WT/DS588/R  
 
17 April 2023 
(23-2705) Page: 1/137 
  Original: English  
 
  
 
 
 
INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION 
AND COMMUNICATIONS TECHNOLOGY SECTO R 
 
REPORT OF THE PANEL  WT/DS588/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  14 
1.1   Complaint by Chinese Taipei  ................................ ................................ ........................ 14 
1.2   Panel establishment and composition  ................................ ................................ ............ 14 
1.3   Panel proceedings  ................................ ................................ ................................ .......14 
1.3.1    General  ................................ ................................ ................................ .................. 14 
1.3.2    Organizational phase - Working Procedures 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 engagements  ................................ ..................... 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  ................................  29 
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  ................................ .............. 30 
6.1.1    Whether India's assumption that the transposition of its WTO Schedule to the  
HS2007 would not expand the scope of its  WTO tariff commitments from its ITA  
undertakings formed  an essential basis of India's consent to be bound by its WTO Schedule  .......30 
6.1.2    Whether the circumstances were such as to put India on notice of a possible  
expansion of its WTO tariff commitments from its ITA undertakings  ................................ ......... 32 
6.2   Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the  
GATT 1994  ................................ ................................ ................................ ........................ 33 
6.2.1    Tariff item 8517.12 of India's WTO Schedule  ................................ ............................... 33 
6.2.2    Tariff items 8517.61 and 8517.70 ex01, ex02, and ex03 of India's WTO Schedule  ........... 34 
7   FINDIN GS ................................ ................................ ................................ .................  34 
7.1   Introduction  ................................ ................................ ................................ ............... 34 
7.2   The legal standard under Articles II:1(a) and (b) of the GATT 1994  ................................ ..35 WT/DS588/R  
 
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  7.3   General issues concerning India's WTO tariff commitments  ................................ .............. 37 
7.3.1    Overview  ................................ ................................ ................................ ................ 37 
7.3.2    The relevance of the ITA  ................................ ................................ ........................... 38 
7.3.2.1    Introduction  ................................ ................................ ................................ ......... 38 
7.3.2.2    Whether the ITA sets forth India's legal obligations  ................................ ................... 40 
7.3.2.2.1    Main arguments of the parties  ................................ ................................ ............. 40 
7.3.2.2.2    Main arguments of the third parties  ................................ ................................ ......41 
7.3.2.2.3    Panel's assessment  ................................ ................................ ............................ 42 
7.3.2.3    Whether the ITA limits or modifies the scope of the tariff commitments set forth  
in India's WTO Schedule  ................................ ................................ ................................ .....45 
7.3.2.3.1    Main arguments of the parties  ................................ ................................ ............. 45 
7.3.2.3.2    Main arguments of the third parties  ................................ ................................ ......46 
7.3.2.3.3    Panel's assessment  ................................ ................................ ............................ 48 
7.3.2.4    Conclusion  ................................ ................................ ................................ ........... 53 
7.3.3    Article 48 of the Vienna Convention  ................................ ................................ ........... 54 
7.3.3.1    Introduction  ................................ ................................ ................................ ......... 54 
7.3.3.2    Article 48(1)  ................................ ................................ ................................ ......... 57 
7.3.3.2.1    Main arguments of the parties  ................................ ................................ ............. 57 
7.3.3.2.2    Main arguments of the third parties  ................................ ................................ ......58 
7.3.3.2.3    Panel's assessment  ................................ ................................ ............................ 59 
7.3.3.2.3.1    General considerations  ................................ ................................ ..................... 59 
7.3.3.2.3.2    Whether, at the time when the changes to its WTO Schedule were certified  
following the HS2007 transposition process, India assumed that the scope of its WTO tariff 
commitments would not be expanded beyond the scope of its ITA undertakings  ........................ 60 
7.3.3.2.3.3    Whether India's assumption regarding the alleged expansion of its WTO tariff 
commitments from its ITA undertakings  relates to a "fact or situation" within the meaning  
of Article 48(1)  ................................ ................................ ................................ .................. 63 
7.3.3.2.3.4    Whether India's assumption that the transp osition of its WTO Schedule to the 
HS2007 would not expand the scope of its WTO tariff commitments from its ITA undertakings 
formed an essential basis of India's consent to be bound by its WTO Schedule  .......................... 64 
7.3.3.2.3.5    Whether India's assumption that its tariff commitments would not be  
expanded beyond the scope of its ITA undertakings was in error  ................................ .............. 67 
7.3.3.2.3.6    Conclusion regarding Article 48(1)  ................................ ................................ .....72 
7.3.3.3    Article 48(2)  ................................ ................................ ................................ ......... 72 
7.3.3.3.1   Main arguments of the parties  ................................ ................................ ............. 72 
7.3.3.3.2    Main arguments of the third parties  ................................ ................................ ......74 
7.3.3.3.3    Panel's assessment  ................................ ................................ ............................ 75 
7.3.3.3.3.1    General considerations  ................................ ................................ ..................... 75 
7.3.3.3.3.2    Whether the circumstances were such as to pu t India on notice of a possible 
expansion of its WTO tariff commitments from its ITA undertakings  ................................ ......... 76 
7.3.3.3.3.3    Whether India contributed by its own conduct to the alleged expansion in the  
scope of its WTO tariff commitments from its ITA undertakings  ................................ ............... 83 
7.3.3.3.3.4    Conclusion regarding Article 48(2)  ................................ ................................ .....85 
7.3.3.4    Conclusion  ................................ ................................ ................................ ........... 85 WT/DS588/R  
 
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  7.3.4    India's rectification request under the 1980 Decision  ................................ .................... 86 
7.3.4.1    Introduction  ................................ ................................ ................................ ......... 86 
7.3.4.2    Main arguments of the parties  ................................ ................................ ................ 87 
7.3.4.3    Main arguments of the third parties  ................................ ................................ ......... 87 
7.3.4.4    Panel's assessment  ................................ ................................ ............................... 89 
7.3.5    Conclusion  ................................ ................................ ................................ .............. 93 
7.4   Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the  
GATT 1994  ................................ ................................ ................................ ........................ 93 
7.4.1    Overview  ................................ ................................ ................................ ................ 93 
7.4.2    Tariff item 8517.12 of India's WTO Schedule  ................................ ............................... 94 
7.4.2.1    General issues  ................................ ................................ ................................ ......94 
7.4.2.1.1    Main arguments of the parties  ................................ ................................ ............. 94 
7.4.2.1.2    Panel's assessment  ................................ ................................ ............................ 94 
7.4.2.2    India's WTO tariff commitments  ................................ ................................ .............. 95 
7.4.2.2.1    Main arguments of the parties  ................................ ................................ ............. 95 
7.4.2.2.2    Panel's assessment  ................................ ................................ ............................ 95 
7.4.2.3    India's tariff treatment  ................................ ................................ .......................... 96 
7.4.2.3.1    Main arguments of the parties  ................................ ................................ ............. 96 
7.4.2.3.2    Panel's assessment  ................................ ................................ ............................ 97 
7.4.2.4    Comparison of India's tariff treatment to its WTO tariff commitments  .......................... 98 
7.4.2.4.1    Preliminary issues  ................................ ................................ .............................. 98 
7.4.2.4.1.1    Whether the measure at issue includes the tariff treatment of "smartphones"  ......... 98 
7.4.2.4.1.2    Whether the challenged measure has ceased to exist  ................................ .........  102 
7.4.2.4.2    Comparison of applied and bound duty rates  ................................ .......................  104 
7.4.2.5    Conclusion  ................................ ................................ ................................ .........  104 
7.4.3   Tariff item 8517.61 of India's WTO Schedule  ................................ .............................  104 
7.4.3.1    India's WTO tariff commitments  ................................ ................................ ............  104 
7.4.3.1.1    Main arguments of the parties  ................................ ................................ ...........  104 
7.4.3.1.2    Panel's assessment  ................................ ................................ ..........................  104 
7.4.3.2    India's tariff treatment  ................................ ................................ ........................  105 
7.4.3.2.1    Main arguments of the parties  ................................ ................................ ...........  105 
7.4.3.2.2    Panel's assessment  ................................ ................................ ..........................  106 
7.4.3.3    Comparison between India's WTO tariff commitments and its tariff treatment  ............  106 
7.4.3.4    Conclusion  ................................ ................................ ................................ .........  106 
7.4.4    Tariff item 8517.62 of India's WTO Schedule  ................................ .............................  107 
7.4.4.1    India's WTO tariff commitments  ................................ ................................ ............  107 
7.4.4.1.1    Main arguments of the parties  ................................ ................................ ...........  107 
7.4.4.1.2    Panel's assessment  ................................ ................................ ..........................  107 
7.4.4.2    India's tariff treatment  ................................ ................................ ........................  108 
7.4.4.2.1    Main arguments of the parties  ................................ ................................ ...........  108 
7.4.4.2.2    Panel's assessment  ................................ ................................ ..........................  109 WT/DS588/R  
 
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  7.4.4.3    Comparison between India's WTO tariff commitments and its tariff treatment  ............  110 
7.4.4.3.1    Main arguments of the parties  ................................ ................................ ...........  110 
7.4.4.3.2    Panel's assess ment ................................ ................................ ..........................  111 
7.4.4.4    Conclusion  ................................ ................................ ................................ .........  112 
7.4.5    Tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule  ............................  113 
7.4.5.1    General issues  ................................ ................................ ................................ .... 113 
7.4.5.1.1    Main arguments of the parties  ................................ ................................ ...........  113 
7.4.5.1.2    Panel's assessment  ................................ ................................ ..........................  113 
7.4.5.2    India's WTO tariff commitments  ................................ ................................ ............  115 
7.4.5.2.1    Main arguments of the parties  ................................ ................................ ...........  115 
7.4.5.2.2    Panel's assessment  ................................ ................................ ..........................  115 
7.4.5.3    India's tariff treatment  ................................ ................................ ........................  116 
7.4.5.3.1    Main arguments of the parties  ................................ ................................ ...........  116 
7.4.5.3.2    Panel's assessment  ................................ ................................ ..........................  118 
7.4.5.3.2.1    Tariff treatment at the time of the Panel's establishment  ................................ .... 118 
7.4.5.3.2.2    Tariff treatment as of 1 January 202 2 ................................ ..............................  122 
7.4.5.4    Comparison of India's tariff treatment to its WTO tariff commitments  ........................  125 
7.4.5.4.1    Main arguments of the parties  ................................ ................................ ...........  125 
7.4.5.4.2    Panel's assessment  ................................ ................................ ..........................  126 
7.4.5.5    Conclusion  ................................ ................................ ................................ .........  129 
7.4.6    Tariff item 8518.30 ex01 of India's WTO Schedule  ................................ .....................  129 
7.4.6.1    India's WTO tariff commitments  ................................ ................................ ............  129 
7.4.6.1.1    Main arguments of the parties  ................................ ................................ ...........  129 
7.4.6.1.2    Panel's assessment  ................................ ................................ ..........................  129 
7.4.6.2    India's tariff treatment  ................................ ................................ ........................  130 
7.4.6.2.1    Main arguments of the parties  ................................ ................................ ...........  130 
7.4.6.2.2    Panel's assessment  ................................ ................................ ..........................  131 
7.4.6.3    Comparison of India's tariff treatment to its WTO tari ff commitments  ........................  135 
7.4.6.3.1    Main arguments of the parties  ................................ ................................ ...........  135 
7.4.6.3.2    Panel's assessment  ................................ ................................ ..........................  135 
7.4.6.4    Conclusion  ................................ ................................ ................................ .........  136 
8   CONCLUSIONS AND RECOMMENDATIONS  ................................ ...............................  136  
 
 WT/DS588/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  
CHINESE TAIPEI  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Chinese Taipei  18 
Annex  B-2 Second integrated  executive summary of the arguments of Chinese Taipei  30 
 
INDIA  
Contents  Page  
Annex  B-3 First integrated executive summary of the arguments of India 45 
Annex  B-4 Second integrated  executive summary of the arguments of India 59 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  69 
Annex  C-2 Integrated executive summary of the arguments of Canada  71 
Annex  C-3 Integrated executive summary of the arguments of the European Union  74 
Annex C -4 Integrated executive summary of the arguments of Japan  76 
Annex C -5 Integrated executive summary of the arguments of the Republic of Korea  81 
Annex C -6 Integrated executive summary of the arguments of Norway  84 
Annex C -7 Integrated executive summary of the arguments of Singapore  85 
Annex C -8 Integrated executive summary of the arguments of Türkiye  87 
Annex C -9 Integrated executive summary of the arguments of Ukraine  91 
Annex C -10 Integrated executive summary of the arguments of the United Kingdom  93 
Annex C -11 Integrated executive summary of the arguments of the United States  95 
ANNEX D 
COMMUNICATIONS BY THE PANEL CONCERNING THE SUBSTANTIVE MEETINGS  
Contents  Page  
Annex  D-1 Panel's communication to the parties  (31 March 2021 ) 101 
Annex  D-2 Panel's communication to the parties (21 April 2021)  102 
Annex  D-3 Panel's communication to the parties (31 August 2021)  105 
Annex D -4 Panel's communication to the parties (20 September 2021)  108 
ANNEX E 
OTHER DECISIONS BY THE PANEL  
Contents  Page  
Annex  E-1 Panel's decision on requests for enhanced third -party rights  111 
Annex  E-2 Panel's decision on India's preliminary objection and preliminary ruling request  112 
Annex E-3 Panel's decision on India's evidentiary objection  126 WT/DS588/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R , adopted 12 January 2000, as modified by Appellate Body Report 
WT/D S121/AB/R, DSR 2000:II, p. 575  
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, Appa rel and Other Items , WT/DS56/AB/R  and Corr.1, adopted 22 April 
1998, DSR 1998:III, p. 1003  
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20 March 1997, DSR 1997:I, p. 167  
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products , WT/DS207/R , adopted 23 October 2002, as 
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, p. 3127  
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 Services for Certain Publications and Audiovisual Entertainment 
Products , WT/DS363/AB/R , adopted 19 January 2010, DSR 2010:I, p. 3  
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R , Add.1 and Corr.1 / WT/DS395/R , Add.1 and Corr.1 / 
WT/DS398/R , Add.1 and Corr.1, adopted 22  February  2012, as modified by 
Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, 
DSR 2012:VII, p. 3501  
Colombi a – 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 and 
Marketing of Biotech Products , WT/DS291/R , Add.1 to Add.9 and Corr.1 / 
WT/DS292/R , Add.1 to Add.9 and Corr.1 / WT/DS293/R , Add.1 to Add.9 and 
Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847  
EC – 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 for the Importation, Sale and Distribution of 
Bananas – Recourse to Article 21.5 of the DSU b y the United  States , 
WT/DS27/AB/RW/USA  and Corr.1, adopted 22  Decemb er 2008, DSR 
2008:XVIII, p. 7165  
EC – Bananas III (Article 
21.5 – Ecuador II)  Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by 
Ecuador , WT/DS27/RW2/ECU , adopted 11 December 2008, as modified by 
Appellate Body Report WT/DS27/AB/RW 2/ECU, DSR 2008:XVIII, p. 7329  
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 Subsidies 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  WT/DS588/R  
 
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  Short Title  Full Case Title and Citation  
EC – Hormones (Canada)  Panel Report, European Communities – Measures Concerning Meat and Meat 
Products (Hormones), Complaint by Canada , WT/DS48/R/CAN , adopted 13 
February 1998, as modified by Appellate Body Repo rt WT/DS26/AB/R, 
WT/DS48/AB/R, DSR 1998:II, p. 235  
EC – Hormones (Canada) 
(Article 22.6 – EC) Decision by the Arbitrator, European Communities – Measures Concerning Meat 
and Meat Products (Hormones), Original Complaint by Canada – Recourse to 
Arbitration by the European Communities under Article 22.6 of the DSU , 
WT/DS48/ARB , 12 July 1999, DSR 1999:III, p. 1135  
EC – Hormones (US) 
(Article 22.6 – EC) Decision by the Arbitrator, European Communities – Measures Concerning Meat 
and Meat Products (Hormones), Original Complaint by the United States – 
Recourse to Arbitration by the European Communities under Article 22.6 of the 
DSU, WT/DS26/ARB , 12 July 19 99, DSR 1999:III, p. 1105  
EC – IT Products  Panel Reports, European Communities and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21 September 2010, DSR 2010:III, p. 
933 
EC and certain member 
States – Large Civil Aircraft  Panel Report, European Communities and Certain Member States – Measures 
Affecting Tra de in Large Civil Aircraft , WT/DS316/R , adopted 1 June 2011, as 
modified by Appellate Body Report WT/DS316/AB/R, DSR 2011:II, p. 685  
EU – Fatty Alcohols 
(Indonesia)  Appellate Body Report, European Union – Anti-Dumping Measures on Imports of 
Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R  and Add.1, adopted 29 
September 2017, DSR 2017:VI, p. 2613  
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  Panel Rep ort, India – Additional and Extra -Additional Duties on Imports from 
the United States , WT/DS360/R , adopted 17 November 2008, as reversed by 
Appellate Body Report WT/DS360/AB/R, DSR 2008:XX, p. 8317  
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , WT/DS146/R , 
WT/DS175/R , and Corr.1, adopted 5 April 2002, DSR 2002:V, p. 1827  
India – Patents (US)  Appellate Body Report, India – Patent Protection for  Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R , adopted 16 January 1998, DSR 
1998:I, p. 9  
India – Quantitative 
Restrictions  Panel Report, India – Quantitative Restrictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R , adopted 22 September 1999, 
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799  
India – Solar Cells  Panel Re port, India – Certain Measures Relating to Solar Cells and Solar 
Modules , WT/DS456/R  and Add.1, adopted 14 October 2016, as modified by 
Appellate Body Report WT/DS456/AB/R, DSR 2016:IV, p. 1941  
Japan – Apples  Appellate Body 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 – Definitiv e 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 Soft 
Drinks  Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other 
Beverages , WT/DS308/AB/R , adopted 24  March  2006, DSR 2006:I, p.  3 
Russia – Tariff Treatment  Panel Report, Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products , WT/DS485/R , Add.1, Corr.1, and Corr.2, adopted 26 
September 2016, DSR 2016:IV, p. 1547  
Russia – Traffic in Transit  Panel Report, Russia – Measures Concerning Traffic in Transit , WT/DS512/R  and 
Add.1, adopt ed 26 April 2019  
Thailand – Cigarettes 
(Philippines)  Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes 
from the Philippines , WT/DS371/AB/R , adopted 15 July 2011 , DSR 2011:IV, p. 
2203 
Thailand – Cigarettes 
(Philippines)  Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the 
Philip pines , WT/DS371/R , adopted 15 July 2011, as modified by Appellate Body 
Report WT/DS371/AB/R , DSR 2011:IV, p. 2299  
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/DS 34/AB/R, DSR 1999:VI, p. 2363  
US – Certain EC Products  Appellate Body Report, United States – Import Measures on Certain Products 
from the European Communities , WT/DS165/AB/R , adopted 10 January 2001, 
DSR 2001:I, p. 373  
US – COOL  Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R  / WT/DS386/R , adopted 23 July 2012, as modified WT/DS588/R  
 
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  Short Title  Full Case Title and Citation  
by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 2012:VI, 
p. 2745  
US – COOL (Article 2 1.5 – 
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 App ellate 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 modified 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 – Large Civil Aircraft (2nd 
complaint)  Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) , WT/DS353/R , adopted 23 March 2012, as modified by 
Appellate Body Report WT/DS353/AB/R, DSR 2 012:II, p. 649  
US – Washing Machines  Panel Report, United States – Anti-Dumping and Countervailing Measures on 
Large Residential Washers from Korea , WT/DS464/R  and Add.1, adopted 26 
September 2016, as modified by Appellate Bod y Report WT/DS464/AB/R, DSR 
2016:V, p. 2505  
US – Wool Shirts and 
Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, and 
Corr.1, DSR 1997:I, p. 323  
 
 WT/DS588/R  
 
- 10 - 
 
  LIST OF FREQUENTLY CITED EXHIBITS  
Panel Exhibit  Short Title  
(where applicab le) Title 
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  
Exhibit TPKM -4 Customs Act 1962  The Customs Act, 1962, Act No. 52 of 1962 (13 December 1962)  
Exhibit TPKM -5 Customs Tariff Act 
1975 The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 1975)  
Exhibit TPKM -6 Provisional Collection 
of Taxes Act 1931  The Provisional Collection of Taxes Act, 1931, Act No. 16 of 1931 
(28 September 1931)  
Exhibit TPKM -7 Notification No. 
24/2005  Notification No. 24/2005 (1 March 2005)  
Exhibit TPKM -8 Notification No. 
25/2005  Notification No. 25/2005 (1 March 2005)  
Exhibit TPKM -11 Notification No. 
57/2017  Notification No. 57/2017 (30 June 2017)  
Exhibit TPKM -14 Notification No. 
58/2017  Notification No. 58/2017 (30 June 2017)  
Exhibit TPKM -18 First Schedule as of 2 
February 2018  Chapter 85 of the First Schedule of the Customs Tariff Act, 1975 
(2 February 2018 version) https://www.cbic.gov.in/htdocs -
cbec/customs/cst1718 -020218/cst1718 -0202-idx (accessed 28 
January 2021)  
Exhibit TPKM -19 Finance Bill 2018  Lok Sabha, The Finance Bill , 2018, Bill No. 4 of 2018 (1 February 
2018)  
Exhibit TPKM -22 First Schedule as of 
30 June 2020  Chapter 85 of the First Schedule of the Customs Tariff Act, 1975 
(30 June 2020 version) https://www.cbic.gov.in/htdocs -
cbec/customs/cst2021 -310620/cst2021 -310620 -idx (accessed 28 
January 2021)  
Exhibit TPKM -25 Notification No. 
22/2018  Notification No. 22/2018 (2 February 2018)  
Exhibit TPKM -27 Notification No. 
02/2019  Notification No. 02/2019  (29 January 2019)  
Exhibit TPKM -28 Notification No. 
36/2019  Notification No. 36/2019 (30 December 2019)  
Exhibit TPKM -30 Notification No. 
76/2018  Notification No. 76/2018 (11 October 2018)  
 
Exhibit TPKM -32 Notification No. 
02/2020  Notification No. 02/2020 (2 February 2020)  
Exhibit TPKM -33 First Schedule as of 
31 December 2019  Chapter 85 of the First Schedule of the Customs Tariff Act, 1975 
(31 December 2019 version) https://www.cbic.gov.in/htdocs -
cbec/customs/cst1920 -311219/cst1920 -311219 -idx (accessed 28 
January 2021)  
Exhibit TPKM -34 Finance Bill 2020  Lok Sabha, The Finance B ill, 2020, Bill No. 26 of 2020 (1 February 
2020)  
Exhibit TPKM -35 Notification No. 
37/2018  Notification No. 37/2018 (2 April 2018)  
Exhibit TPKM -36 Notification No. 
23/2019  Notification No. 23/2019 (6 July 2019)  
Exhibit TPKM -59 HS1996 Explanatory 
Notes to Heading 
8525 World Customs Organization, Harmonized System Nomenclature 
1996 Explanatory Notes, 2nd edn (1996), Heading 8525  
Exhibit TPKM -60 WCO, HS Committee 
document 41.337 E  World Customs Organization, Harmonized System Committee 
document 41.337 E (19 August 1997)  
Exhibit TPKM -61 WCO, HS Committee 
document 42.034 E  World Customs Organization, Harmonized System Committee 
document 42.034 E (30 January 1998)  
Exhibit TPKM -62 HS2002 Explanatory 
Notes to Headings 
8517 and 8525  World Customs Organization, Harmonized System Nomenclature 
2002 Explanatory Notes to Section XVI, Headings 8517 and 8525  
Exhibit TPKM -63 HS2007 Chapter 
Notes to Chapter 84  World Customs Organization, Harmonized System Nomenclature 
2007, Chapter Notes to Chapter 84 http://www.wcoomd.org/ -
/media/wco/public/global/pdf/topics/nomenclature/instruments -
and-tools/hs -nomenclature -older-edition/2007/hs -
2007/1684_2007e.pdf?la=en  (acce ssed on 22 April 2022)  
Exhibit TPKM -64 Notification No. 
57/2021  Notification No. 57/2021 (29 December 2021)  WT/DS588/R  
 
- 11 - 
 
  Panel Exhibit  Short Title  
(where applicab le) Title 
Exhibit TPKM -65 General Exemption 
No. 239  Central Board of Indirect Taxes and Customs , General Exemption 
No. 239 - Exemption to Goods Seeks to Pre scribe 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, 02/2020, 03/2021 and 57/2021 
https://www.cbic.gov.in/resources//htdocs -
cbec/customs/cst2021 -301221/G.E. -239.pdf   (accessed 22 April 
2022)  
Exhibit TPKM -67 Notification No. 
68/2017  Notification No. 68/2017, The Customs (Import of Goods at 
Concessional Rate of Duty) Rules, 2017 (30 June 2017)  
Exhibit IND -2  International Court of Justice, Case concerning  Sovereignty over 
Certain Frontier Land (Belgium v. Netherlands) , Judgment of 20 
June 1959: ICJ Reports 1959, p. 209  
Exhibit IND -3  International Court of Justice, Case concerning the  Temple of 
Preah Vihear ( Cambodia v. Thailand) , Merits, Judgment of 15 June 
1962: ICJ Reports 1962, p. 6  
Exhibit IND -6 HS1996 Explanatory 
Notes to Heading 
8525 World Customs Organization, Harmonized System Nomenclature 
1996 Explanatory Notes, 2nd edn (1996), Heading 8525   
Exhibit IND -8 HS2007 Explanatory 
Notes to Heading 
8517 World Customs Organization, Harmonized System Nomenclature 
2007, Explanatory Notes, 4th edn (2007), Heading 8517  
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 -38  Notification No. 24/2005 (1 March 2007) as amended by 
Notification Nos. 132/2006, 11/2014, 19/2016, 32/2016, 
67/2016, 58/2017, 38/2018, 76/2018, 36/2019 and 06/2020  
Exhibit IND -39  Notification No. 25/2005 (1 March 2007) as amended by 
Notification Nos. 133/2006, 26/2007, 15/2012, 67/2017, 
39/2018, 23/2019, 36/2019 and 07/2020  
Exhibit IND -40  Notification No. 5 0/2017 (30 June 2017) as amended by 
Notification Nos. 76/2017, 92/2017, 6/2018, 29/2018, 32/2018, 
40/2018, 72/2018, 03/2019, 25/2019, 30/2019, 31/2019, 
37/2019, 01/2020, 35/2020, 42/2020 and 02/2021  
Exhibit IND -41  Notification No. 57/2017 (30 June 2017) as amended by 
Notification Nos. 22/2018, 37/2018, 69/2018, 75/2018, 02/2019, 
24/2019 and 02/2020  
Exhibit IND -50 Email from IDB, 
WTO, to India (8 
November 2013)  Email correspondence dated 8 November 2013 from IDB, WTO, to 
the Permanent Mission of Ind ia to the WTO, Subject: "HS2007 
transposition file: India"  
Exhibit IND -51 Email from Market 
Access Intelligence 
Section, WTO, to 
India (12  
February 2014)  Email correspondence dated 12 February 2014 from Market 
Access Intelligence Section, WTO, Senior St atistical Officer, to the 
Permanent Mission of India to the WTO, Subject: "RE: HS2007 
transposition file . India"  
Exhibit IND -54 HS2017 Explanatory 
Notes to Heading 
8518 World Customs Organization, Harmonized System Nomenclature 
2017 Explanatory Notes, 4th edn (2017), Heading 8518  
Exhibit IND -56 HS2017 Explanatory 
Notes to Heading 
8517 World Customs Organization, Harmonized System  Nomenclature  
2017 Explanatory Notes, 4th edn (2017), Heading 8517  
Exhibit IND -74 Finance Act 2021  The Finance Act 2021, No. 13 of 2021  
Exhibit IND -76 Notification No. 
15/2022  Notification No. 15/2022 (1 February 2022)  
Exhibit IND -77 India's rectification 
request, 
G/MA/TAR/RS/572  Rectification and Modification of Schedules, Schedule XII - India, 
Communication to the Secretariat (25 September 2018), 
G/MA/TAR/RS/572  
Exhibit IND -78 Prof. M. Waibel, Legal 
Opinion on Error  Prof. M. Waibel's Legal Opinion on Error and Curriculum Vitae  
Exhibit IND -80  Circular No. 04/2022 (27 February 2022)  
Exhibit IND -81 Indian Wireless 
Telegraphy Act 1933  The Indian Wireless Telegraphy Act 1933, No. 17 of 1933  
Exhibit IND -82  Notification No. 71 (25 September 1953)  WT/DS588/R  
 
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  Panel Exhibit  Short Title  
(where applicab le) Title 
Exhibit IND -84  Cambridge Advanced Learner's Dictionary online, definition of 
"impair" 
https://dictionary.cambridge.org/dictionary/english/impair  
(accessed 22 May 2022)  
Exhibit IND -86 Chapter 85 of the 
HS2022  World Customs Organization, Harmonized System Nomenclature, 
7th edn (2022), Chapter 85  
Exhibit IND -87  World Customs Organization, Harmonized System Committee, 49th 
Session, "Classification of the Machines Commercially Referred to  
as 'Tablet Computers'" (13 February 2012) document NC1730E1a; 
and World Customs Organization, Harmonized System Committee, 
50th Session, "Possible Amendments to the Compendium of 
Classification Opinions and Explanatory Notes arising from the 
Decisions tak en by the Committee at its 49th Session" (19 July 
2012) document NC1775E1a  
Exhibit IND -88 Notification No. 
02/2022   
Third-party 
Exhibit EU -4  Hon'ble Supreme Court in the case of Kasinka Trading and ANR v. 
Union of India and ANR , 1994 (74) ELT 782 (S.C.)  
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 JPN -4 Letter from Japan to 
India (9 November 
2018)  Letter dated 9 November 2018 from the Permanent Mission of 
Japan  to the Permanent Mission of India , Rectification and 
Modification of Schedule (India's WTO Schedule XII)  
Third-party 
Exhibit JPN -60 General Rules for the 
Interpretation of the 
Harmonized System  World Customs Organization, General Rules for the Interpretation 
of the Harmonized System  
 
 WT/DS588/R  
 
- 13 - 
 
  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
1980 Decision  GATT Decision of 26 March 1980 on Procedures for Modification and 
Rectification of Schedules of Tariff  Concessions, L/4962  
CBIC Central Board of Indirect Taxes and Customs  
Customs Act 1962  The Customs Act, 1962, Act No. 52 of 1962 (13 December 1962)  
Customs Rules 1996  Customs (Import of Goods at Concessional Rate of Duty for Manufacture of 
Excisable Goods) Rules, 1996  
Customs Rules 2017  Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017  
Customs Tariff Act 1975  The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 1975)  
General Council Decision 
on HS2002 Transposition 
Procedures  General Council Decision of 18 July 2001 on Concessions under the 
Harmonized Commodity Description and Coding System, A Procedure for 
Introduction of Harmonized System 2002, Changes To Schedules of 
Concessions, WT/L/407  
General Co uncil Decision 
on HS2007 Transposition 
Procedures  General Council Decision of 15 December 2006 on A Procedure for the 
Introduction of Harmonized System 2007 Changes to Schedules of 
Concessions Using the Consolidated Tariff Schedules (CTS) Database, 
WT/L/67 3 
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT  General Agreement on Tariffs and Trade  
GATT 1947  General Agreement on Tariffs and Trade 1947  
GATT 1994  General Agreement on Tariffs and Trade 1994  
HS Harmonized System  
HS1996  Harmonized System Nomenclature 1996 Edition  
HS2002  Harmonized System Nomenclature 2002 Edition  
HS2007  Harmonized System Nomenclature 2007 Edition  
HS2017  Harmonized System Nomenclature 2017 Edition  
HS2022  Harmonized System Nomenclature 2022 Edition  
ICJ International Court of Justice  
ICT Information communication technology  
India's WTO Schedule  Schedule XII – India 
ITA Ministerial Declaration on Trade in Information Technology Products, 
WT/MIN(96)/16  
ITA Expansion  Ministerial Declaration on the Expansion of Trade in Information Technology 
Products, WT/MIN(15)/25  
PCBA  Printed circuit board assembly  
PCIJ Permanent Court  of International Justice  
Transposition Note  Email correspondence dated 8 November 2013 from IDB, WTO, to the 
Permanent Mission of India to the WTO, Subject: "HS2007 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/DS588/R  
 
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  1  INTRODUCTION  
1.1  Complaint by Chinese Taipei  
1.1.  On 2 September 2019, Chinese Taipei requested consultations with India pursuant to Articles  1 
and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) 
and Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994)  with respect to 
the measures and claims set out below.1 
1.2.  Consultations were held on 21 November 2019 but failed to resolve the dispute.  
1.2  Panel establishment and composition  
1.3.  On 24 March 2020, Chinese Taipei 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 Chinese Taipei in document WT/DS 588/7 , 
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 Chinese Taipei in document 
WT/DS 588/7 and to make  such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.4 
1.5.  Brazil, Canada, China, the European Union, Japan, Indonesia, the Republic of Korea, Norway, 
Pakistan, the Russian  Federation, S ingapore, 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.  On 19 August 2020, Chinese Taipei requested the Director -General to determine the 
composition of the panel, pursuant to Article 8.7 of the DSU. On 31 August 2020, the 
Director -General accordingly composed the Panel as follows:  
Chairperson:  Mr Paul O'CONNOR  
 
Members:   Ms Samantha ATAYDE ARELLANO  
   Mr Fabián VILLARROEL R ÍOS 
 
1.3  Panel proceedings  
1.3.1   General  
1.7.  The Panel held an organizational meeting with the parties on 19 November 2020.7 
 
1 WT/DS588/1.  
2 WT/DS58 8/7. 
3 Dispute Settlement Body, Minutes of the meeting held on 29 July 2020, WT/DSB/M/443, p. 14.  
4 WT/DS588/ 8. 
5 Formerly "Turkey". (See WT/INF/43/Rev.23).  
6 On 28 October 202 0, Ukraine requested to join this dispute as a third  party. I nvited 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 communications of 29 October 2020 and parties' responses of 10 November 2020). On 
18 November 2020, the Panel informed Ukrai ne, as well as the parties and third parties, that it had accept ed 
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/DS588/8/ Rev.1.  
7 For more details regarding the organizational phase of the dispute, see section 1.3.2 below.  WT/DS588/R  
 
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  1.8.  The Panel adopted its  Working Procedures8 and timetable9 on 4 December 2020, after 
consulting with the parties .  
1.9.  Chinese Taipei 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 fr om Brazil, Canada, the 
European Union, Japan, Korea, Norway, Türkiye , Ukraine, and the United States.  
1.11.   On 20 July 2021, the Panel sent questions for written responses before the first substantive 
meeting and the third -party session to the parties and third parties. The parties and third 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 11 -12 October 
2021.11 Prior to the meeting, the Panel sent the parties a lis t 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 in virtual format on 13 October 2021. 
Following these meetings, the Panel sent written questions to the parties  and third parties on 
18 October 2021. The parties and third parties sent their written responses on 24 November 2021.  
1.13.   The parties submitted their second written submissions on 15 February 2022.  
1.14.   The Panel held its second substantive meeting with the partie s on 4-5 April  2022 in hybrid 
format.14 Prior to the substantive meeting, the Panel sent the parties a list of questions to be 
answered orally at the meeting. Following the meeting, the Panel sent written questions to the 
parties. Written responses to thes e 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 Good s 
(EU) (DS582), India – Tariffs on ICT Goods (Japan)  (DS584), and India – Tariffs on ICT Goods 
(Chinese Taipei)  (DS588),  and mindful of Article 9.3 of the DSU, the 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 w ere serving, or whether they preferred separate organizational meetings.  
 
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.  
10 Brazil, Canada , the European Union, Japan, Korea , Türkiye, Ukraine, and the United States  provided 
responses to the Panel.  
11 For details regarding the organization 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 details 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 th e scheduling and organization of the substantive meetings 
and the third -party session in those three disputes, and whether the parties intended to request the Panel to 
adopt additional working procedures for the protection of confidential information.  WT/DS588/R  
 
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  1.18.   While Chinese Taipei agreed to have a single joint organizational meeting 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 
1.19.   Additionally, Chinese Taipei stated that the substantive meetings and the third -party sessions 
in the three disputes should be held jointly . Should the Panel decide not to hold joint substantive 
meetings, Chinese Taipei considered that each co-complainant "must  be accorded enhanced third  
party rights, including the right to attend the entire substantive meetings, for the two other disputes 
in which it is not a complainant. " Chinese Taipei also submitted that, "pursuant to Article 9.3 of the 
DSU, the Panel  shall, 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 manne r that the rights 
that parties or third parties would otherwise have enjoyed are in no way impaired. " For Chinese 
Taipei, t he working procedures should also stipulate that documents submitted by the parties to the 
Panel in a dispute , as well as questions f rom the Panel to the parties,  should 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 reque sts 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 developing country respondent, sufficient time to 
effectively respond to th ree different complaints. " To that end, India agreed  to hav e common dates 
set for the written submissions of the complainants.  Furthermore, "[g] iven the likely differences in 
the complainants' presentation of their claims and arguments ", India request ed sufficient time to 
prepare and present its arguments. Insofar as meetings were concerned, India stated that " the 
timetables cannot collapse the proceedings into a single, identical process by holding common 
substantive meetings for all the three disputes. " India consider ed that "its ability to respond to 
distinct claims and arguments requir es separate substantive meetings to be devoted to each 
dispute. " Therefore, India request ed that "the substantive meetings between the respective parties 
be hel d 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 "encouraged" each 
third party 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 -organiza tional 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 responses 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 submitted their comments  on each 
other's responses to the pre -organizational meeting questionnaire on 10 November 2020. On 
19 November 2020, the Panel held an organizational meeting with the parties.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 and in the other two disputes in which the same panelists had been 
appointed. In taking its decisions in relation to the Working Procedures and timetable, the Panel 
endeavoured to balance the efficient conduct of the proceedings with the parties' due process rights 
 
16 Chinese Taipei's  communication (22 October 2020).  
17 India's communication (22 October 2020).  
18 Chinese Taipei's communication (22 October 2020).  
19 India's communication (22 October 2020), p. 1.  
20 India's communication (26 October 2020).  
21 Panel's communicati on to the parties (26 October 2020).  
22 The Panel held separate consecutive 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 sufficient 
time to prepare and present its argumentation.  WT/DS588/R  
 
- 17 - 
 
  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 sequentia l order of the DS numbers of the 
disputes. A joint third -party session would be held in DS582, DS584 and DS588. The Panel added 
that it would advise on the conduct of the second substantive meeting in due course, after consulting 
with the parties. Finally,  the deadlines for submissions were harmonized in the three disputes.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 part icular on international travel, obliged 
the Panel to modify the format of the substantive meetings. This section provides an overview of 
the process leading to the Panel's decision to conduct its first and second substantive meetings in 
virtual and hybrid format, respectively.  
1.3.3.1   Format of the first substantive meeting  
1.24.   The first substantive meeting of the Panel was initially scheduled for 7-8 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 tradit ional 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 par ties' 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 concern ing meetings with 
remote participation  and invited the parties to comment on the proposed arrangements for 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. Chinese Taipei agreed with the Panel's proposed arrangements and observed that, 
while substantive meetings should normally be conducted in person, it was difficult to plan an in -
person meeting  given the circumstances.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] situation in India and hold the first subs tantive 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 arrangements for the first substantive me eting 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 parties' comments  
regarding the Panel's communication of 31 March 2021 .29 
1.27.   Chinese Taipei stated that, i n light of the difficulties presented under the circumstances, a 
virtual hearing was a proper way for the panel process to move forward, particularly  given the need 
for a prompt settlement of the dispute , pursuant to  Article 3.3 of the DSU.  Chinese Taipei  noted that 
"the future development of the COVID -19 pandemic is entirely unforeseeable, and it could very well 
be years until the situation improve s to a point to allow fo r face -to-face substantive meetings. " 
According to Chinese Taipei, "[t] his delay would run fundamentally against the aim of Article 3.3 for 
a prompt settlement of the dispute. "30 
 
24 Panel's communication to the parties (4 December 2020).  
25 Panel's communication to the parties (31 March 2021). A copy of this c ommunication can be found in 
Annex D-1 of the Report.  
26 Chinese Taipei's communication to the Panel (12 April 2021).  
27 India's communication to the Panel (12 April 2021).  
28 Panel's communication to the parties (13 April 2021).  
29 Panel's communication to t he third parties (13 April 2021).  
30 Chinese Taipei's communication (16 April 2021).  WT/DS588/R  
 
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  1.28.   India inform ed the Panel that , since submitting its comments on 12 April 2021, India  had 
"witnessed a surge of 42% in positive [COVID -19] cases in a period of just 5 days ". India reiterated 
that it was "not in a position to participate in full -fledged dispute settlement proceedings … t hrough 
remote participation". India drew attention to several ongoing panel proceedings where the panels 
had decided to postpone the substantive meeting due to the COVID -19 pandemic. India submitted 
that "a virtual meeting format without the consent of all  parties would be inconsistent with Article 
3.1 and 3.2" of the DSU and that "[t]he margin of discretion held by panels under Article 12.1 does 
not extend to modifying 'substantive provisions' of the DSU." For India, "the manner in which 
domestic judicial proceedings are conducted is not germane to the issue before the Panel." India 
reiterated its concerns regarding security and confidentiality of the proceedings, as well as the 
difficulty of extending technical support to members of its delegation who were  working remotely. 
India considered that the Panel could not "amend the working procedures and conduct the first 
substantive meeting in virtual format as it would modify substantive provisions of the DSU and 
impair the respondent's due process rights."31 
1.29.   On 16 April 2021, Canada, China, Japan, Singapore, 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 c ommunication dated 21 April 2021, the Panel noted that the DSU did not prescribe a 
particular format for panel meetings and, therefore, the Panel was not precluded from amending its 
Working Procedures and conducting meetings in the format it deemed appropr iate, after consulting 
the parties to the dispute, as provided for in Article 12.1 of the DSU. However, mindful of the 
alarming rate of growth in COVID -19 cases in India, the Panel deemed it appropriate to postpone 
the first substantive meeting in this dis pute, and in the other two disputes in which the same three 
panelists had been appointed , until the weeks of 4 and 11 October 2021 . The Panel further indicated 
that it would confirm the format of the first substantive meeting by 31 August 2021.32 
1.31.   On 31 Aug ust 2021, the Panel informed the parties and third parties that, in view of the 
epidemiological situation, the first substantive meeting and the third -party session would be 
conducted in virtual format on 11-12 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 participation.  
1.32.   On 20 September 2021, the Panel confirmed its decision of 31 August 2021 to conduct the 
first substantiv e 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 feasibility of 
an in -person meeting in Geneva. The Panel invited the parties to indicate whether, taking into 
consideration remaining restriction s on international travel and their more general policy on official 
travel, the parties would be in a position to attend the second substantive meeting in person at the 
WTO premises on 29-30 March  2022. In  light of the Panel's decision to hold separate mee tings 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 
 
31 India's communication (16 April 2021) (quoting Appellate Body Report, India – Patents (US) , 
para. 92). 
32 Panel's communication to the parties (21 April 2021). A copy of t his 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 be 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 Annex  A-2 of the 
Report.  WT/DS588/R  
 
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  complainants in DS582 and DS584 and asked that the parties do so as well when conveying their 
views.36 
1.34.   Chinese Taipei indicated  that, with the rapidly changing situation concerning the COVID -19 
pandemic, it did not intend to send a delegation to attend the second substantive meeting in person 
at the WTO premises.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 premi ses 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 partici pation for the 
second substantive meeting.41 
1.3.4   Requests for enhanced third -party rights  
1.37.   On 21 and 23 December 2020, the Panel received requests for enhanced third -party rights 
from the European Union and Japan, respectively. T he European Union  and Japan requ ested 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 the Panel with the parties; (iii) to be allowed to make oral statements, to 
orally reply to questions , and to ask questions to the parties or other third parties, as appropria te, 
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 Japan noted that enhanced third -party rights ha d been granted  in 
previous disputes to address "practic al considerations arising from a third party 's involvement as a 
party in a parallel panel proceeding ".43 According to t he European Union  and Japan, their  interest in 
the parallel disputes extend ed beyond the "substantial ' interest " in Article 10.2 of the D SU because 
of the ir involvement as part ies in, respectively,  DS582  and DS584.44 The European Union and Japan 
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 Japan stated that they had "an exceptionally strong interest 
in the Panel's assessment of the matter in the two parallel disputes" and it was "a matte r of due 
process for [them] to have the possibility of hearing and following the discussions in the substantive 
 
36 Panel's commu nication to the parties (22 February 2022).  
37 Chinese Taipei'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)). Noting the rapidly changing situation concerning the COVID -19 pandemic and the 
resulting possibility that not all members of Japan's delegation mi ght be able to travel to Geneva, Japan  
suggested that the second substantive meeting be held in a hybrid format. (Japan's communication in DS584 
(25 February 2022)).  
40 Panel's communication to the parties (2 March 2022).  
41 The Panel's Additional Procedur es 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; Japan's communication (23  December 
2020), p. 1.  
43 European Union's communication  (21 December 2020), p. 2; Japan's com munication (23  December 
2020), pp. 1 -2. Both communications refer to Panel Report s, EC – Hormones (Canada) , para. 8.17; US – 
COOL , para. 2.7; US – COOL (Article 21.5 – Canada and Mexico) , paras. 1.15-1.16; and Decisions of the 
Arbitrators, EC – Hormones (Canada) (Article 22.6 – EC) / EC – Hormones (US) (Article 22.6 – EC), para. 7.  
44 European Union's communication (21 December 2020), p. 2; Japan's communication (23  December 
2020), p. 2.  
45 European Union's commun ication (21 December 2020), p. 2; Japan's communication (23  December 
2020), p. 2.  WT/DS588/R  
 
- 20 - 
 
  meetings in the parallel proceedings in order to be in a position to properly defend [their] interests 
during the substantive meeting[s] in [the ir] own case[s]".46 
1.39.   The Panel invited the parties and the other third parties to comment on the requests. While 
Chinese Taipei agreed with the requests by the European Union and Japan47, 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 Japan  would require the parties ' agreement , so as not to affect the balance guaranteed by the 
DSU (such as the right to confidentiality) and in order to avoid  due process concerns . India submitted 
that the only reason cited  in the requests  (i.e. the ir status as a complainant in a parallel proceeding ), 
"cannot be the only factor on the basis of which such extraordinary rights may be granted " over the 
objection of a party .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 
complainant in a parallel dispute did not "automatically result[] in an interest over and above those 
held by other third parties in this dispute" and the requesting third parties had not established 
compelling circumstances for seeking such additional rights.52 India submitted that, without 
prejudice to the applicabilit y of Article  9 of the DSU to this dispute and the other two disputes where 
the same panelists were appointed, this provision "has been found to not address the question of 
rights of third parties" in parallel disputes.53 For India, "any due process conside ration 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 Japan affected  India's 
"right to confidentiality of its s ubmissions 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 Russian Fed eration, Türkiye, and the United States, as third parties, provided 
comments on the requests submitted by the European Union and Japan .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 Japan ." The enhanced rights granted by  the Panel comprised 
"access to (i) the parties' second written submissions, (ii) the final written versions of the parties' 
oral statements made during the first and second substantive meetings, (iii) each party's responses 
to questions from the Panel and  to any questions posed by the other party following the first and 
second substantive meetings, and (iv) each party's comments on the other party's responses to 
 
46 European Union's communication (21 December 2020), p. 2; Japan's communication (23  December 
2020), p. 2.  
47 Chinese Taipei's communications (11 January 2021).  
48 India's comm unications (11 January 2021).  
49 India's communications (11 January 2021), para. 3.  
50 India's communications (11 January 2021), para. 5 (referring to Appellate Body Report s, India – 
Patents (US) , para. 92 ; and US – FSC (Article 21.5 – EC), para. 241 ). 
51 India's communications (11 January 2021), para. 5 (referring to Appellate Body Report, Thailand – 
Cigarettes (Philippines) , para. 147 ). 
52 India's communications (11 January 2021), para. 6.  
53 India's communications (11 January 2021), para. 7.  
54 India's communications (11 January 2021), para. 9 (referring to Panel Report, US – Washing 
Machines , para. 1.12).  
55 India's communications (11 January 2021), para. 11 (referring to Panel Report, India – Quantitative 
Restrictions , para. 5.95).  
56 India's co mmunications (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/DS588/R  
 
- 21 - 
 
  those questions following the second substantive meetin g." The Panel rejected the 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 ne w 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 firms, to provide legal servic es to a WTO Member in 
the field of international law, trade negotiations and dispute settlement, on request by the 
Government of that Member. The panelist further indicated that this information was publicly 
available and that, as of the date of the commun ication, 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.   Chinese Taipei reserve d the right to address any conflict -of-interest issues which m ight arise 
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 pan elist concerned to provide an 
undertaking that the panelist's employer would avoid incurring any obligation or accepting any 
benefit from the Member in question that could result in a direct or indirect conflict or give rise to 
justifiable doubts as to the  proper performance of the panelist's dispute settlement duties, in 
particular  with respect to  instructions which directly or indirectly relate d to the subject matter of, 
and measures  at issue in , this dispute .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 concerned did not give rise to any direct or indirect 
conflict of interest in respect of the subject matter of the proceedings, or to justifiable doubts 
regarding that panelist's independence or impartiality. The Panel noted that, consistent with the 
requirements in Section III of the Rules of Conduct for the DSU, the panelist concerned had 
reiterated the undertaking t o 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 made a preliminary objection and requested a preliminary ruling , both 
incorporated in its  first written submission.  In its preliminary objection, India claimed that the Panel's 
composition had bee n determined in violation of Articles 8.6 and 8.7 of the DSU and requested that 
the Panel decline to exercise jurisdiction in this dispute.63 In its preliminary ruling request, India 
claimed that Chinese Taipei's panel request did not satisfy the condition s laid down in Article 6.2 of 
the DSU.64 
1.49.   On 14 April 2021, the Panel invited Chinese Taipei to comment on India's preliminary objection 
and preliminary ruling request . Third parties that wished to comment on these matters were also 
invited to do so.  
1.50.   On 23  June 2021, the Panel informed the parties that it intended to issue a communication 
regarding India's preliminary objection and preliminary ruling request on 28  June 2021. On 
 
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 
reserve s the right to request the Panel to revisit this decision  as these proceedings progress ." (India's 
communication (24 February 2021 )). The Panel acknowledged receipt of India's communication and to ok note 
of India's views. (Panel's communication to the parties and third parties (25 February 2021)).  
59 The revision concerned paragraphs 21bis and 30(d) of the Working Procedures.  
60 Panel's communication to the parties (4 February 2021).  
61 Chinese Taipei 's communication (9 February 2021).  
62 India's communication (9 February 2021).  
63 India's first written submission, paras. 18 and 228.  
64 India's first written submission, para. 37.  WT/DS588/R  
 
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  28 June 2021, India requested the Panel to defer the issuance of its communicati on so as to ensure 
that these issues "are properly discussed and considered at the first substantive meeting."65 On the 
same day, the Panel informed the parties that, in light of India's communication, it would suspend 
the issuance of the Panel's communication  and invited Chinese Taipei to comment on India's 
request.66 
1.51.   Chinese Taipei considered that the parties had sufficient opportunity to present their 
arguments on India's request and requested the Panel to issue its communication as soon as 
possible.67 
1.52.    On 7 July 2021, the Panel issued a communication to the parties and third parties regarding 
India's preliminary objection and preliminary ruling request.68  
1.3.7   Evidentiary objection  
1.53.   On 4 April 2022, at the second substantive meeting with the parties, Chinese Taipei submitted 
three new exhibits ( Exhibits TPKM -59, TPKM -60, and  TPKM -61) in support of assertions made in its 
opening statement .69 India objected to Chinese Taipei's submission of these three exhibits , arguing 
that their filing  was inconsistent with the Panel's Working Procedures. The Panel requested India to 
submit its objection in writing by 11 April 2022 and invited Chinese Taipei to respond to India's 
objection, also in writing, by 14 April 2022.  
1.54.   On 11 April 2022 , India subm itted its objection and requested the Panel to either reject the 
three exhibits, or alternatively, to afford India an opportunity to comment on the same.70 Chinese 
Taipei responded to India's objection on 14 April 2022 and requested the Panel to dismiss In dia's 
objection to the submission of the three exhibits.71  
1.55.   The Panel issued its decision to the parties on 16  May 2022.72 As explained in that decision, 
the Panel rejected India's objection to Chinese Taipei's submission of Exhibits TPKM -59, TPKM -60 
and T PKM-61, and invited India to provide comments on those exhibits by 21 June 2022.  
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  Chinese Taipei challenges the duties applied by India to imports of certain  information 
communication technology  (ICT) products , on the g round that such duties are  in excess of the 
relevant tariff bindings set forth in India's WTO  Schedule.73 According to Chinese Taipei, t he ICT 
products concerned fall within the scope of the following tariff items74 in India's WTO Schedule:  
8517.12 ; 8517.6 1; 8517.62 ; 8517.70  ex01, ex02, and ex 03; and 8518.30  ex01.75 Chinese Taipei  
 
65 India's communication (28 June 2021).  
66 Panel's communication to the parties (28 June 2021).  
67 Chinese Taipei's communication (1 July 2021).  
68 The Panel's decision can be found in Annex E-2 of the Report.  
69 Chinese Taipei's opening statement at the second meeting of the Panel, paras. 37 -39 (referring to 
HS1996 Explanatory Notes to Heading 8525 , (Exhibit TPKM -59); WCO, HS Committee document 41.337 E , 
(Exhibit TPKM -60); and WCO, HS Committee document 42.034 E , (Exhibit TPKM -61)). 
70 India's objection to the submission of Exhibits TPKM -59 to 61 by Chinese Taipei.  
71 Chinese Taipei's response to India's objection to the submission of Exhibits TPKM -59 to 61 by Chinese 
Taipei  (14 April 2022).  
72 The decision of the Pa nel can be found in Annex E-3 of the Report.  
73 Request for the establishment of a panel by Chinese Taipei (Chinese Taipei's panel request),  
WT/DS588/7.  
74 We understand that under the Harmonized System (HS) nomenclature, entries at the four -digit level 
are referred to as "headings", entries at the six -digit level are referred to as "subheadings", and entries at the 
eight, or more, digit level are referred to as "tariff lines". We also note that the parties do not adhere 
consistently to this nomenclature. ( See e.g. Chinese Taipei's first written submission, para. 1.2 and fn 163 
thereto; India's first written submission, para. 39). 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.  
75 Chinese Taipei's panel request, p. 1.  WT/DS588/R  
 
- 23 - 
 
  identifie s various legal instruments through which India applies  the alleged  tariff treatment to 
products falling under these tariff items .76 
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. 52  of 13 December 1962  (Customs Act 1962)77 
and the Customs Tariff Act, 1975, Act No. 51 of 18 August 1975  (Customs Tariff Act 1975).78  
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 … [Cust oms 
Tariff Act], or any other law for the time being in force, on goods imported into, or 
exported from, India.79 
2.4.  Section 2 of the Customs Tariff Act 1975, in turn, is titled "Duties specified in the Schedules to 
be levied" and provides as follows:  
The ra tes at which duties of customs shall be levied under the Customs Act, 1962 (52 
of 1962), are specified in the First and Second Schedules.80 
2.5.  The First Schedule of the Customs Tariff Act 1975 sets out maximum  duty rates leviable on 
imports of goods into Indi a.81 The First Schedule is based on the World Customs Organization's 
(WCO's) Harmonized System (HS) Nomenclature.82 At the time of the Panel's establishment, India's 
First Schedule was based on the HS Nomenclature 2017 Edition (HS2017).83 Subsequently, dur ing 
the Panel proceedings, India amended its First Schedule to align it with the HS Nomenclature 2022 
Edition (HS2022).84 
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 Gover nment), as illustrated below.  
 
