WT/DS584/R  
 
17 April 2023 
(23-2704) Page: 1/146 
  Original: English  
 
  
 
 
INDIA – TARIFF TREATMENT ON CERTAIN GOODS  
REPORT OF THE PANEL  WT/DS584/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  14 
1.1   Complaint by Japan  ................................ ................................ ................................ ....14 
1.2   Panel establishment and composition  ................................ ................................ ............ 14 
1.3   Panel proceedings  ................................ ................................ ................................ .......14 
1.3.1    General  ................................ ................................ ................................ .................. 14 
1.3.2    Organizational phase - Working P rocedures and timetable  ................................ ............ 15 
1.3.3    Format of the substantive meetings  ................................ ................................ ........... 17 
1.3.3.1    Format of the first substantive meeting  ................................ ................................ ...17 
1.3.3.2    Format of the second substantive meeting  ................................ ............................... 18 
1.3.4    Requests for enhanced third -party rights  ................................ ................................ ....19 
1.3.5    Disclosure of a panelist's professional engageme nts ................................ ..................... 21 
1.3.6    Preliminary ruling  ................................ ................................ ................................ ....21 
1.3.7    Evidentiary objection  ................................ ................................ ................................ 22 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 22 
2.1   The measures at issue  ................................ ................................ ................................ 22 
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  ................................ .............................. 24 
2.2.4    Conclusion  ................................ ................................ ................................ .............. 25 
2.3   India's WTO Schedule  ................................ ................................ ................................ .25 
3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  28 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  29 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  29 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 29 
6.1   General issues concerning India's WTO tariff commitments  ................................ .............. 29 
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 ................................ ................................ ................................ ........................ 34 
6.2.1    Tariff items 8517.12.11, 8517.12.19, and 8517.12.90 of India's First Schedule  ............... 34 
6.2.2    Tariff items 8517.61.00, 8517.70.10, and 8517.70.90 of  India's First Schedule  ............... 34 
6.2.3    Japan's additional claim under Article II:1(a) of the GATT 1994  ................................ .....35 
7   FINDINGS  ................................ ................................ ................................ .................  35 
7.1   Introduction  ................................ ................................ ................................ ............... 35 WT/DS584/R  
 
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  7.2   The legal standard under Articles II:1(a) and (b) of the GATT 1994  ................................ ..36 
7.3   General issues concerning India's WTO tariff commitments  ................................ .............. 38 
7.3.1    Overview  ................................ ................................ ................................ ................ 38 
7.3.2    The relevance of the ITA  ................................ ................................ ........................... 39 
7.3.2.1    Introduction  ................................ ................................ ................................ ......... 39 
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  ................................ ................................ ......42 
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  ................................ ................................ ................................ .....46 
7.3.2.3. 1   Main arguments of the parties  ................................ ................................ ............. 46 
7.3.2.3.2    Main arguments of the third parties  ................................ ................................ ......48 
7.3.2.3.3    Panel's assessment  ................................ ................................ ............................ 50 
7.3.2.4    Conclusion  ................................ ................................ ................................ ........... 55 
7.3.3    Article 48 of the Vienna Convention  ................................ ................................ ........... 55 
7.3.3.1    Introduction  ................................ ................................ ................................ ......... 55 
7.3.3.2    Article 48(1)  ................................ ................................ ................................ ......... 58 
7.3.3.2.1    Main arguments of the parties  ................................ ................................ ............. 58 
7.3.3.2.2    Main arguments of the third parties  ................................ ................................ ......59 
7.3.3.2.3    Panel's assessment  ................................ ................................ ............................ 61 
7.3.3.2.3.1    General considerations  ................................ ................................ ..................... 61 
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  ........................ 61 
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)  ................................ ................................ ................................ .................. 64 
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  .......65 
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  ................................ ............................ 69 
7.3.3.2.3.6    Conclusion reg arding Article 48(1)  ................................ ................................ .....73 
7.3.3.3    Article 48(2)  ................................ ................................ ................................ ......... 73 
7.3.3.3.1    Main arguments of the parties  ................................ ................................ ............. 73 
7.3.3.3.2    Main arguments of the third parties  ................................ ................................ ......75 
7.3.3.3.3    Panel's assessment  ................................ ................................ ............................ 76 
7.3.3.3.3.1    General considerations  ................................ ................................ ..................... 76 
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 undertaking s ................................ ......... 77 
7.3.3.3.3.3    Whether India contributed by its own conduct to the alleged expansion in the  
scope of its WTO tariff commitme nts from its ITA undertakings  ................................ ............... 84 
7.3.3.3.3.4    Conclusion regarding Article 48(2)  ................................ ................................ .....86 WT/DS584/R  
 
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  7.3.3.4    Conclusion  ................................ ................................ ................................ ........... 86 
7.3.4    India's rectification request under the 1980 Decision  ................................ .................... 87 
7.3.4.1    Introduction  ................................ ................................ ................................ ......... 87 
7.3.4.2    Main arguments of the parties  ................................ ................................ ................ 87 
7.3.4.3    Main arguments of the third parties  ................................ ................................ ......... 89 
7.3.4.4    Panel's assessment  ................................ ................................ ............................... 90 
7.3.5    Conclusion  ................................ ................................ ................................ .............. 94 
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 items 8517.12.11, 8517.12.19, and 8517.12.90 of India's First Schedule  ............... 95 
7.4.2.1    General issues  ................................ ................................ ................................ ......95 
7.4.2.1.1    Main arguments of the parties  ................................ ................................ ............. 95 
7.4.2.1.2    Panel's assessment  ................................ ................................ ............................ 96 
7.4.2.2    India's WTO tariff commitments  ................................ ................................ .............. 97 
7.4.2.2.1    Main arguments of the parties  ................................ ................................ ............. 97 
7.4.2.2.2    Panel's assessment  ................................ ................................ ............................ 97 
7.4.2.3    India's tariff treatment  ................................ ................................ .......................... 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    Comparison of India's tariff treatment t o its WTO tariff commitments  .......................... 99 
7.4.2.4.1    Preliminary issues  ................................ ................................ .............................. 99 
7.4.2.4.1.1    Whether the measures are within the Panel's terms of reference  ........................... 99 
7.4.2.4.1.2    Relevant measures on which to make findings  ................................ ..................  104 
7.4.2.4.1.3    Whether "smartphones" are classified under tariff item 8517.12 of India's  
WTO Schedule  ................................ ................................ ................................ .................  105 
7.4.2.4.2    Comparison of applied and bound duty rates  ................................ .......................  110 
7.4.2.4.2.1    Main arguments of the parties  ................................ ................................ .........  110 
7.4.2.4.2.2    Panel's assessment  ................................ ................................ ........................  110 
7.4.2.5    Conclusion  ................................ ................................ ................................ .........  111 
7.4.3    Tariff item 8517.61.00 of India's First Schedule  ................................ .........................  111 
7.4.3.1    India's WTO tariff commitments  ................................ ................................ ............  111 
7.4.3.1.1    Main arguments of the parties  ................................ ................................ ...........  111 
7.4.3.1.2    Panel's assessment  ................................ ................................ ..........................  111 
7.4.3.2    India's tariff treatment  ................................ ................................ ........................  112 
7.4.3.2.1    Main arguments of the parties  ................................ ................................ ...........  112 
7.4.3.2.2    Panel's assessment  ................................ ................................ ..........................  112 
7.4.3.3    Comparison between India's WTO tariff commitments and its tariff treatment  ............  113 
7.4.3.4    Conclusion  ................................ ................................ ................................ .........  113 
7.4.4    Tariff item 8517.62.90 of India's First Schedule  ................................ .........................  113 
7.4.4.1    India's WTO tariff commitments  ................................ ................................ ............  113 WT/DS584/R  
 
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  7.4.4.1.1    Main arguments of the parties  ................................ ................................ ...........  113 
7.4.4.1.2    Panel's assessment  ................................ ................................ ..........................  114 
7.4.4.2    India's tariff treatment  ................................ ................................ ........................  114 
7.4.4.2.1    Main arguments of the parties  ................................ ................................ ...........  114 
7.4.4.2.2    Panel's assessment  ................................ ................................ ..........................  115 
7.4.4.3    Comparison between India's WTO tariff commitments and its tariff treatment  ............  117 
7.4.4.3.1    Main arguments of the parties  ................................ ................................ ...........  117 
7.4.4.3.2    Panel's assess ment ................................ ................................ ..........................  118 
7.4.4.4    Conclusion  ................................ ................................ ................................ .........  119 
7.4.5    Tariff items 8517.70.10 and 8517.70.90 of India's First Schedule  ................................  119 
7.4.5.1    General issues  ................................ ................................ ................................ .... 119 
7.4.5.1.1    Main arguments of the parties  ................................ ................................ ...........  119 
7.4.5.1.2    Panel's assessment  ................................ ................................ ..........................  120 
7.4.5.2    India's WTO tariff commitments  ................................ ................................ ............  121 
7.4.5.2.1    Main arguments of the parties  ................................ ................................ ...........  121 
7.4.5.2.2    Panel's assessment  ................................ ................................ ..........................  121 
7.4.5.3    India's tariff treatment  ................................ ................................ ........................  122 
7.4.5.3.1    Main arguments of the parties  ................................ ................................ ...........  122 
7.4.5.3.2    Panel's assessment  ................................ ................................ ..........................  124 
7.4.5.3.2.1    Tariff treatment at the time of the Panel's establishment  ................................ .... 124 
7.4.5.3.2.2    Tariff treatment as of 1 January 202 2 ................................ ..............................  128 
7.4.5.4    Comparison of India's tariff treatment to its WTO tariff commitments  ........................  131 
7.4.5.4.1    Main arguments of the parties  ................................ ................................ ...........  131 
7.4.5.4.2    Panel's assessment  ................................ ................................ ..........................  132 
7.4.5.5    Conclusion  ................................ ................................ ................................ .........  135 
7.4.6    Additional claim under Article II:1(a) of the GATT 1994  ................................ ..............  135 
7.4.6.1    Main arguments of the parties  ................................ ................................ ..............  135 
7.4.6.2    Main arguments of the third parties  ................................ ................................ ....... 136 
7.4.6.3    Panel's assessment  ................................ ................................ .............................  137 
7.4.7    Notification No. 69/2011  ................................ ................................ .........................  141 
7.4.7.1    Main arguments of the parties  ................................ ................................ ..............  141 
7.4.7.2    Main arguments of the third parties  ................................ ................................ ....... 141 
7.4.7.3    Panel's assessment  ................................ ................................ .............................  142 
8   CONCLUSIONS AND RECOMMENDATIONS  ................................ ...............................  145  
 
 WT/DS584/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  
JAPAN  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Japan  18 
Annex  B-2 Second integrated  executive summary of the arguments of Japan  28 
 
INDIA  
Contents  Page  
Annex  B-3 First integrated executive summary of the arguments of India 39 
Annex  B-4 Second integrated  executive summary of the arguments of India 51 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  61 
Annex  C-2 Integrated executive summary of the arguments of Canada  63 
Annex  C-3 Integrated executive summary of the arguments of the European Union  66 
Annex C -4 Integrated executive summary of the arguments of the Republic of Korea  68 
Annex C -5 Integrated executive summary of the arguments of Norway  71 
Annex C -6 Integrated executive summary of the arguments of Singapore  72 
Annex C -7 Integrated executive summary of the arguments of Chinese Taipei  74 
Annex C -8 Integrated executive summary of the arguments of Türkiye  77 
Annex C -9 Integrated executive summary of the arguments of Ukraine  81 
Annex C -10 Integrated executive summary of the arguments of the United Kingdom  83 
Annex C -11 Integrated executive summary of the arguments of  the United States  85 
ANNEX D 
COMMUNICATIONS BY THE PANEL CONCERNING THE SUBSTANTIVE MEETINGS  
Contents  Page  
Annex  D-1 Panel's communication to the parties  (31 March 2021 ) 91 
Annex  D-2 Panel's communication to the parties (21 April 2021)  92 
Annex  D-3 Panel's communication to the parties (31 August 2021)  95 
Annex D -4 Panel's communication to the parties (20 September 2021)  98 
ANNEX E 
OTHER DECISIONS BY THE PANEL  
Contents  Page  
Annex  E-1 Panel's decision on requests for enhanced third -party rights  101 
Annex  E-2 Panel's decision on India's preliminary  objection and preliminary ruling request  102 
Annex E -3 Panel's decision on Japan's evidentiary objection  111  WT/DS584/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  
Argentina – Textiles and 
Apparel  Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, 
Apparel and Other Items , WT/DS56/R , adopted 22  April 1998, as modified by 
Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p. 1033  
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20 March 1997, DSR 1997:I, p. 167  
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 23 October 
2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)  
China – Auto Parts  Appellate Body Reports, China – Measures Affecting 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 Servic es for Certain Publications and Audiovisual Entertainment 
Products , WT/DS 363/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 – 
Import and Sale of 
Cigarettes  Panel Report, Dominican Republic – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R , adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425  
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 
Marketing of Biotech 
Products  Panel Reports, European Communities – Measures Affecting the Approval a nd 
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 – Bananas III (Article 
21.5 – Ecuador II) / EC – 
Bananas III (Article 21.5 – 
US) Appellate Body Reports, European  Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU 
by Ecuador , WT/DS27/AB/RW2/ECU , adopted 11  December  2008, and Corr.1 / 
European Communities – Regime fo r the Importation, Sale and Distribution of 
Bananas – Recourse to Article 21.5 of the DSU by the United  States , 
WT/DS27/AB/RW/USA  and Corr.1, adopted 22  December  2008, DSR 
2008:XVIII, p. 7165  
EC – Chicken Cuts  Appellate Body Report, European  Communities – 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 Subsidi es on 
Sugar  Appellate Body Report, European Communities – Export Subsidies 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, Europea n 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  WT/DS584/R  
 
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  Short Title  Full Case Title and Citation  
EC – Hormones (US) 
(Article 22.6 – EC) Decision by the Arbitrator, European Communities – Measures Concerning Meat 
and Meat Products (Hormones), Original Complaint by the United 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 Pr oducts , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21 September 2010, DSR 2010:III, p. 
933 
EC – Poultry  Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R , adopted 23 July 1998, 
DSR 1998:V, p. 2031  
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  
EC – Selected Customs 
Matters  Appellate Body Report, European  Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11  December  2006, DSR 2006:IX, p.  3791 
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 – Additional Import 
Duties  Appellate Body Report, India – Additional and Extra -Additional Duties on 
Imports from the United States , WT/DS360/AB/R , adopted 17 November 2008, 
DSR 2008:XX, p. 8223  
India – Autos Panel Report, India – Measures Affecting the Automotive Sector , WT/DS14 6/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 September 1999, 
upheld by Appellate Body Report WT/DS90/A B/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  
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automob ile Industry , 
WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and Corr.2, adopted 
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201  
Japan – Apples  Appellate Body Report, 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  Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages , 
WT/DS308/R , adopted 24  March  2006, as modified by Appellate Body Report 
WT/DS308/AB/R, DSR 2006:I, p.  43 
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 
(Philip pines)  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  WT/DS584/R  
 
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  Short Title  Full Case Title and Citation  
US – COOL  Panel Reports, United S tates – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384 /R / WT/DS386/R , adopted 23 July 2012, as modified 
by Appellate 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, 
DSR 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 – FSC Panel Report, United States – Tax Treatment for  "Foreign Sales Corporations" , 
WT/DS108/R , adopted 20 March 2000, as modifie d by Appellate Body Report 
WT/DS108/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 – Poultry ( China)  Panel Report, United States – Certain Measures Affecting Imports of Poultry 
from China , WT/DS392/R , adopted 25 October 2010, DSR 2010:V, p. 1909  
US – Renewable Energy  Panel Report, United  States – Certain Measures Relating to the Renewable 
Energy Sector , WT/DS510/R  and Add.1, circulated to WTO Members 
27 June 2019, appealed 15 August 2019   
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 
US – Wool Shirts and 
Blouses  Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts 
and Blouses from India , WT/DS33/R , adopted 23 May 1997, upheld by 
Appellate Body Report WT/DS33/AB/R, DSR 1997:I, p. 343  
 
 WT/DS584/R  
 
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  LIST OF FREQUENTLY CITED EXHIBITS  
Panel Exhibit  Short Title  
(where applicable)  Title 
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)  
Exhibit JPN -5 Customs Act 1962  The Customs Act, 1962, Act No. 52 of 1962 (13 December 1962)  
Exhibit JPN -6 Customs Tariff Act 
1975 The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 1975)  
Exhibit JPN -10 First Schedule as of 
12 February 2020  R. K. Jain, Customs Tariff of India: Customs Duty Rates & 
Exemptions , 71st edn (Centax Publications, 2020), Vol. 1  
Exhibit JPN -22 Provisional Collection 
of Taxes Act 1931  The Provisional Collection of Taxes Act, 1931, Act No. 16 of 1931 
(28 September 1931 ) 
Exhibit JPN -23 Finance Act 2018  The Finance Act, 2018, No. 13 of 2018 (28 March 2018)  
Exhibit JPN -27 Notification No. 
57/2017  Notification No. 57/2017 (30 June 2017)  
Exhibit JPN -28 General Exemption 
No. 239  Central Board of Indirect Taxes and Customs , General Exemption 
No. 239 - Exemption to Goods Seeks to Prescribe BCD Rates on 
Certain Electronic: Notification No. 57/2017 (30 June 2017) as 
amended by Notification Nos. 22/2018, 37/2018, 69/2018, 
75/2018, 2/2019, 24/2019 and 02/2020 (accessed 28  January 
2021)  
Exhibit JPN -32 Notification No. 
50/2017  Notification No. 50/2017 (30 June 2017)  
Exhibit JPN -33 General Exemption 
No. 183  Central Board of Indirect Taxes and Customs , General Exemption 
No. 183 - Exemption and Effective Rate of Basic and Add itional 
Duty for Specified Goods of Chapters 1 to 99: Notification No. 
50/2017 (30 June 2017) as amended by Notification Nos. 
65/2017, 66/2017, 70/2017, 71/2017, 74/2017, 76/2017, 
77/2017, 84/2017,85/2017, 87/2017, 89/2017, 92/2017, 
93/2017, 2/2018, 5/2018 , 6/2018, 24/2018, 26/2018, 27/2018, 
29/2018, 31/2018, 32/2018, 40/2018, 44/2018,46/2018, 
47/2018, 49/2018, 52/2018, 54/2018, 56/2018, 57/2018, 
62/2018, 68/2018, 72/2018, 77/2018, 80/2018, 3/2019, 6/2019, 
11/2019, 13/2019, 14/2019,15/2019, 17/2019, 25/2019 , 
30/2019, 31/2019, 34/2019, 37/2019, 01/2020, 23/2020, 
26/2020 and 27/2020 (accessed 28 January 2021)  
Exhibit JPN -40 Notification No. 
24/2005  Notification No. 24/2005 (1 March 2005)  
Exhibit JPN -41 Notification No. 
132/2006  Notification No. 132/2006 (30  December 2006)  
Exhibit JPN -42 Notification No. 
58/2017  Notification No. 58/2017 (30 June 2017)  
Exhibit JPN -43 Notification No. 
36/2019  Notification No. 36/2019 (30 December 2019)  
Exhibit JPN -44 General Exemption 
No. 181  Central Board of Indirect Taxes and Customs , General Exemption 
No. 181 - Exemption to Specified Goods to Chapter 38, 84, 85 and 
90 and All Goods for the Manufacture Thereof: 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 (accessed 28 January 
2021)  
Exhibit JPN -45 Notification No. 
22/2018  Notification No. 22/2018 (2 February 2018)  
Exhibit JPN -46 Notification No. 
75/2018  Notification No. 75/2018 (11 October 2018)  
Exhibit JPN -47 Notification No. 
02/2019  Notification No. 02/2019 (29 January 2019)  
Exhibit JPN -48 Lok Sabha Statutory 
Resolution Approving 
Notification No. 
36/2018  Statutory Resolution Re: Notification to Increase Basic Customs 
Duty on Populated, Loaded or Stuffed Printed Circuit Boards, Lok 
Sabha Official Report, Series 16, Vol. XXXI, 14th Session, No. 27 
(4 April 2018)  
Exhibit JPN -49 Rajya Sabha 
Statutory Resolution 
Approving 
Notification No. 
36/2018  Statutory Resolution Increasing Ba sic Customs Duty (BCD) on 
Populated, Loaded or Stuffed Printed Circuit Boards, Falling Under 
Tariff Item 8517 70 10 of the Customs Tariff Act, 1975 from Nil to 
10%, Rajya Sabha Official Report, Vol. 245, No. 29 (5 April 2018)  WT/DS584/R  
 
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  Panel Exhibit  Short Title  
(where applicable)  Title 
Exhibit JPN -50 Notification N o. 
36/2018  Notification No. 36/2018 (2 April 2018)  
Exhibit JPN -51 Finance Bill 2020  Lok Sabha, The Finance Bill, No. 26 of 2020 (1 February 2020)  
Exhibit JPN -52 Finance Act 2020  The Finance Act, 2020, No. 12 of 2020 (27 March 2020)  
Exhibit JPN -53 Notification No. 
38/2018  Notification No. 38/2018 (2 April 2018)  
Exhibit JPN -54 Notification No. 
76/2018  Notification No. 76/2018 (11 October 2018)  
Exhibit JPN -55 Notification No. 
02/2020  Notification No. 02/2020 (2 February 2020)  
Exhibit JPN -56 Notific ation No. 
01/2020  Notification No. 01/2020 (2 February 2020)  
Exhibit JPN -57 Notification No. 
37/2019  Notification No. 37/2019 (30 December 2019)  
Exhibit JPN -58 Notification No. 
37/2018  Notification No. 37/2018 (2 April 2018)  
Exhibit JPN -60 General Rules for the 
Interpretation of the 
Harmonized System  World Customs Organization, General Rules for the Interpretation 
of the Harmonized System  
Exhibit JPN -68  McGraw -Hill Dictionary of Scientific and Technical Terms (6th 
Edition), definitions of "carrier", "carrier current" and 
"radiotelephony" (McGraw -Hill, 2002)  
Exhibit JPN -69 HS1996 Explanatory 
Notes to Headings 
8517 and 8525  World Customs Organization, Harmonized System Nomenclature 
1996 Explanatory Notes, 2nd edn (1996), Headings 8517 and 85 25 
Exhibit JPN -72 HS2007 Explanatory 
Notes to Heading 
8517 World Customs Organization, Harmonized System Nomenclature 
2007 Explanatory Notes, 4th edn (2007), Heading 8517  
Exhibit JPN -74 CBIC, Correlation of 
Customs Tariff 
between 2021 and 
2022 (December 
2021)  Central Board of Indirect Taxes and Customs , Correlation of 
Customs Tariff between 2021 and 2022 (December 2021)  
Exhibit JPN -75 First Schedule as of 1 
February 2022  R. K. Jain, Customs Tariff of India: Customs Duty Rates & 
Exemptions , 74th edn (Centax Publications, 2022), Vol. 1  
Exhibit JPN -76 Notification No. 
55/2021  Notification No. 55/2021 (29 December 2021)  
Exhibit JPN -77 Notification No. 
02/2022  Notification No. 02/2022 (1 February 2022)  
Exhibit JPN -79 WCO, Classification 
Opinion on 
"smartphones" 
(2018)  World Customs Organization, Classification Opinion on 
"smartphones" (2018)  
Exhibit IND -2  International Court of Justice, Case concerning  Sovereignty over 
Certain Frontier Land (Belgium v. Netherlands) , Judgm ent 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 -9 HS2007 Section 
Notes to Section XVI  World Customs Organization, Harmonized System Nomenclature 
2007, Section Notes to Section XVI  
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 -18  É. Wyler and R. Samson, "Article 48" in O. Corten and P. Klein 
(eds.), The Vienna Conventions on the Law of  Treaties  (Oxford 
University Press, 2011)  
Exhibit IND -41 Notification No. 
69/2011  Notification No. 69/2011 (29 July 2011)  
Exhibit IND -42 Notification No. 
55/2011  Notification No. 55/2011 (1 August 2011)  WT/DS584/R  
 
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  Panel Exhibit  Short Title  
(where applicable)  Title 
Exhibit IND -49 Email from IDB, 
WTO, to India (8 
November 2013)  Email correspondence dated 8 November 2013 from IDB, WTO, to 
the Permanent Mission of India to the WTO to the Permanent 
Mission of India to the WTO, Subject: "HS2007 transposition file: 
India"  
Exhibit IND -50 Email from Market 
Access Intell igence 
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. I ndia" 
Exhibit IND -60 Finance Act 2021  The Finance Act 2021, No. 13 of 2021  
Exhibit IND -75 India's rectification 
request, 
G/MA/TAR/RS/572  Rectification and Modification of Schedules, Schedule XII - India, 
Communication to the Secretariat (25 September 20 18), 
G/MA/TAR/RS/572  
Exhibit IND -76 Prof. M. Waibel, Legal 
Opinion on Error  Prof. M. Waibel's Legal Opinion on Error and Curriculum Vitae  
Exhibit IND -78  Circular No. 04/2022 (27 February 2022)  
Exhibit IND -79 Indian Wireless 
Telegraphy Act 1933  The Indian Wireless Telegraphy Act 1933, No. 17 of 1933  
Exhibit IND -80  Notification No. 71 (25 September 1953)  
Exhibit IND -82 Notification No. 
57/2021  Notification No. 57/2021 (29 December 2021) as amended by 
Notification Nos. 22/2018, 37/2018, 69/2018, 75/ 2018, 02/2019, 
24/2019, 02/2020, 03/2020, and 57/2021  
Exhibit IND -83  Cambridge Advanced Learner's Dictionary online, definition of 
"impair" 
https://dictionary.cambridge.org/dictionary/english/impair  
(accessed 22 May 2022)  
Exhibit IND -85 Chapter 85 of the 
HS2022  World Customs Organization, Harmonized System Nomenclature, 
7th edn (2022), Chapter 85  
Exhibit IND -86  World Customs Organization, H armonized 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 
Classification Opinions and Explanatory Notes arising from the 
Decisions taken by the Committee at its 49th Session" (19 July 
2012) document NC1775E1a  
Third-party 
Exhibit EU -4  Hon'ble Supreme Court in t he case of Kasinka Trading and ANR v. 
Union of India and ANR , 1994 (74) ELT 782 (S.C.)  
Third-party 
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.)  
Third-party 
Exhibit EU -6  Hon'ble CESTAT, Cipla Ltd. v. Commissioner of Customs , 2007 
(218) ELT 547 (Tri. – Chennai)  
Third-party 
Exhibit EU -7  Hon'ble CESTAT, Burroughs Wellcome (I) Ltd. v. Commissioner of 
Central Excise , 2007 (216) ELT 522 (Tri. – Chennai)  
Third-party 
Exhibit 
TPKM-3 Letter from Chinese 
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/DS584/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 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 HS2 002 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 200 7 Changes to Schedules of 
Concessions  Using the Consolidated Tariff Schedules (CTS) Databas e, 
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  
HS20 17 Harmonized System Nomenclature 20 17 Edition  
HS20 22 Harmonized System Nomenclature 20 22 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 transposition 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/DS584/R  
 
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  1  INTRODUCTION  
1.1  Complaint by Japan  
1.1.  On 10 May 2019, Japan requested consultations with India pu rsuant 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 23 May 2019 but failed to resolve the dispute.  
1.2  Panel establishment and composition  
1.3.  On 19 March 2020, Japan requested the establishment of a panel pursuant to Article  6 of the 
DSU with standard terms of reference.2 At its meeting on 29 July 2020, the Dispute  Settlement Body 
(DSB) established a panel pursuant to the request of Japan in document WT/DS 584/9 , 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 matter referred to the DSB by Japan in document 
WT/DS 584/9 and to make such findings as will assist the DSB in making the 
recommendations or in giving the r ulings provided for in those agreements.4 
1.5.  Brazil, Canada, China, the European Union, Indonesia, the Republic of Korea, Norway, Pakistan , 
the Russia n Federation , Singapore, Chinese Taipei, Thailand, T ürkiye5, the United  Kingdom, and the 
United States  notified their interest in participating in the Panel proceedings as third parties.6 
1.6.  Further to the agreement of the parties on the three panelists to serve in this dispute , the Panel 
was composed on 7 October 2020  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 2020.7 
1.8.  The Panel adopted its  Working Procedures8 and timetable9 on 4 December 2020, after 
consulting with the parties .  
 
1 WT/DS584/1.  
2 WT/DS584/9.  
3 Dispute Settlement Body, Minutes of the meeting held on 29 July 2020, WT/DSB/M/443, p. 13 . 
4 WT/DS584/10.  
5 Formerly "Turkey". (See WT/INF/43/Rev.23).  
6 On 28 October 2020, Ukraine requested to join this dispute as a third  party. Invited by the Panel to 
comment on Ukraine's request, the parties indicated that they  had no objections to Ukraine's participation as a 
third party. (Panel's communication s of 29 October 2020 and parties' responses of 10 November 2020). On 
18 November 2020, the Panel informed Ukraine, as well as the parties and third parties, that it had a ccepted 
Ukraine's request to participate as a third party in this dispute. The revised constitution note, which includes 
Ukraine in the list of third parties, was circulated as document WT/DS584/10/Rev.1.  
7 For more details regarding the organizational pha se of the dispute, see section 1.3.2 below.  
8 The Panel revised its Working Procedures on 27 January 2021 and on 12 April 2021.  
9 The Panel's timetable was revised on 4 May 2021, 26 October 2021, 28 April 2022, 30 September 
2022 and 6 February 2023 . WT/DS584/R  
 
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  1.9.  Japan submitted its first written submission on 28 January 2021. India submitted its first 
written submission on 8 April 2021.  
1.10.   On 22 April 2021, the Panel received third -party submissions from Brazil , Canada, the 
European Union, Korea, Norway, Chinese Taipei, T ürkiye , 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 parties10 
submitted their written responses on 20 September 2021.  
1.12.   The Panel held its first substantive meeting with the parties in virtual format on 7 -8 October 
2021.11 Prior to the meeting, the Panel sent the parties a list of questions to be answered orally at 
the meeting.12 A joint session with the third parties in this dispute and in the other two disputes in 
which the same panelists had been appointed13 took place i n 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 substantive meeting with the parties on 31 March – 1 April 2022  in 
hybrid format.14 Prior to the substantive meeting, the Panel sent the parties a list of questions to be 
answered o rally 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 A rticle 9.3 of the DSU, the Panel 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.15 The Panel also invited the parties to indicate whether they agreed 
to have a single organizational 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 Japan agreed to have a single joint organizational m eeting for the three disputes in 
which the same panelists had been appointed16, India requested that consecutive separate 
organizational meetings be held for each dispute .17 
 
10 Brazil, Canada, the European Union, Korea, Chinese Taipei, Türkiye, Ukraine, and the United States 
provided responses to the Panel.  
11 For details regarding the organiza tion of the first substantive meeting by remote means, see 
section  1.3.3.1  below.  
12 Panel's communication to the parties (29 September 2021).  
13 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).  
14 For deta ils regarding the organization of the second substantive meeting in hybrid format, see 
section  1.3.3.2  below.  
15 In the pre -organizational meeting questionnaire, 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 substantive meet ings 
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.  
16 Japan's communication (22 October 2020).  
17 India's comm unication (22 October 2020).  WT/DS584/R  
 
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  1.19.   Additionally, Japan considered that the scheduling of the three cases should be ha rmonized, 
and the substantive meetings and third -party sessions should be held jointly . Japan further stated 
that, to the extent that the Panels decided not to hold joint substantive meetings, "those third parties 
which are a complainant in one of the othe r two proceedings be accorded enhanced third party rights 
in the two other proceedings, including the right to attend the entire substantive meeting." Japan 
submitted that 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 enjoyed are in no way impaired ". 
For Japan, d ocuments submitted by the parties to the Panel as well as questions from the Panel to 
the parties should also be shared with the parties in the other two disputes .18 
1.20.   India stated that "the three disputes involve 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  
harmoni zed "to the extent that they allow India, a develo ping country respondent, sufficient time to 
effectively respond to three different complaints. " To that end, India agree d to have common dates 
set for the written submissions of the complainants.  Furthermore, "[g] iven the likely differences in 
the complain ants' 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 meetings 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, consolidated 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 .19 
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 Trade 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 weeks the deadline to submit comments on the other party's response s to the 
pre-organizational meeting questionnaire.20 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.21 The parties submi tted 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.22 
1.22.   The Panel adopted its Working Procedures and timetable on 4  December 2020.23 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 a nd 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 proces s 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 be held in DS582, DS584 and DS588. The Panel added 
 
18 Japan's communication (22 October 2020).  
19 India's communication (22 October 2020), p. 1.  
20 India's communication (26 October 2020).  
21 Panel's communication to the parties (26 October 2020).  
22 The Panel held separate consecut ive organizational meetings in DS582, DS584, and DS588.  
23 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 respondent in this dispute, had su fficient 
time to prepare and present its argumentation.  WT/DS584/R  
 
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  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.24 
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 provid es 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 substantive meeting of the Panel was initially scheduled for 3-4 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 that, 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 substantive 
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 the proposed arrangements f or the first 
substantive meeting and the third -party session, and on the draft Additional Working Procedures.25 
1.25.   The parties submitted their comments on the format of the first substantive meeting on 
12 April 2021. Japan indicated that it held a consistent view that substantive meetings should in 
principle be held in face -to-face format but was aware of the challenges this format raised during 
the COVID -19 pandemic. Japan submitted that "a substantive meeting in virtual format may be an 
option, if the Panel decides that such a format is considered to be appropriate."26 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 situati on in India and hold the 
first substantive meeting in this dispute only when the situation improves so as to permit face to 
face meetings".27 
1.26.   On 13 April 2021, the Panel invited the parties to comment on each other's comments on the 
Panel's proposed arrang ements for the first substantive meeting and third -party session, and on the 
draft Additional Working Procedures concerning meetings with remote participation.28 On the same 
date, t he Panel also invited the third parties to express their views on the parti es' comments  
regarding the Panel's communication of 31 March 2021 .29 
1.27.   Japan agree d with India  that the utmost consideration should be given to India's concern  
regarding certain technical issues in a virtual format meeting, "taking into account the need to 
preserve the parties ' due process rights ". Japan observe d that a virtual meeting, "by its nature, does 
not itself favo ur one party over the other in any manner whatsoever, and that technical difficulties 
may be alleviated to a certain extent by sufficient a dvance preparation, testing and other relevant 
measures ".30 
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 i t was "not in a position to participate in full -fledged dispute settlement proceedings … through 
remote participation". India drew attention to several ongoing panel proceedings where the panels 
 
24 Panel's communication to the parties (4 December 2020).  
25 Panel's communication to the parties ( 31 March 2021 ). A copy of this communication  can be found in 
Annex D -1 of the Report.  
26 Japan's commu nication (12 April 2021).  
27 India's communication (12 April 2021).  
28 Panel's communication to the parties (13 April 2021).  
29 Panel's communication to the third parties (13 April 2021).  
30 Japan's communication (16 April 2021).  WT/DS584/R  
 
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  had decided to postpone the substantive meeting due to the CO VID-19 pandemic. India submitted 
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 modifyin g '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 w ell 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 mod ify substantive provisions of the DSU and 
impair the respondent's due process rights."31 
1.29.   On 16 April 2021, Canada, China, 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 w as not precluded from amending its 
Working Procedures and conducting meetings in the format it 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 C OVID -19 cases in India, the Panel deemed it appropriate to postpone 
the first substantive meeting 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 furth er indicated 
that it would confirm the format of the first substantive meeting by 31 August 2021.32 
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 th ird-party session would be 
conducted in virtual format on 7-8 and  13 October 2021, respectively.33 On 6 September 2021, the 
Panel invited the parties to comment on the Panel's draft Additional Working Procedures concerning 
meetings with remote participatio n. 
1.32.   On 20 September 2021, the Panel confirmed its decision of 31 August 2021 to conduct the 
first substantive meeting in a virtual format.34 On the same date, the Panel adopted 
Additional  Working Procedures concerning meetings with remote participation for the first 
substantive meeting.35 
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 feasib ility 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 att end 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 second substantive 
meetings. To th at end, the Panel copied its  communication to the representatives of the 
complainants in DS582 and DS588 and asked that the parties do so as well when conveying their 
views.36 
 
31 India's communication (16 Ap ril 2021)  (quoting Appellate Body Report, India – Patents (US) , 
para. 92). 
32 Panel's communication to the parties (21 April 2021). A copy of this communication can be found in 
Annex D -2 of the Report.  
33 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.  
34 Panel's communication to the parties (20 September 2021). A copy of this communication can be 
found in Annex D -4 of the Report.  
35 The Panel's Additional Procedures for the first substantive meeting can be found in Ann ex A-2 of the 
Report.  
36 Panel's communication to the parties (22 February 2022).  WT/DS584/R  
 
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  1.34.   Noting the rapidly changing situation concerning the COVID -19 pandemic and the resulting 
possibility that not all members of Japan's delegation may be able to travel to Geneva, Japan  
suggested that the second substantive meeting be held in a hybrid format.37 
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.38 
1.36.   On 2 March 2022, the Panel informed the parties that , in light of the responses of the parties 
in DS582, DS584, and DS58839, 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.40 On 18 March 2022, the Panel 
adopted Additional Working Procedures concerning meetings with remote participation for the 
second substantive meeting.41 
1.3.4   Requests for enhanced third -party rights  
1.37.   On 21 and 22 Dece mber 2020, the Panel received requests for enhanced third -party rights 
from the European Union and Chinese Taipei, respectively. T he European Union  and Chinese Taipei 
requested that the 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 t he 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.42  
1.38.   The European Union and Chinese Taipei noted that enhanced third -party rights ha d been 
granted  in previous disputes  to address "practical considerations arising from a third party 's 
involvement as a party in a parallel panel proceeding ".43 According to the European Union  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 2 and DS588 .44 
The European Union 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.45 The European Union and Chinese Taipei stated 
that they had "an exceptionally strong interest in the Panel's assessment of the matter in the two 
parall el 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 
 
37 Japan's communication (25 February 2022).  
38 India's communication (25 February 2022).  
39 The European Union confirmed that its representatives would attend the second substantive meeting 
in person at the WTO premises on 29 -30 March 2022. (European Union's communication in DS582 
(23 February 2022)). Chinese Taipei indicated that, with the rapi dly 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)).  
40 Panel's communication to  the parties (2 March 2022).  
41 The Panel's Additional Procedures for the second substantive meeting can be found in Annex A -3 of 
the Report.  
42 European Union's communication (21 December 2020), p. 1 ; Chinese Taipei's communication 
(22 December 2020), pp. 1 -2. 
43 European Union's communication (21 December 2020), p. 2 ; Chinese Taipei's communication 
(22 December 2020), p. 2. Both communications refer to Panel Reports, EC – Hormones (Canada) , para. 8.17;  
US – COOL , para. 2.7; US – COOL (Article 21.5 – Canada a nd 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.  
44 European Union's communication (21 December 2020), p. 2 ; Chinese Taipei's communication 
(22 December 2020), p. 2.  
45 European Union's communication (21 December 2020), p. 2 ; Chinese Taipei's communication 
(22 December 2020), p. 2.  WT/DS584/R  
 
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  in a position to properly defend [their] interests during th e substantive meeting[s] in [their] own 
case[s]".46 
1.39.   The Panel invited the parties and the other third parties to comment on the requests. While 
Japan agreed with the requests by the European Union and Chinese Taipei47, India asked the Panel 
to reject those  requests.48  
1.40.   India stated that granting the enhanced third -party rights requested by the European Union 
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) a nd 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 .49  
1.41.   According to India, a  panel's discretion to grant enhanced third -party rights wa s circumscribed 
by the relevant DSU provisions50 and by due process considerations.51 In itself, the status as a 
complainant in a par allel 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 seeking such additional rights.52 India submitt ed 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 d isputes.53 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 and 
their standard third party rights under Article 10 [of the] DSU in this dispute."54 The requests for 
enhanced third -party rights "would inappropriately blur the distinction with the complainant".55 India 
was of the view that the first two rights requested by the European Union 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.56 
1.42.   China, the Ru ssian Federation, Türkiye, and the United States, as third parties, provided 
comments on the requests submitted by the European Union and Chinese Taipei .57  
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 dispute warrant[ed] the granting of certain enhanced third -
party rights to the European Union 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 q uestions 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 those questions following the second substantive meetin g." The Panel  rejected the 
 
46 European Union's communication (21 December 2020), p. 2 ; Chinese Taipei's communication 
(22 December 2020), p p. 2-3. 
47 Japan's communication (11 January 2021).  
48 India's communication s (11 January 2021).  
49 India's communication s (11 January 2021), para. 3.  
50 India's communication s (11 January 2021), para. 5 (referring to Appellate Body Reports, India – 
Patents (US) , para. 92; and US – FSC (Article 21.5 – EC), para. 241).  
51 India's communication s (11 January 2021), para. 5 (referring to Appellate Body Report, Thailand – 
Cigarettes ( Philippines) , para. 147).  
52 India's communication s (11 January 2021), para. 6.  
53 India's communication s (11 January 2021), para. 7.  
54 India's communication s (11 January 2021), para. 9 (referring to Panel Report, US – Washing 
Machines , para. 1.12).  
55 India' s communication s (11 January 2021), para. 11 (referring to Panel Report, India – Quantitative 
Restrictions , para. 5.95).  
56 India's communication s (11 January 2021), paras. 14 -15. 
57 China and Türkiye generally supported the requests while the United States opposed them. The 
Russian Federation noted that, if granted, enhanced third -party rights should extend to all third parties.  WT/DS584/R  
 
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  remainder of the requests.58 On the same date, the Panel revised the Working Procedures  to reflect 
its decision .59  
1.3.5   Disclosure of a panelist'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 conveyed the information that the consortium employing the 
panelist was eligible, alongside with other law fir ms, 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, a s 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 this regard.60  
1.45.   Japan consider ed that there was no particular problem with regard to the disclosed 
information but reserve d its rights to comment in case a conflict issue arose in the future.61  
1.46.   India noted that the situation disclosed involved a WTO Member which was a third party in 
this dispute and 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 panelist's employer would avoid incurring any obligat ion 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 settlement duties, in 
particular  with respect to  instructi ons which directly or indirectly relate d to the subject matter of, 
and measures  at issue in , this dispute .62 
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 concer ned 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 
requirement s 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 as 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 requested a preliminary ruling , incorporated in its first written 
submission.  In its pr eliminary ruling request, India claimed that Japan'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 Japan to comment on India's preliminary ruling request . 
Third parties that wished t o comment on the matter were also invited to do so.  
1.50.   On 23 June 2021, the Panel informed the parties that it intended to issue a communication 
regarding India's 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 first substantive meeting."64 On the same day, the Panel informed 
 
58 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 
reserves 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 parties and third parties (25 February 2021)).  
59 The revision conce rned paragraphs 21bis and 30(d) of the Working Procedures.  
60 Panel's communication to the parties (4 February 2021).  
61 Japan's communication (9 February 2021).  
62 India's communication (9 February 2021).  
63 India's first written submission, para. 20.  
64 India's communication (28 June 2021).  WT/DS584/R  
 
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  the parties that, in light of India's communication, it would suspend the issuance of the Panel's 
communication  and invited Japan to comment on India's request.65 
1.51.   Japan submitted that the parties and third parties had sufficiently expressed their views 
regarding India's preliminary ruling request, "and therefore the time is ripe for the Panel to make 
findings and rulings in this respect."66  
1.52.    On 7 July 2021, the Panel issued a communication to the parties and third parties regarding 
India's preliminary ruling request.67  
1.3.7   Evidentiary objection  
1.53.   On 31 March 2022, during the second substantive meeting with the parties, the Panel 
addressed a question to India regarding whether Professor Michael Waibel's Legal Opinion, which 
had been submitted as Annex II to India's second written submission, constituted evidence or was 
part of India's arguments.68 In its oral response, India explained that, in  its view, Professor Waibel's 
Legal Opinion was in the nature of an expert opinion that was independent of India's submissions, 
and, if the Panel so wished, India would assign it an exhibit number in accordance with the Panel's 
Working Procedures . Japan or ally objected to India's characterization of Professor Waibel's Legal 
Opinion as evidence. According to Japan, Professor Waibel's Legal Opinion should not be given any 
weight or probative value because it was neither neutral nor objective, and suffered fro m a number 
of serious legal flaws. Japan further argued that, to the extent the Legal Opinion could be considered 
evidence, it should be disregarded by the Panel because, inter alia , the submission of that Legal 
Opinion as evidence was inconsistent with th e Panel's Working Procedures.  
1.54.   On 6 April 2022, following the second substantive meeting, the Panel sent a communication 
to the parties, noting that, in its comments on India's oral response to Panel question No. 3 at the 
second substantive meeting, Japan had objected to the  submission by India of Professor Waibel's 
Legal O pinion as evidence . The Panel requested Japan to submit its objection in writing by 12 April 
2022 and invited India to submit comments on Japan's objection by 19 April 2022. Additionally,  and 
without prejudice to Japan's objection, the Panel requested India to provide Professor Waibel's Legal 
Opinion as an exhibit, reserv ing its right to make a ruling on that objection at a later stage of the 
proceedings .69  
1.55.   Having received Japan's written  objection, as well as India's comments on that objection, the 
Panel issued its decision to the parties on 16 May 2022.70 As explained in that decision, the Panel 
rejected Japan's objection and invited Japan to comment on that exhibit in the course of its 
comments on India's response to questions from the Panel.  
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  Japan challenges the duties applied by India to imports of certain information communication 
technology (ICT) products, on the ground that such duties are in ex cess of the relevant tariff bindings 
set forth in India's WTO Schedule .71 According to Japan, at the time of the Panel's establishment, 
 
65 Panel's communication to the parties (28 June 2021).  
66 Japan's communication (1 July 2021).  
67 The Panel's decision can be found in Annex E -2 of the Report.  
68 On 11 March 2022, the Panel sent questions for oral respo nses at the second substantive meeting. 
Panel question No. 3 addressed the following question to India (footnote omitted):  
In its second written submission, India indicates that its "submissions are supplemented by the 
expert opinion of Prof. Michael Waib el annexed as Annex II". The Panel notes that India has not 
submitted Annex II as an exhibit. Should the Panel consider Professor Waibel's opinion to be part 
of India's second written submission, and therefore by extension part of India's arguments, or 
should the Panel consider Professor Waibel's opinion to be evidence in support of India's 
arguments?  
69 Panel question No. 62, sent on 11 April 2022.  
70 The decision of the Panel can be found in Annex E -3 of the Report.  
71 Request for the establishment of a pan el by Japan (Japan's panel request), WT/DS584/9, pp.  1-5. WT/DS584/R  
 
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  the ICT products concerned fell within the scope of the following tariff items72: 8517.12.11; 
8517.12.19; 8517.12.90; 85 17.61.00; 8517.62.90; 8517.70.10; and 8517.70.90 of the 
First Schedule to the Customs Tariff Act, 1975 (First Schedule).73 Japan identifie s a number of  legal 
instruments through which India applies the alleged tariff treatment to products falling under these 
tariff items .74  
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 imports of 
goods into India are the Customs Act, 1962, Act No. 5 2 of 13 December 1962  (Customs Act 1962)75 
and the Customs Tariff Act, 1975, Act No. 51 of 18 August 1975  (Customs Tariff Act 1975).76  
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.77 
2.4.  Sectio n 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 shall be levied under the Customs Act, 1962 (52  of 
1962), are specified in the First and Second Schedules.78 
2.5.  The First Schedule of the Customs Tariff Act 1975 sets out maximum  duty rates leviable on 
imports of goods into India.79 The First Schedule is based on the World Customs Organization's 
(WCO's) Harmonized System (HS) Nomenclature.80 At the time of the Panel's establishment, India's 
First Schedule was based on the HS Nomenclature 2017 Edition (HS2017).81 Subsequently, during 
the Panel proceedings, India amended its First Schedule to align it with the HS Nomenclature 202 2 
Edition (HS2022).82 
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.  
 
