling under tariff item 
8517.70.90 , without being subject to any conditions, were eligible for duty -free treatment: (i) all goods other 
than parts of cellular mobile phones; and (ii)  inputs or sub -parts for use in manufacture  of parts mentioned at 
(i) above. (Notification No. 57/2017, (Exhibit IND -42)).  
918 The following products  falling under tariff item  8517.70.90  of the First Schedule , subject to the 
condition that the importer follow the procedures set out in the Customs Rules 2017, were eligible for duty -free 
treatment unde r Notification No. 57/2017:  (1) pursuant to Serial Nos. 5C, 5D, and 5E: (i) inputs or sub -parts 
for use in the manufacture of v ibrator motors/ringers for use in the manufacture of cellular mobile phones , 
display assembl ies for use in  the manufacture of cellular mobile phones , or touch panels/cover glass 
assembl ies for use in manufacture of cellular mobile phones; and (ii) inputs or sub -parts for use in  the 
manufac ture of parts mentioned at (i) above; (2) pursuant to Serial Nos. 6A, 6B, and 6C: i. (a) inputs or parts 
for use in manufacture of PCBA of cellular mobile phones and (b) inputs or sub -parts for use in manufacture of 
PCBAs of cellular mobile phones, provide d that both of these categories exclude the following goods; (i) 
connectors; (ii) microphones; (iii) receivers; ( iv) speakers; and (v) SIM sockets; ii. (a) inputs or parts for use 
in manufacture of camera modules of cellular mobile phones and (b) inputs or  sub-parts for use in manufacture 
of camera modules of cellular mobile phones; and iii. (a) inputs or parts for use in manufacture of connectors 
of cellular mobile phones and (b) inputs or sub -parts for use in manufacture of connectors of cellular mobile 
phones ; (3) pursuant to Serial No. 7: (i) wired headset s; (ii) battery cover s; (iii) front cover s; (iv) front cover s 
(with zinc casting); (v) middle cover s; (vi) GSM antenna e/antenna e of any technology; (vii) side keys; (viii) 
main lenses; (ix) camera lenses; (x) screws; (xi) microphone rubber cases; (xii) sensor rubber cases/sealing 
gasket s including sealing gaskets/cases from rubbers like SBR, EPDM, CR, CS, silicone and all other individual 
rubbers or combination/combination of rubbers; (xiii) P U case s/sealing gasket – other articles of polyurethane 
foam like sealing gaskets/case; (xiv) sealing gaskets/ cases from PE, PP, EPS, PC and all other individual 
polymers or combination/combination of polymers; (xv) SIM socket s/other mechanical items (Meta l); (xvi) SIM 
socket s/other mechanical items ( plastic); (xvii) back covers; (xviii) conductive cloths; (xix) heat dissipation 
sticker battery covers; (xx) sticker -battery slot; (xxi) protective film for main lens; (xxii) mylar for LCD FPC; 
(xxiii) LCD conductive foam; (xxiv) film-front flash; (xxv) LCD foam; (xxvi) BT foam; (xxvii) microphone s and 
receiver s; (xxviii) key pads; (xxix) USB cables; and (xxx) fingerprint reader s/scanner; (4) pursuant to 
Serial  No. 7A: inputs  and raw material , other than PCBAs  (falling under tariff item  8504.90.90 of the First 
Schedule ) and moulded plastics (falling under tariff items  3926.90.99 or 8504 .90.90 of the First Schedule) for 
use in the manufacture of chargers or adapters for cellular mobile phones; and (5) pursuant to Serial No. 8: 
inputs or raw material for use in manufacture of the following goods: (i) base stations; (ii) all goods falling 
under  tariff item  8517.62.90 of the First Schedule; a nd (iii) all goods falling under tariff item  8517.69.90 of the 
First Schedule. (Notification No. 57/2017 as amended by Notification Nos. 22/2018, 37/2018, 02/2019, 
24/2019, and 02/2020 , (Exhibit IND -42)).  
919 The following products falling under tariff item 8517.70.90 of the First Schedule, subject to the 
condition that the importer follow the procedure set out in the Customs Rules 2017 , were eligible to be 
exempted from the portion of customs duty exceeding 10 % under Notification No. 57/2017: (1) pursuant to 
Serial Nos. 5A and 5B: (i) camera module s for use in manufacture of cellular mobile phones; and (ii) 
connectors for use in manufacture of cellular mobile phones; and (2) pursuant to Serial Nos. 5C, 5D, and 5E: 
(i) vibrator motors/ringers for use in manufacture of cellular mobile phones; (ii) d isplay assembl ies for use in 
manufacture of cellular mobile phones; and (iii) touch panels/cover glass assembl ies for use in manufact ure of 
cellular mobile phones. (Notification No. 57/2017 as amended by Notification Nos. 37/2018 and 02/2020, 
(Exhibit  IND-42)).  
920See para . 7.332  above.  WT/DS582/R  
 
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  2022 the First Schedule was amended, such that "tariff item s 8517 70 10 and 8517 70 90 and the 
entries relating thereto" were substituted with the following entries921:  
Tariff 
item Product description  Standard 
duty rate  
 - Parts  
8517.71.00 -- Aerials and aerial reflectors of all kinds; parts suitable for use 
therewith  20% 
8517.79 -- Other:   
8517.79.10 --- Populated, loaded or stuffed printed circuit boards  20% 
8517.79.90 --- Other  15% 
 
7.385.   Following the second substantive meeting with the parties, the Panel asked the parties to 
confirm its understanding that no party had identified any customs notifications on the Panel's record 
setting forth any exemptions pertaining to products falling und er tariff items 8517.71.00, 
8517.79.10, or 8517.79.90. The European Union confirmed that this understanding was correct and 
stated that the products covered by those tariff items are currently subject to duty rates of 20%, 
20%, and 15%, respectively.922 India did not dispute the Panel's understanding. India stated that 
the "the replacement of tariff lines 8517.70.10 and 8517.70.90 has only resulted in a change in 
headings, and not the descriptions " and that "the change in domestic customs legislation pursuan t 
to the introduction of HS2022 has not resulted in any substantial change in the applied duty of 
products covered under HS2007 tariff lines 8517.70.10 and 8517.70.90."923 
7.386.   Subsequently, India submitted onto the Panel record Notification No. 02/2022.924 We no te 
that through Notification No. 02/2022, Notification No. 50/2017 was amended to "omit" 
Serial  No. 402.925 Thus, based on the most up -to-date evidence submitted to us, the conditional 
duty-free treatment that was available for products falling under tariff  item 8517.70.10 of the First 
Schedule, as it existed at the time of the Panel's establishment, pursuant to Serial  No. 402 of 
Notification No. 50/2017926, is not presently available for products falling under tariff item 
8517.79.10 of India's First Schedule . 
7.387.   We note that, in the context of responding to certain questions from the Panel regarding the 
European Union's claim pertaining to products falling under tariff item 8517.12 of India's 
WTO Schedule, India refers to Notification No. 57/2021.927 Notwithstand ing that neither party refers 
to this Notification in the context of the European Union's claim concerning products falling under 
tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule, our review of this exhibit 
suggests that it is indeed relev ant for products presently classified under tariff items 8517.71.00, 
8517.79.10, and 8517.79.90 of India's First Schedule. Specifically, we understand that 
Notification  No. 57/2021 amended Notification Nos. 24/2005 and 57/2017 such that certain 
exemptions set forth in those Notifications may continue to apply to products presently classified 
under those tariff items.  
7.388.   Having reviewed this evidence , we understand that, in light of the amendments to various 
customs notifications introduced by Notification No.  57/2021:  
a. With respect to products classified under tariff item 8517.71.00 of the First Schedule, 
pursuant to Serial No. 5 of Notification No. 57/2017, g oods other than parts of cellular 
 
921 Finance Act 2021, (Exhibit IN D-66), p. 176. 
922 European Union's response to Panel question No. 117, paras. 91 -92. See also fn 889 to para. 7.370  
above.  
923 India's comments on the European Union's response to Panel question No. 117, para. 40 . India also 
argues that " all submissions made by [India]  with regard to sub -heading 8517.70, including that the 
complainant has failed to identify the products at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90, 
extend to sub -heading 8517.79.10 and 8517.79.90, respectively ". (See India's response to Panel question 
No. 117, para. 71).  
924 India's response to Panel question No. 135.  
925 Notification No. 02/2022, (Exhibit IND -90).  
926 See para. 7.377c   above.  
927 India's responses to Panel question No. 108, para. 58, and No.  110, para. 64. At the request of the 
Panel, India subsequently submitted Notification No. 57/2021 as Exhibit IND -89 on 5 July 2022.  WT/DS582/R  
 
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  mobile phones , as well as the inputs o r sub -parts for use in the manufacture of goods 
other than parts of cellular mobile phones, are eligible for duty -free treatment928; 
b. With respect to products classified under tariff item 8517.79.10 of the First Schedule:  
i. Pursuant to Serial No. 13S of Notifi cation No. 24/2005, all products other than PCBAs 
for cellular mobile phones and the products identified in footnote 899 above are eligible 
for dut y-free treatmen t if they satis fy certain conditions  – specifically, in order for the 
product to receive such duty -free treatment: (i) the importer must follow the 
procedure s set out in the Customs Rules 2017 ; and (ii)  at the time of importation , the 
importer must furnish  an undertaking to the Deputy Commissioner of Customs or the 
Assistant Commissioner of the Customs , as the case may be, to the effect that 
imported goods would not be used in the manufacture of certain specified goods929 
and in the event of failure to compl y with that condition the importer is  liable to pay 
an amount equal to the difference between the duty leviable on the imported goods 
but for the exemption under this notification and that already paid at the time of 
importation930; 
ii. Pursuant to Serial No. 2 2 of Notification No. 57/2017, PCBAs for certain specified 
products931 are unconditionally subject to a 10% duty rate ; and  
c. With respect to products classified under tariff item 8517.79.90 of the First Schedule:  
i. Pursuant to Serial No. 5 of Notification No. 57/20 17, goods other than parts of cellular 
mobile phones, as well as the inputs or sub -parts for use in the manufacture of goods 
other than parts of cellular mobile phones, are eligible for duty -free treatment932; 
ii. Pursuant to Serial Nos. 5 A and 5B of Notification No. 57/2017, camera modules for 
use in the manufacture of cellular mobile phones  and connectors for use in the 
manufacture of cellular mobile phones are eligible t o receive a 10% duty rate , subject 
to the condition that the importer follow the procedure set out in the Customs Rules 
2017.933 
7.389.   We recognize that India may amend its customs notifications such that other exemptions 
applying to products falling under tariff items 8517.70.10 and 8517.70.90 of India's First Schedule 
at the time of the Panel's establishment may continue to apply to products presently falling under 
tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of the First Schedule. In such a case, our 
analysis of the tariff treatment accorded by India to products f alling under tariff items 8517.70.10 
and 8517.70.90 of India's First Schedule at the time of the Panel's establishment  would be equally 
 