76 Chinese Taipei's panel request, pp. 1 -3. We address the parties' assertions regarding these legal 
instruments in the context of assessing the merits of Chinese Taipei's  claims in section 7 below.  
77 Customs Act 1962, (Exhibit TPKM -4). 
78 Customs Tariff Act 1975, (Exhibit TPKM -5).  
79 Customs Act 1962, (Exhibit TPKM -4), section 12.  
80 Customs T ariff Act 1975, (Exhibit TPKM -5), section 2.  
81 According to Chinese Taipei, the First Schedule is updated at least annually and made available on the 
official website of the Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of 
Finance, Government of India. ( Chinese Taipei's first written  submission, para. 3.26 ). Moreover, in its 
third-party submission, Japan notes that India has not officially published the First Schedule in a single 
document. However, according to Japan, the latest First Schedule can be found in 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 third -party submi ssion, para. 25 ). India 
does not contest these assertions.  
82 Chinese Taipei's first written submission, para. 3.24; India's response to Panel question No. 71, 
para. 33. 
83 Chinese Taipei's first written submission, para. 3.24. India does not contest this as sertion.  
84 India's second written submission, para. 102 (referring to the Finance Act 2021, (Exhibit IND -74)). 
Chinese Taipei does not contest this assertion.  WT/DS588/R  
 
- 24 - 
 
  2.2.2   Parliament's power to amend the First Schedule  
2.7.  The Indian Parliament may amend the First Schedule through a Finance Bill or Finance Act.85 
A Finance Bill becomes a Finance Act once passed by both Houses of Parliament and assen ted to by 
the President.86 
2.2.3   The Government's power to modify the applied duty rates  
2.8.  The Government has the power to (i) increase tariff rates in the First Schedule through customs 
notifications or amendments, and (ii) provide exemptions from duties leviabl e, through customs 
notifications.  
2.2.3.1   Power to increase tariff rates  
2.9.  Section 8A(1) of the Customs Tariff Act 1975 authorizes the Government to increase the duty 
rates set out in the First Schedule through customs notifications. Section 8A(1), titled "Emergenc y 
power of Central Government to increase import duties" provides as follows:  
Where in respect of any article included in the First Schedule, the Central Government 
is satisfied that the import duty leviable thereon under section 12 of the Customs Act, 
1962 (52 of 1962) should be increased and that circumstances exist which render it 
necessary to take immediate action, it may, by notification in the Official Gazette, 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 earl ier notification issued under this sub -section by that Government before such 
earlier notification has been approved with or without modifications under sub -section 
(2).87 
2.10.   Notifications issued by the Government pursuant to section 8A(1) of the Customs Tari ff Act 
1975 are approved by each House of Parliament by way of resolution.88 Such notifications may also 
be rescinded by the Government at any time by subsequent notification.89 
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:  
 
85 Chinese Taipei's first written submission, para. 3.27. India does not contest this assertion. M oreover, 
pursuant to Section 3 of the Provisional Collection of Taxes Act , a Bill that provides for the imposition or 
increase of a customs duty may enter into force the day after it is introduced to Parliament. Such Bill ceases to 
have force of law when i t comes into operation as an enactment. ( Provisional Collection of Taxes Act  1931, 
(Exhibit TPKM -6), sections 3, 4(1), and 4(2)(a)).  
86 European Union's third -party submission, para. 40. The parties do not contest this assertion.  
87 Customs Tariff Act 1975, (Exhibit TPKM -5), section 8.  
88 Customs Tariff Act 1975, (Exhibit TPKM -5), 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 perio d of fifteen days beginning with the day on which the 
notification is so laid before the House of the People and if Parliament makes any modification in the 
notification or directs that the notification should cease to have effect, the notification shall t hereafter have 
effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of 
anything previously done thereunder."  
89 Customs Tariff Act 1975, (Exhibit TPKM -5), section 7(4). Further, section 11A(1)  of the Customs Tariff 
Act 1975 empowers the Government to amend the First Schedule where it is satisfied that it is necessary to do 
so in the public interest,  by notification in the Official Gazette. (Ibid.  section 11A (1)). Notifications issued under 
section 11 A(1) must also be approved by both Houses of Parliament. (Ibid. section 11A(2)). Chinese Taipei 
notes that no notification issued under Section 11A(1) of the Customs Tariff Act  is relevant in this dispute. 
(Chinese Taipei's first written submission, fn 42 to para.  3.27).  WT/DS588/R  
 
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  If the C entral Government is satisfied that it is necessary in the public interest so to do, 
it may, by notification in the Official Gazette, exempt generally either absolutely or 
subject to such conditions (to be fulfilled before or after clearance) as may be spe cified 
in the notification goods of any specified description from the whole or any part of duty 
of customs leviable thereon.90 
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 exerci se 
of its powers under Section 25(1) of the Customs Act  1962.91 The Government can also withdraw  
exemptions  issued under Section 25  at any time i f the "'public interest ' so demand[s]" and the 
Government determines that the exemption does not require to be extended any further .92 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.93 
2.2.4   Conclusion  
2.14.   From the foregoing, and in light of the clarifications of the parties, we understand that, under 
India's customs regime , the duty rates set out in the First Schedule are not necessarily the duty 
rates applied to imported products. Rather, t he applied duty rate is based not only on the First 
Schedule, but also on any relevant customs notifications which  relate to the tariff ite m at issue .94 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 conc essions and commitments 
undertaken by India in relation to trade in goods. While the parties contest a number of  issues 
related to India's WTO Schedule, we nevertheless consider it useful to describe at the outset certain 
uncontested background facts regar ding 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.95 The HS nomenclature , which is established 
under the HS Convention,  is administered by the WCO.96 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 
 
90 Customs Act 1962, (Exhibit TPKM -4), section 25(1).  
91 European Union's third -party submission, para. 55. The parties do not contest this assertion.  
92 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.  
93 Hon'ble Supreme Court in the case of Share Medical Care v. Union of India and ORS , 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); and 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).  
94 India's response to Panel question No. 57, paras. 57 -58. In its first written submission, India uses the 
term "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. 150, 166, and 179). 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. 57, para. 58). 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 rate applied to imports, taking into account all 
releva nt legal instruments (including relevant customs notifications) . 
95 India's response to Panel question No. 1, para s. 10-11.  
96 India is a contracting party to the HS Convention . (Japan's third -party submission, para. 17). This 
assertion is uncontested by th e parties.  (See also C hinese Taipei's first written submission, para.  3.24). WT/DS588/R  
 
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  the product scope of HS headings a nd subheadings in the previous version of the nomenclature as 
compared to the new version.97  
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.98 
2.18.   On 13 December 1996, a number of WTO Members concluded the Ministerial Declaration on 
Trade in Information Technology Products (ITA).  India joined the ITA on 26 March 1997.  The ITA 
participants agreed among themselves to bind and eliminate customs duties and other duties and 
charges of any kind, within the meaning of Article II:1(b) of the GATT 1994, with respe ct to certain 
products.99 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 GATT Decision of 26 Marc h 1980 on Procedures for Modification and 
Rectification of Schedules of Tariff Concessions (1980 Decision).100 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 Member s, 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  1997.101  
2.19.   Subsequently, WTO Members agreed to update their WTO Schedules to align them with the 
HS Nomenclature 2002 Edition ( HS2002 ). For the transposition to HS2002, additional procedures 
regarding the transposition process were adopted by the General Council, but  the obligation 
remained on Members to perform the transposition process.102  
2.20.   In 2006, in preparation for the transposition of Members' Schedules from the HS2002 to the 
HS Nomenclature 2007 Edition (HS 2007), 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).103 Pursuant to that Decision, developed country Members w ere 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 notificat ion to this effect".104  
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. 
 
97 See e.g. 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 ( General Council Decision on HS2002 Transposition Procedures), WT/L/407 , 
Attachment A, p. 2 ; General Council Decision of 15 December 2006 on A Procedure for the Introduction of 
Harmonized System 2007 Changes to Sch edules of Concessions Using the Consolidated Tariff Schedules (CTS) 
Database ( General Council  Decision on HS2007 Transposition Procedures), WT/L/673, Annex 2, para. 7.  
98 GATT, Procedures to Implement Changes in the HS, L/6905, Annex, paras. 2 -4.. Under these 
procedures, transpositions "shall not involve any alteration in the scope of concessions nor any increase in 
bound rates of duty unless their maintenance results in undue complexity in the national tariffs". (Ibid. para. 1 . 
See also WTO, Decisi on on Establishment of Consolidated Loose -Leaf Schedules on Goods, G/L/138 ). 
99 The relevant products are identified in the ITA as "(a) all products classified (or classifiable) with 
[HS1996] headings listed in Attachment A to the Annex [to the ITA]; and (b ) all products specified in 
Attachment B to the Annex [to the ITA], whe ther or not they are included in Attachment A". (Ministerial 
Declaration on Trade in Information Technology Products (ITA), WT/MIN(96)/16 , para. 2) . 
100 Paragraphs 1 and 2 of the Annex to  the ITA. See also GATT, Decision of 26 March 1980 on 
Procedures for Modification and Rectification of Schedules of Tariff Concessions (1980 Decision), L/4962.  
Pursuant to paragraph 2 of the Annex to the ITA, each ITA participant's proposed modification of  their WTO 
Schedules is subject to review, and approval on a consensus basis, by all ITA participants.  
101 WT/Let/181.  
102 General Council Decision on HS2002 Transposition Procedures , WT/L/407.  
103 General Council Decision on HS2007 Transposition Procedures , WT/L/673.  
104 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.  WT/DS588/R  
 
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  On 8 November 2013, the Secretariat communic ated to India via email the draft files for the HS2007 
transposition of India's Schedule.105  
2.22.   Following receipt of the draft transposition files prepared by the WTO Secretariat, India 
provided comments on the draft files .106 The Secretariat then communicated  a revised file to India 
for approval.107 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 .108 The draft modifications to the Sc hedule were circulated on 12 May 2015 and, since no 
objections were received within three months of circulation, on 12 August 2015 the changes to the 
Schedule w ere certified.109  
2.23.   On 25 September 2018, India requested that its Schedule be rectified, in accor dance with the 
1980 Decision , in order to correct "certain errors contained in its HS2007 Schedule".110 Specifically, 
India requested that its commitments with respect to 15 tariff items  be rectified to "Unbound", 
including certain of the tariff items  at issue in this dispute.111 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 lines which were inadvertently included in 
the Schedule."112 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 part of the schedule on account of the WCO transposition from HS2002 to 
HS2007".113 India considered that the rectification did not alter its commitments "either under GATT 
1994 or the ITA []"114, and that "[t]he errors in the H S2007 scheduling should be interpreted as an 
inadvertent oversight by India on binding of products not covered by the ITA [] at 0%".115  
 
105 Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50).   
106 India did not provide comments or seek clarifications regarding the transposition of the tar iff items  at 
issue in this dispute . (Email from Market Access Intelligence Section , WTO, to India (12 February 2014) , 
(Exhibit IND -51)).   
107 India's response to Panel question No. 19, paras. 60 -61. 
108 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India, 
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.  
109 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India, 
Communicati on from the Secretariat, G/MA/TAR/RS/409, 12 May 2015 , as certified in WT/Let/1072, effective 
12 August 2015 ; India's response to Panel question No. 19, para. 61.  
110 India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND -77), p. 1.  
111 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 transmiss ion or regeneration of voice, images or other data 
including switching and routing apparatus ); ex 8517 .70 (parts of 8517 .12, 8517 .61, ex 8517 .62 and 
ex 8517.69); and ex 8517.70 (o ther parts ). (India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND -77), 
Appendix 2, p. 3). 
112 India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND -77), p. 1. 
113 India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND -77), Appendix 1, p. 2 . 
114 India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND-77), p. 1. 
115 India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND -77), Appendix 1, p. 2 .  WT/DS588/R  
 
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  2.24.   Several Members, including Canada116, China117, the European Union118, Japan119, Chinese 
Taipei120, Switzerland121, and the Uni ted States122 objected to India's proposed rectification  under 
the 1980 Decision . In light of these objections, and in accordance with the 1980 Decision123, India's 
rectification request has not, to date , been  certified.   
2.25.   In light of the foregoing, India's WTO Schedule presently indicates, inter alia , the following 
tariff commitments 124: 
 
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% 
8518  Microphones and stands therefor; loudspeakers, whether or not mounted in 
their enclosures; headphones and earphones, whether or not combined with a 
microphone, and sets consisting of a microphone and one or more 
loudspeakers; audio -frequency electric amplifiers; electric sound amplifier 
sets.  
8518.30   -Headphones, earphones and combined microphone/speaker sets   
8518.30  01 --Line telephone handsets  0% 
 
 
116 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134, p. 40; 
Committee on Market Access, Minutes of the meeting held on 11 November 2019, G/MA/M/71, para. 15.4.  
117 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134, 
para. 12.5; Committee of Participants on the Expansion of Trade in Information Technology Products, Minut es 
of the meeting held on 14 May 2019, G/IT/M/70, para. 1.14.  
118 Council for Trade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, 
para. 18.4; Committee of Participants on the Expansion of Trade in Information Technology Product s, Minutes 
of the meeting held on 30 October 2018, G/IT/M/69, paras. 1.19 -1.21; and Committee on Market Access, 
Minutes of the meeting held on 9 October 2018, G/MA/M/68, para. 134.  
119 Letter from Japan to India (9 November 2018) , (Japan's third -party Exhibit JPN -4); Council for Trade 
in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, para. 18.13.  
120 Letter from Chinese Taipei to India (19 October 2018) , (Exhibit TPKM -3); Committee of Participants 
on the Expa nsion of Trade in Information Technology Products, Minutes of the meeting held on 30 October 
2018, G/IT/M/69, para. 1.36.  
121 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134, 
para. 12.12.  
122 Council for Trade in Good s, 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.  
123 The 1980 Decision indicates that proposed changes shall become a cert ification 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) . 
124 WT/Let/181 and WT/Let/1072.   WT/DS588/R  
 
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  3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.   Chinese Taipei requests the Panel to find that India's imposition of customs duties on products 
falling under the tariff items identified by Chinese Taipei is inconsistent with India's obligations under 
Articles II:1(a) and II:1(b) of the GATT 1994.125  
3.2.  India requests the Panel to find that:  
a. The products at issue are not covered under the ITA, and the 2007 Schedule, which was 
certified in error, included products not originally covered by the ITA126; 
b. 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 Chinese 
Taipei 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; 
c. The commitments under the contested subheadings of India's WTO Schedule are invalid 
due to "error" within the meaning of Article 48 of the Vienna Convention on the Law of 
Treati es (Vienna Convention)129; and  
d. India is not imposing duties on imports of "Line Telephone Handsets" and is therefore 
acting in line with its commitments under the ITA.130 
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 23 of the Working Procedures adopted by the Panel (see Annexes B -1, 
B-2, B-3, and B -4). 
5  ARGUMENTS OF THE THIRD PARTIES  
5.1.  The arguments of Brazil, Canada, the European Union, Japan, the Republic of  Korea, Norway, 
Singapore, 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 Nove mber 2022, 
Chinese Taipei and India each submitted written requests for the Panel to review aspects of the 
Interim Report. Neither party submitted any comments on the other's party's requests for review. 
Moreover, neither party requested an interim review meeting.  
6.2.  In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's 
response to the parties' requests made at the interim review stage, including certain requests 
discussed in greater detail below . The numbering of some of the paragraphs and footnotes in the 
Final Report has changed from the numbering in the Interim Report.  
6.3.  Certain of the parties' requests for review of the Interim Report include requests to provide 
more detailed summaries of the parties' arguments. In certain instances, we considered it useful 
and appropriate to  modif y the summaries 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 relevant 
 
125 Chinese Taipei's first written submission, para. 6.1; second  written submission, para. 4.1.  
126 India's first written submission, para. 229(b);  second written submission, para. 121(b).  
127 India's first written submission, para. 229(c);  second written submission, para. 121(c).  
128 India's response to Panel question No. 5 3, para. 47; second written submission, para. 119.  
129 India's first written submission, para. 229(d); second written submission, para. 121(a).  
130 India's first written submission, para. 229(e).  WT/DS588/R  
 
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  arguments in the contex t of 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 repro duce 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 substantive reasoning. In certain instances, we have sought to clarify 
or simplify our reasoning. In other instances, however, we consider that the Interim Report was 
sufficiently clear on its face, and no modifications were required. In several instanc es (both with 
respect to the summaries of the parties' arguments and our own reasoning) we have modified the 
Report in response to a party's request, but without necessarily using the precise drafting requested 
by the parties, or by adjusting paragraphs/fo otnotes 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 requests for review.  
6.6.  We address below certain specific issues raised by the parties' requests for review.  
6.1  General issues concerning India's WTO tariff commitments  
6.1.1   Whether India's assumption that the transposition of its WTO Schedule to the 
HS2007 would not expand the scope of its WTO tariff commitments from its ITA 
undertakings fo rmed an essential basis of India's consent to be bound by its WTO 
Schedule  
6.7.  Section 7.3.3.2.3.4 of the Report addresses whether India's assumption that the transposition 
of its WTO Schedule to the HS2007 would not expand the scope of its WTO tariff commitme nts from 
its ITA undertakings formed an essential basis of its consent to be bound by its WTO Schedule.  
6.8.  In its request for interim review, India asserts that the Panel's reasoning in paragraphs  7.136 
to 7.138 of the Interim Report  "inverts rather than add resses India's arguments".131 India considers 
that "it is irrelevant what India's conduct signalled to the WTO members (if anything at all)" and 
"[w]hat is relevant is whether India was provided with the required flagging of the relevant tariff 
lines – the absence of which led to India's flawed assumption".132 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 existe nce of an assumption".133  
6.9.  Chinese Taipei considers that India "is using its request for interim review of precise aspects 
of the Interim Report as an opportunity to reargue the case".134 Chinese Taipei observes that the 
Panel addressed the issue of flagging .135 Chinese Taipei also submits that the Panel did not ask India 
for additional evidence to confirm the existence of an assumption, but rather, in this step of the 
analysis, assessed "whether, as a matter of fact, India was subjecting its consent to be bou nd by 
the transposed Schedule to the condition that the transposition would not expand the scope of India's 
WTO tariff concessions from its ITA commitments".136 Chinese Taipei notes that the Panel found no 
evidence in support of India's claim. Chinese Taipe i says that India's request should be rejected.  
6.10.   At the outset, we recall that it is uncontested that the burden of proof under Article 48(1) of 
the Vienna Convention falls on the party invoking Article 48. With that in mind, we note that 
throughout the cou rse 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.137 On this basis, 
 
131 India's request for interim review, para. 15.  
132 India's request for interim review, para. 15.  
133 India's request for interim review, para. 1 6.  
134 Chinese Taipei's comments on India's request for interim review, para. 2.10.  
135 Chinese Taipei's comments on India's request for interim review, para. 2.10.  
136 Chinese Taipei's comments on India's request for interim review, para. 2.1 1. 
137 See e.g. India's first written submission, para. 58; second written submission, para. 19.  WT/DS588/R  
 
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  India has argued that the "assumption" which allegedly constituted an "essential basis" of India's 
consent to be bound by its Schedule was that its WTO tariff commitments would not be expanded 
beyond the ITA .138  
6.11.   Thus, in applying the distinct elements of Article 48(1), we have assessed, inter alia , whether 
India has demonstrated that its  assumption (i.e. that the transposition of its WTO Schedule to the 
HS2007 would not expand the scope of its WTO tariff commitments beyond  its ITA unde rtakings ) 
formed an essential basis of its consent to be bound by its WTO Schedule .139 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 Indi a 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 b ound 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 7.138 of the Interim Report  to clarify  this.  
6.12.   Regarding other aspects of India's request, we first note India's assertion that we required 
"additional evidence" from India "to confirm the existence of an assumption". That is incorrect. In 
the first step of our analysis under Article 48(1) (in section 7.3.3.2.3.2), we address the "existence" 
of India's assumption and, on balance, accept in good faith India's assertion that it held that 
assumption at the time of the transposition exercise. As a distinct step, in assessing the third element 
of the  test under Article 48(1) (in section 7.3.3.2.3.4), we address whether India has demonstrated 
that its assumption constituted an "essential basis of its consent to be bound". It is in that specific 
respect that we consider that India has failed to substant iate its burden of proof.  
6.13.   Regarding India's observation that its conduct during the transposition process is irrelevant 
to the question of whether India's stated assumption constituted an essential basis for its consent 
to be bound, we disagree. To the co ntrary, India's actions during the transposition process provide 
some indication of what constituted India's essential bases for its consent to be bound by its 
transposed Schedule.  
6.14.   We further note that India also argues that what matters in this context i s whether India "was 
provided with the required flagging of the relevant tariff lines".140 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 whether the relevant tariff items were adequately flagged  by the WTO Secretariat, 
there is no indication before us that India's consent to be bound by its WTO Schedule was conditional 
upon the product scope of its WTO tariff commitments not exceeding the product scope of the ITA. 
In other words, even if the WTO S ecretariat 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.141 Thus, India's argument regarding the al leged failure 
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).  
 
138 India states that it "assumed at the time of the certification of [India's] 2007 Sch edule that the 
HS2007 transposition did not expand India' s tariff commitments beyond India' s obligations under the ITA []". 
(India's first written submission, para. 60). Similarly, India states that " its mistaken assumption was that the 
HS2007 did not expan d India' s tariff commitments beyond India' s obligations under the ITA []. That remains 
India' s clearly articulated position. " (India's opening statement at the second meeting of the Panel, para. 23).  
139 See section 7.3.3.2.3.4  below.  
140 India's request for interim review, para. 15.  
141 India's arguments during interim review might be interpreted as suggesting that its "assumption" for 
purposes of Article 48 was that the W TO Secretariat would flag the relevant tariff items. Notwithstanding that 
India has not framed its alleged error under Article  48 in this manner, we recall  that in the context of applying 
Article 48(2), we have indeed assessed India's arguments regarding t he WTO Secretariat's alleged failure to 
flag the relevant tariff items , and concluded that the WTO Secretariat correctly and appropriately flagged all 
relevant tariff items . (See paras. 7.178 -7.196  below ). Thus, if India had alleged that the "error" under Article 
48(1) was that the WTO Secr etariat had failed to flag the relevant tariff items ( quod non ), our findings indicate 
that no such error occurred.   WT/DS588/R  
 
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  6.1.2   Whether the circumstances were such as to put India on notice of a possible 
expansion o f its WTO tariff commitments from its ITA undertakings  
6.15.   Section 7.3.3.3.3.2 of the Report addresses whether the circumstances of the transposition 
of India's Schedule were such as to put India on notice of a possible expansion of its WTO tariff 
commitments  from its ITA undertakings (one of two elements arising under Article 48(2) of the 
Vienna Convention).   
6.16.   India notes the Panel's conclusion that the WTO Secretariat "fulfilled its obligation to flag the 
complex technical transpositions … thereby put[ting] India on notice of the error", notwithstanding 
the Panel's observation in paragraph 7.194 of the Interim Report  that "both parties … may read 
document G/MA/283 differently".142 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".143 India requests the Panel to "address the contradictions arising out of its legal 
reasoning and make suitable modifications".144  
6.17.   Chinese Taipei does not comment on India's request.  
6.18.   While we consider that the Interim Report sufficiently conveyed the Panel's rea soning on this 
issue, we have in any event modified paragraphs 7.193  to 7.194  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 agr ee 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. 
Chinese Taipei argues that paragraph 4 of the General Council Decision on HS2007 Transposition 
Procedu res "clarifies that some , but not all , complex changes can result in changes in the scope of 
a concession " and  "[t]he WTO Secretariat assisting developing countries, such as India, in the 
transposition process is only required to flag the tariff lines for which there is a change that modifies 
the scope of a concession. "145 Chinese Taipei elaborates that " the Secretariat did not flag the 
contested tariff lines because their transposition did not change the scope of the concessions ."146 
Thus, Chinese Taipei  asserts that the WTO Secretariat was only required to (and therefore 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 la nguage of the flagging 
obligation imposed on the WTO Secretariat – "[a]ny tariff line for which a change in the scope of a 
concession may have occurred  due to the complex technical nature of the transposition shall be 
clearly flagged."147 In our view, Chine se Taipei's interpretation of the flagging obligation does not 
appear to correspond to the plain meaning of that obligation.  In any event, for our purposes, we 
understand that when Chinese Taipei says that the WTO Secretariat did not flag any tariff items,  
Chinese Taipei means that the WTO Secretariat did not flag any tariff items whose product scope 
had, in fact, changed.  
6.19.   That assertion by Chinese Taipei  that the WTO Secretariat did not flag any tariff items because 
their product scope ha d not actually  changed is not the same as India's assertions that the WTO 
Secretariat failed to flag any tariff items for which the product scope of the concession may have 
changed.  In contrast to Chinese Taipei, 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 Seretariat did not flag any relevant tariff items. Thus, when India says that 
document G/MA/283 does not flag any tariff items, India means that  document G/MA/283 does not 
flag any tariff items for which the products scope of the concession may have changed.  
6.20.   In short, while the parties appear to agree that the WTO Secretariat did not flag any relevant 
tariff items, they are in fact making differe nt 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 changed148; 
 
142 India's request for interim review, para. 17.  
143 India's request for interim review, para. 1 8. 
144 India's request for interim review, para. 1 8. 
145 Chinese Taipei's comments on India's response to Panel question No. 65(a)(i) -(ii), para. 10. 
(emphasis original)  
146 Chinese Taipei's comments on India's response to Panel question No. 65(a)(i) -(ii), para. 1 2. 
147 General Council Decision o n HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  
148 See paras. 7.178 -7.194  below.  WT/DS588/R  
 
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  and ( ii) Chinese Taipei's argument that the Secretariat did not flag any tariff items for which the 
product scope  of the concession actually  changed.149 
6.21.   India also notes that in paragraph  7.198 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 '".150 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 '."151 India states 
that the " thrust of that international legal standard is in relation to how evident an error (or a possible 
error) must be for a State to be put on notice under Article 48(2) ".152  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 ".153 India requests the Panel to provide 
"further clarity" on the conclusions reached by the Panel on this issue.154  
6.22.   Chinese Taipei submits that, through the course of the proceedings " India never made a 
distinction between the 'prominence of an error' and the  'range of errors'".155 Chinese Taipei 
considers that the interim review is an inappropriate time to submit new arguments and 
consequently India's argument should be rejected.  Chinese Taipei elaborates that it is also " unclear 
what India means by 'prominence of an error '".156 Chinese Taipei considers that India appears to be 
"arguing that Article 48(2) does not address the nature of the error … but whether it was evident for 
the State concerned that there was an error or a possible error ", in which r espect " it appears that 
the Panel already agreed with India" when it " clarified in paragraph 7.199 that 'Article 48(2) merely 
requires that the State was on notice of the possibility that such an error could occur '".157 
Chinese  Taipei submits that there is therefore no issue for the Panel to clarify in this paragraph .  
6.23.   We note that t he issue being addressed in the relevant paragraph s is India's argument that 
"for a state to be put on notice of a possible error, the circumstances should be such that no 
intere sted party should fail to notice the error or be under a misapprehension about it."158 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 possibl e error, not an actual error. Those are 
plainly different things. We see no need to modify or further  clarify our  reasoning  on this issue.  
6.2  Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the 
GATT 1994  
6.2.1   Tariff item 8517.12  of India's WTO Schedule  
6.24.   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 ".159 India requests the deletion of language in paragraph 7.266 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 8 517.12. India suggests that a 
more accurate reflection of the parties' arguments is that it is uncontested that India's First Schedule 
imposed a standard duty rate of 20% on products classified under tariff items 8517.12.11 and 
8517.12.19, and that those t ariff items "would come under the tariff item 8517.12".160  
6.25.   Chinese Taipei does not comment on India's request for review.  
 
149 See para. 7.195  below.  
150 India's request for interim review, para. 19.  
151 India's reques t for interim review, para. 19.  
152 India's request for interim review, para. 19.  
153 India's request for interim review, para. 19.  
154 India's request for interim review, para. 20.  
155 Chinese Taipei's comments on India's request for interim review, para. 2.12 . 
156 Chinese Taipei's comments on India's request for interim review, para. 2.1 3. 
157 Chinese Taipei's comments on India's request for interim review, para. 2.13  (quoting Interim Report , 
para. 7.199).  
158 India's second written submission, para. 28. See also India's first written submission, para. 74.  
159 India's request for interim review, para. 21.  
160 India's request for interim review, para. 21.  WT/DS588/R  
 
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  6.26.   We recall that t he parties agree that at the time of the Panel's establishment, India's First 
Schedule imposed a standard duty rate o f 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).161 Therefore, paragraph 
7.266  of the Interim Report  accurately reflects the parties' arguments. Moreover, that same 
paragrap h 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 p arties.162 We therefore decline to make 
the changes requested by India.  
6.2.2   Tariff items 8517.61  and 8517.70 ex01, ex02, and ex03 of India's WTO Schedule  
6.27.   During the interim review process, we considered it useful to clarify certain factual issues 
pertaining to Serial No. 425 of Notification No. 50/2017. On 14 December 2022, we sent a question 
to the parties concerning this issue. On 21 December 2022, the parties responded to that question. 
On 11 January 2023, the parties indicated that they had no comments on th e other party's response. 
In its response to our question, India referred to Notification No. 02/2022. On 18 January 2023, we 
invited India to submit Notification No. 02/2022 as an exhibit. On 20 January 2023, India submitted 
Notification No. 02/2022 as Ex hibit IND -88.  
6.28.   We understand that, in light of the parties' responses to our question, and 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. 02/2022.163 There fore, 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.164 
We have accor dingly modified relevant paragraphs in sections 7.4.3 and 7.4.5.  
6.29.   Chinese Taipei requests the Panel to revise its reasoning, based on Chinese Taipei's own 
arguments, in paragraph 7.355  of the Interim Report.165 India does not comment on Chinese 
Taipei's req uest. We note that the sentence which Chinese Taipei wishes to have deleted is a 
quotation from Chinese Taipei's arguments. As to the additional changes requested by Chinese 
Taipei, we consider that these revisions of the Panel's reasoning are unnecessary.  We therefore 
decline this request.  
7  FINDINGS  
7.1  Introduction  
7.1.  Chinese Taipei  claims that India is acting inconsistently with Article s II:1(a) and (b) of the 
GATT 1994 by imposing tariff treatment on certain information communications technology  (ICT) 
products that is inconsistent with the commitments inscribed in India's WTO Schedule.166 
Chinese  Taipei  specifically challenges the tariff treatment accorded by India to products falling under 
the following tariff items167 of India's WTO Schedule: 8517.12; 8517.61; 8517.62; 8517.70  ex01, 
ex02, and ex03 ; and 8518.30 ex01. Chinese Taipei considers that such tariff treatment is provided 
through India's domestic customs regime, comprising in particular India's First Schedule an d various 
Customs Notifications. Essentially, Chinese Taipei  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 th at India is obliged to provide under its WTO Schedule; 
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.  
 
161 Chinese Taipei's  first written submission, para. 4.1 5-4.24; India's first written submission, para. 150. 
See also First Schedule  as of 30 June 2020 , (Exhibit TPKM -22). 
162 Chinese Taipei's  first written submission, para s. 4.15-4.24; and India's response to Panel question 
No. 79(a), para. 54.  
163 India's response to Panel question No. 94.  
164 Notification No. 02/2022, ( Exhibit IND -88). 
165 Chinese Taipei's request for interim review, para. 2.12.  
166 Chinese Taipei's first  written submission, para s. 1.1-1.3. 
167 As noted above, we use the term "tariff item" to refer to subheadings and tariff lines set forth in 
India's WTO Sche dule and First Schedule. Where useful for the purposes of clarity, we use the terms 
"subheading" and "tariff line" as per the HS nomenclature. (See fn 74 to para. 2.1 above).  WT/DS588/R  
 
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  7.2.  For tariff item 8518.30 ex01, India acknowledges that the tar iff commitments set forth in its 
WTO Schedule indeed constitute relevant binding tariff commitments, but submits that products 
falling under such tariff item are subject to duty -free treatment, without being subject to any 
conditions, and consequently such  tariff treatment is consistent with its WTO tariff commitments.168 
With respect to the other tariff items  at issue in this dispute, India argues that "there is no violation 
of Article s II:1(a) and (b) of the GATT 1994 since the contested sub -headings under  the 2007 
Schedule are a result of an error."169 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".170 India argues that it 
had "communicated to the wider WTO membership previously that it did not intend to expand its 
tariff commitments beyond those contained in the ITA" and that "it would not have agreed to the 
certification of its schedule of concessions if it were aware that such certification would effectively 
expand India's commitments beyond those contained in the ITA []".171 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.172 India refers to 
the Legal O pinion of Professor  Michael Waibel who asserts that the WTO Secretariat "bears at least 
some of the responsibility for the errors".173 India also asserts that the complainant violated 
paragraph 3 of the  GATT Decision of 26 March 1980 on Procedures for Modification and Rectifi cation 
of Schedules of Tariff Concessions  (1980 Decision ) by objecting to India's request to rectify its 
Schedule, through that Decision.174 Finally, with respect to certain specific aspects of Chinese Taipei 's 
claims, India contends that Chinese Taipei  has failed to adequately identify the products at issue.175 
India also argues that a number of the conditions challenged by Chinese Taipei  are not of a kind that 
are required to be inscribed in a WTO Schedule.176 
7.3.  We proceed with our analysis in several steps. W e first describe the legal standard under 
Articles II:1(a) and (b)  of the GATT 1994. Having set forth the legal standard, we address three 
general  issues concerning India's WTO tariff commitments and the application of Articles II:1(a) and 
(b) in the circumstances of this dispute, namely: (i) the relevance of the ITA; (ii) India's plea of 
error under Article 48 of the Vienna Convention; and (iii) India's arguments concerning its 
rectification request under the 1980 Decision. Having addressed th ese general  issues, we then turn 
to assess whether India is acting inconsistently with Articles II:1(a) and (b) .  
7.2  The legal standard under Articles II:1(a) and (b)  of the GATT 1994  
7.4.  Articles II:1(a) and (b) provide that:  
(a) Each Member shall accord to the  commerce of the other Members treatment no 
less favourable than that provided for in the appropriate Part of the appropriate 
Schedule annexed to this Agreement.  
(b) The products described in Part I of the Schedule relating to any Member, which 
are the pro ducts 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 ordinary 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 or those directly and 
mandatorily req uired to be imposed thereafter by legislation in force in the importing 
territory on that date.  
 
168 India's response to Panel question No. 44, para. 29 .  
169 India's response to Panel question No. 31, para. 90 . 
170 India's second written submission, para. 1.  
171 India's second written submission, para s. 3 and 24 . See also India's first written submission, 
para. 58.   
172 India's first written submission, para s. 91-92.  
173 India's response to Panel question No. 6 5(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on 
Error, (Exhibit IND -78), para. 39).  
174 India's second written submission, para. 113.  
175 See e.g. India's response to Pane l question No. 76, para. 51, No. 79, para. 56, No. 80, para. 59, and 
No. 89, para. 67. 
176 See e.g. India's response to Panel question No. 74, paras. 4 4-45.  WT/DS588/R  
 
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  7.5.  Previous panels have found that "Article II generally … protects expectations of a competitive 
relationship (or conditions of competition) and not expectations of any particular trade volume."177 
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 negotiations 
and incorporated into their Schedules of Concessions" .178  
7.6.  We agree with prior interpretations of Articles 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 
than that provided for in a Member's Schedule"179, 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."180 Similarly, where a measu re is inconsistent 
with Article II:1(b) , first sentence,  on the ground that the tariff treatment is subject to "terms, 
conditions or qualifications" that are not set forth in the relevant WTO Schedule, such tariff treatment 
would necessarily constitute tre atment 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).181 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".182  
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.183 If we determine that India 
imposes ordinary customs duties184 on products in excess of the bound rate set forth in India's WTO 
Schedule, or alternatively grants the required tariff treatment to those products but subject to terms, 
conditions or qualifications that are not set forth in the Schedule, then we would conclude that India 
is acting inconsistently with Articles II:1(a) and (b) .185 
7.8.  We note that, in response to a question from the Panel, the parties disagree on whether  the 
reference in Article II:1(b) , first sentence,  to "terms, conditions or qualifications" extend s to general 
conditions for importation.186 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 qualification 
that must be met in order to receive certain tariff treatment. Such a general condition, where it is 
 
177 Panel Report, Russia – Tariff Treatment , para. 7.18 (referring to Panel Report s, EC – IT Products , 
para. 7.757).  
178 Appellate Body Report, Colombia – Textiles , para. 5. 34 (referring to Appellate Body Report, 
Argentina – Textiles and Apparel , para. 47).  
179 Appellate Body Report, Argentina – Textiles and Apparel , para. 45.  
180 Appellate Body Report , Argentina – Textiles and Apparel , para. 45.  
181 Panel Reports, EC – Chicken Cuts , para. 7.65 ; EC – IT Products , para. 7. 747.  
182 See e.g. Panel Report, Russia – Tariff Treatment , para. 7.48 (referring to Appellate Body Report, 
Argentina – Textiles and Appar el, para. 45).  
183 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) t he 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 products at issue 
than that provided for in the relevant schedule and, more specifical ly, whether the challenged measures result 
in the imposition of duties and charges on the products at issue in excess of those provided for in the relevant 
schedule. (Panel Reports, EC – Chicken Cuts , para. 7.65 ; EC – IT Products , para. 7.100).  
184 The parti es 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 meaning of Article II:1(b). We 
note that a previous panel found that the expression " ordinary customs duties" refers to "duties collected at 
the border which constitute 'customs duties' in the strict sense of the term ( stricto sensu )" and "this expression 
does not cover possible extraordinary or exceptional duties collected in customs". (P anel Report, Dominican 
Republic – Safeguard Measures , para. 7.85). In our view, the duties at issue in this dispute are indeed ordinary 
customs duties within the meaning of Article II:1(b) , first sentence . 
185 We also note that it is not necessary to find th at all products falling under a specific tariff item  are 
treated inconsistently with the WTO Schedule, to conclude that India is acting inconsistently with Article 
II:1(b) , first sentence . As the panel in EC – IT Products  found, "if we were to determine th at some  products fall 
within the scope of duty -free concessions in the EC Schedule, then if the challenged measures provide for the 
application of duties to those products covered by the concession, this would be sufficient to find a breach of 
Article II." (Panel  Report s, EC – IT Products , para. 7.116).  
186 See parties' responses to Panel question No. 74.  WT/DS588/R  
 
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  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 th e 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 Sc hedules of concessions are an 
integral part of the GATT 1994. They are also, therefore, integral parts of the WTO 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 covered agreements. Consequently, Article 3.2 of the 
DSU, which states that the provisions of the covered agreements are to be clarified "in accor dance 
with customary rules of interpretation of public international law ", applies to the interpretation of 
Members' WTO Schedules and the concessions set out therein.187 When interpreting Members' 
Schedules in accordance with customary rules of treaty inte rpretation, the Harmonized System (HS) 
and its Explanatory Notes have been found to constitute relevant "context" pursuant to Article 31(1) 
of the Vienna Convention.188 However, the relevance of the HS depends on the specific interpretative 
question at issue, including whether the relevant concessions were based on the HS.189  
7.10.   To our understanding, the foregoing interpretative elements of the legal standard under 
Article II:1(a) and Article II:1(b), first sentence,  are uncontested by the parties. We turn next to 
address certain contested issues pertaining to the scope and content of India's WTO tariff 
commitments.  
7.3  General issues concerning India's WTO tariff commitments  
7.3.1   Overview  
7.11.   As explained above, under Articles II:1(a) and (b)  of the GATT 1994, WTO Members are 
obligated to provide tariff treatment that is in accordance with the commitments set forth in "the 
appropriate Schedule annexed to [the GATT 1994]". Thus, to asses s whether a Member is acting 
inconsistently with Articles II:1(a) and (b) , a panel must compare a Member's obligations as set 
forth in the relevant WTO Schedule to the tariff treatment applied by that Member under the 
measures at issue.190 
7.12.   In the present di spute, it is uncontested that the "appropriate Schedule" for the purpose of 
assessing India's compliance  with Articles II:1(a) and (b)  is India's WTO Schedule. It is further 
uncontested that the tariff commitments for one tariff item set forth in India's W TO Schedule (namely 
tariff item 8518.30 ex01) constitute binding WTO tariff commitments with which we must assess 
India's compliance in the present proceedings. However, with respect to the other tariff items  at 
issue in this dispute (namely tariff items  8517.12; 8517.61; 8517.62; and 8517.70  ex01, ex02, and 
ex03), the parties disagree over the content of India's WTO tariff commitments.  
 