72 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", an d 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. Japan's first written submission, para. 101 and fn 163 thereto; and 
India's first writt en submission, para. 26). In this Report, 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 nomenclature.  
73 Japan's panel request. India amended its First Schedule during the panel proceedings. We analyse the 
effect of those amendments on Japan's claims in section 7 below.  
74 Japan's panel request. We address the parties' assertion s regarding these legal instruments in the 
context of assessing the merits of Japan's claims in section  7 below.  
75 Customs Act  1962, (Exhibit JPN -5). 
76 Customs Tariff Act 1975, (Exhibit JPN -6).  
77 Customs Act 1962, (Exhibit JPN -5), section 12.  
78 Customs Tariff Act 1975, (Exhibit JPN -6), section 2.  
79 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 hard -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 first written submission, para. 25. See al so 
Chinese Taipei's third -party submission, para. 3.26). India does not contest this assertion.  
80 Japan's response to Panel question No. 66, para. 24; India's response to Panel question No. 66, 
para. 36. 
81 India's response to Panel question No. 21, para. 78.  
82 India's second written submission, para. 105 (referring to Finance Act 2021, (Exhibit IND -60)). WT/DS584/R  
 
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  2.2.2   Parliament's power to amend the First Schedule  
2.7.  The Indian Parliament m ay amend the First Schedule through a Finance Bill or Finance Act.83 
A Finance Bill becomes a Finance Act once passed by both Houses of Parliament and assented to by 
the President.84 
2.2.3   The Government's power to modify the applied duty rates  
2.8.  The Government h as the power to (i) increase tariff rates in the First Schedule through 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 Tarif f 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 a ny 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 i mmediate action, it may, by notification in the Official Gazette, direct 
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 for 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 h as been approved with or without modifications under sub -section 
(2).85 
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.86 Such notifications may also 
be rescinded by the Government at any time by subsequent notification.87 
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 sat isfied that it is necessary in the public interest so to do, 
it may, by notification in the Official Gazette, exempt generally either absolutely or 
 
83 See e.g. Chinese Taipei's third -party submission, para. 3.27. The parties do not contest this assertion. 
Moreover, pursuant to Section 3 of the Provisi onal 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. (Prov isional Collection of Taxes 
Act 1931, (Exhibit JPN -22), sections 3, 4(1), and 4(2)(a)).  
84 European Union's third -party submission, para. 40. The parties do not contest this assertion.  
85 Customs Tariff Act 1975, (Exhibit JPN -6), section 8.  
86 Customs Tarif f Act 1975, (Exhibit JPN -6), 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 soon 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 beginning with the day on w hich 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 f orm 
or be of no effect, as the case may be, but without prejudice to the validity of anything previously done 
thereunder."  
87 Customs Tariff Act 1975, (Exhibit JPN -6), section 7(4). Further, section 11A(1) of the Customs Tariff 
Act 1975 empowers the Governm ent 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 approved by both Houses of P arliament. (Ibid. section 11A(2)).  WT/DS584/R  
 
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  subject to such conditions (to be fulfilled before or after clearance) as may be specified 
in the notificati on goods of any specified description from the whole or any part of duty 
of customs leviable thereon.88 
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 exempting 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  1962.89 The Government can also withdraw 
exemptions issued under Section  25 at any time if the " 'public interest ' so demand[s]" and the 
Government determines that the exemption does not require to be extended any further .90 In certain 
instances, two exemption notifications or two different 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.91 
2.2.4   Conclusion  
2.14.   From the foregoing, and in light of the clarifications of the par ties, 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 rel evant customs notifications which relate to the tariff item at 
issue.92 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 notifications.  
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 descri be at the outset 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.93 The HS nomenclature , which is establi shed 
under the HS Convention,  is administered by the WCO.94 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.95  
 
88 Customs Act 1962, (Exhibit JPN -5), section 25(1).  
89 European Union's third -party submission, para. 55. The parties do not contest this assertion.  
90 Hon'ble Supreme Court in the case of Kasinka Trading and ANR v. Union of India and ANR , 1994 (74) 
ELT 782 (S.C.), (European Union's third -party Exhibit EU -4), pp. 462 -463.  
91 Hon'ble Supreme Court in the case of Share Medical Care v. Union of India and OR S, 2007 (209) ELT 
321 (S.C.),  (European Union's third -party Exhibit EU -5); Hon'ble CESTAT, Cipla Ltd. v. Commissioner of 
Customs , 2007 (218) ELT 547 (Tri. – Chennai), (European Union's third -party Exhibit EU -6); Hon'ble CESTAT, 
Burroughs Wellcome (I) Ltd. v. Commissioner of Central Excise , 2007 (216) ELT 522 (Tri. – Chennai), 
(European Union's third -party Exhibit EU -7).  
92 India's response to Panel question No. 22, paras. 81 -82, and No. 53, para. 52. In its first written 
submission, India uses the term as " basic customs duty (BCD) rate" to refer to the duty rates set forth in the 
First Schedule. (See e.g. India's first written submission, paras. 131, 147, and 159). 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 question No. 53, para. 52). In this Report, when 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 rat e 
applied to imports, taking into account all relevant legal instruments (including relevant customs notifications).  
93 India's response to Panel question No. 1, para s. 9-10.  
94 India is a contracting party to the HS Convention. (Japan's first written submi ssion, para. 17; Chinese 
Taipei's third -party submission, para. 3.24). This assertion is uncontested by the parties.  
95 See e.g. General Council Decision of 18 July 2001 on Concessions under the Harmonized Commodity 
Description and Coding System, A Procedur e for Introduction of Harmonized System 2002, Changes to 
Schedules of Concessions (General Council Decision on HS2002 Transposition Procedures), WT/L/407, WT/DS584/R  
 
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  2.17.   In the WTO, Members' Schedules are regularly updated 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 General 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 concession.96 
2.18.   On 13 December 1996, a number of WTO Member s 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, wi thin the meaning of Article II:1(b) of the GATT 1994, with respect to certain 
products.97 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 sh ould be modified 
in accordance with the  GATT  Decision of 26 March 1980 on Procedures for Modification and 
Rectification of Schedules of Tariff Concessions (1980 Decision).98 India, as a participant in the ITA, 
proposed a modification to its WTO Schedule, w hich 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  1997.99 
2.19.   Subsequently, WTO Member s 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.100  
2.20.   In 2006, in preparation for the transposition of Members' Schedules from the HS2002 to the 
HS Nomenclature 2007 Edition ( HS2007 ), the General Council 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).101 Pursuant to that Decision, developed country Members were to prepare their o wn 
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".102  
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 November 2013, the Secretariat communicated to India via emai l the draft files for the HS2007 
transposition of India's Schedule.103  
2.22.   Following receipt of the draft transposition files prepared by the WTO Secretariat, India 
provided comments on the draft files.104 The Secretariat then communicated a revised file to India 
 
Attachment A, p. 2; 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 (General Council Decision on HS2007 Transposition Procedures), WT/L/673, Annex 2, para. 7.  
96 GATT, Procedures to Implement Changes in the H S, 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 the national tariffs". (Ibid.  para. 1 . 
See also  WTO, Decision on Establishment of Consolidated Loose -Leaf Schedules on Goods, G/L/138 ). 
97 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], whether or not they are included in Attachment A". (Ministerial 
Declaration on Trade in Information Technology Products (ITA),  WT/MIN(96)/16,  para. 2).  
98 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 part icipant's proposed modification of their WTO Schedules is 
subject to review, and approval on a consensus basis, by all ITA participants.  
99 WT/Let/181.  
100 General Council Decision on HS2002 Transposition Procedures, WT/L/407.  
101 General Council Decision on H S2007 Transposition Procedures, WT/L/673.  
102 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.  
103 Email from IDB, WTO, to India (8 November 2013),  (Exhibit IND -49).   
104 India did not provide comments or seek clarifications rega rding the transposition of the tariff items at 
issue in this dispute. (Email from Market Access Intelligence Section , WTO, to India (12 February 2014), 
(Exhibit IND -50)).   WT/DS584/R  
 
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  for approval.105 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.106 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 were certified.107     
2.23.   On 25 September 2018, India requested tha t its Schedule be rectified, in accordance with the 
1980 Decision , in order to correct "certain errors contained in its HS2007 Schedule".108 Specifically, 
India requested that its commitments with respect to 15 tariff items  be rectified to "Unbound", 
includ ing certain of the tariff items  at issue in this dispute.109 In its request, India stated that "[w]hile 
transposing the HS2002 schedule to HS2007 schedule on the products concerned, errors occurred, 
resulting in wrong bound tariff commitments on certain lin es which were inadvertently included in 
the Schedule."110 According to India, "the various tariff subheadings for which India is seeking 
rectification to its HS2007 Schedule" were not covered by the commitments in the ITA, and "[t]he 
new products became par t of the schedule on account of the WCO transposition from HS2002 to 
HS2007".111 India considered that the rectification did not alter its commitments "either under 
GATT  1994 or the ITA []"112, 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%".113  
2.24.   Several Members, including Canada114, China115, the European Union116, Japan117, 
Chinese  Taipei118, Switzerland119, and the United States120 objected to In dia's proposed rectification  
under the 1980 Decision . In light of these objections, and in accordance with the 1980 Decision121, 
India's rectification request has not, to date , been  certified.   
 
105 India's response to Panel question No. 19, paras. 60 -61. 
106 Committee on Market Ac cess, Rectification and Modification of Schedules, Schedule XII – India, 
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.  
107 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India, 
Communication from t he 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.  
108 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND -75), p. 1.  
109 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 reception, 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 (other parts). (India's rectification request, G/MA/TAR/RS/572, (Exhibit IND -75), 
Appendix 2, p. 3).  
110 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND -75), p. 1.  
111 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND -75), Appendix 1, p. 2.  
112 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND -75), p. 1.  
113 India's rectification  request, G/MA/TAR/RS/572, (Exhibit IND -75), Appendix 1, p. 2.  
114 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134, p.  40; 
and Committee on Market Access, Minutes of the meeting held on 11 November 2019, G/MA/M/71, para. 15.4.  
115 Council for Trade in Goods, Minutes of the meeting  held on 11 and 12 April 2019, G/C/M/134, 
para. 12.5; and 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.  
116 Council for Trade in Goods, Minutes of th e 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; and Committee on Market A ccess, 
Minutes of the meeting held on 9 October 2018, G/MA/M/68, para. 134.  
117 Letter from Japan to India (9 November 2018), (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.  
118 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.  
119 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134, 
para. 12.12.  
120 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.  
121 The 1980 Decision indicates that proposed c hanges 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).  WT/DS584/R  
 
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  2.25.   In light of the foregoing, India's WTO Schedule presently indic ates, inter alia , the following 
tariff commitments 122: 
 
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   
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% 
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% 
 
 
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.   Japan requests the Panel to find that  the measures at issue are inconsistent with India's 
obligations under Articles II:1(a) and (b) of the GATT 1994.123 Japan also requests, pursuant to 
Article 19.1 of the DSU, that the Panel recommend that India bring its measures into conformity 
with its obligations under the GATT 1994.124 
3.2.  India requests the Panel to find that:  
a. India has not acted inconsistently with Ar ticles II:1(a) and (b) of the GATT 1994 because 
the applied rate of duty for products at issue is "nil" on imports of such products from 
Japan125; 
b. The products at issue are not covered by the ITA and the 2007 Schedule, which was 
certified in error, included products not originally covered by the ITA126; 
c. Since the products at issue are not covered under the ITA, the draft rectification circulated 
by India is of a "purely formal character ".127 Therefore, the objection raised by Japan to 
the draft rectification was unfounded, contrary to paragraph  3 of the 1980 Decision , and 
impeded India's right to rectify its Schedule under the 1980 Decision128; and  
d. The commitments under the contested subheadings of India's WTO Schedule are invalid 
due to "error" within t he meaning of Article 48 of the Vienna Convention on the Law of 
Treaties (Vienna Convention).129 
 
122 WT/Let/181; WT/Let/1072.  
123 Japan's first written submission, pa ra. 142; second written submission, para. 279.  
124 Japan's first written submission, para. 142; second written submission, para. 279.  
125 India's first written submission, para. 263(c); second written submission, para. 135 (d).  
126 India's first written submissi on, para. 263(d); second written submission, para. 135 (b).  
127 India's first written submission, para. 263(e); second written submission, para. 135 (c).  
128 India's second written submission, para. 122; response to Panel question No. 49, para. 43.  
129 India's f irst written submission, para. 263(f); second written submission, para. 135(a).  WT/DS584/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 W orking Procedures adopted by the Panel (see Annexes B -1, 
B-2, B-3, and B -4). 
5  ARGUMENTS OF THE THIRD PARTIES  
5.1.  The arguments of Brazil, Canada, the European Union, the Republic of Korea, Norway, 
Singapore, Chinese Taipei, Türkiye, Ukraine, the United Kingdom,  and the United States are reflected 
in their executive summaries, provided in accordance with paragraph 26 of the Working Procedures 
adopted by the Panel (see Annexes C -1, C-2, C-3, C-4, C-5, C-6, C-7, C-8, C-9, C-10, and C -11). 
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, 
Japan and India each submitted written requests for the Panel to review aspects of the Interim 
Report. On 9 December 2022, each party  submitted comments on the other party's requests for 
review. Neither party requested an interim review meeting.  
6.2.  In accordance with Article 15.3 of the DSU, this section of th e Report sets out the Panel's 
response to the parties' requests made at the interim review stage, including certain requests 
discussed in greater detail below . The numbering of some of the paragraphs and footnotes in the 
Final Report has changed from the n umbering in the Interim Report.  
6.3.  Certain of the parties' requests for review of the Interim Report include requests to provide 
more detailed summaries of the parties' arguments. In certain  instances, we considered it useful 
and appropriate to  modif y the su mmaries of the parties' arguments in response to such requests.  
We wish to highlight in this regard that, t hroughout the Report, 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 agreements. 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 also include requests to modify 
or clarify aspects of the Panel's su bstantive 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 (b oth 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 drafting requested 
by the parties, or by adjusting paragraphs/footnot es 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  
6.7.  Japan requests that the description of its arguments in paragraphs 7.14, 7.22, 7.85, and 7.90 
of the Interim Report, with respect to the applicability of Article 48 of the Vienna Convention as well 
as the relevance of the ITA, be clarified to indicate that they are specific to this dispute  and do not 
concern as a general matter the applicability of Article 48 or the ITA.130 India considers that Japan 
 
130 Japan's request for interim review, paras. 3 -4, 6, and 20 -22. In particular, Japan requests that its 
arguments on this point be reflected.  WT/DS584/R  
 
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  does argue that Artic le 48 of the Vienna Convention does not apply in WTO dispute settlement.131 
Regarding the applicability of Article 48, in our view, Japan's arguments do not appear to be specific 
to the circumstances of this dispute but rather appear to implicate the applic ability of Article 48 more 
generally.132 Nevertheless, Japan is correct that in its submissions it consistently refers to the 
applicability issue as pertaining to this dispute . On that basis, and taking into account that we do 
not actually address the merits of this issue, we consider it appropr iate to accept Japan's request .133  
6.8.  Japan requests the addition of certain language describing India's arguments concerning the 
interpretative relevance of the ITA.134 India does not comment on Japan's request. In our view, the 
summary of India's arguments i s sufficient. We note that India's arguments regarding the 
interpretative relevance of the ITA are comprehensively addressed in paragraphs  7.75 to 7.79 of 
the Interim Report.  
6.9.  Japan requests certain minor modifications to the Panel's reasoning in paragraph 7.123 of the 
Interim Report .135 India does not comment on Japan's request. In our view, the requested changes 
might lead to unintended ambiguity and we therefore decline this request.  
6.1.1   Whether India's assumption that the transposition of its WTO Sc hedule 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  
6.10.   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.  
6.11.   In its request for interim review, India asse rts that the Panel's reasoning in paragraphs 7.137  
to 7.139  of the Interim Report  "inverts rather than addresses India's arguments".136 India considers 
that "it is irrelevant what India's conduct signalled to the WTO members (if anything at all)" and 
"[w]ha t is relevant is whether India was provided with the required flagging of the relevant tariff 
lines – the absence of which led to India's flawed assumption".137 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".138  
6.12.   Japan considers that the Panel provided a sufficient explanation in the  Report as to how it 
reached the conclusion that India failed to demonstrate that its assumption (i.e. that the scope of 
its tariff commitments in its WTO Schedule would not be expanded beyond the scope of its ITA 
undertakings) constituted an essential bas is for its consent.139 Japan also considers that India's 
comment regarding "the lack of flagging by the WTO Secretariat during the transposition process 
appears to be relevant to the analysis of the requirements under Article 48(2) of the Vienna 
Convention and, therefore, is irrelevant to what the Panel addresses in paragraphs 7.137 to 
 
131 India's comments on Japan's requ est for interim review, para. 3.  
132 We note that Japan's arguments on the issue of applicability of Article 48 are: (i) the Vienna 
Convention is not a covered agreement within the meaning of Article 1.1 of the DSU and thus does not fall 
within the Panel's t erms of reference; (ii) Article 48 is not part of the "customary rules of interpretation" within 
the meaning of Article 3.2 of the DSU; (iii) Article 48 does not constitute "relevant rules of international law" 
within the meaning of Article 31(3)(c) of the  Vienna Convention; (iv) the Panel cannot add to or diminish the 
rights and obligations provided in the covered agreements in accordance with Article 3.2 of the DSU; and (v) 
the specific procedures under Article XXVIII of the GATT 1994 must be followed whe n modifying Members' 
tariff concessions. (See Japan's second written submission, paras. 32 -33 and 36 -67; opening statement at the 
second meeting of the Panel, paras. 10 -12; Japan's closing statement at the second meeting of the Panel, 
paras. 6 -8; and reque st for interim review, para. 20). All of Japan's arguments in relation to the DSU would 
appear to apply to any  invocation of Article 48 in WTO dispute settlement.    
133 Since it is not necessary for us to address the merits of this issue, it is also not nec essary to include 
a full exposition of Japan's arguments on this issue in section 7 of the Report.  
134 Japan's request for interim review, para. 12.  
135 Japan's request for interim review, para. 29.  
136 India's request for interim review, para. 15.  
137 India's request for interim review, para. 15.  
138 India's request for interim review, para. 16.  
139 Japan's comments on India's request for interim review, para. 24.  WT/DS584/R  
 
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  7.139."140 Japan also notes that the Panel examined that issue at paragraphs 7.179  to 7.196  of the 
Interim Report.141 
6.13.   At the outset, we recall that it is uncontested that the bu rden 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 Vienna  Convention) that occurred during the transposition of its Schedule was 
an expansion of India's WTO tariff commitments beyond those contained in the ITA.142 On this basis, 
India has argued that the "assumption" which allegedly constituted an "essential basi s" of India's 
consent to be bound by its Schedule was that its WTO tariff commitments would not be expanded 
beyond the ITA .143  
6.14.   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 commitments beyond  its ITA undertakings ) 
formed an essential basis of its consent to be bound by its WTO Schedule .144 Having reviewed the 
evidence and arguments adduced by the parties, including with respect to India's conduct at the 
time of the transposition, we have 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 India'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 7.139 of the Interim Report to clarify this.  
6.15.   Regarding other aspects of India's request, we first note India's assertion t hat 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 balanc e, 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 under Article 48(1) (in section 7.3.3.2.3.4), we address whether India has demo nstrated 
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.  
6.16.   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 w hat constituted India's essential bases for its consent to be bound by its 
transposed Schedule.  
6.17.   We further note that India also argues that what matters in this context is whether India "was 
provided with the required flagging of the relevant tariff lines ".145 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 essential basis of its consent to be bound by that Schedule. 
Regardless  of whethe r 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 assertions regarding its stated assumption being 
an essential basis of its consent to  be bound.146 Thus, India's argument regarding the alleged failure 
 
140 Japan's comments on India's request for interim review, para. 25.  
141 Japan's comments on India's request for interim review, para. 25.  
142 See e.g. India's first written submission, para. 4 0; and second written submission, para. 20.  
143 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 -1". 
(India's first written submission, para. 42). Similarly, India states that "its mistaken assumption was that the 
HS2007 did not expand Ind ia's tariff commitments beyond India's obligations under the ITA -1. That remains 
India's clearly articulated position." (India's opening statement at the second meeting of the Panel, para. 26).  
144 See section 7.3.3.2.3.4  below.  
145 India's request for interim review, para. 15.  
146 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 unde r Article  48 in this manner, we recall that in the context of applying WT/DS584/R  
 
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  of the Secretariat to flag the relevant tariff items is not pertinent to our assessment of this specific 
aspect of 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  
6.18.   Section 7.3.3.3.3.2 of the Report addresses whether the circumstances of the transposition 
of India's Schedule were such as t o 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).   
6.19.   India notes the Panel's conclusion that the WTO Secretariat "fulfilled its ob ligation to flag the 
complex technical transpositions … thereby put[ting] India on notice of the error", notwithstanding 
the Panel's observation in paragraph 7.195 of the Interim Report that "both parties … may read 
document G/MA/283 differently".147 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".148 India requests the Panel to "address the contradictions arising out of its legal 
reasoning and make suitable modifications".149  
6.20.   Japan considers that India is misreading the Interim Report and its request should be rejected. 
Japan submits that the Panel appropriately notes India's argument  regarding the WTO Secretariat's 
alleged failure  to flag the relevant tariff items.  Japan considers that the Panel refers to the parties'  
difference in interpretation correctly and explains why the Panel's understanding of document 
G/MA/283 is different. Thus, Japan considers that there are no contradic tions in the Interim 
Report.150 
6.21.   While we agree with Japan that the Interim Report sufficiently conveyed the Panel's reasoning 
on this issue, we have in any event modified paragraphs 7.194 to 7.195  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 document G/MA/283 does not flag any tariff 
items, the parties are in fact saying two different things when they make their respective assertions. 
Japan argues that " in case the contested subheadings were not flagged by the WTO Secretariat, this 
fact indicates that there were no changes in the scope of concessions for the co ntested 
subheading s".151 Thus, Japan asserts that the WTO Secretariat would only have flagged any tariff 
items if there were actual changes in the scope of concessions of those tariff items. That assertion, 
however, does not square with the plain language o f 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. "152 Japan does not 
reconcile, on the one hand, its assertion that the Secretariat would only have flagged a tariff item if 
there was a change in scope, with, on the other hand, the obligation on the Secretariat to flag any 
tariff item for which a change in scope may have occurred. In a ny event, for our purposes, we 
understand that when Japan says that the WTO Secretariat did not flag any tariff items, Japan means 
that the WTO Secretariat did not flag any tariff items whose product scope had, in fact, changed.   
6.22.   That assertion by Japan t hat the WTO Secretariat did not flag any tariff items because their 
product scope had not actually changed is not the same as India's assertions that the WTO 
Secretariat failed to flag any tariff items for which the product scope of the concession may have  
changed. In contrast to Japan, India acknowledges that the flagging obligation on the WTO 
Secretariat applied 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 
 
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 correc tly and appropriately flagged all 
relevant tariff items. (See paras. 7.178 -7.196  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.   
147 India's request for interim review,  para. 17.  
148 India's request for interim review, para. 18.  
149 India's request for interim review, para. 18.  
150 Japan's comments on India's interim review request, para. 28.  
151 Japan's comments on India's interim review request, para. 28.  
152 General Council Dec ision on HS2007 Transposition Procedures, WT/L/673, para. 4.  (emphasis added)  WT/DS584/R  
 
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  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 concessions may have  changed.  
6.23.   In short, while the parties appear  to agree tha t 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) India's arguments regarding whether the Secretariat satisfied its 
obligation  to flag tariff items for which the product scope of the concession may have changed153; 
and (ii) Japan's argument that the Secretariat did not flag any tariff items for which the product 
scope of the concession actually  changed.154 
6.24.   India also notes that in paragraph 7.199 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 '".155 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 should fail to notice the error ' or indeed a 'possible error '."156 India states 
that the " thrust of that inter national 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) ".157 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 ".158 India requests the Panel to provide 
"further clarity" on the conclusions reached by the Panel on this issue.159  
6.25.   Japan submits that India's request should be rejected. Japan c onsiders that the Panel 
accurately summarizes the parties' arguments and addresses India's interpretation of the legal 
standard under Article 48, such that there is no need for "further clarity". Japan considers that India's 
request seeks to re -argue and f urther elaborate on its arguments regarding that legal standard.160  
6.26.   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 circumstances should be such that no 
interested party should fail to notice the error or be under a misapprehension about it."161 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.  
6.27.   Japan requests the addition of a new paragraph of substantive reasoning by the Panel  
following paragraph 7.202 of the Interim Report , addressing India's argument that India's  "prior 
conduct could not have given rise to any good faith expectations by Japan" and any party would 
have known that India did not intend to commit to obligations beyond those in the ITA.162  
6.28.   India disagrees with the suggested addition and submits that "Japan seeks to write and 
rewrite the substantive conclusions arrived at by the Panel".163  
6.29.   In our view, the arguments raised by India (and referred to by Japan in its request for review) 
are not relevant  in this section of the Report, where we address whether India was on notice as t o 
a potential error. We recall that Article 48(2) of the Vienna Convention contains two distinct 
elements: (i) w hether the  circumstances were such as to put th e releva nt State on notice of a 
possible error ; and (ii) whether t he State in question contributed by its own conduct to the error . In 
its first written submission , India raised various  arguments in a subsection that address ed, without 
distinction,  both elements o f Article 48(2). In our view,  India's arguments that other Members were 
 
153 See paras. 7.178 -7.194  below.  
154 See para. 7.195  below.  
155 India's request for interim review, para. 19.  
156 India's request for interim review, para. 19.  
157 India's request for interim review, para. 19.  
158 India's request for interim review, para. 19.  
159 India's request for interim review, para. 20.  
160 Japan's comments on India's request for interim review, para s. 29-31.  
161 India's second written submission, para. 30. See also India's first written submission, para. 56.  
162 Japan's request for interim review, paras. 35 -36. Japan suggests that the Panel find that "it is not 
relevant whether Japan was aware … because  what is at issue is whether the circumstances were such as to 
put India on notice of the alleged error" and not whether Japan was aware of India's alleged intentions. (Ibid. 
para. 36).  
163 India's comments on Japan's request for interim review, para. 6.  WT/DS584/R  
 
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  aware of India's intentions at the time of the transposition are not relevant to the question of  whether 
the circumstances were such as to put India on notice . Rather , these arguments concern whether 
India contributed by its own conduct to the error , and we have discussed them  in the relevant  section 
of the Report addressing that distinct issue.164 We therefore decline Japan's request.165  
6.2  Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the 
GATT 1994  
6.2.1   Tariff items  8517.12.11, 8517.12.19, and 8517.12.90  of India's First Schedule  
6.30.   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 ".166 India requests the deletion of language in paragraph 7.268  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 tariff 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 item s 8517.12.11 and 
8517.12.19, and that those tariff items " would come under the tariff item 8517.12 ".167  
6.31.   Japan requests the Panel to reject India's comments because the language in the Interim 
Report correctly describes the facts.168  
6.32.   We recall that the parties agree that at the time of the Panel's establishment, India's First 
Schedule imposed a standard 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).169 Therefore, paragraph 
7.268  of the Interim Report  accurately reflects the parties' arguments. Moreover, that 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 uncontested by the parties.170 We therefore decline to make 
the changes requested by India.  
6.2.2   Tariff items 8517.61.00, 8 517.70 .10, and 8517.70.90  of India's First Schedule  
6.33.   Japan requests us to modify certain factual findings pertaining to Serial No. 425 of Notification 
No. 50/2017.171 On 14 December 2022, we sent a question to the parties concerning this issue. On 
21 December  2022, the parties responded to that question. On 11 January 2023, Japan commented 
on India's response to that question. India indicated that it had no comments on Japan's response.  
6.34.   We understand that, in light of the parties' responses to our question, a nd on the basis of 
Notification No. 02/2022, Serial No. 425 of Notification No. 50/2017 was omitted from that 
Notification pursuant to Notification No. 02/2022.172 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.173 
We have accordingly modified relevant paragraphs in sections 7.4.3 and 7.4.5.  
 
164 See paras. 7.211 -7.212  below.  
165 To the extent that either party consider s that other Members' awareness of India's intentions might 
be relevant to the question of whether the circumstances were such as to put India on notice, we disagree. In 
our view, other Members' awareness of India's intentions regarding the transposition p rocess does not speak to 
whether the circumstances of the transposition put India on notice of a possible expansion of its tariff 
concessions beyond the commitments undertaken by India in the ITA.  
166 India's request for interim review, para. 21.  
167 India's request for interim review, para. 21.  
168 Japan's comments on India's request for interim review, para. 33.  
169 Japan's first written submission, para. 38; India's first written submission, para. 131.  
170 Japan's first written submission, para. 39; India's response to Panel question No. 75(a), para. 58.  
171 Japan's request for interim review, paras. 41 -45. 
172 India's r esponse to Panel question No. 91; Japan's comments on India's response to Panel question 
No. 91, para. 8.  
173 Notification No. 02/2022, (Exhibit JPN -77). WT/DS584/R  
 
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  6.2.3   Japan's additional clai m under Article II:1(a) of the GATT 1994  
6.35.   Japan requests that certain language be added to the summary of its arguments in paragraph 
7.422 of the Interim Report , regarding "why Japan believes the measures at issue lack predictability 
and foreseeability", in order "to make the summary of Japan's arguments more comprehensive".174 
India does not comment on Japan's request. We note that almost identical language to that which 
Japan wishes to have included in the summary of its arguments already  appears in paragraph 7.427 
of the Interim Report . In the interest of brevity, we do not consider it necessary to duplicate this 
aspect of Japan's arguments in the Report and therefore decline this request.  
6.36.   Japan requests the removal of aspects of the Pan el's findings and observations in paragraph 
7.441 , and footnote 1024 thereto , of the Interim Report  in order "to accurately reflect Japan's 
claim which focuses on the specific instances where the products concerned are exempted from 
applicable duties".175 India " disagrees with the deletion suggested by Japan" , which in India's view 
seek to replace the Panel's findings and conclusions with Japan's own conclusions.176 We consider it 
appropriate to make the observations which Japan requests us to remove. We therefore decline this 
request.  
7  FINDINGS  
7.1  Introduction  
7.1.  Japan  claims that India is acting inconsistently with Article s II:1(a) and (b) of the GATT 1994 
by imposing ta riff treatment on certain information communications technology  (ICT)  products that 
is inconsistent with the commitments inscribed in India's WTO Schedule.177 Japan  specifically 
challenges the tariff treatment accorded by India to products  that, at the time  of the Panel's 
establishment,  fell under the following tariff items178 of the First  Schedule  in India's domestic 
customs regime : 8517.12 .11; 8517.12.19; 8517.12.90; 8517.61 .00; 8517.62 .90; and 8517.70 .10; 
and 8517.70.90 . Japan  considers that such tariff tr eatment is provided through India's domestic 
customs regime, comprising in particular India's First  Schedule and various customs notifications. 
Essentially, Japan  submits that the tariff treatment provided by India is inconsistent 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 of Con cessions; and (ii) duty -
free treatment that is accorded to certain products is subject to conditions that are not set forth in 
India's WTO Schedule of Concessions. In addition, Japan argues that the measures at issue in this 
dispute give rise "to a lack of  foreseeability for traders operating in the marketplace, which has 
serious effects on competition" , in a manner that is inconsistent with Article II:1(a) of the GATT 
1994.179 
7.2.  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".180 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 co ntained in the ITA []".181 India submits that, pursuant to Article 48 of the Vienna 
Convention, the tariff commitments for these tariff items  in its WTO  Schedule were certified in error, 
and consequently are both invalid and unbound.182 India refers to the Le gal Opinion of Professor 
 
174 Japan's request for interim review, para. 64.  
175 Japan's request for interim review, para. 70. Japan " suggests that the panel's findings therefore 
focus on the specific circumstances of the dispute rather than referring to India's system of customs 
notifications in general". (Ibid.).  
176 India's comments on Japan's request for interim review, para. 7.  
177 Japan's first written submission, para. 3; second written submission, para. 1.  
178 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 clar ity, we use the terms 
"subheading" and "tariff line" as per the HS nomenclature. (See fn 72 to para. 2.1 above).  
179 Japan's second written submission, para. 19.  
180 India's second written submission, para. 1.  
181 India's second written submission, paras. 3 and 25. See also India's first written sub mission, 
para. 40.  
182 India's first written submission, paras. 73 -74.  WT/DS584/R  
 
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  Waibel who asserts that the WTO Secretariat "bears at least some of the responsibility for the 
errors".183 India also asserts that the complainant violated paragraph 3 of the  GATT Decision of 26 
March 1980 on Procedures for Modifica tion and Rectification of Schedules of Tariff Concessions  (1980 
Decision ) by objecting to India's request to rectify its Schedule, through that Decision.184 India also 
argues that, "[a] ssuming without admitting that India 's 2007 Schedule is not in error, … the applied 
rates of ordinary customs duty on products of Japan are not in excess " of the rates set forth in 
India's WTO  Schedule, because imported  "products at issue from Japan into India [are] subject to 
NIL duty pursuant to the Comprehensive Economic Pa rtnership Agreement " between Japan and 
India.185 Additionally,  with respect to certain specific aspects of Japan 's claims, India claims that 
Japan  has failed to adequately identify the products at issue.186 India also argues that a number of 
the conditions c hallenged by Japan  are not of a kind that are required to be inscribed in a 
WTO Schedule.187 
7.3.  We proceed with our analysis in several steps. We first describe the legal standard under 
Article s 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  Article s II:1(a) and 
(b) in the circumstances of this dispute, namely: (i) the relevanc e of the ITA; (ii) India's plea of 
error under Article 48 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 act ing inconsistently with Article s II:1(a) and (b)  with respect to the tariff 
items at issue . We shall then address a third claim raised by Japan under Article II:1(a). Finally, we 
shall turn to India's arguments that Notification No. 69/2011, implementing I ndia's commitments 
under the India -Japan Comprehensive Economic Partnership Agreement (CEPA), brings India into 
consistency with its WTO obligations.  
7.2  The legal standard under Article s 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 appropriate 
Schedule annexed to this Agreement.  
(b) The products described in Part I of the Schedule relat ing to any Member, which 
are the products of territories of other Members, shall, on their importation into the 
territory to which the Schedule relates, and subject to the terms, conditions or 
qualifications set forth in the Schedule, be exempt from ordina ry customs duties in 
excess of those set forth and provided therein. Such products shall also be exempt from 
all other duties or charges of any kind imposed on or in connection with the importation 
in excess of those imposed on the date of this Agreement o r 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 found that "Article II generally … protects expectations of a competitive 
relationship (or conditions o f competition) and not expectations of any particular trade volume."188 
Moreover, the Appellate Body has stated that Article II:1 "serves the important function of 
preventing Members from applying duties that exceed the bound rates agreed to in tariff negot iations 
and incorporated into their Schedules of Concessions" .189  
7.6.  We agree with prior interpretations of Article s II:1(a) and (b) such that, while paragraph (a) 
of Article II:1 "contains a general prohibition against according treatment less favourable to imports 
 
183 India's response to Panel question No. 60(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on 
Error, (Exhibit IND -76), para. 39).  
184 India's second written submission, para. 116.  
185 India's second written submission, para. 12.  
186 See e.g. India's response to Panel question No. 75, para. 60, and No. 83, para. 72.  
187 See e.g. India's response to Panel question No. 69, paras. 47 -49.  
188 Panel Report, Russia – Tariff Treatment , para. 7.1 8 (referring to Panel Reports, EC – IT Products , 
para. 7.757).  
189 Appellate Body Report, Colombia – Textiles , para. 5. 34 (referring to Appellate Body Report, 
Argentina – Textiles and Apparel , para. 45). WT/DS584/R  
 
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  than that provided for in a Member's Schedule"190, paragraph (b) "prohibits a specific kind of practice 
that will always be inconsistent with paragraph (a) : that is, the application of ordinary customs 
duties in excess of those provided for in the Schedule."191 Similarly, where a measure is inconsistent 
with Article II:1(b) , first sentence,  on the ground that the tariff treatment is subject to "terms, 
conditio ns 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).192 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 
consistency with Article II:1(b) since the language of Article II:1(b), first sentence, "is more specific 
and germane".193  
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.194 If we determine that India 
imposes ordinary customs duties195 on products in excess of the bound rate set forth in India's 
WTO Schedule, or alte rnatively 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 Article s II:1(a) and (b).196 
7.8.  We furth er 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.197 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 qual ification 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 Article 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 W TO Agreement, 
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 c overed agreements. Consequently, Article 3.2 of the 
 
190 Appellate Body Report, Argentina – Textiles and Appa rel, para. 45.  
191 Appellate Body Report, Argentina – Textiles and Apparel , para. 45.  
192 Panel Reports, EC – Chicken Cuts , para. 7. 64; EC – IT Products , para. 7. 747.  
193 See e.g. Panel Report, Russia – Tariff Treatment , para. 7.48 (referring to Appellate Body Report, 
Argentina – Textiles and Apparel , para. 45).  
194 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 accorded to the products at issue under the challenged measures 
at issue; and (c) whether the challenged measures result in less favourable treatment of the produc ts 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 Rep orts, EC – Chicken Cuts , para. 7.65; EC – IT Products , para. 7.100).  
195 The parties do not dispute that where the tariff treatment at issue in this dispute concerns "duties" 
applied by India, such duties constitute "ordinary customs duties" within the meani ng 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 Art icle II:1(b), first sentence.  
196 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), fir st 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 cove red by the concession, this would be sufficient to find a breach of 
Article II." (Panel Reports, EC – IT Products , para. 7.116).  
197 See parties' responses to Panel question No. 69.  WT/DS584/R  
 
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  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.198 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 "contex t" pursuant to Article 31(1) 
of the Vienna Convention.199 However, the relevance of the HS depends on the specific interpretative 
question at issue, including whether the relevant concessions were based on the HS.200  
7.10.   To our understanding, the foregoing inte rpretative 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 Article s 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 
appropri ate Schedule annexed to [the GATT 1994]". Thus, to assess whether a Member is acting 
inconsistently with Article s 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.201 
7.12.   In the present dispute, it is uncontested that the "appropriate Schedule" for the purpose of 
assessing India's compliance with Article s II:1(a) and (b) is India's WTO Schedule. However, the 
parties disagree over the c ontent of India's WTO tariff commitments.  
7.13.   Throughout the course of these proceedings India has argued that: (i) the relevant binding 
tariff commitments are set forth in the Information Technology Agreement (ITA) and those 
commitments are static and did no t change due to their incorporation into India's WTO Schedule202; 
(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 Ind ia 
during the transposition of the Schedule from the HS2002 to the HS2007203; 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 .204  
 
198 Along these lines, the Appellate Body found in EC – Computer Equipment  that Members' Schedules of 
concessions must be interpreted in accordance with the general rules of treaty interpretation set out in the 
Vienna Convention. The Appellate Body stated tha t:  
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 interpretation of which is at issue here – 
are reciprocal and result from a mutually advantageous negotiation between importing and 
exporting Members. A Schedu le is made an integral part of the GATT 1994 by Article II:7 of the 
GATT 1994. Therefore, the concessions 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 conce ssion 
are the general rules of treaty interpretation set out in the Vienna Convention.  
(Appellate Body Report, EC – Computer Equipment , para. 84. See also Appellate Body Report, 
EC – Export Subsidies on Sugar , para. 167; and Panel Reports, EC – Chicken Cut s, para. 7.87)  
199 See Appellate Body Reports, EC – Computer Equipment , para. 89; EC – Chicken Cuts , 
paras.  195-197; and China – Auto Parts , para s. 146 and 149 . 
200 See e.g. Panel Reports, EC – IT Products , para. 7.443.  
201 We understand that tariff items for which a Member has not made a tariff binding need not be 
included in the WTO Schedule. (See e.g. Japan's response to Panel question No. 67, para. 28).  
202 See e.g. India's opening statement at the second meeting of the Pa nel, para. 48.   
203 See e.g. India's first written submission, paras. 38 -74. 
204 See e.g. India's response to Panel question No. 49, para. 43. In India's view, Japan'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.  WT/DS584/R  
 
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  7.14.   Japan , for its part, considers th at: (i) India's WTO tariff commitments are set forth in India's 
WTO Schedule and the ITA did not render the commitments in that Schedule static205; (ii) Article 48 
of the Vienna Convention is not applicable in this dispute, and, in any event, there was no e rror 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 dispute206; and (iii) there is no basis for the Panel to make the 
findings requested by India regarding Japan 's objection to India's rectification request under the 
1980 Decision.207  
7.15.   We proceed by addressing, 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 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.208 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.209 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, pursua nt to the 1980  Decision. 
These changes to India's Schedule, which were based on the HS1996, were certified on 2 October 
1997.210  
7.17.   In section III (titled " Factual Background") of its first written submission in this dispute, Japan , 
inter alia , describes cert ain aspects of India's participation in the ITA. Japan  notes the ITA's 
conclusion in December 1996, India's participation in  the ITA, and the requirement under paragraph 
2 of the ITA for all participants to bind and eliminate customs duties and other dutie s and charges 
within the meaning of Article II:1(b) of the GATT 1994 on all products identified in Attachments A 
and B.211 Japan  further notes that, pursuant to paragraph 2 of the ITA Annex, India submitted a 
proposed modification of its WTO Schedule, and t hat modification was certified on 2 October 1997 .212 
Japan also  refers to two subsequent  transpositions of India's WTO Schedule , including the 
transposition of India's WTO Schedule to the HS2007.213 Thereafter, in setting forth its legal 
argument underpinnin g its claims that India is acting inconsistently with Article s II:1(a) and (b) of 
the GATT 1994, Japan  does not refer to the ITA, but compares India's commitments in its present 
WTO Schedule to the tariff treatment provided by India to certain imported pro ducts pursuant to 
India's First Schedule and relevant customs notifications.214 
7.18.   In its first written submission, India states that Japan  suggested that India's concessions were 
based on the ITA, "although without actually establishing that the products at issue were covered 
under the ITA[]".215 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 
 
205 See e.g. Japan's opening statement at the first meeting of the Panel, paras. 18 -24; second written 
submissio n, paras. 209 -263; and opening statement at the second meeting of the Panel, para. 24.  
206 See e.g. Japan's opening statement at the first meeting of the Panel, paras. 25 -42; and second 
written submission, paras. 31 -144.   
207 See e.g. Japan's second written submission, paras. 169 -179.   
208 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], whether or not they are included in Attachment A". (ITA, 
WT/MIN(96)/16, para. 2).  
209 Paragraphs 1 and 2 of the Annex to the ITA. See also 1980 Decision, L/4962.  
210 WT/Let/181.  
211 Japan's first written submission, paras. 14 -16.  
212 Japan' s first written submission, para. 16.  
213 Japan's first written submission, para. 17.  
214 Japan's first written submission, section IV.  
215 India's first written submission, para. 75.  WT/DS584/R  
 
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  the objections against India's rectification request  under the 1980 Decision  were without merit.216 
India further states that "the burden of proof is on Japan  to prima facie demonstrate that the 
products at issue were covered by the ITA[]" and " Japan  does not even offer a hint of which entries 
in the ITA[] allegedly covered the products at issue".217 India devotes approximately 29 pages218 of 
its first written submission to demo nstrating that the products at issue are not covered by the ITA.219 
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 future".220  
7.19.   In response to questions from the Panel, Japan clarified that its claim is under Article s II:1(a) 
and (b) of the GATT 1994, and that " [i]n the present case, the concessions at issue are those 
included in the currently certifie d schedule of India", and that while the ITA "  may be relevant context 
for the purposes of interpreting concessions included in a schedule of concessions  … this may not be 
the case with regard to the Schedule at issue in the present case which is not based  on the same 
version of the HS nomenclature than the one on which the ITA [] was based. "221 According to Japan, 
"India itself has not explained what impact the interpretation of the provisions of the ITA [] would 
have upon the scope of its concessions under I ndia's Schedule at issue, nor has it explained how 
this could refute Japan's claims of inconsistencies with Article II of the GATT 1994 ."222  
7.20.   In response to questions from the Panel, India further clarified its views regarding the 
relevance of the ITA in th e 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 
transposition of India 's schedule from HS1996 to HS2002 or HS2007 does no t affect or change 
India's obligations under the ITA []".223 India elaborated that "the ITA [] did not include the range of 
additional products that could be developed in the future".224 India further considered this relevant 
to the present dispute, because " Japan  develops arguments in relation to sub -headings 8517.12, 
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 under the ITA []".225 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 regardin g the 
contested products since such contested products are not covered under the ITA []".226  
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,  Japan  itself asserts that 
the "source of India's commitments for the products at issue is the ITA []" and Japan 's claims must 
fail because "the products at issue are not covered by the ITA []".227 India considers that "a resolution 
of this issue lies in inte rpreting the scope of ITA [] which is relevant to the present dispute in various 
ways".228 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 dis pute and applies in different 
ways for  Japan  and India. Indeed, it is instrumental 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 
 
216 India's first written submission, para. 93.  
217 India's first written sub mission, para. 109.  
218 See India's first written submission, paras. 75 -194. 
219 India's first written submission, para. 109.  
220 India's first written submission, para. 85. In addition to referring to the ordinary meaning of the text 
of the ITA, India conside rs that subsequent practice indicates that the scope of the ITA does not extend to new 
products. (Ibid. paras. 86 -106). India highlights, in particular, that the participants in the ITA "have agreed 
that the product scope of the ITA[] does not adequately c over 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. 92 (underlining original)).  
221 Japan's response to Panel question No. 3, para. 11.  
222 Japan's response to Panel question No. 3, para. 11.  
223 India's response to Panel question No. 1, para. 1.  
224 India's response to Panel question No. 1, para. 5.  
225 India's response to Panel question No. 1, para. 7.  
226 India's response to Panel question No. 1 , para. 8.  
227 India's opening statement at the first meeting of the Panel, para. 32. See also India's first written 
submission, para. 109; and response to Panel question No. 4, para. 18.  
228 India's opening statement at the first meeting of the Panel, para.  32. WT/DS584/R  
 
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  the draft rectification req uest to the 2007 Schedule submitted by India in 2018 was of a purely 
formal character".229  
7.22.   Japan for its part, continues to insist that "by referring to the ITA[] as being the source of 
static obligations with respect to information and communications tech nology products, which would 
not cover the Products Concerned, India keeps on equating the ITA[] and the tariff concessions as 
included in its Schedule".230 Japan insists that "the source of India's obligations is the GATT 1994 
and its Schedule" and the ITA  "is not the source of India's obligations at issue in this dispute".231 
Japan considers that the ITA is not a covered agreement and "the Panel has no jurisdiction to clarify 
the rights and obligations of WTO Members under the ITA[]".232 Japan further consid ers that , in this 
dispute,  neither the ITA nor the ITA Expansion can serve as relevant context for interpretation of 
India's WTO  Schedule, pursuant to Article 31(2)(b) of the Vienna Convention, nor are they 
supplementary means of interpretation pursuant to  Article 32 of the Vienna Convention.233 Japan 
also considers that India has not explained what effect the ITA and the ITA Expansion should have 
on the Panel's interpretation of India's WTO Schedule.234 In Japan's view, they "have no legal 
relevance to the i nterpretation of India's Schedule".235  
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 dispute 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 signi ng of the ITA).  
7.24.   We therefore proceed to address, in this section: (i) whether the ITA sets forth India's tariff 
commitments for purposes of applying Article s II:1(a) and (b) of the GATT 1994; and (ii) whether 
the ITA otherwise limits the scope of the tari ff commitments contained in India's WTO Schedule.  
7.3.2.2   Whether 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 at "the heart of this dispute" is whether the products 
identified by Japan  are covered under the ITA.236 India states that "it is clear that the parties to the 
dispute agree that the source of the purported commitments could only be the ITA []."237 India states 
that it " consider[s] itself bound by the obligations under the ITA[]" but argues that those obligati ons 
are "separate from the commitments under the contested sub -headings that were certified in error 
via the HS2007 transposition".238  
7.26.   Japan  argues that "India  errs by referring to the ITA [] and its obligations as those which 
should be interpreted for the purposes of this dispute ", because "[t] he relevant obligations are those 
laid down in Articles II:1(a) and II:1(b) of the GATT 1994 and India's Schedule which is incorporated 
into the GATT 1994 through Article II:7 of the GATT 1994 ".239 Japan considers that  "the ITA [] and 
its attachments are legally  distinct from the concessions made by India in its Schedule, and it is only 
India's Schedule that must be examined in order to determine whether India violates its obligations 
under Articles II:1(a) and II:1(b) o f the GATT 1994 ".240 Japan  further considers that the ITA is not 
 