928 See Notification No. 57/2017, (Exhibit IND -42), as amended by Notification No. 57/2021, (Exhibit 
IND-89).  
929 Specifically, the imported goods are not to be used in the manufacture of: cellular mobile phones; 
base stations; optical transport equipment; combination of one or more of Packet Optical Transport Product or 
Switch ; Optical Transport Network products; IP radios; soft switches and Voice over Internet Protocol  
equipment, namely, Voice over Internet Protocol phones, media gateways, gateway controllers  and session 
border controllers; carrier ethernet switches, Packet Transport Node products , and Multiprotocol Label 
Switching -Transport Profile products; and Multiple Input/Multiple Output and Long Term Evolution products . 
(Serial No. 13S of Notification N o. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 38/2018 , and 
76/2018 , (Exhibit IND -39)). 
930 Serial No. 13S of Notification No. 24/2005  as amended by Notification No s. 132/2006 , 58/2017 , 
38/2018 , 76/2018, (Exhibit IND -39), and No. 57/2021, (Exhibit IND -89). We note that these conditions are 
attached to the tariff treatment and are not general conditions for importation. (See para. 7.379  above).  
931 Specifically PCBAs for: b ase stations; optical transport equipment; combination of one or more of 
Packet Optical Transport Product or Switch; Optical Transport Network products; IP radios; soft switches and 
Voice over Internet Protocol equipment, namely, Voice over Internet Protocol phones, media gateways, 
gateway controllers and session border controllers; carrier ethernet switches, Packet Transport Node products , 
and Multiprotocol Label Switching -Transport Profil e products; and Multiple Input/Multiple Output and Long 
Term Evolution products . (Serial No. 22 of Notification No. 57/2017 as amended by Notification No. 02/2020 , 
(Exhibit IND -42), and Notification No. 57/2021, (Exhibit IND -89)). 
932 See Notification No. 57 /2017 (Exhibit IND -42), as amended by Notification No. 57/2021, (Exhibit 
IND-89).  
933 Notification No. 57/2017 as amended by Notification Nos. 37/2018 and 02/2020 , (Exhibit IND -42), 
and Notification No. 57/2021, (Exhibit IND -89). WT/DS582/R  
 
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  applicable to the tariff treatment accorded by India to products presently falling under tariff items 
8517.71.00, 8517.7 9.10, and 8517.79.90 of the First Schedule. We note in this regard India's 
argument that its "submissions" with regard to tariff item s 8517.70.10 and 8517.70.90 continue to 
apply to tariff item s 8517.79.10 and 8517.79.90934 and that "the change in domestic customs 
legislation pursuant to the introduction of HS2022 has not resulted in any substantial change in the 
applied duty of products covered under HS2007 tariff items 8517.70.10 and 8517.70.90."935 We 
therefore do not preclude the possibility that such Not ifications may continue to apply to the products 
presently classified under tariff items 8517.71.00, 8517.79.10, and 8517.79.90. However, nothing 
on the record of this dispute allows us to make a determination in this regard.  
7.390.   To summarize, at the time of t he Panel's establishment  certain specified products falling 
under tariff item 8517.70.10 of India's First Schedule were unconditionally subject to  a 10% duty 
rate.936 Certain other products falling under this tariff item were eligible for duty -free treatmen t if 
they satisfied certain conditions.937 All other products classified under this tariff item, as well as 
products that failed to satisfy the conditions for duty -free treatment, were subject to the 20% duty 
rate set forth in the First Schedule. As for  products falling under tariff item 8517.70.90 of India's 
First Schedule, certain such products were eligible for unconditional duty -free treatment.938 Subject 
to certain conditions, certain other products were eligible for either duty -free treatment or a 10% 
duty rate.939 All other products classified under this tariff item, as well as products that failed to 
satisfy the conditions for the duty -free treatment or the 10% duty rate, were subject to the 15% 
duty rate set forth in the First Schedule.   
7.391.   Regarding the tariff treatment as of 1 January 2022 , we note, based on the evidence before 
us, that: (i) with respect to products falling under tariff item 8517.71.00 of the First Schedule, 
certain specified products are unconditionally subject to duty -free treatment, w hile all other products 
are subject to the 20% duty rate set forth in the First Schedule940; (ii) with respect to products 
falling under tariff item 8517.79.10 of the First Schedule, certain specified products are eligible for 
duty-free treatment if they sa tisfy certain conditions , other specified products are unconditionally 
subject to a 10% duty rate, and all other products are subject to the 20% duty rate set forth in the 
First Schedule941; and (iii) with respect to products falling under tariff item 8517.79.90 of the First 
Schedule, certain specified products are unconditionally subject to duty -free treatment, other 
specified products are subject to a 10% duty rate subject to certain conditions, and all other products 
are subject to the 15% duty rate set forth in the First Schedule.942   
7.4.6.4   Comparison  of India's tariff treatment to its WTO tariff commitments  
7.4.6.4.1   Main arguments of the parties  
7.392.   The European Union argues that, at the time of the Panel's establishment, the products 
classified under tariff items 851 7.70.10 and 8517.70.90 of India's First Schedule were products 
falling within the scope of India's WTO tariff commitments as set forth at tariff items 8517.70 ex01, 
ex02, and ex03 of India's WTO Schedule.943 The European Union argues that the duty rates for  such 
products as set forth in India's First Schedule were in excess of the 0% bound duty rate set forth in 
India's WTO Schedule.944 The European Union further considers that the various customs 
notifications pertaining to products falling under these tarif f items did not provide " for an 
unconditional freedom from any tariffs " for products classified under tariff items 8517.70 ex01, ex02, 
and ex03, and consequently India acted inconsistently with Articles II:1(a) and (b) of the 
GATT  1994.945 Regarding India's  amendment of the First Schedule, the European Union considers 
that the " alteration of India' s domestic customs legislation … does not change the fact that India does 
 
934 India's response to  Panel question No. 117, para. 71.  
935 India's comments on the European Union's response to Panel question No. 117, para. 40 . 
936 See para. 7.377a  above.  
937 See paras. 7.377b -7.377c  above.  
938 See paras. 7.382a -7.382b  above.  
939 See paras. 7.382a -7.382b  above.  
940 See para. 7.388a  above.  
941 See para. 7.388b  above.  
942 See para.  7.388c  above . 
943 European Union's first written submission, paras. 13 3-140.  
944 European Union's first written submission, para. 140.  
945 European Union's first written submission, paras. 15 3-154. See also European Union's  response to 
Panel question No. 115, paras. 89 -90.  WT/DS582/R  
 
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  impose customs duties on the products covered by its bindings ".946 According to the Europea n Union, 
"this change in India' s domestic customs legislation, which does not alter the inconsistency of this 
legislation with India' s international legal obligations, cannot prevent a finding of inconsistency and 
an indication that India should bring its domestic legislation into compliance with its international 
obligations."947 
7.393.   India notes that a Section Note to Section XVI of the HS2007 indicates that "[p]arts which 
are goods included in any of the headings of Chapter 84 or 85 (other than headings 84.09,  84.31, 
84.48, 84.66, 84.73, 84.87, 85.03, 85.22, 85.29, 85.38 and 85.48) are in all cases to be classified 
in their respective headings", and "[o]ther parts, if suitable for use solely or principally with a 
particular kind of machine, or with a number of machines of the same heading (including a machine 
of heading 84.79 or 85.43) are to be classified with the machines of that kind".948 India submits that 
"[g]iven that the Section Notes make a nuanced distinction on the kinds of goods that may be 
covered as 'Parts' (classifiable under 8517.70) and those 'Parts which are goods' (classifiable under 
the appropriate heading of Chapter 84 or Chapter 85), the complainant's failure to explicitly confirm 
the classification of the products at issue must lead to the re jection of its claim."949 Specifically w ith 
respect to tariff item 8517.70.10 of the First Schedule (as it existed at the time of the Panel's 
establishment), India argues that the European Union "has been unable to identify the exact 
products at issue and t he duty applicable on such products".950 As to tariff item 8517.70.90 of the 
First Schedule (as it existed at the time of the Panel's establishment),  India argues  that "' [a]ll goods 
other than the parts of cellular mobile phone s' and ' Inputs for all goods other than the parts of 
cellular mobile phones ' falling under tariff item 8517.70.90 of the Customs Tariff Act are exempt 
from duties", and submits that "[f]or all other products mentioned in the EU's Panel Request and 
first written submissions", the European Union has failed to demonstrate that  such products are 
classified under this tariff item.951 According to India, such products "must be held to be outside the 
scope of the present dispute".952 India also notes "the replacement of tariff lines 8517.70.10 and 
8517.70.90 has only resulted in a ch ange in headings, and not the descriptions" and therefore "India 
has not raised any defense concerning the replacement of HS2007 tariff lines 8517.70.10 and 
8517.70.90 with HS2022 tariff lines 8517.79.10 and 8517.79.90".953 India nevertheless argues that 
"all submissions made by it with regard to sub -heading 8517.70, including that the complainant has 
failed to identify the products at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90, extend 
to sub -heading 8517.79.10 and 8517.79.90, respectively".954 
7.4.6.4.2   Panel's assessment  
7.394.   We recall that tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule indicate 
that India is obligated  to accord unconditional duty -free treatment to parts  of telephone sets and 
other certain apparatus for transmission or rec eption of voice, images, or data .955  
7.395.   We note that, at the time of the Panel's establishment, tariff item 8517.70.10 of India's 
First Schedule covered p opulated, loaded or stuffed printed circuit boards constituting parts of 
telephone sets or other certain apparatus for transmission or reception of voice, images, or data . 
Tariff item 8517.70.90 of India's First Schedule covered "other" parts of telephone sets or other 
certain apparatus for transmission or reception of voice, images, or data . It is unconteste d that the 
products that, at the time of the Panel's establishment, were classified under tariff items 8517.70.10 
and 8517.70.90 of India's First Schedule fell within the scope of India's WTO tariff commitments 
under tariff items 8517.70 ex01, ex02, and ex 03 of its WTO Schedule.  
 