187 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 that:  
The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the 
common intentions of the parties. These common intentions cannot be ascertained on the basis of 
the subjective and unilaterally determined "expectations" of one of the parties to a treaty. Tariff 
concessions provided for in a Member's Schedule – the interpretation of which is at issue here – 
are reciprocal and re sult from a mutually advantageous negotiation between importing and 
exporting Members. A Schedule is made an integral part of the GATT 1994 by Article II:7 of the 
GATT 1994. Therefore, the 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 concession 
are the general rules of treaty interpretation set out in the Vienna Convention.  
(Appellate Body Report, EC – Computer Equipment , para. 84. See also Appell ate Body Report, 
EC – Export Subsidies on Sugar , para. 167; and Panel Report s, EC – Chicken Cuts , para. 7.87) . 
188 See Appellate Body Reports, EC – Computer Equipment , para. 89; EC – Chicken Cuts , 
paras.  195-197; and China – Auto Parts , para s. 146 and 149 . 
189  See e.g. Panel Reports, EC – IT Products , para. 7.443.  
190 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. Chinese Taipei's response to Panel question No. 72, para. 47; an d 
India's comments on Chinese Taipei's  response to Panel question No. 72, para. 18) .  WT/DS588/R  
 
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  7.13.   Throughout the course of these proceedings India has argued that: (i) the relevant binding 
tariff commitments are set for th in the Information Technology Agreement (ITA) and those 
commitments are static and did not change due to their incorporation into India's WTO Schedule191; 
(ii) pursuant to Article 48 of the Vienna Convention, aspects of India's WTO Schedule are invalid 
(and the relevant tariff commitments unbound) as a consequence of an error on the part of India 
during the transposition of the Schedule from the HS2002 to the HS2007192; 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.193  
7.14.   Chinese Taipei , for its part, considers that: (i) India's WTO tariff commitments are set forth 
in India's WTO Schedule and the ITA did not render the commitments in that Schedule static194; 
(ii) there was no error in the transposition of India's Schedule to the HS2007 and, even if there was 
such an error, India either contributed to or was put on notice of the possibility of that error, such 
that the requirements of Article 48 are not satisfied in th is dispute195; and (iii) there is no basis for 
the Panel to make the findings requested by India regarding Chinese Taipei's  objection to India's 
rectification request under the 1980 Decision.196  
7.15.   We proceed by addressing, in turn, the parties' arguments conc erning: (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.197 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.198 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 1997.199  
7.17.   In section 3 (titled " Factual Background") of its first written submission in this dispute, Chinese 
Taipei , inter alia , describ es certain aspects of the ITA. Chinese Taipei  notes the ITA's conclusion in 
December 1996, India's joining the ITA in March 1997, and the modalities for implementation of the 
ITA set forth in the Annex to the ITA .200 In section 4 of its first written submis sion, titled "Measures 
at Issue", Chinese  Taipei describes , inter alia , various tariff undertakings set forth in the ITA and 
India's implementation of those undertakings in its WTO Schedule , and discusses whether the 
transposition of India's WTO Schedule t o the HS2002 and HS2007 affected those tariff 
commitments .201 Thereafter, in section 5 of its first written submission, titled "Legal Argument", 
setting forth its legal argument underpinning its claims that India is acting inconsistently with Articles 
II:1(a) and (b)  of the GATT 1994, Chinese Taipei  does not refer to the ITA, but compares India's 
 
191 See e.g. India's opening statement at the second meeting of the Panel, p ara. 34. 
192 See e.g. India's first written submission, paras. 5 6-92.  
193 See e.g. India's response to Panel question No. 53, para. 47. In India's view, Chinese Taipei'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 rig ht to rectify its Schedule, and India requests the Panel to find 
accordingly . 
194 See e.g. Chinese Taipei 's response to Panel question Nos. 35 and 40; second written submission, 
paras. 3.43 -3.47. 
195 See Chinese Taipei's opening statement at the first meeting  of the Panel , paras 19 -28; second 
written submission, paras. 3.12 -3.30.   
196 See e.g. Chinese Taipei's  second written submission, paras. 3.72-3.80.  
197 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/M IN(96)/16 , para. 2) . 
198 Paragraphs 1 and 2 of the Annex to the ITA. See also 1980 Decision, L/4962.  
199 WT/Let/181.  
200 Chinese Taipei's first written submission, paras. 3.3 -3.5.  
201 Chinese Taipei's first written submission, section 4.   WT/DS588/R  
 
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  commitments in its present WTO Schedule to the tarif f treatment provided by India to certain 
imported products.202 
7.18.   In its first written submission, India states that Chinese Taipei  suggested that India's 
concessions were based on the ITA, "although without actually establishing that the products at 
issue wer e covered under the ITA[]".203 India elaborate d that it would subsequently seek to establish 
that the products at issue were not covered under the ITA, and therefore the 2007 Schedule was 
certified in error and the objections against India's rectification request under the 1980 Decision 
were without me rit.204 India further states that "the burden of proof is on Chinese Taipei  to prima 
facie demonstrate that the products at issue were covered by the ITA[]" and " Chinese Taipei  fails to 
discharge its burden ".205 India devotes approximately 29 pages206 of its first written submission to 
demonstrating that the products at issue are not covered by the ITA.207 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 te chnology products which would be developed in the future".208  
7.19.   In response to questions from the Panel, Chinese Taipei clarified that the ITA is " a fundamental 
element in the factual background in this dispute", since it is "because India joined the ITA[] t hat it 
committed to provide duty -free treatment to products falling under the tariff concessions at issue".209 
However, according to Chinese Taipei, the ITA "is not the agreement at issue in these proceedings 
and therefore, it is not relevant for the interp retation  of the tariff concessions at issue in this 
dispute".210 In Chinese Taipei's view, India's WTO Schedule "is the relevant treaty that the Panel is 
requested to interpret in this dispute" and the "legal issue before the Panel is whether the challenged  
measures apply to the products falling under the tariff concessions at issue, and whether they impose 
customs duties in excess of the bound rates inscribed in India's Schedule in a manner that is 
inconsistent with India's obligations under Article II:1(a)  and Article II:1(b) of the GATT 1994".211 
7.20.   In response to questions from the Panel, India further clarified its views regarding the 
relevance of the ITA in the context of this dispute. India explained that, in its view, its "obligations 
under the ITA[] are static, i.e., are limited to the product scope as defined in the ITA []", and "[t]he 
transposition of India 's schedule from HS1996 to HS2002 or HS2007 does not affect or change 
India's obligations under the ITA []".212 India elaborated that "the ITA [] did not  include the range of 
additional products that could be developed in the future".213 India further considered this relevant 
to the present dispute, because " Chinese Taipei  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 []".214 India argued 
that its "obligations under the ITA [] are distinguishable and 'separate from' the commitments under 
the contested sub -headings in the 2007 Schedule", and "India has made no commitments regarding 
the contested products since such contested products are not covered under the ITA []".215  
7.21.   Throughout the course of these dispute settlement proceedings, the parties continued to 
exchange views on the relevance of the ITA to this dispute. In India's view, the " sole source of 
India's commitments for certain ICT  Products " is the ITA and Chinese Taipei's  claims must fail 
because "the products at i ssue are not covered by the ITA []".216 India considers that "a resolution 
 
202 Chinese Taipei's fi rst written submission, section 5.   
203 India's first written submission, para. 9 3.  
204 India's first written submission, para. 9 4.  
205 India's first written submission, para. 12 7.  
206 See India's first written submission, paras. 125-219. 
207 India's first written submission, para. 12 7.  
208 India's first written submission, para. 10 3. In addition to referring to the ordinary meaning of the 
text of the ITA, India considers that subsequent p ractice indicates that the scope of the ITA does not extend to 
new products. (Ibid. paras. 9 7-124). India highlights, in particular, that the participants in the ITA "have 
agreed that the product scope of the ITA[] does not adequately cover the rapid growt h of information 
technology products, and therefore an expansion  of the ITA[] was required in order to liberalize the IT product 
sector". (Ibid. para. 1 10 (underlining original)) . 
209 Chinese Taipei's response to Panel question No. 3, para. 5.  
210 Chinese Taip ei's response to Panel question No. 3, para. 5.  (emphasis original)  
211 Chinese Taipei's response to Panel question No. 3, para. 8. 
212 India's response to Panel question No. 1, para. 1.  
213 India's response to Panel question No. 1, para. 5.  
214 India's response to Panel question No. 1, para. 8.  
215 India's response to Panel question No. 1, para. 9.  
216 India's response to Panel question No. 4, para. 19; first written submission, para. 127 . WT/DS588/R  
 
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  of this issue lies in interpreting the scope of ITA [] which is relevant to the present dispute in various 
ways".217 In response to a question from the Panel regarding the legal relevan ce of the ITA, India 
responded that: (i) "[t]he ITA [] is an instrument that is critical to this dispute and applies in different 
ways for  Chinese Taipei  and India. Indeed, it is instrumental for analysing India's claim under 
Article  48 of the VCLT"; and (i i) "the ITA[] also serves as an important comparative benchmark for 
determining if the draft rectification request to the 2007 Schedule submitted by India in 2018 was 
of a purely formal character".218  
7.22.   Chinese Taipei, for its part, continues to insist that India is incorrect that the ITA is the covered 
agreement at issue.219 Chinese Taipei submits that the ITA is not a covered agreement, and "India 
is obliged to provide duty -free treatment to the products at issue not because of the ITA[], but 
because of the concessions inscribed in its WTO Schedule".220 Chinese Taipei submits that "[t]he 
covered agreement at issue is India's currently certified Schedule of Concessions reflecting the 
HS2007 Nomenclature".221  
7.23.   The parties' (and in particular India's) references t o 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 IT A limits the scope of the tariff commitments set forth in India's WTO Schedule 
(including with respect to new products that only came into existence after the signing of the ITA).  
7.24.   We therefore proceed to address, in this section: (i) whether the ITA sets forth India's tariff 
commitments for purposes of applying Articles II:1(a) and (b)  of the GATT 1994; and (ii) whether 
the ITA otherwise limits the scope of the tariff commitments contained in India's WTO Schedule. We 
note, in doing so, that the parties' ar guments concerning the ITA pertain specifically to 
Chinese  Taipei 's claims regarding products covered by tariff items  8517.12, 8517.61, 8517.62, and 
8517.70 of India's WTO Schedule.222 
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 "[a]t the heart of this dispute" is whether the 
products identified by the complainant are covered under the ITA.223 India states that "it is clear 
that the parties to the dispute agree th at the source of the purported commitments could only be 
the ITA []."224 India states that it " consider[s] itself bound by the obligations under the ITA[]" but 
argues that those obligations are "separate from the commitments under the contested sub -
headings that were certified in error via the HS2007 transposition".225  
7.26.   Chinese Taipei argues that India's WTO Schedule "is the relevant treaty that the Panel is 
requested to interpret in this dispute" and the "legal issue before the Panel is whether the challenged 
measures apply to the products falling under the tariff concessions at issue, and whether they impose 
customs duties in excess of the bound rates inscribed in India's Schedule in a manner that is 
inconsistent with India's obligations under Artic les II:1(a) and Article II:1(b) of the GATT 1994".226 
Chinese Taipei  further considers that the ITA is not a covered agreement within the meaning of the 
DSU.227 
 
217 India's opening statement at the first meeting of the Panel, para. 30 . 
218 India's response to Panel question No . 43, para. 27. See also India's second written submission, 
para. 42.  
219 Chinese Taipei's second written submission, para. 1.6.  
220 Chinese Taipei's second written submission, para. 1.6.  
221 Chinese Taipei's second written submission, para. 1.6.  
222 See India's first written submission, paras. 12 5-219; response to Panel question No. 44, para. 29.  
223 India's first written submission, para. 2 5 
224 India's  opening statement at the first meeting of the Panel, para. 31. 
225 India's first written submission, para. 69. 
226 Chinese Taipei's response to Panel question No. 3, para. 8. 
227 Chinese Taipei's response to Panel question No. 2, para. 2.   WT/DS588/R  
 
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  7.3.2.2.2   Main arguments of the third parties  
7.27.   Brazil considers that the ITA "is not a covered agreement wit hin the meaning of Article 1.1 of 
the DSU, and, therefore, the Panel has no authority to interpret the ITA []".228 In Brazil's view, "the 
main issue of the present dispute concerns the correct interpretation of India 's Schedule, not the 
interpretation of the  ITA[]."229 
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".230 Canada considers that "it  is 
not necessary in the case at hand to interpret the ITA[] itself", and rather "the Panel's task is to 
interpret India's tariff commitments set forth in its Schedule of Concessions annexed to the GATT 
1994".231 Canada considers that the ITA "may be considered as relevant context within the meaning 
of Article 3 1 of the Vienna Convention for the purposes of interpreting the terms of the concessions 
at issue, but the ITA[] is not itself the subject of the Panel's analysis in this case."232 
7.29.   The European Union submits that, because the ITA is not identified in the li st 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.233 According to the European Union, this Panel 
is only empowered to apply, "and therefore to interpret", the covered agreements.234 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".235 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 bindings provided for in those 
schedules ".236 The European Union submits that t he ITA "is not the source of India' s legal obligations 
relevant in the present cases ".237  
7.30.   Japan submits that the ITA is not a covered agreement within the meaning of Article 1.1 of 
the DSU, and consequently "the  Panel lacks jurisdiction to clarify the rights and obligat ions of the 
parties under the ITA[]".238 Japan considers that the ITA "is not directly relevant to the interpretation 
of India's tariff concessions at issue."239 In Japan's view, India errs when it refers to 'the obligations 
under the ITA[]'", because what is relevant is India's obligations under Article II:1 of the GATT 1994 
and under India's WTO Schedule.240 Japan argues that "the focus of the interpretative exer cise is on 
the relevant tariff concessions made by India in its Schedule, not the ITA []".241  
7.31.   Korea "is of the view that the agreement at issue in this dispute is not the ITA[], but the GATT 
1994."242 Korea considers that the ITA "may be used as 'context' to  interpret India 's tariff 
concessions at issue in this dispute".243 
7.32.   Norway submits that the ITA is not a "covered agreement" within the meaning of Article 1.1 
of the DSU, but could serve as relevant context within the meaning of Article 31(2)(b) of the Vien na 
Convention. For Norway, the Panel's main task in this dispute is to interpret India's commitments 
contained in its WTO Schedule.244 
 
228 Brazil's third -party response to Panel question No. 1, para. 2.  
229 Brazil's third -party response to Panel question No. 1, para. 2.  
230 Canada's third -party response to Panel question No. 1, para. 1.  
231 Canada's third -party re sponse to Panel question No. 1, para. 2.  
232 Canada's third -party response to Panel question No. 1, para. 2.  
233 European Union's third -party response to Panel question No. 1, para. 1.  
234 European Union's third -party response to Panel question No. 1, para. 2. 
235 European Union's third -party response to Panel question No. 1, para. 2.  
236 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.  
237 European Union's th ird-party response to Panel question No. 2, para. 1 0. (emphasis original)  
238 Japan's third -party response to Panel question No. 1, para. 2.  
239 Japan's third -party response to Panel question No. 2, para. 8.  
240 Japan's third -party response to Panel question No. 15, para. 4.  
241 Japan's third -party response to Panel question No. 15, para. 5.  
242 Korea's third -party response to Panel question No. 3, p. 1 . 
243 Korea's third -party response to Panel question No. 3, p. 1.  
244 Norway's third -party statement, para. 2.  WT/DS588/R  
 
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  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 with respect to the interpretation of the tariff 
concessions made by WTO Members pursuant to the ITA" .245 
7.34.   Ukraine notes that "ITA concessions are included in the participants ' WTO schedules of 
concessions and become part of that Member 's obligations under the WTO covered agreements".246 
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 o f the DSU."247 
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".248 According to the United States, "the Panel is tasked with interpreting the relevant 
provisions of the GATT 1994, including the tariff concessions in India 's Schedule, rather than the 
ITA[]".249 The United States therefore considers that "India is mistaken that its commitments are 
'under the ITA[]'".250 
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 Chinese Taipei's  claim in this dispute is that India is acting inconsistently with 
its obligations under Article s II:1(a) and (b) of the GATT 1994.251 Chinese Taipei  has not, in any of 
its submissions, articulated any claim based on a provision of the ITA. We recognize that Chinese 
Taipei  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 Chinese 
Taipei's  references to the ITA as articulating any claim of inconsistency or requesting us to find that 
India is acting inconsistently with the ITA. Thus, in our view, Chinese Taipei  has not asserted that 
India is acting inconsistently with the ITA nor does Chinese Taipei  request us to make any such 
finding.252  
7.38.   As described above253, the legal standard under Articles II:1(a) and (b)  entails comparing the 
treatment that India is obligated to provide in its WTO Schedule with the tariff treatment that India 
accords to the products at issue. This provision d oes not refer to the ITA, nor does any other 
provision in the GATT 1994. We therefore see no textual link in the GATT 1994 indicat ing that 
Members' legal obligations, for the purposes of applying Articles II:1(a) and (b) , could be  contained 
in the ITA.  
7.39.   As to the ITA itself, we note that paragraph 2 of the ITA indicates that:  
Pursuant to the modalities set forth in the Annex to this Declaration, each party shall 
bind and eliminate customs duties and other duties and charges of any kind, within the 
meaning o f Article II:1(b) of the General Agreement on Tariffs and Trade 1994, with 
respect to the following: (a) all products classified (or classifiable) with Harmonized 
System (1996) ("HS") headings listed in Attachment A to the Annex to this Declaration; 
and (b ) all products specified in Attachment B to the Annex to this Declaration, whether 
or not they are included in Attachment A; through equal rate reductions of customs 
duties beginning in 1997 and concluding in 2000, recognizing that extended staging of 
 
245 Türkiye's third -party submission, paras. 2, 4 and 9.  
246 Ukraine's third -party response to Panel question No. 1, para. 8.  
247 Ukraine's third -party re sponse to Panel question No. 1, para. 9.  
248 United States' third -party response to Panel question No. 1, paras. 2 -3.  
249 United States' third -party response to Panel question No. 1, para. 3.  
250 United States' third -party response to Panel question No. 5, par a. 9. 
251 Chinese Taipei's  first written submission, paras.  5.1-6.1. See also Chinese Taipei's  second written 
submission, para. 4.1; panel request, p. 2.   
252 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 Chinese Taipei's  panel request in this dispute.  
253 See section 7.2 above.  WT/DS588/R  
 
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  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 schedule to the General Agreement on Tariffs and Trade 1994, and, 
in addition, at either its own tariff line level or the Harmonized System (1996) ( "HS") 
6-digit level in either its official tariff or any other published versions of the tariff 
schedule, whichever is ordinarily used by importers and exporters. Each participant that 
is not a Member of the WTO shall implement these measures on an autonomous basis, 
pending completion of its WTO accession, and shall incorporate these measures into its 
WTO market access schedule for goods.  
7.41.   Thus, the ITA specifically requires WTO Members who are participants in the ITA to 
incorporate their ITA undertakings into  their WTO Schedules annexed  to the GATT 1994. It appears 
to us, therefore, that any undertakings made under the ITA only become binding WTO obligations 
under Articles II:1(a) and (b)  of the GATT 1994 if they are incorporated into Members' WTO 
Schedules. Once incorporated into a Memb er's WTO Schedule, such concession 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 structu re 
– 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 settl ement provisions of the agreements listed in 
Appendix 1 of the DSU and concerning Members' rights and obligations under provisions of the WTO 
Agreement.254 The ITA is not listed in Appendix 1 of the DSU, nor is the ITA listed in Annexes 1  to 4 
of the WTO Ag reement. Thus, in contrast to India's WTO Schedule255, the ITA is not a "covered 
agreement" within the meaning of the WTO Agreement and the DSU.256  
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 factual 
and historical background to this dispute. That the ITA may have induced  India, as a factual matter, 
to undertake certain WTO tariff commitments does not mean that, as a legal matter, the ITA sets 
forth India's WTO legal obligations at issue in this dispute. Furthermore, having reviewed India's 
submissions, we see no argument that explains how the ITA can be read into Articles II:1(a) and 
(b) as the "source" of a Member's legal obligations under those provisions. To the extent that India's 
arguments related to the ITA focus on its relevance for purposes of interpreting the obligations set 
forth in  India's WTO Schedule, we address those arguments below.257 We note India's view that 
 
254 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 Appen dix 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 isolati on or in combination with any other covered agreement."  
255 See para. 7.9 above.  
256 We note India's argument that "at the very least, the contents of Attachment A and  Attachment B of 
the ITA[] were incorporated in WT/LET/181 dated July 2, 1997 which is a covered agreement within the 
meaning of Article 1 of the [DSU]". (India's response to Panel question No. 2, para. 14) . We understand that 
document WT/Let/181 contained  certain changes to India's WTO Schedule that were certified on 2 October  
1997. For the reasons already 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 argument that "if Chinese 
Taipei deems it necessary to have a 'covere d agreement ' as the base -line comparator then it should equally 
establish that India' s Schedule in WT/Let/886 (i.e. its Schedule based on the HS2002) which is no longer in 
currency, can be taken to be a 'covered agreement ' for the purposes of this dispute ". (India's comments on 
Chinese Taipei's response to Panel question No. 64(b), para. 3). India elaborates that, "[i] n other words, there 
is no legal basis to term a schedule (WT/Let/886), which has been replaced with a subsequent schedule 
(WT/Let/1072), as a covered agreement ". (Ibid.). We address this argument in paras. 7.44-7.45 below.   
257 See section 7.3.2.3  below.  WT/DS588/R  
 
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  Chinese Taipei refers  to the ITA as the relevant source of law in this dispute.258 As explained above, 
however, we disagree with that understanding of Chinese Taipei's  arguments and claims.  
7.44.   As a final point of note with respect to this issue, we observe India's argument that " Chinese 
Taipei makes the inconsequential point that the 'ITA[] is not a covered agreement '".259 India 
elaborates that " if Chinese Taipei deems it necessary to have a 'covered agreement ' as the base -line 
comparator then it shou ld equally establish that India 's Schedule in WT/Let/886 (i.e. its Schedule 
based on the HS2002) which is no longer in currency, can be taken to be a 'covered agreement ' for 
the purposes of this dispute ".260 India considers that "there is no legal basis to term a schedule 
(WT/Let/886), which has been replaced with a subsequent schedule (WT/Let/1072), as a covered 
agreement".261  
7.45.   We have examined the relevant documents surrounding each transposition of India's WTO 
Schedule and we understand that following a tr ansposition 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 Sche dules.262 Indeed, the process through which these changes are certified is under the 
1980 Decision.263 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".264 Thus, the files that are certified following each transposition process do not set forth 
all of India's tariff concessions, but rather only those tariff items  that have changed as a result of 
the transposition exercise.265 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 has been changed 
several times over the years through various recourses to the 1980 Decision.266 The fact that India's 
WTO Schedule is a covered agreement does not imply ipso facto  that the ITA is a covered agreement.  
India's WTO Schedule is explicitly recognized as an integral par t of the covered agreements.267 The 
ITA, which is a distinct legal instrument from India's WTO Schedule,  is not.  
7.46.   To conclude, we understand that Chinese Taipei's  claims in this dispute are exclusively under 
Articles II:1(a) and (b)  of the GATT 1994. Having  reviewed the ITA, we understand that the 
 
258 In response to a question from the Panel asking why India considered that Chinese Taipei  bore the 
burden of demonstra ting that the products at issue were covered by the ITA, India responds that:  
India notes that Chinese Taipei does not identify the precise commitments of the ITA [], which 
would cover the products at issue. Indeed, Chinese Taipei 's difficulty in articulati ng the source of 
India's commitments under the contested sub -headings is apparent in their submissions which 
(while principally basing themselves on the 2007 Schedule) attempt to link the present dispute to 
India' s commitments under the ITA[] without ident ifying the basis of such linkage. For instance, 
Chinese Taipei argues the following:  
India joined the Information Technology Agreement (ITA) as a Participant. Pursuant to the 
ITA, India made commitments in its Schedule to accord duty -free treatment to pro ducts 
falling under tariff lines 8517.12, 8517.61, 8517.62, 8517.70.01/02/03, and 8518.30.01. 
India, however, now applies customs duties on certain products falling under these tariff 
lines in excess of the duty -free treatment set forth in its Schedule. In dia, therefore, is 
breaching its commitments to provide duty free treatment to goods falling under these tariff 
lines.  
India notes that the burden of proof is on Chinese Taipei to prima facie demonstrate that the 
products at issue were covered by the ITA[].  
(India's response to Panel question No. 5, paras.  21-22 (quoting Chinese Taipei's first written submission, 
para. 1 .2)) 
259 India's comments on Chinese Taipei's response to Panel question No. 64(b), para. 3.  
260 India's comments on Chinese Taipei's response to Panel question No. 64(b), para. 3.  
261 India's comment s on Chinese Taipei's  response to Panel question No. 64(b) , para. 3. 
262 See WT/Let/181 ; WT/Let/886 ; and WT/Let/1072.  
263 See WT/Let/181 ; WT/Let/886 ; and WT/Let/1072.  
264 1980 Decision, paras. 1 -3 and 5.  
265 See WT/Let/181 ; WT/Let/886 ; and WT/Let/1072.  
266 In this Report, we consider it useful to use the nomenclature of " India's W TO 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, witho ut 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.  
267 See para. 7.9 above.  WT/DS588/R  
 
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  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 t he WTO Agreement and the DSU. 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 those WTO tariff c ommitments, set 
forth in India's WTO Schedule, that are the source of India's legal obligations for the purposes of 
applying Articles II:1(a) and (b) . In short, we consider that India's legal obligations, for purposes of 
assessing its compliance with Articles II:1(a) and (b) , are the tariff commitments set forth in India's 
WTO Schedule.268  
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".269 
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 countries – including 
India."270 India considers that "[t]hose static commitments did not become elastic by virtue of their 
incorporation into concession schedules."271 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."272 India considers that, 
"[u]nder Article 31(4) of the Vienna Convention, those sub -headings would require to be interpreted 
in accordance with the sp ecial meaning the parties intended them to have – by engaging with 
HS1996 and its explanatory notes, read in the context of ITA[]."273 As a general matter, India 
considers that the ITA constitutes "interpretative context to India's schedule of concessions".274  
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 heading 8525, and was covered un der 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".275 India n otes that this "limitation [was] also reflected in HS2002".276 
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."277  
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 o n the Expansion of Trade in Information 
Technology Products ( ITA Expansion ).278 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 
 
268 Regarding India's argument that Chinese Taipei  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 
Article s II:1(a) and (b), Chinese Taipei  must demonstrate that the products at issue f all within the scope of the 
ITA. Rather, Chinese Taipei  must demonstrate that the products at issue fall within the scope of relevant tariff 
commitments set forth in India's WTO Schedule.  
269 India's opening statement at the second meeting  of the Panel , para. 34.   
270 India's opening statement at the second meeting  of the Panel , para. 34. 
271 India's opening statement at the second meeting  of the Panel , para. 34. 
272 India's opening statement at the second meeting  of the Panel , para. 35. (emphasis original)  
273 India's opening statement at the second meeting  of the Panel , para. 35. 
274 India's second written submission, para. 3 6. 
275 India's opening statement at the second meeting  of the Panel , para. 35. 
276 India's opening statement at the second meeting  of the Panel , para. 36. 
277 India's opening statement at the second meeting  of the Panel , para. 36. 
278 Under the ITA Expansion, the participants agreed to "bind and eliminate cu stoms 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 participants in the ITA Expansion 
do not include all participants in the ITA. In particular, India is not a participant in the ITA Expansion. (See 
India's opening statement at the first meeting  of the Panel , para. 5).  WT/DS588/R  
 
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  certain products at iss ue until they modified their concessions in keeping with the ITA Expansion."279 
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 whic h 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, 8518.30 - is 
a clear affirmation that those products a re in addition to and were beyond the scope of the ITA []".280 
India also refers to what it considers constitutes "subsequent practice" in support of its 
interpretation, namely: "the HS2007 schedules of some WTO Members reflect NIL duty for certain 
contested  tariff lines, whereas these Members continue to 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 Expansi on continue to impose duties on 
products covered under certain contested tariff lines."281 
7.50.   Chinese Taipei argues that t he "rearrangement of tariff lines and the inclusion of new tariff 
lines or changes in the descriptions of products as a result of HS transpositions such as from HS1996 
(the HS used in the ITA []) to HS2002 to HS2007 do not modify a Member's obligation to provide 
duty-free treatment to the relevant products ".282 In Chinese Taipei's view, "[p] roducts are not 
excluded from the benefit of dut y-free treatment in a Member's Schedule simply because they 
incorporate technological advancements ", and " the evolutionary nature of the HS Nomenclature had 
already been confirmed " in previous GATT cases  by the time the ITA was adopted.283 Chinese Taipei 
considers that this was confirmed by the Appellate Body in China – Publications and Audiovisual 
Products and the panel in EC – IT Products .284 
7.51.   Regarding the ITA Expansion, Chinese Taipei considers that t he inclusion of a product in the 
ITA Expansion "does not  necessarily mean that it falls outside the sco pe of ITA []."285 Chinese Taipei 
agrees with the United States that  the "ITA Expansion negotiators considered the possibility that 
several products proposed for inclusion in the ITA Expansion may in fact have be en part of the 
ITA".286 Chinese Taipei also argues that " the ITA Expansion is not relevant to the main issue in this 
dispute, which concerns the interpretation of India's concessions in its Schedule that reflected its 
commitments under the ITA []".287 Regardi ng India's argument that " statements of Members made 
in the Committee on the Expansion on Trade in Information Technology Products constitute 
'subsequent practice ' to the ITA []", Chinese Taipei recalls that the ITA " is not a covered agreemen t" 
and " the int erpretative exercise in this dispute is not on the scope of the ITA [], but rather on the 
scope of India's concessions on the products at issue in its Schedule. "288 Chinese Taipei considers 
that the statements referred to by India  are general and political , and express a concern that the 
ITA should be expanded to take into account technological advancements , but fail to show  consistent 
interpretation of the product scope of the ITA , or an agreement on  any such interpretation  of the 
ITA.289 Chinese Taipei also argues that India has failed to demonstrate that these statements 
constitute subsequent practice, within the meaning of Article 31 of the Vienna Convention.290 
7.3.2.3.2   Main arguments of the third parties  
7.52.   Brazil states that "the task before the Panel concerns the interpretation of India 's Schedule in 
line with the objective of ensuring the predictability and security of the reciprocal and mutually 
agreed concessions that are the cornerstone of the WTO architecture."291 Brazil further considers 
 
279 India's opening statement at the second meeting  of the Panel , para. 39. 
280 India's opening statement at the second meeting  of the Panel , para. 41. 
281 India's op ening statement at the second meeting  of the Panel , para. 42.  
282 Chinese Taipei's second written submission, para. 1.7.  
283 Chinese Taipei's second written submission, paras. 1.7 and 3.46 (referring to Canada's third-party 
response to Panel question  No. 6, para. 11 ; United States' third-party submission, f n 26 to para. 29; and 
Group of Experts Report, Greece – Phonograph Records ).  
284 Chinese Taipei's second written submission, para. 3.47 (referring to Appellate Body Report, China – 
Publications and Audiovisua l Products , paras. 396 -397 and fn  681 to para. 369; and Panel Reports, EC – IT 
Products , paras. 7.598 -7.600 ). 
285 Chinese Taipei's second written submission, para. 3.49.  
286 Chinese Taipei's second written submission, para. 3.49 (quoting United States' third -party 
submission, para. 11).  
287 Chinese Taipei's second written submission, para. 3.50.  
288 Chinese Taipei's second written submission, para. 3.51.  
289 Chinese Taipei's second written submission, para. 3.5 2. 
290 Chinese Taipei's second written submission, paras. 3.54 -3.65. 
291 Brazil's third -party response to Panel question No. 2, para. 10.  WT/DS588/R  
 
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  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".292 Brazil argues that, "[o]th erwise, the security and predictability of the tariff 
concessions in the Schedules will be seriously undermined".293 
7.53.   Canada considers that "the scope of coverage of a concession is determined by an 
examination of the meaning of the terms contained in the co mmitments set out in a Member's 
Schedule".294 Canada considers that the ITA "may be considered as relevant context for the purposes 
of interpreting the meaning of these terms".295 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."296 Canada considers that "[t]he HS is updated to account for new products and 
Members' obligations and tariff bindings will either apply to these new products to the exte nt that 
they fall within existing tariff lines or will not apply to such new products should a Member exclude 
them from coverage".297 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."298 Canada considers that an interpretation that finds that a Member's WTO 
tariff co mmitments "are static and unable to capture technological advancement would undermine 
the WTO system of tariff concessions by allowing Members to simply disregard tariff commitments 
on the basis that a product incorporates, or has become, a new technology ".299 
7.54.   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, while the ITA "certainly 
provides the historical background for the obligations und ertaken by India … the relevance of ITA[] 
as context in interpreting the relevant legal texts at issue here … is very limited."300 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.301 
7.55.   Japan submits that "the concessions at issue are those included in the currently certified 
schedu le of India" and the ITA "does not appear to be legally relevant by virtue of either Article 31 
or Article 32 of the Vienna Convention with regard to the interpretation of India's concessions as 
included in its currently certified Schedule".302 Japan consid ers that "[n]either technological 
development nor product development modify the scope of a tariff concession."303 Japan also 
considers that "the ITA Expansion qualifies as neither context, nor a supplementary means of 
interpretation, and is therefore not relevant for the purposes of interpreting the concessions at 
issue".304 Japan asserts that "India's argument based on the ITA[] is irrelevant, and thus, the Panel's 
analysis should focus on the text of India's currently certified tariff concessions".305 
7.56.   Korea considers that the ITA "may be used as 'context' to interpret India 's tariff concessions 
at issue in this disput e".306 Korea submits  that "as a general matter, modifications to the scope of a 
Member's rights and obligations under certain schedule of concessions can only be made by actually 
changing the schedule itself."307 Korea clarifies, however, that "this is not t o say that the 
development of new technologies and new products cannot be incorporated into the previously 
established scope of tariff concessions in a Member 's WTO Schedule as a matter of interpretation ."308 
 
292 Brazil's third -party response to Panel question No. 6, para. 15.  
293 Brazil's third -party response to Panel question No. 6, pa ra. 15.  
294 Canada's third -party response to Panel question No. 2, para. 4.  
295 Canada's third -party response to Panel question No. 2, para. 4.  
296 Canada's third -party response to Panel question No. 6, para. 1 0. 
297 Canada's third -party response to Panel question  No. 6, para. 10.  
298 Canada's third -party response to Panel question No. 6, para. 13.  
299 Canada's third -party response to Panel question No. 6, para. 14.  
300 European Union's third -party response to Panel question No. 2, para. 15.  
301 European Union's third -party response to Panel question No. 2, para. 14. (emphasis original)  
302 Japan's third -party response to Panel question No. 2, paras. 11 and 16.  
303 Japan's th ird-party response to Panel question No. 6, para. 2 2.  
304 Japan's third -party response to Panel question No. 9, para. 32.  
305 Japan's third -party response to Panel question No. 15, para. 6.  
306 Korea's third -party response to Panel question No. 3, p. 1.  
307 Korea 's third -party response to Panel question No. 7, p. 2.  
308 Korea's third -party response to Panel question No. 7, p. 2. (emphasis original)  WT/DS588/R  
 
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  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[]."309 
7.57.   Norway argues that "the obvious starting point … must be the commitments made in the 
schedules".310 Furthermore, in Norwa y'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".311 Norway therefore "strongly disagrees with 
India's perceived a ssertion that including technological advancement within a product segment 
falling within the tariff line listed in Attachment A would involve expansion of 'new' products ".312 
7.58.   Türkiye submits that "[a]lthough a large number of high -tech products were covere d [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."313 Türkiye further considers 
that the products at issue in this dispute are not covered by the ITA, and that as "[a]ny 
technologically newly developed product cannot automatically be considered as covered by ITA[], … 
the duty -free treatment cannot be extende d to all variants of the products."314 Türkiye considers 
that the Panel's "interpretation of concessions in ITA[] should not disrupt the balance which is 
negotiated by the parties".315 Türkiye shares India's view that the product scope of the ITA "has 
remain ed the same since 1997", and is "defined in accordance with the product coverage envisaged 
in HS1996 at that point in time".316 Türkiye also shares India's view that new "'products which are 
a result of technological progress are not covered under the ITA[]'".317 Türkiye considers that the 
complainant seek s "an overly broad or inclusive construction of ITA[] commitments, damaging the 
balance established during the negotiation process of ITA[]."318 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[] concessions were negotiated".319 
7.59.   The United States submits that "the Panel may consider the ITA[] as relevant context within 
the meaning of Article 31 of the Vienna Convention".320 The United States also considers that "[t]he 
tariff concessions in a WTO Member 's Schedule apply to all products – regardless of technological 
development – that meet t he terms of the concession, interpreted based on its ordinary meaning in 
context and in light of the GATT 1994 's object and purpose".321 The United States argues that "India's 
position would undermine the fundamental obligations of Article II:1 of the GATT 1994 by allowing 
Members to disregard tariff commitments on the basis that a product incorporates or constitutes a 
perceived new technology".322 In the United States' view, "[t]he ITA Expansion is not relevant to the 
Panel's interpretation of India 's conces sions under the customary rules of interpretation reflected in 
the VCLT."323 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[]".324 
7.3.2.3.3   Panel' s assessment  
7.60.   We understand that, in India's view, its commitments under the ITA are "static" and, 
therefore, India considers that its WTO tariff commitments exclude new products resulting from 
technological innovations that occurred after the ITA was concl uded.325  
 
309 Korea's third -party response to Panel question No. 10, p. 3.  
310 Norway's third -party submission, para. 7.  
311 Norway's t hird-party submission, para. 8.  
312 Norway's third -party submission, para. 9.  
313 Türkiye's third -party response to Panel question No. 2, p. 2.  
314 Türkiye's third -party response to Panel question No. 2, p. 3. 
315 Türkiye's third -party response to Panel question No. 3, p. 3.  
316 Türkiye's third -party response to Panel question Nos. 4 -5, p. 4.  
317 Türkiye's third -party response to Panel question Nos. 8 -10, p. 8 (quoting India's first written 
submission, para. 2 9). 
318 Türkiye's third -party response to Panel question Nos . 8-10, p. 9.  
319 Türkiye's third -party response to Panel question No. 15, p. 2.  
320 United States' third -party response to Panel question No. 3, para. 4.  
321 United States' third -party response to Panel question No. 6, para. 13.  
322 United States' third -party response to Panel question No. 6, para. 14.  
323 United States' third -party response to Panel question No. 8, para. 18.  
324 United States' third -party response to Panel question No. 9, para. 2 1. 
325 In India's view, the ITA "did not include the range of additional products that could be developed in 
the future." (India's response to Panel question No. 1, para. 5).  WT/DS588/R  
 
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  7.61.   We have addressed above the question of whether the ITA sets forth India's legal obligations 
in this dispute and concluded that it does not. In order to assess Chinese Taipei's  claims, and apply 
Articles II:1(a) and (b)  of the GATT 1994, we will n ot 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.  
7.62.   Having said that, we note India's argument that its "static commitments" in the ITA "did not 
become elastic by virtue of their incorporation into concession schedules".326 We also note India's 
argument that certain tariff items  of its WTO Schedule have a "special meaning" intended by the 
parties, pursuant to Article 31(4) of the Vienna Convention. We therefore consider it relevant to 
examine whether, as a matter of legal interpretation, the ITA limits or modifies the scope of India's 
WTO tariff commitments as set forth in its WTO Schedule (notwithstanding that it does not set forth 
those tariff commitments).  
7.63.    We start by recall ing that Members' WTO Schedules, as an integral part of the GATT 1994 
and the WTO Agreement, are to be interp reted in accordance with customary rules of interpretation 
of public international law, pursuant to Article 3.2 of the DSU.327 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 technological innovation, and which did not exist at the  time that the concession in the 
Schedule w as agreed upon. In this respect, we agree with prior interpretations of the scope of 
Members' obligations under their WTO Schedules.328  
7.64.   We further recall that, when interpreting Members' Schedules in accordance wi th customary 
rules of treaty interpretation, the HS has been found to constitute relevant "context" pursuant to 
Article 31(1) of the Vienna Convention.329 However, the relevance of the HS depends on the specific 
interpretative question at issue (including w hether the relevant concessions were based on the 
 
326 India's opening statement at the second meeting  of the Panel , para. 34. 
327 See para. 7.9 above. See also Appellate Body Reports, EC – Computer Equipment , para. 84; EC – 
Export Subsidies on Sugar , para. 167; and Panel Report s, EC – Chicken Cuts , para. 7.87.  
328 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 th ose 
terms at the time of interpretation." (Appellate Body Report, China – Publications and Audiovisual Products , 
para. 390) . The Appellate Body stated that "the terms used in China's GATS Schedule ('sound recording' and 
'distribution') are sufficiently gen eric that what they apply to may change over time." (Ibid. para. 396) . 
According to the Appellate Body, "GATS Schedules, like the GATS itself and all WTO agreements, constitute 
multilateral treaties with continuing 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 thei r adoption or 
the date of a Member's accession to the treaty. Such interpretation would undermine the 
predictability, security, and clarity of GATS specific commitments, which are undertaken through 
successive rounds of negotiations, and which must be inte rpreted in accordance with customary 
rules of interpretation of public international law.  
(Ibid. para. 397 (footnotes omitted))  
Similarly, in Greece – Phonograph Records , a GATT  1947 Group of Experts addressed whether 
"long-playing" records were covered b y the bound duty for "gramophone record" given that "such 
records did not exist at the time the Greek Government granted the … concession [at issue], that they 
contained a volume of recordings up to five times that of the old records, that they were lighte r than 
conventional records, that they were made of different material and that, therefore, as a new product, 
they were not covered by the item bound" in Greece's Schedule. (Group of Experts  Report , Greece – 
Phonograph Records , p. 1). The Group of Experts "agreed that the practice generally followed in 
classifying new products was to apply the tariff item, if one existed, that specified the products by 
name, or, if no such item existed, to assimilate the new products to existing items in accordance with 
the principles established by the national tariff legislation." (Ibid. p. 1) . The Group found that 
long-playing gramophones, developed after Greece made the relevant tariff concession, were covered 
by the description of "gramophone recor ds" in Greece's Schedule . (Ibid. p. 2) . 
329 See Appellate Body Reports, EC – Computer Equipment , para. 89; EC – Chicken Cuts , paras. 
195-197; and China – Auto Parts , para s. 146 and 149 . WT/DS588/R  
 
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  HS).330 It is also uncontested by the parties that, pursuant to the rules of interpretation of the HS, 
any product at any moment in time must fall within the product scope of a tariff item in the HS 
nomencla ture.331 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 with the parties on this point.332 
7.65.   Thus, for those Members whose WTO Schedules are based on the HS,  such as India333, where  
a product is classified under a particular HS heading or subheading of a Member's Schedule, that 
product would also fall within the scope of a WTO Member's obligations unless the  Schedule specifies 
otherwise. This includes new products that only come into existence following the binding of a 
Member's commitment s with respect to the relevant heading or subheading.  
7.66.   From the foregoing, it is clear that as a general rule the product scope of Members' tariff 
concessions evolves over time to capture products that may come into existence as a result of 
technological developments. The only question that arises in this dispute is whether that general 
rule is modified by virtue of the exist ence of the ITA. In this respect, India essentially argues that, 
because the product scope of the ITA is static, so is the scope of its tariff commitments in its WTO 
Schedule with respect to undertakings made pursuant to the ITA.  
7.67.   In our view, India's argu ment rests on two premises : (i) the product scope of Attachment A 
of the ITA is static, such that it "does not include technological advancements"334; and (ii) the ITA 
similarly limits the product scope of India's WTO Schedule.335 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 pr oceed on an arguendo basis to assess whether, assuming 
that the product scope of the ITA is indeed static, the ITA limits the product scope of India's WTO 
Schedule.  
7.68.   We therefore turn to address whether, assuming that the product scope of the ITA is static , 
it limits the scope of certain Members' WTO tariff commitments. We recall 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 Ar ticle 31 of the Vienna Convention, then a 
Member's obligations extend to that product. We understand that, under India's interpretation of 
the relationship between the ITA and its WTO Schedule, while the general rule described above 
would continue to apply  to WTO Members who are not participants in the ITA, WTO Members who 
are participants in the ITA would be subject to a different rule. In other words, under India's 
approach, a tariff concession  set forth in an ITA participant's WTO Schedule would have a d ifferent 
product scope to  the same tariff concession set forth in a non -ITA participant's Schedule.  
7.69.   In our view, India's interpretation is at odds with the multilateral principles of reciprocity and 
mutual ly advantage ous arrangements underpinning the mult ilateral trading system.336 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.  
 
330  See e.g. Panel Reports, EC – IT Products , para. 7.443.  
331 India's resp onse to Panel question No. 10, para. 31 ("[t] he General Rules of Interpretation, annexed 
to the [HS Convention], allow for all products to be classified under one or the other heading of any version of 
the HS, and therefore, also the Schedule of Concession s of any given country (if unbound tariff lines are also 
included in the Schedule of Concessions)" (emphasis original)); Chinese Taipei's  response to Panel question 
No. 72, para. 46  (Chinese Taipei "agrees that all HS nomenclatures are exhaustive in their product scope "). 
332 We observe that the General Rules for the Interpretation of the Harmonized System, in addition to 
setting out detailed rules for classification, set forth a residual interpretative rule that goods which cannot 
otherwise be classified "sh all 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, ( Japan's third -party 
Exhibit  JPN-60), para. 4).  
333 See para. 2.16 above.  
334 India's first written submission, subheading IV.A.  
335 India's opening statement at the second meeting of the Panel, para. 34 .  
336 See the third recital of the preamble to the WTO Agreement.  WT/DS588/R  
 
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  7.70.   We note that India has not pointed to any provision in the ITA indicating that the ITA excluded 
from the scope of participants' WTO tariff commitments new products resulting from technological 
developments, if such new 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 technological developments".337 In our view, the 
requirement that parties should meet periodically to rev iew the product scope of the ITA suggests 
that the ITA participants anticipated expanding the scope of the ITA to include additional tariff items  
that were not initially included. We fail to see how this requirement could imply that products coming 
into ex istence after the conclusion of the ITA and otherwise falling within the scope of Members' 
tariff commitments as set forth in their WTO Schedules would be excluded  from the coverage of 
Members' existing WTO commitments.   
7.71.   We also note India's argument that its WTO Schedule should be given a "special meaning", 
pursuant to Article 31(4) of the Vienna Convention, because the participants to the ITA "intended to 
limit the scope of Attachment A to the HS1996 Nomenclature".338 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.  
7.72.   In our view, the reference in this provision t o "the parties" includes all parties to a treaty, and 
not some  of those parties.339 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. Mor eover, 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 terms (including the terms set forth in India's WTO Schedule). We 
therefore consider that the present cir cumstances do not satisfy the requirements of Article 31(4), 
since the ITA does not express the intentions of the parties to the WTO Agreement.  
7.73.   For these reasons, we see no basis to interpret India's WTO Schedule differently to how we 
would interpret the Schedule of a WTO Member who was not  a participant in the ITA. Consequently, 
 
337 India's first written submission, para. 102 (quoting ITA, Annex: Modalities and Product Coverage, 
para. 3).  
338 India's second written submission, para . 49. Aspects of India's arguments in this regard frame its 
invocation of Article 31(4) as concerning the special meaning that the participants in the ITA allegedly intended 
to attribute to the ITA. For the reasons explained above, we do not consider the ITA to set forth India's legal 
obligations, and, hence, we do not need to assess whether the participants in the ITA intended to ascribe a 
special meaning to certain terms in that agreement. Nevertheless, we understand that India's references to 
Article 31(4) may also be read as advocating an interp retation 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 sche dules", and 
that the ITA "was a sui -generis instrument with commitments over a limited scope of products and required 
those  commitments to reflect in the relevant tariff sub -headings of the schedule of concessions of parties." 
(India's opening statement at  the second meeting  of the Panel , paras. 34 -35 (emphasis original)). It would 
seem to follow that if India considers that the parties to the ITA intended for a special meaning to be ascribed 
to the terms of the ITA, pursuant to Article 31(4) of the Vienna Convention, and India considers that the terms 
of the ITA limits the terms of its WTO Schedule, then, in India's view, the terms of its WTO Schedule are also 
subject to a special meaning intended by the parties, pursuant to Article 31(4) of the Vienna Conv ention. For 
the sake of comprehensiveness, we address this issue hereunder.  
339 The plain language of Article 31(4) refers to "the parties" and not "some" or "certain" of the parties 
to the treaty. We also note that Article 41 of the Vienna Convention concer ns "[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 
langu age 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 "special meaning" to a term in that treaty. These two 
provisions should not be conflated. Moreover, the existence of Article 41 s uggests that Article 31(4) is not a 
mechanism through which some parties to a treaty can modify the treaty for all parties to the treaty.  WT/DS588/R  
 
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  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.  
7.74.   India argues that Members' intentions to maintain a static product scope for the ITA is 
demonstrated by the content of the ITA itself, various subsequent practice of the participants in the 
ITA, and the product scope of the ITA Expansion. Regarding the 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 the future will be included in the product scope of the ITA[]".340 India also 
refers to paragraph 3 of th e Annex to the ITA, which states that "[p]articipants shall meet periodically 
under the auspices of the Council on Trade in Goods to review the product coverage specified in the 
Attachments, with a view to agreeing, by consensus, whether in the light of te chnological 
developments, experience in applying tariff concessions, or changes to HS nomenclature, the 
Attachments should be modified to include additional products."341 Regarding the subsequent 
practice of the participants in the ITA, India argues that "v arious 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".342 Regarding 
the ITA Expansion, I ndia 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.343  
7.75.   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 obligations 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.  
7.76.   Similarly, the statements and pronouncements referred to by India as relevant "subsequent 
practice" relate to the  ITA, and not to the content of India's WTO Schedule. If we were to take into 
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 is legally  incorrect. ITA 
participants may debate the scope and content of their obligations under the ITA. However, even 
assuming that those debates constitute "subsequent practice" to the ITA – an issue on which we 
refrain from taking any position – they do not co ncern 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 WTO Members.  
7.77.   Having said th at, 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, i n fact, that the 
negotiating history of the ITA Expansion suggests that there is indeed such an overlap of products.344 
We do not consider it necessary, for purposes of resolving this dispute, to enter into the question of 
which products are covered by the ITA as compared to the ITA Expansion. We simply note that it 
does not necessarily follow that the fact that a product is covered by the ITA Expansion implies that 
such product did not already fall within the scope of the ITA itself (or, more importantly, t he 
concessions set forth in relevant Members' WTO Schedules).  
 