229 India's response to Panel question No. 42, paras. 24 and 26. See also India's second written 
submission, para.  44.  
230 Japan's opening statement at the second meeting of the Panel, para. 24.  
231 Japan's opening statement at the second meeting of the P anel, para. 24.  
232 Japan's opening statement at the second meeting of the Panel, para. 24. See also Japan's second 
written submission, paras. 190 -196; response to Panel question No. 2, paras. 2 -7; and comment on India's 
response to Panel question No. 61, p ara. 37.  
233 Japan's second written submission, paras. 199 and 203.  
234 Japan's second written submission, para. 207.  
235 Japan's second written submission, para. 197.  
236 India's first written submission, para. 8.  
237 India's  opening statement at the first meeting of the Panel, para. 33.  
238 India's first written submission, para. 75.  
239 Japan's second written submission, para. 190.  
240 Japan's opening statement at the second meeting of the Panel, para. 24.  WT/DS584/R  
 
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  a covered agreement within the meaning of the DSU  and the Panel has no jurisdiction to interpret 
the ITA .241 
7.3.2.2.2   Main arguments of the third parties  
7.27.   Brazil considers 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 []".242 In Brazil's view, "the 
main issue of the present dispute concerns the correct inte rpretation of India 's Schedule, not the 
interpretation of the ITA[]."243 
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".244 Canada considers tha t "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".245 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 a nalysis in this case."246 
7.29.   The European Union submits that, because the ITA is not identified in the list of covered 
agreements set forth in Appendix 1 to the DSU, pursuant to Article 1.1 of the DSU the ITA is not a 
"covered agreement" within the meaning of the DSU.247 According to the European Union, this Panel 
is only empowered to apply, "and therefore to interpret", the covered agreements.248 The European 
Union clarifies, however, that "[t] his does not exclude that in the interpretation and application of 
these covered agreements, the Panel may use the ITA [] as context within the meaning of 
Article  31(2)(b) VCLT ".249 The European Union further submits that the legal obligations at issue are 
"Article II:1 of the GATT 1994, and India' s Schedules and the tariff b indings provided for in those 
schedules ".250 The European Union submits that t he ITA "is not the source of India' s legal obligations 
relevant in the present cases ".251  
7.30.   Korea "is of the view that the agreement at issue in this dispute is not the ITA [], but t he 
GATT  1994."252 Korea considers that the ITA "may be used as 'context' to interpret India 's tariff 
concessions at issue in this dispute".253 
7.31.   Norway submits that the ITA is not a "covered agreement" within the meaning of Article 1.1 
of the DSU, but could se rve 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 
commitments contained in its WTO Schedule.254 
7.32.   Chinese Taipei argues that the ITA is not a cove red 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 Vienna Convention.255 Chinese Taipei considers that "the Panel must 
 
241 Japan's opening statement at the first meeting of t he Panel, para. 24; second written submission, 
paras. 191 -195.  
242 Brazil's third -party response to Panel question No. 1, para. 2.  
243 Brazil's third -party response to Panel question No. 1, para. 2.  
244 Canada's third -party response to Panel question No. 1, par a. 1.  
245 Canada's third -party response to Panel question No. 1, para. 2.  
246 Canada's third -party response to Panel question No. 1, para. 2.  
247 European Union's third -party response to Panel question No. 1, para. 1.  
248 European Union's third -party response to Panel question No. 1, para. 2.  
249 European Union's third -party response to Panel question No. 1, para. 2.  
250 European Union's third -party response to Panel question No. 2, para. 10. See also European Union's 
third-party response to Panel question No. 15, paras. 1 -2.  
251 European Union's third -party response to Panel question No. 2, para. 1 0. (emphasis original)  
252 Korea's third -party response to Panel question No. 3, p. 1.  
253 Korea's third -party response to Panel question No. 3, p. 1.  
254 Norway's third -party statement, para. 2.  
255 Chinese Taipei's third -party response to Panel question No. 1, para. 2, incorporating Ch inese Taipei's 
response to panel question No. 2 in India – Tariffs on ICT Products (Chinese Taipei)  (DS588). (In its responses 
of 20 September 2021 to questions from the Panel to the third parties before the first substantive meeting, 
Chinese Taipei respon ded 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 confirmed its 
understanding that Chinese Taipei's responses to the Panel's questions as a party in DS588 are on the record WT/DS584/R  
 
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  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 properly 
inscribed in i ts currently certified Schedule of Concessions reflecting the 2007 HS nomenclature".256 
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 conces sions at issue, and, as such, 
constitutes an important part of the factual background in this dispute" .257 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".258 
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 adversely 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 "important questions w ith respect to the interpretation of the tariff 
concessions made by WTO Members pursuant to the ITA" .259 
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 th e WTO covered agreements".260 
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."261 
7.35.   The United States 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".262 According to the United States, "the Panel is tasked with interpreting the rel evant 
provisions of the GATT 1994, including the tariff concessions in India 's Schedule, rather than the 
ITA[]".263 The United States therefore considers that "India is mistaken that its commitments are 
'under the ITA[]'".264 
7.3.2.2.3   Panel's assessment  
7.36.   In our view, 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 Japan 's claim in this dispute is that India is acting inconsistently with its 
obligations under A rticles II:1(a) and (b) of the GATT 1994.265 Japan  has not, in its panel request or 
in any of its submissions, articulated any claim based on a provision of the ITA. We recognize that 
Japan  described the ITA, in its first written submission, as relevant factual background to explain 
the history of India's tariff commitments at issue in this dispute. However, we do not read Japan 's 
references to the ITA as articulating any claim of inconsistency or requesting us to find that India is 
acting inconsistently wit h the ITA. Thus, in our view, Japan  has not asserted that India is acting 
inconsistently with the ITA nor does Japan  request us to make any such finding.266  
 
in this dispute, DS584. The parties did not object or otherwise comment. (See Japan's communication (7 July 
2022); and India's communication (7 July 2022) ). 
256 Chinese Taipei's third -party response to Panel qu estion 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 Products (Chinese Taipei)  (DS588).  
257 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 Products (Chinese Taipei)  (DS588).  
258 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 Products (Chinese Taipei)  (DS588).  
259 Türkiye's third -party submission, paras. 2, 4 and 9.  
260 Ukraine's third -party response to Panel question No. 1, para. 8.  
261 Ukraine's third -party res ponse to Panel question No. 1, para. 9.  
262 United States' third -party response to Panel question No. 1, paras. 2 -3.  
263 United States' third -party response to Panel question No. 1, para. 3.  
264 United States' third -party response to Panel question No. 5, para . 9. 
265 Japan's first written submission, paras. 3 -142. See also Japan's second written submission, 
para. 279; and panel request, p. 5.   
266 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 Japan's panel request in this dispute.  WT/DS584/R  
 
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  7.38.   As described above267, the legal standard under Article s 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 
provision in the GAT T 1994. We therefore see no textual link in the GATT 1994 indicating that 
Members' legal obligations, for the purposes of applying Article s 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 1 994, 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 the Annex to this Dec laration, 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 of 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 
Declaration into its sch edule 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 tariff 
schedule, which ever 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 into its 
WTO market ac cess 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 undertakings made under the ITA only become binding WTO obligations 
under Article s 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 concessions shall be 
treated no differently 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 does 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 concernin g Members' rights and obligations under provisions of the 
WTO Agreement.268 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 Schedule269, the ITA is not a "covered 
agreement" within the meaning of the WTO Agreement and the DSU.270  
 
267 See section 7.2 above.  
268 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 obligations under the provisions of the Agreement Establishing the World Trade Organization … and of this 
Understanding taken in isolation or in c ombination with any other covered agreement."  
269 See para. 7.9 above.  
270 We note India's argument that "at the very least, the contents of Attachment A and Attachmen t B of 
the ITA[] were incorporated in WT/LET/181 dated July 2, 1997 which is a covered agreement within the 
meaning of Article 1 of the [DSU]". (India's response to Panel question No. 2, para. 13) We understand that 
document WT/Let/181 contained certain ch anges to India's WTO Schedule that were certified on 2 October  
1997. For the reasons already explained 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 argume nt that if the ITA is WT/DS584/R  
 
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  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 forms part of the fa ctual 
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 Article s II:1(a) and 
(b) as the "source" of a Member's legal obligations under those provisions. To the extent that India's 
arguments r elated 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.271 We note India's view that 
Japan refers to the ITA as the relevant source of law in this dispute.272 As explained above, however, 
we disagree with that understanding of Japan 's arguments and claims.  
7.44.   As a final point of note with respect to this issue, we observe India's argument that Japan 
"argues against using the ITA [] as the base -line comparator on th e basis that the 'Panel has no 
jurisdiction to clarify the rights and obligations of WTO Members under the ITA [], if any, as the ITA [] 
is not a covered agreement '".273 India considers that, "by that token, Japan must establish the 
impossible fact that India's HS2002 Schedules continues to be a covered agreement despite being 
no longer in currency ".274 India considers that " [t]here is no legal basis for such an argument and 
Japan does little to substantiate that self -inconsistent assertion ".275  
7.45.   India's argument that its HS2002 Schedule is "no longer in currency" implies that, in India's 
view, a newly transposed Schedule replaces the old Schedule.276 We have examined the relevant 
documents surrounding each transposition of India's WTO  Schedule and we under stand that 
following a transposition exercise it is not the case that a "new" Schedule replaces an "old" Schedule. 
Rather, 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.277 Indeed, the process 
through which these changes are certified is under the 1980 Decision.278 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".279 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 trans position exercise.280 India is therefore 
incorrect when it suggests that its HS2002 Schedule was replaced with its HS2007 Schedule. To the 
contrary, India only has one WTO Schedule  concerning trade in goods , which is indeed a covered 
agreement, and which ha s been changed several times over the years through various recourses to 
the 1980 Decision.281 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 recogn ized as an 
 
not a covered agreement, then "Japan must establish the impossible fact that India's HS2002 Schedule 
continues to be a covered agreement despite being no longer in currency." (India's comments on Japan's 
response to Panel question No.  59, para. 4). We address this argument in paras. 7.44-7.45 below.   
271 See section 7.3.2.3  below.  
272 In response to a question from the Panel asking why India considered that Japan bore the burden of 
demonstrating that the products at  issue were covered by the ITA, India responds that:  
India reiterates that Japan fails to clearly articulate the precise source of India's commitments 
under the contested sub -headings. For instance, as also noted previously, Japan argues that India 
has sta rted imposing "customs duties on the Products Concerned which are incompatible with the 
tariff bindings included in 2007 Schedule which reflects India's concessions under the ITA". In light 
of that statement by Japan, India maintains that the burden of pro of is on Japan to substantiate 
its claim and to prima facie demonstrate that the products at issue were covered by the ITA[], 
should it raise any arguments pertaining to the ITA[] in its future submissions.  
(India's response to Panel question No. 5, para.  20) 
273 India's comments on Japan's response to Panel question No. 59(b), para. 4.  
274 India's comments on Japan's response to Panel question No. 59(b), para. 4.  
275 India's comments on Japan's response to Panel question No. 59(b), para. 4.  
276 India's comments on Japan's response to Panel question No. 59(b), para. 4.  
277 See WT/Let/181; WT/Let/886; and WT/Let/1072.  
278 See WT/Let/181; WT/Let/886; and WT/Let/1072.  
279 1980 Decision, paras. 1 -3 and 5.  
280 See WT/Let/181; WT/Let/886; and WT/Let/1072.  
281 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 the 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 read to imply that 
India has been bound by three distinct WTO Schedules.  WT/DS584/R  
 
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  integral part of the covered agreements.282 The ITA , which is a distinct legal instrument from India's 
WTO Schedule,  is not.  
7.46.   To conclude, we understand that Japan's  claims in this dispute are exclusively under 
Article s II:1(a) and (b) of the GAT T 1994. Having reviewed the ITA, we understand that the 
undertakings contained therein were only operationalized 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.283 While we recognize that the ITA may have been 
relevant to India's decision to undertake certain WTO tariff commitments, we consider that those 
WTO legal obligations are distinct from the ITA. Moreover, it is th ose WTO tariff commitments, set 
forth in India's WTO Schedule, that are the source of India's legal obligations for the purposes of 
applying Article s II:1(a) and (b). In short, we consider that India's legal obligations, for purposes of 
assessing its compl iance with Article s II:1(a) and (b), are the tariff commitments set forth in India's 
WTO Schedule.284  
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".285 
According to India, those commitments "were negotiated and agreed to in the context of HS 1996 , 
and were then incorporated into the schedules of concessions of member cou ntries – including 
India."286 India considers that "[t]hose static commitments did not become elastic by virtue of their 
incorporation into concession schedules."287 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."288 India considers that, 
"[u]nder Article 31(4) of the Vienna Convention, those sub -headings would require to be interpret ed 
in accordance with the special meaning the parties intended them to have – by engaging with 
HS1996 and its explanatory notes, read in the context of ITA []."289 As a general matter, India 
considers that the ITA constitutes "interpretative context to India 's schedule of concessions".290  
7.48.   In support of its arguments regarding the static nature 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 head ing 8525, and was covered under Attachment A of 
the ITA). India submits that the product scope 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".291 India notes that this "limitation [was] also reflected in HS2002".292 
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."293  
7.49.   Also in support of its arguments regarding the static 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 Expans ion of Trade in Information 
 
282 See para. 7.9 above.  
283 We also recall that the ITA was not invoked in Japan's panel request.  
284 Regarding India's argument that Japan bears the burden 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), Japan must demonstrate that the products at issue fall within the scope of the ITA. Rather, Japan 
must demonstrate that the products at issue fall within the scope of relevant tariff commitments set forth in 
India's WTO Schedule.  
285 India's opening statement at the second meeting of the Panel, para. 48.   
286 India's opening statement at the second meeting of the Panel, para. 48.  
287 India's opening statement at the second meeting of the Panel, para. 48.  
288 India's opening statement at the second meeting of the Panel, para. 56. (emphasis original)  
289 India's opening statement at the second meeting of the  Panel, para. 56.  
290 India's second written submission, para. 38.  
291 India's opening statement at the second meeting of the Panel, para. 57. See also India's first written 
submission; response to Panel question No. 37, para. 17; and second written submission , para. 43.  
292 India's opening statement at the second meeting of the Panel, para. 57.  
293 India's opening statement at the second meeting of the Panel, para. 57.  WT/DS584/R  
 
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  Technology Products ( ITA Expansion ).294 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 the y modified their concessions in keeping with the ITA Expansion."295 
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 8517.61, 8517.62, 8517.70 - is a clear 
affirmation that those products are in addition to and  were beyond the scope of the ITA []".296 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, wherea s these Members continue to impose 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."297 
7.50.   Japan considers that the ITA and the ITA Expansion "have no legal relevance to the 
interpretation of India's Schedule".298 Japan notes that, while the panel in EC – IT Products "found 
that the ITA [] may serve as context within the meaning of Article 31(2)(b) of the Vienna Convention 
for interpreting tariff concessions, this finding was made in the specific context  of that case ".299 
Japan notes that in that dispute " the relevant Schedule at issue was based on the same version of 
the HS nomenclature as the one used by the ITA []" whereas " in the present case, India's Schedule 
is based on the HS 2007, while the ITA [] is based upon the HS 1996 ".300 Japan also observes that 
"the version of the European Communities' Schedule which was examined in EC – IT Products  
explicitly referred to the ITA [], which is not the case for India's Schedule at issue ".301 Japan therefore 
conside rs that the ITA "cannot serve as part of the context pursuant to Article 31(2)(b) of the Vienna 
Convention for the purpose of interpreting India's Schedule in this dispute".302 
7.51.   Japan further considers that " neither the ITA [] nor the ITA Expansion can be con templated 
as "supplementary means of interpretation" under Article 32 of the Vienna Convention , because the 
conditions for relying upon such supplementary means of interpretation are not met ."303 Japan 
argues that India has not " implied in any way that the terms of India's Schedule are ambiguous or 
obscure, or that their interpretation in accordance with Article 31 of the Vienna Convention leads to 
a result which is manifestly absurd or unreasonable ".304 Japan submits that "[t] herefore, there is no 
need to 'c onfirm the meaning resulting from the application of Article 31'" and " the requirements for 
recourse to supplementary means of interpretation are not satisfied in this case ".305 
 
294 Under ITA Expansion, the participants agreed 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 
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 understand that the participant s 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).  
295 India's opening statement at the second meeting of the Panel, para. 50.  
296 India's opening statement at the second meeting of the Panel, para. 52.  
297 India's opening statement at the second meeting of the Panel, para. 54.  
298 Japan's second written submissi on, para. 197.  
299 Japan's second written submission, para. 201 (referring to Panel Reports, EC – IT Products , 
para. 7.383). (emphasis original; fn omitted)  Japan argues that the panel in EC – IT Products found that the 
scope of tariff concessions is to be determined by interpreting the ordinary meaning of the actual terms of the 
relevant commitment, and according to the panel "there [was] no need to consider further the particular status 
of technology at the time of negotiating the concession in assessing t he scope of the concession". (Ibid. 
paras.  187-188 (quoting Panel Reports, EC – IT Products , para. 7.600)). Japan considers that that panel's 
findings indicate that the fact that products did not exist at the time the concessions were made is not relevant 
for the purposes of interpreting the scope of the concessions.  
300 Japan's second written submission, para. 201. See also Japan's response to Panel question No. 3, 
para. 11; and opening statement at the second meeting of the Panel, para. 26.  
301 Japan 's second written submission, para. 201. See also Japan's response to Panel question No. 4, 
para. 17.  
302 Japan's second written submission, para. 201. See also Japan's response to Panel question No. 3, 
paras. 10 -11. 
303 Japan's second written submission, para. 203.  
304 Japan's second written submission, para. 206.  
305 Japan's second written submission, para. 206 . See also Japan's opening statement at the second 
meeting of the Panel, para. 27.  WT/DS584/R  
 
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  7.52.   Finally, Japan argues that " India has also, in fact, made no argument as to wha t effect the 
ITA[] and the ITA Expansion should have upon the Panel's interpretation of the actual terms of 
India's Schedule ."306 Japan considers that, " when requested by the Panel to explain whether and 
how the ITA [] and the ITA Expansion are relevant for the purpose of interpreting India's Schedule, 
India did not provide an adequate answer to that question ", but " merely replied that it has no 
obligation to provide duty -free treatment to the Products Concerned under t he ITA []".307 Japan also 
submits that, contrary to what India argues, the text of the ITA does not indicate a "static product 
scope", and neither the statements of the WTO Members cited by India nor the ITA Expansion 
constitute "subsequent practice" to the ITA.308 Further, Japan reiterates that the ITA, including its 
attachments, are legally distinct from the concessions made by India in its WTO Schedule and 
therefore are irrelevant to the interpretation of that Schedule.309 
7.3.2.3.2   Main arguments of the third parties  
7.53.   Brazil states that "the task before the Panel concerns the interpretation of India 's Schedule in 
line with the objective of ensuring the predictability and security of the reciprocal and mutually 
agreed concessions that are the cornerstone of the WTO arch itecture."310 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".311 Brazil argues that, "[o]therwise, the security and predictability of the tariff 
concessions in the Schedules will be seriously undermined".312 
7.54.   Canada considers that "the scope of coverage of a concession is determined by an 
examination of the meaning of the terms contain ed in the commitments set out in a Member's 
Schedule".313 Canada considers that the ITA "may be considered as relevant context for the purposes 
of interpreting the meaning of these terms".314 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."315 Canada considers that "[t]he HS is updated to account for new products and 
Members' obli gations 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 coverage".316 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."317 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 commitm ents 
on the basis that a product incorporates, or has become, a new technology ".318 
7.55.   The European Union considers that the ITA could be regarded as interpretative context within 
the meaning of Article 31(2)(b) of the Vienna Convention, but submits that, whil e the ITA "certainly 
provides the historical background for the obligations undertaken by India … the relevance of ITA[] 
as context in interpreting the relevant legal texts at issue here … is very limited."319 The European 
Union highlights that in EC – IT Products the panel had relied on the ITA as context "in a situation 
where all the main parties considered Article 31(2) VCLT to be fulfilled and where the particular 
document to be interpreted included an explicit reference" to the ITA.320 
 
306 Japan's second written submission, para. 207.  
307 Japan's second written submission, para. 207.  
308 Japan's second written submission, paras. 209 and 215 -227.  
309 Japan's co mments on India's response to Panel question No. 61, para. 37.  
310 Brazil's third -party response to Panel question No. 2, para. 10.  
311 Brazil's third -party response to Panel question No. 6, para. 15.  
312 Brazil's third -party response to Panel question No. 6, p ara. 15.  
313 Canada's third -party response to Panel question No. 2, para. 4.  
314 Canada's third -party response to Panel question No. 2, para. 4.  
315 Canada's third -party response to Panel question No. 6, para. 1 0. 
316 Canada's third -party response to Panel questio n No. 6, para. 10.  
317 Canada's third -party response to Panel question No. 6, para. 13.  
318 Canada's third -party response to Panel question No. 6, para. 14.  
319 European Union's third -party response to Panel question No. 2, para. 15.  
320 European Union's third -party response to Panel question No. 2, para. 14. (emphasis original)  WT/DS584/R  
 
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  7.56.   Korea considers that the ITA "may be used as 'context' to interpret India 's tariff concessions 
at issue in this dispute".321 Korea submits  that "as a general matter, modifications to the scope of a 
Member's rights and obligations under certain schedule of concess ions can only be made by actually 
changing the schedule itself."322 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 concessio ns in a Member 's WTO Schedule as a matter of interpretation ."323 
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[]."324 
7.57.   Norway a rgues that "the obvious starting point … must be the commitments made in the 
schedules".325 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".326 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 e xpansion of 'new' products ".327 
7.58.   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".328 In Chi nese Taipei's view, "if tariff 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".329 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 achieve security and pre dictability".330 
7.59.   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."331 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 t reatment cannot be extended to all variants of the products."332 Türkiye considers 
that the Panel's "interpretation of concessions in ITA [] should not disrupt the balance which is 
negotiated by the parties".333 Türkiye shares India's view that the product scope of the ITA "has 
remained the same since 1997", and is "defined in accordance with the product coverage envisaged 
in HS1996 at that poi nt in time".334 Türkiye also shares India's view that new "'products which are 
a result of technological progress are not covered under the ITA []'".335 Türkiye considers that the 
complainant seek s "an overly broad or inclusive construction of ITA [] commitmen ts, damaging the 
balance established during the negotiation process of ITA []."336 Türkiye submits that "India has no 
obligation to extend concessions to products which were not included in the scope of an HS heading 
or sub -heading at the time ITA [] concessi ons were negotiated".337 
7.60.   The United States considers that "the Panel may consider the ITA [] as relevant context within 
the meaning of Article 31 of the Vienna Convention".338 The United States also considers that "[t]he 
tariff concessions in a WTO Member 's Schedule apply to all products – regardless of technological 
 
321 Korea's third -party response to Panel question No. 3, p. 1.  
322 Korea's third -party response to Panel question No. 7, p. 2.  
323 Korea's third -party response to Panel question No. 7, p. 2. (e mphasis original)  
324 Korea's third -party response to Panel question No. 10, p. 3.  
325 Norway's third -party submission, para. 7.  
326 Norway's third -party submission, para. 8.  
327 Norway's third -party submission, para. 9.  
328 Chinese Taipei's third -party response to Panel question No. 15, para. 1. (emphasis original)  
329 Chinese Taipei's third -party response to Panel question No. 15, para. 2.  
330 Chinese Taipei's third -party response to Panel question No. 15, para. 2.  
331 Türkiye's third -party response to Panel question No. 2, p. 2.  
332 Türkiye's third -party response to Panel question No. 2, p. 3. 
333 Türkiye's third -party response to Panel question No . 3, p. 3.  
334 Türkiye's third -party response to Panel question Nos. 4 -5, p. 4.  
335 Türkiye's third -party response to Panel question Nos. 8 -10, p. 8 (quoting India's first written 
submission, para. 28).  
336 Türkiye's third -party response to Panel question Nos. 8 -10, p. 9.  
337 Türkiye's third -party response to Panel question No. 15, p. 2.  
338 United States' third -party response to Panel question No. 3, para. 4.  WT/DS584/R  
 
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  development – that meet the terms of the concession, interpreted based on its ordinary meaning in 
context and in  light of the GATT 1994 's object and purpose".339 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 in corporates or constitutes a 
perceived new technology".340 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."341 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 []".342 
7.3.2.3.3   Panel's assessment  
7.61.   We understand that, in India's view, its commitments under the ITA are "st atic" and, 
therefore, India considers that its WTO tariff commitments exclude new products resulting from 
technological innovations that occurred after the ITA was concluded.343  
7.62.   We have addressed above the question of whether the ITA sets forth India's leg al obligations 
in this dispute and concluded that it does not. In order to assess Japan 's claims, and apply 
Article s II:1(a) and (b) of the GATT 1994, we will not look at the ITA, but rather at India's legal 
obligations 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.  
7.63.   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".344 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 th e 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 the ITA  does not s et 
forth those tariff commitments).  
7.64.    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, pur suant to Article 3.2 of the DSU.345 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 ordinary 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 tech nological 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.346  
 
339 United States' third -party response to Panel quest ion No. 6, para. 13.  
340 United States' third -party response to Panel question No. 6, para. 14.  
341 United States' third -party response to Panel question No. 8, para. 18.  
342 United States' third -party response to Panel question No. 9, para. 2 1. 
343 In India's vie w, 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).  
344 India's opening statement at the second meeting of the Panel, para. 48.  
345 See para. 7.9 above. See also Appellate Body Reports, EC – Computer Equipment , para. 84; 
EC – Export Subsidies on Sugar , para. 167; and Panel Reports, EC – Chicken Cuts , para. 7.87.  
346 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 
commitments of a WTO Member by interpreting the terms used  in the 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 recordin g' 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 continuin g obligations 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 the 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 coverage depending on the date of their adoption or the WT/DS584/R  
 
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  7.65.   We further recall that, w hen 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.347 However, the relevance of the HS depends on the sp ecific 
interpretative question at issue (including whether the relevant concessions were based on the 
HS).348 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 t he product scope of a tariff item in the 
HS nomenclature.349 This necessarily includes new  products that come into existence, for instance 
as a consequence of technological innovations, subsequent to a given HS nomenclature having been 
concluded. We agree w ith the parties on this point.350 
7.66.   Thus, for those Members whose WTO Schedules are based on the HS,  such as India351, where  
a product is classified under a particular HS heading or subheading of a Member's Schedule, that 
product would also fall within the sco pe 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.  
7.67.   From the foregoing, it i s clear that as a general rule the product scope of Members' tariff 
concessions evolves over time to capture products that  may come into existence as a result of 
technological developments. The only question that arises in this dispute is whether that gene ral 
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 purs uant to the ITA.  
7.68.   In our view, India's argument rests on two premises : (i) the product scope of Attachment A 
of the ITA is static, such that it "does not include technological advancements"352; and (ii) the ITA 
similarly limits the product scope of India's WTO Schedule.353 We note that it would only be necessary 
to interpret the ITA for purposes of assessing India's first premise  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 
 
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 w hether 
"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 th at 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 produ cts 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 descriptio n of "gramophone records" in Greece's Schedule . (Ibid. p. 2).  
347 See Appellate Body Reports, EC – Computer Equipment , para. 89; EC – Chicken Cuts , paras. 
195-197; and China – Auto Parts , para s. 146 and 149 . 
348  See e.g. Panel Reports, EC – IT Products , para.  7.443.  
349 India's response to Panel question No. 10, para. 29 ("[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 Schedule of Concessions of any given country (if unbound tariff lines are also 
included in the Schedule of Concessions)" (emphasis original)); Japan 's response to Panel question No. 67, 
para. 26 (" Japan agrees, and it is actually well -established, that all products are to be classified under a 
subheading in any edition of the HS nomenclature "). 
350 We observe that the General Rules for the Interpretatio n of the Harmonized System, in addition to 
setting out detailed rules for classification, set forth a residual interpretative rule that 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 JPN -60), Rule. 4).  
351 See para. 2.16 above.  
352 India's first written submission, subheading IV.A.  
353 India's opening statement at the second meeting of the Panel , para. 48.  WT/DS584/R  
 
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  that the product scope of the ITA is indeed static, the ITA limits the product scope of India's 
WTO Schedule.  
7.69.   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 the 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 th e 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.  
7.70.   In our view, India's  interpretation is at odds with the multilateral principles of reciprocity and 
mutual advantage ous arrangements  underpinning the multilateral trading system.354 To interpret 
the product scope 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.  
7.71.   We note that India has not pointed t o 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 products 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 "meet periodically" 
and modify the product scope of the ITA "in light of t echnological developments".355 In our view, the 
requirement that parties should meet periodically to review the product scope of the ITA suggests 
that the ITA participants anticipated expanding the scope of the ITA to include additional tariff items 
that we re 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 Members' 
tariff commitments as set forth in their WTO Schedules would b e excluded  from the coverage of 
Members' existing WTO commitments.  
7.72.   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 t o 
limit the scope of Attachment A to the HS1996 Nomenclature".356 Article 31 of the Vienna Convention 
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.  
 
354 See the third recital of the preamble to the WTO Agreement.  
355 India's first written submission, para. 84 (quoting ITA, Annex:  Modalities and Product Coverage, 
para. 3).  
356 India's second written submission, para. 51. 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 intend ed 
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 their incorporation into concession schedules, and that 
the ITA "was a sui -generis instrument with commitments over a limited scope of products and required those  
commi tments to reflect in the relevant tariff sub -headings of the schedule of concessions of parties." (India's 
opening statement at the second meeting of the Panel, para. 56 (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 i ts WTO Schedule are also subject to a 
special meaning intended by the parties, pursuant to Article 31(4) of the Vienna Convention. For the sake of 
comprehensiveness, we address this issue hereunder.  WT/DS584/R  
 
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  7.73.   In our view, the reference in this provision to "the parties" includes all parties to a treaty, and 
not some  of those parties.357 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 imports 
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 te rms (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.  
7.74.   For thes e 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 number 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.  
7.75.   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 prac tice of the participants in the 
ITA, and the product scope of the ITA Expansion. Regarding the content 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 t he future will be included in the product scope of the ITA []".358 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 c overage 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 additio nal products."359 Regarding the subsequent 
practice of the participants in the ITA, India argues that "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".360 Regarding 
the ITA Expansion, 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.361  
7.76.   We understand that India's arguments in this respect pertain to the respective 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 obligatio ns of all Members. As explained above, the 
interpretation advocated by India would essentially read identical tariff commitments of various WTO 
Members differently, depending on whether they were participants in the ITA and the 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.  
7.77.   Similarly, the statements and pronouncements referred to by India as relevant "subsequent 
practice" rela te to the ITA, and not to the content of India's WTO Schedule. If we were to take into 
consideration 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 i s 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 
 
357 The plain language of Article 31(4) refers to "the part ies" 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 could 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 treaty 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 "speci al meaning" to a term in that treaty. These two 
provisions should not be conflated. Moreover, the 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 tre aty. 
358 India's first written submission, para. 82.  
359 India's first written submission, para. 84 (quoting ITA, Annex, para. 3).  
360 India's second written submission, para. 62.  
361 See e.g. India's first written submission, paras. 122 -130; opening statement at the second meeting 
of the Panel, para. 50; and response to Panel question No.  39, para. 20.  WT/DS584/R  
 
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  refrain from taking any position – they do not concern India's WTO Schedule and necessarily exclude 
a considerable portion of the WTO Membership 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 WT O Members.  
7.78.   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 such an overlap of products.362 
We do not consider it necessary, for purposes of resolving this dispute, to enter into the question of 
which pro ducts 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).  
7.79.   Finally, we note India's argument that the ITA "qualifies as context to Schedule [s] of 
Concessions under Article  31(2)(b) of the Vienna Convention and is therefore relev ant for 
interpreting the tariff concessions at issue in this dispute".363 In our view, however, India is not 
relying 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 th e ITA. The application of Article s II:1(a) and (b) 
of the GATT 1994 entails the application of Members' obligations 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 specific 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.364  
7.80.   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 c over products that were not 
covered by the ITA. In our view, to the extent that a product is, on its face, 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 argu ments 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 
consider 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.  
7.81.   For the foregoing reasons, we consider it appropriate to assess the scope of India's WTO 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 in terpretation 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.365 
 
362 Document G/IT/SPEC/15 contains a compilation of "Proposed Additions to Product Coverage: 
Compilati on of Participants' Submissions", and notes that for certain proposed tariff items to be included in the 
ITA Expansion, "part of the tariff line is already covered in the ITA". (Proposed Additions to Product Coverage: 
Compilation of Participants' Submissio ns, G/IT/SPEC/15, p. 1). We note India's argument that this document 
"was issued during the negotiations under Paragraph 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. 50). 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 Expans ion". (Ibid.).  
363 India's response to Panel question No. 4, para. 17. 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 ta riff concessions ". (Panel Reports, 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).  
364 See para.  7.65 above.  
365 We note that 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 question, below. (See section 7.3.3.2.3.5  below).  WT/DS584/R  
 
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  7.3.2.4   Conclusion  
7.82.   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 the scope of India's WTO tariff commitments set forth in its W TO 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 in India's WTO Schedule (which are 
not static in nature). We therefore proceed to apply Article s 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 commitments 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.366  
7.3.3   Article 48 of the Vienna Convention  
7.3.3.1   Introduction  
7.83.   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".367 Since India did not 
indicate that it intended to undertake the transposition of its Schedule from the HS2002 to the 
HS2007, the WTO Secretariat prepared India's transposition and, on 8  November 20 13, 
communicated to India via email the draft files for the HS2007 transposition of India's Schedule.368 
Following receipt of the draft transposition files prepared by the WTO Secretariat, India provided 
comments on the draft files.369 The Secretariat then c ommunicated a revised file to India for 
approval.370 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.371 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 were certified.372   
7.84.   India submits that, at the time of the transposition of its WTO Schedule to the HS2007, it had 
under stood 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 
in an expansion of its tariff commitments from the ITA. India co ntends 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 ".373 India 
argues that Article 48 of t he 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 State cannot have freely concluded a treaty if at th e time of giving 
its consent it was under a misapprehension relating to the subject matter of the treaty".374 India 
considers that "the core issue before the Panel is whether the products at issue are entitled for 
exemption from customs duty as a result of informed and free consent of India, or a result of 
 
366 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 rele vant 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).  
367 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.  
368 Email from IDB, WTO, to India (8 November 2013),  (Exhibit IND -49).   
369 India did not provide comments or seek clarifications regarding the transposition of the tariff items at 
issue in this dispute. (Email from Market Access Intelligence Section , WTO, to India (12 February 2014), 
(Exhibit  IND-50)).  
370 India's response to P anel question No. 18, para. 57 -58. 
371 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India, 
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.  
372 Committee on Market Access, Rectification and Modificati on 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. 18, para. 58.  
373 India's first written submission, fn 81 t o para. 48.  
374 India's first written submission, para. 38.   WT/DS584/R  
 
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  technicalities invoked by" the complainant.375 India further submits that, although Article 48 would 
ordinarily lead to the invalidation of the entire treaty, 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.376 India submits that since the 
contested tariff items  are invalid, they are "rendered unbound".377  
7.85.   Japan argues that Article 48 of the Vienna Convention is not applicable in this dispute .378 
Japan also considers that the present circumstances fail to satisfy the substantive requirements of 
paragraphs 1 and 2 of Article 48. Specifically,  Japan argues tha t the alleged error does not relate to 
a "fact or situation" within the meaning of Article 48(1) . Japan 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 circumst ances were such as to put India on notice of a possible error, within the meaning 
of Article  48(2).379 Japan further considers that India has not demonstrated that the requirements 
of Articles 44 and 45 of the Vienna Convention are satisfied in the present proceedings.380  
7.86.   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.  
7.87.   A Commentary on the Vienna Convention 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 t he subject matter of the treaty".381 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 at 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".382  
7.88.   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 when the treaty was concluded, and (ii) formed an essential basis fo r 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".  
7.89.   We understand that the requirements of paragraphs 1 and 2 are cumulat ive – if any of the 
requirements of either paragraph are not satisfied, then a party's invocation of error under Article  48 
 
375 India's second written submission, para. 5.  
376 India's first written submission, paras. 69-73. 
377 India's first written submission, para. 74.   
378 Japan's second written submission, paras. 36 -67. 
379 Japan's second written submission, paras. 99 -144. 
380 Japan's second written submission, paras. 145 -168.  
381 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties: A Commentary  (2nd edn., Springer, 2018), (Exhibit IND -14), p. 879.  
382 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties: A Commentary  (2nd edn., Springer, 2018) (Exhibit IND -14), p p. 879-880. (emphasis omitted)  WT/DS584/R  
 
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  fails. Paragraph 3, which distinguishes Article 48 from Article 79 of the Vienna Convention, is not 
relevant in the present dispute.383  
7.90.   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. The applicability of Article 48 
is contested by the parties, as well as several of the third par ties.384 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 .385 
In our view, it wo uld 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 Articl e 48 is an applicable rule of law 
in WTO dispute settlement. We therefore defer addressing the question of applicability until after we 
have examined  the substantive requirements of Article  48. A similar approach has been taken by 
several previous panels.386  
7.91.   We also note the parties' disagreement concerning Article 45 of the Vienna Convention.387 
Article  45 concerns the loss of a right to invoke a ground for, inter alia , invalidating the operation of 
a treaty.388 The parties contest whether, even assuming tha t the requirements of Article 48 are 
satisfied, India has nonetheless lost its right to invoke 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 th e issue of Article 48's applicability, we consider that it would only be necessary to address 
 
383 Havin g 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 Convention, 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 agree 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 incompatible with each other." (See European Union's third -party 
response to Panel question No. 19 , para. 21).  
384 See e.g. India's response to Panel question No. 16, paras. 45 -51 and second written submission, 
paras. 16 -19; Japan's second written submission, paras. 36 -67; Chinese Taipei's third -party statement, 
paras.  11-13; European Union's third-party response to Panel question No. 11, para. 42; Korea's third -party 
response to Panel question No. 17, para s. 7-9 and third -party submission, para s. 11-12; and United States' 
third-party submission, para s. 42-43.  
385 See Panel Report, Korea – Procu rement , 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 co vered 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 
relations hip of the WTO Agreements to customary international law is broader than" indicated in Article 3.2 of 
the DSU. (Ibid.).  
386 For example, in Russia – Tariff Treatment , the panel noted the substantive requirements of Article 79 
of the Vienna Convention, and c oncluded that there was "no need … to examine whether Article 79 applie[d] in 
this dispute" since, in the circumstances, there was "no basis on which the alleged error in Russia's Schedule 
could be considered to have been corrected under either paragraph o f Article 79". (Panel Report, Russia – 
Tariff Treatment , para. 7.55). Similarly, in India – Autos , the panel considered that "the potential relevance of 
the notion of res judicata  to this case would only arise if its commonly understood conditions of appli cation 
were met on the facts". (Panel Report, India – Autos , para. 7.59). The panel elaborated that if it were to find 
that the factual circumstances 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 doctrine 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).  
387 See e.g. India's first wr itten submission, paras. 62 -68; Japan's second written submission, 
paras.  152-168.  
388 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 articles 46 to 50 or articles 60 and 62 if, after becoming 
aware of the facts: (a) it shall have ex pressly 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 operati on, as 
the case may be.  WT/DS584/R  
 
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  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 applic able in WTO dispute settlement.  
7.92.   We further observe the parties' disagreement regarding Article 44 of the Vienna 
Convention.389 We understand that under the structure and logic of the Vienna Convention, if the 
cumulative requirements of Articles 45 and 48 a re applicable and satisfied, then, pursuant to the 
terms of Article 44(2) of the Vienna Convention, this would invalidate the relevant State's consent 
to be bound by the entire treaty  – not specific aspects of that treaty.390 In the present case, the 
allege d 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.391 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 specif ic tariff items  of India's WTO Schedule would 
need to be invalidated.392 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 appl icability 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.  
7.93.   We therefore  to 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  
7.94.   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 certification, as a result of the complex nature of the HS2002 to HS2007 
transposition".393 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 
commitments beyond India's obligations under the ITA[]".394 India argues tha t this is "because … it 
never intended on joining the [ITA Expansion] and made several pronouncements regarding the 
same".395 India provides considerable argumentation seeking to demonstrate that its commitments 
as set forth in its certified WTO Schedule co ver products that are not covered by the ITA [].396 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 
meani ng of Article 48(1), because the word "situation" covers "the overall condition or circumstance 
prevailing at a particular time".397 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 
 
389 See e.g. India's first written submission, paras. 69 -74; Japan's second written submission, 
paras.  145-151.  
390 Article 44 of the Vienna Convention, titled "Separability of treaty provisions", sets out in its second 
paragraph the g eneral principle that "[a] ground for invalidating, terminating, withdrawing from or suspending 
the operation of a treaty recognized in the present Convention may be invoked only with respect to the whole 
treaty except as provided in the following paragrap hs or in article 60."  
391 See Article II:2 of the WTO Agreement.  
392 India's first written submission, para. 70. 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 to 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.  
393 India's first written submission, para. 40.  
394 India's first written submission, para. 46.   
395 India's first written submission, para. 46 (referring to WTO, 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). See a lso ibid. para. 42 and fn 70 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).  
396 India's first written submission, sec tion IV.  
397 India's response to Panel question No. 44, para. 28.   WT/DS584/R  
 
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  always be easy to draw'".398 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".399  
7.95.   Japan argues that there was no error in the transposition process, because the "Products 
Concerned  were already covered by the duty -free concessions in the certified Schedule of India 
based on the HS2002".400 Japan notes that "India is silent on the level of the tariff concessions that 
would have been afforded to the Products Concerned in its Schedule b ased on the HS2002", such 
that India has not shown that the scope of its tariff concessions changed during the transposition 
process.401 Japan submits that "the transposition of India's Schedule into the HS2007 cannot have 
been the source of any 'error' by India as to the scope of the commitments when it certified the 
Schedule based on the HS2007, because there has been no change in the scope of the concessions 
concerned".402 Japan further submits that an error of law is not a valid ground for invalidating a 
treaty pursuant to Article 48, as demonstrated by the fact that the language "fact or state of facts" 
in the draft Article 48 was revised to "fact or situation" to avoid the possibility that the French version 
could have been read as encompassing errors of  law.403 Japan considers that "[i] n the present case, 
India's alleged error clearly constitutes an error of law", since the alleged error concerns "the 
'material scope' of [India's] rights and obligations under its Schedule", and this error of law "cannot 
be used by India to invoke Article 48".404 Japan also considers that "the treaty as a whole to which 
India was giving its consent, and which would have been affected by the alleged error, was India's 
Schedule based on the HS2007".405 Japan submits that India "has never argued that it would not 
have agreed to the transposition of its Schedule based on the HS2007 'as a whole' had it been aware 
of the alleged mistaken understanding", and consequently India has failed to demonstrate that the 
alleged error formed a n essential basis of its consent to be bound by the treaty.406 Additionally, 
Japan submits that " the threshold for invoking an error vitiating consent is very high"407 and that 
the panel report in Korea – Procurement  is of "limited relevance", because Articl e 48 was invoked in 
that case in the context of a non -violation claim.408 
7.3.3.2.2   Main arguments of the third parties  
7.96.   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."409 Brazil refers 
to the complex nature 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".410 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".411  
 
398 India's response to Panel question No. 44, para. 29 (quoting M. E. Villiger, Commentary  on the 1969 
Vienna Convention on the Law of Treaties (Martinus Nijhoff, 2009), (Exhibit IND-13), p. 608).  
399 India's response to Panel question No. 44, para. 29.   
400 Japan's second written submission, para. 95.  
401 Japan's second written submission, para. 97.  
402 Japan's second written submission, para. 98. See also Japan's opening statement at the second 
meeting of the Panel, para. 13.  
403 Japan's second written submission, paras. 103 -105 (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), pp. 886 -887, para. 19).  See also Japan's response to Panel question No. 44, para. 71.  
404 Japan's second written submission, paras. 106 -107. See also Japan's opening statement at the 
second meeting of the Panel, para. 14.  
405 Japan's second written submission, para. 114.  
406 Japan's second written submission, para. 114.  
407 Japan's second written submission, para. 87 (referring to É. Wyler and R. Samson, "Article 48" in 
O. Corten and P. Klein (eds.), The Vienna Conventions on th e Law of Treaties  (Oxford University Press, 2011), 
(Exhibit IND -18), p. 1121, para. 8 ("invoking error as a means of invalidating a treaty has persistently failed to 
succeed"); and T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Con vention on the 
Law of Treaties , 2nd edn (Springer, 2018), (Exhibit IND -14), p. 880, para. 1 ("The main purpose of Art 48 is 
therefore to preserve the "reality of consent" while at 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" .)) 
408 Japan's second written submission, para. 88.  
409 Brazil's third -party response to Panel question No. 16, para. 4.  
410 Brazil's third -party response to Panel question No. 16, para. 7.  
411 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 WT/DS584/R  
 
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  7.97.   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 t o 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."412 Canada considers 
that "the 'fact or situation' allegedly assumed by India here … captures the product s at issue, the 
terms used to accurately describe them, and the context surrounding 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".413 Canada also questions  whether "purely formal or technical amendments to 
treaties, such as those which 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."414 
7.98.   The European Union argues that the error alleged by India " involves a misinterpretation by 
India of the terms of the treaty on which the complaining parties base their claims " and "[s] uch an 
error is an unmixed error of law and fall s squarely outside the scope of Article 48.1 of the VCLT. "415 
The European Union also argues that India " has not proven that it made the error which it alleges 
now", because " India was not wrong to assume that the transposition to HS2007 could not 'expand ' 
the scope of its pre -existing concessions ", but "[r] ather, India is wrong to assume that its pre -
existing concessions were limited to products which already existed in 1997 ".416 
7.99.    Korea argues that it is clear from India's statements that India's alleged err or 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.417 Korea argues that "the scope of a Member 's 
commitment cannot be 'the existence of a fact' " but rather "is a legal question which requires 
interpretation of the treaty provision".418  
7.100.   Chinese Taipei submits that "no error occurred, and India has not shown otherwise".419 
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 48.420 Chinese Taipei considers that "India's alleged mistaken view 
as to the 'material scope of the commitments' u nder 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".421 
7.101.   The United Kingdom agrees with Brazil that Article 48 establi shes a very high threshold for 
demonstrating that a party's consent to be bound by a treaty was in error.422 
7.102.   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'".423 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 []'".424  
 
1962, p. 6;  ICJ, Kasikili/Sedudu Island (Botswana v. Namibia) , 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  Sovereignty 
over Certain Frontier Land (Belgium v. Netherlands) , Judgment of 20 June 1959: ICJ Reports 1959, p. 209).  
412 Canada's third -party response to Panel question No. 16, para. 3.  
413 Canada's third -party res ponse to Panel question No. 16, para. 5.  
414 Canada's third -party response to Panel question No. 17, para. 7.  
415 European Union's third -party statement, para. 8.  
416 European Union's third -party statement, para. 6.  
417 Korea's third -party submission, para. 13.  
418 Korea's third -party response to Panel question No. 16, para. 6.  
419 Chinese Taipei's third -party response to Panel question No. 16, para. 8.  
420 Chinese Taipei's third -party response to Panel question No. 16, paras. 5 -9. 
421 Chinese Taipei's third -party resp onse to Panel question No. 16, para. 9.  
422 United Kingdom's third -party statement, para. 14.  
423 United States' third -party response to Panel question No. 16, para. 9.  
424 United States' third -party response to Panel question No. 16, para. 9 (quoting India's f irst written 
submission, para. 40).   WT/DS584/R  
 