946 European Union's response to Panel question No. 117, para. 9 3. (emphasis omitted)  
947 European Union's response to Panel question No. 117, para. 94.  
948 India's response to Panel question No. 105, para. 54  and No. 116, para. 69 ; second written 
submission, para. 134 (quoting HS2007 Section Notes to Section XVI , (Exhibit IND -9)).  
949 India's response to Panel question No. 105, para. 55  and No. 116, para. 70; second written 
submission, para. 135 .  
950 India's first written submission, para. 205.  
951 India's first written submission, para. 212. 
952 India's first written submission, para. 212. 
953 India's response to Panel question No. 117, para. 71.  
954 India's response to Panel question No. 117, para. 71.  
955 See para. 7.368  above.  WT/DS582/R  
 
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  7.396.   Following India's amendment of its First Schedule, the products previously covered by tariff 
items 8517.70.10 and 8517.70.90 became classified under tariff items 8517.71.00956, 
8517.79.10957, and 8517.79.90958 of the First Schedule. S ince the products previously classified 
under tariff items 8517.70.10 and 8517.70.90 fell within the scope of India's WTO tariff 
commitments under tariff items 8517.70 ex01, ex02, and ex03 of its WTO Schedule, it logically 
follows that the products present ly classified under tariff items 8517.71.00, 8517.79.10, and 
8517.79.90 also fall within the scope of those WTO tariff commitments. We understand that India 
does not dispute this.959 We find therefore that, as of 1 January 2022, these tariff items of India' s 
First Schedule cover parts of telephone sets and "other " certain apparatus for transmission or 
reception of voice, images, or data , which are products covered by India's WTO tariff commitments 
under tariff items 8517.70 ex01, ex02, and ex03 of its WTO Schedule.960  
7.397.   Regarding India's argument that aspects of the European Union's claims must fail because 
the European Union allegedly failed to "identify the specific products at issue and their correct 
classification"961, we recall that the European Union's c laim under Article s II:1(a) and (b) of the 
GATT 1994 concerns the tariff treatment accorded by India to products falling within the scope of 
tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule.962 We have concluded above 
that India's WTO tarif f commitments with respect to these tariff items extend to products that: (i) 
at the time of the Panel's establishment were classified under tariff items 8517.70.10 and 
8517.70.90 of the First Schedule; and (ii) which, as of 1 January 2022, are  classified under tariff 
items 8517.71.00, 8517.79.10 and 8517.79.90 of the First Schedule. Based on the arguments and 
evidence adduced by the parties, we have made factual findings regarding the tariff treatment 
accorded by India to such products. In our view, this t ariff treatment concerns products that properly 
fall within the scope of the European Union's claim. We proceed therefore to compare such tariff 
treatment to the relevant tariff commitments set forth in India's WTO Schedule. We emphasize that 
this comparis on is limited to the tariff treatment of products that are classified under tariff items 
8517.70 ex01, ex02, and ex03 of India's WTO Schedule, and which therefore fall within the scope 
of the European Union's claim.963 
7.398.   For the reasons explained above,  India is obligated  to accord unconditional duty -free 
treatment to products falling under tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of the First 
Schedule. We recall that, as of 1 January 2022 : (i) with respect to products falling under tariff item 
8517.71.00 of the First Schedule, certain specified products are unconditionally subject to duty -free 
 
956 Aerials and aerial reflectors of all kinds, and parts suitable for use the rewith, constituting parts of 
telephone sets and other certain apparatus for transmission or reception of voice, images, or data . (See para. 
7.384  above).  
957 Populated, loaded or stuffed printed circuit boards constituting parts of telephone sets and other 
certain apparatus for transmission or reception of voice, images, or data . (See para. 7.384  above).  
958 Other parts of telephone sets and other certain apparatus for transmission or reception of voice, 
images, or data . (See para. 7.384  above).  
959 India explained that " as opposed to the replacement of tariff line 8517.12 with tariff lines 8517.13 
and 8517.14, the replacement of tariff lines 8517.70.10 and 8517.70.90 has only resulted in a change in 
headings, and not the descriptions ". (India's response to Panel question No. 117, para. 71).  
960 See fns 956, 957, and 958 to para. 7.396  above.  
961 India's response to Panel question No. 105, para. 52.  
962 Specifically, the European Union challenges the tariff treatment applied by India to products 
classified under tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule. ( European Union's fi rst 
written submission, para. 13 ; panel request, p. 1).  
963 We note that certain of the tariff treatment described in section 7.4.6.3.2  above, in addition to being 
available for some specified products that fall within the scope of the European Union's claim, may also have 
been available for other products (i.e. products presently classified under tariff items of India's First Schedule 
other than 8517.71.00, 8517.79.1 0, or 8517.79.90). This is because those exemptions are available for a wide 
number of products, including some products that fall within the scope of the European Union's claim and 
others which do not . We wish therefore to clarify that our factual and leg al findings in section 7.4.6 of this 
Report do not concern products which do not fall within the scope of tariff items 8517.7 0 ex01, ex02, and ex03 
of India's WTO S chedule. In our view, the tariff treatment, in India's domestic customs regime, of the products 
challenged by the European Union is clear. In this respect, we also consider India's references to the Section 
Note of Section XVI of the HS2007 to be inapposit e. (See para. 7.393  above). The tariff treatment identified by 
the European Union is that applied to products classified under certain tariff items of India's Firs t Schedule. We 
have concluded that the products falling under those tariff items fall within the scope of tariff items 8517.70 
ex01, ex02, and ex03 of India's WTO Schedule. It is not necessary for us (or for the European Union) to 
independently identify ea ch individual product falling under the relevant tariff items (8517.71.00, 8517.79.10, 
and 8517.79.90) of the First Schedule, since all products falling under those tariff items are covered by India's 
WTO legal obligations and, as indicated, the tariff tre atment of those products is clear.  WT/DS582/R  
 
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  treatment, while all other products are subject to the 20% duty rate set forth in the First Schedule964; 
(ii) with respect to products falling under tariff item 8517.79.10 of the First Schedule, certain 
specified products are eligible for duty -free treatment if they satisfy certain conditions, other 
specified products are unconditionally subject to a 10% duty rate, and all other products are subject 
to the 20% d uty rate set forth in the First Schedule965; and (iii) with respect to products falling under 
tariff item 8517.79.90 of the First Schedule, certain specified products are unconditionally subject 
to duty -free treatment, other specified products are subject t o a 10% duty rate subject to certain 
conditions, and all other products are subject to the 15% duty rate set forth in the First Schedule.966 
We understand that the unconditional duty -free treatment accorded to certain products is consistent 
with India's WTO  Schedule. The 10%, 15%, and 20% duty rates applied to certain products falling 
under these tariff items is in excess of the bound duty of 0% set forth in India's WTO Schedule. 
Finally, the requirement that certain products must satisfy conditions967 that a re not set forth in 
India's WTO Schedule in order to receive unconditional duty -free treatment is inconsistent with 
India's WTO tariff commitment, as contained in its WTO Schedule, to provide unconditional duty -free 
treatment to such products.  
7.399.   We also reca ll that, at the time of the Panel's establishment , India either partially or 
completely exempted certain products falling under tariff items 8517.70.10 and 8517.70.90 of the 
First Schedule from the standard duty rates set forth in that First Schedule , through a number of 
customs notifications . Several such exemptions have been amended to cover products that, after 
1 January 2022, fall under tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of India's 
First Schedule.  
7.400.   We do not preclude the p ossibility that other exemptions may also, through relevant 
amendments, continue to apply to the products presently classified under tariff items 8517.71.00, 
8517.79.10, and 8517.79.90. However, nothing on the record of this dispute allows us to make a 
determination in this regard. Nevertheless, for the sake of facilitating the resolution of this dispute, 
we proceed to compare the duty rate that may be applicable pursuant to customs notifications on 
the assumption that customs notifications that applied pri or to 1 January 2022 may, through relevant 
amendments, continue to apply to the products at issue.968  
7.401.   In this respect, we recall that certain products  that, at the time of the Panel's establishment , 
fell under tariff item 8517.70.10 of India's First Schedu le were unconditionally subject to a 10% duty 
rate.969 Other products falling under this tariff item were eligible for duty -free treatment if they 
satisfied certain conditions.970 All other products classified under this tariff item, as well as products 
that failed to satisfy the conditions for duty -free treatment, were subject to the 20% duty rate set 
forth in the First Schedule. As for products falling under tariff item 8517.70.9 0 of India's First 
Schedule, certain such products were eligible for unconditional duty -free treatment.971 Subject to 
certain conditions, other products were eligible for either duty -free treatment or a 10% duty rate.972 
All other products classified under t his tariff item, as well as products that failed to satisfy the 
conditions for the duty -free treatment or the 10% duty rate, were subject to the 15% duty rate set 
forth in the First Schedule.  
7.402.   In comparing the tariff treatment applied pursuant to these Noti fications to India's WTO tariff 
commitments, we note at the outset that only certain products classified under tariff items 
8517.70.10 and 8517.70.90 were eligible for the beneficial tariff treatment set forth in those 
Notifications. Thus, at least some pr oducts falling under those tariff items remained subject to the 
 
964 See para. 7.388a  above.  
965 See para. 7.388b  above.  
966 See para. 7.388c  above.  
967 See para. 7.388b.i  above.  
968 We note that this approach is different to our approach to tariff item 8517.12. In this respect, we 
recall that at the time of the Panel's establishment certain products falling under tariff item 851 7.12 of India's 
First Schedule (namely, telephones for other wireless networks) were exempted from customs duties through 
Notification No. 57/2017. The evidence on the record indicates that, following India's amendment of its First 
Schedule, Notification N o. 57/2017 was amended by Notification No. 57/2021, such that the exemptions 
available under Notification No. 57/2017 continued to be available to the same products. (See section 7.4.3.3.2 
above) . 
969 See para. 7.377a  above.  
970 See paras. 7.377b -7.377c  above.  
971 See paras. 7.382a -7.382b  above.  
972 See paras. 7.382a -7.382b  above.  WT/DS582/R  
 
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  standard duty rates set forth in the First Schedule. Those standard duty rates of 20% and 15%, 
respectively, were in excess of the bound duty rate of 0%. If the relevant customs notifications are 
amended to refer to products presently falling under tariff items 8517.71.00, 8517.79.10, and 
8517.79.90 of the First Schedule, those exemptions would continue to apply to a specific subset of 
products falling under those tariff items. All other produc ts would be subject to the standard duty 
rates of 20% or 15% set forth in the First Schedule. Such applied duty rate is in excess of the bound 
duty rate of 0%.  
7.403.   With respect to those specified products that were eligible for unconditional duty -free 
treatme nt, we consider that the tariff treatment accorded to these products was consistent with 
India's WTO tariff commitments. However, with respect to those specified products that were eligible 
for duty -free treatment subject to satisfying certain conditions, we note that those conditions for 
duty-free treatment973 are not set forth in India's WTO Schedule. To the extent that the relevant 
customs notifications are amended to refer to products falling under tariff items 8517.71.00, 
8517.79.10, and 8517.79.90 of t he First Schedule : (i) the unconditional duty -free treatment 
accorded to certain specified products is consistent with India's WTO tariff commitments; and (ii) 
the conditional duty -free treatment accorded to certain specified products is subject to conditi ons 
that are not set forth in India's WTO Schedule.  
7.404.   Finally, with respect to those specified products that were eligible for a partial exemption 
from the duty rates imposed under the First Schedule, such that they were subject to a 10% duty 
rate, we note that such applied duty rate was in excess of the bound duty rate of 0%. Among those 
specified products, certain products were unconditionally subject to the 10% duty rate while for 
other such products the reduced 10% duty rate was only applicable if the im porter followed the 
procedures set out in the Customs Rules 2017. This is not a condition set out in India's WTO 
Schedule. To the extent that the relevant customs notifications are amended to refer to products 
falling under tariff items 8517.71.00, 8517.79 .10, and 8517.79.90 of the First Schedule : (i) the 
unconditional tariff treatment accorded to certain specified products continues to be in excess of the 
bound duty rate; and (ii) the conditional tariff treatment accorded to certain specified products 
continues to be in excess of the bound duty r ate and subject to a condition that is not set forth in 
India's WTO Schedule.  
7.4.6.5   Conclusion  
7.405.   Based on the foregoing, we find that India's tariff treatment of certain parts of telephone 
sets and other apparatus for transmission or reception of voice, images, o r data , falling within the 
scope of tariff items 8517.70 ex01, ex02, and ex03  of India's WTO Schedule,  is inconsistent with 
Article II:1(b), first sentence , of the GATT 1994, because (i) certain such products are subject to 
ordinary customs duties in exces s of those set forth and provided in India's WTO Schedule; and (ii) 
certain such products are subject to ordinary customs duties in excess of those set forth  and provided  
in India's  WTO Schedule  unless they satisfy certain conditions not set forth in that WTO Schedule .  
7.406.   We recall that the application of ordinary customs duties in excess of those provided for in 
a Member's  Schedule , or subject to terms, conditions or qualifications not set forth in the Schedule, 
inconsistent with the first sentence of Articl e II:1(b), also constitutes "less favourable" treatment 
within the meaning of Article II:1(a). Consequently, w e find that India's tariff treatment of such 
products is less favourable than that provided in its WTO Schedule, and India is therefore  acting 
inconsistently with Article II: 1(a) of the GATT 1994.   
 