340 India's first written submission, para. 100. 
341 India's first written submission, para. 10 2 (quoting ITA, Annex, para. 3) . 
342 India's second written submission, para. 63.  
343 See e.g. India's first written submission, para s. 141-149; opening statement at the second meeting 
of the Panel, paras. 39 -41; response to Panel question No. 40, para.  21.  
344 Document G/IT/SPEC/15 contains a compilation of "Proposed Additions to Product Coverage: 
Compilation of Participants' Submissions", and notes that for certain proposed tariff items  to be included in the 
ITA Expansion, "part of the tariff line is already c overed in the ITA". (Proposed Additions to Product Coverage: 
Compilation of Participants' Submissions, G/IT/SPEC/15, p. 1).  We note India's argument that this document 
"was issued during the negotiations under 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. 48). Given that India itself indicates that " the negotiations were 
relaunched", we do not  see why India considers that this document "is not a part of the negotiating history of 
ITA Expansion". (Ibid.).  WT/DS588/R  
 
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  7.78.   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 relevant for 
interpreting the tariff concessions at issue in this dispute".345 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 the ITA. The application of  Articles 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 existe nce 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.346  
7.79.   We understand that India relies on the ITA as context to interpret its WTO Schedule 
specifically to show that the concessions set forth in its WTO Schedule cover products that were not 
covered by the ITA. In our view, to the extent that a product is, on it s 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 arguments invoking the ITA as "context" for purposes of interpreting its 
Schedule are focused on replac ing 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 con sider 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.  
7.80.   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 interpretation set forth in Article 31 of the Vienna 
Convention. For the reasons articulated above, w e 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.347 
7.3.2.4   Conclusion  
7.81.   We have addressed above India's contentions that the ITA is the source of India's legal 
obligations in this dispute. We disagree. We have also addressed above whether the ITA modifies or 
limits the scope of India's WTO tariff commitments set forth in its WTO Schedule. Without taking a 
position on whether the scope of India's concessions under the ITA is "static" in nature, we consider 
that the ITA cannot overwrite the tariff commitments set forth in India' s WTO Schedule (which are 
not static in nature). We therefore proceed to apply Articles II:1(a) and (b)  by comparing, on the 
one hand, the tariff treatment accorded by India to certain products, and, on the other hand, India's 
WTO tariff 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.348  
 
345 India's response to Panel question No. 4, para. 18. We note the finding of the panel s in EC – IT 
Products that the ITA "may serve as context  within the meaning of Article 3 1(2)(b) of the Vienna Convention 
for the purpose of interpreting tariff concessions ". (Panel Report s, EC – IT Products , para. 7.383). The panel s 
in that dispute considered that the ITA represented an instrument "made by one or more parties in connection 
with the conclusion of the treaty". (Ibid. para. 7.384) . 
346 See para. 7.64 above.  
347 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 leg al question, below. (See  section  7.3.3.2.3.5  below).   
348 In addition to the foregoing arguments regarding the ITA, India also raises the ITA in the context of 
arguin g that certain aspects of its WTO Schedule are invalid pursuant to Article 48 of the Vienna Convention. 
Moreover, India considers the ITA to be relevant in relation to  its request for findings concerning its 
rectification request under the 1980 Decision. W e address these arguments below. (See sections 7.3.3 -7.3.4 
below).  WT/DS588/R  
 
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  7.3.3   Article 48 of the Vienna Convention  
7.3.3.1   Introduction  
7.82.   As described in sect ion 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 tran spositions 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".349 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 2013, 
communicated to India via email the draft files for the HS2007  transposition of India's Schedule.350 
Following receipt of the draft transposition files prepared by the WTO Secretariat, India provided 
comments on the draft files.351 The Secretariat then communicated a revised file to India for 
approval.352 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.353 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.354   
7.83.   India submits that, at the time of the transposition of its WTO Schedule to the HS2007, it had 
understood that the scope of its tariff concessions would not be expand ed 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 contends that it "was not put on clear 
notice (via WTO communication  or otherwise) as to the exact changes being effected due to the 
increased product complexity of the ITA product coverage via the contested sub -headings".355 India 
argues that Article 48 of the Vienna Convention is an applicable rule of law which codifies t he 
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 the time of giving 
its consent it was under a misapprehension relati ng to the subject matter of the treaty".356 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 
technicalities invoked by" the complainant.357 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.358 India submits that since the 
contested tariff items  are invalid, they are "rendered unbound".359  
7.84.   Chinese Taipei argues that Article 48 of the Vienna Convention is  not applicable in WTO 
dispute settlement.360 Chinese Taipei also considers that the present circumstances fail to satisfy 
the substantive requirements of paragraphs 1 and 2 of Article 48. Specifically,  Chinese Taipei argues 
that the alleged error does not relate to a "fact or situation" within the meaning of Article 48(1) .  
Chinese Taipei further argues that , in any event, India cannot avail itself of Article 48(1) because 
India contributed by its own conduct to the error and the circumstances were such as to put India 
 
349 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.  
350 Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50).   
351 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 -51)).   
352 India's response to Pa nel question No. 19, para. 61.  
353 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India, 
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.  
354 Committee on Market Access, Rectification and Modification o f Schedules, Schedule XII – India, 
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015, as certified in WT/Let/1072, effective 
12 August 2015; India's response to Panel question No. 19, para. 61.  
355 India's first written submission, fn 107 to para. 66.  
356 India's first written submission, para. 5 6. 
357 India's second written submission, para. 5 . 
358 India's first written submission, paras. 8 7-91. 
359 India's first written submission, para. 92. 
360 Chinese Tai pei's second written submission, paras. 3.6 -3.11. WT/DS588/R  
 
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  on notice of a possible error, within the meaning of Article  48(2).361 Chinese Taipei also considers 
that India has not demonstrated that the requirements of Articles 44 and 45 of the Vienna 
Convention are satisfied in the present proceedings.362  
7.85.   Article 48 of the Vienna Convention is titled "Error" and provides as follows:  
1. A State may invoke an error in a treaty as invalidating its consent to be bound by 
the treaty if the error relates to a fact or situation which was assumed by that State to 
exist at the time when the treaty was concluded and formed an essential basis of its 
consent to be bound by the treaty.  
2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to 
the error or if the circumstances were such as to put that State on notice of a possible 
error.  
3. An error relating only to the wording of the text of a treaty does not affect its validity; 
article 79 then applies.  
7.86.   A Commentary on the Vienna 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".363 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".364  
7.87.   Paragraph 1 of Article 48 sets out the essential criteria that must be satisfied in order for a 
State to claim that its consent to be bound by a treaty was invalid due to an error related to a fact 
or situation, including the requirements that the error both (i) was assumed to exist by the State in 
question at the time when the treaty was concluded, an d (ii) formed an essential basis for its consent 
to be bound. Paragraph 2 establishes that, in certain circumstances, a State cannot invoke error as 
a ground for invalidating its consent to be bound, even if the requirements of paragraph 1 are 
satisfied. S pecifically, the State in question cannot take advantage of paragraph 1 if (i) it has 
"contributed by its own conduct to the error" or (ii) the circumstances were "such as to put that 
State on notice of a possible error".  
7.88.   We understand that the requirement s of paragraphs 1 and 2 are cumulative – if any of the 
requirements of either paragraph are not satisfied, then a party's invocation of error under Article  48 
fails. Paragraph 3, which distinguishes Article 48 from Article 79 of the Vienna Convention, is n ot 
relevant in the present dispute.365  
7.89.   A threshold issue concerns whether Article 48 of the Vienna Convention constitutes an 
applicable rule of law that can be invoked in WTO dispute settlement. The applicability of Article 48 
 
361 Chinese Taipei's opening statement at the first meeting  of the Panel , paras. 20 -28; second written 
submission, paras. 3.12 -3.30. 
362 Chinese Taipei 's response to Panel question No. 66, paras. 15-20.  
363 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties , 2nd edn (Springer, 2018) , (Exhibit IND -14), p. 879.  
364 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of 
Treaties , 2nd edn (Springer, 2018),  (Exhibit IND -14), p p. 879-880. (emphasis omitted)  
365 Having said that, we note, without further comment, that India's argument that the errors set forth 
in its Schedule are merely "formal errors", such that objections to its rectification request were unfounded (see 
section 7.3.4 below), is difficult to reconcile with India's reliance on Article 48 of the Vienna Convention, which 
explicitly indicates in Article 48(3) that errors relating only to the wo rding 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 V CLT 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).  WT/DS588/R  
 
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  is contested by the parties, as well as several of the third parties.366 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 inte rnational law .367 
In our view, it would only be necessary for us to take a position on this issue if it is the case that 
the substantive requirements of Article 48 are indeed satisfied. If the substantive requirements of 
Article 48 are not satisfied, then i t is a moot question whether Article 48 is an applicable rule of law 
in WTO dispute settlement. We therefore defer addressing the question of applicability until after we 
have examined  the substantive requirements of Article  48. A similar approach has been  taken by 
several previous panels.368  
7.90.   We also note the parties' disagreement concerning Article 45 of the Vienna Convention.369 
Article  45 concerns the loss of a right to invoke a ground for, inter alia , invalidating the operation of 
a treaty.370 The parties  contest whether, even assuming that 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 the issue of Article 48's applicability, we consider that it would only be necessary to address 
the applicability and application of Article 45 if we were to conclude that the substantive 
requirements of Article 48 are sati sfied and that Article 48 is applicable in WTO dispute settlement.  
7.91.   We further observe the parties' disagreement regarding Article 44 of the Vienna 
Convention.371 We understand that under the structure and logic of the Vienna Convention, if the 
cumulative r equirements of Articles 45 and 48 are 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 .372 In the present case, the 
 
366 See e.g. India's response to Panel question No. 16, paras. 4 7-53 and second written submission, 
paras. 1 5-18; Chinese Taipei's second written submission, paras. 3 .6-3.11; European Union's third -party 
response to Panel question No. 11,  para. 42 ; Japan's third-party response to Panel question No. 11, para. 3 8 
and third-party statement, paras. 15 -20 and 25; Korea's  third-party response to Panel question No. 17, paras. 
7-9 and third-party submission, para s. 11-12; and United States' third -party submission, para s. 42-43.  
367 See Panel Report, Korea – Procurement , para. 7.123 . In Korea – Procurement , the panel found that 
"international law applies to the extent that the WTO treaty agreements do not 'contract out' from it" and that 
"to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies 
differently, we are of the view that the customary rules of international law apply to the WTO treaties and to 
the process of treaty formation under the WTO". ( Ibid. para. 7.96) . The panel further stated that "the 
relationship of the WTO Agreements to customary international law is broader than" indicated in Article 3.2 of 
the DSU. (Ibid.) .  
368 For example, in Russia – Tariff Treatment , the panel noted the substantive requirements of Article 79 
of the Vienna Convention, and concluded that there was "no need … to examine whether Article 79 applie[d] in 
this dispute" since, in the circumstances, there was "no basis on which the alleged error in Russia's Schedu le 
could be considered to have been corrected under either paragraph of Article 79". (Panel Report, Russia – 
Tariff Treatment , para. 7.55) . Similarly, in India – Autos , the panel considered that "the potential relevance of 
the notion of res judicata  to this case would only arise if its commonly understood conditions of application 
were met on the facts". (Panel Reports, 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) .  
369 See e.g. India's first written submission, paras. 80 -86; Chinese Taipei's response to Panel question 
No. 66, paras. 19 -20. 
370 Article 45 of the Vienna Convention is titled "Loss of a right to invoke a ground f or 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 expressly agreed that the treaty is valid or remains 
in force or continues in operation, as the case may be; or (b) it must by reason of its conduct be 
considered as havin g acquiesced in the validity of the treaty or in its maintenance in force or in 
operation, as the case may be.  
371 See e.g. India's first written submission, paras. 87 -92; Chinese Taipei's response to Panel question 
No. 66, paras. 16 -18.   
372 Article 44 of th e Vienna Convention, titled "Separability of treaty provisions", sets out in its second 
paragraph the general principle that "[a] ground for invalidating, terminating, withdrawing from or suspending 
the operation of a treaty recognized in the present Conve ntion may be invoked only with respect to the whole 
treaty except as provided in the following paragraphs or in article 60."  WT/DS588/R  
 
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  alleged error concerns India's WTO Schedule, which is annexed to the GATT 1994, which in turn 
forms part of the broader package of covered agreements constituting, as a whole, the WTO 
Agreement.373 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 th e whole", and therefore only specific tariff items  of India's WTO Schedule would 
need to be invalidated.374 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 n ecessary for us to 
address the applicability and application of Article 44(3) if we were to conclude in India's favour with 
respect to the substantive requirements of Article 48, and the applicability of that Article, as well as 
the applicability and appli cation of Article 45.  
7.92.   We therefore  assess the parties' arguments regarding , in turn, Article s 48(1) and (2).  
7.3.3.2   Article 48(1)  
7.3.3.2.1   Main arguments of the parties  
7.93.   India argues that certain tariff items  in its WTO Schedule are invalid, and therefore unbound, 
because it "was in error as to the scope of the contested sub -heading commitments in the 2007 
Schedule, at the time of its certification, as a result of the complex nature of the HS2002 to HS2007 
transposition".375 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[]".376 India argues that this is "bec ause … it 
never intended on joining the [ITA Expansion] and made several pronouncements regarding the 
same".377 India provides considerable argumentation seeking to demonstrate that its commitments 
as set forth in its certified WTO Schedule cover products t hat are not covered by the ITA.378 India 
considers that its error "in relation to the material scope of the commitments under the contested 
sub-headings at the time the 2007 Schedule was certified" is a "fact or a situation" within the 
meaning of Article 48 (1), because the word "situation" covers "the overall condition or circumstance 
prevailing at a particular time".379 India notes that "a leading commentary … observes that 'Article 
48 does not exclude mixed questions of fact and law and the line between one  and the other may 
not always be easy to draw'".380 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".381  
7.94.   Chinese Taipei argues that Article 48(1) does no t cover errors o f law, which arise " when a 
party holds a mistaken view as to 'the applicable rule of international law, or to the alleged right of 
a State in a particular case'".382 Chinese Taipei argues that India has not demonstrated that the 
alleged erro r, concerning the "material scope of the commitments under the contested sub -headings 
 
373 See Article II:2 of the WTO Agreement.  
374 India's first written submission, para. 88. 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.  
375 India's first written submission, para. 5 8. 
376 India's first written submission, para. 64. 
377 India's first written submission, para. 6 4 (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 also ibid. para. 60 and fn 9 6 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).  
378 India's first written submission, section IV.  
379 India's response to Panel question No. 46, para. 30. 
380 India's response to Panel quest ion No. 46, para. 31  (quoting M.  E. Villiger, Commentary  on the 1969 
Vienna Convention on the Law of Treaties (Martinus Nijhoff, 2009), (Exhibit IND -13), p. 608 ). 
381 India's response to Panel question No. 46, para. 31.  
382 Chinese Taipei's opening statement a t the first meeting  of the Panel , para. 21 (quoting M.  E. Villiger, 
Commentary on the 1969 Vienna Convention on the Law of Treaties  (Martinus Nijhoff, 2009), (Exhibit IND -13), 
p. 608, para. 11) . WT/DS588/R  
 
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  at the time its 2007 Schedule was certified", constitutes an error relating to a fact or situation.383 
Chinese Taipei further submits that India "has not shown that there was an error relating to a fact 
or situation with respect to the transposition of its Schedule from the HS2002 nomenclature to the 
HS2007 nomenclature".384 Chinese Taipei submits that "all of the products at issue were covered by 
India's duty -free concessio ns inscribed in its Schedule based on HS1996"385, and "the various 
transpositions were made with the assistance of the WTO Secretariat, and they were approved by 
India and verified by the entire WTO Membership" and "[i]t is clear that no error occurred".386  
7.3.3.2.2   Main arguments of the third parties  
7.95.   Brazil considers that "the 'material scope of commitments' resulting from [HS] transpositions 
is a 'fact' or 'situation' in relation to which a State could hypothetically be in error."387 Brazil refers 
to the complex nat ure 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".388 Brazil also states that "th e 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".389  
7.96.   Canada argues that "it is possible that t he certification of India's 2007 Schedule could be 
considered the conclusion of a treaty and, further, that a State's understanding as to the scope of 
its tariff concessions prior to certification of its Schedule could qualify as a 'fact or a situation … 
assumed by that State to exist at the time' within the meaning of Article 48."390 Canada considers 
that "the 'fact or situation' allegedly assumed by India here … captures the products at issue, the 
terms used to accurately describe them, and the context sur rounding 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".391 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."392 
7.97.   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 falls squarely outside the scope of Article 48.1 of the VCLT. "393 
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 th e 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 ".394 
7.98.   Japan argues that India has failed  to demonstrate that the present circumstances satisfy the 
requirements of Article 48(1) because: (i) India has failed to demonstrate the existence of an error, 
since the transposition to the HS2007 merely transposed existing commitments without changing 
the scope of those concessions; and (ii) India failed to demonstrate that a material error related to 
a "fact or situation" exists.395 Japan considers that "[t]here was no error because India's tariff 
concessions as included in its Schedule which was certifi ed in 1997, after the conclusion of the ITA[], 
 
383 Chinese Taipei's opening statement at the first meeting  of the Panel , paras. 22 -25 (quoting India's 
response to Panel question No. 15, para. 36).  
384 Chinese Taipei's opening statement at the first meeting  of the Panel , para. 2 3.  
385 Chinese Taipei's opening statement at the second meeting  of the Panel , para. 7.  
386 Chinese Taipei's opening statement at the first meeting  of the Panel , para. 24.   
387 Brazil's third -party response to Panel question No. 16, para. 4.  
388 Brazil's third -party response to Panel question No. 16, para. 7.  
389 Brazil's third -party submission, par a. 21 (referring to  International Court of Justice (ICJ),  Case 
concerning the  Temple of Preah Vihear (Cambodia v. Thailand) , Merits, Judgment of 15 June 1962: ICJ Reports 
1962, p. 6;  ICJ, Kasikili/Sedudu Island (Botswana v. Namibia) , Judgment of 13 Decembe r 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). 
390 Canada's third -party response to Panel question No. 16, para. 3.  
391 Canada's third -party response to Panel question No. 16, para. 5.  
392 Canada's third -party response to Panel q uestion No. 17, para. 7.  
393 European Union's third -party statement, para. 8.  
394 European Union's third -party statement, para. 6.  
395 Japan's third -party statement, paras. 22 -23.  WT/DS588/R  
 
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  already covered the products at issue."396 Japan considers that this "is demonstrated by the 
correlation tables between the HS 2002/HS 1996 and the HS 2007 which were prepared by the 
secretariat of the WTO ('WTO Secretariat') and circulated to the WTO Members."397 Japan also 
submits that "[a]n erro r regarding the scope of a tariff commitment clearly does not concern 'a fact 
or situation' since it relates to the scope [of] a treaty provision".398 
7.99.   Korea argues that it is clear from India's statements that India's alleged error does not seem 
to involve an error relating to a "fact or situation", and relates, instead, to the scope of India's 
obligations or commitments under its Schedule.399 Korea argues that "the scope of a Member 's 
commitment cannot be 'the existence of a fact'" but rather "is a legal que stion which requires 
interpretation of the treaty provision".400  
7.100.   The United Kingdom agrees with Brazil that Article 48 establishes a very high threshold for 
demonstrating that a party's consent to be bound by a treaty was in error.401 
7.101.   The United States argu es 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'".402 The United States notes India's characterization of the error "as con cerning 
'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[]'".403  
7.3.3.2.3   Panel's assessment  
7.3.3.2.3.1   General considerations  
7.102.   Article 48(1) indicates that:  
A State may invoke an error in a treaty as invalidating its consent to be bound by the 
treaty if the error relates to a fact or situation which was assumed by that State to exist 
at the time when the treaty was concluded and formed an essential basis of its consent 
to be bound by the treaty.  
7.103.   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.  
7.104.   It is uncontested that the burden of demonstrating that the requir ements of Article 48(1) 
are satisfied in a given case rests on the party invoking Article 48.404 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 t ariff commitments beyond those set forth in the ITA, while, according to India, 
such expansion did in fact occur.  
7.105.   Thus, in order for India to prevail under Article 48(1), India must demonstrate that: (i) at 
the time when the changes to its WTO Schedule we re 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 
 
396 Japan's third -party response to Panel question No. 16, para. 10. (footnote om itted)  
397 Japan's third-party response to Panel question No. 16, para. 10. (footnotes omitted)  
398 Japan's third-party response to Panel question No. 16, para. 11.  
399 Korea's third -party submission, para. 13.  
400 Korea's third -party response to Panel question No. 16, para. 6.  
401 United Kingdom's third -party statement, para. 14.   
402 United States' third -party response to Panel question No. 16, para. 9.  
403 United States' third -party response to Panel question No. 16, para. 9 (quoting India's first written 
submission, para. 58). 
404 Chinese Taipei's  second written submission, para. 3.5  ("India is invoking Article 48, and therefore, it 
has the burden of proof to demonstrate it made an error under Article 48(1) "); India's response to Panel 
question No. 17, para. 57 ("the party invoking error bears the burden of proving that the conditions u nder 
Article 48(1) have been met").   WT/DS588/R  
 
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  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 commi tments 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  
7.106.   The first element of the test under Article 48(1) requires the invoking party to demonstrate 
that, at the time when the treaty was concluded, it made a certain assump tion. 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[]".405 We therefore proceed to assess  whether India held this assumption . 
7.107.   India argues that the existence of its assumption is demonstrated by the fact that, at the 
time of the certification of the changes to the Schedule, "India had already made its intention clear 
of not expanding its obligations under the ITA [] via the HS2007 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 wa s entering into at the same 
time via the HS2007 transposition".406 India refers to "several pronouncements" made by India 
indicating that India did not intend to join the ITA Expansion.407 India submits that, "[c]learly, India's 
intent was never to expand up on 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."408  
7.108.   Chinese Taipei notes that " India's statements in the two meeting s of the Committee of 
Participants on the Expansion of Trade in Information Technology Products … dated 15 May 2012 
and 1 November 2012 simply confirm that India did not want to join, and in fact, did not join " the 
ITA Expansion .409 Chinese Taipei further n otes that "India also does not cite to any other Committees 
in which it stated that it was only willing to be bound by its transposed Schedule to the extent that 
the transposed Schedule did not expand the scope of its concessions as set forth in the ITA[]" .410  
7.109.   We note at the outset that the evidence adduced by India does not conclusively indicate 
that, at the time of the transposition, it assumed that the scope of its WTO tariff commitments would 
not be expanded beyond the scope of its ITA undertakings. Ind ia points primarily to the following 
passage from the Minutes of the meeting held on 1 November 2012411: 
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 e ffects of ITA 
was well known as articulated during the symposium in May. India's IT manufacturing 
had dipped quite profusely due to the ITA I. In the spirit of constructiveness, India had 
conducted stakeholder consultations around the country. The general concern was the 
relevance of many of the IT products or the ICT sector. The consolidated list 
(JOB/IT/7/Rev.1) could create an inversion in the duty structure, the multiple -use of 
many products and the difficulty in monitoring at the customs level for many  of the 
products which had multiple -use. He informed the Committee about his government's 
national electronics policy with ambitious targets in terms of manufacturing in the 
electronics sector, as well as the overall manufacturing sector of the country. As  a result, 
stakeholders had expressed serious reservations and he wanted to place these 
reservations on record.412 
 
405 India's first written submission, para. 2 8.  
406 India's first written submission, para. 6 5.  
407 India's first written submission, para. 6 4.  
408 India's first written submission, para. 6 5.  
409 Chinese Taipei's comments on I ndia's response to Panel question No. 70, para. 21.  
410 Chinese Taipei's comments on India's response to Panel question No. 70, para. 22.  
411 India's first written submission, fn 94 to para. 58, fn 96 to para. 60, fns 102-104 to paras. 6 4-65, 
fn 108 to para. 6 7, fn 1 15 to para. 7 1, and fn 220 to para. 14 4. 
412 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.  WT/DS588/R  
 
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  7.110.   We understand that the "technical discussions" referred to in this passage concerned a 
review of the product coverage of the ITA. In our view,  these Minutes reveal that India had 
"reservations" regarding increasing the product scope of the ITA . We see no mention of India's WTO 
tariff commitments, the HS2007 transposition process or any indication of India's intentions with 
respect to that proces s.  
7.111.   India also refers to the following passages of the Minutes of the meeting held on 15 May 
2012413:  
1.5  The representative of India thanked the Chairman for his report on the IT 
Symposium and requested that his country 's name be removed from the sentenc e 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 Committee would need to take in to 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 wondered whether there were an y 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 Decision. 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 that only tariffs should be addressed. On NTBs, he wanted 
to know whether any of the ITA Participants were looking at disciplining standards on 
IT products which he thought was a very critical area for NTBs and which were really 
the fundamental market access barriers to these product s. The applied tariffs were not 
so substantial as so to create those market access barriers and many companies were 
managing to export their products. On the issue of classification divergences, he said 
that it was an issue that comprised 55 products and h ad 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 actually 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 there was a decision which cam e out later on the 
implementation of the Ministerial Declaration, G/L/160. In his view, it talked about the 
mandate of this particular Committee as well as the fact that the first review would be 
conducted in 1997 and 1998. However, there were no procedure s in place for 
subsequent reviews. Thus he wished to have some clarification from the Secretariat on 
this.414 
7.112.   Paragraph 1.5 of these Minutes appears to suggest that India did not share the feeling of 
some other Members that they had enjoyed certain economic  benefits from participating in the ITA. 
This paragraph does not suggest that India assumed, at the time of the transposition of its WTO 
Schedule, that the transposition to the HS2007 would not expand the scope of its WTO tariff 
commitments beyond the scop e of its ITA undertakings.  
7.113.   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 products, which had not been r esolved 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 actually solved the 
 
413 India's first written submission, fn 9 6 to para. 60. 
414 Committee of Participants on the Expans ion of Trade in Information Technology Products, Minutes of 
the meeting held on 15 May 2012, G/IT/M/55, paras. 1.5 and 3.11.  WT/DS588/R  
 
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  problem in t he first place".415 This passage indicates to us that India was fully aware of differences 
of opinion among the Members regarding the HS classification of certain ITA products. It does not 
indicate to us that India assumed that the transposition of its Sche dule would not expand the scope 
of its WTO tariff commitments beyond the scope of its ITA undertakings.   
7.114.   We also note India's argument that its understanding and intentions with respect to its 
Schedule were clear from the fact that, as from 2014, prior to  the certification of the changes to the 
Schedule, India had already begun levying duties on certain products that fall under the contested 
tariff items . In our view, however, this argument is partially undermined by the fact that, prior to 
2014, India had  indeed been according duty -free treatment to almost all products at issue in this 
dispute .416 Moreover, we understand that the majority of products at issue in this dispute continued 
to receive duty -free treatment until as recently as 2017 (and 2018 in the  case of some products).417  
7.115.   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.418 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 to demonstrate that they 
committed an "error" in agreeing to be bound by that treaty. We therefore do not consider that 
India's application of duties to certain products at issue in this dispute demonstrates that, at the 
time when the changes to its WTO Schedule were certified follow ing 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.  
7.116.   Notwithstanding our reservations regarding the evidence adduced by India, we recognize 
that evi dence of an "assumption" may be difficult to obtain. To the extent that such an assumption 
is a widely held implicit understanding, there may be little to no documentary evidence. We therefore 
do not consider India's lack of documentary evidence sufficient  to conclude that India has not met 
its burden of proof with respect to the existence of its assumption. We also note India's arguments 
and assertions in the course of these proceedings regarding the assumptions it held during the 
transposition process.419  
7.117.   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, wi th respect to those tariff commitments adopted by India in order to implement its 
ITA undertakings, and that the scope of those tariff commitments would not be expanded through 
the HS2007 transposition process.420 
 
415 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of 
the meeting held on 15 May 201 2, G/IT/M/55, para. 3.11.  
416 See Chinese Taipei's first written submission, para. 3.29 and section 4. See also European Union's 
third-party submission, paras. 67 -68; and Japan's third -party submission, paras. 18, 33, 42, 49, 56, and 63.  
417 Chinese Taipei's  first written submission, paras. 4.15-4.19, 4.32-4.36, 4.45-4.55, and 4.63 -4.76. 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 exercise, India was naturally free to apply 
duty-free treatment if it so wished. Nevertheless, the fact that India applied duty -free treatment to the 
overwhelming majority of the products at issue in this dispute until 2017 does undermine its assertion tha t its 
application of duties as from 2014 demonstrates its assumption regarding the transposition process.  
418 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.  
419 See e.g. India's first written submission, para. 64; and opening statement at the second meeting  of 
the Panel , para. 23.  
420 In coming to this conclusion, we note that the appli cation of the legal standard under Article 48 not 
only requires that the invoking party held an assumption, but requires the invoking party to demonstrate that 
such assumption constituted an essential basis for its consent. (See section 7.3.3.2.3.4  below). In our view, 
this latter question imposes an additional evidentiary burden on the invoking party, over and above 
demonstrating that they made an assumption. It therefore follows, in our view, that taking India at its word 
with respect to this firs t step of the analysis does not alleviate India from its evidentiary burden under 
Article  48.  WT/DS588/R  
 
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  7.3.3.2.3.3   Whether India's assumption regarding the al leged expansion of its WTO tariff 
commitments from its ITA undertakings relates to a "fact or situation" within the meaning 
of Article 48(1)  
7.118.   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 fa ct or situation" 
within the meaning of Article 48(1).  
7.119.   India argues that "the difficulty in articulating a workable distinction between errors of law 
and errors of fact has been evident from as early as the drafting of the VCLT".421 According to India, 
"[t]hat a mistaken 'fact or situation' may have legal consequences (as indeed all contested errors 
would) does not make the error a legal error".422 India submits that its "factual or situational error 
was in relation to the inadvertent expansion of the scope o f its commitments via the 2007 
transposition, which was contrary to India 's stated position and intent of not expanding upon its 
ITA[] commitments".423 In India's view, "similar errors relating to technical entries have previously 
been considered as a poten tial ground for invalidity in international law."424 
7.120.   Chinese Taipei argues that a n error "'relat[ing] to a fact or situation' within the meaning of 
Article 48(1) does not cover 'errors of law'".425 Chinese Taipei submits that India has not explained 
how its error in relation to the material scope of the commitments under the contested tariff items  
constitutes an error relating to a fact or situation, within the meaning of Article 48(1).426 Chinese 
Taipei considers that "a mistaken view as to the 'material scope of the commitments' under the tariff 
concessions at issue … is an error of law, and is not covered by Article 48(1) of the Vienna 
Convention".427  
7.121.   We note that India does not dispute that purely  legal errors (for instance, a mistaken 
interpretation of a legal obligation contained in a treaty) do not  qualify as errors relating to a fact or 
situation, within the meaning of Article 48(1).428 Indeed, we agree with the parties that pure legal 
error fal ls outside the scope of Article 48(1).429 At the same time, we recognize that a Commentary 
 
421 India's response to Panel question No. 46, para. 3 1. See also India's second written submission, 
paras. 7 and 20 -22. 
422 India's second written submission, para.  22. See also India's response to Panel question No. 46, 
para. 32. 
423 India's second written submission, para. 22.  
424 India's response to Panel question No. 46, para. 32.  
425 Chinese Taipei's opening statement at the first meeting  of the Panel , para. 21 (ref erring to M. E. 
Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties  (Martinus Nijhoff, 2009), (Exhibit 
IND-13), p. 611, para. 14; T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna 
Convention on the Law of Treatie s, 2nd edn (Springer, 2018) , (Exhibit IND -14), pp. 886 -888, paras. 19 -20; 
Commentary (6) to Article 45 of the Draft Articles on the Law of Treaties with commentaries 1966, YBILC 1996 
II 187, 244 ;  ICJ, Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) , Preliminary Objections, 
Judgment of 26 May 1961: ICJ Reports 1961, p. 17 , at p. 30 ; PCIJ, Legal Status of Eastern Greenland 
(Denmark v. Norway) , Judgment of 5 September 1933: PCIJ (ser. A/B) No. 53 , at p. 73; and PCIJ, Legal 
Status of Eastern Greenland (Denmark v. Norway) , Dissenting Opinion by M. Anzilotti, PCIJ (ser. A/B) No. 53, 
at pp. 76 and 92 ).  
426 Chinese Taipei's opening statement at the first meeting  of the Panel , paras. 22 -23.  
427 Chinese Taipei's  opening statement at the fir st meeting  of the Panel , para s. 21 and 25 .  
428 See e.g. India's second written submission, paras. 21-22; response to Panel question No. 46. 
429 The principle that errors of law fall outside the scope of Article 48(1) is outlined in the Commentary 
on the Vienn a 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 PCIJ Legal Status of Eastern Greenland  PCIJ Ser 
A/B No 53, 22 (1933); Petroleum Development (Trucial Coast) Ltd v Sheikh of Abu Dhabi  (1951) 18 ILR 144; 
and ICJ, Case concerning the  Temple of Preah Vihear (Cambodia v. Thailand) , Preliminary Objections, 
Judgment of 26 May 1961: ICJ Reports 1961, p. 17, at p. 30 ). WT/DS588/R  
 
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  to the Vienna Convention suggests that "[a]n error of law may … qualify as a ground for vitiating 
consent if it also raises questions of fact."430  
7.122.   We have concluded a bove that the ITA is not a covered agreement and does not set forth 
India's legal obligations at issue in this dispute. Thus, to the extent we take into account the ITA in 
this dispute, we do so as a factual matter. In our view, India's alleged error conce rns the scope of 
the tariff commitments contained in its WTO Schedule  and therefore  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 commitments in its WTO Schedule, and India's alleged error concerns the 
product scope of the ITA , it is not immediately clear to us that the alleged error can be characterized 
as either an exclusively legal error or alternatively as a mixed question of fact and law.  
7.123.   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 el ement under Article 48(1) 
(in section 7.3.3.2.3.4  below), we do not consider it necessary to make a determination as to 
whether India's alleged error relates to a fact or situation, 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 
HS2007 would not expand the scope of its WTO tariff commitments from its ITA 
undertakings formed an essential basis of Ind ia's consent to be bound by its WTO 
Schedule  
7.124.   The third element to be assessed under Article 48(1) is whether the invoking party's 
assumption formed an essential basis of the State's consent to be bound by the treaty. In this 
dispute, this entails assessing  whether India's assumption (i.e. that the scope of its WTO tariff 
commitments would not be expanded beyond the scope of its ITA undertakings) constituted an 
essential basis for its consent to be bound by its HS2007 Schedule.  
7.125.   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 had communicated to the 
wider WTO membership previously that it did not intend to expand its tariff commitments beyond 
those contained in the ITA[]".431 As evidence of these communications, India refers to the same 
evidence and arguments adduced to demonstrate the existence of its assumption, specifically 
"several pronouncements" made by India indicating that India did not intend to join the ITA 
Expansion .432 India argues that "[c]learly, India's intent was never to expand upon its obligations 
under the ITA[]  – with such intent having been communicated in advance via various committee 
meetings as well as confirmed in practice via certain customs tariff levi es."433 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 schedu le in error as it did."434 
7.126.   Chinese Taipei argues  that "India's statements in the two meetings of the Committee of 
Participants on the Expansion of Trade in Information Technology Products … dated 15 May 2012 
and 1 November 2012 simply confirm that India did  not want to join, and in fact, did not join the 
ITA [Expansion]".435  
7.127.   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  (Decision on HS2007 
 
430 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)  
431 India's second written submission, para. 24.  
432 India's first written submis sion, para. 6 4.  
433 India's first written submission, para. 6 5.  
434 India's response to Panel question No. 70, para. 31.  
435 Chinese Taipei's comments on India's response to Panel question No. 70, para. 21.  WT/DS588/R  
 
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  Transposition Procedures ).436 The General Council Decision further indicates certain procedural steps 
to be followed by the Secretariat. Specifically, the Secretariat had to "abide by the technical 
procedures described in Annex 2 to th[e] Decision".437 Annex 2 of th at Decision indicates, inter alia , 
that "[t]he transposition shall be based on the information provided by the [WCO], which is included 
in the WTO documents G/MA/W/67 and G/MA/W/76" and "[a] detailed concordance table between 
the HS2002 and the HS2007 nomenclatures shall be prepared by the Secretariat using these 
documents as the basis".438 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.439  
7.128.   We also note that, as part of the WTO Sec retariat's preparations for the transposition of 
developing country Members' Schedules, the Committee on Market Access approved document 
G/MA/283, titled "Transposition of Members' CTS Files to the HS 2007 Nomenclature – Notes on 
Methodology" (hereafter "d ocument G/MA/283").440 This document, in its introduction, explains that 
it "describes the guidelines that the Secretariat intend[ed] to follow for the implementation of the 
HS 2007 transposition" and "provides a detailed description of the methodology that  the Secretariat 
[would] follow in the HS 2007 transposition exercise".441 Furthermore, Annex I of document 
G/MA/283 contains the HS2002 to HS2007 correlation tables prepared by the WTO Secretariat, 
based on document G/MA/W/76, but updated to account for "[ f]urther amendments to the HS by 
the WCO".442  
7.129.   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, update d by the WTO 
Secretariat, and approved multilaterally by the WTO Members themselves at the General Council 
and the Committee on Market Access.443 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 
 
436 See e.g. India's first written submission, fn 5 4 to para. 3 8, fn 7 7 to para. 4 9, and fn 10 6 to para. 6 6; 
and Chinese Taipei's  first written submission, para. 3.10 and fn 15 thereto.  
437 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 5.  
438 General Council Decision on HS2007 Transposition Procedures, WT/L/673, Annex 2, para. 7.  
439 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;  
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 Procedures  contained in docume nt 
WT/L/673, which is referred to by the parties. (See e.g. India's first written submission, fn 106 to para. 66) . 
We therefore consider that the parties and the Panel were on notice of this document's potential relevance to 
the issues arising in this disp ute. Moreover, s ince document WT/L/673 is relied upon by the parties, and 
explicitly refers to document G/MA/W/76, we consider that, as a publicly accessible WTO document, document 
G/MA/W/76 is part of the official record. In our view, this approach accord s 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 WTO 
document was not spe cifically 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 be ar directly on the matters before them, simply 
because such documents were not raised by the parties to the dispute.   
440 Committee on Market Access, Transposition of Members' CTS Files to the HS 2007 Nomenclature – 
Notes on Methodology, approved on 26 April  2012, G/MA/283. We note that none of the parties referred to 
document G/MA/283 in their submissions to the Panel , until this document was raised by the Panel  in a 
question to the parties . It is, however, referenced numerous times in an Exhibit submitted t o the Panel by 
India. (See Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50), 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 439 to para. 7.127  above).   
441 G/MA/283, paras. 1 -2.  
442 G/MA/283, Annex I, fn 1 on p. 24.  
443 See WT/L/6 73, Annex 2, paras. 1 -7. See also G/MA/W/67; G/MA/W/76;  and G/MA/283.  WT/DS588/R  
 
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  HS2007.444 Since these procedures did not contemplate any kind of comparison or discussion of the 
ITA, we unders tand 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.  
7.130.   These documents indicate that, in the absence of any evidence to the contrary, In dia'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 these d ocuments governing the transposition 
process, including at the General Council and in the Committee on Market Access, without objection, 
indicated at the time to the WTO Members and to the WTO Secretariat (and indicates to us now) 
that India intended for t he transposition of its Schedule to follow those multilaterally approved 
procedures, including the relevant correlation tables.445  
7.131.   It is in this context that we observe India's assertion that "the WTO Membership, at large, 
including Chinese Taipei  could no t have been unaware of India's very public and unequivocal stance 
against the expansion of the ITA [] including the fact that it was already levying duties in derogation 
to the 2007 Schedule at the time of its certification".446 As evidence of its "persisten t expression of 
its stand to not be bound by commitments beyond the ITA [] via any process which would have such 
an effect", India refers to "several pronouncements" that it made.447 Specifically, India refers to the 
Minutes of two meetings of the Committee of Participants on the Expansion of Trade in Information 
Technology Products, held on 15 May 2012 and 1 November 2012.  
7.132.   We have reviewed the Minutes of these meetings in paragraphs 7.109  to 7.113  above. We 
see no indication in any of India's statements during those meetings that India's willingness to be 
bound by the changes to its WTO Schedule resulting from its transposition to the HS2007 Schedule 
was conditional on the product scope of that Schedule being limited to its undertakings under the 
ITA. A simple comparison of India's arguments in these dispute settlement proceedi ngs to the 
statements made by India during those meetings reveals no overlap. We therefore do not see any 
evidence of India's alleged "persistent expression of its stand to not be bound by commitments 
beyond the ITA [] via any process which would have such an effect".448 
7.133.   In our view, aspects of these Minutes indicate  that Members disagreed as to the tariff 
classification of product s falling under the ITA .449 Thus, India was on notice that there was a 
difference of opinion among ITA participants  regarding certa in 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 proce ss even more glaring, considering  its present assertion that this assumption 
constituted an essential basis for its consent to be bound by its transposed Schedule  to be bound by 
the changes to its Schedule .  
7.134.   We also note that in these dispute settlement pr oceedings India has not sought to 
demonstrate that any technical  errors occurred during the transposition process.450 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 the complex technical nature of the transposition".451 We address that issue further 
below.452 For our present purposes, however, we note India has not sought to demonstrate that t he 
 
444 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 th e [WCO] 
Secretariat", and "do not have legal status". (G/MA/W/76, p. 1) . (emphasis omitted)  
445 WT/L/673; G/MA/W/67; G/MA/W/76;  and G/MA/283.  
446 India's second written submission, para. 29.  
447 India's response to Panel question No. 70, para. 30; first writte n submission, para. 64 and fn 220 to 
para. 144 .  
448 India's response to Panel question No. 70, para. 30.  
449 This may be read from the statement by India's delegate to the effect that differences of opinion of 
classification "comprised 55 products and had not  been resolved for the past 15 years". (Committee of 
Participants on the Expansion of Trade in Information Technology Products, Minutes of the meeting held on 
15 May 2012, G/IT/M/55, para. 3.11) . 
450 See India's response to Panel question No. 70(b).  
451 India's first written submission, fn 107 to para. 66. 
452 See section 7.3.3.3.3.2  below.  WT/DS588/R  
 
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  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).  
7.135.   Thus, notwithstanding that the transposition wa s conducted  in accordance with the agreed -
upon correlation tables , India is (and asserts that it was at the time) unwilling to be bound by the 
transposed Schedule. India argues that it was only willing to be bound by its Schedule if the scope 
of its conces sions in the transposed HS2007 Schedule was no broader than the scope of its 
obligations in the ITA. In our view, if India had held such condition to be fundamental to its 
willingness to be bound by the outcome of the transposition process, it would have m ade this 
condition obvious. Indeed, as discussed in greater detail below, India had numerous opportunities 
to do so.453 Based on the evidence before us, we can see no point at which India made such a 
statement or otherwise expressed that intention.  
7.136.   We note that in support of its arguments under Article  48, India submits as evidence a Legal 
Opinion by Professor Waibel.454 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.  
7.137.   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 []".455 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 IC T 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 .  
7.138.   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, 
India's conduct throughout the transposition process indicates that such a condition was not an 
essential  basis of its consent. On the basis of the evidence before us , we consider that India has 
failed to satisfy its burden of demonstrat ing that its assumption (i.e. that the scope of its WTO tariff 
commitments would not be expanded beyond the scope of its ITA  undertakings) constituted an 
essential basis for its consent to be bound by its HS2007 Schedule.  
7.3.3.2.3.5   Whether India's assumption that its tariff commitments would not be 
expanded beyond the scope of its ITA undertakings was in error  
7.139.   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.  
7.140.   India argues that the scop e 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, 8517.62, 
and 8517.70 of its WTO HS2007 Schedule were not covered by the ITA.456 India explains that if it 
"never intended to undertake tariff commitments on ICT products beyond those contained in the 
ITA[] (with the commitments under the contested sub -headings being beyond those in the ITA[]) 
then India has only been consistent in its levy of customs duties exc ept for the inadvertent error in 
understanding the scope of [its] complex HS2007 transposition (unintentionally subscribing to 
 
453 See para. 7.206  below.  
454 Prof. M. Waibel, Legal Opinion on Error , (Exhibit IND -78). 
455 Prof. M. Waibel, Legal Opinion on Error , (Exhibit IND -78), para. 3 7.  
456 India's first written submission, paras. 6 8 and 9 3-219. WT/DS588/R  
 
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  obligations beyond those in the ITA[])".457 India also emphasizes that it never intended to undertake 
concessions with respect to products covered under the ITA Expansion, and that "[t]here were simply 
no negotiations or commitments undertaken by India with respect to products that are specifically  
covered within the ITA [Expansion]".458  
7.141.   Chinese Taipei argues that " [i]t is clear that no error occurred, and India has not shown 
otherwise."459 Chinese Taipei highlights that "India's Draft Schedule was prepared and submitted by 
India, the various transpo sitions were made with the assistance of the WTO Secretariat, and they 
were approved by India and verified by the entire WTO Membership".460 Chinese Taipei also notes 
that " [w]hen asked whether the WTO Secretariat correctly conducted the technical exercise of 
transposing India's Schedule in accordance with the multilaterally agreed and approved procedures 
and correlation tables set forth and referred to in documents WT/L/673 and G/MA/283, India states 
that the only error was the alleged 'failure to flag ' the relevant changes by the Secretariat. "461 
According to Chinese Taipei, " the Secretariat was under no obligation to flag these changes because 
they did not modify the scope of India's tariff concessions ."462  
7.142.   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 India has failed to meet its burden of proof 
with respect to the third element, it is not strictly necessary for us to address the fourth element of 
the test. Nevertheless, given the extensive debate by the parties regarding this issue , we wish to 
offer some observations, in the interest of assisting the parties in resolving their dispute.  
7.143.   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 HS2007 transposition 
process did not take into account and did not purport to transpose Members ' ITA undertakings. 
Rather , the HS2007 transposition process soug ht to transpose Members' WTO tariff commitments 
from the HS2002 to the HS2007. In this respect, India does not argue that any technical mistakes 
occurred in the transposition of its Schedule to the HS2007.463 As noted above,  it is uncontested 
that the WTO S ecretariat correctly followed the correlation tables communicated by the WCO, 
updated by the WTO Secretariat, and approved by the General Council and the Committee on Market 
Access .464  
7.144.   As indicated , however, India argue s that its  "mistaken assumption " at the time that it agreed 
to be bound by its HS2007 Schedule was not in relation to the transposition of its tariff commitments 
from the HS2002 to the HS2007, but rather in relation to the scope of its ITA undertakings as 
compared to its WTO S chedule.465 In this respect, w e have already concluded above that India is 
mistaken with respect to the relationship between the ITA and its WTO Schedule.466 Specifically, we 
concluded that as a general rule the product scope of Members' tariff concessions c ontained in their 
WTO Schedules evolves over time to capture products that may come into existence as a result of 
technological developments, and that this general rule is not changed for certain WTO Members by 
virtue of their participation in the ITA.467  
 
457 India's first written submission, para. 6 7.  
458 India's first written submission, para. 6 9.  
459 Chinese Taipei's opening statement at the first meeting  of the Panel , para. 24.  
460 Chinese Taipei's opening statement at the first meeting  of the Panel , para. 24.  
461 Chinese Taipei's comments on India's response to Panel question No. 70, para. 23. (emphasis 
original)  
462 Chinese Taipei's comments on India's response to Panel question No. 70, para. 23.  
463 See India's response to Panel question No. 70. Specifically, while India considers th at certain 
changes were not flagged by the WTO Secretariat, as required under the relevant procedures, India "does not 
argue or emphasize any other facets  of the technical exercise of transposing India's Schedules in accordance 
with the multilaterally agre ed and approved procedures and correlation tables". (Ibid. para. 32). India also 
agrees that no mistakes occurred in any prior transpositions of its WTO Schedule. (India's response to Panel 
question No.  64). 
464 We therefore see no need to examine the accura cy 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 undertaken by the WTO Secretariat.  (See also para. 7.206  
below).  
465 India's opening statement at the second meeting of the Panel, para. 23.  
466 See section 7.3.2.3  above.  
467 See para. 7.66 above.  WT/DS588/R  
 
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  7.145.   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.468 Given the importanc e 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.  
7.146.   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.469 India argues that 
"transmission apparatus" within the meaning of tariff items  8525.20 of the HS1996 referred 
specifically to "transmission apparatus for radio -telephony or radio telegraphy".470 India submits 
that such transmission apparatus were defined in  the HS1996 Explanatory Notes as apparatus "used 
for the transmission of signals (representing speech, messages or still pictures ) by means of 
electro -magnetic waves which are transmitted through the ether without any line connection".471 
India considers th at this definition in the HS1996 Explanatory Notes sets forth a "cumulative and 
exhaustive list" of products falling under this tariff item, such that "no apparatus which can transmit 
signals representing any other media other than the three listed above, can be included in the scope 
of heading 8525".472 India considers that since " [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 .473 India considers that " 'radio telephones ' and 'telephones for 
cellular networks ' are distinct products and cannot be clubbed into the same category ".474 In India's 
view, a comparison of the HS2007 and HS1996 Explanatory Notes reveals that " that telephones for 
cellular networks are not categorised in the general group of ' transmitting and receiving apparatus 
for radio -telephony and radio -telegraphy '".475 India acknowledges that the Explanatory Notes to the 
HS1996 were amended to add mobile phones a s an example of transmission apparatus covered by 
heading 8525.476 India considers, however, that this  list is "subject to  the main definition" of such 
transmission apparatus as being limited to apparatus capable of transmitting speech, messages, or 
still p ictures.477 Moreover, India argues  that "the product scope agreed upon by India was the 
product scope as delineated by the Explanatory Notes as on October 2, 1997" and since the 
amendment was adopted in 1998, it is not relevant to the interpretation of Indi a's tariff 
commitments.478 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 
 
468 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. 1 50-178 and 198-219). 
469 India considers that "[t]he issue before the Panel is whether sub -heading 8525.20 [of the HS 1996] – 
'Transmission apparatus incorporating reception apparatus ' could cover telephones for cellular networks." 
(India's first written submission, para. 15 2). 
470 India's first written submission, para. 15 3. India highlights that tariff heading 8525 of the  HS1996, 
referred to "transmission apparatus for radio -telephony, radio -telegraphy, …, whether or not incorporating 
reception apparatus or sound recording or reproducing apparatus". (Ibid. (referring to HS1996 Explanatory 
Notes to Heading 8525 , (Exhibit IND-6)). 
471 India's first written submission, para. 159 (quoting HS1996 Explanatory Notes to Heading 8525 , 
(Exhibit IND -6)). (underlining original)  
472 India's first written submission, para. 153. 
473 India's second written submission, para. 41.  
474 India's first written submission, para. 155.  
475 India's first written submission, para. 161.  
476 India's communication (7 July 2022), para. 3. We note that this communication by India was filed 
three weeks after the deadline for India to make comments on Exhibits TPKM -59, TPKM -60, and TPKM -61. 
Taking into account the extenuating circumstances surrounding that submission, which are also recognized by 
Chinese Taipei, we consider India's comments on those exhibits, as contained in that communication, to be on 
the Panel's rec ord. (See Chinese Taipei's communication (14 July 2022), para. 2).  
477 India's communication (7 July 2022 ), para. 4. India also repeats that "transmission apparatus under 
HS1996 heading 8525 only consists of apparatus which can transmit signals representing (1) speech, (2) 
messages, or (3) still pict ures". (Ibid.).  
478 India's communication (7 July 2022 ), para. 4.  WT/DS588/R  
 
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  heading 8543, which covers "electrical machines and appa ratus, having individual functions, not 
specified or included elsewhere in this Chapter".479 
7.147.   Chinese Taipei argues that the HS1996 Explanatory Notes " explicitly classified cellular 
telephones under 8525.20 ".480 Regarding "an  apparent difference " between the HS1996 E xplanatory 
Notes cited by Chinese Taipei and those contained in an exhibit submitted by India, Chinese Taipei 
explain s that the language on cellular telephones and mobile phones w as added to the Explanatory 
Notes  by an amendment made in 1998 .481 Regarding India's argument that this amendment is not 
relevant, Chinese Taipei submits that "Amendments to the HS nomenclature (including in the 
Explanatory Notes) do not change the scope of concessions in a Member's Schedule".482 Rather, 
according to Chinese Taipei, the Explanatory Notes "simply provide guidance on the interpretation 
of the HS", and the Explanatory Notes to the HS1996 "confirm" that cellular telephones are "'in fact' 
portable radio -telephony transmitter -receivers … under heading 8525, and the amendment was 
made to 'help ensure their uniform classification in the HS".483 
7.148.   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 
HS1996.484 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 incorporating reception 
apparatus" falling under tariff item 8525.20 of the HS1996.485 The issue debate d by the parties is 
whether cellular telephones or mobile phones (presently classified under tariff item 8517.12 of 
India's WTO HS2007 Schedule) were classified under tariff item 8525.20 of India's WTO HS1996 
Schedule.  
7.149.   We understand that mobile phones, on their face, are indeed transmission apparatus 
incorporating reception apparatus.486 Based on its ordinary meaning, we therefore see no reason to 
consider that telephones for cellular networks or other wireless networks would not fall within the 
scope of tar iff item 8525.20 of India's WTO HS1996 Schedule.  
7.150.   It is also uncontested that the HS1996 and its Explanatory Notes constitute relevant 
contextual aids for interpreting the scope of India's WTO tariff commitments as set forth in its 
HS1996 Schedule. We note  India's argument that the HS1996 Explanatory Notes exhaustively 
defined transmission apparatus falling under tariff item 8525.20 as apparatus " which allowed the 
transmission of signals representing (1) speech, (2) messages, or (3) still pictures " such tha t 
"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 ".487 
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 HS1996.488 
 
479 India's second written submission, para. 101.  
480 Chinese Taipei's opening statement at the second meeting  of the Panel , para. 38 (ref erring to 
HS1996 Explanatory Notes to Heading 8525 , (Exhibit TPKM -59), p. 1487a ).  
481 Chinese Taipei's opening statement at the second meeting  of the Panel , para. 39 (referring to WCO, 
HS Committee document 41.337 E , (Exhibit TPKM -60), para 9 ; WCO, HS Commi ttee document 42.034 E , 
(Exhibit TPKM -61)).  
482 Chinese Taipei's communication (14 July 2022), para. 5.  
483 Chinese Taipei's communication (14 July 2022 ), para. 5  (quoting WCO, HS Committee document 
41.337 E , (Exhibit TPKM -60)). 
484 See e.g. India's first written submission, para. 15 1.  
485 WT/Let/181.  
486 A mobile phone is "[o]riginally: a radio telephone installed in a vehicle. In later use: a portable 
wireless telephone that transmits and receives signals via a cellular … network; a cell phone; esp. (in later use) 
a smartphone"  (Oxford English Dictionaries online, definiti on of "mobile phone" 
https://www.oed.com/view/Entry/253434?redirectedFrom=mobile+phone&  (accessed 17 October 2022)); "a 
phone which is connected to the phone system by radio instead of by a wire, and can be used anywhere its 
signals can be received" (Cambr idge 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 o nline, definition 
of "mobile phone" https://www.collinsdictionary.com/dictionary/english/mobile -phone  (accessed  17 October  
2022) ). 
487 India's second written submission, para. 41.  
488 India's second written submission, para. 41.  WT/DS588/R  
 