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  7.3.3.2.3   Panel's assessment  
7.3.3.2.3.1   General considerations  
7.103.   Article 48(1) indicates that:  
A State may invoke an error in a treaty as in validating 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.  
7.104.   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.  
7.105.   It is uncontested that the burden of demonstrating that the requirements of Article 48(1) 
are satisfied in a given case rests on the party invoking Article 48.425 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.  
7.106.   Thus, in orde r 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 essential 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 undertakings. 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 beyond the scope of its ITA undertakings  
7.107.   The first element of the test under Ar ticle 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 time 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[]".426 We therefore proceed to assess whether India held this assumption . 
7.108.   India argues that the existence of its assumption is demonstrated by the fact that, a t 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 transposition 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".427 India refers to "several pronouncements" made by India 
indicating that Indi a did not intend to join the ITA Expansion.428 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 ."429  
7.109.   Japan does not take a position regarding India's assertion of its assumption at the time that 
the changes to its WTO Schedule were certified. Japan submits that there is no error regarding the 
 
425 Japan's response to Panel question No. 14, para. 37 ("[t]he burden of proof is on the defendant 
alleging the error"); India's response to Panel question No. 17, para. 55 ("the party invoking error bears the 
burden of p roving that the conditions under Article 48(1) have been met").  
426 India's first written submission, para. 11.  
427 India's first written submission, para. 47.  
428 India's first written submission, para. 46.  
429 India's first written submission, para. 47.  WT/DS584/R  
 
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  scope of the concessions at issue as the transposition di d not change the scope of India's pre -existing 
concessions for the products concerned.430 
7.110.   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 ta riff commitments would 
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 2012431: 
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 constructive ness, 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 targets in terms of manufacturing in th e 
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.432 
7.111.   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 trans position process or any indication of India's intentions with 
respect to that process.  
7.112.   India also refers to the following passages of the Minutes of the meeting held on 15 May 
2012433:  
1.5  The representative of India thanked the Chairman for his report o n 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 Comm ittee 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 won dered 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 Decis ion. 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 t hat 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 acces s barriers to these products. The applied tariffs were not 
so substantial as so to create those market access barriers and many companies were 
 
430 Japan's second written submission, paras. 93 -98.  
431 India's first written submission, fn 68 to para. 40, fn 70 to para. 42, fns 76 -78 to paras. 46 -47, fn 82 
to para. 49, fn 88 to para. 53, and fn 193 to para. 125.  
432 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.  
433 India's first written submission, fn 70 to para. 42.  WT/DS584/R  
 
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  managing to export their products. On the issue of classification divergences, he said 
that 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 complicated by HS96, HS2002 or HS2007 nomenclature changes as otherwise the 
participants would have actu ally solved the problem in the first place. He posed a 
question to the Secretariat regarding procedures for consultations concerning the 
decision of Paragraph 3 of the Annex to the Ministerial Declaration which gave the 
mandate to the CTG. He said that the re 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. Howev er, there were no procedures in place for 
subsequent reviews. Thus he wished to have some clarification from the Secretariat on 
this.434 
7.113.   Paragraph 1.5 of these Minutes appears to suggest that India did not share the feeling of 
some other Members that they h ad 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.  
7.114.   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 pro ducts, 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 actua lly solved the 
problem in the first place".435 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 th e transposition of its Schedule would not expand the scope 
of its WTO tariff commitments beyond the scope of its ITA undertakings.   
7.115.   We also note India's argument that its understanding and intentions with respect to its 
Schedule were clear from the fact t hat, 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 tha t, prior to 
2014, India had indeed been according duty -free treatment to almost all products at issue in this 
dispute .436 Moreover, we understand that the majority of products at issue in this dispute continued 
to receive duty -free treatment until as recent ly as 2017 (and 2018 in the case of some products).437  
7.116.   We do not wish to speculate on India's reasons for applying certain 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.438 To a certain extent, it would be circular if parties invoking Article  48 of the 
Vienna Convention could rely on their violation of treaty obligations t o 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 Sch edule were certified following the HS2007 transposition 
 
434 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.  
435 Committee of Participants on the Expansion of Trade in Information Technology Products, M inutes of 
the meeting held on 15 May 2012, G/IT/M/55, para. 3.11.  
436 Japan's first written submission, paras. 18, 33, 42, 49, 56, and 63. See also European Union's third -
party submission, paras. 67 -68; Chinese Taipei's third -party submission, para. 3.29 and  section 4.  
437 See Japan's first written submission, paras. 33, 42, 56, and 63. We recognize, in making these 
observations, that even if India's tariff commitments with respect to these products were "unbound" prior to 
the conclusion of the transposition e xercise, 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.  
438 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/DS584/R  
 
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  process, India assumed that the scope of its WTO tariff commitments would not be expanded beyond 
the scope of its ITA undertakings.  
7.117.   Notwithstanding our reservations regarding the evidence adduced by I ndia, 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 docu mentary 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 
and assertions in the course of these proceedings regarding the assumptions it held during th e 
transposition process.439  
7.118.   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 und ertakings, and that the scope of those tariff commitments would not be expanded through 
the HS2007 transposition process.440 
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)  
7.119.   The second element to be assessed in applying Article 48(1) is whether 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).  
7.120.   India argues that "the difficu lty in articulating a workable distinction between errors of law 
and errors of fact has been evident from as early as the drafting of the VCLT".441 According to India, 
"[t]hat a mistaken 'fact or situation' may have legal consequences (as indeed all contest ed errors 
would) does not make the error a legal error".442 India submits that its "factual or situational error 
was in relation 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".443 In India's view, "similar errors relating to technical entries have 
previously been considered as a potential ground for invalidity in international law."444 
7.121.   Japan submits that the l anguage "fact or state of facts" in the draft Article 48 was revised 
to "fact or situation" to avoid the possibility that the French version could have been read as 
encompassing errors of law.445 Japan considers that  "[a]s an integral part of the WTO Agreem ent, 
India's Schedule based on the HS 2007 is (part of) an international treaty and thus constitutes 
international law".446 Japan asserts that  "India's alleged error clearly constitutes an error of law", 
 
439 See e.g. India's first written submission, para. 46; and opening statement at the second meeting of 
the Panel, para. 26.  
440 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 ba sis 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 ab ove 
demonstrating that they made an assumption. It therefore follows, in our view, that taking India at its word 
with respect to this first step of the analysis does not alleviate India from its evidentiary burden under 
Article  48.  
441 India's response to P anel question No. 44, para. 30. See also India's second written submission, 
paras. 7 and 21 -23. 
442 India's second written submission, para. 23. See also India's response to Panel question No. 44, 
para. 30.  
443 India's second written submission, para. 23.  
444 India's response to Panel question No. 44, para. 30.  
445 Japan's second written submission, para. 105 (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), 
pp. 886 -887, para. 19).  
446 Japan's second written submission, para. 106.  WT/DS584/R  
 
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  since the alleged error concerns "the 'material scope ' of [India's] rights and obligations under its 
Schedule", and this error of law "cannot be used by India to invoke Article 48".447 
7.122.   We note that India does not dispute that purely legal errors (for instance, a mistaken 
interpretation of a legal obligation c ontained in a treaty) do not  qualify as errors relating to a fact or 
situation, within the meaning of Article 48(1).448 Indeed, we agree with the parties that pure legal 
error falls outside the scope of Article 48(1).449 At the same time, we recognize that a  Commentary 
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."450  
7.123.   We have concluded above that the ITA is not a covered agreement and does not set forth 
India's le gal 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 tariff commitments contained in its WTO Schedule  and ther efore 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 factual background to India having 
undertaken certain tariff com mitments 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 a nd law.  
7.124.   We recall that, for India to prevail under Article 48(1), it must prevail with respect to each 
element thereof. Therefore, in 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 a situation, within 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 
HS200 7 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  
7.125.   The third element to be assessed under Article 48(1) is whether the invoking party's 
assumptio n formed an essential basis of the State's consent to be bound by the treaty. 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 undertakin gs) constituted an 
essential basis for its consent to be bound by its HS2007 Schedule.  
7.126.   India argues that "it should be evident that India would not have certified the contested sub -
headings in its 2007 Schedule had it not been in error" and that "India ha d communicated to the 
wider WTO membership previously that it did not intend to expand its tariff commitments beyond 
those contained in the ITA[]".451 As evidence of these communications, India refers to the same 
evidence and arguments adduced to demonstrat e the existence of its assumption, specifically 
"several pronouncements" made by India indicating that India did not intend to join the 
ITA Expansion.452 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 
 
447 Japan's second written submission, paras. 106 -107. See also Japan's response to Panel question 
No. 44, para. 71; opening statement at the second meeting of the Panel, para. 14. 
448 See e.g. India's second written submission, paras. 22 -23; response to Panel question No. 44.  
449 The principle that 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 
error of law cannot in itself be regarded as 'an error relating to 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 tribunals consistently found that errors of law may not be invoked as invalidating 
consent to be bound by a treaty. (Ibid. p. 887 (referring to PC IJ, Legal Status of Eastern Greenland (Denmark 
v. Norway) , Judgment of 5 September 1933: PCIJ (ser. A/B) No. 53.; Petroleum Development (Trucial Coast) 
Ltd v Sheikh of Abu Dhabi  (1951) 18 ILR 144; and ICJ, Case concerning the  Temple of Preah Vihear (Cambod ia 
v. Thailand) , Preliminary Objections, Judgment of 26 May 1961: ICJ Reports 1961, p. 17, at p. 30)).  
450 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)  
451 India's second written submission, para. 25.  
452 India's first written submission, para. 46.  WT/DS584/R  
 
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  meetings as well as confirmed in practice via certain customs tariff levies."453 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."454 
7.127.   Japan considers that "the treaty as a whole to which India was giving its consent , and which 
would have been affected by the alleged error, was India's Schedule based on the HS2007".455 Japan 
argues that India "has never argued that it would not have agreed to the transposition of its Schedule 
based on the HS2007 'as a whole' had it bee n aware of the alleged mistaken understanding", and 
consequently India has failed to demonstrate that the alleged error formed an essential basis of its 
consent to be bound by the treaty.456 Japan further argues that, "because the error alleged by India 
does not exist, there was no error at the time when the treaty was concluded."457 
7.128.   We observe  that the procedures to be followed 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 established 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 ).458 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 A nnex 2 to th[e] Decision".459 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 ta ble 
between the HS2002 and the HS2007 nomenclatures shall be prepared by the Secretariat using 
these documents as the basis".460 We note that document s G/MA/W/67 and G/MA/W/76 are 
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.461  
7.129.   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 
Methodo logy" (hereafter "document G/MA/283").462 This document, in its introduction, explains that 
 
453 India's first written submission, para. 47.  
454 India's response to Panel question No. 64, para. 32.  
455 Japan's second written submission, para. 114.  
456 Japan's second written submission, para. 114.  
457 Japan's comments on India's response to Panel question No. 61, para. 42.  
458 See e.g. India's first wri tten submission, fn 32 to para. 21, fn 51 to para. 31, and fn 100 to para. 48; 
and Japan's opening statement at the first meeting of the Panel, para. 37 and fn 31 thereto.   
459 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 5.  
460 General Council Decision on HS2007 Transposition Procedures, WT/L/673, Annex 2, para. 7.  
461 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; 
and Committee 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 submissions to the Panel. It is, however, explicitly 
referenced in the General Council Decision on HS2007 Transposition Proced ures contained in document 
WT/L/673, which is referred to by the parties. (See e.g. India's first written submission, fn 80 to para. 48). 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, since 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 vie w, this approach accords with the approach taken by a 
previous panel in analogous circumstances. (See Panel Report, US – Countervailing and Anti -Dumping 
Measures (China) , para. 7.370). We further note that, even to the extent that this publicly available W TO 
document was not specifically identified in the evidence adduced by the parties, we do not consider that this 
would preclude us from taking 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.   
462 Committee on Market Access, Transposition of Members' CTS Files to the HS 2007 Nomenclature – 
Notes on Methodolog y, 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, until this document was raised by the Panel in a WT/DS584/R  
 
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  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 t he methodology that the Secretariat 
[would] follow in the HS 2007 transposition exercise".463 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 update d to account for "[f]urther amendments to the HS by 
the WCO".464  
7.130.   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.465 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 
HS2007.466 Since these procedures did not contemplate any kind of comparison or discussion of the 
ITA, we und erstand that if India, or indeed 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.  
7.131.   These documents indicate that, in the absence of any evidence to the contrary,  India's 
governing assumption 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 thes e 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 fo r the transposition of its Schedule to follow those multilaterally approved 
procedures, including the relevant correlation tables.467  
7.132.   It is in this context that we observe India's assertion that "the WTO Membership, at large, 
including Japan , could not hav e 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".468 As evidence of its "persistent exp ression 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.469 Specifically, India refers to the Minutes of 
two meetings of the Committee of Pa rticipants on the Expansion of Trade in Information Technology 
Products, held on 15 May 2012 and 1 November 2012.  
7.133.   We have reviewed the Minutes of these meetings in paragraphs 7.110  to 7.114  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 i ts WTO Schedule resulting from its transposition to the HS2007 Schedule 
was conditional on the product scope of that Schedule 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 e ffect".470 
 
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 -49), Attachment 3, CTS HS2007 
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 462 to para. 7.129  above).   
463 G/MA/283, paras. 1 -2.  
464 G/MA/283, Annex I, fn 1 on p. 24.  
465 See WT/L/673, Annex 2, paras. 1 -7. See also G/MA/W/67; G/MA/W/76; and G/MA/283.  
466 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)  
467 WT/L/673; G/MA/W/67; G/MA/W/76; and G/MA/283.  
468 India's second written submission, para. 31.  
469 India's response to Panel question No. 64, para. 31; first written submission, para. 46 ; and fn 193 to 
para. 125 .  
470 India's response to Panel question No. 64, para. 31.  WT/DS584/R  
 
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  7.134.   In our view, aspects of these Minutes indicate  that Members disagreed as to the tariff 
classification of products falling under the ITA .471 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 highlight 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 transpose d Schedule.  
7.135.   We also note that in these dispute settlement proceedings India has not sought to 
demonstrate that any technical  errors occurred during the transposition process.472 India does argue 
that the WTO Secretariat, in preparing 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 concession 
may have occurred due to t he complex technical nature of the transposition".473 We address that 
issue further below.474 For our present purposes, however, we note that India has not sought to 
demonstrate that the Secretariat incorrectly applied the correlation 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).  
7.136.   Thus, notwithstanding that the transposition was conducted  in accordance with the agreed -
upon correlation tables , India i s (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 i ts 
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 discussed in greater detail below, India had numerous opportunities 
to do so.475 Based on the evidence before us, we can see no point at which India made such a 
statement or otherwise expressed that intention.  
7.137.   We note that in support of its arguments under Article  48, India submits as evidence a Legal 
Opinion by Professor Waibel.476 In our view, Professor Waibel's Legal Opinion is inapposite insofar 
as it relates to the evidentiary question of whether India's ass umption  (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 essentia l basis for India's willingness to be bound by the changes to its Schedule. 
There is no indication in Professor Waibel's Legal Opinion that he has any knowledge regarding th is 
factual question.  
7.138.   We recognize Professor Waibel's assertion that "[t]here is no  indication, given India's 
persistently expressed desire to the contrary, that India wished to expand the coverage of its existing 
tariff bindings under the ITA []".477 As explained above, however, India's agreement on the 
correlation tables and procedures a nd 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 s hould 
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 ICT 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 .  
7.139.   To sum up, we recall that the burden of proof under Article 48(1) is on India. With respect 
to this element of Article 48(1), India has pro vided no persuasive evidence that its assumption 
constituted an essential basis of its consent to be bound  by the certified Schedule. To the contrary, 
 
471 This may be read from the statemen t 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 the Expansion of Trade in Information Technology Products, Minutes of t he meeting held on 
15 May 2012, G/IT/M/55, para. 3.11).  
472 See India's response to Panel question No. 64(b).  
473 India's first written submission, fn 81 to para. 48.  
474 See section 7.3.3.3.3.2  below.  
475 See para. 7.206  below.  
476 Prof. M. Waibel, Legal Opinion on Error, (Exhibit IND -76). 
477 Prof. M. Waibel, Legal Opinion on Error,  (Exhibit IND -76), para. 3 7.  WT/DS584/R  
 
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  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 assump tion (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.  
7.3.3.2.3.5   Whether India's assumption that its tariff commitmen ts would not be 
expanded beyond the scope of its ITA undertakings was in error  
7.140.   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 
commitments w as expanded beyond the scope of its ITA undertakings.  
7.141.   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  8517.12, 8517.61, 8 517.62, 
and 8517.70 of its WTO HS2007 Schedule were not covered by the ITA.478 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 -headin gs being 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 the ITA [])".479 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 tha t are specifically 
covered within the ITA [Expansion]".480  
7.142.   Japan argues that " India has not provided any evidence in support of its allegation that the 
scope of the tariff concessions regarding the Products Concerned changed when its Schedule was 
transpose d from the HS2002 to the HS2007 ", and "[g] iven that there has been no change in the 
scope of the concessions concerned, that transposition could not have been the source of any 'error' 
by India as to the scope of the commitments ".481 Japan argues that there  is no error in relation to 
the scope of India's commitments, because the transposition to the HS2007 constituted "a mere 
process of transposing from the previous version which did not change the scope of the pre -existing 
concessions of India".482 Japan con siders that the fact that India's concessions already covered the 
products at issue " is demonstrated by the correlation tables between the HS2002/HS1996 and the 
HS2007 which were prepared by the WTO Secretariat and circulated to the WTO Members. "483 
Moreove r, Japan considers that a document prepared by the WTO Secretariat at the request of the 
Chairman of the Committee of Participants on the Expansion of Trade in Information Technology 
Products, which was circulated to WTO Members, " clearly indicates that th e Products Concerned 
were included in the duty -free concessions in India's Schedule based on the HS2002 ".484 
7.143.   We recall that the ITA is not a covered agreement . Moreover, given the cumulative nature 
of the elements under Article 48(1) and our finding that In dia 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.  
7.144.   First, we emphasize that India's assertion of error concerns a purported expansion in the 
scope of its WTO tariff commitments as compared to the ITA. We recall that the HS 2007 transposition 
process did not take into account and did not purport to transpose Members ' ITA undertakings. 
Rather , the HS2007 transposition 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 
 
478 India's first written submission, paras. 49 and 75 -194. 
479 India's first written submission, para. 49.  
480 India's first written submission, para. 51.  
481 Japan's opening statement at the second meeting of the Panel, para. 13. See also Japan's second 
written submission, para. 95.  
482 Japan's opening statement at the first meeting of the Panel, para. 39.  
483 Japan's response to Panel question No. 44, para. 70 (referring to document JOB(07)/96 (25 June 
2007) ). 
484 Japan's second writt en submission, para. 96 (referring to document JOB(07)/96 (25 June 2007)).  WT/DS584/R  
 
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  occurred in the transposition of its Schedule to the HS2007.485 As noted above,  it is uncontested 
that the WTO Secretariat correctly followed the correlation tables communicated by the WCO, 
updated b y the WTO Secretariat, and approved by the General Council and the Committee on Market 
Access .486  
7.145.   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 tran sposition 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.487 In this respect, we have already concluded above that India is 
mistaken with respect to the re lationship between the ITA and its WTO Schedule.488 Specifically, we 
concluded that as a general rule the product scope of Members' tariff concessions contained in their 
WTO Schedules evolves over time to capture products that may come into existence as a r esult of 
technological developments, and that this general rule is not changed for certain WTO Members by 
virtue of their participation in the ITA.489 
7.146.   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.490 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.  
7.147.   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.491 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".492 India submits 
that such transmission apparatus were defined in the HS1996 Explanatory Notes as apparatus " which 
allowed the transmission of signals representing (1) speech, (2) messages, or (3) still pictures ".493 
India considers that "apparatus which could transmit signals representing videos or any other media 
(other than the three listed above) could not be included in the scope of sub -headi ng 8525.20 under 
HS1996 ".494 Regarding an amendment to the HS1996 Explanatory Notes adopted in 1998, India 
argues that "[s] ince LET/181 was certified on October 2, 1997, the product scope agreed upon by 
India is what is delineated by the Explanatory Notes a s on October 2, 1997" and "such amendment 
is subject to the main definition of Transmission Apparatus for Radio Telephony or Radio 
 
485 See India's responses to Panel question No. 64. Specifically, while India considers that certain 
changes were not flagged by the WTO Secretariat, as required under the relevant p rocedures, 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. 33). India also 
agrees that  no mistakes occurred in any prior transpositions of its WTO Schedule. (India's response to Panel 
question No.  59). 
486 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 
Market Access, or the transposition process as undert aken by the WTO Secretariat. (See also para. 7.206  
below).  
487 India's opening statement at the second meeting of the Panel, para. 26.  
488 See section 7.3.2.3  above.  
489 See para. 7.67 above.  
490 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 items  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. 131 -158 and 176 -194).  
491 India considers that "[t]he issue before the Panel is whether sub -heading 8525.20 [of the H S1996] – 
'Transmission apparatus incorporating reception apparatus' could cover telephones for cellular networks." 
(India's first written submission, para. 133).  
492 India's first written submission, para. 134. India highlights that tariff heading 8525 of th e 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 8525 (Exhibit IN D-6)). 
493 India's second written submission, para. 87.  
494 India's second written submission, para. 43.  WT/DS584/R  
 
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  Telegraphy".495 India submits that mobile phones capable of transmitting video were, in fact, 
classified under tariff item 8543.89 of the HS1996, which covers "other" products falling under 
heading 8543, which covers "electrical machines and apparatus, having individual f unctions, not 
specified or included elsewhere in this Chapter".496 
7.148.   Japan  argues that telephones for cellular networks or for other wireless networks were 
classified as "transmission apparatus 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.497 Japan considers that this is revealed by the ordinary meaning of India's WTO Schedule based 
on the HS1996.498 Japan also argues that the Explanatory Notes t o headings 8517 and 8525 of the 
HS1996 reveal that c ellular telephones or mobile phones, including car telephones, were classified 
under  heading 8525 .499  
7.149.   It is uncontested that, under the ITA, India undertook to provide duty -free treatment to 
"transmission  apparatus incorporating reception apparatus", falling under tariff item 8525.20 of the 
HS1996.500 India implemented this undertaking in its WTO HS1996 Schedule, such that a bound 
duty rate of 0% was inscribed with respect to "[t]ransmission apparatus incor porating reception 
apparatus" falling under tariff item 8525.20 of the HS1996.501 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 classifie d under tariff item 8525.20 of India's WTO HS1996 
Schedule.  
7.150.   We understand that mobile phones, on their face, are indeed transmission apparatus 
incorporating reception apparatus.502 Based on its ordinary meaning, we therefore see no reason to 
consider that t elephones for cellular networks or other wireless networks would not fall within the 
scope of tariff item 8525.20 of India's WTO HS1996 Schedule.  
7.151.   It is also uncontested that the HS1996 and its Explanatory Notes constitute relevant 
contextual aids for inte rpreting 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 transmission apparatus falling under tariff item 8525.20 as apparatus "which allowed t he 
transmission of signals representing (1) speech, (2) messages, or (3) still pictures" , such that 
"apparatus which could transmit signals representing videos or any other media (other than the 
three listed above) could not be included in the scope of sub -heading 8525.20 under HS1996".503 
 
495 India's opening statement at the second meeting of the Panel, para. 48.  
496 India's second written submission, para. 104; response to Panel question No. 6 3, para. 27.  
497 Japan's second written submission, para. 232.  
498 Japan considers that "'telephones for cellular networks' refer to devices which are used for the 
transmission of voice by means of a wireless system distributed over cells which are served by radio signal 
transmission machines" and that " 'telephones for other wireless networks ' refers to an unspecified group of 
devices which are used for the transmission of voice data on the basis of a wireless network which is distinct 
from a cellular network" . (Japan's second written submission, para. 233).  Japan notes that the term 
"transmission apparatus" in tariff item 8525.20 of India's WTO Schedule based on the HS1996 "refers to a 
piece of equipment which is designed for transmitting, that is transferring  a form of intelligence by means of a 
communication system". (Ibid. para. 234).  Japan further observes that the wording of heading 8525 in that 
Schedule refers to transmission apparatus for "radio -telephony", which is defined as "a two -way transmission 
of sounds by means of modulated radio waves, without interconnecting wires". (Ibid.  (referring to McGraw -Hill 
Dictionary of Scientific and Technical Terms (6th edn), definitions of "carrier", "carrier current" and 
"radiotelephony" (McGraw -Hill, 2002), (Exhibit JPN -68), p. 1740)).  
499 Japan's second written submission, paras. 236 -238 (referring to HS1996 Explanatory Notes to 
Headings 8517 and 8525, (Exhibit JPN -69), p. 1487a).  
500 See e.g. India's first written submission, para. 132.  
501 WT/Let/181.  
502 A mob ile 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 onl ine, definition 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 rece ived" (Cambridge 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)).  
503 India's second written submission, para. 43. WT/DS584/R  
 
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  India considers that because " [t]elephones for cellular networks can transmit signals representing 
data other than speech, messages or still pictures ", they fall outside the scope of heading 8525 of 
the HS1996.504 
7.152.   The parti es 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.  
7.153.   We further note that the HS1996 Explanatory Notes, as of June  1998, unambiguously 
indicate that cellular and mobile phones were in deed classified under tariff item 8525.20 of the 
HS1996.505 Regarding  India's argument that these Explanatory Notes are not relevant because they 
are based on an amendment that was adopted in 1998, and "the product scope agreed upon by 
India is what is deli neated by the Explanatory Notes as on October 2, 1997"506, 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 undertaken  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 an amendment of the Explanatory N otes from our consideration. As stated, t he 
HS1996 Explanatory Notes suggest  that tariff item 8525.20 of the HS1996 covered mobile phones.  
7.154.   We note that as an alternative to tariff item 8525.20, India submits that mobile phones were 
in fact classified unde r 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").507 Under the General Rules for th e 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 providing a more general description ."508 
Moreover, if goods cannot otherwise be c lassified, they shall be "classified under the heading 
appropriate to the goods to which they are most akin".509 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".   
7.155.   We therefore understand that India's WTO tariff commitments in its HS1996 Schedule with 
respect to "[t]ransmission apparatus incorporating 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.510 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]elephones for cellular netw orks or for other wireless 
networks".511 Thus, India's WTO  tariff commitment s with respect to telephones for cellular 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, were not affected by the changes to India's Schedule during the HS2002 transposition 
 
504 India's second written submission, para. 43.  
505 The HS1996 Expla natory Notes, as of June 1998, indicate that "[c]ellular telephones or mobile 
phones, including car telephones, are classified in heading 85.25" and that the group of apparatus constituting 
"transmission apparatus for radio -telephony or radio -telegraphy" i ncludes, inter alia , "[p]ortable radio -
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)". (HS1996 Explanatory Notes to Headings 8517 and 8525, (Exhibit JPN -69)). 
506 India's opening statement at the second meeting of the Panel, para. 58.  
507 India's second written submission, para. 104; response to Panel question No. 63, para. 27.  
508 See General Rules for the Interpretation of the Harmonized System, (Exhibit JPN -60), Rule 3(a).  
509 See General Rules for the Interpretation of the Harmonized System, (Exhibit JPN -60), Rule 4.  
510 WT/Let/886.  
511 See G/MA/283; and WT/Let/1072.  WT/DS584/R  
 
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  process, and following the HS2007 transposition exercise are presently set forth in tariff item 
8517.12 of India's HS2007 Schedule.512  
7.156.   To conclude, we recall that, in light of our findings with respect to the third element of 
Article  48(1), it is not necessar y for us to form a definitive conclusion on the fourth element. We 
nevertheless 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 expan d as 
compared to the ITA. To that end, we have observed, first, that India 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 Ind ia's argument of "error" in invoking Article 
48 relates to the scope of the 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.513 While we do not consider these find ings necessary to 
resolve the legal issues in this dispute, we nevertheless hope that they may be useful to the parties.  
7.3.3.2.3.6   Conclusion regarding Article 48(1)  
7.157.   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 scope 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, and consequently reject India's invocation of error under 
Article 48 of the Vienna Convention as a ground for invalidating aspects of its WTO Schedule.  
7.158.   Having come to this conclusion with respect to Article 48(1), it could suffice for us to conclude 
our analysis of Article 48 here.514 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  
7.159.    India submits that the burden of "proving the vitiating circumstances" described in 
Article  48(2) falls on the "party opposing the plea of error" (i.e. the complainant).515 In any event, 
India argues that its error "was in the context of a complex and technical transposition exercise 
undertaken by the WTO Secretariat" and that it "neither contributed actively to such an error nor 
was there a circumstance that put it on notice of such possible error".516 India su bmits 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."517 India further 
submits that Article 48(2) requires the party claiming error "to have employed all reasonable (rather 
 
512 We further unde rstand that, as a consequence of the foregoing interpretation, India's WTO tariff 
commitments with respect to products falling under tariff items 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 
items 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 of its WTO Schedule fall outside the scope 
of the ITA. (See India's first written submission, paras. 156, 184 , and 192).  
513 We also noted that this interpretation of India's tariff commitments with respect to tariff item 
8517.12 of Its WTO HS2007 Schedule implies that India's tariff commitments with re spect to products falling 
under tariff items 8517.61 and 8517.70 of its WTO HS2007 Schedule similarly have not expanded. (See fn 512 
to para. 7.155  above).   
514 See para. 7.88 above.  
515 India's second written submission, para. 26 (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).  
516 India's first written submission, para. 53.  
517 India's first written submission, para. 56.  See also India's second written submission, para. 30.  WT/DS584/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".518  
7.160.   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)".519 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."520 
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[]".521 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  
Japan  ought to have reconciled India's stance of intending no further commitments on ICT products 
vis-à-vis its certification of the 2007 Sched ule".522 
7.161.   Japan submits that the party alleging an error bears the burden of proof under Article 48, 
including Article 48(2).523 Japan further argues that " the applicable standard for a state's due 
diligence is that expected of qualified government officials" .524 Japan also considers that "  Article 48 
of the Vienna Convention does not require that the contribution to the error be 'substantial'".525 
Japan highlights that during the process "leading to the certification of the 2007 Schedule, India's 
representative s repeatedly examined the relevant documents and had ample opportunity to avoid 
or correct the alleged error".526 According to Japan, "India cannot be relieved of its obligations by 
hiding behind the allegedly 'complex' transposition process."527 Japan highlights that India " chose to 
seek assistance from the WTO Secretariat", with the consequence that "India assumed the 
responsibility to verify the accuracy of th[e] file".528 Japan notes that in accordance with the 
Transposition Procedure, "concord ance tables outlining the changes between the HS 2002 and the 
HS 2007" were provided by the WTO Secretariat to Members in January 2007, "well in advance of 
India's certification process in 2015" .529 Japan notes that India "failed to make any inquiries about  
or objections to the tariff lines at issue, even when it was requested to review the revised file 
containing those tariff lines".530 Japan therefore submits that "India, by its own negligent behavior 
 
518 India's first written submission, para. 52 (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).  (emp hasis omitted) See also India's second written 
submission, para. 29.  
519 India's second written submission, para. 31. 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 India'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 -76), para. 39). Professor Waibel states that the "WTO Secretariat carried 
out the t ransposition 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 that "[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) ).  
520 India's response to Panel question No. 18, para. 57 (referring to Email from IDB, WTO, to India 
(8 November 2013), (Exhibit IND -49), Attachment 3, CTS HS2007 Transposition Note XII – India).  
521 India' s first written submission, para. 58.  
522 India's first written submission, para. 60.  
523 Japan's response to panel question No. 48, para. 84; second written submission, para. 76; opening 
statement at the second meeting of the Panel, para. 16. Japan notes that  "India that has most of the relevant 
information and evidence to prove that the conditions of Article 48(2) of the Vienna Convention are met, and 
that it is difficult for Japan to access such information and evidence". (Japan's response to panel question 
No. 48, para. 86. See also Japan's second written submission, para. 85).  
524 Japan's second written submission, para. 124.  
525 Japan's opening statement at the second meeting of the Panel, para. 17.  
526 Japan's second written submission, para. 126. Japan states  that "[a] s a sovereign state engaging in 
international trade and concluding international treaties, India is bound by the actions of its competent 
representatives." (Ibid.) . 
527 Japan's second written submission, para. 126.  
528 Japan's second written submission, para. 128.  
529 Japan's second written submission, para. 131 (referring to General Council Decision on HS2007 
Transposition Procedures, WT/L/673 , para. 1; Canada's third -party submission, paras. 13 and 15).  
530 Japan's second written submission, para. 132.  WT/DS584/R  
 
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  and failure to properly verify its tariff commitments, c aused or at least contributed to the alleged 
error, assuming arguendo  that such error exists".531  
7.162.   Japan also argues that even if India did not contribute to the alleged error, "it is clear that 
India was put on notice of what would allegedly constitute its error".532 Specifically, Japan considers 
that "India had sufficient time and materials to carefully study the proposed transposition file, 
including all changes in India's concessions which would occur as a result of the transposition if any,  
and was aware of what it must do if it did not agree to have its updated Schedule certified."533 Japan 
also considers that the fact that the contested tariff items  were not flagged does not demonstrate 
that India was not on notice of the alleged error.534 Japan submits that "the fact that the contested 
sub-headings were not flagged indicates that there were no changes  in the scope of concessions" 
and, in any event, "India was informed of how the transposition process would be conducted", such 
that "India mus t have known of … the alleged error".535  
7.3.3.3.2   Main arguments of the third parties  
7.163.   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 Article 48 
establishes a very high threshold for demonstrating that the consent of a party to an agreement was 
made in error".536 
7.164.   Canada argues that "[u]pon review of the draft HS07 file, despite the available information, 
India did not inquire  further as to the scope of the concessions and thus, by its own conduct, arguably 
contributed to the alleged error regarding the scope of such concessions."537 Furthermore, according 
to Canada, "the availability of …[HS] 2007 concordance documentation may further suggest that the 
circumstances were such as to put India on notice as to a possible error in understanding the scope 
of the concessions".538 Canada considers that "[i]n the draft HS07 file prepared for India by the 
Secretariat, the tariff lines at i ssue in this case were not flagged by the Secretariat as possibly 
changing the scope of the concessions".539 Canada also considers that "[t]he  jurisprudence on Article 
48 further suggests that it is difficult to invoke Article 48 where qualified personnel o f a State review 
the documentation at issue".540 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".541 Canada also conside rs that the jurisprudence on Article 48 "suggests that 
there is a certain level of diligence that is required on the part of the State invoking the error in 
order to demonstrate that its conduct did not contribute to the error".542 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 Schedule and to make any relevant inquiries if something was 
uncertain or unclear."543 
7.165.   The European Union considers that India "had ample opportunity to review the drafts, to 
request clarifications and provide comments and, if necessary, to object to the transposition to 
 
531 Japan's second written submission, para. 133.  
532 Japan's second written submission, para. 135.  
533 Japan's second written submission, para. 137.  
534 Japan's second written sub mission, para. 138.  
535 Japan's second written submission, paras. 138 -139. (emphasis original)  
536 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 December 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 1959, p. 209). See also Brazil's third -party response to Panel question No. 17.  
537 Canada's third -party submission, para. 13.  
538 Canada's  third-party submission, para. 13.  
539 Canada's third -party submission, para. 15.  
540 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).  
541 Canada's third -party submission, para. 19.  
542 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 Repo rts 1962, p. 6  (Exhibit  IND-3), at 
p. 26).   
543 Canada's third -party submission, para. 18.  WT/DS584/R  
 
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  HS 2007 prepared by the WTO Secretariat", and by failing to do so "India contributed by its own 
conduct to the alleged error."544 The European Union further argues that "[i]t was clear from the 
terms of draft transposition prepared by the WTO Secretariat that the concessions for the HS 2007 
subheadings at issue in this dispute did cover 'new products'  which did not exist when the ITA[] was 
negotiated" and, moreover, "the findings made by the panel in the EC – IT Products case, as well as 
the views expressed by a large number of Members in that dispute, 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."545 The European Union thus considers that the error alleged by India is 
"clearly inexcusable according to Article 48.2 of the VCLT".546 
7.166.   Korea conten ds that "India appears to have contributed to the alleged error and was duly 
put on notice about it."547 According to Korea, "India had ample opportunity and access to 
appropriate redress mechanisms to avoid the alleged error and to fix it."548 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 them."549 Korea also notes that the 
transposition procedures "provided for a multila teral 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 review".550 In Korea's view, "India should not be entitled to shift responsibility fo r 
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 transposition 's effects despite 
knowing that it had the potential to change the scope of i ts concessions."551 
7.167.   The United Kingdom does not take a position on the application of Article 48(2) in this 
dispute, but  agrees with Brazil that Article 48 establishes a "very high threshold" for vitiating a 
party's consent to be bound by a treaty on the ba sis of an alleged error.552 
7.168.   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".553 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."554  
7.3.3.3.3   Panel's assessment  
7.3.3.3.3.1   General considerations  
7.169.   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.  
7.170.   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 t o 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 commitment s beyond the scope 
of its ITA undertakings ; and (ii) such an expansion occurred.  
 
544 European Union's third -party statement, para. 10.  
545 European Union's third -party statement, para. 11.  
546 European Union's third -party statement, para. 9.  
547 Korea's third -party submission, para. 14.   
548 Korea's third -party submission, para. 1 5. 
549 Korea's third -party submission, para. 15.  
550 Korea's third -party submission, paras. 16 -17. 
551 Korea's third -party submission, para. 19.  
552 United Kingdom's third -party statement, para. 14.  
553 United States' third -party response to Panel question No. 16, para. 8.  
554 United States' third -party response t o Panel question No. 16, para. 8.  WT/DS584/R  
 
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  7.171.   The question before us is whether India contributed by its own conduct to that error and/or 
the circumstances were such as to put India on notice of a possible error. The part ies have expressed 
differing opinions on the burden of proof under Article 48(2). Japan considers that India, as the party 
invoking Article 48, must demonstrate that it did not contribute to the error and the circumstances 
were not such as to put India on notice of a possible error.555 India considers that the burden is on 
Japan, as the party o bjecting 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.556 In our view, there is ample information before us (in the form 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 evid ence of the parties to be in 
equipoise . We therefore do not consider it necessary to resolve the question of which party bears 
the burden of proof under Article 48.557  
7.172.   We proceed by assessing in turn whether: (i) the circumstances were such as to put India 
on notice of a possibl e 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 circumstance s were such as to put India on notice of a possible 
expansion of its WTO tariff commitments from its ITA undertakings  
7.173.   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 alle ged 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.  
7.174.   We recall that the evidence adduced by India in this dispute indicates that in 2012, three  
years prior to the certification 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 within the sco pe of the ITA.558 Specifically, 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 products and had not been resolved for the past 15 years."559 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 parti cipants would have 
actually solved the problem in the first place."560 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 transpositio n process) could have substantial implications for 
those classification differences.  
7.175.   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, updat ed by the 
WTO Secretariat, and agreed upon by WTO Members.561 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 concessions could potentially  change 
through th e transposition process.  
7.176.   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 
 
555 Japan's second written submission, paras. 76 -82.  
556 India's second written submission, para. 26 (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).  
557 See e.g. Panel Report, India – Solar Cells , fn 269 to para. 7.104.  
558 See para. 7.114  above.  
559 Committee of Pa rticipants 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. 42 and fn 70 thereto).  
560 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.  
561 See paras. 7.128 -7.130  above.  WT/DS584/R  
 
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  unchanged".562 The General Council Decision f urther 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."563 The General Council Decision 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.564 Specifically, paragraph  15 of the General Council Decision states that 
"[w]her e the scope of a concession has been modified  as a result of the transposition in a way that 
impairs the value of the concession, GATT Article XXVIII consultations and renegotiations shall be 
entered into by the Member concerned."565  
7.177.   Thus, in our view, Ind ia 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, notwithstanding that this 
was to be avoided "to the extent possible".  
7.178.   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 tran sposition process 
resulted in changes to the scope of its concessions".566 India argues, however, that "in the present 
instance, the role of the WTO Secretariat is nevertheless also relevant to the extent it was an active 
participant in the transposition pr ocess."567 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" .568 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 transpositions which changed the 
scope of India's concessions – were required to be adequately flagged according to the procedure 
for transposition".569  
7.179.   We observe that India, referring to Professor Waibel 's Legal Opinion,  assert s that because 
the WTO Secretariat conducted the transposition of India's WTO Schedule on behalf of India, if t here 
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 Decision  on HS2007 
Transposition Procedures , however, indicates not that the WTO Secr etariat 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 ".570 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 conclude 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 the extent that the WTO 
Secretariat faithfully followed the correlation tables ap proved by the General Council and the 
 
562 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  
563 General Council Decision on HS2007 Transp osition Procedures, WT/L/673, para. 4.  
564 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  
565 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 15. (emphasis 
added)  
566 India's response to Panel questio n No. 60(b), para. 14.  We note India's argument, regarding 
paragraph 15 of the General Council Decision on HS2007 Transposition Procedures, 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 Dictionary online, definition of "impair" 
https://dictionary.cambridge.org/dictionary/english/impair (accessed 22 Ma y 2022),  (Exhibit IND -83)). We do 
not consider it necessary to take a position on whether  paragraph 15 was applicable to India. Rather, we 
simply note that the existence of paragraph 15 (along with paragraph 4) put India on notice of the possibility  
that t he transposition process could result in a change to the value of the tariff concessions.  
567 India's response to Panel question No. 60(b), para. 14.  
568 India's response to Panel question No. 60(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on 
Error,  (Exhibit IND -76), para. 39).  
569 India's response to Panel question No. 52, para. 49.  
570 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  WT/DS584/R  
 
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  Committee on Market Access, this, it seemed, would substantially mitigate against the possibility 
that there would be any disagreement as to whether the scope of any Member's concessions changed 
through the transpositi on 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, it would seem to follow that if the Secretariat followed those correlation table s (and it is 
uncontested that they did so), then there would have been no change in the scope of Members' 
concessions.  
7.180.   Nevertheless, we recognize that the General Council Decision  on HS2007 Transposition 
Procedures  acknowledged that such a possibility cou ld 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 concession may have occurred due to the complex technical nature of the 
transposi tion.571 
7.181.   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.572 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 (iv)  "document G/MA/283 describing in detail the methodology 
used by the Secretariat for th[e] exercise".573 Attachment 3 to that email, containing the 
Secretariat's Transposition Note for India's Schedule, also refers to document G/MA/283. 
Specifically, that T ransposition 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."574 
7.182.   Document G/MA/283, titled "Transpos ition 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 intend[ed] t o 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".575  
7.183.   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 coverage of one or more HS  subheadings).576 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 relatio nships, 
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 subheading; or (iv) more com plex cases, involving both splitting 
and merging of whole or part of different HS2002 subheadings.577 With respect to the last of these 
categories, namely "complex changes", document G/MA/283 explains that:  
A complex change includes both splitting and merg ing 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 for this reason that manu al 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 these concessions in the n ew HS 2007 nomenclature, complicated coding 
 
571 General Council Decision on HS2007 Transposition Procedures, WT/L/673 , para. 4.  
572 Email from IDB, WTO, to India (8 November 2013),  (Exhibit IND -49).   
573 Email from IDB, WTO, to India (8 November 2013),  (Exhibit IND -49), p. 1.  
574 Email from IDB, WTO, to India (8 November 2013),  (Exhibit IND -49), Attachment 3, CTS HS2007 
Transposition Note XII - India, p. 1.  
575 G/MA/283, paras. 1 -2.  
576 G/MA/283, para. 1.2.  
577 G/MA/283, para. 1.5.  WT/DS584/R  
 
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  structures and descriptions need to be introduced. And the situation could be even more 
complicated if national breakouts are involved.578 
7.184.   Document G/MA/283 elaborates that "[t]he categorization for each individua l correlation is 
indicated in Annex I".579 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 tariff items ), the "category" of the correlation group, and any remar ks in the WCO's 
concordance table.  
7.185.   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/283.580 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 "complex" 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 been expanded and the 
transposition of heading 85.25 entails the t ransfer of certain products to heading 85.17".581 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 communicated to the WTO by the WCO.582 
7.186.   From the foregoing, we wish to h ighlight 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 document 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 o ne 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 importance to the transposition process.  
7.187.   Second, regarding the conte nts 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 as 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 tha t 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 former ly 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 concession s, to the extent 
that the bound duty rates 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 Sche dule. 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 of the complex change s to those tariff 
items .  
7.188.   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 expansion in scope due to a complex technical transposition".583 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 changes 
 
578 G/MA/283, para. 2.10.  
579 G/MA/283, para. 1.6.  
580 See para. 7.129  above.  
581 G/MA/283, Annex I, entries 299 -300, p. 41.  
582 G/MA/W/76, p. 30.  
583 India's response to Panel question No. 60(a), para. 8.  WT/DS584/R  
 
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  being effected d ue to the increased product complexity of the ITA [] product coverage via the 
contested sub -headings".584  
7.189.   We recall that the General Council Decision on HS2007 Transposition Procedures did not 
require the WTO Secretariat to determine whether 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 
transposition ".585 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 identif y to Members that 
the changes to these tariff items  may have implicated the scope of concessions under those tariff 
items .  
7.190.   We also note India's argument that the Secretariat's Transposition Note contained in its 
email to India "described certain complex c hanges 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".586 In India's view, the Secretariat's 
Transposition N ote was an "exhaustive document in relation to entries that were sought to be 'clearly 
flagged' for the exercise of transposition".587  
7.191.   In this respect, we emphasize that document G/MA/283 is itself explicitly referenced in that 
same Transposition 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 transpos ition 
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 an d subheadings w as expanded 
through the transposition process, including heading 85.17.588 The fact that these possible changes 
of scope, all of which related to explicitly complex changes, were comprehensively flagged in 
document G/MA/283 means that India i s incorrect that the only complex changes flagged by the 
Secretariat were those identified in the Secretariat's Transposition Note.  
7.192.   Moreover, we note that the specific section of the Secretariat's Transposition Note that, in 
India's view, contains this al legedly "exhaustive"589 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".590 Under this subheading, "Additional Technical 
Issues", the Transposition Note identifies certain issues pertaining to: (i)  "AG – non-AG breakdown"; 
and (ii) "Simplified correlations".591 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 simplificati on of some correlations as described in detail in Annex I of 
 
584 India's response to Panel question No. 60(a), para. 8.  
585 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  (emphasis added)  
586 India's response to Panel question No. 60(a), para. 10.  
587 India's response to Panel question No. 60(a), para. 10.  
588 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 applianc es 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 appar atus 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).  
589 India's response to Panel question No. 60(a), para. 10.  
590 Email from IDB, WTO, to Ind ia (8 November 2013),  (Exhibit IND -49), Attachment 3, CTS HS2007 
Transposition Note XII - India), pp. 1 -3. 
591 Email from IDB, WTO, to India (8 November 2013),  (Exhibit IND -49), Attachment 3, CTS HS2007 
Transposition Note XII - India), p. 1. The technical is sues 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.)  WT/DS584/R  
 
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  G/MA/283. If a Member intends to make use of the standard correlation table or take other 
approaches, it would need to inform the Secretariat."592 The Transposition Note further states that:  
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 u sed for the duty of the new HS2007 subheading. The 
binding coverage was expanded if the subheading is partially bound, that is the new 
HS2007 subheading is fully bound.  
7.193.   It is not clear to us why India interpreted this paragraph as setting forth an exhausti ve list 
of tariff items  whose scope may have changed due to complex changes occurring during the 
transposition process. Notwithstanding that this paragraph of the Transposition Note does not 
purport to do so, a cursory review of document G/MA/283 would hav e 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 specific 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.  
7.194.   Thus, with respect to w hether 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 r equired to 
flag any tariff item for which a change in the scope of a concession "may have occurred " due to the 
complex technical nature of the transposition593; and (ii) through document G/MA/283 (and the 
numerous references to this document in its communic ation 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.594  
 
592 Email from IDB, WTO, to India (8 N ovember 2013),  (Exhibit IND -49), 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 order to avoid excessively complex Schedules which would un dermine 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 Secretariat was a pure 
technical transposition without alter ing any concessions for these subheadings, the result was 
complex coding structures, and sometimes very complex technical descriptions, which had to be 
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 
concessions resulting from the transposition. On the other han d, 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 difficulties 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, wit h 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 stru cture 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)  
593 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  (emphasis added)  
594 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  WT/DS584/R  
 
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  7.195.   We recognize that both parties to this dispute assert that the WTO Secretariat did not flag 
the relevant tariff items at issue.595 We have addressed India's arguments above. As to Japan , we 
note Japan's view that "in the case the contested subheadings were not flagged"596, that would 
indicate that there was no change in the scope of the tariff concessions. Japan'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 
required to flag those tariff items with respect to which a c hange in product scope may have occurred  
due to the complex nature of the transposition .597 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".598 Thus, pursuant to  the General Council Decision on HS2007 Transpositi on Procedures, 
the WTO 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 
Japan's arguments do not imply otherwise.  
7.196.   From the 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 undertakings. 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.  
7.197.   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."599 As 
support for this  interpretation, 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 Fronti er 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'".600 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".601 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".602 
7.198.   We note t hat 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 mu st have been aware of the error.  
 