973 The relevant conditions for duty -free treatment are: (i) that the importer follow the procedures set 
out in the Customs Rules 2017; (ii) the importer furnish an undertaking to the Deputy Commissioner of 
Customs or the Assistant Commissioner of the Customs, as the case may be, to the effect t hat imported goods 
would not be used in the manufacture of certain specified goods and in the event of failure to comply with that 
condition the importer would be liable to pay an amount equal to the difference between the duty leviable on 
the imported goo ds but for the exemption under this notification and that already paid at the time of 
importation ; or (iii) that the imported product be  used in the manufacture of static converters for automatic 
data processing machines and units thereof of tariff item s 8443.31.00, 8443.32.00, 8471, 8517.62, 
8528.42.00, 8528.49.00, 8528.52.00 or 8528.62.00 of India's First Schedule  (as it existed at the time of the 
Panel's establishment). ( See paras. 7.377 -7.383  above ). WT/DS582/R  
 
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  7.4.7   Tariff item 8518.30 ex01 of India's WTO Schedule  
7.4.7.1   India's WTO tariff commitments  
7.4.7.1.1   Main arguments of the parties  
7.407.   The European Union assert s that India's WTO tariff binding for line telephone handsets, set 
forth at tariff item  8518.30 ex01  of India's WTO Schedule , is 0%.974 
7.408.   India does not contest that the relevant bound duty rate for imports falling under tariff item  
8518.30 ex01  of its WTO Schedule  is 0%.975  
7.4.7.1.2   Panel's assessment  
7.409.   We understand that India does not contest that its WTO tariff commitments with respect to 
line telephone handsets are set forth in its WTO Schedule, under tariff item  8518.30 ex01. In 
particular, India does not argue that the ITA limits the scope of its co mmitment under this tariff 
item, or that this commitment was undertaken in error and is invalid pursuant to Article 48 of the 
Vienna Convention.976  
7.410.   It is therefore uncontested that, pursuant to Articles II:1(a) and (b) of the GATT 1994, India 
is obligated to provide the tariff treatment set forth in its WTO Schedule for line telephone handsets. 
In this respect, India's WTO HS2007 Schedule provides that977:  
 Product description  Bound 
rate 
8518 Microphones and stands therefor; loudspeakers, whether or not mounted 
in their enclosures; headphones, earphones and combined 
microphone/speaker sets; audio -frequency electric amplifiers; electric 
sound amplifier sets.   
8518.30  - Headphones, earphones and combined microphone/speaker sets   
ex 8518.30  -- Line telepho ne handsets  0% 
 
7.411.   Given that the tariff binding for line telephone handsets set forth in India's WTO Schedule is 
0%, and given that the WTO Schedule indicates no terms, conditions, or qualifications attached to 
that bound duty rate, we observe that India is obligated to pro vide unconditional duty -free treatment 
to line telephone handsets falling under tariff item 8518.30 ex01  of its WTO Schedule .  
7.4.7.2   India's tariff treatment  
7.4.7.2.1   Main arguments of the parties  
7.412.   In its first written submission, the  European Union argued that India's  First Schedule imposes 
a standard duty rate of 15% on imports classified under tariff item 8518.30.00 of that Schedule, 
namely "[h]eadphones and earphones, whether or not combined with a microphone, and sets 
consisting of a microphone and one or more loudspe akers."978 The European Union considered  that 
line telephone handsets imported into India are classified under that tariff item of the First Schedule. 
The European Union subsequently submitted  that India itself had acknowledged that tariff item 
8518.30 may cover "certain types of handsets".979 According to the European Union, Notification No. 
25/2005 initially exempted line telephone handsets from the standard 15% duty rate set forth in 
 
974 European Union's first written submission, paras. 155 -156.  
975 India's response to Panel question No. 66, para s. 28-29. According  to India, it is "already providing 
concessions to the products in accordance with its commitments." (Ibid.  para. 29 ).  
976 We also note that India did not attempt to modify this tariff item  in its draft rectification under the 
1980 Decision . According to India, line telephone handsets "are covered by the scope of India' s commitments " 
under the ITA . (India's response to Panel question No. 39, para. 92).  
977 WT/Let/1072 and WT/L et/181.  
978 Europea n Union's first written submission, para. 157 (referring to First Schedule of the Customs 
Tariff Act as amended by Finance Act 2018 , (Exhibit EU -15)). 
979 European Union's response to Panel question No. 86, para. 131 (referring to India's response to 
Panel q uestion No. 41). See also European Union's second written submission, para. 75.  WT/DS582/R  
 
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  the First Schedule .980 However, Notification No. 23/2019, which amended No tification No. 25/2005, 
changed the product description relevant to that exemption from "line telephone handsets" to " parts 
of line telephone handsets". Thus, according to the European Union,  complete  line telephone 
handsets are excluded from the exemption  available under Notification No. 25/2005 .981  
7.413.   In its first written submission, India argued  that "'Line Telephone Handsets' form a part of 
'Line Telephone Sets'" and consequently are classified under tariff item  8517.11 of India's First 
Schedule, thereby receiving duty -free treatment.982 India also argued that "India has never intended 
on imposing a duty on 'Line Telephone Handsets.'"983 Subsequently, in response to questions from 
the Panel, India provided text fro m the HS2017 Explanatory Notes to headings 8517 and 8518 and 
stated that "[a] combined reading of the two explanatory notes gives an impression to India that 
sub-heading 8518.30 intends to cover only certain types of handsets, i.e., which are combined 
microphone/speaker sets for telephony and which are generally used by telephone operators ."984 
India argued, however, that, even "if the Panel finds that Line Telephone Handsets are parts and, 
accordingly, classifiable under tariff heading 8518.30, they would s till be exempt from customs duty 
under Serial No. 39 of the Notification No. 24/2005 dated March 1, 2005".985  
7.414.   Following India's initial arguments, the European Union indicated  that it would withdraw its 
claim regarding this tariff item  if India confirmed t hat all imported line telephone handsets are 
accorded duty -free treatment under headings 8517.11 and 8517.18.986 Subsequently, however, the 
European Union considered that India had clarified that certain types of line telephone handsets do 
fall within the s cope of tariff item  8518.30  and consequently the European Union maintained its 
claim.987 The European Union also argued  that, even if line telephone handsets receive duty -free 
treatment pursuant to Serial No. 39 of Notification No. 24/2005, India is neverth eless acting 
inconsistently with Article s II:1(a) and (b) because the conditions  for such treatment are not in its 
WTO Schedule.988  
7.415.   At the second substantive meeting of the Panel, India clarified that, pursuant to Notification 
No. 15/2022, issued on 1 February 2022, " line telephone handsets are subject to duty free treatment 
under sub -heading 8518.30  as well as sub -heading 8517.11 ".989 India also argued that, since the 
measure has been withdrawn, the Panel may not make any recommendation s concerning tariff item  
8518. 30.990  
 
980 European Union's first written submission, para. 159 (referring to Notification No. 25/2005 , 
(Exhibit  EU-10)). 
981 European Union's first written submission, paras. 160 -161 (re ferring to Notification  No. 23/2019 , 
(Exhibit EU -14)). (underlining  added)  
982 India's first written submission, para. 223. (underlining added)  
983 India's first written submission, para. 223.  Following the first substantive meeting, India elaborated 
that it "has not imposed any duty on 'Line Telephone Handsets'", that it "never intended on imposing a duty on 
'Line Telephone Handsets'", and that "the amendments introduced by India should not be construed as an 
imposition of duty on 'Line Telephone Handsets.'"  (India's response to Panel question No. 85, para. 73 
(emphasis omitted) ). 
984 India's response to Panel question No. 41, para. 98. (emphasis and underlining original)  
985 India's response to Panel question No. 41, para. 98.  
986 European Union's response to Panel question No. 38, para. 97.  
987 Specifically, the European Union point ed to India's statement that:   
A combined reading of the two explanatory notes gives an impression to India that sub -heading 
8518.30 intends to cover on ly certain types of handsets, i.e., which are combined 
microphone/speaker sets for telephony and which are generally used by telephone operators . 
Therefore, the exclusion contained in the explanatory note to sub -heading 8517.11 may have a 
limited effect due to the added condition contained in explanatory notes to sub -heading 8518.30 
relating to the usage of line telephone handsets covered therein.  
(European Union's response to Panel question No. 86, para. 131 (quoting India's response to Panel 
question No.  41, para. 98))  
988 European Union's response to Panel question No. 86, paras. 134 -135.  
989 India's response to Panel question No. 120, para. 72. In its second written submission, India stated 
that " no duties are being imposed on products at issue classified under sub -headings 8518.30 and 
8544.42/8544.49 ". (India's second written submission, para 4 (referring to Notification No. 15/2022, (Exhibit 
IND-73)). 
990 India's response to Panel question No. 120, para. 72; comments on the European Union's response 
to Pane l question No. 124, paras. 44 -47 (referring to Appellate Body Report, US – Certain EC Products , 
para. 81; and Panel Reports, US – Large Civil Aircraft (2nd Complaint) , para 8.6 and fn 4266 thereto; EC – 
Approval and Marketing of Biotech Products , para. 7.1 316).  WT/DS582/R  
 
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  7.416.   Following India's clarification regarding Notification No. 15/2022, the European Union agreed 
that, as a result of the amendment introduced by this Notification, India " accords duty free treatment 
for all the products covered by the con cession included in its GATT schedule with regard to tariff line 
8518.30 ex01 ".991 The European Union nevertheless requests the Panel to find that prior to the entry 
into force of th at amendment, "India was in breach of its obligations pursuant to Article I I:1 (a) and 
(b) of the GATT 1994 ", and " following the entry into force of the above mentioned amendment, India 
ceased to be in breach of those obligations. "992 
7.4.7.2.2   Panel's assessment  
7.417.   The European Union and India agree that pursuant to Notification No. 15/2022, which was 
introduced by India while these dispute settlement proceedings were ongoing, India presently 
accords duty -free treatment to line telephone handsets, and is therefore acting in accordance with 
Articles II:1(a) and (b) of the GATT 1994.993 Neverthel ess, the European Union requests us to find 
that India was acting inconsistently with Articles II:1(a) and (b) prior to the introduction of 
Notification No. 15/2022, and that this Notification brought India into consistency with its 
obligations. India, for  its part, argues that the Panel may not make any recommendations regarding 
the tariff treatment accorded by India to line telephone handsets.  
7.418.   In our view, the European Union's request for findings  and India's argument that we may 
not make recommendations  are not in tension with each other. To the extent that India was acting 
inconsistently with its WTO obligations at the time of the Panel's establishment,  and India resolved 
that inconsistency during these proceedings, we can both: (i) make legal and factua l findings  to that 
effect; and (ii) refrain from making any recommendations  that India bring itself into consistency 
with its WTO obligations. Given the parties' disagreement as to whether India was, at the time of 
the Panel's establishment, acting inconsi stently with its WTO obligations, we consider it useful for 
the purposes of resolving the parties' dispute to address this issue.994 We therefore proceed to assess 
the tariff treatment accorded by India to line telephone handsets both at the time of the Pan el's 
establishment and following India's amendments that took place during these proceedings.  
7.419.   We start our analysis by considering India's classification of line telephone handsets in its 
domestic customs regime. The European Union considers that line tel ephone handsets are classified 
under tariff item 8518.30.00 of India's First Schedule, which covers "[h] eadphones and earphones, 
whether or not combined with a microphone, and sets consisting of a microphone and one or more 
loudspeakers ".995 India argues that Notification No. 25/2005, as amended by Notification No. 
26/2007, indicates that line telephone handsets falling under tariff items "8517.11 or 8517.18" can 
receive duty -free treatment.996 India considers that "' Line Telephone Handsets ' form a part of 'Line 
Telephone Sets '" and therefore India " classifies them under sub -heading 8517.11 " of the 
First Schedule.997 India also notes that Notification No. 25/2005, as amended by Notification No. 
23/2019, accorded duty -free treatment to parts of  line telephone handsets falling under tariff item 
8518.30.00, and, in India's view, this indicates that tariff item 8518.30.00 covers "parts of" line 
telephone handsets and not complete line telephone handsets.998  
7.420.   We note that the product descriptions attac hed to tariff items 8517.11, 8517.18, and 
8518.30.00  in India's First Schedule are as follows999: 
 