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  7.151.   The parties do not dispute that mobile phones are indeed apparatus capable of transmitting 
speech, messages , or still pictures. In our view, the fact that mobile phones can also transmit other 
signals  does not eliminate the fact that they are capable of transmitting signals representing speech, 
messages, or still pictures. We do not read the HS Explanatory Note s prior to the 1998 amendment 
as excluding from the scope of tariff item 8525.20 products that completely satisfy the requirement 
of being capable of transmitting speech, messages, and still pictures, but nevertheless are also 
capable of transmitting other  signals .489 Thus, the unamended HS1996 Explanatory Notes suggest 
to us that cellular and mobile phones could fall within the scope of tariff item 8525.20 of India's WTO  
HS1996  Schedule . 
7.152.   We further note that the WCO amendment of the HS1996 Explanatory Notes , introduced in 
1998, unambiguously indicates that cellular and mobile phones were indeed classified under tariff 
item 8525.20 of the HS1996.490 We disagree with India that this amendment is not relevant as it 
occurred subsequent to India's inscription of i ts duty -free commitment with respect to this tariff item 
in its WTO Schedule. As we have explained above, we consider that Members' WTO commitments 
are not static,  and India has not pointed to any provision of the ITA indicating that Members' WTO 
tariff commitments undertaken in relation to the ITA would  exclud e products that subsequently come 
into existence due to technological development and that would otherwise fall within the scope of 
that tariff item. In short, we see no basis to exclude this amendment of the Explanatory Notes from 
our consideration. That amendment further suggests  that tariff item 8525.20 of the HS1996 covered 
mobile phones. This is reinforced  by the HS2002 Explanatory Notes, which also indicates that 
transmission apparatus for radio -telephony or radio -telegraphy, falling under heading 852 5 of the 
HS2002, covers "[p]ortable radio -telephones, usually battery operated, of the 'walkie -talkie' type, 
as well as cellular telephones (also called 'mobile phones')".491 
7.153.   We note that as an alternative to tariff item 8525.20, India submits that mobile phones were 
in fact classified under tariff item 8543.89 of the HS1996, which covers "other" products falling under 
heading 8543 (covering "electrical machines and apparatus, having individual functions, not 
specified or  included elsewhere in this Chapter").492 Under the General Rules for the  Interpretation 
of the HS, when goods are classifiable under two or more headings, "[t]he heading which provides 
the most specific description shall be preferred to headings providing a more general description ."493 
Moreover, if goods cannot otherwise be classified, they shall be "classified under the heading 
appropriate to the goods to which they are most akin".494 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 pictur es 
than they are to  the more generic definition of  "electrical machines and apparatus, having individual 
functions".   
7.154.   We therefore understand that India's WTO tariff commitments in its HS1996 Schedule with 
respect to "[t]ransmission apparatus incorporatin g reception apparatus" falling under tariff item 
 
489 We also note India's argumen t that "a radiotelephone is a device which uses radio signals between 
fixed points", whereas "telephones for cellular networks use radio waves to transmit a signal to a base station 
nearby [which then] re -transmits the signal". (India's first written submi ssion, para. 15 4). India considers that 
"'radio telephones' and 'telephones for cellular networks' are distinct products and cannot be clubbed into the 
same category". (Ibid. para. 155 (emphasis omitted)) . We disagree. As India itself acknowledges, "teleph ones 
for cellular networks use radio waves to transmit a signal". (Ibid.  para. 154 ). This would seem to constitute the 
very definition of "radio -telephony" within the meaning of the HS1996, including the Explanatory Notes 
thereto.  
490 The amendment of the E xplanatory Notes adds the following language to the Explanatory Note for 
Heading 8517: "Cellular telephones or mobile phones, including car telephones, are classified in heading 
85.25." Additionally, the amendment changes the Explanatory Note for Heading 8 525, such that the group of 
apparatus constituting "transmission apparatus for radio -telephony or radio -telegraphy" includes, 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).  (WCO, HS Committee document 41.337 E , (Exhibit TPKM -60); and WCO, HS 
Committee document 42.034 E , (Exhibit TPKM -61)). 
491 HS2002 Explanatory Notes to Headings 8517 and 8525 , (Exhibit TPKM -62), p. 1667.  
492 India's second written submission, para. 101.  
493 See General Rules for the Interpretation of the Harmonized System, ( Japan's third -party Exhibit 
JPN-60), para. 3(a).  
494 See General Rules for the Interpretation of the Harmonized System, ( Japan's third -party 
Exhibit  JPN-60), para. 4.  WT/DS588/R  
 
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  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.495 Followin g 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 networks or for other wireless 
networks".496 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, w ere not affected by the changes to India's Schedule during the HS2002 transposition 
process, and following the HS2 007 transposition exercise are presently set forth in tariff item 
8517.12 of India's HS2007 Schedule.497  
7.155.   To conclude, we recall that, in light of our findings with respect to the third element of 
Article  48(1), it is not necessary for us to form a definiti ve 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 expand as 
compared to the ITA. T o 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 also observed that India's argument of "error" in invokin g 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 tarif f 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.498 While we do not consider these findings 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)  
7.156.   To conclude, we consider that India has failed to demonstrate that India's assumption that 
the scope of its tariff concessions in its W TO 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.  
7.157.   Having come to this conclusion with respect to Article 48(1), it c ould suffice for us to conclude 
our analysis of Article 48 here.499 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 t he parties  
7.158.    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).500 In any event, 
India argues that its error "was in the context of a compl ex and technical transposition exercise 
 
495 WT/Let/886.  
496 See G/MA/283; and WT/Let/1072.  
497 We further understand 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 Sch edule 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. 176, 207, and 218 ).  
498 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 respect to products falling 
under tariff items  8517.61 and 8517.70 of its WTO HS2007 Schedule similarly have not expanded . (See fn 497 
to para. 7.154  above).   
499 See para. 7.87 above.  
500 India's second written submission, para. 2 5 (referring to T. Rensmann, "Article 48" in O. Dörr and 
K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties , 2nd edn (Springer, 2018) , (Exhibit IND -14), 
p. 893 ). WT/DS588/R  
 
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  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".501 India submits that "for a 
State to be put on  notice of a possible error, the circumstances should be such that no interested 
party should fail to notice the error or be under any misapprehension about it."502 India further 
submits that Article 48(2) requires the party claiming error "to have employed  all reasonable (rather 
than possible) means of establishing the facts when concluding the treaty and of having taken 
precautions to avoid any error".503  
7.159.   India submits that its error "was not unlikely given the surrounding circumstances (including 
that of an admittedly complex technical transposition which was not flagged)".504 India also notes 
that "the communication (Transposition Note) received from the Secretariat 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."505 
India also submits that prior to the certification of the Schedule, its "unequivocal public stance" had 
been that "it would not commit to obligations beyond those under the ITA[]".506 India considers that 
the panel's findings in Korea – Procurement suggest that "there exists a duty for all negotiating 
parties to verify the concessions being offered" and "[i ]n the present context, that would imply that 
Chinese Taipei ought to have reconciled India's stance of intending no further commitments on ICT 
products vis -à-vis its certification of the 2007 Schedule".507 
7.160.   Chinese Taipei considers that India has the burden to demonstrate that "it did not contribute 
by its own conduct to the error and … there were no applicable circumstances that would have put 
India on notice of a possible error ".508 Chinese Taipei highlights that a negotiator's "duty of diligence" 
is a facto r when determining whether a plea of error can be raised.509 Chinese Taipei emphasizes 
that " India did not express any concerns or objections regarding the correct classification of the 
products at issue either during the adoption of HS2007 at the WCO, or d uring the transposition of 
its tariff concessions from HS2002 to HS2007 by the WTO Secretariat."510 Chinese Taipei further 
submits that during both proceedings, India "had ample opportunity and time to review the accuracy 
of the HS code descriptions at issu e and to comment on them" and "qualified Government officials 
reviewed the transpositions to HS2007 and did not raise any objections".511 In particular, Chinese 
Taipei observes that "[p]ursuant to the Procedure for the Introduction of HS2007, it was India's  duty 
 
501 India's first written submission, para. 71. 
502 India's first written submission , para. 74. See also India's second written submission, para. 28.  
503 India's first written submission, para. 70 (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. 89 4). (emphasis omitted) See als o India's second written 
submission, para. 27 . 
504 India's second written submission, para. 29. 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 -78), para. 39) . Professor Waibel states that the "WTO Secretariat 
carried out the transposition with li mited 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/6 73, 
para. 3) (emphasis omitted) ). 
505 India's response to Panel question No. 19, para. 60 (referring to Email from IDB, WTO, to India 
(8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 Transposition Note XII - India).  
506 India's first written submi ssion, para. 76. 
507 India's first written submission, para. 78. 
508 Chinese Taipei's second written submission, para. 3.5  
509 Chinese Taipei's second written submission, para. 3.13.  
510 Chinese Taipei's second written submission, para. 3.14.  
511 Chinese Taipei's second written submission, para. 3.14. Regarding the work of the WCO, Chinese 
Taipei observes that "HS Contracting Parties can make reservations or objections, respectively, when t hey 
disagree with the manner in which the [HS Committee] proposed to interpret the HS Nomenclature or amend 
the HS Nomenclature" but "even though India is represented in the Council, [HS Committee] , [Review 
Subcommittee] , and all other WCO Working Bodies r esponsible for these amendments, India never put forward 
any reservations or objections on the classification of the HS2007 tariff lines at issue in this dispute". (Ibid. 
para. 3.18) . Chinese Taipei also notes that "India does not appear to have expressed any opposition to the 
classification of the products at issue in Correlation Table I, which was issued by the WCO to assist Contracting 
Parties with the domestic implementation of the HS2007 version". (Ibid. para. 3.20) . WT/DS588/R  
 
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  to verify whether it had any additional concerns regarding the HS2007 file."512 Chinese Taipei 
submits that if the Panel were to accept India's invocation of Article 48 it would render the 
Transposition Procedures, as well as other WTO rules on modifi cation and withdrawal of tariff 
concessions, inutile and meaningless.513  
7.161.   Chinese Taipei further notes that, "prior to the certification of its Schedule based on HS2007 
… India already had concerns that the scope of its commitments under the ITA[] should no t be 
expanded".514 In Chinese Taipei's view, the fact that India started levying duties on the relevant 
products on 14 October 2014, before it submitted the relevant changes to its Schedule for 
certification on 12 May 2016, indicates that "the circumstances  were such that India should have 
been put on notice that there could be a possible 'error' in the transposition of the contested tariff 
lines in its Schedule based on HS2007".515 Moreover, according to Chinese Taipei, India itself had 
recognized that it "w as specifically aware that 'the fast -evolving nature of ICT products' could 
potentially lead it to commit to obligations in its Schedule beyond what it thought were covered 
under ITA -1", that it "had expressed clear apprehensions in relation to the expansi on of its 
obligations beyond the scope of ITA -1 even prior to the certification of the 2007 Schedule", and that 
it "had [already] started levying duties on certain products under the contested tariff lines even prior 
to the certification of the 2007 Schedu le".516 
7.3.3.3.2   Main arguments of the third parties  
7.162.   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 
establishe s a very high threshold for demonstrating that the consent of a party to an agreement was 
made in error".517 
7.163.   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 co ncessions and thus, by its own conduct, arguably 
contributed to the alleged error regarding the scope of such concessions."518 Furthermore, according 
to Canada, "the availability of …[HS] 2007 concordance documentation may further suggest that the 
circumsta nces were such as to put India on notice as to a possible error in understanding the scope 
of the concessions".519 Canada considers that "[i]n the draft HS07 file prepared for India by the 
Secretariat, the tariff lines at issue in this case were not flagged  by the Secretariat as possibly 
changing the scope of the concessions".520 Canada also considers that "[t]he  jurisprudence on Article 
48 further suggests that it is difficult to invoke Article 48 where qualified personnel of a State review 
the documentation at issue".521 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".522 Canada also considers that the jurisprud ence 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".523 Canada submits that "the 
Secretariat offered t he results of its transposition procedures to India, and India, in exchange, was 
 
512 Chinese Taipei's second written s ubmission, para. 3.26.  
513 Chinese Taipei's second written submission, para. 3.28.  
514 Chinese Taipei's second written submission, para. 3.30.  
515 Chinese Taipei's second written submission, para. 3.30.  
516 Chinese Taipei's second written submission, paras. 3.29 -3.30. 
517 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 o ver 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.  
518 Canada's third -party submission, para. 13.  
519 Canada's third -party submission, para.  13. 
520 Canada's third -party submission, para. 15.  
521 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). 
522 Canada's third -party submission, para. 19.  
523 Canada's third -party submission, para. 16 (referring to ICJ, Case concerning the Temple of Preah 
Vihear (Cambodia v. Thailand) , Merits, Judgment of 15 June 1962, ICJ Reports 1962, p. 6, (Exhibit IND-3), at 
p. 26).   WT/DS588/R  
 
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  required to review and verify the Schedule and to make any relevant inquiries if something was 
uncertain or unclear."524 
7.164.   The European Union considers that India "had ample oppo rtunity to review the drafts, to 
request clarifications and provide comments and, if necessary, to object to the transposition to HS 
2007 prepared by the WTO Secretariat", and by failing to do so "India contributed by its own conduct 
to the alleged error."525 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 c oncessions linked to the ITA[] did not cover 'new 
products' could be in error."526 The European Union thus considers that the error alleged by India is 
"clearly inexcusable according to Article 48.2 of the VCLT".527 
7.165.   Japan  highlights that "during the negotiations leading to the certification of India's Schedule 
based on HS 2007, India's representatives repeatedly examined and had ample opportunities to 
avoid the alleged error and correct it before the certification".528  
7.166.   Korea contends that "India appea rs to have contributed to the alleged error and was duly 
put on notice about it."529 According to Korea, "India had ample opportunity and access to 
appropriate redress mechanisms to avoid the alleged error and to fix it."530 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."531 Korea also notes that the 
transposition procedures "provided for a multilateral review process during which modifications could 
be made to the updated schedules", but "India did not object to the now disputed tariff lines during 
the multilateral review".532 In Korea's view, "India should not be entitled to shift responsibility for 
its error onto the WTO  Secretari at 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 its concessions."533 
7.167.   The United King dom 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 basis of an alleged error.534 
7.168.   The Uni ted 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 t o the tariff subheadings 
at issue".535 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."536  
7.3.3.3.3   Panel's assessment  
7.3.3.3.3.1   General considerations  
7.169.   Article 48(2) states that:  
 
524 Canada's third -party submission, para. 18.  
525 European Union's third -party statement, para. 10.  
526 European Union's third -party statement, para. 11.  
527 European Union's third -party statement, para. 9.  
528 Japan's third -party state ment, para. 24.  
529 Korea's third -party submission, para. 14.   
530 Korea's third -party submission, para. 1 5. 
531 Korea's third -party submission, para. 15.  
532 Korea's third -party submission, paras. 16 -17. 
533 Korea's third -party submission, para. 19.  
534 United Kingdom's third -party statement, para. 14.   
535 United States' third -party response to Panel question No. 16, para. 8.  
536 United States' third -party response to Panel question No. 16, para. 8.  WT/DS588/R  
 
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  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 to the HS2007. Specifically, we as sume that : (i) an essential basis for India's 
consent to be bound by the changes to its Schedule was India's assumption that the transposition 
of that Schedule to the HS2007 did not expand the scope of its tariff commitments beyond the scope 
of its ITA und ertakings ; and  (ii) such an expansion occurred.  
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 parties have expressed 
differing opin ions on the burden of proof under Article 48(2). Chinese  Taipei considers that India has 
the burden to demonstrate that it did not contribute by its own conduct to the error and that there 
were no applicable circumstances that would have put India on notic e of a possible error.537 India 
considers that the burden  is on Chinese Taipei, as the party objecting to the invocation of Article 48, 
to demonstrate that India either contributed to the error or that the circumstances were such as to 
put India on notice o f a possible error.538 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 t he arguments and 
evidence of the part ies 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 48.539  
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 circumstances 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 I ndia defines the alleged error, we examine whether the circumstances were 
such as to put India on notice of a possible expansion of its WTO tariff commitments from its ITA 
undertakings.  
7.174.   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 pr oducts falling within the scope of the ITA.540 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 delegat e] said that it was 
an issue that comprised 55 products and had not been resolved for the past 15 years."541 India's 
delegate "doubted that one could just brush it aside in terms of saying that these were complicated 
by HS96, HS2002 or HS2007 nomenclature changes as otherwise the participants would have 
actually solved the problem in the first place."542 This sta tement by India suggests that India was 
aware not only of product classification differences among ITA participants, but that HS 
transpositions (including the HS2007 transposition process) could have substantial implications for 
those classification differ ences.  
 
537 Chinese Taipei's second written submission, para. 3.5 . 
538 India's second written submission, para. 25 (referring to T. Rensmann, "Article 48" in O. Dörr and K. 
Schmalenbach (eds.), Vienna Convention on the Law of Treaties , 2nd edn (Springer, 2018), (Exhibit IND -14), 
p. 893). 
539 See e.g. Panel Report, India – Solar Cells, fn 269 to para. 7.104.  
540 See para. 7.113  above.   
541 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of 
the meeting held on 15 May 2012, G/IT/M/55, para. 3.11. We recall that India adduced these Minutes. (See 
India's first written submission, para. 60 and fn 9 6 thereto).  
542 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.  WT/DS588/R  
 
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  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, updated by the WTO 
Secretariat, and agreed upon by WTO Members.543 In addition to se tting 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 the transposition pr ocess.  
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 
unchanged".544 The General Council Decision further indicates t hat "[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."545 The General Council Decision also provides for the 
procedures to be followed in t he event that a Member disagrees with the way in which the scope of 
a concession has changed.546 Specifically, paragraph  15 of the General Council Decision states that 
"[w]here the scope of a concession has been modified  as a result of the transposition in a way that 
impairs the value of the concession, GATT Article XXVIII consultations and renegotiations shall be 
entered into by the Member concerned."547  
7.177.   Thus, in our view, India was on notice that the scope of its tariff concessions could, 
potentially, be m odified 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 pos sibility 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 transposition process 
resulted in changes to the scope of its concessions".548 India a rgues, 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 process."549 India refers to Professor Waibel's Legal Opinion, which 
states that sin ce "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".550 Professor 
Waibel's Legal Opinion echoes multiple submissions by India in whic h 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".551  
7.179.   We observe t hat 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 there 
was a change in the scope of Members' concessions, then the burden was on the WTO Secretariat 
to identify that change in scope. A close readi ng of the General Council Decision  on HS2007 
 
543 See paras. 7.127 -7.129  above.  
544 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  
545 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  
546 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.  
547 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 15. (emphasis 
added)  
548 India's response to Panel question No. 65(b), para. 14.  We note India's arg ument, 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 prese nt 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 May 2022) , (Exhibit IND -84)). We do 
not consider it n ecessary to take a position on whether  paragraph 15 was applicable to India. Rather, we note 
that the existence of paragraph 15 (along with paragraph 4) put India on notice of the possibility  that the 
transposition process could result in a change to the v alue of the tariff concessions.  
549 India's response to Panel question No. 65(b), para. 14.  
550 India's response to Panel question No. 65(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on 
Error, (Exhibit IND -78), para. 39).  
551 India's response to Panel  question No. 56, para. 5 3. WT/DS588/R  
 
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  Transposition Procedures , however, indicates not that the WTO Secretariat had to affirmatively 
identify any changes in concessions, but rather that they had to clearly flag "[a]ny tariff line for 
which a change in the scope of a concession may have occurred due to the complex technical nature 
of the transposition ".552 In other words, the General Council Decision did not place an affirmative 
burden on the WTO Secretariat – or indeed Members preparing their own tran spositions – 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 poss ibility had to be flagged. To the extent that the WTO 
Secretariat faithfully followed the correlation tables approved by the General Council and the 
Committee on Market Access, this, it seemed, would substantially mitigate against the possibility 
that ther e would be any disagreement as to whether the scope of any Member's concessions changed 
through the transposition process. Since these correlation tables were specifically prepared and 
approved in order to indicate the overlaps in product coverages as betw een the HS2002 and  the 
HS2007, it would seem to follow that if the Secretariat followed those correlation tables (and it is 
uncontested that they did so), then there would have been no change in the scope of Members' 
concessions.  
7.180.   Nevertheless, we recogniz e that the General Council Decision on HS2007 Transposition 
Procedures  acknowledged that such a possibility could occur, and required the WTO Secretariat (and 
Members in their preparation of their own transpositions) to clearly flag any tariff line for whi ch a 
change in the scope of a concession may have occurred due to the complex technical nature of the 
transposition.553 
7.181.   In this context, we recall that on 8 November 2013 the WTO Secretariat transmitted to India, 
via email, the draft HS2007 transposition fi les prepared by the Secretariat.554 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"  
(hereaft er "Transposition Note") ; and (iv) "document G/MA/283 describing in detail the methodology 
used by the Secretariat for th[e] exercise".555 Attachment 3 to that email, containing the 
Secretariat's Transposition Note for India's Schedule, also refers to docum ent G/MA/283. 
Specifically, that Transposition Note, under the heading "Processing strategy", indicates that "[a] 
detailed description of the transposition methodology is presented in documents G/MA/283 of 22 
May 2012 and WT/L/673 of 18 December 2006."556 
7.182.   Document G/MA/283, titled "Transposition of Members' CTS Files to the HS 2007 
Nomenclature – Notes on Methodology" , was approved by the Committee on Market Access on 26 
April 2012. The introduction to that document explains that it "describes the guidelines  that the 
Secretariat intend[ed] to follow for the implementation of the HS 2007 transposition" and "provides 
a detailed description of the methodology that the Secretariat [would] follow in the HS 2007 
transposition exercise".557  
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).558 Specifically with respect to structural changes, 
document G/MA/283 identifies 196 structural changes, defined by 355 groups of correlations, and 
elaborates that each of these structural changes can be categorized as: (i) one -to-one relationships, 
where on e 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 complex cases, invo lving both splitting 
and merging of whole or part of different HS2002 subheadings.559 With respect to the last of these 
categories, namely "complex changes", document G/MA/283 explains that:  
 
552 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  
553 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. 
554 Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50).   
555 Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50), p.  1. 
556 Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 
Transposition Note XII - India, p. 1.  
557 G/MA/283, p aras. 1-2.  
558 G/MA/283, para. 1.2.  
559 G/MA/283, para. 1.5.  WT/DS588/R  
 
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  A complex change includes both splitting and merging of the whole  or part of different 
subheadings. Since a specific change can combine splits and mergers differently, it is 
difficult to find a standard way of dealing with the transposition as it was in the previous 
cases. It is for this reason that manual intervention will be required for most of the 
complex changes. Moreover, some complex changes could involve as many as 20 to 30 
subheadings from different HS 2002 headings, Chapters, and even Sections. In order 
to maintain all these concessions in the new HS 2007 nomen clature, complicated coding 
structures and descriptions need to be introduced. And the situation could be even more 
complicated if national breakouts are involved.560 
7.184.   Document G/MA/283 elaborates that "[t]he categorization for each individual correlation is 
indicated in Annex I".561 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 remarks 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 ta ble of 
correlations set forth in Annex I of document G/MA/283.562 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 transfer of certain products to heading 85.17".563 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.564 
7.186.   From the foregoing, we wish to highlight certain salient points. First, regarding the WTO 
Secretariat's communication to India of the draft transposition files: (i) i n its cover email, the 
Secretariat highlighted that 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 one of four attachments that 
the Secretariat included in that email to India. We therefore consider that India could not have been 
unaware of the contents of that document, and indeed its importance to the transpositio n process.  
7.187.   Second, regarding the contents of document G/MA/283 itself: (i) this document 
unambiguously identifies the changes from the transposition process resulting in HS2007 tariff items  
8517.12, 8517.61, 8517.62, and 8517.70 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 that heading. We note, in this respect, 
that this does not necessaril y imply that the scope of Members' tariff concessions was expanded. 
Rather, this reference in document G/MA/283 to an expansion in the scope of heading 8517 simply 
means that products formerly falling under other tariff headings of the HS2002 had been tran sferred 
to heading 8517 of the HS2007. It is entirely  plausible (and indeed it was the intention of the 
transposition exercise) that there was no change in the scope of the tariff concessions, to the extent 
that the bound duty rates inscribed in Members' S chedules for products falling under these HS2007 
tariff items , under heading 8517, were identical to the bound duty rates inscribed on the relevant 
correlated tariff items  of the HS2002 Schedule. Nevertheless, document G/MA/283 highlighted that 
these chang es 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 changes to those tariff 
items .  
 
560 G/MA/283, para. 2.10.  
561 G/MA/283, para. 1.6.  
562 See para. 7.128  above.  
563 G/MA/283, Annex I, entries 299 -300, p. 41.  
564 G/MA/W/76, p. 30.  WT/DS588/R  
 
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  7.188.   We note India's assertions that "the lan guage 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".565 India 
considers that "the co mplex 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 
being effected due to the increased product complexity of the ITA[] product covera ge via the 
contested sub -headings".566  
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 ".567 Document G/MA/283 identifies the changes to the relevant tariff items  as complex 
in nature, indicates that new products have been added to the scope of heading 8517, and highlights 
that the scope of heading 8517 has expanded. This, in our view, suffices to identify to Members that 
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 changes to India's Schedule in specific relation to 
sub-headin g 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".568 In India's view, the Secretariat's 
Transposition Note was an "exhaustive document in relation to entries that w ere sought to be 'clearly 
flagged' for the exercise of transposition".569  
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 do cument 
G/MA/283 in the Secretariat's email to India all advised India to scrutinize document G/MA/283, 
which unambiguously identifies a significant number of changes occurring during the transposition 
process as "complex" in nature. Moreover, a very brief review of the "comments" included in the 
correlation table contained in document G/MA/283 would have enabled India to observe that, 
according to the WCO, the product scope of numerous  headings and subheadings w as expanded 
through the transposition process,  including heading 85.17.570 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 is 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 allegedly "exhaustive"571 list of complex changes possibly chang ing 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".572 Under this subheading, "Additional Technical Issues", 
the Transposition Note identifies certain issues pertaining to: (i) "AG – non-AG breakdown"; and (ii) 
 
565 India's response to Panel question No. 65(a), para. 8.  
566 India's response to Panel question No. 65(a), para. 8.  
567 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)  
568 India's response to Panel question No. 65(a), para. 10.  
569 India's response to Panel question No. 65(a), para. 10.  
570 Document G/MA/283 indicates, inter alia , the following: "[t]he scope of subheading 3006.10 was 
expanded to cover also sterile absorbable surgical or dental yarn and sterile surgical or dental adhesion 
barriers, whether or not absorbable"; "[t]he scope of heading 38.21 was expanded to cover also prepared 
culture media for maintenance of micro -organisms and prepared culture media for the development and 
maintenance of plant, human or animal cells"; "[t]he scope of new subheadings 7321.19 and 7321.89 has 
been expanded to cover other cooking appliances and plate warmers, and other appliances of heading 73.21"; 
"the scope of heading 85.17 has been expanded"; "[t]he scope of subheading 9030.20 has been expanded to 
cover all kinds of oscilloscopes and oscillograph s"; "[t]he scope of instruments and apparatus of subheadings 
9030.31 and 9030.39 is no longer limited to instruments and apparatus without a recording device". 
(G/MA/283, Annex I, pp. 28, 30, 37, 41 , and 43).  
571 India's response to Panel question No. 65(b), para. 10.  
572 Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 
Transposition Note XII - India) , pp. 1 -3. WT/DS588/R  
 
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  "Simplified correlations".573 Under "[s]implified correlations", the Transposition Note states that 
"[b]ased on an analysis of HS2007 changes included in the WCO correlation table, the Secretariat 
proposed the simplification of some correlations as described in  detail in Annex I of G/MA/283. If a 
Member intends to make use of the standard correlation table or take other approaches, it would 
need to inform the Secretariat."574 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 subheadi ng 3006.10 is kept as 
one tariff line without adding any new breakouts for the ex -outs. In the case of 
subheading 2852.00 a simple average of all the HS2002 tariff lines under the 29 HS2002 
candidate subheadings was used for the duty of the new HS2007 subh eading. 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 exhaustive list 
of tariff items  whose scope may have changed due to complex changes occurring during the 
transposition process. Notwithstanding that this paragraph of the Transp osition Note does not 
purport to do so, a cursory review of document G/MA/283 would have revealed to India numerous 
other tariff items  that were flagged by the Secretariat as having undergone complex changes, and 
whose scope was indicated by the WCO to hav e 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 c omplex changes that may 
have changed the scope of concessions.  
7.194.   Thus, with respect to whether the WTO Secretariat complied with its procedural obligations 
such as to put India on notice as to possible changes of scope, we consider that: (i) pursuant to the  
General Council Decision on HS2007 Transposition Procedures, the WTO Secretariat was required to 
flag any tariff item for which a change in the scope of a concession "may have occurred " due to the 
complex technical nature of the transposition575; and (ii) through document G/MA/283 (and the 
numerous references to this document in its communication to India), the WTO Secretariat satisfied 
 
573 Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 
Transposition Note XII - India) , p. 1. The technical issues arising in relation to "AG – non-AG breakdown" 
pertained to specific issues arising due to negotiating texts as well as two cases "where the HS2007 
transposition results in a mix of AG and non -AG products". (Ibid.) . 
574 Email from IDB, WTO, to India (8 November 2013) , (Exhibit IND -50), Attachment 3, CTS HS2007 
Transposition Note XII - India) , p. 2. We observe that document G/MA/283 describes in detail how there was a 
"need for simplification", in ord er to avoid excessively complex Schedules which would undermine the purpose 
of the transposition exercise. Specifically, according to document G/MA/283:  
In the HS 2002 transposition exercise, a significant amount of manual work by the Secretariat 
focused on a number of changes relating to chemical wastes in HS Chapter 38 and to paper in HS 
Chapter 48. These changes involved many subheadings and implied very complicated correlations 
between the HS 1996 and HS 2002. Since the methodology followed by the Secr etariat was a pure 
technical transposition without altering any concessions for these subheadings, the result was 
complex coding structures, and sometimes very complex technical descriptions, which had to be 
introduced in order to retain all the details of  concessions. The advantage of this methodology is 
that it is technically correct (in the sense of representing exactly the same concessions as before), 
and thus it helps Members to avoid potential disputes and lengthy negotiations on changes in the 
conces sions resulting from the transposition. On the other hand, the disadvantage is that in many 
cases it resulted in very complicated product codes and descriptions, which often deviate from 
those found in national applied tariff schedules and caused difficult ies when making links between 
bound and applied tariffs. Moreover, this practice led to a proliferation of HS 1996 duty rates in HS 
2002 tariff lines which may in fact represent somewhat theoretical allocations, covering little or no 
actual trade. In fact,  some of the new breakouts might be virtually empty, with no traded products 
actually being classified under them. It could therefore be argued that the complication of the WTO 
schedules of concessions is in contradiction with the original purpose of these  HS changes, namely, 
a simplification of the tariff structure to better deal with current needs and to allow for a comparison 
of the bound and the applied duties.  
(G/MA/283, para. 4.2)  
575 General Council Decision on HS2007 Transposition Procedures, WT/L/67 3, para. 4. (emphasis added)  WT/DS588/R  
 
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  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.576  
7.195.   We recognize that both parties to this dispute assert that the WTO Secretariat did not flag 
the re levant tariff items at issue.577 We have addressed India's arguments above. As to Chinese 
Taipei , we note Chinese Taipei's view that "[t] he WTO Secretariat assisting developing countries, 
such as India, in the transposition process is only required to flag the tariff lines for which there is a 
change that modifies the scope of a concession " and "[i]n the present case, the Secretariat marked 
the relevant changes as 'complex ' in the Methodology Note. However, based on its technical 
expertise, it did not consid er that these changes modified the scope of the relevant concessions. For 
this reason, the Secretariat did not flag these tariff lines in the Transposition Note sent on 8 
November 2013 ."578 Thus, we understand that, according to Chinese Taipei,  the WTO Secr etariat 
was only 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 change in product scope may have occurred due to the complex nature of 
the transposition .579 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".580 Thus, pursuant to the General 
Council Decision on HS2007 Transposition 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 Chinese Taipei 's arguments do not imply 
otherwise.  
7.196.   From the fore going 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 d ispute 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."581 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 Frontier Land (Belgium v. 
Netherlands) , where "in the contested map 'which was to become part of the Boundary Convention, 
it was shown clearly, and in a manner which could not escape notice, that the disputed plots belonged 
to Belgium'".582 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 scrutin izing it, could 
have failed to see what the map was purporting to do in respect of that region".583 India also states 
 
576 General Council Decision on HS2007 Transposition Procedures, WT/L/673,  para. 4.  
577 India's second written submission, paras. 28 -29; Chinese Taipei's comments on India's response to 
Panel question No. 65(a)(i) and (ii), para. 1 2. 
578 Chinese Taipei's comments on India's response to Panel question No. 65(a)(i) and (ii), para s. 10-11. 
(emphasis original)  
579 General Council Decision on HS2007 Transposition Procedures, WT/L/673,  para. 4.  
580 General Council Decision on HS2007 Transpositi on Procedures, WT/L/673, para. 15.  
581 India's response to Panel question No. 65(b), para. 11. See also India's second written submission, 
para. 2 8.  
582 India's second written submission, para. 2 8 (quoting ICJ, Case concerning  Sovereignty over Certain 
Fronti er Land (Belgium v. Netherlands) , Judgment of 20 June 1959: ICJ Reports 1959, p. 209 , (Exhibit IND -2), 
at pp. 225 -227).  
583 India's second written submission, para. 28 (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). WT/DS588/R  
 
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  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".584 
7.198.   We note that the two findings relied upon by India as support for its interpretation are both 
factual findings regarding the circumstances of those cases. In neither case did the ICJ conclude as 
a matter of legal interpretation that a State can only invoke an error if the State could not but have 
been aware of the existence of the error. Rather, the ICJ's factual findings indicate that, regardless 
of how high or low that legal standard may be, the circumstances of those cases were such that the 
States in question must have been aware of the error.  
7.199.   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 In dia'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 th at "no interested party should fail to 
notice the error ".585 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 India's argument that a State must 
necessarily  have known of the error in order to meet the standard of being "put on notice of a 
possible error", we consider that Article 48(2) merely requires that the State was on notice of the 
possibi lity that such an error could occur.  
7.201.   Applying that legal standard to the facts, as described above, we recall that India alleges 
that its "error" at the time of the certification of its Schedule was its mistaken assumption that the 
scope of its WTO tariff  commitments would not be 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 transposition exercise, India was 
on notice of the possibility that the scope of the concessions set forth in tariff items  8517.12, 
8517.61, 8517.62, and 8517.70 of its HS2007 Schedule may have expa nded 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 
commitments may have expanded as compared to the scope of its commitments in its HS1996 
Schedule, and the scope of its ITA undertakings. In our view, therefore, India was put on notice of 
the possibi lity of an "error", as India defines its error, within the meaning 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 term s 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. Nevert heless, we consider it useful in the circumstances of this dispute 
to make certain observations regarding this issue .  
7.3.3.3.3.3   Whether India contributed by its own conduct to the alleged expansion in the 
scope of its WTO tariff commitments from its ITA undertaking s 
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 s crutinized 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 product scope of the HS2007. It 
appears to us that no Member, in preparing its own Schedule, was expected to identify any such 
differences in product coverage. This similarly applies to the WTO Sec retariat, in its preparation of 
developing countries' transpositions on their behalf. Rather, Members and the WTO Secretariat were 
 
584 India's response to Panel question No. 20, para. 67.  
585 India's first written submission, para. 74. (emphasis added)  WT/DS588/R  
 
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  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 India had multiple opportunities to intervene in the transposition process 
and to make clear that its consent to be bound by its transposed Schedule was contingent on the 
scope of its WTO tarif f 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 not exist at the time that India joined the ITA.  
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 comme nts when it received the draft transposition files from the 
WTO Secretariat 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 s et 
forth in the transposition procedures, India, on its own initiative, could have raised any concerns or 
objections either bilaterally (to the WTO Secretariat) or multilaterally (in the Committee on Market 
Access or other relevant WTO 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 classifica tion under the ITA.586 Indeed, India was also on notice of the possibility 
that such differences of opinion with respect to product classification could have implications for the 
HS2007 transposition process.587 To the extent that India remained silent on such issues in the 
context of the transposition exercise, WTO Members and the WTO Secretariat could only assume 
that India was satisfied that the transposition exercise would follow the multilaterally approved 
correlation tables.  
7.208.   In our view, if India had raised its concerns, t hey 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, a nd by then agreeing to certify the changes to its WTO Schedule, India agreed to become 
bound by the HS2007 Schedule, including with respect to any tariff items  whose scope may have 
expanded. Moreover, by agreeing to the relevant correlation tables that una mbiguously extended 
India's tariff concessions to the products at issue in this dispute, it appears to us that any differences 
in the scope of the ITA and the scope of India's WTO tariff commitments (regardless of whether the 
ITA is static in scope) are di rectly 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 HS 2007 Schedule. India did not do so. In our analysis of Article 48(1) above, 
we concluded that India's failure to raise such concerns means that there is no evidence that India's 
concerns in this respect constituted an "essential basis" for its consent to b e bound.588 For the 
purposes of applying Article 48(2), we moreover note that India's failure to raise those concerns 
would appear to have directly contributed to the alleged error arising in the first place.  
7.210.   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 required 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 
 
586 See para. 7.113  above.  
587 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 partic ipants would have actually solved the problem in the first place." (Committee of 
Participants on the Expansion of Trade in Information Technology Products, Minutes of the meeting held on  15 
May 2012, G/IT/M/55, para. 3.11) . 
588 See para. 7.156  above.  WT/DS588/R  
 
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  has not asserted that its customs officials or government representatives lacked suf ficient expertise 
to properly review or understand the implications of India's commitments as set forth in the draft 
Schedule prepared by the WTO Secretariat. India's failure to properly review its legal commitments 
is not a "minor and excusable"589 contrib ution to the creation of the alleged error, and would indeed 
seem to be a significant contributing factor in causing the error to occur, especially taking into 
account that India had already approved the correlation tables relied upon by the Secretariat, a nd 
was on notice that the changes to the tariff items  at issue were complex, accounted for technological 
developments, and, in some instances, might have increased the scope of the tariff items . 
7.211.   We note that India appears to consider that other  actors, suc h 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 asserte d 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 transposition files.590 Moreover, since India did not communicate any concerns 
regarding the ITA to the WTO Secretariat during the transposition proce ss, 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 contribut ion of other WTO Members, we note that, because the transposition 
procedures had been multilaterally approved and were 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 to its Schedule. Indeed, even assuming arguendo  that there was any expansion of 
India's commitments, other WTO Members would have been justifi ed 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 satisfy 
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 error.  
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 commitme nts 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 o n 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 
 
589 Prof. M. Waibel, Legal Opinion on Error , (Exhibit IND -78), para. 39.  
590 India's only ground for arguing that the Secretariat did not follow the transposition procedures  
correctly  is that the contested tariff items "were not adequately flagged  ". (India's response to Panel question 
No. 56, paras. 53 and 55. See also India's response to Panel question No. 70, para. 32). We have addressed 
that argume nt and dismissed it. In our view, the Secretariat follow ed the agreed -upon transposition 
procedures, including with respect to flagging possible changes of product scope.  WT/DS588/R  
 
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  transposition process, India was on notice of the possibility that the scope of its WTO tariff 
commitments could 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 sat isfy the 
substantive requirements of Article s 48(1) and (2) of the Vienna Convention. There is therefore no 
basis under 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 par ties' arguments regarding the applicability of Articles 
44, 45 and 48 of the Vienna Convention, or the substantive requirements under Articles 44 and 45.  
7.3.4   India's rectification request under the 1980 Decision  
7.3.4.1   Introduction  
7.217.   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".591 India stated that the supposed errors occurred while 
transposing its HS2002 Schedule to its HS2007 Schedule.592 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."593  
7.218.   Several W TO Members, including Chinese Taipei, objected to India's draft rectification.594 
Chinese Taipei took the view that the proposed rectification "negatively changed the scope of India's 
concessions on the goods concerned" and therefore "could not be considere d to be of a purely formal 
nature within the terms of paragraph 2" of the 1980 Decision.595 
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.596 According to India, the HS2007 Schedule is to be read in light of the 
originally negotiated concessions  such that , products that "have never been negotiated upon remain 
outside the scope of th e 2007 Schedule."597 India requests us to "recognize and declare that the 
Draft Rectification was of a purely formal character and Chinese Taipei's objections on the same 
were unfounded."598 Specifically, India requests us to:  
[A]ssess the objection raised b y the Chinese Taipei. If the Panel were to find that the 
ITA[] did not cover the products at issue, it will be evident that the Draft Rectification 
was of a purely formal character. Therefore, the objection raised by Chinese Taipei to 
the Draft Rectificati on would be unfounded in law and would be contrary to Paragraph 
3 of the 1980 [Decision]. Further, such a determination shall also establish that Chinese 
Taipei's action impeded India's right to rectify its Schedule under the 1980 [Decision].599 
7.220.   India clari fies that it does not seek the certification of the draft rectification by the Panel 
through the dispute settlement mechanism.600 
 
591 India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND -77), p. 1.  
592 India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND -77), p. 1.  
593 India's rectification request, G/MA/TAR/RS/572 , (Exhibit IND -77), p. 1.  
594 Letter from Chinese Taipei to India (19 October 2018) , (Exhibit TPKM -3); and Committee of 
Participants on th e Expansion of Trade in Information Technology Products, Minutes of the meeting held on 30 
October 2018 , G/IT/M/69, p. 5.  
595 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, p. 5. See  also Letter from Chinese Taipei to India 
(19 October 2018) , (Exhibit TPKM -3). 
596 India's first written submission, para. 27.  
597 India's first written submission, para. 54 . See also India's  response to Panel question No. 31,  para. 
93. 
598 India's first written submission, para. 54.  
599 India's response to Panel question No. 53, para. 47. See also India's second written submission, 
para. 119. 
600 India's second written submission, para. 120.  WT/DS588/R  
 
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  7.3.4.2   Main arguments of the parties  
7.221.   India argues that Chinese Taipei "acted beyond the prescriptions of Paragraph 3 of the 1980 
Decision by raising an objection unfounded in law", and that "Chinese Taipei's objections were an 
impediment to India's right to make a formal rectification to its Schedule of Concessions under the 
1980 [Decision]" .601 As to the legal basis for the Panel to mak e 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 parag raph 1(b)(iv) of  the GATT 1994.602 Therefore, India posits that the Panel has 
authority to interpret the draft rectification and clarify the rights and obligations of the Members 
under it pursuant to Article 3.2 of the DSU.603 India adds that Article 11 of the DSU obliges the Panel 
to "objectively assess the facts of the dispute and examine the conformity of Members' actions with 
covered agreements."604 India also submits that the Panel has an obligation to assess "if the 
objection raised by the Chinese Taipe i is in good faith or if it is merely an instrument to force India 
to grant concessions on products, which it never agreed to."605 India posits that if it is found that 
the proposed draft rectification is of a purely formal character, "it would lead to the conclusion that 
the bound rates assigned to the products at issue were clearly in error and that such concessions 
were capable of rectification via the 1980 [Decision]."606 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 schedu le of 
concessions are void."607 
7.222.   For its part, Chinese Taipei maintains that there is no legal basis, under the DSU, for us to 
"recognize and declare that the Draft Rectification was of a purely formal character" and that Chinese 
Taipei's objections on the s ame were unfounded.608 Chinese Taipei maintains that the 1980 Decision 
is not an "other decision[] of the Contracting Parties to the GATT 1947" within the meaning of 
paragraph 1(b)(iv) of  the GATT 1994, and is therefore not a covered agreement within the m eaning 
of Article 1.1 of the DSU.609 Chinese Taipei also submits that because its panel request has not 
referred to India's draft rectification or to the 1980 Decision, we lack the authority, pursuant to our 
terms of reference, to make findings regarding In dia's draft rectification or the 1980 Decision.610 
Moreover, Chinese Taipei considers that certification of proposed modifications to Schedules is a 
matter within the domain of WTO Members, not to be decided by a panel under the DSU.611 Thus, 
according to Ch inese Taipei, a decision on whether Chinese Taipei's objections were unfounded is 
solely up to Chinese Taipei to make.612 
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 have not been completed given the 
objections that were raised."613 Brazil therefore "does not s ee 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."614 
 
601 India's response to Panel question No. 53, para. 43 . See also India's  second written submission, 
para. 113.  
602 India's response to Panel question No. 53, paras. 44 -45; second written submission, paras. 115 -116. 
(referring to Panel Report, US – FSC, para. 7.63).  
603 India's response to Panel questi on No. 53, para. 46; second written submission, para. 117 (referring 
to Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 53).  
604 India's response to Panel question No. 53, para. 46.  
605 India's response to Panel question No. 53, para. 46; second wr itten submission, para. 118.  
606 India's response to Panel question No. 53, para. 49.  
607 India's second written submission, para. 120.  
608 Chinese Taipei's response to Panel question No. 53.  
609 Chinese Taipei's response to Panel question No. 53, para. 84; second  written submission, paras. 
3.76-3.78. 
610 Chinese Taipei's response to Panel question No. 53, para. 85.  
611 Chinese Taipei's response to Panel question No. 53, para. 86.  
612 Chinese Taipei's second written submission, para. 3.79.  
613 Brazil's third -party response  to Panel question No. 19, para. 13.  
614 Brazil's third -party response to Panel question No. 19, para. 14.  WT/DS588/R  
 
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  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, thereby overriding the procedures that have been agreed to 
by all WTO Members.615 Canad a 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 de termine 
whether India imposes on those products duties in excess of those set forth in its Schedule.616 
7.225.   The European Union maintains that the 1980 Decision does not envision the possibility of 
referring the matter to dispute settlement where parties disagre e on existence of an error.617 
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.618 
7.226.   Japan submi ts that there is no legal basis for the Panel to make the findings requested by 
India under the DSU or any other covered agreement. Japan maintains that such findings go against 
the Panel's mandate, which is limited by Articles 3.2 and 11 of the DSU.619 Japan adds that there is 
no absolute right for a proposed rectification to be automatically accepted, or a corresponding 
obligation of other Members to accept that rectification request.620 Moreover, Japan considers that 
it is not for the Panel to rule on the nature of a rectification request, or objections on that request. 
Rather, when a Member's rectification request is objected to, that Member ought to follow the 
procedure set out in Article XXVIII of the GATT 1994 in order to effectuate the proposed change.621 
Japan also argues that, given that WTO Members other than  the complainants in this and the parallel 
disputes objected to India's draft rectification, any findings by the Panel would risk undermining the 
rights of those WTO Members and raise serious syst emic concerns regarding of the reliability and 
predictability of the system of tariff concessions.622 Finally, Japan maintains that any findings by the 
Panel on India's request would be inutile  because those findings would not affect the validity of 
objecti ons by other WTO Members, and until the draft rectification is certified in accordance with the 
1980 Decision, the proposed changes would have no legal effect.623 
7.227.   Korea submits that the Panel's mandate is confined to its terms of reference, which do not 
include recogni zing and declaring the invalidity of Chinese Taipei's objections to India's rectification 
request.624 Further, Korea considers that negotiation and agreement among Members are the 
"essence of the modification and/or rectification procedure" unde r 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 rectification is declared 
unfounded by the Panel.625 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 
 
615 Canada's third -party response to panel question No. 19, para. 14, and No. 20, para. 16.  
616 Canada's third -party response to panel question No. 20, par a. 17.  
617 European Union's third -party response to Panel question No. 20, para. 26.  
618 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 rectification 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 response to Panel question No. 19, paras. 20 -23). 
619 Japan's third -party response to Panel question No. 19, para. 23.  
620 Japan's third -party response to Panel question No. 19, para. 24.  
621 Japan's third -party response to Panel question No. 19, para. 25.  
622 Japan's third -party response to Panel question No. 19, para. 26.  
623 Japan's third -party response to Panel question No. 20, paras. 31 -32. 
624 Korea's third -party re sponse to Panel question No. 19, para. 12 (referring to Appellate Body Report,  
Brazil – Desiccated Coconut , p. 22).  
625 Korea's third -party response to Panel question No. 19, para. 13.  WT/DS588/R  
 
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  "treaty terms are not based on a subjective intent of one Party, but rather on a c ommon intent of 
all relevant Parties interpreted through the general rule of treaty interpretation".626  
7.228.   The United Kingdom considers that it is not necessary to make the findings requested by 
India because neither Chinese Taipei nor India relies on the dra ft rectification when determining the 
relevant tariff commitments for India.627  
7.229.   The United States argues that there is no legal basis in the DSU for the Panel to determine 
that India's draft rectification request was of a purely formal character and the ob jections to that 
request were unfounded.628 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 pa nel would make findings regarding Member's 
actions under the 1980 Decision.629 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 S chedule.630 Moreover, the United States argues that the 1980 Decision does not 
contemplate recourse to WTO dispute settlement where an objection is made.631 Finally, the United 
States maintains that pending any resolution of the objections raised by other WT O Members, the 
authentic text of India's Schedule remains unaltered.632 
7.3.4.4   Panel 's assessment   
7.230.   We recall that India requests us to find that: (i) Chinese Taipei violated paragraph 3 of the 
1980 Decision by raising an objection "unfounded in law", and (ii) Chin ese Taipei's objection 
constituted an "impediment to India's rights to make a formal rectification to its schedule of 
concessions under the 1980 [Decision]."633 The parties disagree on whether we have a legal basis 
under the DSU to address India's request f or 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 view, 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.634 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.635 Chinese Taipei disagrees that the 1980 Decision is a covered agreement within the 
meaning of Article 1.1 of the DSU.636 Chinese Taipei also maintains 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.637  
7.232.   The parties' arguments raise two issues conc erning 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 covered agreement within the meaning 
of Articl e 1.1 of the DSU. We consider it logical to first determine whether, pursuant to our terms of 
reference, we have jurisdiction over India's request for findings. We will only evaluate whether the 
1980 Decision is a "covered agreement" within the meaning of Article 1.1 of the DSU if we determine 
that we have jurisdiction to address India's request.638 Moreover, if we determine that we lack the 
legal mandate to address India's request for findings, we would not proceed to address the substance 
 
626 Korea's  third-party response to Panel question No. 20, para. 14 (referr ing to Appellate Body Report,  
EC – Computer Equipment , para. 84).  
627 United Kingdom's  third-party response to Panel question Nos. 19 and 20, paras. 4 -5. 
628 United States'  third-party response to Panel question Nos. 19 -20, para. 16.  
629 United States'  third-party response to Panel question Nos. 19 -20, para. 17.  
630 United States' third -party response to Panel question Nos. 19 -20, para. 18.  
631 United States' third -party response to Panel question Nos. 19 -20, para. 19 (referring to Panel Report, 
Russia – Tariff Treat ment, paras. 7.50 -7.56).  
632 United States' third -party response to Panel question Nos. 19 -20, para. 20.  
633 India's second  written submission, para. 113.  
634 India's response to Panel question No. 53, para. 46.  
635 India's response to Panel question No. 53, para.  46. 
636 Chinese Taipei's second written submission, paras. 3.76 -3.78.  
637 Chinese Taipei's response to Panel question No. 53(b), para. 85.  
638 See also Panel Report, EU – Poultry Meat (China) , fn 39 to para. 7.27.  WT/DS588/R  
 
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  of that  request (i.e. whether the rectification request was purely of a formal character and whether 
Chinese Taipei'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 provision 
sets forth the terms o f 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 Chinese Taipei in [its panel 
request] and to mak e such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.639 
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 referred 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.640 We note that Chinese 
Taipei's panel request identifies the specific measures at issue as  "the duties applied by India on 
imports of certain ICT products in excess of the bindings set forth in its [WTO Schedule]". The panel 
request then indicates that  the legal basis of Chinese Taipei's complaint is India's tariff treatment of 
certain ICT prod ucts inconsistent ly with Articles II:1(a) and (b) of the GATT 1994.641  
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 certain ICT products is inconsistent with 
Articles  II:1(a) and (b) of the GATT 1994. To the extent that India's request for findings does not 
concern this matter, it would not fall within our terms of reference.  
7.237.   Turning to assessing whether India's request for findings is within those terms of re ference, 
we note that in response to a question from the Panel concerning the effect of the requested findings 
on Chinese Taipei's claims under Article s II:1(a) and (b), India stated that "if it is found that the 
proposed Draft Rectification is, in fact, o f 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]."642 We also note India's argument in i ts 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 error and are therefore sever ally 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."643  
7.238.   We do not see how finding s that the rectification request was "of a purely for mal character" 
and that Chinese Taipei's objection was "unfounded in law" would modify India's WTO tariff 
commitments or otherwise affect our application of Article s II:1(a) and (b) of the GATT 1994. India 
has clarified that it is not requesting us to cert ify its rectification request.644 In any case, we do not 
read the 1980 Decision to permit a panel to certify a rectification request made under the 1980 
Decision. We note that pursuant to paragraph 3 of the 1980 Decision, changes to a Schedule 
requested thr ough 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 Chinese Taipei 
– including the European Union and Japan, complainants in the other two dispu tes in which the same 
 