595 India's second written submission, para. 31; Japan's second written submission, para. 138.  
596 Japan's comments on India's response to Panel question No. 60(a), para. 10.  
597 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  
598 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 15.  
599 India's re sponse to Panel question No. 60(a), para. 11. See also India's second written submission, 
para. 30.  
600 India's second written submission, para. 30 (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), 
at pp. 225 -227).  
601 India's second written submission, para. 30 (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).  
602 India's response to Panel question No. 19, para. 64. In response, Japan refers to Case concerning 
the Temple of Preah Vihear (Cambodia v. Thailand)  as an example which demonstrates that the standards for 
examining the fulfilmen t of conditions under Article 48(2) have become increasingly strict. (Japan's second 
written submission, para. 121).  WT/DS584/R  
 
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  7.199.   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 pa rty should fail to 
notice the error ".603 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.  
7.200.   In our view, Article 48(2) is clear on its face. Contrary to I ndia'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 
possible error", we consider that Article 48(2) merely requires that the State was on notice of the 
possibility that such an error could occur.  
7.201.   Applying that legal standar d 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 expanded 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 the circumstances of the HS2007 transpo sition 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. 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 Schedule, then India was also necessarily on notice that its WTO tariff 
commitme nts 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 meanin g of Article  48(2).  
7.202.   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 error. Nevertheless, we consider it useful  in the circumstances of this disput e 
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  
7.203.   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.  
7.204.   We recall that, 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 identify any 
differences in the product scope of the ITA as compared to the produc t 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' transpositi ons 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.  
7.205.   We also note that In dia 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 did not extend to new products 
resulting from technological advances that did no t exist at the time that India joined the ITA.  
 
603 India's first written submission, para. 56. (emphasis added)  WT/DS584/R  
 
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  7.206.   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 S ecretariat in 2013. India could further have raised objections or made comments during the 
multilateral review session held in April 2015. Notwithstanding these three specific opportunities set 
forth in the transposition procedures, India, on its own initi ative, 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 committees) 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.   
7.207.   Additionally, we recall that India itself was aware of Members' differences of opinion with 
respect to product classification under the ITA.604 Indeed, India was also on notice of the pos sibility 
that such differences of opinion with respect to product classification could have implications for the 
HS2007 transposition process.605 To the extent that India remained silent on such issues in the 
context of the transposition exercise, WTO Membe rs and the WTO Secretariat could only assume 
that India was satisfied that the transposition exercise would follow the multilaterally approved 
correlation tables.  
7.208.   In our view, if 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. By failing to raise its 
concerns, and by then agreeing to certify the changes t o 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 relevant correlation tables that unambiguously extended 
India's tariff concessio ns 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.  
7.209.   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 relationship 
between the ITA and its HS2007 Schedule. India did not do so. In our a nalysis 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 "essential basis" for its consent to be bound.606 For the 
purposes of applying Arti cle 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.  
7.210.   We also highlight 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 req uired the Members 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 off icials or government 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 commi tments 
is not a "minor and excusable"607 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 corre lation tables 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 . 
 
604 See para. 7.114  above.  
605 We recall that in the Committee of Participants on the Expansion of Trade in Information Technology 
Products, 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 complicated by HS96, HS2002 or HS2007 nomenclature changes as 
otherwise the participants would have actual ly 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).  
606 See para. 7.157  above.  
607 Prof. M. Waibel, Legal Opinion on Error  (Exhibit IND -76), para. 39.  WT/DS584/R  
 
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  7.211.   We note that I ndia 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 
India, and which was included  in the bundle of documents transmitted by the Secretariat to India 
with the draft transpos ition files.608 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).  
7.212.   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.   
7.213.   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)  
7.214.   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  
7.215.   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.  
7.216.   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.  
 
608 India's only ground for arguing that the Secretariat did not follow the transposition procedures 
correctly is that "the co ntested tariff items were not adequately flagged". (India's response to Panel question 
No. 52, para s. 49 and 51. See also India's response to Panel question No. 64, para. 33 ). We have addressed 
that argument and dismissed it. In our view, the Secretariat followed the agreed -upon transposition 
procedures, including with respect to flagging possible changes of product scope.  WT/DS584/R  
 
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  7.3.4   India's rectification request under the 1980 Decision  
7.3.4.1   Introduction  
7.217.   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".609 India stated that the supposed errors occurred while 
transposing its HS2002 Sched ule to its HS2007 Schedule.610 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."611  
7.218.   Several WTO Members, including Japan,  objected to India's draft rectification.612 Japan took 
the view that the proposed modifications "would alter the scope of India's concessions … [and] could 
not be considered to be purely formal in nature."613 
7.219.   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.614 According to India, the HS2007 Schedule is to be read in light of the 
originall y negotiated concessions  such that  products that "have never been negotiated upon remain 
outside the scope of the 2007 Schedule."615 India requests us to "recognize and declare that the 
Draft Rectification was of a purely formal character and Japan's objections on the same were 
unfounded."616 Specifically, India requests us to:  
[A]ssess the objection raised by Japan. If the Panel were t o 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 Japan 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 Japan's action impeded India's 
right to rectify its Schedule under the 1980 [Decision].617 
7.220.   India clarifies that it does not seek the certification of the draft rectification by the Panel 
through the dispute settlement mechanism.618 
7.3.4.2   Main arguments of the parties  
7.221.   India argues that Japan "acted beyond the prescriptions of Paragraph 3 of the 1980 Decision 
by raising an objection unfounded in law", and that "Jap an's objections were an impediment to 
India's right to make a formal rectification to its Schedule of Concessions under the 
1980 [Decision]" .619 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 Contracting Parties to the GATT 1947" within 
the meaning of paragraph 1(b)(iv) of the GATT 1994.620 Therefore, India posits that the Pan el has 
authority to interpret the draft rectification and clarify the rights and obligations of the Members 
 
609 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND -75), p. 1.  
610 India's rectification request, G/MA/TAR/RS/572,  (Exhibit IND -75), p. 1.  
611 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND -75), p. 1.  
612 Letter from Japan to India (9 November 2018), (Exhibit JPN -4); Council for Trade in Goods, Minutes 
of the meeting held on 12 and 13 November 2018, G/C/M/13 3, para. 18.13.  
613 Council for Trade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, 
para. 18.13. See also Letter from the Permanent Mission of Japan titled "Rectification and Modification of 
Schedule (India's WTO Schedule XII)" , (Exhibit JPN -4). 
614 India's first written submission, para. 10.  
615 India's first written submission, para. 36.  See also India's response to Panel question No. 15, fn 44 
to para. 36.  
616 India's first written submission, para. 36.  
617 India's response to Panel question No. 49, para. 43. See also India's second written submission, 
para. 122. 
618 India's second written submission, para. 123.  
619 India's response to Panel question No. 49, para. 39 . See also India's  second written submission, 
para. 116.  
620 India's respon se to Panel question No. 49, paras. 40 -41; second written submission, paras. 117 -118 
(referring to Panel Report, US – FSC, para. 7.63).  WT/DS584/R  
 
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  under it pursuant to Article 3.2 of the DSU.621 India adds that Article 11 of the DSU obliges the Panel 
to "objectively assess the facts of the dispu te and examine the conformity of Members' actions with 
covered agreements."622 India also submits that the Panel has an obligation to assess "if the 
objection raised by Japan is in good faith or if it is merely an instrument to force India to grant 
concessi ons on products, which it never agreed to."623 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 cle arly in error and that such concessions 
were capable of rectification via the 1980 [Decision]."624 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."625 
7.222.   For its part, Japan submits that there is n o legal basis, under the DSU, for the Panel to 
"recognize and declare that the Draft Rectification was of a purely formal character" and that Japan's 
objections on the same were unfounded.626 Japan submits that such request is outside the Panel's 
terms of r eference in the present dispute, because Japan has not referred to the Draft Rectification 
or the 1980 Decision in its panel request.627 Japan also argues that India's Draft Rectification and 
the 1980 Decision are not "covered agreements" within the meaning  of Article 1.1 of the DSU, and 
therefore the Panel has no authority under its terms of reference to make any findings with respect 
to these two documents.628 Japan also submits that there is "no absolute right for a WTO Member 
to have a proposed rectificat ion automatically accepted and no corresponding obligation of other 
WTO Members to accept that rectification request", rather, rectification requests are subject to 
multilateral review under the 1980 Decision.629 For Japan, the 1980 Decision "only establish [es] the 
procedures  for modification and rectification of the Schedules."630 Japan argues that "if there is a 
disagreement between WTO Members as to whether the requested changes to a Schedule 'alter the 
scope of a concession' and affect the rights and obli gations of other WTO Members, the WTO  Member 
requesting to change its Schedule needs to follow the procedure set out in Article XXVIII of the GATT 
1994 in order to effectuate that change. It is therefore not for the Panel to rule on the nature of a 
rectifi cation request or of the objections submitted by WTO Members on that request."631 Japan also 
submits that, given that other WTO Members which are not parties to this and the parallel disputes 
raised objections to India's Draft Rectification, "[a]ny Panel's finding pursuant to India's request 
would thus risk to undermine the rights of those other WTO Members and raise serious systemic 
concerns in respect of reliability and predictability of the system of tariff concessions."632 Moreover, 
any findings by the Pa nel "would not affect the validity of the objections by those other WTO 
Members that are not parties to this dispute, there would still remain valid objections to the Draft 
Rectification."633 Japan maintains that even if the Panel were to make the findings requested by 
India, "the Draft Rectification which was submitted by India in 2018 would not automatically become 
certified or deemed effective, unless the procedure set out in the 1980  Procedures is followed."634 
 
621 India's response to Panel question No. 49, para. 42; second written submission, para. 120 (referring 
to Appellate Body  Report, Mexico – Taxes on Soft Drinks , para. 53).  
622 India's response to Panel question No. 49, para. 42.  
623 India's response to Panel question No. 49, para. 42; second written submission, para. 121.  
624 India's response to Panel question No. 49, para. 45. See also India's comments on Japan's response 
to Panel question No. 65, para. 18.  
625 India's second written su bmission, para. 123.  
626 Japan's response to Panel question No. 49 (b), para. 90.  
627 Japan's response to Panel question No. 49(b), para. 90, and No. 65, para. 20 -22. See also Japan's 
second written submission, para. 170.  
628 Japan's response to Panel question N o. 65, para. 22.  
629 Japan's response to Panel question No. 49 (b), para. 91. See also Japan's second written submission, 
para. 172.  
630 Japan's second written submission, para. 172.  
631 Japan's response to Panel question No. 49 (b), para. 92. See also Japan's s econd written submission, 
para. 175.  
632 Japan's response to Panel question No. 49 (b), para. 93; second written submission, para. 178.  
633 Japan's response to Panel question No. 49(c), para. 99.  
634 Japan's response to Panel question No. 49, paras. 94, 97 -98; Japan's second written submission, 
para. 177 (referring to Panel Report, EU – Poultry Meat (China) , para. 7.536).  WT/DS584/R  
 
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  7.3.4.3   Main arguments of the third parties  
7.223.   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 hav e not been completed given the 
objections that were raised."635 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."636 
7.224.   Canada considers 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, ther eby overriding the procedures that have been agreed to 
by all WTO Members.637 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 produ cts duties in excess of those set forth in its Schedule.638 
7.225.   The European Union maintains that the 1980 Decision does not envision the possibility of 
referring the matter to dispute settlement where parties disagree on existence of an error.639 
Moreover, the European Union argues that the alleged error in India's Schedule was not a formal 
one, and the proposed rectification would have required a substantial modification of India's certified 
commitments.640 
7.226.   Korea submits that the Panel's mandate is confined to i ts terms of reference, which do not 
include recogni zing and declaring the invalidity of the complainant's objections to India's rectification 
request.641 Further, Korea considers that negotiation and agreement among Members are the 
"essence of the modificat ion and/or rectification procedure" under Article XXVII I of the GATT 1994 
and the 1980 Decision. Therefore, Korea is concerned that the possibility of negotiations under those 
procedures would be undermined if a Member's objection to a proposed rectificati on is declared 
unfounded by the Panel.642 Korea maintains that regardless of the Panel's findings on India's draft 
rectification, India's obligations are to be assessed in light of India's existing Schedule because 
"treaty terms are not based on a subjectiv e intent of one Party, but rather on a common intent of 
all relevant Parties interpreted through the general rule of treaty interpretation".643  
7.227.   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".644 For Chinese Taipei, neither "India's Draft Rectification 
nor the 1980 [Decision] are 'covered agreements' within the meaning of Artic le 1.1 of the DSU".645 
Chinese Taipei also argues that  pursuant to its  terms of reference , the Panel  in this dispute "is neither 
require d nor authorize d" to make findings with respect to India's draft rectification or the 1980 
 
635 Brazil's third -party response to Panel question No. 19, para. 13.  
636 Brazil's third -party response to Panel question No. 19, para. 14.  
637 Canad a's third -party response to panel question No. 19, para. 14, and No.20, para. 16.  
638 Canada's third -party response to panel question No. 20, para. 17.  
639 European Union's third -party response to Panel question No. 20, para. 26.  
640 European Union's third -party response to Panel question No. 20, para. 27. The European Union also 
considers that there is an incompatibility between the error India invokes under Article  48 of the Vienna 
Convention and that invoked in the context of the r ectification request. This is because the error India invokes 
under Article 48 of the Vienna Convention is an error in India's consent relating to the scope of the 
commitments included in the HS2007 certification, and not an error in the text of the treaty . On the other 
hand, according to the European Union, the error invoked in the context of the rectification request 
"presupposes necessarily that there is no error in the text of the treaty". The European Union also notes that 
while the error invoked under  Article 48 is "a very material one", absent which India would not have given 
consent to the certification of its HS2007 Schedule, the error invoked in the context of the rectification request 
is a "purely formal error". (European Union's third -party respo nse to Panel question No. 19, paras. 20 -23). 
641 Korea's third -party response to Panel question No. 19, para. 12 (referring to Appellate Body Report,  
Brazil – Desiccated Coconut , p. 22).  
642 Korea's third -party response to Panel question No. 19, para. 13.  
643 Korea's third -party response to Panel question No. 20, para. 14 (referring to Appellate Body Report,  
EC – Computer Equipment , para. 84).  
644 Chinese Taipei's third -party response to Panel question No. 19, para. 16.  
645 Chinese Taipei's third -party response to Pa nel question No. 19, para. 17.  WT/DS584/R  
 
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  Decision.646 Chinese Taipei mai ntains 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 set tlement 
panel.647 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."648 
7.228.   The United Kingdom consid ers that it is not necessary to make the findings requested by 
India because neither Japan  nor India relies on the draft rectification when determining the relevant 
tariff commitments for India.649 
7.229.   The United States argues that there is no legal basis in th e DSU for the Panel to determine 
that India's draft rectification request was of a purely formal character and the objections to that 
request were unfounded.650 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.651 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.652 Moreover, the United States argues that the 1980 Decision does not 
contemplate recourse to WTO dispute settlement where an objec tion is made.653 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.654 
7.3.4.4   Panel 's assessment   
7.230.   We recall that India requests us to find that: ( i) Japan violated paragraph 3 of the 
1980 Decision by raising an objection "unfounded in law", and (ii) Japan's objection constituted an 
"impediment to India's rights to make a formal rectification to its schedule of concessions under the 
1980 [Decision]."655 The parties disagree on whether we have a legal basis under the DSU to address 
India's request for findings.  
7.231.   According to India, the 1980 Decision is a covered agreement within the meaning of 
Article  1.1 of the DSU. Therefore, in India's vie w, we have the authority to "interpret the 
Draft Rectification and clarify the rights and obligations of the Members under it" under Article 3.2 
of the DSU.656 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.657 Japan disagrees that the 1980 Decision is a covered agree ment within the meaning 
of Article 1.1 of the DSU.658 Japan also submits that because its panel request did not refer to India's 
draft rectification or the 1980 Decision, we lack jurisdiction to assess India's request and make the 
requested findings.659  
7.232.   The parties' arguments raise two issues concerning the existence 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 cover ed agreement within the meaning 
of Article 1.1 of the DSU. We consider it logical to first determine whether, pursuant to our terms of 
 
646 Chinese Taipei's third -party response to Panel question Nos. 19, para. 18.  
647 Chinese Taipei's third -party response to Panel question No. 20, para. 21.  
648 Chinese Taipei's third -party response to Panel question No. 20, para. 22. 
649 United Kingdom's third -party response to Panel question Nos. 19 and 20, paras. 4 -5. 
650 United States' third -party response to Panel question Nos. 19 -20, para. 16.  
651 United States' third -party response to Panel question Nos. 19 -20, para. 17.  
652 United States' third -party response to Panel question Nos. 19 -20, para. 18.  
653 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).  
654 United States' third -party response to Panel question Nos. 19 -20, para. 20.  
655 India's second written submission, para. 116.  
656 India's response to Panel question No. 49, paras. 40 -41; second written submission, paras. 11 -117 
(referring to Panel Report, US – FSC, para. 7.63).  
657 India's response to Panel question No. 49, para. 42.  
658 Japan's response to Panel question No. 65, para. 22.  
659 Japan's response to Panel question No. 49(b), para. 90, and No. 65, paras. 20 -22. See also Japan's 
second written submission, para. 170.  WT/DS584/R  
 
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  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 of the DSU if we determine 
that we have jurisdiction to address India's request.660 Moreover, if we determine that we lack the 
legal mandate to address India's request for findings, we would not proceed t o address the substance 
of that request (i.e. whether the rectification request was purely of a formal character and whether 
Japan's objection was "unfounded in law").  
7.233.   Article 7.1 of the DSU sets out the "Terms of Refe rence of Panels". Specifically, this p rovision 
sets forth the terms of reference 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 Japan in [its pan el 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.661 
7.234.   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 refer red to the DSB".  
7.235.   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.662 We note that Japan's 
panel request identifies the specific measure s at issue as the legal instruments through which India 
applies customs duties 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 Japan's complaint is India's  
tariff treatment of certain ICT products inconsistent ly with Articles II:1(a) and (b) of the GATT 
1994.663  
7.236.   Consequently, our mandate, pursuant to the explicit terms of the DSU, is limited to 
examining whether the tariff treatment imposed by India on certa in 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.  
7.237.   Turning to assessing whether India'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 Japan'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]."664 We als o 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 are a 
consequence of a formal e rror and are therefore severally void. Therefore, there can be no violation 
of Articles II:1(a) and Article II:1(b) of the GATT if the contested tariff items  of India's schedule of 
concessions are void."665  
7.238.   We do not see how finding s that the rectification  request was "of a purely formal character" 
and that Japan's objection was "unfounded in law" would modify India's WTO tariff commitments or 
otherwise affect our application of Articles II:1(a) and (b) of the GATT 1994. India has clarified that 
it is not r equesting us to certify its rectification request.666 In any case, we do not read the 1980 
 
660 See also Pan el Report, EU – Poultry Meat (China) , fn 39 to para. 7.27.  
661 Constitution Note of the Panel, WT/DS584/10, para. 2.  
662 See e.g. Appellate Body Reports, Argentina – Import Measures , para. 5.11 ; US – Countervailing 
Measures (China) , para. 4.6; and US – Counter vailing and Anti -Dumping Measures (China) , para. 4.6.  
663 Japan's panel request.  
664 India's response to Panel question No. 49, para. 45.  
665 India's second written submission, para. 123.  
666 India's second written submission, para. 123 (" India clarifies that it does not seek … certification of 
the Draft Rectification through the dispute settlement mechanism").  WT/DS584/R  
 
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  Decision to permit a panel to certify a rectification request made under the 1980 Decision. We note 
that pursuant to paragraph 3 of the 1980 Decision, changes to a Sc hedule 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 Japan – including the European Union 
and Chinese Taipei, complainants in  the other two disputes in which the same panelists were 
appointed667 – 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 Japan'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.668 Contrary to India'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.  
7.239.   Indeed, from our review of India's arguments, we understand that India is in fact raising a 
claim that Japan 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.669 India, 
in its own words, requests us to find that "Japan violated  paragraph 3 of the 1980 [Decision]" and 
"imped[ed] India's rights … under the 1980 [Decision]".670 This, in our view, constitutes a claim  by 
India that Japan has violated, and in effect nullified or impaired the benefits that accrue to India 
under , the 1980 Decision.671  
7.240.   Therefore, we consider that India's claim does not concern the matter before the Panel, as 
defined in Japan's panel request, namely whether the tariff treatment imposed by India on certain 
ICT products is inconsistent with Arti cles II:1(a) and (b) of the GATT 1994.672 Consequently, India's 
request for findings appears to fall outside our terms of reference, pursuant to Articles 6.2 and 7.1 
of the DSU.  
7.241.   We note India's argument that Article 11 of the DSU requires us to "objectivel y assess the 
facts of the dispute and examine the conformity of Members' actions with [the] covered 
agreements".673 We agree that Article 11 requires us to make an objective assessment of the facts 
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 finding s that would be relevant for 
assessing the consistency of the measures challenged by Japan with the covered agreements. To 
the contrary, India is requesting legal findings that Japan acted inconsistently with its own WTO 
obligations.  
 
667 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).  
668 We note that several third parties agree with this understanding. (See e.g. Canada's third -party 
response to panel question No. 19, and No. 20, para.  16; European Union's third -party response to Panel 
question No. 19, para. 26; Korea's third -party response to Panel question No. 20, para. 14; and United States' 
third-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 changed through certification." (Panel Report, EU – Poultry Meat (China) , para. 
7.536. See als o Panel Report, Russia – Tariff Treatment , para. 7.54).  
669 Appellate Body Report,  US – Countervailing and Anti -Dumping Measures (China) , para. 4.8 (referring 
to Appellate Body Report, Korea – Dairy , para. 139).  
670 India's second written submission, para. 116 . (emphasis added)  
671 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 Japan were 
unfounded and lacked lega l merit. Therefore, India is claiming that: (i) Japan violated Paragraph 
3 of the 1980 [Decision] by raising an [objection] unfounded in law, and (ii) Japan's action was 
an impediment to India's rights to make a formal rectification to its schedule of conc essions 
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. 116)  
672 We note that a respondent is not precluded from invoking in its defence a p rovision 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 Japan.     
673 India's second written submission, para. 121.  WT/DS584/R  
 
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  7.242.   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".674 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 findings is outside the 
scope of our terms of reference. We therefore see nothi ng in Article 11 of the DSU that permits us 
to make the findings requested by India.  
7.243.   India also refers to the findings of the Appellate Body in Mexico – Taxes on Soft Drinks  to 
support 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" .675 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 rig ht 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 exercise its jurisdiction'.676 
7.244.   We note, however, that India is not a complai ning party in this dispute. By declining to 
"interpret the Draft Rectification"677, we are not diminishing India's rights to bring a dispute pursuant 
to the DSU. India is not precluded from requesting the establishment of a panel with appropriate 
terms of r eference to determine whether Japan's actions "violated" the 1980 Decision. Moreover, we 
note that India has neither entered into consultations with Japan 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 fi ndings in Mexico – Taxes on Soft Drinks  therefore do not support India's view 
that we are required to address India's requests for findings.  
7.245.   India also refers to certain observations of the panel in Russia – Traffic in Transit . According 
to India, that pa nel 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 provisions, the Panel has an 
obligation to review it"; and (ii) "systemic issues might arise if Members a buse provisions to 
circumvent obligations".678 India argues that for these reasons, we have an obligation to "assess if 
the objection raised by Japan is in good faith or if it is merely an instrument to force India to grant 
concessions on products, which it  never agreed to."679  
7.246.   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 whet her Members' actions are in conformity with relevant provisions, we 
have explained above that this obligation under 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. A s to whether 
systemic issues might arise if Members abuse provisions to circumvent obligations, we strongly 
agree. Addressing India's claim in the present proceedings would seem to allow India to bring a 
claim before a panel without following the relevant procedural steps set forth in the DSU. This would 
not only amount to India circumventing its obligations under the DSU, but could indeed raise 
significant systemic issues concerning the function of panels and the procedural rights and 
obligations of Member s with respect to WTO dispute settlement.  
 
674 Emphasis added.  
675 India's second written submission, para. 120.  
676 India's second written submission, para. 120 (quoting Appellate Body Report, Mexico – Taxes on Soft 
Drinks , para. 53).  
677 India's second written submission, para. 120.  
678 India's second written submission, para. 121 (referring to Panel Report, Russia – Traffic in Transit , 
paras. 7.132 -7.133).  
679 India's second written submission, para. 121.  WT/DS584/R  
 
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  7.247.   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) Japan violated 
paragraph 3 of the 1980 Decision by raising an objection unfounded in law; or (ii) Japan's action 
was an impediment to India's rights to make a formal rectification to its Schedule of concessions 
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.680 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 su bstance of India's arguments that 
its rectification request was purely of a formal nature and Japan's objection was inconsistent with 
its obligations under the 1980 Decision.681 
7.3.5   Conclusion  
7.248.   We have addressed above the parties' arguments concerning the ITA, A rticle 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 is sue in this dispute. Moreover, the ITA does not 
otherwise limit the scope of 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 cons equently do not have the legal mandate 
to make such findings. Moreover, even 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.  
7.249.   We therefore proceed with the application of Article s II:1(a) and (b) of the GATT 1994 in 
this dis pute by comparing, on the one hand, India's WTO tariff commitments as set forth in its 
WTO Schedule682, and, on the other hand, the tariff treatment applied by India to imported products.  
7.4  Whether India's tariff treatment is inconsistent with Articles II:1(a ) and (b) of the 
GATT 1994  
7.4.1   Overview  
7.250.   Japan  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 Schedul e. Japan  specifically challenges t he tariff treatment accorded by India to 
products falling under the following tariff items  of India's First Schedule  at the time of the Panel's 
establishment : 8517.12.11, 8517 .12.19, 8517 .12.90, 8517.61.00, 8517.62.90, 851 7.70.10 and 
8517.70.90 .683 Japan also claims that, even where India unconditionally exempts certain products 
from customs duties, India acts inconsistently with Article II:1(a) of the GATT 1994.  
7.251.   For its part, India contests certain assertions by Japan regar ding the scope and content of 
its WTO tariff commitments, and considers that Japan has failed to substantiate its burden of 
demonstrating that the tariff treatment of certain products is inconsistent with Articles II:1(a) and 
(b).684 India also argues that pursuant to the India -Japan Comprehensive Economic Partnership 
Agreement (CEPA), and implementing  Notification No. 69/2011, India exempts the products at issue 
when originating from Japan from ordinary customs duties. Regarding Japan's additional claim und er 
Article II:1(a), India considers that it has discretion to effectuate its obligations under the covered 
agreements as it sees fit, and Japan's claim essentially requests an interpretation specifying the 
manner in which India must satisfy its obligations  under Articles II:1(a) and (b).  
 
680 See para. 7.238  above.  
681 See also Panel Report, EU – Poultry Meat (China) , fn 39 to para. 7.27.  
682 Unless otherwise specified, all references in this Report to India's "WTO Schedule" are to the HS2007 
version of that Schedule.  
683 See para. 7.1 above.  
684 See para.  7.2 above.  WT/DS584/R  
 
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  7.252.   We proceed with our analysis by assessing each tariff items in turn. We recall that where a 
measure is inconsistent with Article  II:1(b), it is also inconsistent with Article  II:1(a) .685 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 m easures .686 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 
produc ts; (iii) comparing the challenged tariff treatment to India's WTO tariff commitments; and 
(iv) on the basis of that comparison, forming a conclusion as to whether India is acting inconsistently 
with Articles II:1(a) and (b). In addition to these four step s, 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 inconsi stently with Articles II:1(a) and (b). Following our assessment of each tariff item, we 
turn to address Japan's additional claim of inconsistency with Article II:1(a), and finally India's 
argument that any inconsistency with Articles II:1(a) and (b) is neg ated because products 
originating from Japan are exempt from customs duties pursuant to Notification No. 69/2011.  
7.4.2   Tariff items  8517.12.11, 8517.12.19, and 8517.12.90  of India's First Schedule  
7.4.2.1   General issues  
7.4.2.1.1   Main arguments of the parties  
7.253.   Japan challenges the tariff treatment accorded by India to products falling under tariff items 
8517.12.11, 8517.12.19 and 8517.12.90  of India's First Schedule  at the time of the Panel's 
establishment , covering  telephones for cellular networks or for other wireless networks .687 Japan 
acknowledges that India amended its First Schedule during the Panel proceedings to reflect the 
HS2022. Japan submits that pursuant to those amendments, "subheading 8517  12 has been 
replaced by two new subheadings, i.e. subheadings 8517 13 and 851 7 14", and that the products 
at issue "now fall under two different subheadings, the descriptions of which are 'smartphones' and 
'other telephones for cellular networks or for other wireless networks'".688 In response to an 
argument by India that the measur e challenged by Japan has ceased to exist, Japan argues that 
"the entry into force of the HS 2022 has merely reshaped the structure of heading 8517 of the First 
Schedule, pursuant to which subheading 8517 12 has been replaced by two new subheadings, i.e. 
subheadings 8517 13 and 8517 14" and that "the 20% customs duty is still applied to 'telephones 
for cellular networks and other wireless networks' which now fall under two different 
subheadings".689 Thus, for Japan, the measure continues to exist.690 Japan al so submits that the 
changes to India's First Schedule enacted through the Finance Act 2021 constitute an "amendment 
or replacement" which falls within the Panel's terms of reference.691 In response to India's argument 
that the Panel cannot issue any rulings  or recommendations on the measures pertaining to tariff 
item 8517.12, Japan submits that even if the measures have expired (which it disputes), the Panel 
must still make findings with regard to those measures.692 
7.254.   India argues that the measures identified b y Japan have ceased to exist, as its First Schedule 
was amended to align it with the HS2022, with effect from 1 January 2022, and therefore the Panel 
cannot issue rulings or recommendations on the measures pertaining to tariff item 8517.12.693 
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."694 
In this regard, India argues that the scopes and descriptions of tariff items 8517.13 and 8517.14 
 
685 See para. 7.6 above.  
686 See para. 7.7 above.  
687 Japan's first written submission, para. 32.  
688 Japan's response to Panel question No. 72 (a), para. 51. 
689 Japan's opening statement at the second meeting of the Panel, para. 48. See also Japan's response 
to Panel question No. 72(a), para. 51.  
690 Japan's opening statement at the second meeting of the Panel, para. 48. See also Japan's response 
to Panel question No. 72(a), para. 53.  
691 Japan's opening statement at the second meeting of the Panel, paras. 49 -53; response to Panel 
question No. 72(b), paras. 58 -59. 
692 Japan's opening statement at the second meeting of the Panel, paras. 45 -46. 
693 India's second written su bmission, paras. 105 -107.  
694 India's response to Panel question No. 68, para. 45.  WT/DS584/R  
 
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  are different from those of tariff items 8517.12.695 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."696 India asserts that "[t]he burden of proof is on the complainant to identify 
the sub -heading under which smartphones were classified under [the] 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."697 India also submits that "[w]ith regard to 
'other telephones for cellular networks' classified under sub -heading 85 17.14, … such phones would 
have been classified under 8517.12.11 or 8517.12.19 of the HS2007 and India's other legal 
arguments would continue to apply."698 
7.4.2.1.2   Panel's assessment  
7.255.   Before turning to assess the merits of the parties' arguments with respect to Jap an's claim 
concerning products classified under tariff item 8517.12 of India's First Schedule at the time of the 
Panel's establishment, we consider it useful to briefly address certain threshold issues concerning 
our terms of reference.  
7.256.   We recall that the measure s challenged by Japan  are the imposition of customs duties on 
products falling within the scope of tariff item 8517.12 of India's First Schedule.699 Japan argues that 
the product description of tariff item 8517.12 of the First Schedule is an exact ma tch to the product 
description of tariff item 8517.12 of India's WTO Schedule. Thus, for Japan, tariff item 8517.12 of 
India's WTO Schedule reflects India's WTO tariff commitments regarding products classified under 
tariff item 8517.12 of India's First Sch edule, namely, telephones for cellular networks or other 
wireless networks.700  
7.257.   India argues that: (i) the measures as challenged by Japan have ceased to exist, as a result 
of certain amendments to India's First Schedule; and (ii) Japan has failed to demonstrate that 
"smartphones" fall within the scope of tariff item 8517.12 of India' s WTO Schedule. We note that 
the first of these arguments, on its face, appears to raise threshold issues concerning the scope of 
Japan's claim and our terms of reference. The second of these arguments relates to whether the 
tariff commitments set forth in  tariff item 8517.12 of India's WTO Schedule apply to the products 
covered by Japan's claim. In our view, it is not possible to address the merits of these arguments 
without assessing: (i) the effect, if any, of India's amendments to its First Schedule on the measures 
as challenged by Japan and our terms of reference; and (ii) whether smartphones are products 
covered by tariff item 8517.12 of India's WTO Schedule, such that the tariff commitments set forth 
therein apply to the products covered by Japan's cl aim.  
7.258.   We therefore 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 concerning 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 measures at issue 
have ceased to exist. Fin ally, we will compare 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 Japan 
has demonstrated that smartphones are classified under tariff item 8517.12 of India's 
WTO Schedule, such that  India's  tariff commitments for tariff item 8517.12 extend to smartphones, 
classified under tariff item 8517.13.00 of Ind ia's First Schedule as of 1 January 2022; and  whether 
the measure s challenged by Japan  have ceased to exist or have otherwise been amended .  
 
695 India's response to Panel question No. 68, para. 45.  
696 India's second written submission, para. 107. See also India's response to Panel question No. 102, 
para. 45.  
697 India's response to Panel question No. 75(a), para. 60.  
698 India's response to Panel question No. 75(a), para. 59.  
699 Japan's panel request, p. 1.  
700 Japan's first written submission, paras. 92 -94. WT/DS584/R  
 
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  7.4.2.2   India's WTO tariff commitments  
7.4.2.2.1   Main arguments of the parties  
7.259.   Japan assert s that India's bound duty  rate for product s falling under tariff item  8517. 12 of 
India's WTO Schedule , covering telephones for cellular networks or for other wireless networks, is 
0%.701  
7.260.   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.702 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 .703 According to India, the commitments under tariff item 85 17.12 were 
undertaken in error, are void pursuant to Article 48 of the Vienna Convention, and are therefore 
rendered unbound.704 
7.4.2.2.2   Panel's assessment  
7.261.   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.705 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.706 Moreover, we have declined to make the fin dings 
requested by India regarding its request to rectify its WTO Schedule pursuant to the 
1980 Decision.707  
7.262.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2007 Schedule provides, inter alia , the following 708: 
 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 app aratus 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% 
 
7.263.   Given that the relevant tariff binding for "[t] elephones for cellular networks or for other 
wireless networks " 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 provide unconditional duty -free treatment to t elephones for cellular networks 
or for other wireless networks  falling under tariff item 8517.12 of its WTO Schedule . 
7.4.2.3   India's tariff treatment  
7.4.2.3.1   Main arguments of the parties  
7.264.   Japan submits that at the time of the Panel's establishment, India's First Schedule imposed 
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, 8517.12.19 and 8517.12.90 
 
701 Japan's first written submission, paras. 92 and 94.   
702 India's first written submission, paras. 40 -74. 
703 India's first written submission, paras. 132 -146. 
704 India's first written submission, paras. 69 -74. 
705 See para. 7.216  above.  
706 See para. 7.82 above.  
707 See para. 7.247  above.  
708 WT/Let/1072.  WT/DS584/R  
 
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  of that Schedule.709 Japan 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 Fi rst Schedule.710 Japan submits that telephones for cellular networks classified 
under tariff items 8517.12.11 and 8517.12.19 of the First Schedule remained subject to the 20% 
duty rate set out in the First Schedule, as Notification No. 57/2017 did not apply  to such products.711 
Japan 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. 
Japan submits that, following these amendments, In dia's First Schedule imposes a standard duty 
rate of 20% on imports of such products, namely smartphones and other telephones for cellular 
networks or other wireless networks.712 Japan also notes that Notification 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 .713 
7.265.   India does not dispute that at the time of the Panel's establishment , it imposed a 20% duty 
rate on telephones for c ellular networks, and exempted telephones for other wireless networks from 
customs duties.714 India also does not dispute that, following its amendments  to the First Schedule, 
India imposes a 20% duty rate on 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).715 India submits that Notification No. 57/2017, as amended by Notification No.  57/2021, 
exempts certain products classified under ta riff item 8517.14.00 (namely other telephones for other 
wireless networks) from customs duties.716 
7.4.2.3.2   Panel's assessment  
7.266.   We proceed with our assessment by first 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 turn to assess the effects of India's amendment of the First Schedule during these 
proceedings .  
7.267.   It is uncontested that at the time of the Panel's establishment, India's First Schedule imp osed 
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".717 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.718 Therefore, at the time of the Panel's establishment, 
India's tariff treatment of products under tariff item 8517.12 of its First Schedule was 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% 
 
7.268.   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 
Finance Act 2021 provides that the words "including telephones" occurring against heading 8517 be 
 
709 Japan's first written submission, para. 38 (referring to First Schedule as of 12 February 2020, 
(Exhibit JPN -10), p. 1578).  
710 Japan's first written submission, para. 39 (r eferring to Notification No. 57/2017, (Exhibit JPN -27), 
p. 5; General Exemption No. 239, (Exhibit JPN -28), p. 2206)).  
711 Japan's first written submission, para. 40.  
712 Japan's response to Panel question No. 78, para. 76.  
713 Japan's comments on India's respon se to Panel question No. 77, para. 100.  
714 India's first written submission, para. 131.  
715 India's response to Panel question No. 77, para. 64.  
716 India's response to Panel question No. 75(a), para. 58 (referring to Notification No. 57/2017 as 
amended by Notification No. 57/2021, (Exhibit IND -82)).  
717 Japan's first written submission, para. 38; India's first written submission, para. 131. See also F irst 
Schedule  as of 12 February 2020, (Exhibit JPN -10), p. 1578.  
718 Notification No. 57/2017, (Exhibit IND -82). See also Japan's first written submission, para. 39; and 
India's response to Panel question No. 75(a), para. 58.  WT/DS584/R  
 
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  substituted with the words "including 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 ther eto" 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".719 Therefore, following the amendments to the First Schedule, 
tariff item 8517.12 was replaced with tariff items 8517.13.00 and 8517.14.00. India's First Schedule 
as of 1 January 2022 imposes a standard duty rate of 20% on products classified under tariff items 
8517.13.00 and 8517.14.00.720  
7.269.   We also observe that pursuan t 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 cellular networks", from customs duties.721 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%.722 Therefore, pursuant to Notification No. 57/2017 (as amended) a s well as the First Schedule, 
India's tariff treatment of products classified under tariff item 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% 
 
7.4.2.4   Comparison of India's tariff treatment to its WTO tariff commitments  
7.4.2.4.1   Preliminary issues  
7.270.   As indicated above, India argues that the measures as challenged by Japan have ceased to 
exist, as a consequence of the amendments to India's First Schedule to reflect the HS2022, and are 
therefore outside the terms of reference of the Panel. Japan argues that both the original and the 
amended measures are within the Panel's terms of reference and requests us to make distinct 
assessments of WTO -consistency for both measures. India also argues that Japan has failed to 
demonstrate that smartphones are product s classified under tariff item 8517.12 of India's WTO 
Schedule.  
7.271.   Below, we assess whether the amended measures are within the Panel's terms of reference. 
If we find that the amended measures are within our terms of reference, we shall then assess 
whether i t is necessary for the resolution of this dispute to make distinct assessments of 
WTO-consistency regarding both the original and the amended measures. Third, we shall assess 
whether smartphones are classified under tariff item 8517.12 of India's WTO Sched ule. Having 
addressed these three preliminary issues, we shall compare India's tariff treatment to its WTO tariff 
commitments.  
7.4.2.4.1.1   Whether the measure s are within the Panel's terms of reference  
Main arguments of the parties  
7.272.   India argues that, following the " amendments" to its First Schedule which took effect on 1 
January 2022, "subheading 8517.12 has ceased to exist", and therefore the measures challenged 
by Japan have ceased to exist. India submits that "[s]martphones and [t]elephones for cellular 
networks a re now classified under sub -headings 8517.13 and 8517.14, respectively." India observes 
that "[t]he description 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 i s to be classified under a tariff 
 
719 Finance Act 2021, (Exhibit IND -60), p. 176.  
720 First Schedule, as amended by Finance Act 2021, (Exhibit IND -60), p. 176.  
721 Notification No. 57/2017 as amended by Notification No. 57/2021, (Exhibit IND -82), p. 12. See also 
India's response to Panel question No. 75(a), para. 58 (referring  to Notification No. 57/2017 as amended by 
Notification No. 57/2021, (Exhibit IND -82)); and Japan's comments on India's response to Panel question 
No. 77, para. 100.  
722 Japan's response to Panel question No. 78, paras. 74 -77; India's response to Panel quest ion No. 77, 
para. 64.  WT/DS584/R  
 
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  entry, then the heading and description … would have to be seen together to determine the 
commitments prescribed in the schedule." India also maintains that "the term 'smartphones' does 
not appear in the ITA[] or in the 20 07 Schedule. Accordingly, no commitments exist with respect to 
such smartphones."723 Further, according to India, "there exists no certified schedule with respect 
to sub -headings 8517.13 and 8517.14." Therefore, India submits that "the measure identified by  
Japan has ceased to exist, and the Panel cannot issue any rulings or recommendation on the 
measures pertaining to sub -heading 8517.12."724  
7.273.   Japan disagrees that the measures have ceased to exist. Japan maintains that the measures 
at issue consist of "acts and notifications through which the 20% customs duty is applied by India 
to 'telephones for cellular networks or other wireless networks'".725 Japan observes that India 
continues to apply a 20% customs duty on such products, which are presently classified u nder tariff 
items 8517.13 and 8517.14 of India's First Schedule.726 For Japan, "the entry into force of the HS 
2022 has merely reshaped the structure of heading 8517 of the First Schedule, pursuant to which 
subheading 8517  12 has been replaced by two new su bheadings, i.e. subheadings 8517 13 and 8517 
14."727 Japan also submits that the changes introduced by the Finance Act 2021 constitute "an 
amendment or a replacement" in the First Schedule which falls within the Panel's terms of 
reference.728 Japan argues th at (i) the terms of reference are broad enough to include subsequent 
amendments to the First Schedule729, (ii) the amendments introduced by the Finance Act do not 
change the essence of the original measures identified in the panel request730, and (iii) the i nclusion 
of this amendment within the Panel's terms of reference is necessary to secure a positive solution 
to the dispute.731  
Panel's assessment  
7.274.   In this section, we assess whether, as argued by India, the challenged measures have ceased 
to exist and are outside our terms of reference  following the amendments to India's First Schedule.  
7.275.   We observe that in its panel request, Japan challenges various legislation through which 
India applies a 20% duty on telephones for cellular networks or for other wirel ess networks falling 
under tariff items 8517.12.11, 8517.12.19 and 8517.12.90 of the First Schedule. Japan's panel 
request indicates that "[t]he measures at issue through which the duties are imposed include: … the 
Customs Tariff Act, 1975 ('Customs Tariff  Act') including the First Schedule…; and any amendments, 
replacements, extensions, implementing measures or other related measures regarding the 
measures referred to above".732  
7.276.   We recall that the product description attached to tariff item 8517.12 of Indi a's First Schedule 
at the time of the Panel's establishment was "[t] elephones for cellular networks or for other wireless 
networks ".733 Specifically, India classified these products under tariff items 8517.12.11, 8517.12.19 
and 8517.12.90 of its First Sched ule.734 Following the Panel's establishment, the Finance Act 2021, 
which amended India's First Schedule by substituting  tariff items 8517.12.11, 8517.12.19 and 
8517.12.90 with tariff items 8517.13.00 and 8517.14.00, was passed into law.735 Therefore, as Indi a 
argues, tariff item 8517.12 no longer exists 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 
 
723 India's second written submission, para. 107.  
724 India's second written submission, para. 107.  
725 Japan's opening statement at the second meeting of the Panel, para. 47.  
726 Japan's opening statement at the second meeting of the Panel, para. 48.  
727 Japan's opening statement at the second meeting of the Panel, para. 48.  
728 Japan's opening statement at the second meeting of the Panel, para. 49; response to Panel question 
No. 68, para. 32.  
729 Japan's opening statement at the second meeting of the Panel, paras. 49 -50 (referring to Panel 
Reports, EC – IT Products , para. 7.141).  
730 Japan's opening statement at the second meeting of the Panel, paras. 49 and 51.  
731 Japan's opening statement at the second meeting of the Panel, paras. 49 and 52 (referr ing to 
Appellate Body Report, Chile – Price Band System , para. 143; and Panel Reports, EC – IT Products , paras. 
7.144 -7.145).  
732 Japan's panel request, p.1.  
733 India's First Schedule  as of 12 February 2020, (Exhibit JPN -10). 
734 India's First Schedule  as of 12 February 2020, (Exhibit JPN -10). 
735 Finance Act 2021, (Exhibit IND -60), p. 176.  WT/DS584/R  
 
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  and 8517.14.00 differ from those attached to 8517.12.11, 8517.12.19 and 8517.12.90 of the 
First Schedule at the time of the Panel's establishment, as follows:  
India's First Schedule in HS2017 (at the 
time of the Panel's establishment)736 India's First Schedule in HS2022 (as of 
1 January 2022)  
8517 Telephone sets, including telephones for 
cellular networks or for other wireless networks; 
other apparatus …  
- Telephone sets, including telephones for 
cellular networks or for other wireless networks:  
8517.12 -- Telephones for cellular networks or 
for oth er wireless networks  
--- Telephones for cellular networks or other 
wireless networks  
8517.12.11 ---- Mobile phones, other than push 
button type  
8517.12.19 ---- Mobile phones, push button type  
8517.12.90 --- Telephones for other wireless 
networks  8517 Telep hone sets, including smartphones 
and other telephones for cellular networks or 
for other wireless networks; other apparatus 
… 
- Telephone sets, including smartphones and 
other telephones for cellular networks or for 
other wireless networks:  
8517.13.00 -- Smartphones  
8517.14.00 -- Other telephones for cellular 
networks or for other wireless networks  
 