991 European Union's response to Panel question No. 124, para. 120.  
992 European Union's response to Panel question No. 124, para. 12 1. 
993 We note that the parties share the same understanding with respect to the European Union's claim 
concerning electric conductors for a voltage not exceeding 1,000 V, fitted with connectors, of a kind used for 
telecommunications . (See section 7.4.8.2  below).  
994 We also note that, unlike its claims regarding products falling under tariff items 8517.12 and 8517.70 
of India's WTO Schedule, the European Union considers t hat the tariff treatment accorded by India to products 
falling under tariff item 8518.30 ex01 of India's WTO Schedule has changed during these proceedings.  
995 European Union's first written submission, paras. 157 -158. 
996 India's first written submission, pa ra. 225 (referring to Notification No. 25/2005 as amended by 
Notification No. 26/2007, (Exhibit IND -40)).  
997 India's first written submission, para. 223 . 
998 India's first written submission, para. 227.  
999 First Schedule as of 2016/2017,  (Exhibit EU-59), pp. 755-756.  WT/DS582/R  
 
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  Tariff item  Product description  Standard 
duty rate  
8517 Telephone sets, including telephones for cellular networks or for 
other wireless networks: other apparatus for the transmission or 
reception of v oice, images or other data, including apparatus for 
communication in a wired or wireless network (such as a local or 
wide area network), other than transmission or reception 
apparatus of heading 8443, 8525, 8 527 or 8528   
 - Telephone sets, including telephones for cellular networks or 
for other wireless networks:   
8517 11  -- Line telephone sets with cordless handsets:   
8517 11 10  --- Push button type  0% 
8517 11 90  --- Other  0% 
   
8517 18  -- Other:   
8517 18 10  --- Push button type  0% 
8517 18 90  --- Other  0% 
   
8518 Microphones and stands therefor: loudspeakers, whether or not 
mounted in their enclosures: headphones and earphones, 
whether or not combined with a microphone, and sets consisting 
of a m icrophone and one or more loudspeakers: audio -frequency 
electric amplifiers: electric sound amplifier sets   
 - Loudspeakers, whether or not mounted in their enclosures:   
8518 30 00  - Headphones and earphones, whether or not combined with a 
microphone, and sets consisting of a microphone and one or 
more loudspeakers  15% 
 
7.421.   The product descriptions contained in India's First Schedule with respect to heading 8518 
and tariff item  8518.30.00 are substantially identical to heading 8518 and tariff i tem 8518.30 of 
India's WTO Schedule.1000 Specifically, tariff items 8518.30.00 of the First Schedule, and 8518.30 of 
India's WTO Schedule, both cover " [h]eadphones and earphones, whether or not combined with a 
microphone, and sets consisting of a microphone and one or more loudspeakers" , which are a 
sub-category of products falling under heading 8518 (which, again, is identical in both Schedules). 
We further note that India's WTO Schedule specifically indicates that "line telephone handsets", 
classified under tariff item 8518.30 ex01, are a subcategory of products falling under the broader 
category of " [h]eadphones and earphones, whether or not combined with a microphone, and sets 
consisting of a microphone and one or more loudspeakers"  covered  by tariff item 8518.30.1001 Thus, 
India's WTO Schedule strongly suggests that "line telephone handsets" are products falling within 
the broader category of " [h]eadphones and earphones, whether or not combined with a microphone, 
and sets consisting of a micr ophone and one or more loudspeakers" . We also note that, under India's 
First Schedule, these products are classified under tariff item 8518.30.00.  
7.422.   This interpretation of India's First Schedule is supported by the Explanatory Notes to the 
HS2017.1002 The Expl anatory Note to tariff item  8517.11 of the HS2017 define s "Line telephone sets" 
as "communication apparatus that convert voice into signals for transmission to another device", 
and which consist of various components.1003 The Explanatory Notes indicate that "[w]hen separately 
presented, microphones and receivers (whether or not combined as hand -sets), and loudspeakers 
 
1000 See WT/Let/181; and para. 7.410  above.  
1001 Indeed, India's WTO Schedule indicates that other than line telephone handsets , India has 
undertaken no tariff  commitment with respect to other "[h]eadphones and earphones, whether or not 
combined with a microphone, and sets consisting of a microphone and one or more loudspeakers"  falling under 
tariff item 8518.30. ( See WT/Let/181 ; and para.  7.410  above ). Thus, India's tariff commitment with respect to 
such products, other than line telephone handsets, is unbound.  
1002 The parties agree that the Explanat ory Notes  to the HS may constitute a relevant aid in interpreting 
India's First Schedule. (See India's response to Panel question No. 99, paras. 37 -39; and European Union's 
response to Panel question No. 99, para. 34). India explains, however, that its dom estic legal framework is 
dualist, such that " Parliament must legislate a specific enabling law to give effect to India 's commitments under 
a treaty  …[and] there is no domestic legislation which mirrors the HS Convention and the HS Explanatory 
Notes ". (Ibid . para. 39). Thus, in India's view, " the HS Convention and the HS Explanatory Notes remain 
relevant aids but have no binding legal force under the Indian legal order. " (Ibid.).  
1003 HS2017 Explanatory Notes to Heading 8517 , (Exhibit IND -59), p. 1. (emphasis a dded)  WT/DS582/R  
 
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  are classified in heading 85.18".1004 The Explanatory Note to tariff item  8518 further explains that 
this heading "covers microphones, loudspeake rs, headphones, earphones and audio -frequency 
electric amplifiers of all kinds presented separately, regardless of the particular purpose for which 
such apparatus may be designed (e.g., telephone microphones, headphones and earphones, and 
radio receiver lo udspeakers)".1005 Specifically regarding tariff item 8518.30, the Explanatory Note 
elaborates that this heading covers, inter alia , "line telephone handsets  which are combined 
microphone/speaker sets for telephony and which are generally used by telephone op erators".1006 
The HS Explanatory Notes therefore indicate  that "line telephone handsets " are distinct from "line 
telephone sets", in that the former are a component product that may (or may not) be included in 
the latter. As to where they should be classifie d, the Explanatory Notes indicate  that line telephone 
handsets  fall within tariff item  8518.30, at least to the extent that they "are combined 
microphone/speaker sets for telephony and which are generally used by telephone operators". In its 
responses to q uestions  from the Panel , India acknowledge s that this language "gives an impression" 
that such line telephone handsets are intended to be covered by tariff item  8518.30.1007  
7.423.   We therefore  understand that line telephone handsets should, in principle, be classified 
under tariff item  8518.30 of India's First Schedule . We recall, however, India's argument that 
Notification No. 25/2005, as amended by Notification Nos. 26/2007 and 23/2019, suggests that line 
telephone handsets are classified under tariff item 8517.11, and tariff item 8518.30.00 covers only 
"parts" of line  telephone handsets. We note that entry 9 of Notification No. 25/2005 exempts certain 
products from customs duties. When Notification No. 25/2005 was initially published in 2005, the 
exemption was available for "[l]ine telephone handsets" falling under tar iff item 8518.30.00 of the 
First Schedule.1008 In 2007, the exemption was amended to cover "[l]ine telephone handsets" falling 
under tariff items "8517.11 or 8517.17". In 2019, the exemption was further amended to cover 
"[p]arts of line telephone handsets" f alling under tariff item 8518.30.00.1009 In 2022, the exemption 
was amended back to the way it existed in 2005, by covering "[l]ine telephone handsets" falling 
under tariff item 8518.30.00.1010 
7.424.   Notification No. 25/2005 and its subsequent amendments do not chan ge our view that, in 
principle, line telephone handsets should be classified under tariff item 8518.30.00 of India's First 
Schedule. We note that the most recent amendment to Notification No. 25/2005 supports that 
interpretation. In any event, India has no t explained why and how this Notification and its 
amendments indicate (or have modified) India's classification practice with respect to line telephone 
handsets. We also note that neither this Notification, nor any other evidence adduced by India, 
indicate s that India's customs authorities are legally required to classify line telephone handsets 
under a different tariff item to tariff item 8518.30.00 of India's First Schedule. For the reasons 
described above, we understand that tariff item 8518.30.00 is the  correct classification for these 
products.  
7.425.   Having concluded that line telephone handsets should be classified under tariff item 
8518.30.00 of India's First Schedule, we turn to assess the precise tariff treatment accorded to 
products falling under this ta riff item. We first observe that India's First Schedule imposes a standard 
duty rate of 15% on products falling under tariff item 8518.30.00 of the First Schedule. As published 
in 2005, Notification No. 25/2005 provided an exemption from that duty rate for  line telephone 
handsets falling under that tariff item. That exemption, however, was amended several times and, 
as of the date of the Panel's establishment, Notification No. 25/2005 exempted only "parts" of line 
telephone handsets falling under that tarif f item.1011 Thus, complete line telephone handsets were 
not covered by the exemption available under Notification No. 25/2005. Subsequently, however, 
Notification No. 25/2005 was further amended by Notification No. 15/2022 and, as of February 2022, 
the exemp tion was available for line telephone handsets falling under tariff item 8518.30.00 of the 
First Schedule.1012  
 
1004 HS2017 Explanatory Notes to Heading 8517 , (Exhibit IND -59), p. 2.  
1005 HS2017 Explanatory Notes to Heading 8518, (Exhibit IND -57), p. 1.  
1006 HS2017 Explanatory Notes to Heading 8518, (Exhibit IND -57), p. 3.  (emphasis added)  
1007 India's response to Panel q uestion No. 41, para. 98.  
1008 Notification No. 25/2005 , (Exhibit IND-40), p. 1.  
1009 Notification No. 25/2005 as amended by Notification No s. 26/2007  and 23/2019 , (Exhibit IND -40). 
1010 Notification No. 25/2005, (Exhibit IND -40), as amended by Notification No. 15/2022, (Exhibit 
IND-73). 
1011 Notification No. 25/2005 as amended by Notification No s. 26/2007  and 23/2019 , (Exhibit IND -40).  
1012 Notification No. 15/2022, (Exhibit IND -73). WT/DS582/R  
 
