WT/DS541/7  
 
22 November 2019  
(19-7980) Page: 1/4 
  Original: English  
 
INDIA – EXPORT RELAT ED MEASURES  
NOTIFICATION OF AN A PPEAL BY INDIA UNDER  ARTICLE  16.4 AND AR TICLE  17 OF  
THE UNDERSTANDING ON  RULES AND PROCEDURE S GOVERNING THE  
SETTLEMENT OF DISPUT ES (DSU), AND UNDER RULE 20(1) OF  
THE WORKING PROCEDUR ES FOR APPELLATE REV IEW 
The following communication, dated 1 9 November 2019, from the delegation of India, is  being 
circulated to Members.  
 
_______________  
1. Pursuant to Article 16 of  the Understanding on Rules and Procedures Governing the Settlement 
of Disputes  ("DSU") and Rule 20 of the Working Procedures for Appellate Review , India hereby 
notifies to the Dispute Settlement Body its decision to appeal to the Appellate Body certain is sues of 
law and legal interpretations covered in the report of the Panel in India – Export Related Measures  
(WT/DS541/R). Pursuant to Rule 23(1) of the Working Procedures for Appellate Review , India is 
simultaneously filing this Notice of Appeal with the A ppellate Body Secretariat.  
2. For the reasons to be further elaborated in its submission to the Appellate Body, India appeals, 
and requests the Appellate Body to modify or reverse legal interpretations leading to the legal 
findings and conclusions of the Pan el, with respect to the following errors contained in the Panel 
Report:1 
a. The Panel has irrevocably violated India 's due process rights in the facts and 
 circumstances of this case and has failed to fulfill its mandate under the DSU  
3. India considers that the Panel has violated India 's due process right and violated its duty to 
conduct an objective assessment of the matter under Article 11 of the DSU by refusing to hold a 
second substantive meeting.2 In not holding a second substantive meeting, the Panel ha s erred in: 
(a) its provision of special and differential treatment to India in the context of Article 12.10 of the 
DSU: (b) disregarding India 's due process rights guaranteed by the DSU based on resource 
constraints on the part of the Secretariat; (c) fai ling to provide any rationale for its decision to not 
hold a Second Substantive Meeting, and alternatively even if rationale was provided, failing to 
provide a rationale relevant to the applicable legal standard. India submits that (d) that the resulting 
violation of due process goes to the heart of the procedure implemented by the Panel and critically 
affects the credibility of the Report.  
4. India notes that the Panel's failure to perform its duties at different stages of the proceeding 
have irrevocably com promised the credibility of the Panel Report. Consequently, India requests for 
the Appellate Body to declare the entire Report moot and of no legal effect.  
 
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal 
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to India's right to refer to other para graphs of the Panel Report in the context of its appeal.  
2 Panel Report, Annex D -1, paras. 2.19 -2.21. Panel Report, para. 1.14 -1.15.  WT/DS541/7  
 
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  b. The Panel has erred in finding that the Panel Request made by the 
United  States has met the stand ard provided in Article 6.2 of the DSU, and 
erred in finding that the list of legal instruments met the standard of available 
evidence under Article 4.2 of the SCM Agreement  
5. India appeals the finding of the Panel that the request for the establishment of a  panel made 
by the United States in WT/DS541/4 identified the 'specific ' measures at issue in this dispute. India 
states that the Panel did not make an objective assessment of the matter, and did not apply the 
correct legal standard in determining whether the United States ' Panel Request was specific. The 
Panel has also erred in considering that the identical list of legal instruments was sufficient to identify 
the specific measures at issue under Article 6.2 of the DSU and met the requisite standard of 
available evidence as per Article 4.2 of the SCM Agreement.  
6. India requests the Appellate Body to reverse the Panel 's findings that the Request for 
Establishment of a Panel by the United States in WT/DS541/4 met the standards of Article 6.2 of 
the DSU.3 
c. The Panel has erred in its interpretation of Article 27.2(b) of the 
SCM Agreement as applicable to developing country members graduating from 
Annex VII(b) of the SCM Agreement  
7. India challenges the interpretation of Article 27.2(b) and Annex VII of the SCM Ag reement, as 
developed by the Panel. India submits that the Panel has erred in finding that Article 27.2(b) of the 
SCM Agreement does not apply to developing country members graduating from Annex VII(b).4 
India also submits that the interpretation developed  by the Panel is contrary to the general principles 
of treaty interpretation and that the interpretation developed by the Panel results in ambiguity and 
inconsistency between the provisions of Article 27 of the SCM Agreement.5 The interpretation 
developed by the Panel renders express words of Annex VII(b) ineffective6 and runs contrary to the 
object and purpose of the SCM Agreement; 7 and denies the rights granted to developing country 
members by Annex VII(b) of the SCM Agreement.8 
8. Consequently, India requests the Appellate Body to reverse the Panel 's findings that 
Article  27.2(b) of the SCM Agreement does not apply to developing count ry members graduating 
from Annex VII(b),9 and find that developing country members graduating from Annex VII(b) are 
entitled to an eight -year phase -out period for eliminating their export subsidies.   
d. India appeals the legal standard for footnote 1, as d eveloped and applied by 
the Panel  
9. India appeals the legal standard developed by the Panel under footnote 1 of the 
SCM Agreement, and submits that the Panel erred in (a) not evaluating all conditions of footnote 1 
while evaluating its applicability, and (b ) finding that the application of Part II of Annex II is not 
irrelevant outside countervailing duty investigations.10  
10. India requests the Appellate Body to find that the legal standard as developed by the Panel 
for footnote 1 of the SCM Agreement is incorre ct and that Part II of Annex II can be applied only in 
countervailing duty investigations.  
 