639 Constitution Note of the Panel, WT/DS588/8/Rev.1, para. 2. 
640 See e.g. Appellate Body Reports, Argentina – Import Measures , para. 5.11 ; US – Countervailing 
Measures (China) , para. 4.6;  US – Countervailing and Anti -Dumping Measures (China) , para. 4.6 ; and 
Argentina – Import Measures , para. 5.11 . 
641 Chinese Taipei's panel r equest, pp. 1-2. 
642 India's response to Panel question No. 53, para. 49.  
643 India's second written submission, para. 120.  
644 India's second written submission, para. 120  ("India clarifies that it does not see k … certification of 
the Draft Rectification through the dispute settlement mechanism "). WT/DS588/R  
 
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  panelists were appointed645 – 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 Chinese Taipei'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 pro posed 
changes are certified, India's WTO Schedule, as a legal matter, remains unmodified.646 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 Article s 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 Chinese Taipei 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.647 India, in its own words, requests us to find that "Chinese T aipei violated  paragraph 3 of 
the 1980 [Decision]" and "imped[ed] India's rights … under the 1980 [Decision]".648 This, in our 
view, constitutes a claim  by India that Chinese Taipei has violated, and in effect nullified or impaired 
the benefits that accrue to India under , the 1980 Decision.649  
7.240.   Therefore, we consider that India's claim does not concern the matter before the Panel, as 
defined in Chinese Taipei's panel request, namely whether the tariff treatment imposed by India on 
certain ICT products is inco nsistent with Articles II:1(a) and (b) of the GATT 1994.650 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 "objectively assess the 
facts of the dispute and examine the conformity of Members' actions with [the] covered 
agreements".651 We agree that Article 11 requires us to make an objective asses sment 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 findings that would be relevant for 
assessing the consistency of the me asures challenged by Chinese Taipei with the covered 
agreements. To the contrary, India is requesting legal findings that Chinese Taipei acted 
inconsistently with its own WTO obligations.  
7.242.   Article 11 requires  that "a panel should make an objective assessme nt 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".652 In our view, "the matter" before us (under Article 11) 
 
645 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) . 
646 We note that several third parties agree with this understanding. (See e.g. Canada's third -party 
response to Panel question No. 19, para. 14, and No. 20, para. 16; Japan's third -party response to Panel 
question No. 20, paras. 31 -32; 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 ). 
647 Appellate Body Report,  US – Countervailing and Anti -Dumping Measures (China) , para. 4. 8 (referring 
to Appellate Body Report, Korea – Dairy , para. 139 ). 
648 India's second written submission, para. 113. (emphasis added)  
649 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 Chinese Taipei were 
unfounded and lacked legal merit. Th erefore, India is claiming  that: (i) Chinese Taipei violated 
Paragraph 3 of the 1980 [Decision]  by raising an [objection] unfounded in law, and (ii) Chinese 
Taipei's action was an impediment to India's rights to make a formal rectification to its schedule 
of concessions under the 1980 [Decision] . Such claims  warrant an exercise to establish that the 
1980 [Decision]  is a "covered agreement."  
(India's second written submission, para. 113)  
650 We note that a respondent is not precluded from invoking in its defe nce a provision other than those 
which the complainant claims have been violated. However, as we have noted above,  India is not raising a 
defence, but rather is making a claim against Chinese Taipei.    
651 India's second written submission, para. 118.  
652 Emphasis added.  WT/DS588/R  
 
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  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 nothing 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 an d obligations of the Members under it" .653 India quotes the following finding by 
the Appellate Body:  
A decision by a panel to decline to exercise validly established jurisdiction would seem 
to 'diminish' the right of a complaining Member to 'seek the redre ss 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, ther efore, 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'.654  
7.244.   We note, however, that India is not a complaining party in this dispute. By declining to 
"interpret the Draft Rectification"655, 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 reference to determine whether Chinese Taipei 's actions "violated" the 1980 Decision. 
Moreover, we note that India has neither entered into consultations with Chinese Taipei under 
Article  4 of the DSU, nor requested the establishment of a panel by the DSB under Article 6 of the 
DSU. In our view, if we were to assess the substance of India's request for findings, this would in 
fact diminish the rights of the complainant in this dispute, namely its right to seek a positive solution 
through consultations. The Appellate Body's findings in Mexico – Taxes o n 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 panel found that: (i) "WTO M embers 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 abuse provisions to 
circumv ent obligations".656 India argues that for these reasons, we have an obligation to "assess if 
the objection raised by Chinese Taipei is in good faith or if it is merely an instrument to force India 
to grant concessions on products, which it never agreed to. "657  
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 whether Members' acti ons 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. As 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 Members with respect to  WTO dispute settlement.  
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) Chinese Taipei violated 
paragraph 3 of the 1980 Decision by raising an objection unfounded in law; or (ii) Chinese Taipei's 
action was an impediment to India's rights to make a formal rectification to its WTO S chedule under 
the 1980 Decision. We also note that, even if we did indeed have the legal mandate to make the 
 
653 India's second written submission, para. 117.  
654 India's second written submission, para. 117 (quoting Appellate Body Report, Mexico – Taxes on Soft 
Drinks , para. 53) . 
655 India's second written submission, para. 117.  
656 India's second written submission, para. 118 (referring to Panel Report, Russia – Traffic in Transit , 
paras. 7.132 -7.133 ). 
657 India's second written submission, para. 118 . WT/DS588/R  
 
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  findings requested by India, doing so would not assist in resolving this dispute.658 For these reasons, 
we do not consider it necessary to assess whether the 1980 Decision is a "covered agreement" within 
the meaning of Article 1.1 of the DSU, or the substance of  India's arguments that its rectification 
request was purely of a formal nature and Chinese Taipei's objection was inconsistent with its 
obligations under the 1980 Decision.659 
7.3.5   Conclusion  
7.248.   We have addressed above the parties' arguments concerning the ITA, Ar ticle 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 iss ue 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 conse quently 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 Articles II:1(a) and (b)  of the GATT 1994 in 
this dispute by comparing, on the one hand, India's WTO tariff commitments as set forth in its WTO 
Schedule660, and, on the other hand, the tariff treatment applied by India to imported products.  
7.4  Whether India's tariff treatment is inc onsistent with Articles II:1(a) and (b) of the 
GATT 1994  
7.4.1   Overview  
7.250.   Chinese Taipei  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 
commi tments inscribed in India's WTO Schedule. Chinese Taipei  specifically challenges t he tariff 
treatment accorded by India to products falling under the following tariff items  of India's WTO 
Schedule: 8517.12; 8517.61; 8517.62; 8517.70  ex01, ex02, and ex03 ; and 8518.30 ex01.661  
7.251.   For its part, India contests certain assertions by Chinese Taipei regarding the scope and 
content of its WTO tariff commitments, and considers that Chinese Taipei has failed to substantiate 
its burden of demonstrating that the tariff tr eatment of certain products is inconsistent with 
Articles  II:1(a) and (b).662  
7.252.   We proceed with our analysis by assessing each tariff item in turn. We recall that where a 
measure is inconsistent with Article  II:1(b), it is also inconsistent with Article  II:1(a) .663 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 unde r the challenged measures .664 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 accorde d by India to certain 
products; (iii) comparing the challenged tariff treatment to India's WTO tariff commitments; and 
(iv) on the basis of that comparison, forming a conclusion as to whether India is acting inconsistently 
with Articles II:1(a) and (b). In  addition to these four steps, we also consider it useful to address 
certain general issues arising with respect to certain of the tariff items. Where necessary, we address 
 
658 See para. 7.238  above.  
659 See also Panel Report, EU – Poultry Meat (China) , fn 39 to para. 7.27.  
660 Unless otherwise specified, all references in this Report to India's "WTO Schedule" are to the HS2007 
version of that Schedule.  
661 See para. 7.1 above.  
662 See para. 7.2 above.  
663 See para. 7.6 above.  
664 See para. 7.7 above.  WT/DS588/R  
 
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  these general issues at the outset, before conducting our four -step analysis of whe ther India is 
acting inconsistently with Articles II:1(a) and (b).  
7.4.2   Tariff item 8517.12 of India's WTO Schedule  
7.4.2.1   General issues  
7.4.2.1.1   Main arguments of the parties  
7.253.   Chinese Taipei challenges the tariff treatment accorded by India to products falling under 
tariff item 8517.12  of India's WTO Schedule, covering  telephones for cellular networks or for other 
wireless networks .665 Chinese Taipei argues that at the time of the Panel's establishment, India 
classified such products under tariff items 8517.12.11, 8517.12.19  and 8517.12.90 of its First 
Schedule.666 Chinese Taipei submits that pursuant to India's amendment of its First Schedule  to 
reflect the HS2022, " tariff lines 8517.13 and 14 were added merely to reorganize tariff line 8517.12. 
They did not materially change  the scope of the tariff commitment at issue, nor did they remove the 
WTO-inconsistent duty rate. They only changed the products' tariff line numbering and slightly 
changed the description of the products at issue ".667 In response to an argument by India th at the 
measure challenged by Chinese Taipei has ceased to exist, Chinese Taipei disagrees with India, and 
maintains that the amendment to tariff item 8517.12 of India's First Schedule "does not amount [to] 
a change in the scope of products covered by the r elevant tariff lines in India's First Schedule".668 
7.254.   India argues that the measure identified by Chinese Taipei has ceased to exist,  as its First 
Schedule was amended to align it with the HS2022, and therefore the Panel cannot issue rulings or 
recommendations on the measures pertaining to tariff item 8517.12.669 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. "670 In this regard, India argues 
that the scopes and descriptions of tariff items 8517.13 and 8517.14 are different from those of 
tariff item 8517.12.671 India also submits that "the term 'smartphones' does not appear in the ITA[] 
or in the 2007 Schedule. A ccordingly, no commitments exist with respect to such smartphones. 
Further, there exists no certified schedule with respect to sub -headings 8517.13 and 8517.14."672 
India asserts that "[t]he burden of proof is on the complainant to identify the sub -heading under 
which smartphones were classified under HS2007, and whether India has violated its commitments 
viz-a-viz such sub -headings. However, the complainant [has] not made any such claims with regard 
to smartphones."673  India also submits that "[w]ith regard  to 'other telephones for cellular networks' 
classified under sub -heading 8517.14, … such phones would have been classified under 8517.12.11 
or 8517.12.19 of the HS2007 and India's other legal arguments would continue to apply."674 
7.4.2.1.2   Panel's assessment  
7.255.   Befor e turning to assess the merits of the parties' arguments with respect to Chinese Taipei's 
claim concerning products classified under tariff item 8517.12 of India's WTO Schedule, we consider 
it useful to briefly address certain threshold issues concerning o ur terms of reference.  
7.256.   We recall that the measure challenged by Chinese Taipei  is the imposition of customs duties 
on products falling within the scope of tariff item 8517.12 of India's WTO Schedule.675 India argues 
that: (i) the measure as challenged by Ch inese Taipei  has ceased to exist, as a result of certain 
amendments to India's First Schedule; and (ii) Chinese Taipei  has failed to demonstrate that 
"smartphones" fall within the scope of tariff item 8517.12 of India's WTO Schedule. We note that 
these arg uments, on their face, appear to raise threshold issues concerning the scope of Chinese 
Taipei's claim and our terms of reference. Nevertheless, in our view, it is not possible to address the 
 
665 Chinese Taipei's first written submission , paras. 4.1 -4.2. 
666 Chinese Taipei's  first written submission , para. 4.22. 
667 Chinese Taipei's opening statement at the second meeting of the Panel, para. 19.  
668 Chinese Taipei's response to Panel question No. 77(a), para. 63.  
669 India's second written submission, para. 1 04. 
670 India's response to Panel question No. 73, para. 42.  
671 India's response to Panel question No. 73, para. 42.  
672 India's second written submission, para. 104.  
673 India's response to Panel question No. 79(a), para. 56.  
674 India's response to Panel question No. 79(a), para. 55.  
675 Chinese Taipei's panel request, p. 1.  WT/DS588/R  
 
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  merits of these arguments without assessing: (i) as a factual ma tter, the effect, if any, of India's 
amendments to its First Schedule on the measure as challenged by Chinese Taipei; and (ii) as a 
legal matter, whether smartphones are products covered by tariff item 8517.12 of India's WTO 
Schedule, such that the tariff treatment of such products is part of the measure as challenged by 
Chinese Taipei.  
7.257.   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 measure at issue 
has ceased to exist. Finally, 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 Chinese 
Taipei has demonstrated that smartphones are classified under tariff item 8517.12 of India's WTO 
Schedule, such that  the tariff treatment of such products constitutes part of the measure challenged 
by Chinese Taipei  and thereby falls within our terms of reference; and  whether the measure 
challenged by Chinese Taipei  has ceased to exist or has otherwise been amended .  
7.4.2.2   India's WTO tariff commitments  
7.4.2.2.1   Main arguments of the parties  
7.258.   Chinese Taipei  assert s that India's bound duty  rate for products falling under tariff item  
8517. 12 of India's WTO Schedule , covering telephones for cellular networks or for other wireless 
networks, is 0%.676  
7.259.   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.677 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 .678 According to India, the commitments under tariff item 8517.12 were 
undertaken in error, are void pursuant to Articl e 48 of the Vienna Convention, and are therefore 
rendered unbound.679 
7.4.2.2.2   Panel's assessment  
7.260.   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.680 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.681 Moreover, we have declined to make the findings 
requested by India regarding its request to rectify i ts WTO Schedule pursuant to the 1980 
Decision.682  
7.261.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2007 Schedule provides, inter alia , the following 683: 
 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 loc al or wide area network), other than  
 
676 Chinese Taipei 's first written submission, para. 4.14.   
677 India's first written submission, para s. 56-92. 
678 India's first written submission, paras. 151 -165. 
679 India's first written submission, paras. 91-92. 
680 See para. 7.216  above.   
681 See para. 7.81 above.  
682 See para . 7.247  above.  
683 WT/Let/1072.  WT/DS588/R  
 
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   Product description  Bound 
rate 
transmission or reception apparatus of heading 84.43, 85.25, 
85.27 or 85.28.  
8517.1  - Telephone sets, including telephones for cellular networks or 
for other wireless networks:   
8517.12.00  -- Telephones for cellular networks or for other wireless 
networks  0% 
 
7.262.   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, conditi ons, 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 Schedul e.  
7.4.2.3   India's tariff treatment  
7.4.2.3.1   Main arguments of the parties  
7.263.   Chinese Taipei submits that, at the time of the Panel's establishment, India's First Schedule 
set a standard duty rate of 20% on imports of telephones for cellular networks and telephones for 
other wireless networks, which were classified under tariff items 8517.12.11, 8517.12.19 and 
8517.12.90 of that Schedule.684 Chinese Taipei also notes that Notification No. 57/2017 exempted 
from customs duties "[t]elephones for other wireless  networks, other  than cellular  networks", 
classified under tariff item 8517.12.90 of India's First Schedule.685 Chinese Taipei submits that 
telephones for cellular networks remained subject to the 20% duty rate set out in the First Schedule, 
as such product s were not exempted from customs duties.686 Chinese Taipei 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. Chinese Taipei subm its that, 
following these amendments, India'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.687 Chinese Taipei also notes that Notific ation 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 .688 Chinese Taipei submits that all other products classified 
under tari ff items 8517.13 and 8517.14 are subject to the 20% standard duty rate.689 
7.264.   India does not dispute that at the time of the Panel's establishment , it imposed a 20% duty 
rate on telephones for cellular networks, and exempted telephones for other wireless netwo rks from 
customs duties.690 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 8 517.14.00 (namely other telephones for cellular 
networks).691 India submits that Notification No. 57/2017, as amended by Notification No. 57/2021 
exempts certain products classified under tariff item 8517.14.00 (namely other telephones for other 
wireless ne tworks) from customs duties.692 
 
684 Chinese Taipei's  first written submission, para. 4.23 (referring to First Schedule  as of 30 June 2020 , 
(Exhibit TPKM -22)). 
685 Chinese Taipei's  first written submission, para s. 4.19-4.20 (referring to Notification No. 57/2017, 
(Exhibit TPKM -11)).  
686 Chinese T aipei's first written submission, para.  4.24. 
687 Chinese Taipei's response to Panel question No. 77, paras. 63 -68, and No. 82, paras. 82 -85. 
688 Chinese Taipei's response to Panel question No. 82, para. 83 (referring to Notification No. 57/2017, 
(Exhibit TPKM -11), as amended by Notification No. 57/2021, (Exhibit TPKM -64); and General Exemption 
No. 239 as amended by Notification Nos.  22/2018, 37/2018, 69/2018, 75/2018, 2/2019, 24/2019, 02/2020, 
03/2021 and 57/2021, (Exhibit TPKM -65).  
689 Chinese Taipei's response to Panel question No. 82, paras. 82 and 84.  
690 India's first written submission, para. 150.  
691 India's response to Panel questi on No. 81, para. 60.  
692 India's response to Panel question No. 79(a), para. 54.  WT/DS588/R  
 
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  7.4.2.3.2   Panel's assessment  
7.265.   We proceed with our assessment by examining the tariff treatment accorded to products 
that, at the time of the Panel's establishment, fell under tariff item 8517.12 of India's First Schedule. 
We then turn to assess the effects of India's amendment of the First Schedule during these 
proceedings .  
7.266.   It is uncontested 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 item  8517.12, covering "[t]elephones 
for cellular networks or for other wireless networks".693 It is also uncontested that, through 
Notification No. 57/2017, India exempted "[t]elephones for other wireless networks, other  than 
cellular networks" from customs du ties.694 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% 
 
7.267.   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 
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 [lines] 8517 12 11 to 
8517 12 90 and t he entries relating thereto" were "substituted " with tariff item 8517.13.00, relating 
to "smartphones", and tariff item 8517.14.00, relating to "other telephones for other cellular 
networks or other wireless networks".695 India's First Schedule as of 1 January 2022 imposed a 
standard duty rate of 20% on prod ucts classified under tariff items 8517.13.00 and 8517.14.00.696  
7.268.   We also observe that pursuant to India's Notification No. 57/2017, as amended by 
Notification No. 57/2021, India exempts certain products covered by tariff item 8517.14.00, namely 
"telephones  for other wireless networks, other than cellular networks", from customs duties.697 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 t o a tariff treatment of 
20%.698 Therefore, pursuant to Notification No. 57/2017 (as amended) as well as the First Schedule, 
India's tariff treatment of products classified under tariff items 8517.13.00 and 8517.14.00 of its 
First Schedule is presently as fo llows:  
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% 
 
 
693 Chinese Taipei's  first written submission, para. 4.1 5-4.24; India's first written submission, para. 150. 
See also First Schedule  as of 30 June 2020 , (Exhibit TPKM -22). 
694 Notification No. 57/2017, (Exhibit TPKM -11). See also Chinese Taipei's  first written submission, 
paras. 4.15-4.24; and India's response to Panel question No. 79(a), para. 54.  
695 Finance Act 2021, (Exhibit IND -74), p. 176 . 
696 First Schedule, as amended by Finance Act 2021, (Exhibit IND -74), p. 176.  
697 Notification No. 57/2017, (Exhibit TPKM -11), as amended by Notification No. 57/2021, (Exhibit 
TPKM -64). See also India's response to Panel question No. 79(a), para. 55; and Chinese Taipei's response to 
Panel question N o. 82, para. 83.  
698 Chinese Taipei's response to Panel question No. 82, paras. 82 and 84; India's response to Panel 
question No. 8 1, para. 60.  WT/DS588/R  
 
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  7.4.2.4   Comparison of India's tariff treatment to its WTO tariff commitments  
7.4.2.4.1   Preliminary issues  
7.269.   As indicated above, India argues that the measure as challenged by Chinese Taipei has 
ceased to exist, as a consequence of the amendments to India's First Schedule to reflect the HS2022. 
India als o argues that Chinese Taipei has failed to demonstrate that smartphones are products 
classified under tariff item 8517.12 of India's WTO Schedule. We proceed with our comparison of 
India's tariff treatment to its WTO tariff commitments by first assessing t hese preliminary issues.  
7.270.   In our view, it is useful to first address India's arguments concerning Chinese Taipei's  alleged 
failure to demonstrate that smartphones are classified under tariff item 8517.12 of India's WTO 
Schedule. This is because the measure  at issue , as defined by Chinese Taipei, only extends to the 
tariff treatment of products falling under that tariff item. To the extent that a product (such as 
smartphones) falls outside the scope of that tariff commitment, it would also fall outside our t erms 
of reference. Since this assessment will define the scope of the measure as challenged by 
Chinese  Taipei, we consider it useful to first assess this issue, before turning to assess whether the 
measure, as challenged, has ceased to exist.  
7.4.2.4.1.1   Whether the measure at issue includes the tariff treatment of "smartphones"  
Main arguments of the parties  
7.271.   Chinese Taipei 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. Chinese Taipei  
submits that dictionaries and Chapter Note 5 of Chapter 85 as reflecte d in India's Finance Act define 
a smartphone as a "cell phone that includes additional data processing functions".699 Chinese Taipei 
also submits that "as smartphones are a combination of the principal functions of a cell phone and 
data processing functions , smartphones should be classified in accordance with the cell phone 
functions in HS2007 and thus be classified under tariff line 8517.12" .700  
7.272.   India maintains that "the term 'smartphones' does not appear in the ITA [] or in the [HS] 
2007 Schedule."701 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 ."702 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.703 Relying on Chapter 
Note 5 to Chapter 85  in the HS2022 , India consid ers that "smartphones are multifunctional devices, 
and the principal function of these devices is not that of telephones".704 India also submits that 
"since 'smartphones' were not granted a dedicated tariff sub -heading in HS2007, they were 
classifiable unde r different tariff [lines], depending on the functionality of the smartphones".705 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 "tablets too could potentially be classifiable 
as 'smartphones' (within the meaning of HS2022), being capable of making calls over a cellular 
 
699 Chinese Taipei's response to Panel question No. 80(a), paras. 72 -74 (referring to Finance Act 2021, 
(Exhibit IND -74), p. 173); Merriam -Webster Dictionary online, definition of "smartphone, n." 
https://www.merriam -webster.com/dictionary/smartphone ; and Collins Dictionary online, definition of 
"smartphone, n." https://www.collinsdictionary.com/dictionary/english/smart phone ). 
700 Chinese Taipei's response to Panel question No. 80(a), para. 78. See also Chinese Taipei's response 
to Panel question No. 80(a), paras. 76 -77 (referring to HS2007 Section Notes to Section XVI , (Exhibit IND -9), 
Note 3; and HS2007 Chapter Notes to Chapter 8 4, (Exhibit TPKM -63), Note 5).  
701 India's second written submission, para. 104. 
702 India's response to Panel question No. 79(a), para. 56, and No. 80(b), para. 59.  
703 India's response to Panel question No. 79(a), para. 56, and No. 80(b), para. 59. 
704 India's response to Panel question No. 79(a), para. 56, and No. 80(b), para. 59  (referring to Chapter 
Note 5 to Chapter 85, (Exhibit IND -86)). Chapter Note 5 to Chapter 85 of the HS2022 reads: "[f]or the 
purposes of heading 85.17, the term 'smartphones' means telephones for cellular networks, equipped with a 
mobile operating system designed to perform the functions of an automatic data processing machine such as 
downloading and running multiple applications simultaneously, including third -party applications, and whether 
or not integrating other features such as digital cameras and navigational aid systems."  
705 India's response to Panel question No. 79(a) , para. 56, and No. 80( b), para. 59 . WT/DS588/R  
 
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  network."706 India argues  that "smartphones could have been classified under various tariff lines 
under HS2007 (on the basis of the primary functionality of the machine) and not just under 
sub-heading 8517.12."707 
Panel's assessment  
7.273.   We recall that the product description of tariff item  8517.12 of India's WTO Schedule is 
"telephones for cellular networks or for other wireless net works".708 Chinese Taipei submits that 
"smartphones" are "telephones for cellular networks", and are therefore classified under this 
subheading.709 India maintains that smartphones could have been classified under other 
subheadings of its WTO Schedule depend ing on their primary functionality, and not just under 
subheading 8517.12.710 We note that, to the extent that smartphones are not classified under 
subheading 8517.12, they would fall outside the scope of the measure as challenged by Chinese 
Taipei. We ther efore proceed to address whether "smartphones" are classified under subheading 
8517.12 of India's WTO Schedule.  
7.274.   We recall India's argument that the term "smartphones" does not appear in the ITA or in 
the HS2007 Schedule.711 We have rejected India's argument s that the ITA limits the scope of its 
tariff commitments in its WTO HS2007 Schedule.712 Therefore, we consider that the absence of the 
term "smartphones" from the ITA is not determinative of the scope of India's WTO tariff 
commitments. Further, the absence of the term "smartphones" in the HS2007 Schedule is not 
determinative of this issue ei ther because tariff concessions in Members' WTO Schedules apply to 
all products meeting the terms of the concession, when interpreted in accordance with customary 
rules of interpretation.713 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.  
7.275.   The terms of the treaty at issue as reflected in subheading 8517.12 of India's WTO Schedule 
are "telephones fo r cellular networks". We note that the phrase  "telephones for cellular network" is 
not defined in India's WTO Schedule.  
7.276.   We consider, however, that the HS2007 Explanatory Notes may serve as relevant context 
when interpreting India's WTO Schedule, which is based on the HS2007.714 In this regard, we 
observe that the HS2007 Explanatory Notes provide that the product description "[t]elephones for 
cellular networks or for other wireless networks" covers "telephones for use on any wireless 
networks", and indicate that "[s]uch telephones receive and emit radio waves which are received 
and retransmitted, e.g. by base stations or satellites", including, inter alia , "[c]ellular phones or 
mobile phones" and "[s]atellite phones".715 The key point of disagreement between t he parties is 
whether "smartphones" are "cellular phones or mobile phones".  
7.277.   The dictionary meaning of "smartphone" is "a mobile phone capable of running general -
purpose computer applications, now typically with a touch -screen interface, camera, and intern et 
 
706 India's comments on Chinese Taipei's  response to Panel question No. 80(a) , para. 29. 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." 
(India's comments on Chinese Taipei's  response to Panel question No. 80(a) , para. 29 (quoting  WCO, 
HS Committee, 49th Session, "Classification of the Machines Commercially Referred to as 'Tablet Computers'" 
(13 February 20 12) document NC1730E1a; and WCO, HS 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 , (Exhibit IND -87))).  
707 India's comments on Chinese Taipei's  response to Panel question No. 80(a) , para. 29. 
708 See para. 7.261  above.  
709 Chinese Taipei's response to P anel question No. 80(a), paras. 72 -78. 
710 India's comments on Chinese Taipei's response to Panel question No. 80(a), para. 29.  
711 India's second written submission, para. 104.  
712 See para. 7.81 above.  
713 See para. 7.65 above.  
714 Appellate Body Report, EC – Computer Equipment , para. 89.  
715 HS2007 Explanatory Notes to Heading  8517, (Exhibit IND -8). WT/DS588/R  
 
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  access" .716 Other dictionaries define "smartphone" as a "cell phone that includes additional software 
functions (such as email or an Internet browser)"717 and "a mobile telephone with computer features 
that may enable it to interact with computerized systems and access the web".718 The foregoing 
suggests that "smartphones" are indeed "telephones for cellular networks", to the extent that they 
have the same f unctions as (and indeed are defined  as) "mobile phones" and "cell phones".  
7.278.   However, t he dictionary definitions described above indicate that "smartphones" have 
functions additional  to those of "telephones ", such as "computer features" . Given that smartpho nes 
have various functions, the parties disagree on whether such products would necessarily be classified 
under subheading 8517.12.719 In this regard, we observe that, pursuant to  the General Rules for the  
Interpretation of the HS, classification shall be d etermined according to the terms of the headings 
and any relative Section or Chapter Notes. These Rules further provide that classification of goods 
shall be determined according to the terms of those subheadings and any related Subheading 
Notes .720  
7.279.   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 fo rm a whole and other machines designed for the purpose 
of performing two or more complementary or alternative functions are to be classified 
as if consisting only of that component or as being that machine which performs the 
principal function .721  
7.280.   Therefor e, for composite machines falling under Chapter 85, including subheading 8517.12, 
the general rule is to classify such products "as being that machine which performs the principal 
function ". We note that the definitions of "smartphone" set out above indica te that the principal 
function of a smartphone is that of a "cell phone" or a "mobile phone". The other functionalities, 
which indeed differ among smartphones, are additional  functions or capabilities. In this light, we 
understand that the General Rules fo r the Interpretation 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.  
7.281.   We understand that the term "smartphones" was introduced into the HS nomenclature 
through the HS2022 amendment. We consider that the HS2022 may constitute relevant context to 
verify our understanding of where such products were classified in the HS2007. In this regard, we 
note that Chapter Note 5 to Chapter 85 of the HS2022 provides that  for the purposes of heading 
8517, the term "smartphones" means " telephones for cellular networks , equipped with a mobile 
operating system designed to perform the functions of an automatic data processing machine such 
as downloading and running multiple ap plications simultaneously, including third -party applications, 
and whether or not integrating other features such as digital cameras and navigational aid 
systems."722 This definition is consistent with the dictionary definitions we have referred to above. 
Moreover, it supports our assessment that the principal function of smartphones is that of telephones 
for cellular networks, with their additional capabilities being ancillary functions. Indeed, as this 
 
716 Oxford  English Dictionary online, definition of "smartphone"  
https://www.oed.com/view/Entry/381083?redirectedFrom=smartphones#eid  (accessed 4 October 2022) .  
717 Merriam -Webster Dictionary online, definition of "smartphone" https://www.merriam -
webster.com/dictionary/ smartphone  (accessed 4 October 2022) . 
718 Collins Dictionary online, definition of "smartphone" 
https://www.collinsdictionary.com/dictionary/english/smartphone  (4 October 2022).   
719 Chinese Taipei's response to Panel question No. 80(a), paras. 72 -78; India's comments on Chinese 
Taipei's response t o Panel question No. 80(a), para s. 28-29. For India, because of these additional functions, 
"the principal function no longer appears to be that of a telephone." Therefore, according to India, 
smartphones " were classifiable under different tariff items, de pending on the functionality of the smartphones ." 
(India's comments on Chinese Taipei's response to Panel question No. 77, para. 26).  
720 General Rules for the Interpretation of the Harmonized System, (Japan's third -party Exhibit JPN-60), 
paras. 1 and 6.  
721 HS2007 Section Notes to Section XVI , (Exhibit IND -9), Note 3. (emphasis added)  
722 Chapter 85 of the HS2022, (Exhibit IND -86), Chapter Note 5. (emphasis added)  WT/DS588/R  
 
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  definition indicates, some of the additional functions  that India refers to, such as "photography and 
videography"723 are not core functions of smartphones.724  
7.282.   The structure and content of the HS2022 further supports this interpretation. The relevant 
sections of the HS2022 read as follows725:  
 Product descript ion 
8517 Telephone sets, including smartphones and other telephones for cellular networks  
or for other wireless networks; other apparatus for the transmission or reception of 
voice, images or other data, including apparatus for communication in a wired or 
wireless network (such as a local or wide area network), other than transmission 
or recep tion apparatus of heading 84.43, 85.25, 85.27 or 85.28.  
 -  Telephone sets, including smartphones and other telephones for cellular 
networks  or for other wireless networks:  
8517.11 -- Line telephone sets with cordless handsets  
8517.1 3 -- Smartphones  
8517.1 4 -- Other telephones for cellular networks or for other wireless networks  
 
7.283.   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."726 Subheading 8517.14, in 
turn, refers to " [o]ther telephones for cellular networks or for other wireless networks". The use of 
the word "other"727 preceding the term "tele phones for cellular networks" in heading 8517  and in 
subheading 8517.14 indicates that products in addition  to smartphones are also telephones for 
cellular networks. Thus, the HS2022 indicates that "smartphones" are "telephones for cellular 
networks" . The fact that the HS2022 further splits the classification of "telephones for cellular 
networks" into two subheadings (namely smartphones, and a residual category, comprising "other 
telephones for cellular networks") confirms this conclusion.  
7.284.   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 networks. We 
understand 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 ".728 
Moreover, the product description attached to tariff item 8517.14.00 of the First Schedule is " [o]ther  
telephones for cellular networks ". These product descriptions  suggest that smartphones  are a type 
of telephone for cellular networks . We further note that the Finance Act 2021 itself clarifies that 
"[f]or the purposes of heading 8517, the term 'smartphones' means telephones for cellular 
networks ."729 
7.285.   While India argues that " smartphones could have been classified under various tariff lines 
under HS2007 (on the basis of the primary functionality o f the machine)", India does not 
demonstrate under which subheading of its WTO Schedule it considers such products should have 
been classified. We note that India suggests that tablet computers, which are defined as "machines 
which are 'designed to be prima rily operated by using its  touch screen" because they "can process 
data, execute programs, and connect to the Internet via a wireless network in order to, for example, 
exchange and manage e -mails, exchange or download files, download software applications,  conduct 
 
723 India's response to Panel question No. 80(b), para. 59. See also India's response to Panel questi on 
No. 79(a), para. 56.  
724 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 -86), Chapter Note 5) . 
(emphasis added)  
725 Emphasis added.  
726 Chapter 85 of the HS2022, (Exhibit IND -86). (emphasis added)  
727 The word "other" means "[s] eparate or distinct from that or those already specified or implied; 
different; (hence) further, additional ." (Oxford  English Dictionary online, definition of " other " 
https://www.oed.com/view/Entry/133219?rskey=Z7lVMl&result=1&isAdvanced=false#eid  (accessed 17 
October 2022)).   
728 Emphasis added. We recall that the description of heading 8517 in the First Schedule  at the time of 
the Panel's establish ment 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 -74), p. 176 ).  
729 Finance Act 2021, No. 13 of 2021, (Exhibit IND -74), p. 44. (emphasis added)  WT/DS588/R  
 
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  video or VoIP ('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."730 India also submits that it "does not take a definitive position on the issue".731 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 n ot 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.  
7.286.   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.  
7.4.2.4.1.2   Whether the challenged measure has ceased to exist  
Main arguments of the parties  
7.287.   India argues t hat, following the "amendments" to its First Schedule, "subheading 8517.12 
has ceased to exist", and therefore the measure challenged by Chinese Taipei has ceased to exist. 
India submits that "[s]martphones and [t]elephones for cellular networks are now cl assified 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 is to be c lassified under a tariff entry, then the heading 
and description both 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 2007 Sch edule. Accordingly, no commitments exist with respect to such smartphones." 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 Chinese  Taipei has ceased to 
exist, and the Panel cannot issue any rulings or recommendation on the measures pertaining to 
sub-heading 8517.12."732  
7.288.   Chinese Taipei submits that the measure at issue has not ceased to exist. Chinese Taipei 
argues that pursuant to th e amendments introduced by the Finance Act 2021, tariff items 
8517.130.00 and 8517.14.00 "merely replace[d] tariff line 8517.12, and they are still subject to a 
WTO-inconsistent rate of duty".733 Chinese Taipei maintains that the amendment is within the Pan el's 
terms of reference because: (i) the panel's terms of reference must be broad enough to include 
subsequent amendments734; (ii) the amendments did not change the essence of the original 
measure, as they "o nly changed the products' tariff line numbering a nd slightly changed the 
description of the products at issue "735; and (iii) inclusion of the amendments within the panel's 
terms of reference is necessary to secure a positive solution to the dispute .736 Chinese Taipei also 
argues that even if the Panel were  to find that the measure has expired, the Panel should still make 
findings on this measure.737 Chinese Taipei submits that in case a measure is withdrawn after a 
panel's establishment, the panel normally refrains from making recommendations. However, for 
Chinese Taipei, "[t]here is no indication that India has withdrawn the measure at issue ."738 Chinese 
 
730 India's comments on Chinese Taipei's response to Panel question No. 80(a), para. 29.  
731 India's comments on Chinese Taipei's response to Panel question No. 80(a), para. 29.  
732 India's second written submission, para. 104.  
733 Chinese Taipei's opening statemen t at the second meeting of the Panel, para. 16. See also Chinese 
Taipei's response to Panel question No. 73, para. 51.  
734 Chinese Taipei's opening statement at the second meeting of the Panel, para. 18 (referring to 
Constitution note of the Panel ; panel r equest, p. 2). See also Chinese Taipei's response to Panel question 
No. 77(b), para. 67.  
735 Chinese Taipei's opening statement at the second meeting of the Panel, para. 19 (referring to Panel 
Report, China – Raw Materials , Annex F -1, para. 16; and Appellate Body Report, EC – Chicken Cuts , 
para. 157). 
736 Chinese Taipei's opening statement at the second meeting of the Panel, para. 20.  
737 Chinese Taipei's opening statement at the second meeting of the Panel, para. 2 1 (referring  to 
Appellate Body Report s, EU – Fatty Alcohols , para. 5.179; EC – Bananas III (Article 21.5 – Ecuador) , paras. 
268-270; Panel Reports, India – Additional Import Duties , para. 7.97; Dominican Republic – Import and Sale of 
Cigarettes , para. 7.344 ; Argentina  – Footwear (EC) , paras. 8.41 – 8.42; Chile – Price Band System , para. 
7.114;  and Thailand – Cigarettes (Philippines) , para. 7.47 ). See also Chinese Taipei's response to Panel 
question No. 73, para. 53.  
738 Chinese Taipei's opening statement at the second me eting of the Panel, para. 2 1 (referring to  
Appellate Body Report, US – Certain EC Products , paras. 81 -82). WT/DS588/R  
 
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  Taipei requests the Panel to make findings with regard to the measure as it existed on the date of 
the Panel's establishment and as it existed thereafter.739  
Panel's assessment   
7.289.   We observe that in its panel request, Chinese Taipei challenged "the duties applied by India 
on imports of certain ICT products in excess of the bindings set forth in … India's WTO Schedule 
…."740 The panel request also states that "[t]he [ICT] products concerned fall within the scope of the 
bindings included in India's WTO Schedule with respect to the following tariff lines (based on the HS 
2007)": inter alia , 8517.12.741 Therefore, the measure at issue is the imposition of customs duties 
by India on products falling within the scope of tariff item 8517.12 of India's WTO Schedule.  
7.290.   We recall that the product description attached to tariff item 8517.12 of India's WTO 
Schedule is "[t] elephones for cell ular networks or for other wireless networks ".742 At the time of the 
Panel's establishment, India classified these products under tariff items 8517.12.11, 8517.12.19 and 
8517.12.90 of its First Schedule.743 India's First Schedule  as of 1 January 2022 " substi tuted" tariff 
items 8517.12.11, 8517.12.19 and 8517.12.90 with tariff items 8517.13.00 and 8517.14.00.744 
Therefore, as India argues, tariff item 8517.12 does not exist in its First Schedule subsequent to the 
amendments. We also observe that, as India argues, the product descriptions attached to tariff items 
8517.13.00 and 8517.14.00 differ from those attache d to tariff items 8517.12.11, 8517.12.19 and 
8517.12.90 of the First Schedule at the time of the Panel's establishment.  
7.291.   However, these facts are not dispositive of whether the measure challenged by Chinese 
Taipei has ceased to exist. As we have observed ab ove, Chinese Taipei challenges the imposition of 
customs duties on products falling under tariff item 8517.12 of India's WTO Schedule . India's WTO 
Schedule has not been amended.745 It is uncontested that products falling under tariff item 8517.12 
of India's  WTO Schedule were previously classified under tariff items 8517.12.11, 8517.12.19 and 
8517.12.90 of India's First Schedule. We also recall India's submission that "'other telephones for 
cellular networks' classified under sub -heading 8517.14 [of India's F irst Schedule  as of 1 January 
2022] … would have been classified under 8517.12.11 or 8517.12.19 of the HS2007".746 Therefore, 
such products fall within the scope of tariff item 8517.12 of India's WTO Schedule. Moreover, given 
our finding above that "smartph ones", classified under tariff item 8517.13.00 of India's First 
Schedule  as of 1 January 2022, are telephones for cellular networks, such products also fall within 
the scope of tariff item 8517.12 of India's WTO Schedule.  
7.292.   We recall that the measure as cha llenged by Chinese Taipei is the tariff treatment accorded 
to products classified under tariff item 8517.12 of India's WTO Schedule, namely "telephones for 
cellular networks or for other wireless networks". We have concluded above that "smartphones" and 
"other telephones for cellular networks"  constitute "telephones for cellular networks or for other 
wireless networks", which fall within the scope of tariff item 8517.12 of India's WTO Schedule.747 
We also note that, since 1 January 2022, India continues to i mpose customs duties on these 
products. We therefore conclude that the measure as challenged by Chinese Taipei has not ceased 
to exist.  
7.293.    Regarding Chinese Taipei's request that we make distinct assessments of India's 
WTO-consistency with respect to the si tuation before and after India's amendment of its First 
Schedule , we note that the changes to India's First Schedule have changed neither the measure at 
issue nor the basis for Chinese Taipei to claim that the measure is inconsistent with Article s II:1(a) 
and (b).  We therefore see no reason to make distinct findings regarding the WTO-consistency of the 
measure as it existed on the date of the Panel's establishment and as it existed thereafter . We 
therefore proceed with our analysis by assessing the WTO -consistency of the measure at issue based 
 
739 Chinese Taipei's response to Panel question No. 73, para. 54.  
740 Chinese Taipei 's panel request , p. 1.  
741 Chinese Taipei 's panel request , p. 1.  
742 WT/Let/1072.  
743 India's First Schedule  as of 30 June 2020 , (Exhibit TPKM -22). 
744 Finance Act 2021, (Exhibit IND -74), p. 176.  
745 Indeed, India notes that "there exists no certified schedule with respect to sub -headings 8517.13 
and 8517.14".  (India's second written submission, para. 104).  
746 India's response to Panel question No. 79(a), para. 55.  
747 See para. 7.291  above.  WT/DS588/R  
 
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  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).  
7.4.2.4.2   Comparison of applied and bound duty rates  
7.294.   We recall that pursuant to its WTO Schedule, India is obligated to accord unconditional 
duty-free treatment to telephones for cellular networks or for other wireless networks. We also recall 
that, effective 1 January 2022, such products are classified under tariff items 8517.13.00 and 
8517.14.00 of India's First Schedule.  
7.295.   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 networks" covered under tariff item 8517.14.00 
from customs duties.  
7.296.   Therefore, with regard to smartphones and other telephones for other cellula r networks, 
India imposes a duty rate that is in excess of the bound duty rate set forth in India's WTO Schedule. 
India exempts "other telephones for other wireless networks" from customs duties, and therefore 
accords to such products unconditional duty -free treatment, in accordance with the terms of its 
India's WTO Schedule.  
7.4.2.5   Conclusion  
7.297.   Based on the foregoing, we find that India's tariff treatment of certain products, falling within 
the scope of tariff item 8517.12 of India's WTO Schedule, is inconsistent with Article II:1(b), first 
sentence, of the GATT 1994, because certain such products are subject to ordinary customs duties 
in excess of those set forth and provided in India's WTO Schedule.  
7.298.   We recall that the application of ordinary customs duties in ex cess of those provided for in 
a Member's Schedule, inconsistent with the first sentence of Article II:1(b), also constitutes "less 
favourable" treatment within the meaning of Article II:1(a). Consequently, we find that India's tariff 
treatment of certain s uch 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  of India's WTO Schedule  
7.4.3.1   India's WTO tariff commitments  
7.4.3.1.1   Main arguments of the pa rties   
7.299.   Chinese Taipei asserts  that India's bound duty  rate for products falling under tariff item  
8517.61 of India's WTO Schedule , base stations,  is 0%.748 
7.300.   India contends that the tariff commitments under tariff item 8517.61 as reflected in its WTO 
Schedul e based on the HS2007 were certified in error.749 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 .750 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.751 
7.4.3.1.2   Panel's assessment  
7.301.   We have addressed India's arguments that its WTO Sch edule was certified in error above, 
and held that India's tariff commitments are set forth  in India's WTO Schedule.752 We have also 
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff 
 
748 Chinese Taipei's first writte n submission, para. 4.31.  
749 India's first written submission, paras. 56 -92. 
750 India's first written submission, paras. 168 -178. 
751 India's first written submission, paras. 91 -92. 
752 See para. 7.216  above.   WT/DS588/R  
 
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  commitments in its WTO HS2007 Schedule.753 Moreover, we have declined to make the findings 
requested by India regarding its request to rectify its WTO Schedule pursuant to the 1980 
Decision.754 
7.302.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2007 Schedule provides, inter alia , the following755: 
 Product description  Bound 
rate 
8517.61  -- Base stations   0% 
 
7.303.   A review of India's WTO Schedule  shows t hat India committed to a bound duty rate of 0% 
for products falling under tariff item  8517.61 , namely "[b]ase stations".756 We also note that India 's 
WTO Schedule does not indicate any terms, qualifications or con ditions  that must be met in order 
for products under tariff item 8517.61 to receive the 0% bound duty rate .757 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 a rguments of the parties  
7.304.   Chinese Taipei argues that on the date of establishment of the Panel, India's First Schedule 
set a standard duty rate of 20% on imports of base stations, which India classifies under tariff item 
8517.61 of its First Schedule.758 Chinese Taipei also submits that pursuant to Serial No. 425 of 
Notification No. 50/2017, India exempts base station controllers, base transreceiver stations, and 
antenna sy stems 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 providing Public Mobile 
Trunked Service.759 Chinese Taipei maintains that this condition is n ot "procedural and documentary 
formalities for the importation of goods", but rather, is a precondition for some of the products at 
issue to be exempted from duties.760 
7.305.   India does not dispute that the applied duty rate on base stations is 20%.761 India also  does 
not dispute that certain products are exempt from customs duties if they meet the condition set out 
in Serial No. 425. However, India maintains that "the licensing requirement is applicable for the 
possession of the specified wireless apparatus in the  country – whether it is procured domestically 
or imported."762 According to India, there is no requirement to record such "procedural and 
documentary formalities for the importation of goods" in India's WTO Schedule.763 India also submits 
that Serial No. 42 5 was omitted from Notification No. 50/2017 through Notification No.  02/2022.764 
Finally, India maintains that the products covered by Serial No. 425 (base station controllers, base 
transreceiver stations, and antenna systems) are " sub-systems and not compl ete base stations ", 
and are therefore not covered by tariff item 8517.61.00 of India's First Schedule.765 
 
753 See para.  7.81 above.  
754 See para. 7.247  above.  
755 WT/Let/1072.  
756 WT/Let/1072.  
757 WT/Let/1072.  
758 Chinese Taipei's first written submission, para. 4.37 (referring to First Schedule  as of 30 June 2020 , 
(Exhibit TPKM -22), p. 788).  
759 Chinese Taipei's response to Panel question No. 59, para. 102 , and No.  83, paras. 86 -89 (referring to 
Notification No. 5 0/2017, (Exhibit IND -40)).  
760 Chinese Taipei's comments on India's response to Panel question No. 75.  
761 India's first written submission, para. 166.  
762 India's response to Panel question No. 74, para. 44 (referring to Circular No. 04/2022 (27 February 
2022) , (Exhibit IND -80); Indian Wireless Telegraphy Act 1933, (Exhibit IND -81); and Notification No. 71 (25 
September 1953) , (Exhibit IND -82)). 
763 India's response to Panel question No. 74, para. 45.  
764 India's response to Panel question No. 94.  
765 India's response to Panel question No. 94.  WT/DS588/R  
 
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  7.4.3.2.2   Panel's assessment  
7.306.   India's First Schedule imposes a  standard duty rate  of 20%  on products falling under tariff 
item 8517.61.766  
7.307.   At the time of the Panel's establishment, Serial No. 425 of Notification No. 50/2017 
exempt ed from customs duties base station controllers , base transreceiver stations , and antenna 
systems , if imported by a person licenced by the Department of Telecommunic ations for the purpose 
of providing Public Mobile Radio Trunked Service .767 Notification No. 02/2022 amended 
Notification  No. 50/2017 and omitted Serial No. 425 from that Notification with effect from 
1 February 2022.768 Therefore, with effect from 1 Februar y 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.769  
7.308.   In sum, we find that India imposes a duty rate of 20% on all products falling under tari ff 
item 8517.61.   
7.4.3.3   Comparison between India's WTO tariff commitments  and its tariff treatment  
7.309.   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 ite m 8517.61 of that Schedule.  
7.310.   We have found that India imposes a 20% customs duty on products falling under tariff item 
8517.61 of its First Schedule. We consider that such products are covered by India's WTO tariff 
commitments with respect to base stations , falling under tariff item 8517.61 of India's WTO 
Schedule. A comparison between India's bound duty rate and India's tariff treatment indicates 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  
7.311.   Based on the foregoing, we find that India's tariff treatment of base stations , falling within 
the scope of tariff item 8517. 61 of India's WTO Schedule, is inconsistent with Article II:1(b), first 
sentence, of the GATT 19 94, because such products are subject to ordinary customs duties in excess 
of those set forth and provided in India's WTO Schedule.  
7.312.   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 ta riff 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.  
 
766 First Schedule  as of 30 June 2020 , (Exhibit TPKM -22), p. 788.  
767 Serial No. 425  of Notification No. 5 0/2017, (Exhibit IND -40). 
768 Notification No. 02/2022, (Exhibit IND -88). 
769 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. 94). Given that Serial 
No. 425 is no longer in effect, we do not consider it necessary for the resolution of this dispute to address the 
classification of these products.  WT/DS588/R  
 
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  7.4.4   Tariff item 8517.62 of India's WTO Schedule  
7.4.4.1   India's WTO tariff commitments  
7.4.4.1.1   Main  arguments of the parties   
7.313.   Chinese Taipei  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%.770  
7.314.   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.771 India maintains that it did not make 
commitments on ma chines 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 
under the ITA  or the HS1996 .772 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.773 
7.4.4.1.2   Panel's assessment  
7.315.   We have addressed India's arguments that its WT O Schedule was certified in error above, 
and held that India's tariff commitments are set forth  in India's WTO Schedule.774 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.775 We have also considered that the fact that a product 
is covered by the ITA Expansion does not necessarily imply that such product did not already fall 
within the scope of tariff concessions set forth in relevant Members' WTO Schedules.776 Moreover, 
we have declined to make the findings requested by India regarding its request to rectify its WTO 
Schedule pursuant to the 1980 Decision.777 
7.316.   Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's 
WTO HS2007 Sched ule provides, inter alia , the following778: 
 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% 
 
7.317.   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, includin g switching and routing 
apparatus ".779 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 .780 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 apparatus  falling under 
tariff item  8517.6 2 of its WTO Schedule.  
 