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  7.426.   We also note that Serial No. 39 of Notification No. 24/2005 provides a possible exemption 
for a considerable number of products. Specifically, Ser ial No. 39 exempts from all duties all goods  
except " solar tempered glass or solar tempered (anti -reflective coated) glass ", falling under all 
Chapters except Chapter 74 of the First Schedule, if the product is used for the manufacture of goods 
covered by Serial Nos. 1 to 38 of Notification No. 24/2005, provided that the importer follows the 
procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of 
Excisable Goods) Rules, 1996 (Customs Rules 1996 ).1013 The European Unio n does not contest that 
line telephone handsets can be used in the production of certain of the products identified in Serial 
Nos. 1 to 38 of Notification No. 24/2005.1014 We therefore understand that line telephone handsets 
imported into India are eligible for duty -free treatment under Serial No. 39 of Notification No. 
24/2005 if: (i) they are used in the production of certain specified products; and (ii) the importer 
follows the procedures set out in the Customs Rules 1996.   
7.427.   We recall that Article II:1(b) d oes not require Members to inscribe general conditions for 
importation in their WTO Schedules. However, where conditions are tied to tariff treatment, such 
that a product must satisfy those conditions in order to be eligible for the tariff treatment set fo rth 
in a Member's WTO Schedule, Article II:1(b) requires that such conditions must be inscribed in the 
Member's WTO Schedule.  In our view, the conditions attached to the exemption under Serial No. 39 
of Notification No. 24/2005 are, on their face, conditions for tariff treatment and not general 
conditions for importation. Regarding the requirement that such products be used in t he production 
of other products, we understand that line telephone handsets not used in the production of those 
products could still be imported into India, but subject to the standard duty rate of 15% instead of 
the duty -free treatment available under the  exemption. India has provided no evidence to indicate 
otherwise. Similarly, we understand that failure to comply with the procedural requirements 
stipulated in the Customs Rules 1996 would not preclude the importation of line telephone handsets 
into India . There is no indication in the evidence on the record that compliance with such procedural 
requirements is a general condition for importation – to the contrary, Notification No. 24/2005 
explicitly ties both conditions to eligibility for exemption from cu stoms duties. Indeed, we consider 
that Notification No. 25/2005  clearly  indicates that these conditions are attached to the exemption  
from customs duties , not entry into India.  
7.428.   To summarize, we consider that line telephone handsets should be classified und er tariff 
item 8518.30.00 of India's First Schedule, and there is no evidence suggesting that India classifies 
such products differently. At the time of the Panel's establishment, line telephone handsets were 
subject to a 15% duty rate under the First Sche dule, but were also eligible to receive duty -free 
treatment, pursuant to Notification No. 24/2005, if they satisfied certain conditions. Specifically, 
such products were eligible for duty -free treatment under Serial No. 39 of Notification No. 24/2005 
if: (i) they were used in the production of certain specified products; and (ii) the importer follow ed 
the procedures set out in the Customs Rules 1996. Those conditions are not general conditions for 
importation, but rather conditions to receive duty -free trea tment. During the course of these 
proceedings, however, line telephone handsets became eligible for unconditional duty -free 
treatment, pursuant to Notification No. 25/2005, as amended by Notification No. 15/2022.  
7.4.7.3   Comparison of India's tariff treatment to its WTO tariff commitments  
7.4.7.3.1   Main arguments of the parties  
7.429.   The European Union considers that line telephone handsets falling within the scope of tariff 
item 8518.30.00 of India's First Schedule are covered by India's tariff commitments inscribed under 
tariff item 8518.30 ex01 of India's WTO Schedule.1015 The European Union agrees that India is 
presently acting consistently with Articles II:1(a) and (b) of the GATT 1994. However, the 
European  Union considers that at the time of the Panel's establishment India wa s acting 
inconsistently with its WTO obligations because the duty -free treatment available under Serial No.  39 
of Notification No. 24/2005 was subject to conditions that are not inscribed in India's 
WTO Schedule.1016 
 
1013 Notification No. 24/2005 as amended by Notification Nos. 132/2006, 32/2016, 19/2016, and 
06/2020 , (Exhibit IND -39).  
1014 European Union's response to Panel question No. 86, para. 134.  
1015 European Union's first written submission, para. 158.  
1016 European Union 's responses to Panel question No. 120, para. 110, and No. 124, para. 120.  WT/DS582/R  
 
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  7.430.   India argues that, at the time of the Pan el's establishment, Serial No. 39 of 
Notification  No. 24/2005 ensured duty -free treatment for all line telephone handsets, in accordance 
with Articles  II:1(a) and (b) of the GATT 1994.1017  
7.4.7.3.2   Panel's assessment  
7.431.   We recall that, pursuant to its WTO Schedule, Ind ia is obligated to accord unconditional 
duty-free treatment to line telephone handsets falling under tariff item 8518.30 ex01 of that 
Schedule. In our view, these tariff commitments apply to line telephone handsets imported into India 
and classified under tariff item 8518.30.00 of India's First Schedule. We also recall that, at the time 
of the Panel's establishment, such line telephone handsets imported into India were subject to a 
15% duty rate, pursuant to India's First Schedule, but were eligible for dut y-free treatment pursuant 
to Serial No. 39 of Notification No. 24/2005, subject to two conditions: (i) the line telephone handsets 
had to be used in the production of certain specified products; and (ii) the importer was required to 
comply with certain pro cedural requirements specified in the Customs Rules 1996. Both of these 
conditions are conditions that must be satisfied in order for the line telephone handset to receive 
duty-free treatment.  
7.432.   At the time of the Panel's establishment,  although line teleph one handsets were eligible for 
duty-free treatment subject to conditions, neither of those conditions was inscribed in India's 
WTO Schedule. If an imported line telephone handset failed to satisfy one of those conditions, it 
would have been subject to a 15 % duty rate. We consider, therefore, that at the time of the Panel's 
establishment, India's tariff treatment of line telephone handsets was inconsistent with its WTO tariff 
commitments as contained in its WTO Schedule.  
7.433.   As of 1 February 2022 , India amended  Notification No. 25/2005, such that line telephone 
handsets became subject to unconditional duty -free treatment. We therefore consider that, as of 
1 February 2022, India brought its tariff treatment of line telephone handsets into consistency with 
its WTO  tariff commitments concerning those products.    
7.4.7.4   Conclusion  
7.434.   Based on the foregoing, we find that, at the time of the Panel's establishment , India's tariff 
treatment of line telephone handsets, falling within the scope of tariff item 8518.30 ex01 of India' s 
WTO Schedule, was inconsistent with Article II:1(b), first sentence, of the GATT 1994, because such 
products were subject to ordinary customs duties in excess of those set forth and provided in India's 
WTO Schedule, unless they satisfied certain conditio ns not set forth in that WTO Schedule.  
7.435.   We recall that the application of ordinary customs duties in excess of those provided for in 
a Member's WTO Schedule, or subject to terms, conditions or qualifications not set forth in that 
Schedule , inconsistent wit h the first sentence of Article II:1(b), also constitutes "less favourable" 
treatment  within the meaning of Article II:1(a). Consequently, we find that, at the time of the Panel's 
establishment , India's tariff treatment of such products was less favourable  than that provided in its 
WTO Schedule, and India was therefore acting inconsistently with Article II:1(a) of the GATT 1994.  
7.436.   We also find that, as of 1 February 2022 , India accords unconditional duty -free treatment to 
line telephone handsets , in accordance with the terms of its WTO Schedule, and is therefore acting 
consistently with Article II:1(b), first sentence, of the GATT 1994. Furthermore , by according to the 
commerce of the European Union  treatment no less favourable than that provided for in its 
WTO Schedule, India's tariff treatment of such products is consistent with Article II:1(a) of the 
GATT  1994.  
 
1017 India's first written submission, para. 228; response to Panel question No. 40, para. 94.  WT/DS582/R  
 
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  7.4.8   Tariff item 8544.42.00 ex01  of India's WTO Schedule  
7.4.8.1   India's WTO tariff commitments  
7.4.8.1.1   Main arguments of the parties  
7.437.   The European Union argues that the bound duty  rate for tariff item  8544.42.00 ex01 of 
India's WTO Schedule , covering electric conductors "for a voltage not exceeding 1,000 V", "[f]itted 
with conn ectors", "of a kind used for telecommunications", is 0%.1018 
7.438.   India does not contest that the relevant bound duty rate for such products falling under tariff 
item 8544.42.00 ex01  of its WTO Schedule  is 0%.1019  
7.4.8.1.2   Panel's assessment  
7.439.   We understand that India does n ot contest that its WTO tariff commitments with respect to 
electric conductors, for a voltage not exceeding 1,000 V that are fitted with connectors and of a kind 
used for telecommunications are  set forth in its WTO Schedule . In particular, India does not a rgue 
that the ITA limits the scope of its commitment under this tariff item, or that this commitment was 
undertaken in error and is invalid pursuant to Article 48 of the Vienna Convention.1020  
7.440.   It is therefore uncontested that, pursuant to Articles II:1(a) a nd (b) of the GATT 1994, India 
is obligated to provide the tariff treatment set forth in its WTO HS2007 Schedule for products falling 
under tariff item  8544.42.00 ex01 of that Schedule. In this respect, India's WTO Schedule provides 
as follows1021: 
 Ex Produ ct description  Bound 
rate 
8544  Insulated (including enamelled or anodised) wire, cable (including 
co-axial cable) and other insulated electric conductors, whether 
or not fitted with connectors; optical fibre cables, made up of 
individually sheathed fibres, whether or not assembled with 
electric conductors or fitted with connectors.   
8544.4   - Other electric conductors, for a voltage not exceeding 1,000 V:   
8544.42.00  00 -- Fitted with connectors   
8544.42.00  01 -- Of a kind used for teleco mmunications  0% 
8544.42.00  02 -- Other  40% 
 
7.441.   We note that, electric conductors for a voltage no t exceeding 1,000 V that are fitted with 
connectors and of a kind used for telecommunications  are classified under tariff item  8544.42.00 
ex01 of India's WTO Schedule , which  indicates a bound duty rate of 0%, with no terms, conditions, 
or qualifications att ached thereto. Thus, India is obligated to provide unconditional duty -free 
treatment to such products falling under tariff item 8544.42.00 ex01 of its WTO Schedule.  
7.4.8.2   India's tariff treatment  
7.4.8.2.1   Main arguments of the parties  
7.442.   In its first written submission, t he European Union argue d that India's First Schedule imposes 
a 15% standard duty rate on products falling under tariff item s 8544.42.91, 8544.42.92, and 
8544.42.93.1022 The European Union submit ted that Notification No. 25/2005 initially exempte d 
imports of products falling under tariff item s 8544.41, 8544.49 and 8544.51 of India's First Schedule 
from that 15% standard duty rate, and considers that this exemption "ensured compliance with the 
 
1018 European Union's first written submission, para. 165.  
1019 India's response to Panel ques tion No. 66, para. 29.  
1020 We also note that India did not attempt to modify this tariff item  in its draft rectification under the 
1980 Decision . According to India, it is "already providing concessions to the se products in accordance with its 
commitments." (India's response to Panel question No. 66, para. 29 ). 
1021 WT/Let/181.  
1022 European Union's first written submission, para. 166 (referring to First Schedule of the Customs 
Tariff Act as amended by Finance Act 2018  (Exhibit EU -15)). WT/DS582/R  
 