3 Panel Report, Annex D -2, inter alia paras. 2.44, 2.54, 2.67, 2.81, 2.99 and 2.126. Panel Report, paras 
7.122, 7.123, and 7.130.  
4 Panel Report, paras. 7.40, 7.45, 7.53.  
5 Panel Report, paras. 7.60, 7.61, 7.62, 7.63, 7.64.  
6 Panel Report, paras. 7.46, 7.47, 7.48.  
7 Panel Report, paras. 7.6 5, 7.66, 7.67, 7.68.  
8 Panel Report, paras. 7.49, 7.50, 7.51, 7.52.  
9 Panel Report, paras. 7.69, 7.72, 7.73, 7.74.  
10 Panel Report, para. 7.182.  WT/DS541/7  
 
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  e. The panel has erred in finding that the exemption from Customs Duties on 
Importation under the EOU/EHTP/BTP Schemes are subsidies contingent on 
export performanc e, inconsistent with Articles 3.1(a) and 3.2 of the 
SCM Agreement  
11. India appeals the said findings and conclusions arrived at by the Panel, that the EOU Scheme 
did not meet the requirements of footnote 1 of the SCM Agreement, and that the "Excessive 
Remiss ion Principle " is not applicable in the case of the exemption from customs duties on 
importation under the EOU/EHTP/BTP Schemes. The Panel failed to carry out an objective 
assessment of the scheme. India also appeals the Panel 's finding on the following gr ounds: (a) the 
Panel erred in finding the exemption from customs duties under the EOU/EHTP/BTP Schemes does 
not fall within the ambit of footnote 1 of the SCM Agreement;11 (b) the Panel has erred by applying 
incorrect legal standards to find that the exempt ion from customs duty under the EOU/EHTP/BTP 
Schemes is a subsidy; (c) the Panel has applied incorrect legal test, namely, the 'three -step test ' 
and 'better off ' test,12 and (d) the Panel has incorrectly found that the exemption from custom duties 
on import ation under EOU/EHTP/BTP Schemes is contingent on export performance.13 
12. India requests the Appellate Body to reverse the Panel 's findings that the exemption from 
customs duties on importation under the EOU/EHTP/BTP Schemes are subsidies contingent upon 
export performance, inconsistent with Articles 3.1(a) and 3.2 of the SCM Agreement, and find that 
EOU Scheme falls within the ambit of footnote 1, and if any additional duty is exempted under the 
scheme, needs to be evaluated in accordance to the excess re mission principle.14 
f. The Panel has erred in finding that the exemption from customs duties on the 
importation of capital goods under the EPCG Scheme are subsidies contingent 
on export performance, inconsistent with Articles 3.1(a) and 3.2 of the 
SCM Agre ement  
13. India appeals the Panel 's findings that the EPCG Scheme provides subsidies contingent on 
export performance. India states that the Panel has erred in (a) finding that footnote 61 provides 
an exhaustive list of inputs;15 (b) in finding that Capital Go ods are not "consumed " while 
manufacturing exported products;16 and (c) in disregarding India 's argument that Capital Goods can 
be allowed as inputs as per Destination Principle embedded in Article VI:4 of GATT, Annex I to III of 
SCM Agreement and Ad Article XVI of GATT 96. The Panel erred in finding that "Capital Goods " 
cannot be considered as inp uts consumed in the manufacture of exported product, and consequently, 
erred in holding that the exemption from customs duties on the importation of capital goods under 
the EPCG Scheme does not meet the requirements of footnote 1 of the SCM Agreement.17 
14. India requests the Appellate Body to reverse the Panel 's findings that the exemption from 
customs duties on importation under the EPCG Scheme is a subsidy contingent upon export 
performance, inconsistent with Articles 3.1(a) and 3.2 of the SCM Agreement, as t he Panel erred in 
not accepting India 's arguments that capital goods are inputs consumed, and hold that the 
exemption from custom duties on importation under the EPCG Scheme meets the requirements of 
footnote 1 of the SCM Agreement.18 
g. The Panel erred by finding that the MEIS Scheme grants subsidies contingent 
upon export performance, inconsistent with Articles 3.1(a) and 3.2 of the 
SCM Agreement  
15. India states that the Panel erred in finding that MEIS grants subsidies contingent upon export 
performance, inc onsistent with Articles 3.1(a) and 3.2 of the SCM Agreement :(a) in finding that 
MEIS scrips do not meet the conditions of footnote 1;19 and (b) in concluding that MEIS involves a 
 