770 Chinese Taipei's first written submission , paras. 4.4 4.  
771 India's first written submission, paras. 58 -92. 
772 India's first written submission, paras. 190 -195. 
773 India's first written submission, paras. 91 -92. 
774 See para. 7.216  above.  
775 See para. 7.81 above.  
776See para. 7.77 above.  
777 See para. 7.247  above.  
778 WT/Let/1072.  
779 WT/Let/1072.  
780 WT/Let/1072.  WT/DS588/R  
 
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  7.4.4.2   India's tariff treatment  
7.4.4.2.1   Main a rguments of the parties  
7.318.   Chinese Taipei argues that India's First Schedule sets a standard duty rate of 20% on imports 
of certain products which India classifies under tariff  item 8517.62.90 of its First Schedule, namely 
certain machines for the reception, conversion and transmission or regeneration of voice, images or 
other data, including switching and routing apparatus.781 Chinese Taipei submits that 
Notification  No. 24/2005  initially exempted "all goods" under  tariff item 8517 from tariff duties782, 
but Notification No. 58/2017  subsequently limited the scope of the exemption to  certain products 
which did not include those covered by tariff item 8517.62.90.783 Chinese Taipei al so submits that 
Notification No. 57/2017, as amended by Notification No. 22/2018, reduced the duty rate applicable 
to certain products falling under tariff item 8517.62.90 to 10%.784 Chinese Taipei also submits that 
Notification No. 57/2017, as subsequently  amended by Notification No. 02/2019, expanded the list 
of products not covered by the reduced 10% duty rate.785 Chinese Taipei submits that products not 
covered by that notification were subject to the 20% duty rate set out in the First Schedule.786 
Chinese  Taipei further notes that Notification No. 24/2005, as amended by Notification  No.  36/2019 
exempts "routers" from customs duties.787 Thus, according to Chinese Taipei, India imposes a duty 
rate of 10% or 20% to products falling under tariff item 8517.62.90788, except for routers which are 
exempted from customs duties.789  
7.319.   India submits that the applied duty rate on products classified un der tariff item 8517.62.90 
of the First Schedule is 10% or 20%.790 India notes that  Notification No. 57/2017 , which reduces 
the applicable duty rate to 10% for certain products covered by tariff item 8517.62.90 , applies to 
products covered by tariff items " 8517.62.90 or 8517.69.90".791 India submits that the products 
described in that Notification "may not be classified under tariff item 8517.62.90".792 India argues 
that Chinese Taipei  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.793 Thus, according to India, 
those goods "fall outside the scope of the dispute to the extent they are appropriately classified 
under sub -heading 8517.69".794  
 
781 Chinese Taipei's first written submission, para. 4.51 (referring to First Schedule as  amended by the 
Finance Bill 2018, (Exhibit TPKM -19)). See also ibid., para. 4.54.  
782 Chinese Taipei's first written submission, paras. 4.45 -4.47 (referring to Notification  No. 24/2005 , 
(Exhibit TPKM -7)). 
783 Chinese Taipei's first written submission, para. 4.50 (referring to Notification No. 24/2005 as 
amended Notification No. 58/2017, (Exhibit TPKM -14)). 
784 Chinese Taipei's first written submission, para. 4.51 (referring to Notification No. 57/2017, 
(Exhibit  TPKM -11), as amended by Notification No. 22/2018, (Exhibit TPKM -25)).  
785 Chinese Taipei's first written submission, paras. 4.52 -4.53 (referring to Notification No. 57/2017 , 
(Exhibit TPKM -11), as amended by Notification No. 02/2019, (Exhibit TPKM -27)). According to Chinese Taipei, 
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 of 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 controllers and session border controllers; (vii) Carrier Et hernet Switch, Packet Transport Node 
products, and Multiprotocol Label Switching Transport Profile products; and (viii)  Multiple Input/Multiple Output 
and Long Term Evolution products.  
786 Chinese Taipei's first written submission, paras. 4.52 -4.54. 
787 Chinese Taipei's first written submission, para. 4.55 (referring to Notification No. 24/2005, 
(Exhibit  TPKM -7), as amended by Notification No. 36/2019, (Exhibit TPKM -28)). 
788 Chinese Taipei's f irst written submission, para. 4.54.  
789 Chinese Taipei's first written submission, paras. 4.55 and 5.12.  
790 India's first written submission, para. 179.  
791 India's first written submission, paras. 181 -182 (referring to Notification No. 57/2017, 
(Exhibit  IND-41)). 
792 India's first written submission, para. 182.  
793 India's response to Panel question No. 76, para. 49. 
794 India's response to Panel question No. 84(a), para. 64.  WT/DS588/R  
 
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  7.4.4.2.2   Panel's assessment  
7.320.   We observe that India's First Schedule  provides as follows with regard to tariff item 
8517.62795: 
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 l ine 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% 
 
7.321.   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 transmission or 
regeneration of voice, images or other data, including switching a nd routing apparatus. Chinese 
Taipei's claim and arguments relate exclusively to the tariff treatment accorded to products classified 
under this residual category, i.e. tariff item 8517.62.90.  
7.322.   The applied duty rate for products classified under tariff item 8517.62.90 is subject to several 
customs notifications. We observe that Notification No. 36/2019  presently exempts routers, falling 
under tariff item 8517.62.90, from customs duties. Thus, Ind ia accords unconditional duty -free 
treatment  to such products .796 
7.323.   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% .797 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 u nder tariff item 8517.62.90 (other than 
routers798) became subject to a duty rate of 10% . 
7.324.   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 follows799: 
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 Switch, Packet Transport Node (PTN) products, 
Multiprotocol Label Switching -Transport Profile (MPLS -TP) products  
 
795 India's First Schedule  as of 30 June 2020 , (Exhibit TPKM -22). 
796 Notification No. 24/2005 , (Exhibit TPKM -7), as amended by Notification No. 36/2019, 
(Exhibit  TPKM -28). See also Chinese Taipei's first written submission, para. 4.55.  
797 Notification No. 57/2017 as amended by  Notification No. 22/2018 , (Exhibit IND -41). 
798 We recall that in India's customs regime, two or more customs notifications may apply 
simultaneously, such that an importer can benefit from the most beneficial tariff treatment available under any 
applicable notification. (See para. 2.13 above).  
799 Notification No. 57/2017 as amended by  Notification No. 75/2018 , (Exhibit IND -41). WT/DS588/R  
 
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  S. No.  Tariff item  Description  
(c) Multiple Input/Multiple Output (MIMO) and Long Term Evolution 
(LTE) products  
 
7.325.   All other goods falling under tariff item 8517.62.90 that were not listed under Serial No. 20 
remained subject to a reduced duty rate of  10% (except for routers, which, as indicated above, are 
subject to unconditional duty -free treatment).  
7.326.   Finally, Notification No. 57/2017 was amended by  Notification No. 02/2019, which merged 
Serial Nos. 20 and 21 as follows800:  
S. No.  Tariff item  Descrip tion 
20 8517.62.90 
or 
8517.69.90  (a) Wrist wearable devices (commonly known as smart watches)  
(b) Optical transport equipment  
(c) Combination of one or more of Packet Optical Transport Product or 
Switch (POTP or POTS)  
(d) Optical Transport Network (OTN) products  
(e) IP Radios  
(f) Soft switches and Voice over Internet Protocol (VoIP) equipment, 
namely, VoIP phones, media gateways, gateway controllers and 
session border controllers  
(g) Carrier Ethernet Switch, Packet Transport Node (PTN) pro ducts, 
Multiprotocol Label Switching -Transport Profile (MPLS -TP) products  
(h) Multiple Input/Multiple Output (MIMO) and Long Term Evolution 
(LTE) products  
 
7.327.   Thus, taking into account all evidence before us, we understand that:  
a. Pursuant to Notification No. 36/2019 , routers , classified under tariff item 8517.62.90 of 
India's First Schedule, are unconditionally exempted from all customs duties ; and  
b. All other goods falling under tariff item 8517.62.90 are subject to a reduced duty r ate of 
10%, except for those products listed under Serial No. 20 of Notification No. 57/2017, as 
amended by Notification No. 02/2019, which are subject to the standard  duty rate of 20%.  
7.328.   We note that the parties disagree on whether the products listed unde r 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. Chinese Taipei submits that they are  covered 
by tariff item 8517.62.90801, while India  maintains that Chinese Taipei has failed to demonstrate 
that they are classified under that tariff item. For India, to the extent that these products are 
appropriately classified under tariff item 8517.69, such products are outside the scope of the presen t 
dispute.802  
7.329.   At this stage of our analysis, we do not consider it necessary to address whether the tariff 
treatment of certain products falls outside the scope of Chinese Taipei's claim. We simply note, as a 
factual matter, the tariff treatment described above. We address below, in the context of our 
comparison of that tariff treatment to India's WTO legal obligations, the question of whether certain 
tariff treatment falls outside the scope of Chinese Taipei'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  
7.330.   Chinese Taipei argues that products falling under tariff item 8517.62.90 of India's First 
Schedule are classified under tariff item 8517. 62 of India's WTO Schedule, which are therefore 
required to be subject to duty -free treatment.803 In response to India's argument that the products 
 
800 Notification No. 57/2017 as amended by  Notification No. 02/2019, (Exhibit IND -41). 
801 Chinese Taipei's response to Panel question No. 84 (c), paras. 93 -94. 
802 India's response to Panel question No. 84 (a), para. 64.  
803 Chinese Taipei's first written submission, para. 5.10.  WT/DS588/R  
 
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  listed in Notification No. 02/2019 and subject to a 20% duty rate may be classified under tariff item 
8517.62.90 or 8517.69.90, Chinese Taipei  submits that such  products are classified  under tariff item 
8517.62  and that, based on India's customs notifications, "India itself agrees that each of the listed 
product can be classified under tariff line 8517.62" .804 For Chinese Taipei, "the fact that there could 
be certain products that are classified under tariff item 8517.69.90 subject to a 20% customs duty 
is not relevant to [Chinese Taipei's] claims under tariff line 8517.62.90".805 Chinese Taipei maintains 
that to the extent India imposes customs duties on produc ts falling under tariff item 8517.62, India 
is acting inconsistently with Articles II:1(a) and (b) of the GATT 1994.806  
7.331.   India argues that Chinese Taipei  is obligated to identify the specific products at issue and 
their correct classification in order to de monstrate that there has been a violation of Article s II:1(a) 
and (b) of the GATT 1994.807 According to India, Chinese Taipei 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 .808 India further argues that , because Chinese Taipei's  claim is limited to 
products classified under tariff item  8517.62, "to the extent t hat 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."809 
7.4.4.3.2   Panel's assessment  
7.332.   We recall our finding above that pursuant to its WTO Schedule India is obligated to provide 
unconditional duty -free treatment to machines for the reception, conversion and transmission or 
regeneration of voice, images or other data, including switching and routing apparatus, classified 
under tariff item 8517 .62 of that 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 apparatus. It is uncontested tha t 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 t o be subject to unconditional duty -free treatment.  
7.333.   We recall that routers classified under tariff item 8517.62.90 of India's First Schedule are 
unconditionally exempted from all customs duties . These products therefore receive tariff treatment 
in accordan ce 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 Serial  No. 20 of Notification No. 57/2017, as amended by 
Notification No. 02/2019, the standard duty rate of 20%.  
7.334.   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 Chinese Taipei's 
claim. In this respect, we recall that Chinese Taipei's claim concerns products falling within the scope 
of tariff item 8517.62 of India's WTO Schedule.810 In order for Chinese Taipei  to prevail in its claim, 
it needs to demonstrate that  at least some products falling under tariff item 8517.62 of India's WTO 
Schedule are subject to tariff treatment that is inconsistent with India's WTO obligations.811 
7.335.   Chinese Taipei claims and has demonstrated that products falling under tariff item 
8517.6 2.90 of India's First Schedule are classified under tariff item 8517. 62 of India's WTO 
Schedule.812 Chinese Taipei  is not claiming that products classified under other  tariff items  of India's 
 
804 Chinese Taipei's response to Panel question No. 84 (c), para. 94.  
805 Chinese Taipei's comments on India's response to Panel question No. 84 (a), para. 4 3. 
806 Chinese Taipei's comments on India's response to Panel question No. 84 (a), para. 4 2. 
807 India's response to Panel question No. 76, para. 48.  
808 India's response to Panel qu estion No. 76, para. 49.  
809 India's first written submission, para. 182 . See also India's  response to Panel question No. 76, para. 
49. 
810 Chinese Taipei's first written submission, para. 4.1; panel request, p. 1.  
811 See also fn 185 to para. 7.7 above; Panel Reports, EC – IT Products , para. 7.116.  
812 See para. 7.332  above.  WT/DS588/R  
 
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  First Schedule (such as 8517.69.90) fall under  the scope of India's WTO tariff commitments inscribed 
at tariff item 8517.62 of its WTO Schedule.813  
7.336.   Chinese Taipei has also established that India's First Schedule imposes a 20% duty rate on 
products classified under tariff item 8517.62.90.814 Moreover, i t is uncontested that India's customs 
notifications modify the tariff treatment accorded to certain products classified under tariff item 
8517.62.90 (namely routers) by exempting them from customs duties in whole , or by exempting 
certain other products fro m customs dut ies in part (subjecting such products to a reduced duty rate 
of 10%).815 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 8517.62.90816) and that those products are subject to the 20% 
duty rate set forth in India's First Schedule. We therefore consider that Chinese Taipei  has 
established that some  of the products classified under ta riff item 8517.62 of India's WTO Schedule 
are subject to a duty rate of 10% or 20%, and are therefore taxed in excess of the bound duty rate. 
In light of the foregoing, we do not consider it necessary to identify which  of the products  listed 
under Serial N o. 20 of Notification No. 57/2017, as amended by Notification No. 02/2019,  are 
classified under  tariff item 8517.62.90.817 This, in our view, suffices for the purposes of assessing 
whether India is acting inconsistently with Article s II:1(a) and (b) of the GATT 1994.  
7.4.4.4   Conclusion  
7.337.   Based on the foregoing, we find that India's tariff treatment of machines for the reception, 
conversion and transmission or regeneration of voice, images or other data, including switching and 
routing apparatu s, falling within the scope of tariff item 8517. 62 of India's WTO Schedule, is 
inconsistent with Article II:1(b), first sentence, of the GATT 1994, because  certain such products 
are subject to ordinary customs duties in excess of those set forth and provid ed in India's WTO 
Schedule.  
7.338.   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 sent ence of Article II:1(b), also constitutes "less favourable" treatment 
within the meaning of Article II:1(a). Consequently, we find that India's tariff treatment of certain 
such products is less favourable than that provided in its WTO Schedule, and India i s therefore acting 
inconsistently with Article II: 1(a) of the GATT 1994.  
 
813 Moreover, since the product description of tariff item 8517.62 of India's First Schedule perfectly 
matches the product description of tariff item 8517.62 of India's WTO Schedule, it follows that products not 
classified under tariff item 8517.62 of India's  First Schedule are also not covered by tariff item 8517.62 of 
India's WTO Schedule. Since Chinese Taipei's claim specifically concerns the tariff treatment of products 
covered by tariff item 8517.62 of India's WTO Schedule, it follows that products not classified under tariff item 
8517.62 of India's First Schedule are not within the scope of Chinese Taipei's claim and fall outside our terms 
of reference.  
814 See para. 7.320  above.  
815 See para. 7.327  above.  
816 Indeed, Notification No. 02/2019 relates to products classified under tariff items "8517.62.90 or 
8517.69.90". (emphasis added) This wording indicates that at least some of  the products listed therein may be 
classified under tariff item 8517.62.90.  If no products described therein fell within the scope of that tariff item, 
there would be no reason for the Notification to ref er to that tariff item in the first place.  
817 Nevertheless, for the purpose of providing clarity, we consider it useful to note that the evolution of 
Notification No. 57/2017 , as amended by Notification No. 02/2019,  suggests that certain of the products 
described in Serial No. 20 can be classified under tariff item 8517.62.90. Specifically, Notification No. 22/2018 
amended the duty rate applied to smart watches falling under tariff item 8517.62.90. (See para. 7.323  above). 
Similarly, Notification No. 75/2018 amended the duty rate applied to optical transport equipment, combination 
of one or more of Packet Optical Transport Product or Switch, Optical Transport Network p roducts, and IP 
radios falling under tariff item 8517.62.90. (See para. 7.324  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.  WT/DS588/R  
 
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  7.4.5   Tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule  
7.4.5.1   General issues  
7.4.5.1.1   Main arguments of the parties  
7.339.   Chinese Taipei challenges the tariff treatment accorded by India to prod ucts falling under 
tariff items 8517.70  ex01, ex02, and ex03 of India's WTO Schedule, covering parts and accessories 
of the machines of heading 84.71.818 In order to identify the tariff treatment applied by India to such 
products, Chinese Taipei initially r eferred to the tariff treatment accorded to products classified under 
tariff items 8517.70.10 and 8517.70.90 of India's First Schedule.819 Following certain  amendment s 
to India's First Schedule, pursuant to the Finance Act 2021, Chinese Taipei clarified tha t "these 
amendments do not change the essence of India's measures pertaining to tariff line 8517.70 , which 
continue to exist ", and that "[t]he new tariff lines 8517.71 and 79 capture all of the products 
previously classified under tariff line 8517.70".820 In response to an argument by India that Chinese 
Taipei had failed to meet its burden of proof by being unable to identify the exact products at issue 
and the duty applicable on such products, Chinese Taipei argues that " its claim is against 'India's 
imposi tion of duties on certain ICT products in excess of the duty -free bindings set forth in its 
Schedule ' and '[t]hese ICT products fall within the scope of the following tariff lines in India's 
Schedule in document WT/Let/1072, which is based on HS2007…Tariff  line 8517.70.01/02/03 covers 
'Parts' of the products falling under heading 8517 '."821 Chinese Taipei considers that the products at 
issue are therefore " those falling within tariff line 8517.70 in India's 2007 Schedule, the  
interpretation of which should also take into account HS2007, including the Section Note referred to 
by India" , and consequently Chinese Taipei " has established that the products at issue are covered 
under tariff line 8517.70 ".822   
7.340.   India notes that " as opposed to the replacement of tari ff line 8517.12 with tariff lines 
8517.13 and 8517.14, the replacement of tariff lines 8517.70.10 and 8517.70.90 has only resulted 
in a change in headings, and not the descriptions " and therefore " India has not raised any defense 
concerning the replacement  of HS2007 tariff lines 8517.70.10 and 8517.70.90 with HS2022 tariff 
lines 8517.79.10 and 8517.79.90 ".823 India nevertheless argues that " all submissions made by it 
with regard to sub -heading 8517.70, including that the complainant has failed to identify the 
products at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90, extend to sub -heading 
8517.79.10 and 8517.79.90, respectively ".824 In this respect, India argues, inter alia , that the 
burden is on the complainant to "identify the specific  products at issue and their correct classification 
in order to demonstrate that there has been a violation of Article s II:1(a) and (b) of the GATT 
1994."825 With respect to tariff item 8517.70.90 of the First Schedule (as it existed at the time of 
the Pane l's establishment), India acknowledges that certain products826 fell under tariff item 
8517.70.90 of the First Schedule, but considers that "[f]or  all other products mentioned in Chinese 
Taipei' s Panel Request and first written submissions, Chinese Taipei  has not established that such 
products are classified under tariff [line]  8517.70.90 " and consequently " such products must be held 
to be outside the scope of the present dispute ".827  
7.4.5.1.2   Panel's assessment  
7.341.   Before turning to assess the merits of the parties' arguments with respect to Chinese Taipei's 
claims concerning products classified under tariff items 8517.70 ex01, ex02, and ex03 of India's 
WTO Schedule, we consider it useful to address two general issue s. First, we address the impact, on 
 
818 Chinese Taipei's  first written submissio n, paras. 4.1 and 4.5 .  
819 See e.g. Chinese Taipei's first written submission, paras. 4.66 -4.77.  
820 Chinese Taipei's opening statement at the second meeting  of the Panel , para. 29.  
821 Chinese Taipei's comments on India's response to Panel question No. 76, p ara. 35 (quoting Chinese 
Taipei's first written submission, paras. 4.1 -4.5).  
822 Chinese Taipei's comments on India's response to Panel question No. 76, para. 35.  
823 India's response to Panel question No. 89, para. 67.  
824 India's response to Panel question No. 89, para. 67 .  
825 India's response to Panel question No. 76, para. 47.  
826 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 
"certain limited camera modules such as those used in the manufacture of cellular mobile phones" . (India's 
first written submission, para. 210).  
827 India's first written submission, para. 210.  WT/DS588/R  
 
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  our assessment, of India's amendment of the First Schedule during these proceedings. Second, we 
address the complainant's burden of proof under Articles II:1(a) and (b) of the GATT 1994 with 
respect to the domestic tarif f classification of the products at issue.  
7.342.   First, regarding India's amendments to the First Schedule during these proceedings, we 
recall that India's Finance Act 2021 came into effect on 1 January 2022 , resulting in certain 
amendments to India's First Sche dule.828 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 8517.79.90.829 India has clarified that " the replacement of tarif f items  
8517.70.10 and 8517.70.90 has only resulted in a change in headings, and not the descriptions ".830  
7.343.   We note that Chinese Taipei requests us to make distinct assessments of India's WTO -
consistency with respect to the situation before and after India' s amendment of its First Schedule.831 
We also note that India does not argue that the changes to its First Schedule have modified the tariff 
treatment accorded to the products at issue, nor does India argue that those changes have resolved 
any potential WTO -inconsistency.832 Moreover, Chinese Taipei  itself acknowledges that the 
amendments to the First Schedule " do not change the essence of India's measures pertaining to 
tariff line 8517.70" .833 From the foregoing, w e understand that the changes to India's First Schedule 
have changed neither the measure at issue nor the basis for Chinese Taipei to claim that the measure 
is inconsistent with Articles II:1(a) and (b) . We therefore see no reason to make distinct findings  
regarding the WTO-consistency of the measure as it existed on the date of the Panel's establishment 
and as it existed thereafter .834 We therefore proceed with our analysis by observing the evolution of 
India's tariff treatment during these proceedings, and  assessing the WTO -consistency of the 
measure at issue based on the most up -to-date information available to the Panel (i.e. based on the 
situation as it stands following India's amendment of the First Schedule on 1 January 2022).  
7.344.   Turning to the second iss ue, we note India's argument that the Panel should reject Chinese 
Taipei's claim on the grounds that the burden is on Chinese Taipei to demonstrate India's domestic 
classification of the products at issue, that Chinese Taipei has failed to confirm the dome stic 
classification of certain products, and that they consequently fall " outside the scope of the present 
dispute".835 We agree with India that the burden of demonstrating India's inconsistency with Articles 
II:1(a) and (b) of the GATT 1994 falls on the co mplainant. 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.836 In this respect, "the party who asserts a fact, 
whether the claim ant or the respondent, is responsible for providing proof thereof".837 
7.345.   We recall that Chinese Taipei's claim concerns products falling within the scope of tariff items 
8517.70 ex01, ex02, and ex03 of India's WTO Schedule.838 In order to apply the legal stand ard 
under Articles II:1(a) and (b) of the GATT 1994, we will first identify India's WTO tariff commitments 
with respect to such products. We will then turn to assess the parties' respective factual assertions 
regarding the tariff treatment applied by India  to certain products under its domestic customs 
regime. In that context, we will assess whether Chinese Taipei's factual assertions are supported by 
 
828 See para. 7.267  above.  
829 Chinese Taipei's opening statement at the second meeting  of the Panel , para s. 28-29; India's 
response to Panel question No. 89, para. 67 .  
830 India's response to Panel question No. 89, para. 67.  
831 See Chinese Taipei's response to Panel question No. 73, para. 50.  
832 India's response to Panel question No. 89, para. 67.  
833 Chinese Taipei's opening statement at the second meeting  of the Panel , para . 29.   
834 Chinese Taipei's response to Panel question No. 73, para. 50.  
835 India's first written submission, para. 21 0. See also India's response to Panel question No. 76, 
para. 51. 
836 As the Appellate Body stated in Japan – Apples , "[i]t is important to di stinguish, 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)  
837 Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at p. 335. The 
Appellate Body also observed t hat "t he burden of proof rests upon the party, whether complaining or 
defending, who asserts  the affirmative of a particular claim or defence. If that party adduces evidence 
sufficient to raise a presumption that what is claimed is  true, the burden then shifts  to the other party, who will 
fail unless  it adduces  sufficient evidence to rebut the presumption ." (Ibid.).  
838 Chinese Taipei's first written submission, para. 4.1; panel request, p. 1.  WT/DS588/R  
 
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  sufficient evidence to raise a presumption that such assertions are correct and, if so, whether India 
has a dduced 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 tr eatment concerns products falling 
within the scope of India's WTO tariff commitments concerning tariff items 8517.70 ex01, ex02, and 
ex03 of its WTO Schedule.  
7.4.5.2   India's WTO tariff commitments  
7.4.5.2.1   Main arguments of the parties  
7.346.   Chinese Taipei  argues that the boun d duty  rate for tariff items 8517.70 ex01 , ex02, and 
ex03 of India's WTO Schedule , covering parts and accessories of the machines of heading 84.71 , is 
0%.839 
7.347.   India contends that the tariff commitments under tariff item 8517.70 as reflected in its WTO 
Schedu le based on the HS2007 were certified in error.840 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 introd uced to the HS Nomenclature in the 2007 edition.841 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.842  
7.4.5.2.2   Panel's assessment  
7.348.   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.843 We have also 
rejected India's arguments that the ITA sets forth, or otherwise limits t he scope of, its tariff 
commitments in its WTO HS2007 Schedule.844 Moreover, we have declined to make the findings 
requested by India regarding its request to rectify its WTO Schedule pursuant to the 1980 
Decision.845 
7.349.   Therefore, we turn to India's WTO Schedu le 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 ex03.846 Such tariff items collectively cover "parts" 
(tariff item 8517.70.00) of " telephone sets, including telephones for cellular networks or for other 
wireless networks " and " other apparatus for the transmission or reception of voice, images or other 
data, including apparatus for communication in a wired or w ireless 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 transmission o r reception of voice, images, or data")847: 
 Product description  Bound 
rate 
8517 Telephone sets, including telephones for cellular networks or for 
other wireless networks ; other apparatus for the transmission or 
reception of v oice, images or other data, in cluding 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  
 
839 Chinese Taipei's first written submission, para. 4. 62.  
840 India's first written submission, paras. 56-92. 
841 India's first written submission , paras. 198-219. 
842 India's first written submission , para s. 91-92. 
843 See para. 7.216  above.  
844 See para. 7.81 above.  
845 See para. 7.247  above.  
846 WT/Let/1072.  
847 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.) .  WT/DS588/R  
 
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   Product description  Bound 
rate 
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% 
 
7.350.   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 India's WTO Schedule.  
7.4.5.3   India's tariff treatment  
7.4.5.3.1   Main arguments of the pa rties 
7.351.   Chinese Taipei'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.848 With respect to the tariff tr eatment of products falling under tariff items  
8517.70.10 of the First Schedule, Chinese Taipei  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 pu rsuant to a  customs n otification.849 Chinese Taipei argues that printed circuit board 
assemblies of cellular mobile phones falling under tariff item 8517.70.10 were subject to a 20% duty 
rate, as they were not exempted from duties under either Notification No. 24/2005 or Notification 
No. 57/2017, and c ould not use a reduced rate under Notification No. 57/2017.850 Additionally, 
Chinese Taipei alleges that certain products falling under tariff item 8517.70.10 were subject to a 
10% duty rate, pursuant to Notification No. 57/2017.851 Chinese Taipei also notes that S erial No. 
402 of Notification No. 50/2017 "exempts populated printed circuit boards falling under 8517.70.10 
for use in the manufacture of static converters for automatic data processing machines and units 
thereof of certain tariff [lines] from the entirety of the customs duty".852 According to Chinese Taipei, 
however, " [t]he fact that India may have exempted certain importers meeting certain conditions 
from paying customs duties is not relevant … [ because] India should not be imposing customs duties 
at all on the relevant products regardless of the status of the importer or the procedures followed 
by the importer."853 Chinese Taipei considers that the inconsistency with Article II of the GATT 1994 
"is confirmed by the fact that the eligibility for the exemption is subject to meeting certain conditions 
and is not available to all importers".854   
7.352.   With respect to products falling under tariff item 8517.70.90  of India's First Schedule , 
Chinese Taipei subm its that, under the First Schedule as amended by the Finance Act 2020, the duty 
rate applied to such products was 15%, unless exempted from that duty rate pursuant to a 
 
848 Chinese Taipei 's first written submission, paras. 4.66-4.67. 
849 Chinese Taipei's  first written submission, para. 4.69 (referring to First Schedule (31 December 
2019), (Exhibit TPKM -33), as amended by Finance Bill 2020, (Exhibit TPKM -34), pp. 40, 45, and 58-59). 
Chinese Ta ipei also notes that "[t] he Finance Bill, 2020, amended the First Schedule increasing the rate of 
duties on imports of products falling under tariff lines 8517.70.10 from 10% to 20%, effective 2 February 
2020. " (Ibid. fn 126 to para. 4.69).  
850 Chinese Taipe i's first written submission, para. 4.70 (referring to India's First Schedule as of 30 June 
2020, (Exhibit TPKM -22); Notification No. 24/2005, (Exhibit TPKM -7), entry 13S , as amended by Notification 
No. 76/2018, (Exhibit TPKM -30); and Notification No. 57/2017, (Exhibit TPKM -11), entry 21 , as amended by 
Notification No. 02/2020, (Exhibit TPKM -32), para. (viii))).  
851 Chinese Taipei's first written submission, para. 4.70 (referring to Notification  No. 57/2017 , 
(Exhibit  TPKM -11), entry 22, as amended by Notification No. 02/2020 , (Exhibit TPKM -32), para. (viii)). 
Chinese  Taipei identifies these products as : base station s; optical transport equipment; combination s of one or 
more of Packet Optical Transport Product or Switch; Optical Transport Network products; IP radios; soft 
switches and Voice over Internet Protocol equipment, namely, Voice over Internet Protocol  phones, media 
gateways, gateway controllers and session border controllers; carrier ethernet switches, Packet Transport Node 
products, and Multiprotocol Label Switching -Transport Profile products; and Multiple Input/Multiple Output and 
Long Term Evolution products . (Chinese Taipei's response to Panel question No. 85, para. 96).  
852 Chinese Taipei's response to Panel question No. 86, para. 99.  
853 Chinese Taipei's response to Panel question No. 86, para. 100. 
854 Chinese Taipei's response to Panel question No. 86, para. 100. WT/DS588/R  
 
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  Notification.855 Chinese Taipei  argues that, as of the date of the Panel's establishment , "Notification 
57/2017 provide[d] a 10% reduced duty rate for … a. Camera Module; b. Connectors; and c. Vibrator 
Motor / Ringer"856, as well as conditional exemptions for " the inputs, parts, sub -parts, or raw 
materials for use in manufacture of" certain specified products.857 Chinese Taipei also submits that 
"[a]ll other products for use in the manufacture of cellular mobile phones falling under tariff line 
8517.70.90 [we]re subject to the 15% duty rate under the First Schedule, because such produc ts 
are not exempted from duties by either Notification 24/2005 or Notification 57/2017, and cannot 
use a reduced rate under Notification 57/2017."858  
7.353.   Chinese Taipei  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 
8517.79.90.859 According to Chinese Taipei, the amendments to the First Schedule " do not change 
the essence of India's measures pertaining to tariff line 8517.70" .860 Chinese Tai pei further indicates 
its understanding that Notification No. 57/2017 was amended by Notification No. 57/2021 such that 
"the conditional exemptions and reduced rate impositions contained in Notification 57/2017 continue 
to apply after the amendment by the Finance Act 2021 went into effect ".861  
7.354.   With respect to tariff items 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 [printed circuit board 
assemblies ( PCBA s)] for Cellular M obile Phones and 10%" for certain items covered under heading 
8517.70.10.862 India considers, however, that it provides duty -free treatment to all other products 
falling under tariff items  8517.70.10.863 With respect to tariff items  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 .864  
7.355.   With respect to the tariff treatment accorded after 1  January 2022 , India states 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" and therefore "India has not raised a ny defense concerning the 
 
855 Chinese Taipei's  first written submission, para. 4.74 (referring to First Schedule as of 31 December 
2019, (Exhibit TPKM -33); First Schedule as of 2 February 2018 , (Exhibit TPKM -18) (as amended by Finance Bill 
2018, (Exhibit TPKM -19), p. 31, section 101(a), p. 52, lines 17 -20, and p. 64, section (11)(viii)) ). Chinese 
Taipei asserts that  "[t]he Finance Bill, 2018, amended the First Schedule increasing the rate of duties on 
imports of products falling under tariff line 8517.70.90 from 10% to 15% , effective 2 February 2018. " (Ibid. 
fn 134 to para. 4.74).  
856 Chinese Taipei's first written submission, para. 4.7 5.  
857 Chinese Taipei's response to Panel question No. 87, para. 103 (referring to Notification No. 57/2017, 
(Exhibit TPKM -11), as amended by N otification  No. 22/2018 (Exhibit TPKM -25), Notification No. 37/2018  
(Exhibit TPKM -35), Notification No. 02/2019, (Exhibit TPKM -27), and Notification No. 02/2020, 
(Exhibit  TPKM -32)). 
858 Chinese Taipei's first written submission, para. 4.76.  
859 Chinese Taipei' s opening statement at the second meeting  of the Panel , para. 2 8. 
860 Chinese Taipei's opening statement at the second meeting  of the Panel , para. 29.   
861 Chinese Taipei's response to Panel question No. 89, paras. 106 -107 (referring to Notification No. 
57/2017, (Exhibit TPKM -11), entr ies 5, 5A, 5B, and 22 , as amended by Notification No. 57/2021, 
(Exhibit  TPKM -64), Serial N o. 6). Chinese Taipei elaborates that "[t]hese modifications do not alter the scope of 
customs duty impositions and exemptions under t ariff lines 8517.70.10 and 8517.70.90 and thus have no 
implications for [Chinese Taipei 's] claims. " (Ibid. para. 108). Chinese Taipei also notes that, after the 
establishment of the Panel, Notification No. 57/2017, as amended by Notification No. 02/2020, p rovides a 10% 
reduced duty rate for display assemblies and touch panels/cover glass assemblies . However, in Chinese 
Taipei's view, these amendments " have no implications for [Chinese Taipei's]  claims ". (Chinese Taipei's 
response to Panel question No. 87, p ara. 101).  
862 India identifies these products as printed circuit board assemblies of the following goods: base 
station s; optical transport equipment; combination of one or more of Packet Optical Transport Product or 
Switch; optical transport network Products; IP radios; soft switches and Voice over Internet Protocol 
equipment, namely, Voice over Internet Protocol  phones, media gateways, gateway controlle rs and session 
border controllers; carrier ethernet switch, Packet Transport Node products, and Multiprotocol Label 
Switching -Transport Profile products; Multiple Input/Multiple Output and Long Term Evolution products. 
(India's first written submission, pa ra. 198 (referring to Notification No. 57/2017 , (Exhibit IND -41))). 
863 India's first written submission, para. 199.  
864 India's first written submission, para. 210. WT/DS588/R  
 
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  replacement of HS2007 tariff lines 8517.70.10 and 8517.70.90 with HS2022 tariff lines 8517.79.10 
and 8517.79.90".865  
7.4.5.3.2   Panel's assessment  
7.356.   We proceed with our assessment by examining the tariff treatment accorded to products 
that, at  the time of the Panel's establishment, fell under tariff items 8517.70.10 and 8517.70.90 of 
India's First Schedule. We then 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  
7.357.   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 items 8517.70.10, covering 
"[p]opulated, loaded or stuffed printed circuit bo ards" 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 voice, images, or data866: 
 Product description  Standard 
duty rate  
8517 Telephone sets, including telephones for cellular networks or for 
other wireless networks: other apparatus for the transmission or 
reception of v oice, images or other data, including apparatus for 
communication in a wired or wireless network (such as a local or 
wide area network), other than transmission or reception 
apparatus of heading 8443, 8525, 8527 or 8528   
 - Parts  
8517.70.10  -- Populated, loaded or stuffed printed circuit boards  20% 
8517.70.90  -- Other  15% 
 
7.358.   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 parties867 regarding the content of 
relevant customs notifications, in order to determine, as a factual matter, the tariff treatment 
accorded to pro ducts falling under these tariff items.868 Based on our examination of the evidence, 
we consider the following factual findings to be adequately supported by the evidence on the record.  
7.359.   Turning, first, to products falling under tariff item 8517.70.10 of In dia's First Schedule, we 
note that this tariff item covered populated, loaded or stuffed printed circuit boards constituting 
parts of telephone sets or other certain apparatus for transmission or reception of voice, images, or 
data.869 As indicated above, t he standard duty rate applicable to such products under the First 
Schedule was 20%.870 However, the applied duty rate is subject to customs notifications, as follows:  
 
865 India's response to Panel question No. 89, para. 67.  
866 First Schedule as of 31 December 2019 , (Exhibit TPKM -33) (as amended by Finance Bill 2020, 
(Exhibit TPKM -34), p. 40 , 45, and 58-59). 
867 Specifically, the European Union and Japan . 
868 We recall that the burden of demonstrating a factual assertion falls on the party making that factual 
assertion.  (See para. 7.344  above).  
869 See para. 7.357  above.  
870 See para. 7.357  above.  WT/DS588/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 products871, falling under this tariff item,  became  
unconditionally subject to a 10% duty rate .872  
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 871 above were eligible for dut y-free 
treatment  if they satisf ied certain  conditions .873 Specifically, in order for the product to 
receive such duty -free treatment: (i) the importer had to follow the procedure s set out in 
the Customs Rules 2017 ; and (ii)  at the time of importation , the importer had to furnish 
an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of 
the Customs , as the case may be, to the effect that imported goods would not be used in 
the manufacture of certain specified goods874 and in the event of failure to  comply with 
that condition the importer would be  liable to pay an amount equal to the difference 
between the duty leviable on the imported goods but for the exemption under this 
notification and that already paid at the time of importation.875  
c. Pursuant to  Serial No. 402 of Notification No. 50/2017 , all populated printed circuit boards 
falling under tariff item  8517.70.10 of India's First Schedule were eligible for duty -free 
treatment if they were used in the manufacture of static converters for automatic d ata 
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.876  
7.360.   Any products falling under tariff item 8517.70.10 that did not benefit from the tariff 
treatment available under these customs notifications (for instance PCBAs for cellular mobile 
phones877) remained subject to the 20% standard duty rate set forth in the First Schedule.  
7.361.   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.  
7.362.   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.  
 
871 Specifically PCBAs for: b ase stations; optical transport equipment; combination of one or more of 
Packet Optical Transport Product or Swit ch; Optical Transport Network products; IP radios; soft switches and 
Voice over Internet Protocol equipment, namely, Voice over Internet Protocol  phones, media gateways, 
gateway controllers and session border controllers; carrier ethernet switches, Packet Transport Node products , 
and Multiprotocol Label Switching -Transport Profile products; and Multiple Input/Multiple Output and Long 
Term Evolution products . (See fn 872 to para. 7.359  below).  
872 Serial No. 22 of Notification No. 57/2017 as amended by Notification No. 02/2020 , (Exhibit IND-41).  
873 Serial No. 13S of Notification No. 24/2005  as amended by Notification No s. 132/2006 , 58/2017 , 
38/2018 , and 76/2018, (Exhibit IND -38). 
874 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 Transpor t Product or 
Switch; Optical Transport Network products; IP radios; soft switches and Voice over Internet Protocol 
equipment, namely, Voice over Internet Protocol phones, media gateways, gateway controllers and session 
border controllers; carrier ethernet switches, Packet Transport Node  products , and Multiprotocol Label 
Switching -Transport Profile products; and Multiple Input/Multiple Output and Long Term Evolution products . 
(Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/200 6, 58/2017, 38/2018 , and 
76/2018 , (Exhibit IND -38)). 
875 Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 
38/2018 , and 76/2018 , (Exhibit IND -38). 
876 Serial No. 402 of Notification No. 50/2017, (Exhibit IND-40).  
877 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 -41)). 
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/DS588/R  
 
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  7.363.   Regarding the condition that the importer follow the procedure s set out in the Customs Rules 
2017, we note that India argues that this con dition "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."878 In support of its assertion , 
India submits Circular No. 04/2022  as an exhibit.879 Chinese Taipei contends the Customs Rules 
2017 provide the substantive conditions for an importer to avail itself of the benefits of the 
exemptions contained in Notification No. 50/2017. Chinese Taipei considers that the Customs Rules 
2017 require: the use of the imported goods "for the manufacture of any commodity or provision of 
output service"; the importer to submit a continuity bond; and that the importer be subject to 
examination by relevant author ities.880  
7.364.   We observe that the Customs Rules 2017 state that they apply to "[a]n importer who intends 
to avail the benefit of an exemption notific ation issued under sub -section (1) of section 25 of the 
Customs Act, 1962 (52 of 1962)".881 Circular No. 04/2022  makes certain amendments to the 
Customs Rules 2017 that are "aimed at simplifying the procedures with a focus on automation and 
making the entire process contact -less".882 Circular No. 04/2022 also provides the procedure to be 
followed by "[a]n importer who intends to import goods at a concessio nal rate of duty ."883 On the 
basis of the procedures set out in Circular No. 04/2022, the "Deputy Commissioner or Assistant 
Commissioner of Customs at the port of importation shall allow the benefit of exemption 
notification ."884 The language in  the Customs Rules 2017 and 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 requi rement 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 conditions for importation of goods.   
7.365.   As to the requirement that the importer undertake not to use the products in the 
manuf acture 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".885 This, on its face, is a 
condition for beneficial tariff treatment. As to the con dition that certain products be used in the 
manufacture of other specified products, we understand that failure to comply with this condition 
would not prevent the products from being imported – rather, they would be imported subject to 
the 20% standard du ty 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.  
7.366.   Turning to products falling under tariff item 8517.70.90 of India's First Schedule, at the time 
of the Panel's es tablishment 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 ).886 The standard duty rate app licable to such products under 
the First Schedule was 15%.887 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 
 
878 India's response to Panel question No. 74, para. 44 (referring to Circular No. 04/2022 (27 February 
2022) , (Exhibit IND -80)).  
879 Circular No. 04/2022  (27 February 2022) , (Exhibit IND -80), p. 1.  
880 Chinese Taip ei's comments on India's response to Panel question No. 75, para. 30 (referring to 
Notification No. 68/2017, (Exhibit TPKM -67), paras. 1, 5(2) and 8).  
881 Notification No. 68/2017, (Exhibit TPKM -67), para. 2. (emphasis added) See also e.g. Notification 
No. 6 8/2017, (Exhibit TPKM -67), paras. 5 -6. 
882 Circular No. 04/2022  (27 February 2022) , (Exhibit IND -80), p. 1.  
883 Circular No. 04/2022 (27 February 2022) , (Exhibit IND -80), para. 4.1. (emphasis added)  
884 Circular No. 04/2022  (27 February 2022) , (Exhibit IND -80), para. 4.8. 
885 Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 
38/2018 , and 76/2018 , (Exhibit IND -38). 
886 See para.  7.357  above.  
887 See para. 7.357  above.  WT/DS588/R  
 
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  8517.70.90 of the First Schedule:  (i) were unconditionally eligible for duty -free 
treatment888; 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 .889 
b. Similarly, pursuant to Serial Nos. 5 to 8 of Notification No. 5 7/2017, as amended by 
Notificatio n Nos. 22/2018, 37/2018, 02/2019, 24/2019,  01/2020 , and 02/2020, certain 
products falling under tariff item 8517.70.90 of the First Schedule: (i) were unconditionally 
eligible for duty -free treatment890; (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 2017891; 
 
888 Pursuant to Serial No. 468  of Notification No. 50/2017, t he following products falling under Chapter 
84 or 8 5 of the First Schedule (i.e. including products falling under tariff item 8517.70.90 of the First Schedule ) 
were unconditionally eligible for duty -free treatment: (i) micro ATMs as per standards version 1.5.1; (ii) 
fingerprint reader s/scanner s other than fingerprint reader s/scanner s for use in manufacturing of cellular mobile 
phones; (iii) iris scanners; (iv) miniaturized POS card readers for mPOS (other than mobile phones or tablet 
computers). (Notification No. 50/2017 as amended by Notification No. 01/2020, (Exhibit IND -40)).  
889 The following products falling under tariff item 8517.70.90 of the First Schedule , subject to the 
condition that the importer follow the procedures set out in the Customs Rules 2017 , were eligible for duty -free 
treatment under Notification No. 50/2017:  (1) pursuant to Serial No. 468 , parts and components for use in the 
manufacture of : (i) micro ATMs as per standards version 1.5.1 ; (ii) fingerprint reader s/scanner s other than 
fingerprint reader s/scanner s for us e in manufacturing of cellular mobile phones; (iii) iris scanner s; and (iv) 
miniaturized POS card reader s for mPOS (other than mobile phone s or tablet computer s); (2) pursuant to 
Serial Nos. 506, 507, and 508 : (i) parts, components and accessories for use in manufacture of broadband 
modem falling under tariff item 8517.62.30 of the First Schedule, other than populated printed circuit boards , 
charger s and power adapter s; (ii) parts, components and accessories for use in  the manufacture of routers 
falling under tariff item 8517.62.90 of the First Schedule, other than populated printed circuit boards , charger s, 
and power adapter s; (iii) parts, components and accessories for use in the manufacture of set -top boxes for 
gaining a ccess to internet falling under tariff item 8517.69.60 of the First Schedule, other than populated 
printed circuit boards , charger s, and  power adapter s; and (iv) sub-parts for use in the manufacture of items 
covered in (i) through (iii) above ; and (3) pursuant to Serial No. 513 : (i) parts or components for use in the 
manufacture of populated printed circuit board s of; (a) broadband modem s falling under tariff item 8517.62.30 
of the First Schedule; (b) router s falling under tariff item 8517.62.90 of the Firs t 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 as 
amended by  Notification No s. 37/2019  and 01/2020 , (Exhibit IND -40)). 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 Chinese Taipei's claims concerning products falling 
under tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule, we consider it uncontested that the 
exemptions for those products are not relevant. We also note that  pursuant to Serial No. 425  of Notification 
No. 50/2017 , parts for manufacture of base station controllers , base transreceiver stations , and antenna 
system equipment , required for the manufacture of Public Radio Mobile Trunked Service, were eligible for 
exemptions from customs duties subject to the condition  that the importer follow ed the procedure s set out in 
the Customs Rules 2017 . We further note that India contends that such products were not "always cla ssified 
under tariff item 8517.70.90 of India's First Schedule" and that they must be examined individually to 
ascertain their correct classification. (India's re sponse to Panel question No. 94). As noted in paragraph  7.307  
above , Serial No. 425 was repealed by Notification No. 02/2022 and is no longer in effect, as from 1 February 
2022. (Notification No. 02/2022, (Exhibit IND -88)). Hence, we do not consider it necessary for the resolution of 
this dispute to make further factual findings regarding the tariff treatment accorded under Serial No. 425 of 
Notification No.  50/2017 at the time of the Panel's establishment.  
890 Pursuant to Serial No . 5 of Noti fication 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 us e in manufacture  of parts mentioned at 
(i) above. (Notification No. 57/2017, (Exhibit IND -41)).  
891 The following products  falling under tariff item 8517.70.90  of the First Schedule , subject to the 
condition that the importer follow the procedures set out in the Customs Rules 2017, were eligible for duty -free 
treatment unde r Notification No. 57/2017:  (1) pursuant to Serial Nos. 5C, 5D, and 5E: (i) inputs or sub -parts 
for use in the man ufacture of v ibrator motors/ringers for use in the manufacture of cellular mobile phones , 
display assembl ies for use in  the manufacture of cellular mobile phones , or touch panels/cover glass 
assembl ies for use in manufacture of cellular mobile phones; and (ii) inputs or sub -parts for use in  the 
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 
manufac ture of PCBAs of cellular mobile phones, provided that both of these categories exclude the following 
goods; (i) connectors; (ii) microphones; (iii) receivers; ( iv) speakers; and (v) SIM sockets; ii. (a) inputs or 
parts for use in manufacture of camera modules of cellular mobile phones and (b) inputs or sub -parts for use in 
manufacture of camera modules of cellular mobile phones; and iii. (a) inputs or parts for use in manufacture of 
connectors of cellular mobile phones and (b) inputs or sub -parts for use i n manufacture of connectors of 
cellular mobile phones ; (3) pursuant to Serial No. 7: (i) wired headset s; (ii) battery cover s; (iii) front cover s; 
(iv) front cover s (with zinc casting); (v) middle cover s; (vi) GSM antenna e/antenna e of any technology; WT/DS588/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 f ollowed the 
procedure s set out in the Customs Rules 2017 .892  
7.367.   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.893 We 
understand that if the relevant products failed  to satisfy such conditions they could be imported into 
India, but at the standard duty rate set forth in the First Schedule instead of the beneficial tariff 
treatment available under these Notifications.  
7.4.5.3.2.2   Tariff treatment as of 1 January 2022  
7.368.   Having addre ssed the tariff treatment applicable to products falling under tariff items 
8517.70.10 and 8517.70.90 at the time of the Panel's establishment, we recall that on 1 January 
2022 the First Schedule was amended, such that "[tariff items] 8517 70 10 and 8517 7 0 90 and the 
entries relating thereto" were substituted with the following entries894:  
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% 
 
7.369.   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. Chinese Taipei stated  its understanding that Notification No. 57/2017 
was amended by Notification No. 57/2021 such that " the conditional exemptions and reduced rate 
impositions contained in Notificatio n 57/2017 continue to apply after the amendment by the Finance 
 