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  tariff binding under consideration".1023 The European Uni on submit ted that Notification No. 25/2005 
was amended by Notification No. 133/2006, such that electric conductors for a voltage not exceeding 
80 V, fitted with connectors, of a kind used for telecommunications, fell outside the scope of the 
exemption.1024 The European Union further submit ted that Notification No. 50/2017, as amended by 
Notification No. 6/2018, impose d a duty of 7.5% on "Insulated electric conductors; for a voltage not 
exceeding 1000 V, fitted with connectors, of a kind used for telecommunica tions", except for "USB 
Cable for cellular mobile phone".1025 The European Union therefore consider ed that "electric 
conductors, for a voltage not exceeding 80 Volts, fitted with connector, of the kind used for 
telecommunications" were subject to a duty rate  of either 7.5% or 15%.1026 Following the second 
substantive meeting,  however, the European Union noted that India had issued Notification No. 
15/2022, which amends Notification No. 25/2005 such that the exemption once again covers all 
relevant electric cond uctors. Thus, according to the European Union, India presently accords duty -
free treatment for all products covered by its concessions in its WTO Schedule concerning tariff item 
8544.42.00 ex01.1027 The European Union nevertheless requests the Panel to find that prior to the 
entry into force of that amendment, India was acting inconsistently with Articles II:1(a) and (b) of 
the GATT 1994.  
7.443.   India argues that, pursuant to Notification No. 15/2022, electric conductors for a voltage not 
exceeding 80 V, of a kind u sed for telecommunications, other than USB cables for cellular mobile 
phones, whether or not they are fitted with connectors, are subject to duty -free treatment.1028 India 
considers that the Panel "is not empowered to make any recommendations on measures whi ch have 
been withdrawn by the Respondent."1029 Prior to the introduction of this amendment, India had 
argued that Serial No. 39 of Notification No. 24/2005 in any case exempted all relevant products 
from duties.1030  
7.4.8.2.2   Panel's assessment  
7.444.   The European Union and I ndia agree  that pursuant to Notification No. 15/2022, which was 
introduced by India while these dispute settlement proceedings were ongoing, India presently 
accords duty -free treatment to all relevant products covered by tariff item 8544.42.00 ex01 of 
India's WTO Schedule , and is therefore acting in accordance with Article s II:1(a) and (b) of the 
GATT  1994.1031 Nevertheless, the European Union requests us to find that India was acting 
inconsistently with Article s II:1(a) and (b) prior to the introduction of Notification No. 15/2022, and 
that this Notification brought India into consistency with its obligations.  India considers that the 
Panel may not make any recommendations regarding the measure at issue since it has been 
withdrawn.  
7.445.   For the reasons articulated above1032, we see no tension between the European Union's 
request for findings  regarding the measure as it existed prior to the introduction of Notification No. 
15/2022, and India's argument that the Panel may  not make recommendations  if the measure has 
been brought into consistency with its WTO obligations. Moreover, g iven the parties' disagreement 
as to whether India was, at the time of the Panel's establishment, acting inconsistently with its WTO 
obligations , we consider it useful for the purposes of resolving the parties' dispute to address this 
issue.1033 We therefore proceed to assess the tariff treatment accorded by India to electric 
conductors for a voltage no t exceeding 1,000 V , fitted with connectors , of a kind used for 
 
1023 European Union's first written submission, para. 169.  
1024 European Union's first written submission, para. 170 (referring to Notification No. 25/2005 , 
(Exhibit  EU-10); Notification No. 50/2017 , (Exhibit EU -34)). 
1025 European Union's first written submission, para. 172.  
1026 European Union's first written submission, para. 173.  
1027 European Union's response to Panel question No. 130, paras. 127 -128.  
1028 India's response to Panel question No. 132, para. 92.  
1029 India's comments on the European Uni on's responses to Panel question Nos. 129 -131, para. 55.  
1030 India's first written submission, para. 237.   
1031 We note that the parties share the same understanding with respect to the European Union's claim 
concerning line telephone handsets. (See para. 7.417  above).  
1032 See para. 7.418  above.  
1033 We also note that, unlike its cl aims regarding products falling under tariff items 8517.12 and 
8517.70 of India's WTO Schedule, the European Union considers that the tariff treatment accorded by India to 
products falling under tariff item 844.42.00 ex01 of India's WTO Schedule has change d during these 
proceedings.  WT/DS582/R  
 
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  telecommunications , both at the time of the Panel's establishment and following India's amendments 
that took place during these proceedings.  
7.446.   It is uncontested, and the evidence demonstrates, that India's First Schedule establishes a 
standa rd duty rate of 15% for tariff items 8544.42.91, 8544.42.92, and 8544.42.93.1034 These tariff 
items cover insulated electric conductors (other than "winding wire" and "co -axial cable and other 
co-axial electric conductors"), for a voltage not exceeding 1,000  V, of a kind used in 
telecommunication s, fitted with connectors: tariff item  8544.42.91 covers such electric conductors 
that are paper insulated; tariff item  8544.42.92 covers such electric conductors  that are plastic 
insulated ; and tariff item  8544.42.93  covers such electric conduct ors that are rubber insulated .1035 
7.447.   It is also uncontested, and the evidence demonstrates, that Serial Nos. 28 and 29 of 
Notification No. 25/2005, as originally published in 2005, unconditionally exempted all such products 
from cu stoms duties.1036 Specifically, pursuant to Serial No. 28, "[e]lectric conductors, for a voltage 
not exceeding 80 V, of a kind used for telecommunications", (whether or not fitted with connectors), 
falling under tariff items 8544.41 and 8544.49 of the First Schedule, were exempted from all customs 
duties. Pursuant to Serial No. 29, "[e]lectric conductors, for a voltage exceeding 80 V, but not 
exceeding 1000 V, fitted with connectors , of a kind used for telecommunications "1037, falling under 
tariff item 8544.51 of the First Schedule, were exempted from all customs duties. Together, the 
exemptions available under Serial Nos. 28 and 29 applied unconditional duty -free treatment to all 
electric conductors, for a voltage not exceedi ng 1,000 V, of a kind used for telecommunications, 
fitted with connectors .  
7.448.   Notification No. 25/2005 was  subsequently  amended by Notification No. 133/2006 . While 
the product descriptions attached to Serial Nos. 28 and 29 remained the same, the tariff items  
attached to those exemptions were amended, such that: (i) Serial No. 28 referred exclusively to 
electric conductors, for a voltage not exceeding 80 V, of a kind used for telecommunications, falling 
under tariff item 8544.49  of the First Schedule; and (ii)  Serial No. 29 referred to electric conductors, 
for a voltage exceeding 80 V but not exceeding 1,000 V, fitted with connectors , of a kind used for 
telecommunications, falling under tariff item 8544.42 of the First Schedule.1038 It is uncontested that 
tariff item 8544.42 of India's First Schedule covers electric conductors, for a voltage not exceeding 
1,000 V, of a kind used for telecommunications, fitted with connectors , while tariff item  8544.4 9 
covers such products that are not fitted with connectors .1039 Thus, Notification No. 25/2005 as 
amended by Notification No. 133/2006 no longer applied duty -free treatment to electric conductors, 
for a voltage not exceeding 80 V, of a kind used for telecommunications, that were fitted with 
connectors .1040 This understandin g is confirmed by India.1041  
7.449.   Thus, in the absence of any other Notifications, such products (electric conductors, for a 
voltage not exceeding 80 V, of a kind used for telecommunications, fitted with connectors) would 
have been subject to the 15% duty rate set forth in India's First Sc hedule. We note, however, that 
 
1034 Finance Act 2018 , (Exhibit EU -15).  
1035 First Schedule 2016/ 2017, (Exhibit EU -59), pp. 7 71-772.  
1036 Serial Nos. 28 -29 of Notification No. 25/2005 , (Exhibit IND-40). 
1037 Underlining added . 
1038 European Union's first written submission, para. 169; Notification No. 25/2005 as amended by  
Notification No. 133/2006, (Exhibit IND -40), para. 1.   
1039 See European Union's response to Panel question No. 44(b), paras. 102 -103; and India's response 
to Panel q uestion No. 132, paras. 89 -90. 
1040 Underlining added. We understand that prior to the amendments introduced by Notification No. 
133/2006, such products were eligible for the exemption under Serial No. 28 of Notification No. 25/2005. By 
excluding products falling under tariff item 8544.42 f rom the scope of that exemption, Notification No. 
133/2006 limited the exemption to products falling under tariff item 8544.49 (i.e. products not fitted with 
connectors ). Thus, following the amendment, the only exemption available for electric conductors o f a kind 
used for telecommunications when fitted with connectors , was set forth in Serial No. 29, which was specifically 
limited to such products for a voltage exceeding 80 V and not exceeding 1,000 V. Such products for a voltage 
not exceeding 80 V were es sentially carved out from the scope of the exemptions available under Notification 
No. 25/2005. (See Notification No. 25/2005 as amended by Notification No. 133/2006, (Exhibit IND -40); and 
India's response to Panel question No. 132).  
1041 India explains that Notification No. 25/2005 , as amended by Notification No. 133/2006,  "granted 
concession to electric conductors for a voltage between 80V -1000V of a kind used for telecommunications 
fitted with connectors. The Notification did not grant concession to electri c conductors for a voltage  <80V fitted 
with connectors." (See India's response to Panel question No. 132, para. 89). We note that India's arguments 
on this point evolved over the course of the proceedings. (See e.g. India's first written submission, para. 235).  WT/DS582/R  
 