7.277.   Given that the measures challenged by Japan concern legal instruments through which 
customs duties are imposed, and that certain such legal instruments, in particular India's First 
Schedule, have since been amended, we consider that  the challenged  measure s, as identified in 
Japan's panel request , have been amended.   
7.278.   We therefore turn to assess whether the amended measures are within our terms of 
reference. In this regard, we note that Article 6.2 of the DSU provides that a panel request shall 
identify, inter alia , the "specific measures at issue". The term "specific measures at issue" has been 
understood to suggest that, as a general rule, the measures at issue are those that are in existence 
at the time of a panel's establishment.737 However, where a legal instrument enacted after a panel's 
establishment amends a measure identified in the panel request, such legal instrument may be 
within the pa nel's terms of reference, provided that the amendment does not change the essence of 
the measure  identified in the panel request.738 In our view, an analysis of whether an amended 
measure falls within a panel's terms of reference requires a consideration of  whether: (i) the terms 
of the panel request are broad enough to include subsequent amendments; (ii) the new measure 
changes the essence of the original measure included in the panel request or has legal implications 
overly different from those of the orig inal measure; and (iii) the inclusion of the amendment within 
a panel's terms of reference is necessary to secure a positive solution of the dispute.739 We address 
each of these elements in turn.  
Whether the terms of Japan's panel request include amendment s to the First Schedule  
7.279.   Japan submits that in its panel request, Japan indicated that the measures it challenges 
consist of "acts and notifications through which a 20% duty is applied to 'telephones for cellular 
networks or for other wireless networks' including inter alia  the Cu stoms Tariff Act including the First 
Schedule, as well as 'any amendments, replacements, extensions, implementing measures or other 
related measures regarding the measures referred to above'".740 Given this wording of its panel 
request, Japan submits that i ts panel request is "sufficiently broad to account for the possibility of 
amendments or replacements in the First Schedule, taking into account the nature of the First 
Schedule."741 
7.280.   We observe that Japan's panel request states that the "measures at issue th rough which the 
duties are imposed include: … (b) the Customs Tariff Act, 1975 ('Customs Tariff Act') including the 
 
736 We recall that India's First Schedule at the time of the Panel's establishment was based on the 
HS2017. However, tariff item 8517.12 remained unchanged between the HS2007 and the HS2017.  
737 Appellate Body Report, EC  – Chicken Cuts , para. 156.  
738 Appellate Body Report, EC – Customs Matters , para. 184 (referring to Appellate Body Report, Chile – 
Price Band System , para. 139).  
739 Panel Reports, EC – IT Products , para. 7.139.  
740 Japan's opening statement at the second meeting of the Panel, para, 50.  
741 Japan's opening statement at the second meeting of the Panel, para, 50.  WT/DS584/R  
 
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  First Schedule; … and (l)  any amendments, replacements, extensions, implementing measures or 
other related measures regarding the measures r eferred to above".742 Given that Japan's panel 
request includes "amendments" and "replacements" to the measures explicitly listed therein, we 
consider that the terms of the panel request are broad enough to include the amendments to India's 
First Schedule b rought into effect by the Finance Act 2021.  
Whether the amendments to the First Schedule change the essence of the measure s 
identified in Japan's panel request  
7.281.   Japan submits that the amendments to the First Schedule do not change the scope of the 
"portion of the First Schedule which was identified in the panel request since 'telephones for cellular 
networks or for other wireless networks' which fall under the then … subheading 8517 12 have 
simply been transferred to the new subheadings 8517 13 and 8517 14".743 Japan submits that 
correlation tables prepared by India show that tariff items 8517.12.11 and 8517.12.19 of the original 
First Schedule correspond to tariff item 8517.13.00 of the First Schedule as of 1 January 2022, while 
tariff item 8517.12.90  of the original First Schedule corresponds to tariff item 8517.14.00 of the 
First Schedule  as of 1 January 2022.744 
7.282.   India does not explicitly address whether the amendments to its First Schedule changed the 
essence of the measures challenged by Japan. We observe, however, that India more generally 
submits that "other telephones for cellular networks" presently classified under tariff item 8517.14 
of the First Schedule as of 1 January 2022 "would have been classified under [tariff items] 
8517.12.11 or 8517.12.19 of the HS2007".745 India maintains that smartphones could not have been 
classified under tariff item 8517.12 of the HS2007.746 According to India, the "HS2007, HS2012 and 
HS2017 solely used the 'type of network' a particular telephone uses to classify telephone s under 
sub-headings 8517.11 and 8517.12" while tariff item 8517.13.00 is based on "functionality of the 
phone and the type of network".747 India submits that since "smartphones" were not granted a 
dedicated tariff subheading in the HS2007, they were classi fiable under different tariff items, 
depending on the functionality of the smartphones.748 
7.283.   We recall that the measures identified by Japan in its panel request are the set of legal 
instruments through which India accords certain tariff treatment to products  falling under certain 
tariff items of India's First Schedule. In assessing whether  India's amendment of the First Schedule 
change s the essence of the measure s identified by Japan,  we consider whether:  (i) the amendment 
is linked to the measure s identified  in Japan's panel request749; (ii) the amended measure s cover a 
similar  product scope as the original measure s750; and ( iii) the legal implication s of the amended 
measure s are similar to th ose of the original measure s.751 We consider these three  elements in 
turn.752 
7.284.   Starting with the link between the amended measures and the original measures, it is 
uncontested that the Finance Act 2021 amended India's First Schedule.753 As indicated above, the 
 
742 Japan's panel request, pp. 1 -2. 
743 Japan's opening statement at the second meeting of the Panel, para. 51. See also Japan's response 
to Panel question No. 68, para. 34.  
744 Japan's response to Panel question No. 72(a), para. 52 (referring to CBIC, Correlation of Customs 
Tariff between 2021 a nd 2022 (December 2021), (Exhibit JPN -74), pp. 326 -327)).  
745 India's response to Panel question No. 75(a), para. 59.  
746 India's comments on Japan's response to Panel question No. 72(a), para. 33.  
747 India's comments on Japan's response to Panel question No. 7 2(a), para. 33.  
748 India's comments on Japan's response to Panel question No. 72(a), para. 33.  
749 The situation before us differs from that in  EC – Chicken Cuts . In that dispute, the Appellate Body 
stated that "[t]he two subsequent measures in this dispute m ake no explicit reference to the two original 
measures, which continue to remain in force." ( Appellate Body Report, EC – Chicken Cuts , para. 158). In this 
dispute, the Finance Act 2021 makes an explicit reference to legislation included in the original mea sure, i.e. 
the First Schedule. ( Finance Act 2021, (Exhibit IND -60), p. 132).  
750 Appellate Body Report, EC – Chicken Cuts , paras. 158 -159. See also Panel Reports, EC – IT Products , 
para. 7.186.  
751 Panel Reports, EC – IT Products , para. 7.139.  
752 In our view, w hether the essence of a measure remain s unchanged shall be determined on a 
case-by-case basis depending on the relevant facts before the panel. We are also of the view that 
consideration of these three elements, and indeed any other elements a panel may de em relevant , is a holistic 
exercise and the weight to be ascribed to them may depend on the circumstances of the case.  
753 India's second written submission, para. 105. See also Finance Act 2021, (Exhibit IND -60), p. 132.  WT/DS584/R  
 
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  Finance Act 2021 "substituted" tariff items 8517.12.11, 8517.12.19 and 8517.12.90 with tariff items 
8517.13.00 and 8517.14.00.754 Subsequent to the amendments, tariff items 8517.12.11, 
8517.12.19 and 8517.12.90 of the First Schedule ceased to exist.755 These amendments therefore 
establish a direct lin k between the amended measures (tariff treatment of products presently 
classified under tariff items 8517.13.00 and 8517.14.00) and the original measures (tariff treatment 
of products previously classified under tariff items 8517.12.11, 8517.12.19 and 8517 .12.90).  
7.285.   Regarding  the scope of products covered by the measure s, it is uncontested that products 
covered under tariff item 8517.14.00 were covered by the original measure s, i.e. India's First 
Schedule at the time of the panel's establishment.756 Japan als o maintains that smartphones , which 
are presently covered under tariff item 8517.13.00 of the First Schedule  as of 1 January 2022,  were 
covered under tariff item 8517.12 of the First Schedule  at the time of the panel's establishment.757 
We note that India's  arguments explicitly relate to whether smartphones were classified under tariff 
item 8517.12 of the HS2007. India submits that "no commitments exist with respect to … 
smartphones"758 and that smartphones "could not be classified under HS2007 8517.12".759 We 
understand India's arguments to relate to the classification of such products in India's 
WTO Schedule, and consequently India's WTO tariff commitments with regard to smartphones, an 
issue we address in section 7.4.2.4.1.3  below. This section of our assess ment, however, relates to 
whether the amendments to the First Schedule changed the essence of the measures, specifically, 
whether the product scope of tariff items 8517.13.00 and 8517.14.00 of the First Schedule  as of 1 
January 2022 differs from the produc t scope of tariff item 8517.12 of India's First Schedule at the 
time of the Panel's establishment.  
7.286.   As indicated above, the Finance Act 2021 "substituted" tariff items 8517.12.11, 8517.12.19 
and 8517.12.90 with tariff items 8517.13.00 and 8517.14.00. We als o observe that the correlation 
table prepared by India indicates that the product scope of tariff items 8517.13.00 and 8517.14.00 
comprises those products previously classified under tariff items 8517.12.11, 8517.12.19, and 
8517.12.90.760 The correlation ta bles provide as follows:  
Tariff 2021  Tariff 2022  Correlation code  
85171211  85171300  NP 
85171219  85171300  NP 
85171290  85171400  NF 
 
7.287.   India's Guidance Note on the Correlation Table clarifies that the correlation code "NP" 
indicates that the "[right hand side] tariff is new and relatable to multiple entries in the [left hand 
side]".761 The Correlation Table, read together with the Guidance Note, indicates that India itself 
previously classified smartphones (presently classified under tariff item 8517.1 3.00 of the First 
Schedule  as of 1 January 2022) under tariff item 8517.12 of its First Schedule. We also observe that 
India's Finance Act 2021 provides that "[f]or the purposes of heading 8517, the term 'smartphones' 
means telephones for cellular networks , …" which indicates that India's domestic classification 
classified smartphones as a type of telephone for cellular networks. Therefore, subsequent to the 
amendment to India's First Schedule, the product scope of the amended measures has remained 
similar to that of the original measures.  
 
754 Finance Act 2021, (Exhibit IND -60), p. 176.  
755 First Schedule  as of 1 February 2022, (Exhibit JPN -75), p. 1404. See also India's second written 
submission, paras. 105 -107. 
756 India's response to Panel question No. 75(a), para. 59. India argues that "[w]ith regard to 'other 
telephones for cel lular networks' classified under sub -heading 8517.14, it is submitted that such phones would 
have been classified under 8517.12.11 or 8517.12.19 of the HS2007 and India's other legal arguments would 
continue to apply."  
757 Japan's response to Panel question No. 72(a), para. 51.  
758 India's second written submission, para. 107.  
759 India's response to Panel question No. 75(b), para. 62.  
760 CBIC, Correlation of Customs Tariff between 2021 and 2022 (December 2021), (Exhibit JPN -74), 
pp. 326-327. 
761 CBIC, Correlation of Customs Tariff between 2021 and 2022 (December 2021), (Exhibit JPN -74), 
p. 2. The first letter "N" in the correlation code indicates that the tariff item on the right -hand side did not exist 
in the previous HS Version, while the secon d letter "P" indicates that the tariff entry on the right -hand side is 
only partially covered within the tariff entry at the left -hand side. (Ibid. p. 2).  WT/DS584/R  
 
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  7.288.   We now turn to the third element – whether the legal implications of the original measures 
are similar to those of the amended measures. We observe that India's First Schedule, as amended 
by the Finance Act 2021, presently  imposes a customs duty of 20% on products classified under 
tariff items 8517.13.00 and 8517.14.00.762 As indicated above, those products comprise telephones 
for cellular networks and for wireless networks, previously classified under tariff item 8517.12 of 
India's First Schedule and subject to a 20% duty rate. Thus, the amendment to India's First Schedule  
does not appear to have modified the tariff treatment that was accorded under the First Schedule to 
the products at issue at the time of the panel's establishment, and which is the basis for Japan's 
claim in this dispute. We consider, therefore, that the amended measures have similar legal 
implications as the original measures.  
7.289.   Taking into account that the amended measures are directly linked to the original measures, 
and that the original and amended measures apply to the same product scope and have simil ar legal 
implications, we find that the Finance Act 2021 amends India's First Schedule without changing the 
essence of the measures identified in Japan's panel request.  
Whether the inclusion of the amendments within the panel's terms of reference is 
necess ary to secure a positive solution to the dispute  
7.290.   Japan submits that the inclusion of the amendment to the First Schedule in the panel's terms 
of reference is necessary to secure a positive solution to the dispute in accordance with Articles 3.7 
and 3.4 of the DSU.763  
7.291.   We recall that, in India's view, the measures as challenged by Japan have ceased to exist. 
We have found above that the amended measures, similarly to the original measures, impose 
customs duties on the products covered by Japan's panel request , namely, telephones for cellular 
networks and for wireless networks. We consider that the essence of the measures as challenged 
remains the same. We also recall that Japan claims that India accords tariff treatment that is 
inconsistent with Articles II:1( a) and (b) to such products. In light of the parties' arguments, we 
consider that if we were to refrain from making findings on the amended measures, it would leave 
unresolved the question of whether India is presently acting consistently with its WTO obli gations. 
We therefore consider that assessing the WTO -consistency of the amended measures is necessary 
to positively resolve this dispute.764 
Conclusion  
7.292.   In conclusion, we find that the amended measures, which comprise the imposition of 
customs duties on pr oducts classified under tariff item 8517.12 of India's First Schedule at the time 
of the Panel's establishment, and presently classified under tariff items 8517.13.00 and 8517.14.00 
of the First Schedule  as of 1 January 2022, are within our terms of refere nce.  
7.4.2.4.1.2   Relevant measures on which to make findings  
7.293.   Turning to the second preliminary issue, India submits that the Panel cannot issue any 
rulings and recommendations pertaining to tariff item 8517.12, which it maintains has ceased to 
exist.765 
7.294.   Japan argues that even if the challenged measures have ceased to exist, the Panel must still 
make findings regarding those measures. Japan submits that the Panel ought to take into account 
 
762 Finance Act 2021, (Exhibit IND -60), p. 176.  
763 Japan's response to Panel question No. 68, para. 35. India does not respond to this argument by 
Japan.  
764 We agree with the findings of the Appellate Body in Chile – Price Band System  that "generally 
speaking, the demands of due process are such that a complaining party should not have to adjust its 
pleadings throughout dispute settlement proceedings in order to deal with a disputed measure as a 'moving 
target'". The Appellate Body fur ther considered that if the terms of reference in a dispute are broad enough to 
include amendments to a measure and if it is necessary to consider an amendment in order to secure a 
positive solution to the dispute, it is appropriate to consider the measure  as amended in coming to a decision 
in a dispute. (Appellate Body Report, Chile – Price Band System , para. 144).  
765 India's response to Panel question No. 68, paras. 40 -45. WT/DS584/R  
 
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  that (i) the measures expired after the panel establishment766, (ii) the complain ant continued to 
request that the panel make findings767, (iii) the  respondent argued that the measures at issue are 
consistent with its obligations768, and (iv) the respondent could take measures that may give rise to 
certain, or materially similar, WTO inconsistencies.769 Moreover, Japan requests the Panel to assess 
the consistency of the measures as they existed on the date of the Panel's establishment and as it 
was amended thereafter.770  
7.295.   Regarding India's view that the measures pertaining to tariff item  8517.12 have ceased to 
exist, we note that even assuming arguendo  that the challenged measures had ceased to exist, 
those measures would be within our terms of reference as they existed at the time of the Panel's 
establishment.771 We recall that, consisten t with previous findings of panels and the Appellate Body, 
once a panel is established and its terms of reference set, a panel has discretion to decide how to 
take into account subsequent repeals of measures covered by its terms of reference.772 Some panels  
have exercised that discretion by making findings on the WTO -consistency of the expired measures, 
while refraining from making recommendations pursuant to Article 19 of the DSU.773 In this case, 
we consider the measures as they existed at the time of the P anel's establishment are within our 
terms of reference and we therefore have discretion to assess whether those measures were 
consistent with India's WTO obligations.  
7.296.   That we have jurisdiction to assess the WTO -consistency of the measure s as they existed at 
the time of the Panel's establishment does not mean that we necessarily have to do so.774 In this 
case, we observe that both the original and the amended measure s concern  India's tariff treatment 
for telephones for cellular  networks or for other  wireless  networks, and, as we found above, the 
essence of the challenged measures has not changed. We also understand that the basis for Japan 
to claim that th e measure s are inconsistent with Article s II:1(a) and (b) has not changed.  We 
therefore see no reason to make distinct findings regarding the WTO -consistency of the measures 
as they existed at the time of the Panel's establishment and as they presently exist. We therefore 
assess the WTO -consistency of the measures 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).  
7.4.2.4.1.3   Whether "smartphones" are classified under tariff item 8517.12 of India's 
WTO Schedu le 
7.297.   Turning now to the third preliminary issue identified in paragraph 7.270  above, we examine 
whether Japan has demonstrated that smartphones are classified under tariff item 8517.12 of India's 
WTO Schedule.  
Main arguments of the parties  
7.298.   Japan  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. Japan  submits  that item 5 
of the Chapter Notes of Chapter 5 of the First Schedule states that "smar tphones" should be 
understood as telephones for cellular networks equipped with certain functions .775 Japan also 
 
766 Japan's opening statement at the second meeting of the Panel, para. 46 (referring to Panel Reports, 
Dominican Republic – Import and Sales of Cigarettes , para. 7.343; Indonesia – Autos , para. 14.9; and 
EC - Approval and Marketing of Biotech Products , paras. 7.1307 -7.1308).  
767 Japan's opening statement at the second meeting of the Panel, p ara. 46 (referring to Panel Reports, 
US – Wool Shirts and Blouses , para. 6.2; Indonesia – Autos , paras. 14.134 -14.135; and Dominican Republic – 
Import and Sale of Cigarettes , para. 7.343).  
768 Japan's opening statement at the second meeting of the Panel, par a. 46 (referring to Panel Reports, 
EC – IT Products , para. 7.166; and US – Poultry (China) , para. 7.55).  
769 Japan's opening statement at the second meeting of the Panel, para. 46 (referring to Panel Report, 
US – Poultry (China) , para. 7.55).  
770 Japan's resp onse to Panel question No. 68, para. 30.  
771 See e.g. Panel Reports, US – Poultry (China) , para. 7.54;  and Indonesia – Autos , para. 14.9.  
772 Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 
– US), para. 270. 
773 See e.g. Panel Reports, US – Poultry (China) , paras. 7.55 -7.56; and Indonesia – Autos , para. 4.97.  
774 See also Panel Reports, US – Renewable Energy , para. 7.17; and Russia – Tariff Treatment , 
para. 7.84. 
775 Japan's response to Panel question No. 76, para . 70; comments on India's response to Panel 
question No. 75, para. 92 (referring to First Schedule as of 1 February 2022, (Exhibit JPN -75), p. 1396).  WT/DS584/R  
 
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  considers that the structure of the First Schedule indicates that smartphones are a subgroup of 
"[t]elephone sets, including smartphones and oth er telephones, telephones for cellular networks or 
for other wireless networks".776 Thus, for Japan, smartphones are a subgroup of "telephone sets" 
and were therefore classified under heading 8517 of the First Schedule based on the HS2017.777 
Japan also subm its that tariff item 8517.14.00 covers "[ o]ther telephones for cellular networks or 
for other wireless networks" and considers that this structure of the First Schedule indicates that 
smartphones are a subgroup of "telephones for cellular or for other netw orks".778 Japan maintains 
that tariff items 8517.13.00 and 8517.14.00 of India's First Schedule have "replaced subheading 
8517 12 of the First Schedule based on the HS 2017 for which India bears obligations to provide 
duty-free treatment pursuant to its Sch edule."779 Relying on correlation tables prepared by India, 
Japan argues that products previously classified under tariff item 8517.12 of the First Schedule are 
presently classified under tariff items 8517.13.00 and 8517.14.00.780 Japan also  submits that a WCO 
classification opinion adopted in 2018  confirms that "smartphones" were classified under tariff item 
8517.12 of India's WTO Schedule .781  
7.299.   India maintains that "the term 'smartphones' does not appear in the ITA [] or in the [HS] 
2007 Sched ule."782 India submits that the "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 ".783 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.784 Relying on Chapter 
Note 5 to Chapter 85  of the HS2022 , India c onsiders that "smartphones are multifunctional devices, 
and the principal function of these devices is not that of telephones".785 India also submits that 
"since 'smartphones' were not granted a dedicated tariff sub -heading in HS2007, they were 
classifiable  under different tariff items, depending on the functionality of the smartphones".786 India 
also notes that tablet computers were classified under HS2007 subheading 8471.30, and while " not 
tak[ing] a definitive position on the issue" , considers that "tablet s too could potentially be classifiable 
as 'smartphones' (within the meaning of HS2022), being capable of making calls over a cellular 
network."787 India argues  that "smartphones could have been classified under various tariff items  
under HS2007 (on the bas is of the primary functionality of the machine) and not just under 
sub-heading 8517.12."788 
 
776 Japan's comments on India's response to Panel question No. 75, para. 91.  
777 Japan's comments on India's response to Panel question No. 75, para. 91.  
778 Japan's response to Panel question No. 76, para. 71. (emphasis original)  
779 Japan's comments on India's response to Panel question No. 75, para. 93.  
780 Japan's response to Panel question No. 76, para. 72 (referring to CBIC, Correlation of Customs Tariff 
between 2021 and 2022 (December 2021), (Exhibit JPN -74), pp. 1 and 326-327).  
781 Japan's comments on India's response to Panel question No. 75, para. 94 (referring to WCO, 
Classification Opinion  on "smartphones" (2018), (Exhibit JPN -79)). 
782 India's second written submission, para. 107.  
783 India's response to Panel question No. 75(a), p ara. 60, and No. 76(b), para. 63.  
784 India's response to Panel question No. 76, para. 63.  
785 India's response to Panel question No. 76, para. 63 (referring to Chapter 85 of the HS2022, 
(Exhibit  IND-85), Note 5). Chapter Note 5 to Chapter 85 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 processing machine such as downloading and running multiple 
applicatio ns simultaneously, including third -party applications, and whether or not integrating other features 
such as digital cameras and navigational aid systems."  
786 India's response to Panel question No. 75, paras. 60 and 62. See also India's comments on Japan's 
response to Panel question No. 76, para. 41.  
787 India's comments on Japan's response to Panel question No. 76(a), para. 41. 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 manage e -mails, exchange or download files, download 
software applications, conduct video or VoIP ('Voice  over Internet Protocol') communications, etc." ( Ibid. 
(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, "Po ssible 
Amendments to the Compendium of Classification Opinions and Explanatory Notes arising from the Decisions 
taken by the Committee at its 49th Session" (19 July 2012) document NC1775E1a, (Exhibit IND -86))).  
788 India's comments on Japan's response to Pan el question No. 76(a), para. 41.  WT/DS584/R  
 
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  Panel's assessment  
7.300.   We note at the outset that the product description of subheading 8517.12 of India's 
WTO Schedule is "telephones for cellular networks or for other wireless networks".789 Japan submits 
that "smartphones" are "telephones for cellular networks", and are therefore classified under this 
tariff item.790 India maintains that smartphones could have been classified under other subheadings 
of its WTO Sched ule depending  on their primary functionality, and not just under tariff item 
8517.12.791 We also note that Japan  is not arguing that smartphones are classified under any other 
tariff item of India's WTO Schedule and, hence, our assessment focuses on tariff item 8517.12 of 
India's WTO Schedule, which is the source of India's obligations according to Japan. Therefore, to 
the extent that smartphones are not classified under tariff item 8517.12 of India's WTO Schedule, 
India's tariff commitments under that tarif f item would not extend to such products. Should we find 
that India's WTO obligations under tariff item 8517.12 of India's WTO Schedule do not extend to 
smartphones, then Japan would have failed to establish India's bound duty rate with respect to 
smartpho nes for purposes of assessing the consistency of India's tariff treatment with Articles II:1(a) 
and (b).  
7.301.   We recall India's argument that the term "smartphones" does not appear in the ITA or in 
the HS2007 Schedule.792 We have rejected India's arguments that  the ITA limits the scope of its 
tariff commitments in its WTO HS2007 Schedule.793 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 th e term "smartphones" in 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.794 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.  
7.302.   The terms of the treat y at issue as reflected 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.  
7.303.   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 .795 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 satellit es", including, inter alia  "[c]ellular phones or 
mobile phones" and "[s]atellite phones".796 The key point of disagreement between the parties is 
whether "smartphones" are "cellular phones or mobile phones".  
7.304.   The dictionary meaning of "smartphone" is "a mobile phone capable of running general -
purpose computer applications, now typically with a to uch-screen interface, camera, and internet 
access" .797 Other dictionaries define "smartphone" as a "cell phone that includes additional software  
functions (such as email or an Internet browser)"798 and "a mobile telephone with computer features 
that may enab le it to interact with computerized systems and access the web".799 The foregoing 
 
789 See para. 7.262  above.  
790 Japan's response to Panel question No. 76, paras. 67 -73. 
791 India's response to Panel question No. 75, paras. 60 and 62; India's comments on the Japan's 
response to Panel question No. 76, para. 41.  
792 India's second written submission, para. 107.  
793 See para. 7.82 above.  
794 See para. 7.66 above.  
795 Appellate Body Report, EC – Computer Equipment , para. 89.  
796 HS2007 Explanatory Notes to Heading  8517, (Exhibit JPN -72), p. XVI -8517-2. 
797 Oxford English Dictionary online, definition of "smartphone" 
https://www.oed.com/view/Entry/381083?redirectedFrom=smartphones#eid (accessed 17 October 2022).  
798 Merriam -Webster Dictionary online, definition of "smartphone" https://www.merriam -
webster.com/dictionary/smartphone (accessed 17 October 2022).  
799 Collins Dictio nary online, definition of "smartphone" 
https://www.collinsdictionary.com/dictionary/english/smartphone (accessed 17 October 2022).   WT/DS584/R  
 
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  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".  
7.305.   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, India submits that "the principal  function no longer appears to be that of a 
telephone" and therefore smartphones " were classifiable under different tariff items, depending on 
the functionality of the smartphones ", and such products would not necessarily be classified under 
subheading 851 7.12.800 In this regard, w e observe that, pursuant to the General Rules for the  
Interpretation of the HS, classification shall be determined according to the terms of the headings 
and any relative Section or Chapter Notes. These Rules further provide that c lassification of goods 
shall be determined according to the terms of those subheadings and any related Subheading 
Notes .801  
7.306.   We note that Chapter Note 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 an d 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 .802  
7.307.   Therefore, for compos ite 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 th e 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 Inte rpretation of the HS and the Chapter Note to Section 
XVI of the HS2007 suggest that smartphones are classified under tariff item 8517.12 of India's 
WTO Schedule.  
7.308.   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 
8517.12.803 Classification Opinions, which are issued by the Harmonized System Committee of the 
WCO, are not binding upon parties to the WCO. However,  pursuant to Artic le 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".804 We therefore consider 
it relevant to our interpretative exercise that this WCO Classification Opinion indicates that 
smartphones a re "telephones for cellular networks", and are appropriately classified under 
subheading 8517.12 of India's WTO Schedule.805  
7.309.   We understand that the term "smartphones" was introduced into the HS nomenclature 
through the HS2022 amendment. We consider that th e HS2022 may constitute relevant context to 
verify our understanding of where such products were classified in the HS2007. In this regard, we 
note that Chapter Note 5 to Chapter 85 of the HS2022 provides that for the purposes of heading 
8517, the term "sma rtphones" 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 
 
800 India's response to Panel question No. 75, paras. 60 and 62; comments on Japan's response to Panel 
question No. 76, para.  41. 
801 General Rules for the Interpretation of the Harmonized System, (Exhibit JPN -60), paras. 1 and 6.  
802 HS2007 Section Notes to Section XVI, (Exhibit IND -9), Note 3. (emphasis added)  
803 WCO, Classification Opinion  on "smartphones" (2018), (Exhibit JPN -79).  
804 Panel Reports, EC – Chicken Cuts , para. 7.298. See also Appellate Body Report, EC – Computer 
Equipment , para. 90.  
805 We note that this Classification Opinion was issued in 2018, with regard to the HS2017. We als o 
observe that subheading 8517.12 remains unchanged between the HS2007 and the HS2017. Therefore, this 
Classification Opinion is relevant to our interpretation of India's WTO Schedule, which is based on the HS2007.  WT/DS584/R  
 
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  systems."806 This definition is consistent with the dictionary definitions we have referred to above. 
Moreover, it supports our assessment that the pri ncipal 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"807 are not core functions of smartphones.808  
7.310.   The structure and content of the HS2022 further supports this interpretation. The relevant 
sections of the HS2022 read as follows809:  
 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 o r 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 s ets with cordless handsets  
8517.1 3 -- Smartphones  
8517.1 4 -- Other telephones for cellular networks or for other wireless networks  
 
7.311.   We observe that the product description s of heading 8517 of the 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 ."810 Subheading 8517.14, in 
turn, refers to " [o]ther telephones for cellular networks or for other wireless networks". The use of 
the word "other"811 preceding the term "telephones 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 categ ory, comprising "other 
telephones for cellular networks") confirms this conclusion.  
7.312.   Finally, we note that the manner in which India amended its First Schedule indicates that, 
in India's domestic customs regime, smartphones are telephones for cellular netwo rks. We observe 
that the product description attached to heading 8517 of the First Schedule as of 1 January 2022 
reads "including smartphones and other telephones for other cellular networks ".812 Moreover, the 
product description attached to tariff item 8517.14.00 of the First Schedule is " [o]ther telephones 
for cellular networks ".813 These product descriptions  suggest that smartphones  are a  type of 
telephone for cellular networks . We further note that the Finance Act 2021 itself confirms that "[f]or 
the purp oses of heading 8517, the term 'smartphones' means telephones for cellular networks ."814 
7.313.   While India argues that " smartphones could have been classified under various tariff items 
under HS2007 (on the basis of the primary functionality of the machine)", Ind ia does not 
demonstrate under which subheading of its WTO Schedule it considers such products should have 
 
806 Chapter 85 of the HS2022, (Exhibit IND -85), Note 5. (emphasis added)  
807 India's response to Panel question No. 76(b), para. 63. See also India's response to Panel question 
No. 75(a), para. 60.  
808 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 -85), Chapter Note 5 ). 
(emphasis added)  
809 Emphasis added.  
810 Chapter 85 of the HS2022, (Exhibit IND -85). (emphasis added)  
811 The word "other" means "[s]eparate or distinct from th at or those already specified or implied; 
different; (hence) further, additional." ( Oxford English Dictionary online, definition of "other"  
https://www.oed.com/view/Entry/133219?rskey=Z7lVMl&result=1&isAdvanced=false#eid  (accessed 17 
October 2022)).    
812 Emphasis added. We recall that the description of heading 8517 in the First Schedule at the time of 
the Panel's 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, (Exhibit IND -60), p. 176. See 
also First Schedule  as of 1 February 2022, (Exhibit JPN -75), p. 1404).  
813 Finance Act 20 21, (Exhibit IND -60), p. 176.  
814 Finance Act 2021, No. 13 of 2021, (Exhibit IND -60), p. 44. (emphasis added)  WT/DS584/R  
 
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  been classified. We note that India suggests that tablet computers, which are defined as "machines 
which are 'designed to be primarily operated by usi ng 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 Vo IP ('Voice over Internet Protocol') communications, etc" could "potentially be classifiable 
as 'smartphones' (within the meaning of HS2022), being capable of making calls over a cellular 
network."815 India also submits that it "does not take a definitive po sition on the issue".816 We do 
not consider it necessary to discuss whether tablet computers 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 
"smartphone" does not appear in that Schedule), but rather whether smartphones are classified as 
"telephones for cellular networks" within the meaning of India's WTO Schedule.  
7.314.   In light of the foregoing, we conclude that smartphones are cellular mobile phones within 
the meaning of subheading 8517.12 of India's WTO Schedule.  
7.4.2.4.2   Comparison of applied and bound duty rates  
7.4.2.4.2.1   Main arguments of the parties  
7.315.   Japan argues that India imposes c ustoms duties on imports of telephones for cellular mobile 
networks in excess of the bound rate of 0% set forth in India's WTO Schedule.817 Japan acknowledges 
that telephones for other wireless networks are exempted from customs duties pursuant to 
Notificat ion No. 57/2017, and submits that such products are not subject to customs treatment in a 
manner inconsistent with Article II:1(b).818 Japan however maintains that India is providing less 
favourable treatment than what is provided for in its Schedule, which  is inconsistent with its 
obligations under Article II:1(a) because "this exemption is subject to the possibility of repeal at any 
time and, therefore, there remains uncertainty and unpredictability regarding the customs duties 
which will apply to such pro duct".819 
7.316.   India submits that it imposes a 20% customs duty on products classified under tariff item 
8517.13.00 (smartphones) and certain products classified under tariff item 8517.14.00 (other 
telephones for cellular networks), but exempts from customs duti es certain products classified under 
tariff item 8517.14.00 (other telephones for other wireless networks).820 
7.4.2.4.2.2   Panel's assessment  
7.317.   We recall that pursuant to its WTO Schedule, India is obligated to accord unconditional 
duty-free treatment to products fallin g under tariff item 8517.12 of that Schedule, namely 
telephones for cellular networks or for other wireless networks.821 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.  
7.318.   We have also found that India applies a 20% duty rate on smartphones covered under tariff 
item 8517.13.00, and other telephones for cellular networks covered under tariff item 8517.14.00. 
India exempts "other telephones for other wireless netw orks" covered under tariff item 8517.14.00 
from customs duties.  
7.319.   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 
 
815 India's comments on Japan's response to Panel question No. 76(a), para. 41.  
816 India's comments on Japan's response to Panel question No. 76(a), pa ra. 41.  
817 Japan's opening statement at the second meeting of the Panel, paras. 47 -49; response to Panel 
question No. 78, paras. 74 -76; first written submission, paras. 113 -114. 
818 Japan's response to Panel question No.  73, para. 61, and No. 74(a), para. 63; comments  on India's 
response to Panel question No. 77, para. 100.   
819 Japan's response to Panel question No.  73, para. 62, and No. 74(a), para. 64.  
820 India's response to Panel question No. 77, para. 64; comments on Japan's response to Panel 
question No.  78, para. 4 3. 
821 See para. 7.263  above.    WT/DS584/R  
 
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  accords to such products unconditional duty -free treatment, in accordance with the terms of its 
WTO Schedule.  
7.4.2.5   Conclusion  
7.320.   Based on the foregoing, we find that India's tariff treatment of telephones for cellular 
networks, which at the time of the Panel's establishment fell within the scope of tariff items 
8517.12.11 and 8517.12.19 of India's First Schedule and which presently fall within the scope of 
tariff items 8517. 13.00 and 8517. 14.00 of India's First 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 and  provided in India's WTO Schedule. We also find that India accords 
unconditional duty -free treatment to telephones for other wireless networks, which at the time of 
the Panel's establishment fell within the scope of tariff item 8517.12 .90 of India's First Schedule  and 
which presently fall within the scope of tariff item 8517. 14.00 of India's First Schedule , in accordance 
with the terms of its WTO Schedule, and is therefore acting consistently with Article II:1(b), first  
sentence, of the GATT 1994.822 
7.321.   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). Cons equently, 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 8517.61.00  of India's First Schedule  
7.4.3.1   India's WTO tariff commitments  
7.4.3.1.1   Main arguments of the parties  
7.322.   Japan asserts that India's bound duty rate for products falling under tariff item 8517.61 of 
India's WTO Schedule, base stations, is 0%.823 
7.323.   India contends that the tariff commitments under tari ff item 8517.61 as reflected in its 
WTO Schedule based on the HS2007 were certified in error.824 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.825 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.826 
7.4.3.1.2   Panel's assessment  
7.324.   We ha ve 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.827 We have also 
rejected India's arguments that the ITA sets forth, or otherwise limits the sc ope of, its tariff 
commitments in its WTO HS2007 Schedule.828 Moreover, we have declined to make the findings 
requested by India regarding its request to rectify its WTO Schedule pursuant to the 
1980 Decision.829 
 
822 Japan makes an additional claim to the effect that "even where exemptions are not subject to any 
terms or conditions , those exemptions do not eliminate the inconsistency with Article II:1(a) as far as the 
exempted products are concerned … because of the potential of deleterious effects on competition arising from 
these exemptions." (Japan's first written submission, par a. 133. See also Japan's second written submission, 
paras. 19 -20). Given that this claim, as we understand it, applies to all four tariff items covered by Japan's 
panel request, we consider it appropriate to provide our assessment in section 7.4.6 below.  
823 Japan's first written submission, para. 97.  
824 India's first written submission, paras. 38 -74. 
825 India's first written submission, paras. 148 -158. 
826 India's first written submission, paras. 73 -74. 
827 See para. 7.216  above.  
828 See para. 7.82 above.  
829 See para. 7.247  above.  WT/DS584/R  
 
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  7.325.   Therefore, we turn to India's WTO Schedule to  assess India's tariff commitments. India's 
WTO HS2007 Schedule provides, inter alia , the following830: 
 
Product description  Bound 
rate 
8517.61  -- Base stations    0% 
 
7.326.   A review of India's WTO Schedule shows that India committed to a bound duty rate of 0% 
for products falling under tariff item 8517.61, namely "[b]ase stations".831 We also note that India's 
WTO Schedule does not indicate any terms, qualifications or conditi ons that must be met in order 
for products under tariff item 8517.61 to receive the 0% bound duty rate.832 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.  
7.4.3.2   India's tariff treatment  
7.4.3.2.1   Main arguments of the parties  
7.327.   Japan argues that India's First Schedule imposes a standard duty rate of 20% on imports of 
base stations, which India classifies under tariff item 8517.61.00 of its First Schedule.833 Japan 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 Telecommunications of 
India for the purpose of pr oviding Public Mobile Trunked Service.834  Japan maintains that if this 
condition is not fulfilled, "relevant goods can be imported into India upon completion of the applicable 
customs procedures" but "such imports would be subject to the basic customs duty rate exceeding 
0% rather than the reduc ed rate applicable under the exemption".835 
7.328.   India does not dispute that the applied duty rate on base stations is 20%.836 India also does 
not dispute that certain products are exempt from customs duties if they meet the condition set out 
in Serial No. 425. H owever, 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."837 According to India, there is no requirement to record such "pr ocedural and 
documentary formalities for the importation of goods" in the WTO Schedule.838 India also submits 
that Serial No. 425 was omitted from Notification No. 50/2017 through Notification No. 02/2022.839 
Finally, India maintains that the products covere d 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 8517.61.00.840 
7.4.3.2.2   Panel's assessment  
7.329.   India's First Schedule imposes  a standard duty rate of 20% on products falling under tariff 
item 8517.61.841  
7.330.   At the time of the Panel's establishment, Serial No. 425 of Notification No.  50/2017 
exempted from customs duties base station controllers, base transreceiver stations, and  antenna 
 
830 WT/Let/1072.  
831 WT/Let/1072.  
832 WT/Let/1072.  
833 Japan's first written submission, para. 45 (referring to First Schedule  as of 12 February 2020, 
(Exhibit JPN -10), p. 1578).  
834 Japan's first written submission, para. 46 (referring to Notification No. 50/2017, (Exhibit JPN -32); 
and General Exemption No. 183, (Exhibit JPN -33)).  
835 Japan's response to Panel question No. 70, para. 40; Japan's comments on India's response to Panel 
question No. 70, paras. 75 -78. 
836 India's first written submission, para. 147.  
837 India's response to Panel question No. 69, para. 4 8 (referring to Indian Wireless Telegraphy Act 
1933, (Exhibit IND -79); and Notification No. 71 (25 September 1953), (Exhibit IND -80)). 
838 India's response to Panel question No. 69, para. 48.  
839 India's response to Panel question No. 91.  
840 India's response to  Panel question No. 91.  
841 First Schedule  as of 12 February 2020, (Exhibit JPN -10), p. 1578.  WT/DS584/R  
 
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  systems if imported by a person licenced by the Department of Telecommunications for the purpose 
of providing Public Mobile Radio Trunked Service.842 Notification No. 02/2022 amended Notification 
No. 50/2017 and omitted Serial No. 425 from that Notific ation with effect from 1 February 2022.843 
Therefore, with effect from 1 February 2022, the three products at issue are not eligible for 
exemption, even assuming that such products are classified under tariff item 8517.61 of the First 
Schedule.844 Therefore,  all products falling under tariff item 8517.61 are subject to the duty rate of 
20% stipulated in the First Schedule.  
7.331.    In sum, we find that India imposes a duty rate of 20% on products falling under tariff item 
8517.61.   
7.4.3.3   Comparison between India's WTO tar iff commitments and  its tariff treatment  
7.332.   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.  
7.333.    We have found that India imposes a 20% customs duty on products falling under tariff item 
8517.61.00 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 that 
India is imposing ordinary customs duties on those products in excess of the bound duty rate set 
forth in India's WTO Schedule.  
7.4.3.4   Conclusion  
7.334.   Based on the for egoing, we find that India's tariff treatment of base stations, falling within 
the scope of tariff item 8517.61.00 of India's First Schedule, is inconsistent with Article II:1(b), first 
sentence, of the GATT 1994, because such products are subject to ordin ary customs duties in excess 
of those set forth and provided in India's WTO Schedule.  
7.335.   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 s et 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 India's tariff treatment of such 
products is less favourable t han that provided in its WTO Schedule, and India is therefore acting 
inconsistently with Article II:1(a) of the GATT 1994.       
7.4.4   Tariff item 8517.62.90  of India's First Schedule  
7.4.4.1   India's WTO tariff commitments  
7.4.4.1.1   Main arguments of the parties  
7.336.   Japan  asserts  that India's bound duty  rate for products falling 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%.845  
7.337.   India contends that the tariff commitments under tariff item 8517.62 as reflected in its 
WTO Schedule based on the HS2007 were certified in error.846 India maintains that it did not make 
commitments on machines for the reception, conversion and transmission or regeneration of voice, 
images or other data, including switching and routing apparatus, which in its view were not covered 
 
842 Serial No. 425 of Notification No. 50/2017, (Exhibit JPN -32), pp. 259 -260 and 339.  
843 Notification No. 02/2022, (Exhibit JPN -77). 
844 We note India's arguments that base station controllers, 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. 91). 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.  
845 Japan's first written submission, para. 98.  
846 India's first written submission, paras. 40 -74. WT/DS584/R  
 
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  under the ITA  or the HS1996 .847 India also submits that the commitments under tariff item 8517.62 
were undertaken in error, are void pursuant to Article  48 of the Vienna Convention, and are therefore 
rendered unbound.848 
7.4.4.1.2   Panel's assessment  
7.338.   We have addressed India's arguments th at its WTO Schedule was certified in error above, 
and held that India's tariff commitments are set forth  in India's WTO Schedule.849 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.850 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 Sch edules.851 Moreover, 
we have declined to make the findings requested by India regarding its request to rectify its 
WTO Schedule pursuant to the 1980 Decision.852 
7.339.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2 007 Schedule provides, inter alia , the following853: 
 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% 
 
7.340.   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 ".854 We also note that India 's WTO Schedule does not indicate  any terms, qualifications 
or conditions  that must be met in order for products falling under tariff item 8517.62 to receive the 
0% bound duty rate .855 Therefore, in accordance with its WTO Schedule,  India is obligated to provide 
unconditional duty -free treatment to m achines for the reception, conversion and transmission or 
regeneration of voice, images or other data, including switching and routing apparatu s falling under 
tariff item 8517.62 of its WTO Schedule.  
7.4.4.2   India's tariff treatment  
7.4.4.2.1   Main a rguments of the parties  
7.341.   Japan submits that its claim relate to products classified under tariff item 8517.62.90, i.e. 
products which fall under item 8517.62 of the Fi rst Schedule, but do not fall under tariff items  
8517.62.10, 8517.62.20, 8517.62.30, 8517.62.40, 8517.62.50, 8517.62.60, and 8517.62.70 of the 
First Schedule.856 Japan argues that India's First Schedule sets a standard duty rate of 20% on 
imports of product s 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 voice, images or 
other data, including switching and routing apparatus.857 Japan also subm its that the applied duty 
rate is limited by certain customs notifications. First, Japan submits that Notification No. 24/2005 
and its succeeding amending notifications exempts "routers" from customs duties.858 Second, Japan 
 
847 India's first written submission, paras. 170 -173. 
848 India's first written submission, paras. 73 -74. 
849 See para. 7.216  above.  
850 See para. 7.82 above.  
851 See para. 7.78 above.  
852 See para. 7.247  above.  
853 WT/Let/1072.  
854 WT/Let/1072.  
855 WT/Let/1072.  
856 Japan's first Written submission, para. 4 8. 
857 Japan's first written submission, paras. 51 -52 (referring to First Schedule as amended by the Finance 
Act 2018, (Exhibit JPN -23)).  
858 Japan's first written submission, para. 53 (referring to Notification No. 24/2005, (Exhibit JPN -40), 
p. 81, as amende d by Notification No. 132/2006, (Exhibit JPN -41), pp. 48 - 49, Notification No. 58/2017, WT/DS584/R  
 
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  submits that Notification No. 57 /2017 and its succeeding amending notifications exempts all 
products falling under the tariff item 8517.62.90 of the First Schedule from the portion of customs 
duty exceeding 10%, except a specified list of goods.859 Thus, according to Japan, India imposes a 
duty rate of 10% or 20% to products falling under tariff item 8517.62.90860, except for routers which 
are exempted from customs duties.861  
7.342.   India submits that the applied duty rate on products classified under tariff item 8517.62.90 
of the First Schedule is 10% or 20%.862 India notes that  Notification No. 57/2017 which reduces the 
applicable duty rate to 10% for certain products covered by tari ff item 8517.62.90 applies to 
products covered by tariff item "8517.62.90 or 8517.69.90".863 India submits that the products 
described in that Notification "may not be classified under tariff item 8517.62.90".864 India argues 
that Japan  has failed to demonstrate that these  products listed in Notification No. 57/2017 fall within 
the scope of tariff item 8517.62.90 of India's First Schedule.865 Thus, according to India, to the 
extent that those goods are appropriately classified under tarif f item 8517.69, they are outside the 
scope of the present Panel request.866   
7.4.4.2.2   Panel's assessment  
7.343.   We observe that India's First Schedule  provides as follows with regard to tariff item 
8517.62867: 
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% 
 
7.344.   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.   
7.345.   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 
 
(Exhibit JPN -42), p. 9, and Notification No. 36/2019, (Exhibit JPN -43), pp. 8 -9; General Exemption No. 181, 
(Exhibit JPN -44), pp. 1753 -1754). 
859 Japan's first written su bmission, para. 53 (referring to Notification No. 57/2017, (Exhibit JPN -27), as 
amended by Notification No. 22/2018, (Exhibit JPN -45), p. 29, Notification No. 75/2018, (Exhibit JPN -46), p. 3, 
and Notification No. 02/2019, (Exhibit JPN -47), pp. 3 -4; General  Exemption No. 239, (Exhibit JPN -28), 
pp. 2206 and 2210). According to Japan, the goods which do not benefit from the reduced duty rate are: 
(i) Wrist wearable devices (commonly known as smart watches); (ii) Optical transport equipment; (iii) 
Combination o f one or more of Packet Optical Transport Product or Switch; (iv) Optical Transport Network 
products; (v) IP Radios; (vi) Soft switches and Voice over Internet Protocol equipment, namely, Voice over 
Internet Protocol phones, media gateways, gateway control lers and session border controllers; (vii) Carrier 
Ethernet Switch, Packet Transport Node products, and Multiprotocol Label Switching Transport Profile products; 
and (viii) Multiple Input/Multiple Output and Long Term Evolution products.  
860 Japan's first wr itten submission, para. 54.  
861 Japan's first written submission, para. 53.  
862 India's first written submission, para. 159.  
863 India's first written submission, paras. 159  and 161-162. 
864 India's first written submission, para. 162.  
865 India's response to Panel question No. 79, para. 68.  
866 India's response to Panel question No. 71, para. 53.  
867 First Schedule  as of 12 February 2020, (Exhibit JPN -10), p. 1578.  WT/DS584/R  
 
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  under tariff item 8517.62.90, from customs duties. Thus, India a ccords unconditional duty -free 
treatment  to such products .868 
7.346.   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)" to a reduced duty rate of 10% .869 Thus, while 
smart  watches classified under tariff item 8517.62.90 remained subject to the standard duty rate of 
20% set forth in the First Schedule, all other products classified under tariff item 8517.62.90 (other 
than routers870) became sub ject to a duty rate of 10% . 
7.347.   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 follows:871 
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)  
(d) Optical Transport Network (OTN) products  
(e) IP Radios  
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 Sw itch, 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  
 