11 Panel Report, para. 7.216.  
12 Panel Report, para. 7.310.  
13 Panel Report, para. 7.498.  
14 Panel Report, paras. 7 .215, 7.216, 7.236 (first sentence), 7.326 -7.327, 7.498, and 8.1(a).  
15 Panel Report, para. 7.200.  
16 Panel Report, para. 7.243.  
17 Panel Report, para. 7.247.  
18 Panel Report, paras. 7.247, 7.341, 7.458, 7.512 and 8(b).  
19 Panel Report, paras. 7.289, 7.294,  WT/DS541/7  
 
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  direct transfer of funds.20 India also appeals the Panels ' finding that the ME IS scrips result in 
conferral of a benefit as per Article 1 of the SCM Agreement.  
16. India requests the Appellate Body to reverse the findings of the Panel on the grounds stated 
above and find that the MEIS falls within the ambit of footnote 1 and therefore is not a prohibited 
export subsidy under Article 3.1(a) and 3.2 of the SCM Agreement.21 
h. The Panel has erred in finding that the SEZ Scheme is a prohibited export 
subsidy under Articles 3.1(a) and 3.2 of the SCM Agreement  
17. India appeals the findings of th e Panel that the SEZ Scheme is a subsidy contingent on export 
performance. India states that the Panel failed to carry out an objective assessment of the scope of 
the term "exports " under the SEZ Scheme.22 India also states that the Panel failed to make an 
objective assessment of the positive NFE requirement under the SEZ Scheme23 to find the positive 
NFE requirement under the SEZ Scheme imposes a condition of de jure export contingency on 
SEZ Units. Further, India submits that the Panel erred in applying the  test of de jure export 
contingency to the SEZ Scheme. 24  
18. India requests the Appellate Body to reverse the findings of the Panel on the grounds stated 
above and find that the SEZ Scheme is not a prohibited export subsidy under Article 3.1 and 3.2 of 
the SC M Agreement.25 
i. The Panel has erred in finding that Conditions 10, 21, 36, 60(II) & 61 in 
Customs Notification 50/2017 are subsidies contingent on export 
performance, inconsistent with Articles 3.1(a) and 3.2 of the SCM Agreement  
19. India considers that the  Panel has not objectively assessed Conditions 10, 21, 36, 60(ii) and 
61 of DFIE Scheme. India appeals the finding of the Panel on the following grounds: (a) the Panel 
has not objectively assessed the applicability of evidence submitted by the United State s for 
one product under Condition 10 (US Exhibit 90);26 (b) the Panel has erred in considering that items 
imported duty free under Condition 60(ii) and 6 items imported under Condition 21 are goods not 
used in the production of exported products;27 (c) The P anel has erred in applying the 
three -step test, specifically for Condition 3628 (d) the Panel erred in finding export contingency for 
importation of research equipment under condition 61 of the DFIE Scheme.29 
20. In this appeal, India requests the Appellate Body  to reverse the Panel 's findings that 
Conditions 10, 21, 36, 60(ii) & 61 in the DFIE Scheme are subsidies contingent on export 
performance, inconsistent with Articles 3.1(a) and 3.2 of the SCM Agreement.30 
21. India notes that the above grounds of appeal are wi thout prejudice to the arguments 
developed in India's Appellant's Submission.  
 
__________  
 
20 Panel Report, para s. 7.432, 7.438.  
21 Panel Report, paras. 7.289, 7.294, 7.432, 7.438 and 8.1(e).  
22 Panel Report, para s. 7.351, 7.352, 7.353 . 
23 Panel Report , paras. 7.522, 7.524, 7.525, 7.526, 7.527, 7.528, 7.529, 7.530, 7.531.  
24 Panel  Report, paras. 7.529 and 7.530,  footnote 775, 7.533.  
25 Panel Report, paras. 7.533 and 8.1(c).  
26 Panel Report, para. 7.256.  
27 Panel Report, para. 7.255.  
28 Panel Report, paras. 7.266, 7.419.  
29 Panel Report, para s. 7.541 -7.542.  
30 Panel Report, paras. 7.267 (first sentence), 7.406, 7.419, 7.458, 7.542, and 8.1(d).