(vii) side keys; (viii) main lenses; (ix) camera lenses; (x) screws; (xi) microphone rubber cases; (xii) sensor 
rubber cases/sealing gasket s including sealing gaskets/cases from rubbers like SBR, EPDM, CR, CS, silicone 
and all other ind ividual rubbers or combination/combination of rubbers; (xiii) PU case s/sealing gasket – other 
articles of polyurethane foam like sealing gaskets/case; (xiv) sealing gaskets/ cases from PE, PP, EPS, PC and 
all other individual polymers or combination/combination of polymers; (xv) SIM socket s/other mechanical 
items (Metal); (xvi) SIM socket s/other mechanical items ( plastic); (xvii) back covers; (xviii) conductive cloths; 
(xix) heat dissipation sticker battery covers; (xx) sticker -battery slot; (xxi) protective film for main lens; 
(xxii) mylar for LCD FPC; (xxiii) LCD conductive foam; (xxiv) film-front flash; (xxv) LCD foam; (xxvi) BT foam; 
(xxvii) microphone s and receiver s; (xxviii) key pads; (xxix) USB cables; and (xxx) fingerprint reader s/scanner; 
(4) pursuant to Serial No. 7A: inputs  and raw material , other than PCBAs  (falling under 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; a nd (iii) all 
goods falling under tariff item 8517.69.90 of the First Schedule. (Notification No. 57/2017 as amended by 
Notification Nos.  22/2018, 37/2018, 02/2019, 24/2019, and 02/2020 , (Exhibit IND -41)).  
892 The following products falling under tariff item 8517.70.90 of the First Schedule, subject to the 
condition that the importer follow the procedure set out in the Customs Rules 2017 , were eligible to be 
exempted from the portion of customs duty exceeding 10% under Notification No. 57/2017: (1) pursuant to 
Serial Nos. 5A and 5B: (i) camera module s for use in manufacture of cellular mobile phones; and (ii) 
connectors for use in manufacture of cellular mobile phones; and (2) pursuant to Serial Nos. 5C, 5D, and 5E : 
(i) vibrator motors/ringers for use in manufacture of cellular mobile phones; (ii) d isplay assembl ies for use in 
manufacture of cellular mobile phones; and (iii) touch panels/cover glass assembl ies for use in manufact ure of 
cellular mobile phones. (Notif ication No. 57/2017 as amended by Notification Nos. 37/2018 and 02/2020, 
(Exhibit  IND-41)).  
893 See para s. 7.364 -7.365  above.  
894 Finance Act 2021, (Exhibit IND -74), p. 176. WT/DS588/R  
 
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  Act 2021 went into effect ".895 India did not dispute the Panel's understanding. India stated that the 
"the replacement of tariff items  8517.70.10 and 8517.70.90 has only resulted in a change in 
headings, and not the descriptions ."896 
7.370.   Subsequently, India submitted onto the Panel record Notification No. 02/2022.897 We note 
that through Notification No. 02/2022, Notification No. 50/2017 was a mended to "omit" 
Serial  No. 402.898 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. 50/2017899, is not presently available for products falling under tariff item 
8517.79.10 of India's First Schedule.  
7.371.   Having reviewed the most recent evidence submitted by Chinese Taipei, 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 treatment900; 
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 871 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 importation , the 
importer must 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 goods901 
and in the event of failure to comply with that condition the importer i s 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 
importation902; 
ii. Pursuant to Serial No. 22 of Notification No. 57/2017, PCBAs  for certain specified 
products903 are unconditionally subject to a 10% duty rate ; and  
 
895 Chinese Taipei's response to Panel question No. 89, paras. 106 -107 (referring to Notification No. 
57/2017, (Exhibit TPKM -11), entr ies 5, 5A, 5B, and 22 , as amended by Notification No. 57/2021, 
(Exhibit  TPKM -64), Serial No. 6).  
896 India's response to Panel  question No. 89, para. 67.  
897 India's response to Panel question No. 95. 
898 Notification No. 02/2022, (Exhibit IND -88).  
899 See para. 7.359c  above.  
900 See Notification No. 57/2017, (Exhibit IND -41), as amended by Notification No. 57/2021, 
(Exhibit  TPKM -64).  
901 Specifically, the imported goods are not to be used in the manufacture of: cellular mobile phones; 
base stations; optical transport equipment; combination of one or more of Packet Optical Transport Product or 
Switch; Optical Transport Network products; IP radios; soft switches and Voice over Internet Protocol 
equipment, namel y, Voice over Internet Protocol phones, media gateways, gateway controllers and session 
border controllers; carrier ethernet switches, Packet Transport Node  products , and Multiprotocol Label 
Switching -Transport Profile products; and Multiple Input/Multiple Output and Long Term Evolution products . 
(Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 38/2018 , and 
76/2018 , (Exhibit IN D-38)). 
902 Serial No. 13S of Notification No. 24/2005  as amended by Notification No s. 132/2006 , 58/2017 , 
38/2018 , and 76/2018, (Exhibit IND -38) and No. 57/2021, (Exhibit TPKM -64). We note that these conditions 
are attached to the tariff treatment and are no t general conditions for importation. (See para. 7.361  above).  
903 Specifically PCBAs for: b ase stations; optical transport equipment; combination of one or more of 
Packet Optical Transport Product or Switch; Optical Transport Network products; IP radios; soft switches and 
Voice over Internet Protocol equipment, namely, Voice over Internet Protocol phones, media gateways, 
gateway controllers and session border controll ers; carrier ethernet switches, Packet Transport Node products , 
and Multiprotocol Label Switching -Transport Profile products; and Multiple Input/Multiple Output and Long WT/DS588/R  
 
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  c. With respect to products classified under tariff item 8517.79.90 of the First Schedule:  
i. Pursuant to Serial No. 5 of Notification No. 57/20 17, goods other than parts of ce llular 
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 treatment904; 
ii. Pursuant to Serial Nos. 5A and 5B of Notification No. 57/2017, camera modules f or 
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 
2017.905 
7.372.   We recognize that India may amend its customs notifications such that other exemptions 
applying to products falling under tariff items 8517.70.10 and 8517.70.90 of India's First Schedule 
at the time of the Panel's establishment may continue to apply to products presently falling under 
tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of the First Schedule. In such a case, our 
analysis of the tariff treatment accorded by India to products 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 r egard India's 
argument that its "submissions" with regard to tariff items 8517.70.10 and 8517.70.90 continue to 
apply to tariff items 8517.79.10 and 8517.79.90.906 We therefore do not preclude 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 regard.  
7.373.   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 
rate.907 Certain other products falling under this tariff item were eligible for duty -free treatment if 
they satisfied cert ain conditions.908 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 tari ff item 8517.70.90 of India's 
First Schedule, certain such products were eligible for unconditional duty -free treatment.909 Subject 
to certain conditions, certain other products were eligible for either duty -free treatment or a 10% 
duty rate.910 All other pr oducts 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.   
7.374.   Regarding the tariff treatment as of 1  January 2022 , we note, based on the evidence before 
us, that: (i) with respect to products falling under tariff item 8517.71.00 of the First Schedule, 
certain specified products are unconditionally subject to duty -free treatment, while all other products 
are subject to the 20% duty rate set forth in the First Schedule911; (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 Schedule912; and (iii) with respect to products falling under tariff item 8517.79.90 of the First 
Sched ule, certain specified products are unconditionally subject to duty -free treatment, other 
 
Term Evolution products . (Serial No. 22 of Notification No. 57/2017 as amended by Noti fication No. 02/2020 , 
(Exhibit IND -41), and Notification No. 57/2021, (Exhibit TPKM -64)).  
904 See Notification No. 57/2017, (Exhibit IND -41), as amended by Notification No. 57/2021, 
(Exhibit  TPKM -64).  
905 Notification No. 57/2017 as amended by Notification No s. 37/2018 and 02/2020 , (Exhibit IND -41), 
and Notification No. 57/2021, (Exhibit TPKM -64). 
906 India's response to  Panel question No. 89, para. 67.  
907 See para. 7.359a  above.  
908 See paras.  7.359b -7.359c  above.  
909 See paras.  7.366a -7.366b  above.  
910 See paras.  7.366a -7.366b  above.  
911 See para. 7.371a  above.  
912 See para. 7.371b  above.  WT/DS588/R  
 
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  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 Schedu le.913   
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  
7.375.   Chinese Taipei 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.914 Chinese Taipei argues that the duty rates applied to certain such 
products were in excess of the 0% bound duty rate set forth in India's WTO Schedule.915 
Furthermore, according to Chinese Taipei, "[t]he conditions set forth in the relevant Customs 
Notifications are the preconditions for some of the products at issue to be exempted  from the 
customs duties that would otherwise be levied".916 Chinese Taipei submits that, "[a]s India has 
committed to provide duty -free treatment to the products at issue and did not set forth any 'terms, 
conditions or qualifications' in its Schedule for r eceiving such duty -free treatment, India's measures 
(i.e. the imposition of duties unless exempted upon meeting certain conditions) constitute a breach 
of its obligations under Articles II:1(a) and (b) of the GATT 1994."917 Regarding India's amendment 
of the First Schedule, Chinese Taipei considers that " these amendments do not change the essence 
of India's measures pertaining to tariff line 8517.70".918 Chinese Taipei considers that "[t]he new 
tariff lines 8517.71 and 79 capture all of the products previously classified under tariff line 
8517.70."919 Chinese Taipei considers that " the application of customs duties on products falling 
under these tariff li nes are inconsistent with India's obligations under Articles II:1(a) and (b) of the 
GATT 1994." 920 Moreover, Chinese Taipei argues that eligibility for the conditional exemptions set 
forth in Notification No. 57/2017 as amended by Notification No. 57/2021 is subject to conditions 
that are not set out in India's WTO Schedule, such that those conditional exemptions are inconsistent 
with Articles II:1(a) and (b) of the GATT 1994.921  
7.376.   India observes  that a Section Note to Section XVI of the HS2007 indicates that  "[p]arts 
which are goods included in any of the headings of Chapter 84 or 85 (other than headings 84.09, 
84.31, 84.48, 84.66, 84.73, 84.87, 85.03, 85.22, 85.29, 85.38 and 85.48) are in all cases to be 
classified in their respective headings", and "[o]ther  parts, if suitable for use solely or principally 
with a particular kind of machine, or with a number of machines of the same heading (including a 
machine of heading 84.79 or 85.43) are to be classified with the machines of that kind".922 India 
submits that  "[g]iven that the Section Notes make a nuanced distinction on the kinds of goods that 
may be covered as 'Parts' (classifiable under 8517.70) and those 'Parts which are goods' (classifiable 
under the appropriate heading of Chapter 84 or Chapter 85), the co mplainant's failure to explicitly 
confirm the classification of the products at issue must lead to the rejection of its claim."923 
Specifically w ith respect to tariff item 8517.70.90 of the First Schedule (as it existed at the time of 
the Panel's establishm ent), 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 
[line]  8517.70.90 of the Customs Tariff Act are exempt from duties", and su bmits that "[f]or all 
other products mentioned in Chinese Taipei's  Panel Request and first written submissions", 
Chinese  Taipei  has failed to demonstrate that such products are classified under this tariff item.924 
According to India, such products "must be  held to be outside the scope of the present dispute".925 
India also notes "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 
 
913 See para. 7.371c  above.  
914 Chinese Taipei's first written submission, paras. 4.63 -4.66.  
915 Chinese Taipei's first written submission, paras. 4.68 -4.77. 
916 Chinese Taipei's response to Panel question No. 75, para. 56.  
917 Chinese Ta ipei's response to Panel question No. 75, para. 56.  
918 Chinese Taipei's opening statement at the second meeting  of the Panel , para. 29.  
919 Chinese Taipei's opening statement at the second meeting  of the Panel , para. 29.  
920 Chinese Taipei's opening statement  at the second meeting  of the Panel , para. 29.  
921 Chinese Taipei's response to Panel question No. 87, para. 104.  
922 India's response to Panel question No. 76, para. 50 (quoting HS2007 Section Notes to Section XVI ,  
(Exhibit IND -9)). See also India's respon se to Panel question No. 88, paras. 65 -66.  
923 India's response to Panel question No. 76, para. 51.  
924 India's first written submission, para. 210. 
925 India's first written submission, para. 210. WT/DS588/R  
 
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  concerning the replacement of HS2007 tariff lines 8517.70.10 and 8517.70.90 with HS2022 tariff 
lines 8517.79.10 and 8517.79.90".926 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 8517.70.1 0 and 8517.70.90, extend to sub -heading 
8517.79.10 and 8517.79.90, respectively".927 
7.4.5.4.2   Panel's assessment  
7.377.   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 treat ment to parts  of telephone sets and 
other certain apparatus for transmission or reception of voice, images, or data .928  
7.378.   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 st uffed printed circuit boards constituting parts of telephone 
sets or other certain apparatus for transmission or reception of voice, images, or data . Tariff item 
8517.70.90 of India's First Schedule covered "other" parts of telephone sets or other certain 
apparatus for transmission or reception of voice, images, or data . It is 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 sc ope of India's WTO tariff commitments under 
tariff items 8517.70 ex01, ex02, and ex03 of its WTO Schedule.  
7.379.   Following India's amendment of its First Schedule, the products previously covered by tariff 
items 8517.70.10 and 8517.70.90 became classified under  tariff items 8517.71.00929, 
8517.79.10930, and 8517.79.90931 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 logically 
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 India 
does not dispute  this.932 We find therefore that, as of 1 January 2022, these tariff items of India's 
First Schedule cover parts of telephone sets and "other " certain apparatus for transmission or 
reception of voice, images, or data , which are products covered by India's W TO tariff commitments 
under tariff items  8517.70 ex01, ex02, and ex03 of its WTO Schedule.933  
7.380.   Regarding India's argument that aspects of Chinese Taipei's  claims must fail because 
Chinese Taipei  allegedly failed to "identify the specific products at issue and their correct 
classification"934, we recall that Chinese Taipei's  claim under Articles II:1(a) and (b)  of the GATT 
1994 concerns the tariff treatment accorded by India to products falling wit hin the scope of tariff 
items  8517.70 ex01, ex02, and ex03 of India's WTO Schedule.935 We have concluded above that 
India's WTO tariff commitments with respect to these tariff items  extend to products that: (i ) at the 
time of the Panel's establishment were classified under tariff items  8517.70.10 and 8517.70.90 of 
the First Schedule; and (ii) which, as of 1 January 2022, are  classified under tariff items  8517.71.00, 
8517.79.10 , and 8517.79.90 of the First Sched ule. 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 Chinese Taipei's  claim. We proceed therefore to compare such tariff treatment to the relevant 
 
926 India's response to Panel question No. 89, para. 67.  
927 India's response to Panel question No. 89, para. 67 .  
928 See para. 7.350  above.  
929 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.  
7.368  above).  
930 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.  7.368  above).  
931 Other parts of telephone sets and other certain apparatus for transmission or reception of voice, 
images, or data . (See para.  7.368  above).  
932 India explained that " as opposed to the replacement of tariff line 8517.12 with tariff lines 8517.13 
and 8517.14, the replacement of tariff lines 8517.70.10 and 8517.70.90 has only resulted in a change in 
headings, and not the descriptions ". (India's response to Panel question No. 89, para. 67).  
933 See fns 929-931 to para. 7.379  above.  
934 India's response to Panel question No. 76, para. 48.  
935 Specifically, Ch inese Taipei challenges the tariff treatment applied by India to products classified 
under tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule. (Chinese Taipei's  first written 
submission, para. 4.1; panel request, p. 1).  WT/DS588/R  
 
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  tariff commitments set forth in India's WTO Schedule. We emphasize that this comparison is limited 
to the tariff treatment of products that are classified under tar iff items  8517.70 ex01, ex02, and 
ex03 of India's WTO Schedule, and which therefore fall within the scope of Chinese Taipei's  claim.936 
7.381.   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 subjec t to duty -free 
treatment, while all other  products are subject to the 20% duty rate set forth in the First Schedule937; 
(ii) with respect to products falling under tariff item 8517.79.10 of the First Schedule, certain 
specified products are eligible for dut y-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 Schedule938; and (iii) with respect to products fall ing under 
tariff item 8517.79.90 of the F irst 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.939 
We understand that the unconditional duty -free treatment accorded to certain products is consistent 
with India's WTO Schedule. The 10%, 15%, and 20% duty rates applied to certain products falling 
under these tariff items  is in excess of the bound duty of 0% set forth in India's WTO Schedule. 
Finally, the requirement that certain products must satisfy conditions940 that are not set forth in 
India's WTO Schedule in order to receive unconditional duty -free treatment is inconsistent with 
India's WTO tariff commitment, as contained in its WTO Schedule, to provide unconditional duty -
free treatment to such products.  
7.382.   We 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.  
7.383.   We do not preclude the possibility that other exemptions may also, through re levant 
amendments, continue to apply to the products presently classified under tariff items 8517.71.00, 
8517.79.10, and 8517.79.90. However, nothing on the record of this dispute allows us to make a 
determination in this regard. Nevertheless, for the sake  of facilitating the resolution of this dispute, 
we proceed to compare the duty rate that may be applicable pursuant to customs notifications on 
the assumption that all customs notifications that applied prior to 1 January 2022 may, through 
relevant amendm ents, continue to apply  to the products at issue.941  
 
936 We note that certai n 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 Chinese Taipe i'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 Chinese Taipei'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 do not fall within the scope of tariff items 8517.7 0 ex01, ex02, and ex03 of India's 
WTO Schedule. In our view, the tariff treatment, in India's d omestic customs regime, of the products 
challenged by Chinese Taipei 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. 7.376  above). The tariff treatment identified by 
Chinese Taipei is that applied to products classified under certain tariff items of India's First Schedule. We have 
concluded that the products falling under th ose tariff items fall within the scope of tariff items 8517.70 ex01, 
ex02, and ex03 of India's WTO Schedule. It is not necessary for us (or for Chinese Taipei) 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.  
937 See para. 7.371a  above.  
938 See para. 7.371b  above.  
939 See para.  7.371c  above.  
940 See para.  7.371b  above.  
941 We note that this approach is different to our approach to tariff ite m 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 through 
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 WT/DS588/R  
 
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  7.384.   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.942 Other products falling under this tariff item were eligible for duty -free treatment if they 
satisfied certain conditions.943 All other products classified under this tariff item, as well as products 
that failed to satisfy the conditions for duty -free t reatment, 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.944 Subject to 
certain con ditions, other products were eligible for either duty -free treatment or a 10% duty rate.945 
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, wer e subject to the 15% duty rate set 
forth in the First Schedule.  
7.385.   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 treatment 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 stand ard duty rates of 20% and 15%, 
respectively, were in excess of the bound duty rate of 0%. If the relevant customs notifications are 
amended to refer to products presently falling under tariff items 8517.71.00, 8517.79.10, and 
8517.79.90 of the First Schedu le, 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 exces s of the bound 
duty rate of 0%.  
7.386.   With respect to those specified products that were eligible for unconditional duty -free 
treatment, we consider that the tariff treatment accorded to these products was consistent with 
India's WTO tariff commitments. However , with respect to those specified products that were eligible 
for duty -free treatment subject to satisfying certain conditions, we note that those conditions for 
duty-free treatment946 are not set forth in India's WTO Schedule. To the extent that the releva nt 
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 W TO tariff commitments; and (ii) 
the conditional duty -free treatment accorded to certain specified products is subject to conditions 
that are not set forth in India's WTO Schedule.  
7.387.   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 un conditionally 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 th e 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 
 
available under Notification No. 57/2017 continue d to be available to the same products. (See section 7.4.3.3.2 
above) . 
942 See para. 7.359a  above.  
943 See paras. 7.359b -7.359c  above.  
944 See paras.  7.366a -7.366b  above.  
945 See paras. 7.366a -7.366b  above.  
946 The relevant conditions for duty -free treatment are: (i) that the importer follow the procedures set 
out in the Customs Rules 2017; (ii) the importer furn ish 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 to comp ly 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 i mported 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. 7.359 -7.367  above ). WT/DS588/R  
 
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  continues to be in excess of the bound duty rate and su bject to a condition that is not set forth in 
India's WTO Schedule.  
7.4.5.5   Conclusion  
7.388.   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 , falling within the 
scope of tariff items  8517.70 ex01, ex02, and ex03  of India's WTO Schedule,  is inconsistent with 
Article II:1(b), first sentence , of the GATT 1994, because : (i) certain  such products are subject to 
ordinary customs duties in excess of thos e 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.  
7.389.   We rec all 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 const itutes "less favourable" treatment 
within the meaning of Article II:1(a). Consequently, w e find that India's tariff treatment of such 
products is less favourable than that provided in its WTO Schedule, and India is therefore  acting 
inconsistently with Arti cle II: 1(a) of the GATT 1994.   
7.4.6   Tariff item 8518.30 ex01 of India's WTO Schedule  
7.4.6.1   India's WTO tariff commitments  
7.4.6.1.1   Main arguments of the parties  
7.390.   Chinese Taipei assert s that India's WTO tariff binding for line telephone handsets, set forth 
at tariff item  8518.30 ex01  of India's WTO Schedule , is 0%.947 
7.391.   India does not contest that the relevant bound duty rate for imports falling under tariff item 
8518.30 ex01  of its WTO Schedule  is 0%.948  
7.4.6.1.2   Panel's assessment  
7.392.   We understand that India does not contest that its WTO tariff binding with respect to line 
telephone handsets is set forth in its WTO Schedule, under tariff item 8518.30 ex01. In particular, 
India does not argue that the ITA limits the scope of its commitment under this tariff item, or that 
this commitment  was undertaken in error and is invalid pursuant to Article 48 of the Vienna 
Convention.949  
7.393.   It is therefore uncontested that, pursuant to Articles II:1(a) and (b) of the GATT 1994, India 
is obligated to provide the tariff treatment set forth in its WTO HS2 007 Schedule for line telephone 
handsets. In this respect, India's WTO Schedule provides that950:  
 Product description  Bound 
rate 
8518 Microphones and stands therefor; loudspeakers, whether or not 
mounted in their enclosures; headphones, earphones and combined 
microphone/speaker sets; audio -frequency electric amplifiers; electric 
sound amplifier sets.   
8518.30  - Headphones, earphones and combined microphone/speaker sets   
ex 8518.30  -- Line telephone handsets  0% 
 
 
947 Chinese Taipei's  first written submission, paras. 4.78-4.82.  
948 India's response to Panel question No. 44, para. 29 . According  to India, it is "already providing 
concessions to the products in accordance with its commitments." (Ibid.) .  
949 We also note that India did not attempt to modify this tariff item in its draft rectification under the 
1980 Decision . According to India, line telephone handsets "are covered by the scope of India' s commitments " 
under the ITA . (India's response to Panel question No. 27, para. 83).  
950 WT/Let/1072 ; and WT/L et/181.  WT/DS588/R  
 
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  7.394.   Given that the tariff binding for line telephone handsets set forth in India's WTO Schedule is 
0%, and given that the WTO Schedule indicates no terms, conditions, or qualifications attached to 
that bound duty rate, we observe that India is obligated to pro vide unconditional duty -free treatment 
to line telephone handsets, falling under tariff item  8518.30 ex01 of its WTO Schedule.  
7.4.6.2   India's tariff treatment  
7.4.6.2.1   Main arguments of the parties  
7.395.   In its first written submission, Chinese Taipei  argued that India's  First Schedule imposes a 
standard duty rate of 15% on imports classified under tariff item 8518.30.00 of that Schedule, 
namely "[h]eadphones and earphones, whether or not combined with a microphone, and sets 
consisting of a microphone and one or more loudspeake rs."951 Chinese Taipei considered  that line 
telephone handsets imported into India are classified under that tariff item of the First Schedule.952 
According to Chinese Taipei , Notification No. 25/2005 , as amended by Notification No. 23/2019, 
exempts "parts o f line telephone handsets"  from the standard duty rate .953 Thus, according to 
Chinese Taipei,  complete  line telephone handsets are excluded from the exemption available under 
Notification No. 25/2005, and are subject to the standard duty rate of 15% .954  
7.396.   In its first written submission, India argued  that "'Line Telephone Handsets' form a part of 
'Line Telephone Sets'" and consequently are classified under tariff item  8517.11 of India's First 
Schedule, thereby receiving duty -free treatment.955 India also argued  that "India has never intended 
on imposing a duty on 'Line Telephone Handsets.'"956 Subsequently, in response to questions from 
the Panel, India provided text from the HS2017 Explanatory Notes to headings 8517 and 8518 and 
stated that "[a] combined reading of the two explanatory notes gives an impression to India that 
sub-heading 8518.30 intends to cover only certain types of handsets, i.e., which are combined 
microphone/speaker sets for telephony and which are generally used by telephone operators ."957 
India argued, however, that, even "if the Panel finds that Line Telephone Handsets are p arts and, 
accordingly, classifiable under tariff heading 8518.30, they would still be exempt from customs duty 
under Serial No. 39 of the Notification No. 24/2005 dated March 1, 2005".958  
7.397.   Following India's initial arguments, Chinese Taipei  argue d that its claim regarding the applied 
duty rate was an "as such" claim, and that "India's domestic classification practice has no bearing 
on the de jure  inconsistency of the measures at issue".959 Chinese Taipei argued  that "[t]he 
measures at issue, on their face, pr ovide for the imposition of customs duties on 'Line telephone 
handsets' under tariff lines 8518.30."960 Chinese Taipei elaborate d that, "[e]ven if India did in fact 
accord duty -free treatment to 'Line telephone handsets' by classifying them under tariff lin e 8517.11, 
nothing in the text of the relevant legal instruments would prevent India from imposing duties on 
'Line telephone handsets' under tariff line 8518.30 in the future."961 Chinese Taipei consider ed that 
"India's purported classification practice regarding 'Line telephone handsets' and 'Parts of line 
telephone handsets' is incorrect"962, in light of the HS2017 Explanatory Notes, and that "Parts of line 
telephone handsets" should be classified under  tariff item  8518.90 instead of tariff item  8518.30.963 
Finally, Chinese Taipei submitted that India's reliance on Serial No. 39 of Notification No. 24/2005 
 
951 Chinese Taipei's  first written submission, para. 4.87 (referring to India's First Schedule  as of 30 June 
2020,  (Exhibit TPKM -22)). 
952 Chinese Taipei's first written submission, para. 4.86.  
953 Chinese Taipei's first written submission, paras. 4.85 -4.86 (referring to Notification No. 25/2005, 
(Exhibit TPKM -8), entry 9 (as amended by Notification No. 23/2019, (Exhibit TPKM -36)). (underlinin g added)  
954 Chinese Taipei's first written submission, paras. 4.86 and 4.88.  
955 India's first written submission, para. 22 1. (underlining added)  
956 India's first written submission, para. 22 1. Following the first substantive meeting, India elaborated 
that it "has not imposed any duty on 'Line Telephone Handsets'", that it "never intended on imposing a duty on 
'Line Telephone Handsets'", and that "the amendments introduced by India should not be construed as an 
imposition of duty on 'Line Tel ephone Handsets.'"  (India's response to Panel question No. 61, para. 63 
(emphasis omitted) ). 
957 India's response to Panel question No. 28, para. 86. (emphasis and underlining original)  
958 India's response to Panel question No. 28, para. 86. 
959 Chinese Taipei 's response to Panel question No. 26, paras . 69-70. See also Chinese Taipei's second 
written submission, para. 3. 84.  
960 Chinese Taipei's response to Panel question No. 26, para. 70.  
961 Chinese Taipei's response to Panel question No. 26, para. 70.  
962 Chinese Taipei's response to Panel question No. 26, para. 71.  
963 Chinese Taipei's response to Panel question No. 26, paras. 71 -76. WT/DS588/R  
 
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  was incorrect because: (i) line telephone handsets that are not used for the manufacture of line 
teleph one sets under tariff item 8517.11 are still subject to the 15% duty rate; and (ii) the exemption 
under Serial No. 39 is subject to compliance with certain conditions that are not set forth in India's 
Schedule.964 
7.398.   At the second substantive meeting of the Pa nel, India clarified that, pursuant to Notification 
No. 15/2022, issued on 1 February 2022, " line telephone handsets are subject to duty free treatment 
under sub -heading 8518.30  as well as sub -heading 8517.11 ".965 India also argued that, since the 
measure h as been withdrawn, the Panel may not make any recommendation s concerning tariff item  
8518. 30.966  
7.399.   Following India's clarification regarding Notification No. 15/2022, Chinese Taipei agreed that, 
as a result of the amendment introduced by this Notification, India " exempts 'line telephone 
handsets ' falling under tariff line 8518.30.00 of the First Schedule from customs duties, without 
conditions ".967 Chinese Taipei considers, however, that " well-established WTO case -law and practice 
is that panels  are entitled to, and have ruled on measures that have expired after panel 
establishment ", and consequently the amendment introduced by Notification No. 15/2022 " does not 
prevent the Panel from ruling on the measure relating to tariff line 8518.30 ex01 as it existed at the 
time of establishment of the Panel."968 Chinese Taipei agrees with India, however, that "if the Panel 
were to find that the measure has been withdrawn, it would not be necessary for the Panel to issue 
any recommendations".969  
7.4.6.2.2   Panel's asses sment  
7.400.   Chinese Taipei and India agree that pursuant to Notification No. 15/2022, which was 
introduced by India while these dispute settlement proceedings were ongoing, India presently 
accords duty -free treatment to line telephone handsets, and is therefore acting in accordance with 
Articles II:1(a) and (b) of the GATT 1994. Nevertheless, Chinese Taipei requests us to find that India 
was acting inconsistently with Articles II:1(a) and (b) prior to the introduction of Notification 
No. 15/2022, and that this No tification brought India into consistency with its obligations. India, for 
its part, argues that the Panel may not make any recommendations regarding the tariff treatment 
accorded by India to line telephone handsets.  
7.401.   In our view, Chinese Taipei's request f or findings  and India's argument that we may not 
make recommendations  are not in tension with each other. To the extent that India was acting 
inconsistently with its WTO obligations at the time of the Panel's establishment,  and India resolved 
that inconsis tency during these proceedings, we can both: (i) make legal and factual findings  to that 
effect; and (ii) refrain from making any recommendations  that India bring itself into consistency 
with its WTO obligation. Given the parties' disagreement as to whethe r India was, at the time of the 
Panel's establishment, acting inconsistently with its WTO obligations, we consider it useful for the 
purposes of resolving the parties' dispute to address this issue.970 We therefore proceed to assess 
 
964 Chinese Taipei's second written submission, paras. 3. 85-3.87. See also Chinese Taipei's response to 
Panel question No. 30(c).  
965 India's response to Panel question No. 90, para. 68. In its second written submission, India stated 
that " no duties are being imposed on products at issue classified under sub -heading [] 8518.30 ". (India's 
second written submission, para . 4 (referring to Notification No. 15/2022, (Exhibit IND -76))).  
966 India's response to Panel question No. 90, para. 68; comments on Chinese Taipei's response to Panel 
question Nos. 90 -93, paras. 39 -42 (ref erring to Appellate Body Report, US – Certain EC Products , para. 81; 
and Panel Reports, US – Large Civil Aircraft (2nd Complaint) , para 8.6 and fn 4266 thereto; EC – Approval and 
Marketing of Biotech Products , para. 7.1316).  
967 Chinese Taipei's response to  Panel question No. 93, paras. 114 -116. 
968 Chinese Taipei's response to Panel question No. 9 3, para. 115 (referring to Appellate Body Report s, 
EU – Fatty Alcohols , para. 5.179 ; EC – Bananas  III (Article 21.5 – Ecuador) , paras. 268 -270; and Panel 
Reports, India – Additional Import Duties , para. 7.97; Dominican Republic – Import and Sale of Cigarettes , 
para. 7.344; Argentina – Footwear (EC) , paras. 8.41 -8.42; Chile – Price Band System , para. 7.114; Thailand – 
Cigarettes (Philippines) , para. 7.47 ).  
969 Chinese Taipei's response to Panel question No. 9 3, para. 11 6 (referring to Appellate Body Report, 
US – Certain EC Products , paras. 81 -82).  
970 We also note that, unlike its claims regarding products falling under tariff items  8517.12 and 8517.70 
of India' s WTO Schedule, Chinese Taipei considers that the tariff treatment accorded by India to products 
falling under tariff item 8518.30 ex01 of India's WTO Schedule has changed during these proceedings.   WT/DS588/R  
 
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  the tariff treatment acc orded by India to line telephone handsets both at the time of the Panel's 
establishment and following India's amendments that took place during these proceedings.  
7.402.   We start our analysis by considering India's classification of line telephone handsets in it s 
domestic customs regime. Chinese Taipei considers that line telephone handsets are classified under 
tariff item 8518.30.00 of India's First Schedule, which covers "[h] eadphones and earphones, 
whether or not combined with a microphone, and sets consisting  of a microphone and one or more 
loudspeakers ".971 India argues that Notification No. 25/2005, as amended by Notification 
No. 26/2007, indicates that line telephone handsets falling under tariff items "8517.11 or 8517.18" 
can receive duty -free treatment.972 India considers that "' Line Telephone Handsets ' form a part of 
'Line Telephone Sets '" and therefore India " classifies them under sub -heading 8517.11 " of the First 
Schedule.973 India also notes that Notification No. 25/2005, as amended by Notification No. 23 /2019, 
accorded duty -free treatment to parts of  line telephone handsets falling under tariff item 
8518.30.00, and, in India's view, this indicates that tariff item 8518.30.00 covers "parts of" line 
telephone handsets and not complete line telephone handsets.974  
7.403.   We note that the product descriptions att ached to tariff items 8517.11, 8517.18, and 
8518.30.00  in India's First Schedule are as follows975: 
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, 8 525, 8527 or 8528   
 - Telephone sets, including telephones for cellular networks or 
for other wireless networks:   
8517.11 -- Line telephone sets with cordless handsets:   
8517.11.10 --- Push button type  0% 
8517.11.90 --- Other  0% 
   
8517.18 -- Other:   
8517.18.10 --- Push button type  0% 
8517.18.90 --- Other  0% 
   
8518 Microphones and stands therefor: loudspeakers, whether or not 
mounted in their enclosures: headphones and earphones, 
whether or not combined with a microphone, and sets 
consisting of a microphone and one or more loudspeakers: 
audio -frequency electric amplifiers: electric sound amplifier sets   
 - Loudspeakers, whether or not mounted in their enclosures:   
8518.30.00 - Headphones and earphones, whether or not combined with  a 
microphone, and sets consisting of a microphone and one or 
more loudspeakers  15% 
 
7.404.   The product descriptions contained in India's First Schedule with respect to heading 8518 
and tariff item 8518.30.00 are substantially identical to heading 8518 and tariff item 8518.30 of 
India's WTO Schedule.976 Specifically, tariff items 8518.30.00 of the First Schedule, and 8518.30 of 
India's WTO Schedule, both cover " [h]eadphones and earphones, whether or not combined with a 
microphone, and sets consisting of a mic rophone and one or more loudspeakers" , which are a sub -
category of products falling under heading 8518 (which, again, is identical in both Schedules). We 
further note that India's WTO Schedule specifically indicates that "line telephone handsets", classifi ed 
under tariff item 8518.30 ex01, are a subcategory of products falling under the broader category of 
 
971 Chinese Taipei's first written submission, para s. 4.86 -4.87. 
972 India's first written submission, para s. 222-225 (referring to Notification No. 25/2005 as amended by 
Notification No. 26/2007, (Exhibit IND -39)).  
973 India's first written submission, para. 22 1. 
974 India's first written submission, para. 225.  
975 First Schedule as of 30 June 2020 , (Exhibit TPKM -22), pp. 787 -789.  
976 See WT/Let/181; and para. 7.392  above.  WT/DS588/R  
 
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  "[h]eadphones and earphones, whether or not combined with a microphone, and sets consisting of 
a microphone and one or more loudspeakers"  covered by tari ff item 8518.30.977 Thus, India's WTO 
Schedule strongly suggests that "line telephone handsets" are products falling within the broader 
category of " [h]eadphones and earphones, whether or not combined with a microphone, and sets 
consisting of a microphone and one or more lou dspeakers" . We also note that, under India's First 
Schedule, these products are classified under tariff item 8518.30.00.  
7.405.   This interpretation of India's First Schedule is supported by the Explanatory Notes to the 
HS2017.978 The Explanatory Note to tariff ite m 8517.11 of the HS2017 define s "Line telephone sets" 
as "communication apparatus that convert voice into signals for transmission to another device", 
and which consist of various components.979 The Explanatory Notes indicate that "[w]hen separately 
present ed, microphones and receivers (whether or not combined as hand -sets), and loudspeakers 
are classified in heading 85.18".980 The Explanatory Note to tariff item  8518 further explains that 
this heading "covers microphones, loudspeakers, headphones, earphones and audio -frequency 
electric amplifiers of all kinds presented separately, regardless of the particular purpose for which 
such apparatus may be designed (e.g., telephone microphones, headphones and earphones, and 
radio receiver loudspeakers)".981 Specifical ly regarding tariff item 8518.30, the Explanatory Note 
elaborates that this heading covers, inter alia , "line telephone handsets  which are combined 
microphone/speaker sets for telephony and which are generally used by telephone operators".982 
The HS Explana tory Notes therefore indicate  that "line telephone handsets " are distinct from "line 
telephone sets", in that the former are a component product that may (or may not) be included in 
the latter. As to where they should be classified, the Explanatory Notes indicate  that line telephone 
handsets  fall within tariff item  8518.30, at least to the extent that they "are combined 
microphone/speaker sets for telephony and which are generally used by telephone operators". In its 
responses to questions  from the Panel , India acknowledge s that this language "gives an impression" 
that such line telephone handsets are intended to be covered by tariff item  8518.30.983  
7.406.   We therefore  understand that line telephone handsets should, in principle, be classified 
under tariff item  8518.30 of India's First Schedule . We recall, however, India's argument that 
Notification No. 25/2005, as amended by Notification Nos. 26/2007 and 23/2019, suggests that line 
telephone handsets are classified under tariff item 8517.11, and tariff item 8518.3 0.00 covers only 
"parts" of line telephone handsets. We note that entry 9 of Notification No. 25/2005 exempts certain 
products from customs duties. When Notification No. 25/2005 was initially published in 2005, the 
exemption was available for "[l]ine telep hone handsets" falling under tariff item 8518.30.00 of the 
First Schedule.984 In 2007, the exemption was amended to cover "[l]ine  telephone handsets" falling 
under tariff items "8517.11 or 8517.17". In 2019, the exemption was further amended to cover 
"[p]arts of line telephone handsets" falling under tariff item 8518.30.00.985 In 2022, the exemption 
was amended back to the way it exi sted in 2005, by covering "[l]ine telephone handsets" falling 
under tariff item 8518.30.00.986 
 
977 Indeed, India's WTO Schedule indicates that other than l ine telephone handsets , India has 
undertaken no tariff commitments with respect to other "[h]eadphones and earphones, whether or not 
combined with a microphone, and sets consisting of a microphone and one or more loudspeakers"  falling under 
tariff item 8518.30. ( See WT/Let/181 ; and para. 7.392  above ). Thus, India's tariff commitment with respect to 
such products, other than line telephon e handsets, is unbound.  
978 According to India,  the Explanatory Notes  to the HS may constitute a relevant aid in interpreting 
India's First Schedule. (See India's response to Panel question No. 71, paras. 33 -35). India explains, however, 
that its domestic le gal framework is dualist, such that " Parliament must legislate a specific enabling law to give 
effect to India 's commitments under a treaty  …[and] there is no domestic legislation which mirrors the HS 
Convention and the HS Explanatory Notes ". (Ibid. para. 35). Thus, in India's view, " the HS Convention and the 
HS Explanatory Notes remain relevant aids but have no binding legal force under the Indian legal order. " 
(Ibid.). Chinese Taipei does not contest India's assertions on this issue. (See Chinese Taipei's  response to 
Panel question No. 71; comments on India's response to Panel question No. 71).  
979 HS2017 Explanatory Notes to 8517 , (Exhibit IND -56), p. 1. (emphasis added)  
980 HS2017 Explanatory Notes to 8517 , (Exhibit IND -56), p. 2.  
981 HS2017 Explanatory Notes to 8518 , (Exhibit IND -54), p. 1.  
982 HS2017 Explanatory Notes to 8518 , (Exhibit IND -54), p. 3.  (emphasis added)  
983 India's response to Panel question No. 28, para. 86. 
984 Notification No. 25/2005 , (Exhibit IND-39), p. 1.  
985 Notification No. 25/2005 as amended by Notification No s. 26/2007  and 23/2019 , (Exhibit IND -39). 
986 Notification No. 25/2005, (Exhibit IND -39), as amended by Notification No. 15/2022, 
(Exhibit  IND-76). WT/DS588/R  
 
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  7.407.   Notification No. 25/2005 and its subsequent amendments do not change our view that, in 
principle, line telephone handsets should be classified under tariff item 8 518.30.00 of India's First 
Schedule. We note that the most recent amendment to Notification No. 25/2005 supports that 
interpretation. In any event, India has not explained why and how this Notification and its 
amendments indicate (or have modified) India's  classification practice with respect to line telephone 
handsets. We also note that neither this Notification, nor any other evidence adduced by India, 
indicates that India's customs authorities are legally required to classify line telephone handsets 
under a different tariff item to tariff item 8518.30.00 of India's First Schedule. For the reasons 
described above, we understand that tariff item 8518.30.00 is the correct classification for these 
products.  
7.408.   Having concluded that line telephone handsets should  be classified under tariff item 
8518.30.00 of India's First Schedule, we turn to assess the precise tariff treatment accorded to 
products falling under this tariff item. We first observe that India's First Schedule imposes a standard 
duty rate of 15% on p roducts falling under tariff item 8518.30.00 of the First Schedule. As published 
in 2005, Notification No. 25/2005 provided an exemption from that duty rate for line telephone 
handsets falling under that tariff item. That exemption, however, was amended se veral times and, 
as of the date of the Panel's establishment, Notification No. 25/2005 exempted only "parts" of line 
telephone handsets falling under that tariff item.987 Thus, complete line telephone handsets were 
not covered by the exemption available und er Notification No. 25/2005. Subsequently, however, 
Notification No. 25/2005 was further amended by Notification No. 15/2022 and, as of February 2022, 
the exemption was available for line telephone handsets falling under tariff item 8518.30.00 of the 
First Schedule.988  
7.409.   We also note that Serial No. 39 of Notification No. 24/2005 provides a possible exemption 
for a considerable number of products. Specifically, Serial No. 39 exempts from all duties all goods  
except " solar tempered glass or solar tempered (ant i-reflective coated) glass ", falling under all 
Chapters except Chapter 74 of the First Schedule, if the product is used for the manufacture of goods 
covered by S erial Nos. 1 to 38 of Notification No. 24/2005, provided that the importer follows the 
procedur e set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of 
Excisable Goods) Rules, 1996 (Customs Rules 1996 ).989 Chinese Taipei does not contest that line 
telephone handsets can be used in the production of certain of the prod ucts identified in Serial Nos. 
1 to 38 of Notification No. 24/2005.990 We therefore understand that line telephone handsets 
imported into India are eligible for duty -free treatment under Serial No. 39 of Notification 
No. 24/2005 if: (i) they are used in the  production of certain specified products; and (ii) the importer 
follows the procedures set out in the Customs Rules 1996.   
7.410.   We recall that Article II:1(b) does not require Members to inscribe general conditions for 
importation in their WTO Schedules. Howev er, 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 t he 
Member's WTO Schedule. In our view, the conditions attached to the exemption under Serial No. 39 
of Notification No. 24/2005 are, on their face, conditions for tariff treatment and not general 
conditions for importation. Regarding the requirement that s uch products be used in the production 
of other products, we understand that line telephone handsets not used in the production of those 
products could still be imported into India, but subject to the standard duty rate of 15% instead of 
the duty -free treatment available under the exemption. India has provided no evidence to indicate 
otherwise. Similarly, we  understand that failure to comply with the procedural requirements 
stipulated in the Customs Rules 1996 would not preclude the importation of line telephone handsets 
into India. There is no indication in the evidence on the record that compliance with suc h procedural 
requirements is a general condition for importation – to the contrary, Notification No. 24/2005 
explicitly ties both conditions to eligibility for exemption from customs duties. Indeed, we consider 
that Notification No. 25/2005  clearly  indicat es that these conditions are attached to the exemption  
from customs duties , not entry into India.  
 
987 Notification No. 25/2005 as amended by Notification No s. 26/2007  and 23/2019 , (Exh ibit IND -39).  
988 Notification No. 15/2022, (Exhibit IND -76). 
989 Notification No. 24/2005 as amended by Notification Nos. 132/2006, 32/2016, 19/2016, and 
06/2020 , (Exhibit IND -38).  
990 Chinese Taipei's second written submission, paras. 3. 85-3.87; response s to Panel question No. 30(c)  
and No. 90.  WT/DS588/R  
 
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  7.411.   To summarize, we consider that line telephone handsets should be classified under tariff 
item 8518.30.00 of India's First Schedule, and there is no evidence s uggesting that India classifies 
such products differently. At the time of the Panel's establishment, line telephone handsets were 
subject to a 15% duty rate under the First Schedule, but were also eligible to receive duty -free 
treatment, pursuant to Notifi cation No. 24/2005, if they satisfied certain conditions. Specifically, 
such products were eligible for duty -free treatment under Serial No. 39 of Notification No. 24/2005 
if: (i) they were used in the production of certain specified products; and (ii) the  importer follow ed 
the procedures set out in the Customs Rules 1996. Those conditions are not general conditions for 
importation, but rather conditions to receive duty -free treatment. During the course of these 
proceedings, however, line telephone handsets  became eligible for unconditional duty -free 
treatment, pursuant to Notification No. 25/2005, as amended by Notification No. 15/2022.  
7.4.6.3   Comparison of India's tariff treatment to its WTO tariff commitments  
7.4.6.3.1   Main arguments of the parties  
7.412.   Chinese Taipei conside rs that line telephone handsets falling within the scope of tariff item 
8518.30.00 of India's First Schedule are covered by India's tariff commitments inscribed under tariff 
item 8518.30 ex01 of India's WTO Schedule.991 Chinese Taipei agrees that India is presently acting 
consistently with Articles II:1(a) and (b) of the GATT 1994. However, Chinese Taipei considers that 
at the time of the Panel's establishment India was acting inconsistently with its WTO obligations 
because the duty -free treatment available under Serial No.  39 of Notification No. 24/2005 was 
subject to conditions that are not inscribed in India's WTO Schedule.992 
7.413.   India argues that, at the time of the Panel's establishment, Serial No. 39 of Notification 
No. 24/2005 ensured duty -free treatment for all line telephone handsets, in accordance with 
Articles  II:1(a) and (b) of the GATT 1994.993  
7.4.6.3.2   Panel's assessment  
7.414.   We recall that, pursuant to its WTO Schedule, India is obligated to accord unconditional 
duty-free tre atment to line telephone handsets falling under tariff item 8518.30 ex01 of that 
Schedule.994 In our view, thes tariff commitments apply to line telephone handsets imported into 
India and classified under tariff item 8518.30.00 of India's First Schedule. We  also recall that, at the 
time of the Panel's establishment, such line telephone handsets imported into India were subject to 
a 15% duty rate, pursuant to India's First Schedule, but were eligible for duty -free treatment 
pursuant to Serial No. 39 of Notifi cation No. 24/2005, subject to two conditions: (i) the line telephone 
handsets had to be used in the production of certain specified products; and (ii) the importer was 
required to comply with certain procedural requirements specified in the Customs Rules 1996. Both 
of these conditions are conditions that must be satisfied in order for the line telephone handset to 
receive duty -free treatment.  
7.415.   At the time of the Panel's establishment,  although line telephone handsets were eligible for 
duty-free treatment s ubject to conditions, neither of those conditions was inscribed in India's WTO 
Schedule. If an imported line telephone handset failed to satisfy one of those conditions, it would 
have been subject to a 15% duty rate. We consider, therefore, that at the tim e of the Panel's 
establishment, India's tariff treatment of line telephone handsets was inconsistent with its WTO tariff 
commitments as contained in its WTO Schedule.  
7.416.   As of 1 February 2022 , India amended Notification No. 25/2005, such that line telephone 
handsets became subject to unconditional duty -free treatment. We therefore consider that, as of 
1 February 2022, India brought its tariff treatment of line telephone handsets into consistency with 
its WTO tariff commitments concerning those products.  
 
991 Chinese Taipei's first written submission, paras. 4.88 and 5.10 -5.11.  
992 Chinese Taipei's response to Panel question No. 93, paras. 114 -116; second written submission, 
paras. 3.82 -3.87.  
993 India's first written subm ission, para. 226; response to Panel question No. 28, para. 86.  
994 See para. 7.394  above.  WT/DS588/R  
 
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  7.4.6.4   Conc lusion  
7.417.   Based on the foregoing, we find that, at the time of the Panel's establishment , India's tariff 
treatment of line telephone handsets, falling within the scope of tariff item 8518.30 ex01 of India's 
WTO Schedule, was inconsistent with Article II:1(b),  first sentence, of the GATT 1994, because such 
products were subject to ordinary customs duties in excess of those set forth and provided in India's 
WTO Schedule, unless they satisfied certain conditions not set forth in that WTO Schedule.  
7.418.   We recall that  the application of ordinary customs duties in excess of those provided for in 
a Member's WTO Schedule, or subject to terms, conditions or qualifications not set forth in that 
Schedule , inconsistent with the first sentence of Article II:1(b), also constitu tes "less favourable" 
treatment  within the meaning of Article II:1(a). Consequently, we find that, at the time of the Panel's 
establishment , India's tariff treatment of such products was less favourable than that provided in its 
WTO Schedule, and India was  therefore acting inconsistently with Article II:1(a) of the GATT 1994.  
7.419.   We also find that, as of 1 February 2022 , India accords unconditional duty -free treatment to 
line telephone handsets , in accordance with the terms of its WTO Schedule, and is therefore  acting 
consistently with Article II:1(b), first sentence, of the GATT 1994. Furthermore , by according to the 
commerce of Chinese Taipei  treatment no less favourable than that provided for in its WTO Schedule, 
India's tariff treatment of such products is c onsistent with Article II:1(a) of the GATT 1994.  
8  CONCLUSIONS AND RECOMMENDATIONS  
8.1.  For the reasons set forth in this Report, we conclude as follows:  
a. With respect to India's assertions concerning its WTO tariff commitments, we find that:  
i. The ITA is not a cov ered 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 circumsta nces 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 Chinese Taipei  acted inconsistently wi th the 1980 
Decision is not within our terms of reference, and we consequently do not have the 
legal mandate to make such findings.  
b. With respect to Chinese Taipei's claims that India's tariff treatment of certain products is 
inconsistent with Articles II:1(a) and (b) of the GATT 1994, we find that:  
i. India's tariff treatment of certain products classified under tariff items 8517.12, 
8517.61, 8517.62 and 8517.70 ex01, ex02, and ex03 of India's WTO Schedule is 
inconsistent with Articles II:1(a) and (b) of the GATT 1994;  
ii. At the time of the Panel's establishment, India's tariff treatment of certain products 
classified under tariff item  8518. 30 ex01 of India's WTO Schedule was inconsistent 
with Articles II:1(a) and (b) of the GATT 1994; and  
iii. As of 1 February 2022 , India's tariff treatment of certain products classified under tariff 
item 8518.30  ex01 of India's WTO Schedule is consistent with Articles II:1(a) and (b) 
of the GATT 1994.  
8.2.  Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to const itute 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 Chinese Taipei under that agreemen t. WT/DS588/R  
 
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  8.3.  Pursuant to Article 19.1 of the DSU, to the extent that India's tariff treatment of certain 
products classified under tariff items 8517.12, 8517.61, 8517.62 and 8517.70  ex01, ex02, and ex03 
of India's WTO Schedule continues to be inconsistent with Artic les II:1(a) and (b) of the GATT 1994, 
we recommend that India bring such measures into conformity with its obligations under the GATT 
1994.  
 
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