7.348.   All other goods falling under tariff item 8517.62.90 that wer e 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).  
7.349.   Finally, Notification No. 57/2017 was amended by  Notification No. 02/2019, w hich merged 
Serial Nos. 20 and 21 as follows872:  
S. No.  Tariff item Description  
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 gateways, 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  
 
7.350.   Thus, taking into account all evidence before us, we understand that:  
 
868 Notification No. 24/2005, (Ex hibit JPN -40), as amended by Notification No. 36/2019, (Exhibit 
JPN-43). See also Japan's first written submission, para. 53.  
869 Notification No. 57/2017 as amended by Notification No. 22/2018, (Exhibit IND -82). 
870 We recall that in India's customs regime, t wo 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).  
871 Notification No. 57/2017 as amended by Notification No. 75/2018, (Exhibit IND -82). 
872 Notification No. 02/2019, (Exhibit JPN -47). WT/DS584/R  
 
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  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 Notifi cation No. 57/2017, as 
amended by Notification No. 02/2019, which are subject to the standard  duty rate of 20%.  
7.351.   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 items  
8517.62.90 or 8517.69.90 of India's First Schedule. Japan submits at least some of those products 
are covered by tariff item 8517.62.90873, while India maintains that Japan has failed to demonstrate 
that they are classified under that tari ff item.874 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".875  
7.352.   At this stage of our analysis, we do not consider it necessary to address wheth er the tariff 
treatment of certain products falls outside the scope of Japan'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 lega l obligations, the question of whether certain tariff 
treatment falls outside the scope of Japan's claim.  
7.4.4.3   Comparison between India's WTO tariff commitments  and its tariff treatment  
7.4.4.3.1   Main arguments of the parties  
7.353.   Japan argues that products falling under ta riff 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.876 In response to India's argument that the products listed in 
Notification N o. 02/2019 and subject to a 20% duty rate may be classified under tariff item 
8517.62.90 or 8517.69.90, Japan  submits that , in order to establish a claim pursuant to Article II:1, 
it is sufficient for a complainant to demonstrate that some of the products falling within the duty -
free tariff concessions at issue bear certain import duties or otherwise are subject to less favourable 
treatment than is given under the tariff concessions.877 Japan also argues that  "whether certain 
products listed in Customs Notif ication No. 02/2019 may or may not be classified under tariff item 
8517 62 90 of the First Schedule does not affect its claim, because a portion of tariff item 8517  62 90 
of the First Schedule is subject to 20% customs duties … and another portion of the t ariff item is 
subject to 10% customs duties".878 For Japan, to the extent that such products fall under tariff item 
8517.62.90 of India's First Schedule, they are subject to a 20% duty rate and are covered by Japan's 
claims.879 Japan also argues that "even i f some of the goods described in Serial No. 20 of Customs 
Notification No. 02/2019 are classified under tariff item 8517 69 90 of the First Schedule rather than 
tariff item 8517 62 90 of the First Schedule, this only indicates that the scope of the portion  of the 
products that fall under tariff item 8517 62 90 of the First Schedule and are subject to 10% customs 
duties instead of 20% custom duties becomes narrower."880   
7.354.   India argues that Japan  is obligated to identify the specific products at issue and thei r correct 
classification in order to demonstrate that there has been a violation of Article s II:1(a) and (b) of 
the GATT 1994.881 According to India, Japan  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 .882 India 
further argues that , because Japan's  claim is limited to products classified under tariff item  8517.62, 
 
873 Japan's response to Panel question No. 79, paras. 83 -84. 
874 India's response to Panel question No. 79, para. 68.  
875 India's first written submission, para. 162. See also India's response to Panel question No. 79, 
paras.  66-68. 
876 Japan's first written submis sion, paras. 98 and 117.  
877 Japan's comment on India's response to Panel question No. 71, para. 83.  
878 Japan's response to Panel question No. 26, para. 53.  
879 Japan's response to Panel question No. 79, para. 84.  
880 Japan's response to Panel question No. 79, pa ra. 84.  
881 India's response to Panel question No. 71, para. 52.  
882 India's response to Panel question No. 71, para. 53.  WT/DS584/R  
 
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  "to the extent that the products described [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."883 
7.4.4.3.2   Panel's assessment  
7.355.   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, classif ied 
under tariff item 8517.62 of that Schedule. 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 appara tus. 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 unconditional duty -free treatment.  
7.356.   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 ta riff treatment 
in accordance with India's WTO 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 Seri al No. 20 of Notification No. 57/2017, as amended by 
Notification No. 02/2019, the standard duty rate of 20%.  
7.357.   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 Japan's claim. 
In this respect, we recall that Japan's claim concerns products falling within the scope of tariff item 
8517.62.90 of India's First Schedule.884 We also recall that 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 India is obligated to provide unconditional duty -free 
treatment to all products classified under tariff item 8517.62 of  India's First Schedule. In order for 
Japan to prevail in its claim, it needs to demonstrate that at least some products falling under tariff 
item 8517.62 of India's First Schedule are subject to tariff treatment that is inconsistent with India's 
WTO oblig ations.885 
7.358.   Japan has established that India's First Schedule imposes a 20% duty rate on products 
classified under tariff item 8517.62.90.886 Moreover, it is uncontested that India's customs 
notifications modify the tariff treatment accorded to certain produc ts 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%).887 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 8517.62.90888) and that those products are subject to the 20% 
duty rate set forth in India's First Schedule. We therefore consider that Japan has established that 
some  of the products classified under tariff item 8517.62 of India's First Schedule are subject to a 
duty rate of 10% or 20%, and are therefore taxed in excess of the bound duty rate relating to tariff 
item 8517.62 of India's WTO Schedule . 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 
Notification No. 02/2019,  are classified under  tariff item 8517.62.90.889 This, in our view, suffices 
 
883 India's first written submission, para. 162. See also India's response to Panel question No. 71, 
para. 53. 
884 Japan's first written submi ssion, para. 13; panel request, p. 1.  
885 See also fn 196 to para. 7.7 above; and Panel Reports, EC – IT Products , para. 7.116.  
886 See para. 7.343  above.  
887 See para. 7.356  above.  
888 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 
classif ied 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.  
889 Nevertheless, for the purpose of providing clarit y, 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, Notifica tion No. 22/2018 
amended the duty rate applied to smart watches falling under tariff item 8517.62.90. (See para. 7.346  above). 
Similarly, Notification No. 75/2018 a mended the duty rate applied to optical transport equipment, combination WT/DS584/R  
 
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  for the purposes of assessing whether India is acting inconsistently with Article s II:1(a) and (b) of 
the GATT 199 4. 
7.4.4.4   Conclusion  
7.359.   Based on the foregoing, we find that India's tariff treatment of certain 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. 62.90  of India's 
First 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 pr ovided in 
India's WTO Schedule.  
7.360.   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 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 Ind ia is therefore acting 
inconsistently with Article II: 1(a) of the GATT 1994.  
7.4.5   Tariff items  8517.70.10 and 8517.70.90 of India's First Schedule  
7.4.5.1   General issues  
7.4.5.1.1   Main arguments of the parties  
7.361.   Japan challenges the legal instruments regulating the tariff treatmen t accorded by India 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.890 In response to a question from the Panel following the 
second substantive meeting, Japan clarifie d that,  following certain  amendment s to India's First 
Schedule, pursuant to the Finance Act 2021, the challenged tariff treatment is presently accorded 
to products falling under tariff items  8517.71.00, 8517.79.10, and 8517.79.90.891 Japan considers 
that " the creation of new tariff items by the Finance Act, 2021 does not affect Japan's claims "892 and 
"the scope of the Products Concerned has not changed".893 Japan considers that " the Panel should 
make findings regarding the inconsistency with Articles II:1(a) and II:1(b) of the GATT 1994 of the 
measures as they existed at the time of the establishment of th e panel, as well as the measures as 
they now exist following the changes brought into the First Schedule by the Finance Act, 2021 ".894  
7.362.   India notes that " as opposed to the replacement of tariff line 8517.12 with tariff lines 
8517.13 and 8517.14, the replace ment of tariff lines 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 tari ff 
lines 8517.79.10 and 8517.79.90 ".895 India also 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, e xtend to sub -heading s 8517.79.10 and 
8517.79.90, respectively ".896 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 the re has been a violation of Article s II:1(a) and (b) of the GATT 1994."897 
Specifically with respect to tariff item 8517.70.90 of the First Schedule, as it existed at the time of 
the Panel's establishment, India acknowledges that certain products898 fell unde r tariff item 
 
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. 7.347  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.  
890 Japan's first written submi ssion, para. 13(f) -(g).  
891 Japan's response to Panel question No. 83, paras. 91 -95.   
892 Japan's response to Panel question No. 83, para. 91.  
893 Japan's response to Panel question No. 68, para. 34.  
894 Japan's response to Panel question No. 68, para. 36.  
895 India's response to Panel question No. 83, para. 72.  
896 India's response to Panel question No. 83, para. 72.  
897 India's response to Panel question No. 71, para. 52.  
898 Namely "[a] ll goods other than the parts of cellular mobile phone s", "[i] nputs for all goods other than 
the parts of cellular mobile phones", "connectors for use in manufacture of cellular mobile phones", and WT/DS584/R  
 
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  8517.70.90 of the First Schedule, but considers that "[f]or all other products mentioned in Japan' s 
Panel Request and first written submissions, Japan has not established that such products are 
classified under tariff item 8517.70.90 " and con sequently " such products must be held to be outside 
the scope of the present dispute ".899  
7.4.5.1.2   Panel's assessment  
7.363.   Before turning to assess the merits of the parties' arguments with respect to Japan's claims 
concerning products that, at the time of the Panel's establishment, were classified under tariff item 
8517.70.10 and 8517.70.90 of India's First Schedule, we consi der it useful to address two general 
issues. First, we address the impact, 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 GA TT 1994 with respect to the domestic tariff classification of the products at 
issue.  
7.364.   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 i n certain 
amendments to India's First Schedule.900 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 8517.79.90.901 India ha s clarified that " the replacement of tariff items  
8517.70.10 and 8517.70.90 has only resulted in a change in headings, and not the descriptions ".902  
7.365.   We note that Japan considers that the Panel should make findings regarding "the measures 
as they existed at  the time of the establishment of the panel, as well as the measures as they exist 
following the changes brought into the First Schedule by the Finance Act, 2021".903 In other words, 
Japan requests us to make distinct assessments of the WTO-consistency of the measures at issue 
with respect to the situation before and after India's amendment of its First Schedule. We also note 
that India does not argue that the amendments to its First Schedule have modified the tariff 
treatment accorded to  the products at issue, nor does India argue that those amendments have 
resolved any potential WTO -inconsistency.904 Moreover, Japan acknowledges that "the creation of 
new tariff items by the Finance Act, 2021 does not affect Japan's claims "905 and "the scop e of the 
Products Concerned has not changed".906 From the foregoing, we understand that, while the 
measure s as challenged by Japan ha ve been amended through the Finance Act 2021, the basis for 
Japan to claim that th e measure s are inconsistent with Article s II:1(a) and (b) has not changed .907 
We therefore see no reason to make distinct findings regarding the WTO -consistency of the measures 
as they existed at the time of the establishment of the panel and as they exist "now".908 We therefore 
proceed with our an alysis by observing the evolution of India's tariff treatment during these 
proceedings, and assessing the WTO -consistency of the measures at issue based on the most up -
to-date information available to the Panel (i.e. based on the situation as it stands fol lowing India's 
amendment of the First Schedule on 1 January 2022).  
7.366.   Turning to the second issue, we note India's argument that the Panel should reject Japan's 
claim on the grounds that the burden is on Japan to demonstrate India's domestic classification of  
the products at issue, that Japan has failed to confirm the domestic classification of certain products, 
and that they consequently fall " outside the scope of the present dispute".909 We agree with India 
that the burden of demonstrating India's inconsisten cy with Articles II:1(a) and (b) of the GATT  1994 
 
"certain limited camera modules such as those used in the manufacture of cellular mobile phones". (India's 
first written submission, para. 188).  
899 India's first written submission, para. 188.  
900 See para. 7.268  above.  
901 Japan's response  to Panel question No. 83, paras. 91 -94; India's response to Panel question No. 83, 
para. 72 .  
902 India's response to Panel question No. 83, para. 72.  
903 Japan's response to Panel question No. 68, para. 36.  
904 India's response to Panel question No. 83, para.  72.  
905 Japan's response to Panel question No. 83, para. 91.  
906 Japan's response to Panel question No. 68, para. 34.  
907 It is uncontested that the amended measures fall within the scope of the Panel's terms of reference. 
In any event, for the reasons expla ined above, we consider that the amended measures fall within the scope of 
the Panel's terms of reference. See also para. 7.292  above.  
908 Japan's response to Panel question No. 68, para. 36.  
909 India's first written submission, para. 210. See also India's response to Panel question No. 71, 
para. 55. WT/DS584/R  
 
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  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 burden of demonstrating a particular factual 
assertion.910 In this respect, "the party who asserts a fact, whether the claimant or the respondent, 
is responsible for providing proof thereof".911  
7.367.   We recall that Japan's claim concerns products that, at the time of the Panel's establishment, 
fell within the scope of tariff items  8517.70.10 and 8517.70.90 of India's First Schedule.912 Japan 
alleges that these products fall within the scope of tariff item 8517.70.00 of India's WTO Schedule.913 
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 products falling under tariff item 8517.70.00 
of India's WTO Schedule. We will then turn to assess the parties' respective factual assertions 
regarding the tariff treatment applie d by India to certain products under its domestic customs 
regime. In that context, we will assess whether Japan'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 , whether the challenged tariff t reatment concerns products falling within the 
scope of India's WTO tariff commitments concerning tariff item 8517.70.00 of its WTO Schedule.  
7.4.5.2   India's WTO tariff commitments  
7.4.5.2.1   Main arguments of the parties  
7.368.   Japan submits that tariff items  8517.70.10 and 8517.7 0.90 of India's First Schedule, as it 
existed at the time of the Panel's establishment, "correspond" to tariff item 8517.70.00 of India's 
WTO Schedule, in respect of which the bound rate is 0%.914  
7.369.   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.915 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.916 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.917  
7.4.5.2.2   Panel's assessment  
7.370.   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.918 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.919 Moreover, we have declined to make the findings 
 
910 As the Appellate Body stated in Japan – Apples , "[i]t is important to distinguish, 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 providing 
proof thereof. In fact, the two principles are distinct." (Appellate Body Report, Japan – Apples , para. 157 ). 
(footnotes omitted)  
911 Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at p. 335. The 
Appellate Body also observed that "the 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 i s true, the burden then shifts to the other party, who will 
fail unless it adduces sufficient evidence to rebut the presumption." (Ibid.).  
912 Japan's first written submission, para. 13(f) -(g); panel request, pp. 3 -5. 
913 Japan's first written submission, para s. 101 -104. 
914 Japan's first written submission, paras. 101-104.  
915 India's first written submission, paras. 38 -74. 
916 India's first written submission, paras. 176 -194. 
917 India's first written submission, paras. 74.  
918 See para. 7.216  above.  
919 See para. 7.82 above.  WT/DS584/R  
 
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  requested by India regarding its request to rectify its WTO Schedule pursuant to the 
1980 Decision.920 
7.371.   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 
falling under tariff items  8517. 70 ex01, ex02, and ex03.921 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 wire d 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 refer to these products as "parts of telephone sets and other certain apparatus 
for transmis sion or reception of voice, images, or data")922: 
 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 da ta, 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  
8517.70.00  - 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% 
 
7.372.   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 . 
7.4.5.3   India's tariff treatment  
7.4.5.3.1   Main arguments of the parties  
7.373.   Japan'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.923 With respect to the tariff treatment of pro ducts falling under tariff item 
8517.70.10 of the First Schedule, Japan  argues that, under the First Schedule, as amended by the 
Finance Act 2020, the duty rate applied to such products was 20%, unless exempted from that duty 
rate pursuant to a customs not ification .924 Japan argues in this regard that: (i) pursuant to 
Notification No. 24/2005, except for certain specified products, products falling under tariff item 
8517.70.10 of India's First Schedule were subject to a total exemption from the  standard  duty rate 
if they satisf ied certain conditions; (ii) subject to certain conditions, Notification No. 50/2017 also 
exempt ed certain products from the entirety of the duty925; and (iii) Notification No. 57/2017 further 
exempt ed certain products from "the por tion of customs duty exceeding 10%" , without being subject 
 
920 See para. 7.247  above.  
921 WT/Let/1072.  
922 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 machines 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.).  
923 Japan's first written submission, paras. 55 -68, 101 -104, an d 119 -122. 
924 Japan's first written submission, paras. 55 -59 (referring to Notification No. 36/2018, 
(Exhibit  JPN-50), p. 2; Lok Sabha Statutory Resolution Approving Notification No. 36/2018, (Exhibit JPN -48), 
p. 32; Rajya Sabha Statutory Resolution Approving Notification No. 36/2018, (Exhibit JPN -49), p. 548; Finance 
Bill 2020, (Exhibit JPN -51), pp. 40 and 59; and Finance Act 2020, (Exhibit JPN -52), p. 1).  
925 Japan's first written submission, para. 60(b) (referring to Notification No. 50/20 17, (Exhibit JPN -32), 
pp. 256 and 283; and General Exemption No. 183, (Exhibit JPN -33), pp. 1785 and 1807).  WT/DS584/R  
 
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  to any conditions .926 Japan submits that products falling within the scope of tariff item 8517.70.10 
of India's First Schedule, that d id not benefit from a complete exemption, were subject to either  a 
10% or 20% duty rate.927  
7.374.   With respect to products falling under tariff item 8517.70.90  of India's First Schedule , Japan 
submits that pursuant to the Finance Act 2018, the standard duty rate applicable to such products 
was 15%.928 Japan  argues that a numb er of specified products falling under tariff item 8517.70.90 
were exempted from duties pursuant to Notification Nos. 50/2017 and 57/2017, read in conjunction 
with their succeeding notifications.929 However, according to Japan, products "other than those wh ich 
benefit from the tariff exemption pursuant to the relevant notifications … [we]re subject to either 
10% or 15% customs duty".930  
7.375.   Japan  acknowledges that, as of 1 January 2022 , tariff items  8517.70.10 and 8517.70.90 of 
India's First Schedule were replaced with tariff items  8517.71, 8517.79.10, and 8517.79.90.931 
Japan highlights, however, that the " Finance Act, 2021 has merely reshaped the structure of 
subheading [s] covering 'Parts' of products falling under heading 8517 of the First Schedule, pursuant 
to which subheading 8517 70 of the First Schedule has been replaced by two new subheadings (i.e. 
subheadings 8517 71 and 8517 79) " such that "' Parts' of products falling under heading 8517 of the 
First Schedule are still subject to a 20% or 15% customs duty regardless of changes due to the 
Finance Act, 2021. "932 Japan further elaborates that " as long as the necessary amendments were 
made to the relevant customs notifications, the exempti ons which applied to tariff items 8517 70 10 
and 8517 70 90 of the First Schedule at the time of the establishment of the Panel apply to tariff 
items 8517 79 10, as well as tariff items 8517 71 00 and 8517 79 90, of the new version of the 
First Schedule. "933 
7.376.   With respect to tariff item 8517.70.10 of the First Schedule at the time of the Panel's 
establishment , India "does not contest that the current duty is 20% on the [PCBA] for Cellular Mobile 
Phones and 10%" for certain items covered under heading 8517.70. 10.934 India considers, however, 
that it provides duty -free treatment to all other products falling under tariff item 8517.70.10.935 With 
respect to tariff item 8517.70.90 of the First Schedule, India does not contest that "'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 .936  
7.377.   With respect to the tariff treatment accorded after 1  January 2022 , India states 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 ", and therefore " India has not raised any defense concerning the 
replacement of HS2007 tariff lines 8517.70.10 and 8517.70.90 with HS2 022 tariff lines 8517.79.10 
and 8517.79.90 ".937 India states, however, " that all submissions made by it with regard to 
 
926 Japan's first written submission, para. 60(c) (referring to Notification No. 57/2017, (Exhibit JPN -27), 
as amended by Notification No. 22/2018, (Exhibit JPN -45), and Notification No. 02/2020, (Exhibit JPN -55)); 
and General Exemption No. 239, (Exhibit JPN -28), pp. 2206 and 2210 -2211).  
927 Japan's first written submission, para. 61.  
928 Japan's f irst written submission, paras. 65 -66. 
929 Japan's first written submission, para. 67.  See also Japan's response to Panel question No. 81.  
930 Japan's first written submission, para. 68.  
931 Japan's response to Panel question No. 83, paras. 91 -94. 
932 Japan's resp onse to Panel question No. 83, para. 93.  
933 Japan's response to Panel question No. 83, para. 95. As an example of such an amendment, Japan 
notes that Serial No. 402 of Notification No. 50/2017 has been amended to replace a reference to tariff item 
8517.70. 10 with a reference to tariff item 8517.79.10 of India's First Schedule. (Japan's response to Panel 
question No. 83, para. 95 (referring to Notification No. 55/2021, (Exhibit JPN -76)). Japan notes, however, that 
"the tariff exemption applicable to populate d printed circuit boards falling under tariff item 8517 70 10 of the 
First Schedule was subsequently repealed by Customs Notification No. 2/2022, effective from 2 February 
2022". (Ibid. fn 137 to para. 95 (referring to Notification No. 02/2022, (Exhibit JP N-77)). 
934 India identifies these products as printed circuit board assemblies of the following goods: 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 Switch, Packet Transport Node products, and Multiprotocol  Label 
Switching -Transport Profile products; and Multiple Input/Multiple Output and Long Term Evolution products. 
(India's first written submission, para. 176 (referring to Notification No. 57/2017, (Exhibit IND -82))). 
935 India's first written submission, p ara. 177.  
936 India's first written submission, para. 188. (emphasis omitted)  
937 India's response to Panel question No. 83, para. 72.  WT/DS584/R  
 
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  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 s 8517.79.10 and 
8517.79.90, respectively ".938  
7.4.5.3.2   Panel's assessment  
7.378.   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 s 8517.70.10 and 8517.70.90 of 
India's First Schedule. We then assess the effects of India's amendment of the First Schedule during 
these proceedings.  
7.4.5.3.2.1   Tariff treatment at the time of the Panel's establishment  
7.379.   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 
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 vo ice, images, or data939: 
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 pr inted circuit boards  20% 
8517.70.90  -- Other  15% 
 
7.380.   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 part ies940 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 .941 Based on our examination of the evidence, 
we consider the following fac tual findings to be adequately supported by the evidence on the record.  
7.381.   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 c onstituting 
parts of telephone sets or other certain apparatus for transmission or reception of voice, images, or 
data.942 As indicated above, the standard duty rate applicable to such products under the First 
Schedule was 20%.943 However, the applied duty r ate is subject to customs notifications, as follows:  
 
938 India's response to Panel question No. 83, para. 72.  
939 First Schedule as of 12 February 2020, (Exhibit JPN -10), p.  1578.  
940 Specifically, the European Union and Chinese Taipei.  
941 We recall that the burden of demonstrating a factual assertion falls on the party making that factual 
assertion. (See para. 7.366  above).  
942 See para. 7.379  above.  
943 See para. 7.379  above.  WT/DS584/R  
 
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  a. Pursuant to Serial No. 22 of Notification No. 57/2017 , as amended by Notification 
No. 02/2020 , PCBAs for certain specified products944, falling under this tariff item, became  
unconditionally subject to a 10% duty rate .945  
b. Pursuant to Serial No. 13S of Notification No. 24/2005, as amended by Notification 
No. 76/2018 , products falling under  this tariff item other than PCBAs for cellular mobile 
phones and the products identified in footnote 944 above were eligible for dut y-free 
treatment if they satisf ied certain  conditions .946 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 Commis sioner 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 goods947 and in the event of failure to comply with 
that condition the importer w ould 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 importation.948  
c. Pursuant to Serial No. 402 of Notification No. 50/201 7, 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 converters for automatic data 
processing machines and units thereof of tariff items  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.949  
7.382.   Any products falling under tariff item 8517.70.10 that did not benefit from the tariff 
treatment available under these cus toms notifications (for instance PCBAs for cellular mobile 
phones950) remained subject to the 20% standard duty rate set forth in the First Schedule.  
7.383.   We 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 tariff 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.  
 
944 Specifically PCBAs for: base stations; optical transport equipme nt; 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 cont rollers 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 945 to para. 7.381  below).  
945 Serial No. 22 of Notification No. 57/2017 as amended by Notification No. 02/2020, (Exhibit IND -82). 
See also General Exemption No. 239, (Exhibit JPN -28). 
946 Serial No. 13S of Notification No. 24/2005, (Exhibit JPN -40), as amended by Notification 
No. 132/2006, (Exhibit JPN -41), Notification No. 58/2 017, (Exhibit JPN -42), Notification No. 38/2018, 
(Exhibit  JPN-53), and Notification No. 76/2018, (Exhibit JPN -54). See also General Exemption No. 181, 
(Exhibit  JPN-44).  
947 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; IP radios; soft switches and Voice over Internet Protocol 
equipment, namely, Voice ove r 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 No. 24/2005, (Exhibit JPN -40), as amended by Notification No. 132/2006, 
(Exhibit JPN -41), Notification No. 58/2017, (Exhibit JPN -42), Notification No. 38/2018, (Exhibit JPN -53), and 
Notification  No. 76/2018, (Exhibit JPN -54)). See also General Exemption No. 181, (Exhibit JPN -44).  
948 Serial No. 13S of Notification No. 24/2005, (Exhibit JPN -40), as amended by Notification No. 
132/2006, (Exhibit JPN -41), Notification No. 58/2017, (Exhibit JPN -42), N otification No. 38/2018, 
(ExhibitJPN -53), and Notification No. 76/2018, (Exhibit JPN -54). See also General Exemption No. 181, 
(Exhibit  JPN-44). 
949 Serial No. 402 of Notification No. 50/2017, (Exhibit JPN -32).  
950 Pursuant to Serial No. 21 of Notification No.  57/2017, PCBAs 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 -82)). 
PCBAs for 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.  WT/DS584/R  
 
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  7.384.   In our view, the conditions attached to the duty -free treatment available under Serial No. 
13S of  Notification No. 57/2012 and Serial No. 402 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 cond ition "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."951 
In support of its assertion,  India submits Circular No. 04/2022 as an exhibit.952 We note that Circular 
No. 04/2022 makes certain amendments to the Customs Rules 2017.953 Circular No. 04/2022 
indicates that these amendments are "aimed at simplifying the procedures with a focus on 
autom ation and making the entire process contact -less".954 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 ."955 On the basis of the procedures set out in Cir cular No. 04/2022, the 
"Deputy Commissioner or Assistant Commissioner of Customs at the port of importation shall allow 
the benefit of exemption notification ."956 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 the products. We therefore do not see 
anything on the record to suggest that these are general co nditions for importation of goods.   
7.385.   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".957 This, on its face, is a 
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 fr om being imported – rather, they would be imported subject to 
the 20% standard duty rate. Indeed, with respect to all relevant 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.  
7.386.   Turning to products falling unde r tariff item 8517.70.90 of India's First Schedule, at the time 
of the Panel's establishment this tariff item covered "other" 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 ).958 The standard duty rate appli cable to such products under 
the First Schedule was 15%.959 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 
 
951 India's response to Panel question No. 69, para. 47 (referring to Circular No. 04/2022 (27 February 
2022), (Exhibit IND -78)).  
952 Circular No. 04/2022  (27 February 2022), (Exhibit IND -78), p. 1.  
953 Circular No. 04/2022 (27 February 2022), (Exhibit IND -78), p. 1.  
954 Circular No. 04/2022 (27 February 2022), (Exhibit IND -78), p. 1.  
955 Circular No. 04/2022 (27 February 2022), (Exhibit IND -78), para. 4.1. (emphasis added)  
956 Circular No. 04/2022 (27 February 2022), (Exhibit IND -78), para. 4.8. (emphasis added)  
957 Serial No.  13S of Notification No. 24/2005, (Exhibit JPN -40), as amended by Notification No. 
132/2006, (Exhibit JPN -41), Notification No. 58/2017, (Exhibit JPN -42), Notification No. 38/2018, 
(Exhibit  JPN-53), and Notification No. 76/2018, (Exhibit JPN -54). See also General Exemption No. 181, 
(Exhibit  JPN-44). 
958 See para. 7.379  above.  
959 See para. 7.379  above.  WT/DS584/R  
 
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  treatment960; 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 .961 
b. Similarly, pur suant to Serial Nos. 5 to 8 of Notification No. 5 7/2017, as amended by 
Notification No s. 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 
eligibl e for duty -free treatment962; (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 2017963; 
 
960 Pursuant to Serial No. 468 of Notification No. 50/2017, the 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 readers/scanners other than fingerprint readers/scanners 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, (Exhibit JPN -32), as amended by Notification No. 01/2020, (Exhibit 
JPN-56)). See also General Exemption No. 1 83, (Exhibit JPN -33), pp. 1759, 1791 -1792 and 1807).  
961 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 readers/scanners other than 
fingerprint readers/scanners  for use in manufacturing of cellular mobile phones; (iii) iris scanners; and (iv) 
miniaturized POS card readers for mPOS (other than mobile phones or tablet computers); (2) pursuant to 
Serial Nos. 506, 507, and 508: (i) parts, components and accessories f or use in manufacture of broadband 
modem falling under tariff item 8517 .62.30 of the First Schedule, other than populated printed circuit boards, 
chargers and power adapters; (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, chargers, 
and power adapters; (iii) parts, components and accessories for use in the manufacture of set -top boxes for 
gaining access to internet falling un der tariff item 8517.69.60 of the First Schedule, other than populated 
printed circuit boards, chargers, and power adapters; 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 
manufacture of populated printed circuit boards of; (a) broadband modems falling under tariff item 8517 .62.30 
of the First Schedule; (b) routers falling under tariff item 8517.62.90 of the First Schedule; and (c) set -top 
boxes for gaining access to internet falling 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, 
(Exhibit JPN -32), as amended by Notifica tion No. 37/2019, (Exhibit JPN -57), and Notification No. 01/2020, 
(Exhibit JPN -56). See also General Exemption No. 183, (Exhibit JPN -33), pp. 1759, 1791 -1792 and 1807). 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 
Japan's claims concerning products falling under tariff items 8517.70.10 and 8517.70.90 of India's First 
Schedule, as they existed at the time of the Panel's establishment, we consider it uncontested that the 
exemptions for those products are not relevant. We also note that pursuan t 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 Service, were eligible for 
exemptions  from customs duties subject to the condition that the importer followed the procedures 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 Sche dule" and that they must be examined individually to 
ascertain their correct classification. (India's response to Panel question No. 91). As noted in paragraph 7.330  
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 JPN -77)). Hence, we do not consider it necessary for the resolution of 
this dispute to make further f actual findings regarding the tariff treatment accorded under Serial No. 425 of 
Notification No. 50/2017 at the time of the Panel's establishment.  
962 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. 57/201 7, (Exhibit IND -82). See also General Exemption No. 239, (Exhibit JPN -28), 
p. 2206)).  
963 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 Custo ms Rules 2017, were eligible for duty -free 
treatment under Notification No. 57/2017:  (1) pursuant to Serial Nos. 5C, 5D, and 5E: (i) inputs or sub -parts 
for use in the manufacture of vibrator motors/ringers for use in the manufacture of cellular mobile pho nes, 
display assemblies for use in the manufacture of cellular mobile phones, or touch panels/cover glass 
assemblies for use in manufacture of cellular mobile phones; and (ii) inputs or sub -parts for use in the 
manufacture 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, provided that both of these categories exclu de 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 WT/DS584/R  
 
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  or (iii) became eligible for a  10% duty rate (rather than  the 15% standard duty rate set 
forth in the First Schedule) subject to the condition that the importer follow ed the 
procedure s set out in the Customs Rules 2017 .964  
7.387.   Regarding the conditional nature of the tariff treatment accorded to certain products falling 
under tariff item 8517.70.90, we recall our finding that 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.965 We 
understand that if the relevant products failed to satisfy such conditions they could be imported into 
India, bu t at the standard duty rate set forth in the First Schedule instead of the beneficial tariff 
treatment available under these Notifications.  
7.4.5.3.2.2   Tariff treatment as of 1 January 2022  
7.388.   Having addressed the tariff treatment applicable to products falling under ta riff items  
8517.70.10 and 8517.70.90 at the time of the Panel's establishment, we recall that on 1 January 
2022 the First Schedule was amended, such that "[tariff items] 8517 70 10 and 8517 70 90 and the 
entries relating thereto" were substituted with the following entries966:  
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% 
 
7.389.   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. Japan indicated that " as long as the necessary amendments were made 
to the relevant customs notifications, the exemptions which applied to tariff items 8517 70 10 and 
 
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 headsets; (ii) battery covers; (iii) front covers; 
(iv) front covers (with zinc casting); (v) middle covers; (vi) GSM antennae/antennae of any technology; (vii) 
side keys; (viii) main lenses; (ix) camera lenses; (x) screws; (xi) microphone rubber  cases; (xii) sensor rubber 
cases/sealing gaskets including sealing gaskets/cases from rubbers like SBR, EPDM, CR, CS, silicone and all 
other individual rubbers or combination/combination of rubbers; (xiii) PU cases/sealing gasket – other articles 
of polyu rethane 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 sockets/other mechanical items 
(Metal); (xvi) SIM sockets/other mechanical items (pl astic); (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) 
microphones and receivers; (xxviii) key pads; (xxix) USB cables; and (xxx) fingerprint readers/scanner; (4) 
pursuant to Serial No. 7A: inputs and raw material, other than PCBAs (falling under the tariff item 8504.90.90 
of the First Schedule) and moulded plastics (falling under the 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; and (iii) all goods falling under tariff item 
8517.69.90 of the First Schedule. (Notification No. 57/2017 as amended b y Notification No. 22/2018, 37/2018, 
02/2019, 24/2019, and 02/2020, (Exhibit IND -82). See also General Exemption No. 239, (Exhibit JPN -28), 
pp. 2206, 2209 and 2211)).  
964 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 modules 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 u se in manufacture of cellular mobile phones; (ii) display assemblies for use in 
manufacture of cellular mobile phones; and (iii) touch panels/cover glass assemblies for use in manufacture of 
cellular mobile phones. (Notification No. 57/2017 as amended by N otification Nos. 37/2018 and 02/2020, 
(Exhibit IND -82). See also General Exemption No. 239, (Exhibit JPN -28), pp. 2206 -2207 and 2211).  
965 See para s. 7.384 -7.385  above.  
966 Finance Act 2021, (Exhibit IND -60), p. 176.  WT/DS584/R  
 
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  8517 70 90 of the First Schedule a t the time of the establishment of the Panel apply to tariff items 
8517 79 10, as well as tariff items 8517 71 00 and 8517 79 90, of the new version of the First 
Schedule. "967 Japan further submitted, a s an example of such an amendment, that Serial No. 402 
of Notification No. 50/2017 was amended to replace a reference to tariff items  8517.70.10 with a 
reference to tariff item 8517.79.10 of India's First Schedule.968 Japan note d, however, that " the tariff 
exemption applicable to populated printed circuit boards falling under tariff item 8517 70 10 of the 
First Schedule was subsequently repealed by Customs Notification No. 2/2022, effective from 
2 February 2022".969 India did not dispute the Panel's understand ing. 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 ."970 
7.390.   Having reviewed the most recent evidence submitted by Japan, we understand that although 
Serial No . 402 of Notification No. 50/2017 was indeed initially amended to refer to tariff items  
8517.79.10 instead of tariff items  8517.70.10, Notification No. 50/2017 was subsequently further 
amended to "omit" Serial No. 402 from that Notification.971 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. 50/2017972, is not presently available 
for products falling under tariff item 8517.79.10 of India's First Schedule.  
7.391.   We also note that, in the context of responding to certain questions from the Panel regarding 
Japan's claim pertaini ng to products falling under tariff item 8517.12 of India's WTO Schedule, India 
refers to Notification No. 57/2021.973 Notwithstanding that neither party refers to this Notification in 
the context of Japan's claim concerning 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, our review of this exhibit 
suggests that it is indeed relevant for such products. Such products are 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 presen tly 
classified under those tariff items .  
7.392.   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 
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 treatment974; 
b. With respect to products classified under tariff item 8517.79.10 of the First Schedule:  
i. Pursuant to Serial No. 13S of Notification No. 24/2005, all products other than PCBAs 
for cellular mobile phones and the products identified in footnote 944 above are eligible 
for dut y-free treatment 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 im portation , the 
importer must furnish an undertaking to the Deputy Commissioner of Customs or the 
 
967 Japan's response to Panel question No. 83, para. 95.  
968 Japan's response to Panel question No. 83, para. 95 (ref erring to Notification No. 55/2021, 
(Exhibit  JPN-76)). 
969 Japan's response to Panel question No. 83, para. 95 , fn 137 to para. 95 (referring to Notification 
No. 02/2022, (Exhibit JPN -77)). 
970 India's response to Panel question No. 83, para. 72. India also ar gues 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 -headings 8517.79.10 and 
8517.79.90 , respectively". (Ibid.).  
971 Serial No. 402 of Notification No. 50/2017, (Exhibit JPN -32), as amended by Notification 
No. 55/2021, (Exhibit JPN -76), and Notification No. 02/2022, (Exhibit JPN -77).  
972 See para. 7.381c  above.  
973 India's responses to Panel question No. 75, para. 58, and Panel question No. 77, para. 64 (referring 
to Notification No. 57/2021, (Exhibit IND -82)).  
974 See Notification No. 57/2017 as amended b y Notification No. 57/2021, (Exhibit IND -82).  WT/DS584/R  
 
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  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 goods975 
and in the event of failure to comply 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 
importation976; 
ii. Pursuant to Serial No. 22 of Notification No. 57/2017, PCBAs for certain specified 
products977 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 t o 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 treatment978; 
ii. Pursuan t to Serial Nos. 5A 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 
2017.979 
7.393.   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 b y India 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  would be equally 
applicable to the tariff treatment accorded by India to products presently falling under tariff items 
8517.71.00, 8517.79.10, and 8517.79.90 of the First Schedule. We note in this regard India's 
argument that its "submissions" with regard to items  8517.70.10 and 8517.70.90 continue to apply 
to items  8517.79.10 and 8517.79.90.980 We therefore do not precl ude the possibility that such 
notifications 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 regar d. 
7.394.   To summarize, at the time of the 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 
 
975 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 o r 
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, P acket 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 No. 24/2005, (Exhibit JPN -40), as amended by Notification No. 132/2006, 
(Exhibit JPN -41), Notification No. 58/2017, (Exhibit JPN -42), Notification No. 38/2018, (Exhibit JPN -53), and 
Notification No. 76/2018 (Exhibit JPN -54)). 
976 Serial No. 13S of Notification No. 24/2005, (Exhibit JPN -40), as amended by Notification 
No. 132/2006, (Exhibit JPN -41), Notification No. 58/2017, (Exhibit JPN -42), Notification No. 38/2018, 
(Exhibit  JPN-53), and Notification No. 76/2018, (Exhibit JPN -54) and Notification No. 57/2021, (Exhibit 
IND-82). We note that these conditions are attached  to the tariff treatment and are not general conditions for 
importation. (See para. 7.383  above).  
977 Specifically PCBAs for: 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 Ou tput products and 
Long Term Evolution products. (Serial No. 22 of Notification No. 57/2017 as amended by Notification 
Nos. 02/2020, 03/2021, and 57/2021, (Exhibit IND -82)).  
978 See Notification No. 57/2017 as amended by Notification No. 57/2021, (Exhibit IN D-82).  
979 Notification No. 57/2017 as amended by Notification Nos. 37/2018, 02/2020, and  57/2021, 
(Exhibit  IND-82). 
980 India's response to Panel question No. 83, para. 72.  WT/DS584/R  
 
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  rate.981 Certain other products falling under this tariff item were eligible for duty -free treatment if 
they satisfied certain conditions.982 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.983 Subject 
to certain conditions, certain other products were eligible for eit her duty -free treatment or a 10% 
duty rate.984 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.   
7.395.   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 unconditionall y subject to duty -free treatment, while all other products 
are subject to the 20% duty rate set forth in the First Schedule985; (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% duty rate set forth in the 
First Schedule986; and (iii) with respect to produ cts 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.987   
7.4.5.4   Comparison  of India's tariff treatment to its WTO tariff commitments  
7.4.5.4.1   Main arguments of the parties  
7.396.   Japan argues that, at the time of the Panel's establishment, the products classified under  
tariff items  8517.70.10 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.988 Japan 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.989 Japan 
further considers that although the customs duty was "waived" with respect to som e of those 
products, if those conditions were not fulfilled, " a customs duty would apply at a rate higher than 
0% and this amount s to an inconsistency with India's obligations under Article II:1(b), first sentence, 
of the GATT 1994 ".990 According to Japan, "[f]or those exemptions that are subject to conditions, 
the inconsistency with Article II:1(b), first sentence, of the GATT 1994 remains, since no such 
conditions are provided for in India's Schedule to benefit from duty -free treatment ".991 Moreover, in 
Japan's view, " any deviation from Article II:1(b) 'will always [also] be inconsistent with ' 
Article  II:1(a) of the GATT 1994 ".992 Regarding India's amendment of the First Schedule, Japan 
considers that " the creation of new tariff items by the Finance Act, 2021  does not affect Japan's 
claims ".993 In response to India's argument that "the complainant has failed to identify the products 
at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90" of India's First Schedule, Japan 
submits that "it is sufficient for the complainant making a claim under Article II:1 of the GATT 1994 
to demonstrate that some of the products falling under the duty -free tariff concessions at issue bear 
certain import duties or otherwise are subject to less favourable treatm ent than that under the tariff 
concession."994 
 
981 See para. 7.381a  above.  
982 See paras. 7.381b -7.381c  above.  
983 See paras. 7.386a -7.386b  above.  
984 See paras. 7.386a -7.386b  above.  
985 See para. 7.392a  above.  
986 See para. 7.392b  above.  
987 See para.  7.392c  above.  
988 Japan's first written submission, paras. 101 -104.  
989 Japan's first written submission, paras. 119 -122. 
990 Japan's first written submission, paras. 119 and 121.   
991 Japan's second written submission, para. 15.  
992 Japan's first written submission, para. 129 (quoting Panel Reports, EC – IT Products , para. 7.7 47).  
993 Japan's response to Panel question No. 83, para. 91.  
994 Japan's comments on India's response to Panel question No. 83, para. 112.  WT/DS584/R  
 
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  7.397.   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, 8 4.87, 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".995 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 85 17.70) 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 rejection of its claim."996 Speci fically w ith 
respect 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 Japan's  Panel Request and first written submissions", Japan  has failed to 
demonstrate t hat such products are classified under this tariff item.997 According to India, such 
products "must be held to be outside the scope of the present dispute".998 India also notes "the 
replacement of tariff items  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 items  8517.70.10 and 8517.70.90 with HS2022 tariff items  8517.79.10 
and 8517.79.90".999 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 s 8517.79.10 and 
8517.79.90, respectively ".1000 
7.4.5.4.2   Panel's assessment  
7.398.   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 reception of voice, images, or data .1001  
7.399.   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 set s 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 dat a. It is uncontested 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 ex03 of its WTO Schedule.  
7.400.   Following India's amendment of its First Schedule on 1 January 2022, the products 
previously covered by tariff items  8517.70.10 and 8517.70.90 became classified under tariff items  
8517.71.001002, 8517.79.101003, and 8517.79.901004 of the First Schedule. Since 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 
logica lly follows that the products presently 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 
 
995 India's response to Panel question No. 71, para. 54 (quoting HS2007 Section Notes to Section XVI 
(Exhibit IND -9)). S ee also India's response to Panel question No. 71, paras. 54 -55.  
996 India's response to Panel question No. 105, para. 55.  
997 India's first written submission, para. 188.  
998 India's first written submission, para. 188.  
999 India's response to Panel question No. 83, para. 72.  
1000 India's response to Panel question No. 83, para. 72.  
1001 See para. 7.372  above.  
1002 Aerials and aerial reflect ors of all kinds, and parts suitable for use therewith, constituting parts of 
telephone sets and other certain apparatus for transmission or reception of voice, images, or data. (See para. 
7.388  above).  
1003 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. 7.388  above).  
1004 Other parts of telephone sets and other certain apparatus for transmission or reception of voice, 
images, or data.  (See para. 7.388  above).  WT/DS584/R  
 
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  India does not dispute this.1005 We find therefore that, as of 1 Janua ry 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.1006  
7.401.   Regarding India's argument that aspects of Japan's  claims must fail because Japan  allegedly 
failed to  demonstrate that certain products were, at the time of the Panel's establishment,  classified 
under tariff item 8517.70.90 of India's First Schedule , we recall that Japan's  claim under Article s 
II:1(a) and (b) of the GATT 1994 concerns the tariff treatment accorded by India to products falling , 
at the time of the Panel's establishment,  within the scope of tariff items  8517.70 .10 and 8517.70.90 
of India's First Schedule.1007 We have concluded above that these same products are presently 
classified under tariff items  8517.71.00, 8517.79.10, and 8517.79.90 of India's 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 tariff treatment 
concerns products that properly fall within the scope of Japan 's claim.  
7.402.   We have also concluded above that India's WTO tariff commitments with respect to such 
products are those set forth at tariff items  8517.70 ex01, ex02, and ex03 of India's WTO Schedule. 
We proceed therefore to compare the challenged  tariff treatment to the  relevant tariff commitments 
set forth in India's WTO Schedule. We emphasize that this comparison is limited to the tariff 
treatment of products that were classified under tariff items  8517.70 .10 and 8517.70.90 of India's  
First Schedule , and which therefor e fall within the scope of Japan's claim.1008 
7.403.   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 
treatment, while all other products are subject to the 20% duty rate set forth in the First 
Schedule1009; (ii) with respect to products falling under tariff item 8517.79.10 of the First Schedule, 
certain specified products are eligible for duty -free treatm ent 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% duty rate set forth in the First Schedule1010; and (iii) with respect to products falling 
under tar iff 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% d uty rate set forth in the First 
Schedule.1011 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 
 
1005 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 chan ge in 
headings, and not the descriptions". (India's response to Panel question No. 83, para. 72).  
1006 See fns 1002, 1003, and 1004 to para. 7.400  above.  
1007 Specifically, Japan challenges the tariff treatment applied by India to products that, at the time of 
the Panel's establishment, were classified under tariff items 8517.70.10 and 851 7.70.90 of India's First 
Schedule. (Japan's first written submission, para. 13; panel request, pp. 3 -5). 
1008 We note that certain of the tariff treatment described in section 7.4.5.3  above, in addition to being 
available for some specified products that fall within the scope of Japan'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, 8517.79.10, 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 Japan's claim and others which do not . We wish 
therefore to clarify that  our factual and legal findings in section 7.4.5 of this Report do not concern products 
which did not, at the time of the Panel's establishment, fal l within the scope of tariff items 8517.70.10 and 
8517.70.90 of India's First Schedule (and which do not presently fall under tariff items 8517.71.00, 
8517.79.10, and 8517.70.90). In our view, the tariff treatment, in India's domestic customs regime, of th e 
products challenged by Japan is clear. In this respect, we also consider India's references to the Section Note 
of Section XVI of the HS2007 to be inapposite. (See para. 7.397  above). The tariff treatment identified by 
Japan is that applied to products classified under certain tariff items of India's First Schedule. We have 
concluded that the products falling under those tariff items fall within the scope of tarif f items 8517.70 ex01, 
ex02, and ex03 of India's WTO Schedule. It is not necessary for us (or for Japan) to independently identify 
each 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 treatment of those products is clear.  
1009 See para. 7.392a  above.  
1010 See para. 7.392b  above.  
1011 See para. 7.392c  above.  WT/DS584/R  
 