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  Serial No. 491 of Notification No. 50/2017, as amended by Notification No. 6/2018, provide s for a 
7.5% duty rate to be applied to  all goods falling under heading 8544 of the First Schedule, except 
for USB cables for cellular mobile phones.1042 It is uncontested that in India's customs regime, two 
or more customs notifications may apply simultaneously, such that an "importer can claim the most 
beneficial notification".1043 Thus, in light of Notification No. 50/2017, products falling outside the 
scope of the exemption under Notification No. 25/2005 (such as electric conductors for a voltage 
not exceed ing 80 V, of a kind used for telecommunications, fitted with connectors) be came subject 
to a 7.5% duty rate instead of the 15% duty rate set out in India's  First Schedule. With respect to 
the carve -out for USB cables for cellular mobile phones, we note the European Union's explanation 
that "'USB Cable for cellular mobile phone' i s not covered by [its] claim because it is not a product 
'of a kind used in telecommunications'".1044 
7.450.   We also recall that Serial No. 39 of Notification No. 24/2005 exempts from all duties all 
goods  except " solar tempered glass or solar tempered (anti -reflect ive coated) glass ", falling under 
all Chapters except Chapter 74 of India's First Schedule, if the product is used for the manufacture 
of goods covered by S erial Nos. 1 to 38 of Notification No. 24/2005, provided that the importer 
follows the procedure set  out in the Customs Rules 1996.1045 The European Union does not contest 
that electric conductors , for a voltage not exceeding 80 V, of a kind used in telecommunication, 
fitted with connectors, can  be used in the production of certain of the products identifi ed in 
Serial  Nos. 1 to 38 of Notification No. 24/2005.1046 We recall that such products  are eligible for duty -
free treatment under Serial No. 39 of Notification No. 24/2005 if: (i) they are used in the production 
of certain specified products; and (ii) the i mporter follows the procedures set out in the 
Customs  Rules 1996.  In this respect, we also recall that Article II:1(b) does not require Members to 
inscribe general conditions for importation in their WTO Schedules. However, where conditions are 
tied to tar iff treatment, such that a product must satisfy those conditions in order to be eligible for 
the tariff treatment set forth in a Member's WTO Schedule, Article II:1(b) requires that such 
conditions must be inscribed in the Member's WTO Schedule. As we have  found above, neither of 
the conditions for the duty -free treatment available under Serial No. 39 of Notification No. 24/2005 
constitutes a general condition for importation, and both conditions are tied to eligibility for 
exemption from customs duties.1047 
7.451.   Finally, Notification No. 15/2022 (which was introduced during these dispute settlement 
proceedings) amended the exemption under Serial No. 28 of Notification No. 25/2005 to refer to 
electric conductors, for a voltage not exceeding 80 V, of a kin d used for telecommunications  (whether 
or not fitted with connectors),  other than USB cables for cellular mobile phones  or wrist wearable 
devices (commonly known as smart watches )1048, falling under tariff items 8544.42 and 8544.49 of 
the First Schedule.1049 Thus, Serial Nos. 28 and 29 of Notification No. 25/2005, together, presently 
unconditionally exempt from all customs duties all electric conductors (other than the USB cables 
described above), for a voltage not exceeding 1,000  V, of a kind used in telecommu nication , fitted 
with connectors.  
7.452.   To summarize, we find that, pursuant to Notification Nos. 24/2005, 25/2005, and 50/2017, 
at the time of the Panel's establishment electric conductors , for a voltage not exceeding 80 V, of a 
kind used in telecommunication,  fitted with connectors , classified under tariff item 8544.42 of India's 
First Schedule, were subject to a 7.5% duty rate, unless they satisfied the conditions for duty -free 
treatment available under Serial No. 39 of Notification No. 24/2005. Specifically,  such products were 
eligible for duty -free treatment under Serial No. 39 of Notification No. 24/2005 if: (i) they were used 
 
1042 Serial No. 491 of Notification No. 50/2017 , (Exhibit EU -34), as amended by Notification No. 6/2018 , 
(Exhibit EU -42).  
1043 European Union's first written submission, para. 52 ( referring to Hon'ble Supreme Court in the case 
of Share Medical Care v. Union of India and ORS , 2007 (209) ELT 321 (S.C.) , (Exhibit EU -5)); India's first 
written submission, para. 235.  
1044 European Union's response to Panel question No. 87, para. 138 . We note that the E uropean Union's 
arguments on this point evolved over the course of the proceedings. (See e.g. European Union's response to 
Panel question No. 108, para. 108 ; and European Union's first written submission, para. 172 ). 
1045 Notification No. 24/2005 as amended b y Notification Nos. 132/2006, 32/2016, 19/2016, and 
06/2020 , (Exhibit IND -39).  
1046 See e.g. European Union's response to Panel question No. 49, para. 109; and second written 
submission, paras. 76 -77. 
1047 See para . 7.427 above.  
1048 Between 1 February and 1 April 2022, the exception was limited to "mobile phones". (See Serial 
No. 3 of Notification No. 15/2022, item (iii), (Exhibit IND -73)).  
1049 Notification N o. 15/2022, (Exhibit IND -73). WT/DS582/R  
 
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  in the production of certain specified products; and (ii) the importer followed the procedures set out 
in the Customs Rules 1996. Those conditions are not general conditions for importation, but rather 
conditions to receive duty -free treatment. During the course of these proceedings, however, such 
products became eligible for unconditional duty -free treatment, pursuant to Notification 
No. 25/2005, as amended by Notification No. 15/2022.  
7.4.8.3   Comparison  of India's tariff treatment to its WTO tariff commitments  
7.4.8.3.1   Main arguments of the parties  
7.453.   The European Union considers that t he products covered by tariff items 8544.42.91, 
85.44.42.92 and 85.4 4.42.93 of India's  First Schedule fall within the scope of India's WTO tariff 
commitment for tariff item 8544.42 of India's WTO Schedule.1050 While the European Union agrees 
that India is presently acting consistently with Article s II:1(a) and (b), the European Union considers 
that at the time of the Panel's establishment India was acting inconsistently with its WTO 
commitments .1051 In the context of its arguments concerning India's tariff treatment of line 
telephone handsets, the Eur opean Union submits that the conditions for duty -free treatment 
available under Serial No. 39 of Notification No. 24/2005, which also apply to the products at issue 
here (namely, electric conductors, for a voltage not exceeding 80 V, of a kind used in 
telecommunication, fitted with connectors), are not set forth in India's WTO Schedule.1052 
7.454.   India argues that, at the time of the Panel's establishment, Serial No. 39 of Notification 
No. 24/2005 brought it into consistency with its obligations under Articles II:1 (a) and (b).1053  
7.4.8.3.2   Panel's assessment  
7.455.   We recall that tariff item 8544.42.00 ex01 of India's WTO Schedule indicates that India is 
obligate d to accord unconditional duty -free treatment to electric conductors,  for a voltage not 
exceeding 1,000  V, of a kind used for telecommunications,  fitted with connectors .1054 Such products 
are classified in India's First Schedule under tariff items 8544.42. 91, 8544.42.92, and 
8544.42.93 .1055 At the time of the Panel's establishment, a subset of such products (namely electric 
condu ctors, for a voltage not exceeding 80 V, of a kind used in telecommunication, fitted with 
connectors ) were subject to a duty rate of 7.5% unless they satisfied the conditions for duty -free 
treatment established in Serial No. 39 of Notification No. 24/2005 .1056 Specifically, in order to receive 
such duty -free treatment:  (i) the  products had to be  used in the production of certain specified 
products; and (ii) the importer had to follow the procedures set out in the Customs Rules 1996.1057 
Both of these conditions  are conditions that must be satisfied in order for electric conductors, for a 
voltage not exceeding 80 V, of a kind used in telecommunication, fitted with connectors , to receive 
duty-free treatment.  
7.456.   At the time of the Panel's establishment, although such products were eligible for duty -free 
treatment subject to conditions, neither of those conditions was inscribed in India's WTO Schedule. 
If an imported electric conductor, for a voltage not exceeding 80 V, of a kind used for 
telecommunications, fitted with  connectors, failed to satisfy one of those conditions, it would have 
been subject to a 7.5% duty rate. In our view, therefore, India's tariff treatment of such products 
was inconsistent with its WTO tariff commitments as contained in its WTO Schedule.  
7.457.   We further understand that, as of 1 February 2022, India amended Notification No. 25/2005, 
such that these products became subject to unconditional duty -free treatment. We therefore 
consider that, as of 1 February 2022, India brought its tariff treatment o f such products into 
consistency with its WTO tariff commitments concerning those products.    
 
1050 European Union's first written submission, para. 167.  
1051 European Union's response to Panel question No. 130, para. 130.  
1052 European Union's responses to Panel question No . 86, paras. 134 -136; responses to Panel question 
No. 120, para. 110 ; response to Panel question No. 124, para. 120.  
1053 India's first written submission, para. 237; response to Panel question No. 48(b), para. 103.  
1054 See para. 7.441  above.  
1055 See para. 7.446  above.  
1056 See para. 7.374  above.  
1057 See para. 7.374  above.  WT/DS582/R  
 
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  7.4.8.4   Conclusion  
7.458.   Based on the foregoing, we find that, at the time of the Panel's establishment , India's tariff 
treatment of electric conductors, for a voltage not exc eeding 80 V, of a kind used for 
telecommunications, fitted with connectors , falling within the scope of tariff item 8544.42.00 ex01 
of India's WTO Schedule, was inconsistent with Article II:1(b), first sentence, of the GATT 1994, 
because such products were  subject to ordinary customs duties in excess of those set forth and 
provided in India's WTO Schedule, unless they satisfied certain conditions not set forth in that 
WTO Schedule.  
7.459.   We recall that the application of ordinary customs duties in excess of thos e provided for in 
a Member's Schedule,  or subject to terms, conditions or qualifications not set forth in the Schedule , 
inconsistent with the first sentence of Article II:1(b), also constitutes "less favourable" 
treatment  within the meaning of Article II:1(a). Consequently, we find that, at the time of the Panel's 
establishment, India's tariff treatment of such products was less favourable than that provided in its 
WTO Schedule, and India was therefore acting inconsistently with Article II:1(a) of the GATT 1994.  
7.460.   We also find that, as of 1 February 2022 , India accords unconditional duty -free treatment to 
such products, in accordance with the terms of its WTO Schedule, and is therefore acting consistently 
with Article II:1(b), first sentence, of th e GATT 1994. Furthermore , by according to the commerce 
of the European Union treatment no less favourable than that provided for in its WTO Schedule, 
India's tariff treatment of such products is consistent with Article II:1(a) of the GATT 1994.  
8  CONCLUSIONS  AND RECOMMENDATIONS  
8.1.  For the reasons set forth in this Report, we conclude as follows:  
a. With respect to India's assertions concerning its WTO tariff commitments, we find that:  
i. The ITA is not a covered agreement within the meaning of the WTO Agreement and 
the DSU,  does not set forth India's  legal obligations at issue in this dispute , and d oes 
not otherwise limit the scope of India's tariff commitments as set forth in its WTO 
Schedule ;  
ii. The circumstances of this case do not satisfy the substantive requirement s of Article 
48 of the Vienna Convention, and we therefore decline to read aspects of India's WTO 
Schedule as invalid ; and  
iii. India's request for findings that the European Union  acted inconsistently with the 1980 
Decision is not within our terms of referenc e, and we consequently do not have the 
legal mandate to make such findings.  
b. With respect to the European Union's claims that India's tariff treatment of certain 
products is inconsistent with Articles II:1(a) and (b) of the GATT 1994, we find that:  
i. India' s tariff treatment of certain products classified under tariff items 8504.40 ex02, 
8517.12, 8517.61, 8517.62 and 8517.70 ex01, ex02, and ex03 of India's WTO 
Schedule is inconsistent with Articles II:1(a) and (b) of the GATT 1994;  
ii. At the time of the Panel's  establishment, India's tariff treatment of certain products 
classified under tariff item s 8518.30  ex01 and 8544.42 .00 ex01 of India's WTO 
Schedule was inconsistent with Articles II:1(a) and (b) of the GATT  1994; and  
iii. As of 1 February 2022 , India's tariff t reatment of certain products classified under tariff 
items 8518.30  ex01 and 8544.42 .00 ex01 of India's WTO Schedule is consistent with 
Articles II:1(a) and (b) of the GATT 1994.  
8.2.  Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue are WT/DS582/R  
 
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  inconsistent with Articles II:1(a) and (b) of the GATT 1 994, they have nullified or impaired benefits 
accruing to the European Union under that agreement.  
8.3.  Pursuant to Article 19.1 of the DSU, to the extent that India's tariff treatment of certain 
products classified under tariff items 8504.40 ex02, 8517.12, 851 7.61, 8517.62, 8517.70 ex01, 
ex02, and ex03 of India's WTO Schedule continues to be inconsistent with Articles II:1(a) and (b) 
of the GATT 1994, we recommend that India bring such measures into conformity with its obligations 
under the GATT 1994.  
 
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