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  products falling under these tari ff 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 conditions1012 that are not set 
forth in India's WTO Schedule in order to receive unconditional duty -free treatment is incons istent 
with India's WTO tariff commitment, as contained in its WTO Schedule, to provide unconditional 
duty-free treatment to such products.  
7.404.   We also recall 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.  
7.405.   We do not preclude the possibility that other exemptions may also, through relevant 
amendments, continue to apply to the products presently cl assified 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 co mpare the duty rate that may be applicable pursuant to customs notifications on 
the assumption that customs notifications that applied prior to 1 January 2022 may, through relevant 
amendments, continue to apply to the products at issue.1013  
7.406.   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 Schedule were unconditionally subject to a 10% duty 
rate.1014 Other products falling under this tariff item were eligible for duty-free treatment if they 
satisfied certain conditions.1015 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 Sc hedule. 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.1016 Subject 
to certain conditions, other products were eligible for either duty -free treatment or a 10% duty 
rate.1017 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.  
7.407.   In comparing the tariff treatment applied pursuant to these Notifications 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 treatme nt set forth in those 
Notifications. Thus, at least some products falling under those tariff items  remained subject to the 
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%. To the extent that 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 products 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%.  
7.408.   With respect to those specified products that were eligible for unconditional duty -free 
treatment, we consider that th e 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 cond itions for 
 
1012 See para. 7.392b.i  above.  
1013 We note that this approach is different to our approach to ta riff item 8517.12. In this respect, we 
recall that at the time of the Panel's establishment certain products falling under tariff item 8517.12 of India's 
First Schedule (namely, telephones for other wireless networks) were exempted from customs duties thro ugh 
Notification No. 57/2017. The evidence on the record indicates that, following India's amendment of its First 
Schedule, Notification No. 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).  
1014 See para. 7.381a  above.  
1015 See paras. 7.381b -7.381c  above.  
1016 See paras. 7.386a -7.386b  above.  
1017 See paras. 7.386a -7.386b  above.  WT/DS584/R  
 
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  duty-free treatment1018 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 the 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 conditions that 
are not set fo rth in India's WTO Schedule.  
7.409.   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 importer 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 o f the bound duty rate and subject to a condition that is not set forth in 
India's WTO Schedule.  
7.4.5.5   Conclusion  
7.410.   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, or data , which at the time 
of the Panel's establishment fell within the scope of tariff items  8517.70 .10 and 8517.70.90  of India's 
First Schedule and which presently fall within the scope of tariff items  8517.71.00, 8517.79.10, and 
8517.79. 90 of India's First 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 excess 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 in India's WTO Schedule, unless they satisfy 
certain conditions not set forth in that WTO Schedule .  
7.411.   We recall that the application of ordinary customs duties in excess o f 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 Article II:1(b), also constitutes "less favourable" treatment 
within the meaning of Articl e 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.   
7.4.6   Additional claim under Article II:1(a) of the GATT 1994  
7.4.6.1   Main arguments of the parties  
7.412.   Japan submits that the challenged measures are inconsistent with Article II:1(a) in three 
"ways".1019 Japan argues, first, that because " India's measures are inconsistent with Article II:1(b), 
first sentence, of the GATT 1994, they are also necessarily inconsistent with Article II:1(a) of the 
GATT 1994 ."1020 Second, Japan argues that " India exempts some of the Products Concerned from 
the duties ", that "[s] ome of the applicable exemptions are subject  to conditions ", and where "[t] hose 
conditions constitute additional terms and conditions not provided for in India's Schedule  … [t]here 
 
1018 The relevant conditions for duty -free treatment are: (i) that the importer follow the procedures set 
out in the Customs Rules 2017; (ii) the importe r 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 goods and in the event of failure t o comply with that 
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 
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 items 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. 7.381 -7.387  above).  
1019 Japan's second written submission, para. 17.  
1020 Japan's second written submission, para. 18. See also Japan's first written submission, para. 131.  WT/DS584/R  
 
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  is an inconsistency with Article II:1(b) and therefore also with Article II:1(a). "1021 Third, Japan 
argues that " even where exemptions are not subject to any terms or conditions, those exemptions 
do not eliminate the inconsistency with Article II:1(a) as far as the exempted products are concerned  
… because of the potential of deleterious ef fects on competition arising from these exemptions. "1022 
With respect to its third claim, Japan refers to the findings of the panels in EC – IT Products and 
argues that "a measure may be found to provide for less favourable treatment in a manner 
inconsistent  with Article II:1(a) even in cases where there is no inconsistency with Article 
II:1(b) ."1023 Japan considers that the measures at issue in this dispute give rise " to a lack of 
foreseeability for traders operating in the marketplace, which has serious effec ts on competition ".1024 
Japan submits that these "three claims under Article II:1(a) of the GATT 1994 are distinct and 
independent  from each other" , and that "while the first claim is consequential to  the claims under 
Article II:1(b) of the GATT 1994, the re maining claims are independent from the claims under Article 
II:1(b)".1025 
7.413.   With respect to Japan's third claim, India argues  that "Japan essentially requests an 
interpretation from the Panel, which would specify the manner in which India is required to meet its 
obligations under Article II of the GATT."1026 India disagrees with such an interpretation because, in 
its view, "that would lead to the Panel adjudicating on the … efficacy of a particular legal system 
over all others and essentially prescribing a uniform legal system to be followed by all members of  
the WTO for implementing the commitments under Article II of the GATT."1027 India submits that it, 
like other Members, "has the discretion … to effectuate its rights and obligations in the manner it 
deems fit".1028 India also submits that none of the factual features identified by Japan as leading to 
lack of predictability resemble the factual features in EC – IT Products1029, and emphasizes that 
India's exemptions "remain in place until there has been a modification by the Government of 
India".1030 India consider s that "the manner in which it implements its duty suspension regime to 
afford the relevant tariff treatment to the products corresponding to that provided in the 2007 
Schedule under the GATT 1994 is different and distinct from the EU duty suspension regim e, which 
was considered by the Panel in EC – IT Products ".1031 India further points out that the Appellate 
Body "recognized that ordinary customs dut [ies] are legitimate instruments to accomplish certain 
trade policies and can be applied through an act of a Member's legislature as well as the executive 
at any time" .1032 
7.4.6.2   Main arguments of the third parties  
7.414.   The United States submits that "if the Panel finds that the measures at issue impose duties 
in excess of the bound rates set forth in India 's Schedule, then i t should also find those measures 
inconsistent with Article II:1(a) on that basis, and need not reach Japan 's other claim. "1033 The 
United States "agrees that Article II:1(a) does not require a Member to implement its tariff 
commitments in a specific manner ."1034 The United States further submits that " even if India 's 
argument that exemptions are available for the product at issue is correct, it is not clear to what 
extent importers are able to identify and claim the applicable exemptions and in turn benefit fr om 
 
1021 Japan's first written submission, para. 132. See also Japan's second written submissio n, para. 21.  
1022 Japan's first written submission, para. 133. See also Japan's second written submission, 
paras.  19-20. 
1023 Japan's first written submission, para. 130.  
1024 Japan's second written submission, para. 19.  
1025 Japan's second written submission, para.  22. 
1026 India's first written submission, para. 256; second written submission, para. 133.  
1027 India's first written submission, para. 256; second written submission, para. 133.  
1028 India's second written submission, para. 133. India submits that "Japan canno t insist that the Panel 
dictate the manner or procedure through which India is required to apply a measure for providing certainty 
regarding tariff commitments under its Schedule as India submits that such an exercise is not contemplated 
and entirely outsi de the purview of Article II." (India's first written submission, para. 259) . 
1029 India's second written submission, paras. 128 -130 (referring to Panel Report, Russia – Tariff 
Treatment , para. 7.140 (referring, in turn, to Panel Reports, EC – IT Products , para. 7.761)).  
1030 India's second written submission, para. 132. See also India's first written submission, paras. 253 
and 255. 
1031 India's first written submission, para. 248.  
1032 India's first written submission, para. 250 (referring to Appellate Body Reports, India - Additional 
Import Duties , para. 159 and Chile – Price Band System , para. 233).  
1033 United States' third -party submission, para. 56.  
1034 United States' third -party submission, para. 57.  WT/DS584/R  
 
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  the tariff treatment set forth in those exemptions ."1035 The United States "understands that 
importers bear certain responsibilities in import transactions; the ability to exercise those 
responsibilities would seem to depend on the availability of informa tion regarding applicable 
requirements. "1036 The United States concludes that "[r] egardless of how a WTO Member chooses 
to implement its tariff commitments, Article II:1(a) obligates it to provide treatment 'no less 
favourable ' than that set forth in its Sch edule. "1037 
7.4.6.3   Panel's assessment  
7.415.   We note at the outset that Japan has identified three  "claims" that it raises under 
Article  II:1(a) of the GATT 1994. Its first claim is that of a "consequential" finding of 
inconsistency.1038 Japan claims that because the challenged measure is inconsistent with Article 
II:1(b) of the GATT  1994, it is also inconsistent with Article II:1(a) of the GATT 1994. Japan's 
second1039 claim is  that certain conditions attached to duty exemptions in India's domestic customs 
regime "constitute additional terms and conditions not provided for in India's Schedule ", which are 
inconsistent with " Article II:1(b) and therefore also with Article II:1(a). "1040 Japan's third claim is 
that the measures at issue in this dispute give rise "to a lack of foreseeability for traders operating 
in the marketplace, which has serious effects on competition".1041 
7.416.   In sections 7.4.2 -7.4.5  above we have addressed Japan's arguments that India is acting 
inconsiste ntly with Articles II:1(a) and (b) because: (i) India imposes customs duties in excess of 
those provided for in the Schedule; and (ii) certain products must satisfy conditions that are not set 
forth in India's WTO Schedule in order to receive the tariff tr eatment set forth in that Schedule. In 
our view, our assessment and our findings above comprehensively address both Japan's first and 
second  claims that India is acting inconsistently with Article II:1(a).  
7.417.   We therefore turn to address Japan's third claim under Article II:1(a). In this respect, Japan 
argues that " even if specific Products Concerned are exempt from customs duties, there remains an 
inconsistency with Article II:1(a) of the GATT 1994 because those exemptions are subject to the 
possibility of repeal at any time, and thus create a lack of foreseeability for traders operating in the 
marketplace."1042 Japan submits that : (i) Section 25 of the Customs Act  1962 authorizes India to 
apply, modify, or repeal the tariff exemptions of any product, at any time, on a discretionary basis ; 
(ii) the notifications establishing tariff exemptions do not provide an explanation or objective criter ia 
for the granting of  exemptions ; (iii) the notifications do not provide any information concerning 
conditions under which the exemptions may be terminated or modified ; and (iv) there is no 
predictability as to how long and under what conditions the exemp tions w ould continue to apply, 
and this  lack of predictability has serious effects on competition in the Indian market .1043  
7.418.   Japan's third claim under Article II:1(a) relates to India's use of customs notifications issued 
pursuant to Section 25 of the Custom s Act 1962 to exempt imported products from the standard 
duty rates set forth in the First Schedule.1044 We understand that Japan considers that India is acting 
inconsistently with Article II:1(a) in situations where the products at issue receive uncondition al 
duty-free treatment in accordance with the terms of India's WTO Schedule, because the Government 
of India may modify such tariff treatment at any point in time, through customs notifications issued 
pursuant to Section 25.  
7.419.   On its face, this claim appear s to challenge India's system of exemptions through customs 
notifications, and in particular Section  25, pursuant to which those notifications are issued by the 
 
1035 United States' third -party submission, para. 57.  
1036 United States' third -party submission, para. 57.  
1037 United States' third -party submission, para. 57.  
1038 See Japan's response to Panel question No. 85, para. 99.  
1039 In its first written submission, Japan indicates that a second  ground for finding that India is acting 
inconsistently with Article II:1(a) is that certain exemptions are subject to conditions not set forth in India's 
WTO Schedule. In its second written su bmission, Japan refers to this as its "third" claim of inconsistency with 
Article II:1(a). (See Japan's first written submission, para. 132; second written submission, para. 21). For the 
purpose of our analysis in this section, we refer to this claim as Ja pan's "second" claim.  
1040 Japan's first written submission, para. 132. See also Japan's second written submission, para. 21.  
1041 Japan's second written submission, para. 19.  
1042 Japan's response to Panel question No. 86, para. 101.  
1043 Japan's second written sub mission, para. 20.  
1044 See para s. 2.11 -2.13 above.  WT/DS584/R  
 
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  Government of India. We note in this regard that Japan's panel request, which delimits our term s of 
reference, does not raise any such claims regarding India's system of exemptions or notifications.  
7.420.   In response to a question from the Panel, Japan clarified, however, that it is not requesting 
us to find that Section 25 is "as such" inconsistent with  Article II:1(a) of the GATT 1994.1045 
According to Japan, its reference to Section 25 is " simply in order to explain the legal grounds upon 
which the Government of India has authority to amend or repeal the exemptions at any time through 
customs notificatio ns"1046 and Section 25 is therefore "part of the evidence showing the lack of 
foreseeability and predictability, for the purposes of establishing that India's measures are 
inconsistent with Article  II:1(a) of the GATT 1994 even with regard to those products that benefit 
from an exemption ".1047 In response to another question from the Panel, Japan confirms that the 
measures challenged under Japan's third claim under Article II:1(a) "are not different from the 
measures challenged under the other claims. They refe r to the tariff treatment applied through the 
acts and notifications on imports of the Products Concerned".1048 Japan further explains that "the 
exemptions granted to some of the Products Concerned do not eliminate the inconsistency with 
Article II:1(a) … Ra ther, those exemptions … generate 'deleterious effects on competition', because 
such exemptions can be enacted, … modified or revoked at any time by simple act of the Government 
of India, in contrast to the basic duty rate exceeding 0% which can only be ch anged through an act 
of the Parliament."1049 
7.421.   In light of Japan's clarifications regarding the nature of this claim, we proceed with our 
assessment by examining whether Japan has demonstrated that India acts inconsistently with 
Article  II:1(a) when unconditio nally exempting the products at issue from customs duties through 
customs notifications, on the ground that such exemptions lack foreseeability and predictability, thus 
affecting conditions of competition for traders.  
7.422.   We recall that Article II:1(a) requir es that:  
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 appropriate Schedule 
annexed to this Agreement.  
7.423.   Article II:1(a) thus prohibits treatment less favourable than "that provided for in … the 
appropriate Schedule ".1050  
7.424.   We note that Japan's claim of inconsistency concerns situations where India is according 
tariff treatment that is consistent with the tariff  bindings and other obligations set forth in India's 
WTO Schedule (in other words, situations where India is acting consistently with Article II:1(b) of 
the GATT 1994). Indeed, Japan has not identified any terms or obligations set forth in India's WTO 
Schedule against which we can assess whether the challenged measures accord treatment less 
favourable. Rather, Japan's argument is premised on the notion that Article II:1(a) prohibits the 
application of tariff treatment through legal instruments that allegedl y result in a lack of 
foreseeability or predictability, thus affecting conditions of competition for traders.1051  
7.425.   As a general matter, we see nothing in the text of Article II:1(a) suggesting that a finding 
of inconsistency with this provision is necessaril y dependent on a finding of inconsistency with 
Article  II:1(b). While Article II:1(b) refers specifically to the application of ordinary customs duties 
and other duties or charges, Article II:1(a) refers more broadly to the treatment of the commerce 
of the  other Members provided for in the Schedule. Thus , Article II:1(a) may encapsulate obligations , 
as set forth in Members' Schedule s, notwithstanding that such obligations are not implicated by 
Article II:1(b).  
 
1045 Japan's response to Panel question No. 86, para. 100.  
1046 Japan's response to Panel question No. 86, para. 103.  
1047 Japan's response to Panel question No. 86, para. 104.  
1048 Japan's response to Panel question No. 87, para. 106. See also Japan's r esponse to Panel question 
No. 31(c)(iv), para. 15.  
1049 Japan's response to Panel question No. 87, paras. 107 -108 (quoting Panel Reports, EC – IT 
Products , para. 7.761).  
1050 Emphasis added.  
1051 See e.g. Japan's closing statement at the second meeting of the Pan el, para. 13.  WT/DS584/R  
 
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  7.426.   Turning to the more specific question of whethe r Article II:1(a) prohibits tariff treatment 
resulting in a lack of foreseeability or predictability, we note that in support of its proposed 
interpretation of Article II:1(a), Japan refers inter alia to several findings by the panels in 
EC – IT Products . Specifically, Japan highlights the panels' findings that: (i) the term "less favourable 
treatment" in Article II:1(a) should be understood as referring to "conditions of competition"; 
(ii) "negotiated tariff concessions and the certainty thereof are import ant market access 
guarantees"; and (iii) in that dispute a duty suspension with an expiry clause did not eliminate the 
challenged measure's inconsistency with Article II:1(a) because there remained "the potential of 
deleterious effects on competition".1052  
7.427.   We do not disagree with Japan that the expression "treatment no less favourable" in 
Article  II:1(a) can be interpreted as referring to conditions of competition. We observe, however, 
that the phrase "treatment no less favourable than"1053 necessarily entails  a comparison  – in other 
words, for a measure to be inconsistent with Article II:1(a), there must be something against which 
the challenged treatment is less favourable. That comparator is explicitly identified in Article II:1(a) 
as the treatment "provided  for in … the appropriate Schedule". As  the panels in EC – IT Products 
found , "if a measure adversely affects the conditions of competition for a product from that which it 
is entitled to enjoy under a Schedule , this would be less favourable treatment un der 
Article  II:1(a)".1054  
7.428.   Thus, to succeed in its third claim under Article II:1(a), Japan would need to demonstrate 
that the lack of foreseeability or predictability allegedly attached to the use of customs notifications 
and exemptions by the Government of I ndia results in treatment that is less favourable than the 
treatment set forth in India's WTO Schedule. In the context of this third claim, however, and in 
contrast to its other two claims under Article II:1(a), Japan has conducted no comparison of the 
tariff treatment at issue to India's WTO Schedule. W hile Japan makes a passing reference to India's 
WTO Schedule in the context of this claim1055, Japan does not attempt to explain how the challenged 
measure s – certain customs notifications unconditionally exempting the products at issue from 
customs duties – would adversely affect the conditions of competition  of the products of Japan at 
issue "from that which [they are]  entitled to enjoy under"1056 India's  WTO Schedule. Thus, Japan 
has not tried to show how such customs notifications have "the potential of deleterious effects on 
competition"1057 for those products , as compared to the conditions of competition such products are 
entitled to under India's WTO Schedule . 
7.429.   We note Japan's arguments that customs notifications issued pursuant to Section  25 are  
discretionary , do not provide an explanation or objective criteria for the granting of exemptions , and 
do not provide any information concerning conditions und er which the exemptions may be 
terminated or modified . Japan has not sought to demonstrate how any such aspects of the customs 
notifications exempting certain products at issue from duties are inconsistent with the obligations 
set forth in India's WTO Sche dule.1058 Mere statements to the effect that India's system of duty 
exemptions through customs notifications "lacks foreseeability or predictability" because the 
exemptions "do not provide any explanation or refer to any objective criteria" and may be modifi ed 
or repealed "at any time"1059, do not amount to a demonstration that the measures at issue accord 
 
1052 Japan's first written submission, para. 130 (referring to Panel Reports, EC – IT Products , paras. 
7.756 -7.757 and 7.761). Japan also refers to the Panel Report in Argentina – Textiles and Apparel , para. 6.46.   
1053 Emphasis added.  
1054 Panel Rep orts, EC – IT Products , para. 7.757. (emphasis added)  
1055 See Japan's second written submission, para. 19 ("even where specific Products Concerned are 
exempted from customs duties, India accords to such products a less favourable treatment than that provided  
for in India's Schedule, because such exemptions are subject to the possibility of repeal at any time and, 
therefore, there is uncertainty and unpredictability regarding the customs duties which will apply to the 
Products Concerned").  
1056 Panel Reports, EC – IT Products , para. 7.757. (emphasis added)  
1057 See Japan's first written submission, para. 133. See also Japan's second written submission, 
paras.  19-20. 
1058 For instance, in the context of its claim concerning the tariff treatment accorded by India to 
"telephones for other wireless networks, other than cellular networks" (see section 7.4.2 above), Japan states, 
without elaboration, that "even if [such products] are exempted from customs duties, India is still providing a 
less favourable treatment than what is provided for in its Schedule, which is inconsistent with its obligations 
under Article II:1(a) of the GATT 1994, because this exemption is subject to the possib ility of repeal at any 
time and, therefore, there remains uncertainty and unpredictability regarding the customs duties which will 
apply to such product." (Japan's response to Panel question No. 73, para. 62).  
1059 Japan's second written submission, para. 20.  WT/DS584/R  
 
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  treatment less favourable than that provided for in India's WTO Schedule. There is therefore no 
baseline identified by Japan by which we can assess whether a ny lack of foreseeability or 
predictability allegedly attached to the measures at issue in this dispute constitutes treatment less 
favourable than that set forth in India's WTO Schedule, inconsistent with Article II:1(a).  
7.430.   With respect to Japan's reference s to the panels' findings in EC – IT Products , we note that 
the panels in EC – IT Products interpreted Article II:1(a) as requiring that products' conditions of 
competition are not adversely affected from that which they are entitled to under the relevant 
WTO Schedule.1060 Moreover, the panels' findings of inconsistency with Article II:1(a) were based 
on the facts that: (i) "but for the duty suspension, the European Communities' measures [we]re 
inconsistent with its obligations under Article II:1(b)"; and (ii ) the duty suspension at issue was 
scheduled to "automatically expire" on a specific date.1061 As noted by India1062, the factual 
circumstances of that dispute are distinct from the present circumstances, where the relevant 
customs notifications exempting the products at issue from customs duties contain no general expiry 
date that we can see, and none has been brought to our attention.1063  
7.431.   As a final observation on this issue, we note that Article II:1(a) does not, on its face, regulate 
the manner in which a Me mber implements the obligations under that provision. India has adopted 
a system whereby the executive may exempt certain products from ordinary customs duties through 
customs notifications and we see nothing in Article II:1(a) or in India's WTO Schedule t hat would 
prevent India from implementing its WTO obligations in that manner. In short, in the circumstances 
of this dispute, Japan has provided no argument or evidence demonstrating that India's use of 
customs notifications to apply the tariff treatment s et forth in its WTO Schedule results in tariff 
treatment less favourable than that set forth in its WTO Schedule.1064 There is therefore no basis for 
us to find that the manner in which India implements its WTO obligations under Article  II:1(b) is 
inconsiste nt with Article II:1(a).1065  
7.432.   For these reasons we consider that Japan has failed to demonstrate that the measures at 
issue in this dispute impose treatment less favourable than that set forth in India's WTO Schedule, 
inconsistent with Article II:1(a) of the GATT 1994, on the ground th at India's customs notifications 
lack foreseeability or predictability, thus affecting conditions of competition for traders.  
 
1060 See para. 7.427  above.  
1061 Panel Reports, EC – IT Products , para. 7.758.  
1062 India's first written submission, para. 248; second written submission, para. 130.  
1063 We note that where certain individual exemptions have indeed contained expiry dates, we have 
addressed these exemptions in the context of our analysis of the relevant tariff items above and found that the 
tariff treatment accorded to the relevant products is  inconsistent with Articles II:1(a) and (b). Since that tariff 
treatment has already been found to be inconsistent with Articles II:1(a) and (b) we understand that it is not 
subject to this claim by Japan, which concerns situations where there is no incons istency with Article II:1(b).  
1064 We note Japan's argument that "India has applied and progressively increased the customs duties 
applicable to the Products Concerned", and that "even after the Panel's establishment, India again increased 
the tariff rate on some of the Products Concerned through new customs notifications and the Finance Act, 
2021". (Japan's opening statement at the second meeting of the Panel, para. 39). In particular, Japan argues 
that " India's application of customs duties in February (effe ctive in April) 2021, through Customs Notification 
No. 3/2021, read in conjunction with its preceding notifications, on some products that had been exempted 
from all customs duties … shows the uncertainty and unpredictability for traders regarding customs duties in 
the Indian marketplace". (Japan's response to Panel question No. 29, para.  6. See also Japan's opening 
statement at the second meeting of the Panel, para. 39).  Given that Japan refers to this Notification as 
evidence of "the application of custom s duties " in excess of India's bound duty rates,  it is not clear to us 
exactly how this Notification is relevant to Japan's third claim under Article II:1(a) which, as described above, 
concerns situations where India exempts  products from customs duties. W e also note that to the extent that 
Japan's arguments imply that India is acting inconsistently with Article II:1(a) simply because, in Japan's view, 
India frequently modifies its applied duty rates through customs notifications, we reiterate that Japan ha s not 
demonstrated that customs notifications imposing unconditional duty -free treatment, in accordance with 
India's WTO Schedule, constitutes treatment less favourable than that set forth in the Schedule.  
1065 Indeed, in light of our findings above that Ind ia is acting inconsistently with its obligations under 
Articles II:1(a) and (b), to the extent that India seeks to come into compliance with its obligations we 
understand that India could in fact rely on the same system of customs notifications which Japan  challenges 
under this third claim. We see no basis in Article II:1(a) of the GATT 1994 to proscribe (or indeed prescribe) 
any particular mechanism for India to comply with its WTO obligations, at least to the extent that India accords 
treatment no less fa vourable than that set forth in its WTO Schedule.  WT/DS584/R  
 
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  7.4.7   Notification No. 69/2011  
7.4.7.1   Main  arguments  of the parties  
7.433.   India argues  that, pursuant to the India -Japan Comprehensive Economic Par tnership 
Agreement ( CEPA), the Government of India issued Notification No. 69/2011, which reduced the 
ordinary customs duty  rate to "Nil" on all items covered under heading 8517 when originating in 
Japan.1066 India submits that it " applies a 0% rate of ordin ary customs duty on imports of all goods 
of Japan under heading 8517 and all its sub -headings and therefore, Japan 's claim that India applies 
a rate of duty in excess of 0% at the 6 -digit level for, inter alia , sub-headings 8517.12, 8517.61, 
8517.62, and 8 517.70 is incorrect. "1067 In India's view, therefore, assuming arguendo  that India's 
WTO Schedule is not in error, the measures at issue identified by Japan are not inconsistent with 
Article s II:1(a) and (b) of the GATT 1994 "because they do not accord less favourable treatment to 
products of Japan than that provided for in India's [WTO Schedule]".1068 For India, "Notification No. 
69/2011 negates Japan's claims under Article II:1(a) and II:1(b) of the GATT 1994."1069  
7.434.   Japan  responds  that Notification No. 69/2011  does not eliminate the inconsistency of India's 
measures with Article  II:1 of the GATT 1994.1070 According to Japan, this is because: (i) "the 
India-Japan CEPA only covers products which qualify as being of Japanese origin under the rules of 
origin of the India–Japan CEPA, whereas India is required under Article II:1 of the GATT 1994 to 
provide duty -free treatment in accordance with India's Schedule to imports from all WTO 
Members "1071; (ii) "even for those Products Concerned which may benefit from duty -free treatment 
under the provisions of the India –Japan CEPA, this does not eliminate the inconsistency of India's 
measures with Articles II:1(a) and II:1(b) of the GATT 1994, because receiving duty -free treatment 
under the India –Japan CEPA is subject to fulfilm ent of additional conditions "1072; and (iii)  "even for 
those Products Concerned which may benefit from duty -free treatment under the India –Japan CEPA, 
this does not eliminate the inconsistency of India's measures with Articles II:1(a) and (b) of the 
GATT 199 4, since such duty -free treatment is conditioned on the existence of the India –Japan CEPA 
itself. "1073 
7.4.7.2   Main  arguments  of the third parties  
7.435.   Canada  asserts that the obligations under Article II of the GATT 1994 exist independent ly of 
any preferential trade agreement (PTA).1074 According to Canada, the concessions set out in 
Members' WTO S chedules establish the maximum most -favoured -nation (MFN) duties that may 
apply to WTO  Members, and these rates are unaffected by particular PTAs.1075 Canada submits that 
the concessions contained in India's WTO Schedule still apply to products that are not eligible  for 
preferential treatment under the India -Japan CEPA and that the Panel remains able to assess 
whether products falling under the tariff i tems at issue have been subject to treatment inconsistent 
with Article s II:1(a) and (b) of the GATT 1994.1076  
7.436.   The European Union  asserts that " tariff treatment pursuant to a [PTA]  is relevant in principle 
in order to determine whether the overall tariff tre atment accorded by … [a]  Member to imports of 
products of other Members is consistent with the obligations imposed on the first Member by 
Article  II:1 of the GATT 1994 ."1077 The European Union notes, however, that " tariff concessions 
granted pursuant to a [PTA]  are usually subject to specific  conditions stipulated in that agreement ", 
including those requiring compliance  with certain rules  of origin, and "those  conditions are usually 
different and more demanding than those s tipulated in Article II:1 of the GATT 1994 and each 
 
1066 India's first written submission, para. 204 (referring to Notification No. 69/2011, (Exhibit IND -41)). 
1067 India's first written submission, para. 205.  
1068 India's first written submission, paras. 13 and 206.  
1069 India's second written submission, para. 125.  
1070 Japan's second written submission, paras. 264 and 278.  
1071 Japan's second written submission, paras. 265 -267.  
1072 Japan's second written submission, paras. 268 -276. 
1073 Japan's second written submission, para. 277. See also Japan's response to Panel question N o. 27, 
paras. 57 -61. 
1074 Canada's third -party submission, para. 22.  
1075 Canada's third -party submission, para. 22.  
1076 Canada's third -party submission, para. 23.  
1077 European Union's third -party response to Panel question No. 13, para. 60.  WT/DS584/R  
 
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  Member 's own GATT Schedule. "1078 According to the European  Union, "t o that extent, tariff 
treatment accorded pursuant to a [PTA]  may not be sufficient to ensure compliance with Article II:1 
of the GATT 1994  in respect of imports of the products of the other Member which is a party to that 
preferential agreement ."1079 The European  Union argues that a Member is not precluded from 
bringing a claim under Article II:1 of the GATT 1994 concerning  the tariff treatmen t accorded to 
imports of products of other Members that are not parties to the [PTA], and a Member may have a 
legitimate trade interest in doing so .1080 
7.437.   Korea  notes that prior panels and the Appellate Body have acknowledged the limited 
relevance of bilateral  agreements in the context of WTO disputes.1081 Korea agrees with Japan that 
"the requirement of no 'less favourable treatment ' under Article II:1(a) should be understood by 
reference to 'conditions of competition '".1082 Korea stresses that t ariff concessions are "legal 
instruments that describe the treatment a Member must provide to the trade in goods of other 
WTO Members " and are "one of the main WTO tools to ensure transparency, security, and 
predictability for world trade ".1083 In Korea's view, a Member would therefore " not be free from 
violation of Article II:1(a) even if it applies a NIL rate pursuant to its bilateral  agreement while 
maintaining [a] WTO-inconsistent rate " as this would otherwise " impinge on a Member 's right to 
transparency, security, and predictability of the trade in goods ".1084 
7.438.   Chinese Taipei  argues that "a Member must exempt ordinary customs duties in excess of 
the bound rates on 'products of territories of other [Members] '".1085 Chinese Taipei emphasizes that 
"it is not enough for a Member to exempt duties on the products of the complaining Member ."1086 
According to Chinese Taipei, "e ven assuming arguendo  that India does accord duty -free treatment 
on imports of the products at issue from Japan, it would still apply  duties on imports of products at 
issue from other Members, inconsistent with its obligation under Article II:1(b). "1087  
7.439.   The United States  submits that, even if goods of Japan are entitled to duty -free treatment 
under India's preferential measures, this doe s not establish a defence to a breach of 
Article  II:1(b).1088 For the United States, "it does not follow from India's argument that a Member 
may determine for purposes of the tariff treatment provided for in its WTO Schedule that some  
goods of a Member will be afforded that treatment (such as goods that meet a prefe rential rule of 
origin under the terms of a non -WTO agreement), but not others, or that goods from some  Members 
may qualify for the treatment provided in its Schedule, but not others."1089 
7.4.7.3   Panel 's assessment  
7.440.   In sections 7.4.2.5 , 7.4.3.4 , 7.4.4.4  and 7.4.5.5 above , we have found that by imposing 
ordinary customs duties  on certain products in excess of those set forth and provided in its WTO 
Schedule, or subject to terms, conditions or qualifications not set forth in that Schedule, India is 
acting  inconsisten tly with Article s II:1(a) and (b) of the GATT 1994 . The question before us now is 
whether , as alleged by India, Notification  No. 69/2011 brings India into compliance with its 
obligations under the aforementioned  provision s.  
7.441.   Notification No. 69/2011 was put on the record of these proceedings by India to support its 
argument that it applies a 0% duty rates to the products at issue in this dispute. We note at the 
 
1078 European Union's thir d-party response to Panel question No. 13, para. 61.  
1079 European Union's third -party response to Panel question No. 13, para. 61.  
1080 European Union's third -party response to Panel question No. 13, para. 62.  
1081 Korea's third -party response to Panel question Nos. 13 and 14 (referring to Appellate Body Report, 
EC – Poultry , paras. 84 -85; and Decision by the Arbitrator, EC – Hormones  (US) ( Article 22.6 – EC), para. 50).  
1082 Korea's third -party response to Panel question Nos. 13 and 14. See also Korea's third -party 
submission, para.  26. 
1083 Korea's third -party response to Panel question Nos. 13 and 14.  
1084 Korea's third -party response to Panel ques tion Nos. 13 and 14.  
1085 Chinese Taipei's third -party response to Panel question No. 14, para. 14.  
1086 Chinese Taipei's third -party response to Panel question No. 14, para. 14.  
1087 Chinese Taipei's third -party response to Panel question No. 14, para. 14.  
1088 United States' third -party submission, para. 52 (referring to Panel Reports, EC – IT Products , 
para. 7.113).  
1089 United States' third -party submission, para. 54. (emphasis original) See also United States' 
third-party responses to Panel question Nos. 13 and 14, p aras. 29 -33; and third -party statement, 
paras.  10-12.   WT/DS584/R  
 
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  outset that we are not called upon to assess the consistency of No tification No. 69/2011 with India's 
WTO obligations.1090 We also note that the parties do not dispute that Japan's claims are limited to 
the tariff  treatment granted by India to "products of the territory of Japan " (hereinafter "products of 
Japan").1091 We wil l therefore confine our analysis to the WTO -consistency of the tariff treatment 
accorded by India to products of Japan. In light of the foregoing, we will examine whether, pursuant 
to Notification No.  69/2011 , India grants to the products of Japan at issue  in this dispute 
unconditional duty -free treatment, as required by India's WTO Schedule.1092 
7.442.   Turning, first, to the content of Notification No. 69/2011 , we note that it reads in relevant 
part: 
In the exercise of the powers conferred by sub -section (1) of section 25 of the 
Customs  Act, 1962, the Central Government, … hereby exempts goods … as specified 
in column (3) of the Table appended hereto and falling under the Chapter, Heading, 
Subheading o r tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 
1975) as specified in the corresponding entry on column (2) of the said Table, when 
imported from Japan, from so much of the duty of customs leviable thereon as is in 
excess of the amount calculated  at the rate specified in the corresponding entry in 
column (4) of the aforesaid Table:  
Provided that the exemption shall be available only if the importer proves to the 
satisfaction of the Deputy Commissioner of Customs or Assistant Commi ssioner of 
Customs, as the case may be, that the goods in respect of which the benefit of this 
exemption is claimed are of the origin of Japan, in terms of rules as may be notified in 
this regard by the Central Government by publication in the official Gaz ette. 
7.443.   The relevant entry in the table appended to Notification No. 69/2011 is as follows.1093 
S. No.  Chapter or heading or subheading or tariff item  Description  Rate 
663 8517 All goods  0.0 
 
7.444.   India also refers to Notification No. 55/2011, which sets forth rules for the "Determination 
of Origin of Goods" under the CEPA (hereinafter "CEPA Rules 2011").1094 India submits that "if the 
products are classified under tariff heading 8517 and are determined as originating from Japan or 
products of Japan in accor dance with CEPA Rules 2011, they are eligible for the treatment provided 
for" in Notification No. 69/2011.1095 We observe that Rule 3 ("Originating goods") of CEPA Rules 
2011 provides, inter alia , that "goods imported by a Party … shall be deemed to be origi nating and 
eligible for preferential tariff treatment if … the goods are wholly obtained or produced entirely in 
the Party, as provided for in [R]ule 4."1096 When goods are "not wholly obtained or produced in the 
Party", they must meet certain requirement s in terms of value content and change in tariff item, as 
provided for in Rules 5 and 6.1097 
7.445.   Our review of the evidence placed on the record by India shows that  Notification No. 69/2011 
"exempts" from customs duties "goods … when imported from Japan", including goods falling under 
 
1090 As noted by India, Notification No. 69/2011 is not a measure at issue in this dispute. (India's second 
written submission, para. 124).  
1091 India submits that Japan's claims are limited to products and  commerce of Japan, and posits that 
the Panel's terms of reference "do not allow the Panel to expand its analysis … viz-a-viz all WTO Members". 
(India's response to Panel question No. 89, para. 77). Japan agrees that "[a]s stated in Japan's request for the  
establishment of a panel, Japan's claims … are limited to the tariff treatment accorded to Japan's commerce 
and the products of the territory of Japan". (Japan's response to Panel question No. 88, para. 115). We note 
that, when setting out the legal basis  for its complaint under Articles II:1(a) and (b), Japan's panel request 
refers to "Japan's commerce" and "products of the territory of Japan" respectively. (Japan's panel request, 
p. 5). 
1092 See sections 7.4.2.2 , 7.4.3.1 , 7.4.4.1 , and 7.4.5.2  above.  
1093 Notification No. 69/2011, (Exhibit IND -41). 
1094 Notification No. 55/2011, (Exhibit IND -42), Rule 1.  
1095 See India's first written submission, para. 241.  
1096 Notification No. 55/2011, (Exhibit IND -42), Rule 3. Rule 4 defines which goods shall be considered 
as being "wholly obtained or produced in a Party" for the purpose of Rule 3.  
1097 Notification No. 55/2011, (Exhibit IND -42), Rules 3, 5, and 6. Rule 5 sets fo rth the conditions that 
"goods produced using non -originating materials" must satisfy to qualify as "originating goods" of a Party. 
Rule 6 provides for a formula for calculating the qualifying value content of goods.  WT/DS584/R  
 
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  heading 8517. In order to benefit from the exemption provided for in that Notification, the importer 
must prove that "the goods in res pect of which the benefit of this exemption is claimed are of the 
origin of Japan." To that end, the importer must show that the goods comply with the origin 
requirements set forth in CEPA Rules 2011. Thus, pursuant to Notification No. 69/2011, products of  
Japan falling under the tariff items  at issue in this dispute are subject to a preferential 0% duty rate 
provided that they comply with the origin requirements set forth in CEPA Rules 2011.  
7.446.   We recall that the relevant MFN tariff treatment set forth in In dia's WTO Schedule for the 
products falling under the tariff items  at issue in this dispute  is 0%, with no terms, conditions, or 
qualifications attached .1098 Pursuant to Articles II:1(a) and (b) , India is therefore obligated to 
provide , with respect  to all WTO Members, unconditional duty -free treatment to all products covered 
by the tariff items  at issue.1099 Accordingly, for India to establish that it is acting consistently  with 
its WTO tariff commitments, India must establish that, pursuant to Notification No . 69/2011 , it 
accord s unconditional duty -free treatment to all products of Japan falling under the tariff items  at 
issue.  
7.447.   As noted above, Notification No. 69/2011 grants a 0% duty rate to the products of Japan 
falling under the tariff items  at issue provid ed that such products comply with the origin requirements 
set forth in CEPA Rules 2011. We note that, according to India, "the determination of origin is inbuilt 
into the phrase 'products of territories of other contracting parties' for which the countries  are at 
liberty to design their own specific laws. Such origin -related laws and regulations do not constitute 
additional terms and conditions which must be recorded in the 2007 Schedule."1100 For India, "[t]he 
equivalency of or the effect of difference betwe en (a) origin criteria inbuilt into Article II:1(a) and 
II:1(b) of GATT; and (b) origin criteria spelt out in [the CEPA] could be a subject matter of provisions 
contained elsewhere in the GATT 1994. Japan has not raised such claims in the present dispute. "1101 
Japan "fails to see the basis of India's arguments that the origin -related laws do not constitute terms 
and conditions" and submits that "even if origin -related laws are inbuilt into the phrase 'products of 
territories of other contracting parties' and do not constitute 'terms' or 'conditions' within the 
meaning of Article II:1(b), first sentence of the GATT 1994, which Japan contests, this only applies 
to non -preferential rules of origin."1102 
7.448.   We understand that, for India, origin requirement s, such as those set forth in CEPA Rules 
2011, are "inbuilt" in the phrase "products of territories of other contracting parties" in Article II:1(b) 
and, therefore, do not constitute "terms, conditions or qualifications" within the meaning of that 
provisio n. Japan disputes India's proposed interpretation. The disagreement between the parties 
appears to rest on whether origin requirements are encompassed in the phrase "products of 
territories of other Members" in Article II:1(b), first sentence.  
7.449.   We note tha t it is uncontested that the origin requirements set forth in CEPA Rules 2011 
constitute preferential rules of origin, and that India has no non -preferential rules of origin in place 
for imports.1103 Keeping in mind the MFN nature of the obligations containe d in Articles II:1(a) and 
(b), we do not see how the phrase "products of territories of other Members" in Article II:1(b) can 
encompass preferential rules of origin such as those applied by India pursuant to CEPA Rules 2011. 
In other words, even assuming t hat non-preferential  rules of origin are "inbuilt" in the phrase 
 
1098 See sections 7.4.2.2 , 7.4.3.1 , 7.4.4.1 , and 7.4.5.2  above.  
1099 See section 7.2 above.  
1100 India's first written submission, para. 240. See also India's response to Panel question No. 57, 
para. 60. 
1101 India's second written submission, para. 126.  
1102 Japan's second written submission, para. 273.  
1103 India clarifies that:  
India has no non -preferential rules of origin in place for imports entering the country. Ordinarily, 
the country of origin is determined by the certificate of origin issued by the authorities of the 
exporting country under the relevant rules of origin. In this context, India has Preferential Rules 
of Origin for preferential imports under FTAs or under other preferential schemes like Duty Free 
Tariff Preference (DFTP) scheme provided for the Least Developed Countries (LDCs). However, as 
of now India has no Preferential Rules of  Origin in place for imports.  
(India's response to Panel question No. 89, para.  73)  
According to Japan, "no specific non -preferential rules of origin apply in India" but India does use preferential 
rules of origin in its free trade agreements, such as th e CEPA. Japan also notes that India has notified the 
Committee on Rules of Origin of the WTO that India does not have non -preferential rules of origin. (Japan's 
response to Panel question No. 89, paras. 117 -119 (referring to G/RO/N/1, 9 May 1995; India's T rade Policy 
Review, WT/TPR/S/403, section 3.1.2)).  WT/DS584/R  
 
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  "products of territories of other Members" in Article II:1(b) – an issue which is not before us in this 
dispute – nothing in the text of this provision indicates that preferential  rules of or igin, such as those 
contained in CEPA Rules 2011, are "inbuilt" in that phrase. We consider, therefore, that the origin 
requirements set forth in CEPA Rules 2011 are not encompassed in the phrase "products of territories 
of other Members" in Article II:1(b ), first sentence. To the extent that, pursuant to Notification No. 
69/2011, products of Japan are required to comply with origin requirements set forth in CEPA Rules 
2011 to be exempted from customs duty, it follows that Notification No. 69/2011 does not accord 
unconditional duty -free treatment to products of Japan falling under the tariff items  at issue in this 
dispute.  
7.450.   As to India's argument that Japan has not raised a "claim" regarding the "equivalency of or 
the effect of difference" between so -called " in-built" origin criteria in Article  II:1 of the GATT 1994 
and the origin rules applied under the CEPA, we agree that Japan has not raised a claim regarding 
Notification No. 69/2011. Indeed, Japan's arguments concerning Notification No. 69/2011 are merely 
in response to India's arguments that Notification No. 69/2011 "negates" Japan's claim.1104 In our 
view, it is insufficient for India, as the respondent seeking to demonstrate that the measures at issue 
are not WTO -inconsistent, to merely identify the existe nce of a legal instrument and assert that the 
complainant, who based no claims on that legal instrument, has failed to demonstrate that that 
instrument is WTO -inconsistent. Thus, we do not consider that Japan's alleged failure to demonstrate 
any "distincti on" between the CEPA Rules 2011 and the phrase "products of territories of other 
Members" in Article II:1(b) means that Japan has failed to substantiate its burden of proof under 
Articles II:1(a) and (b) of the GATT 1994 with respect to the challenged meas ures.  
7.451.   We recall that, pursuant to Articles II:1(a) and (b), India has the obligation  to grant 
unconditional duty -free treatment  on an MFN basis  to all products covered by the tariff items  at 
issue, including all such products of Japan, as set forth in its  WTO Schedule . We have found that the 
origin requirements set forth in CEPA Rules 2011 constitute preferential rules of origin and are not 
"inbuilt" in the phrase "products of territories of other Members" in Article II:1(b), first sentence, of 
the GATT 19 94. To the extent that the products of Japan falling under the tariff items  at issue are 
required to comply with such origin requirements to be exempted from customs duties, those 
products of Japan are not accorded unconditional duty -free treatment.  
7.452.   Accord ingly, we find that India has not established that, pursuant to Notification No. 
69/2011, it is acting consistently with its WTO obligations under Articles II:1(a) and (b), because 
Notification No. 69/2011 does not grant unconditional duty -free treatment t o all products of Japan 
at issue in this dispute.  
8  CONCLUSIONS AND RECOMMENDATIONS  
8.1.  For the reasons set forth in this Report, we conclude as follows:  
a. In respect of 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 circum stances 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 ; and  
iii. India's request for findings that Japan  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.  
b. In respect of Japan's claims that India's tariff treatment of certain products is inconsistent 
with Articles II:1(a) and (b) of t he GATT 1994, we find that:  
 
1104 India's second written submission, para. 125.  WT/DS584/R  
 
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  i. India's tariff treatment of products falling within  the scope of tariff items  8517.12.11 
and 8517.12.19 of India's First Schedule at the time of the Panel's establishment, and 
which presently fall within the scope of tariff items 8517.13.00 and 8517.14.00 of 
India's First Schedule, is inconsistent with Articles II:1(a) and (b) of the GATT 1994;  
ii. India's tariff treatment of products falling within the scope of tariff item 8517.61.00 of 
India's First Schedule is inconsistent with A rticles II:1(a) and (b) of the GATT 1994;  
iii. India's tariff treatment of certain products falling within the scope of tariff item 
8517.62.90 of India's First Schedule is inconsistent with Articles II:1(a) and (b) of the 
GATT 1994;  
iv. India's tariff treatment of certain products falling within the scope of tariff items  
8517.70.10 and 8517.70.90 of India's First Schedule at the time of the Panel's 
establishment, and which presently fall within the scope of tariff items  8517.71.00, 
8517.79.10, and 8517.79.90 of India's First Schedule, is inconsistent with 
Articles  II:1(a) and (b) of the GATT 1994;  
v. India's tariff treatment of products cla ssified under tariff item 8517.12.90 of India's 
First Schedule at the time of the Panel's establishment, and which presently fall within 
the scope of tariff item 8517.14.00 is consistent with Articles II:1(a) and (b) of the 
GATT 1994;  
vi. Japan has failed to d emonstrate that, even where India accords products at issue 
treatment that is consistent with Article II:1(b) of the GATT 1994, the measures at 
issue in this dispute accord treatment less favourable than that set forth in India's 
WTO Schedule, inconsistent  with Article II:1(a) of the GATT 1994, on the ground that 
India's customs notifications lack foreseeability or predictability, thus affecting 
conditions of competition for traders; and  
vii. India has failed to establish that Notification No.  69/2011  brings In dia into compliance 
with its WTO obligations pursuant to 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 
inconsistent with Articles II:1(a) and (b) of the GATT 1994, they have nullified or impaired benefits 
accruing to Japan under that agr eement.  
8.3.  Pursuant to Article 19.1 of the DSU, we recommend that India bring its measures into 
conformity with its obligations under Articles II:1(a) and (b) of the GATT 1994.  
__________