INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION AND COMMUNICATIONS TECHNOLOGY SECTOR
Document: REPORT OF THE PANEL
Date: 17 April 2023
Document codes: WT/DS588/R
Complainant: Taiwan
Respondent: India
Third parties: Brazil, Canada, China, EU, Indonesia, Japan, Norway, Pakistan, Russia, Singapore, South Korea, Thailand, Turkey, Ukraine, United Kingdom, U.S.
Dispute stage: Panel
Agreements cited: Art. II:1(a), II:1(b)  GATT 1994

INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION
AND COMMUNICATIONS TECHNOLOGY SECTOR

REPORT OF THE PANEL

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

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/DS121/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, Apparel and Other Items, WT/DS56/AB/R and Corr.1, adopted 22 April
1998, DSR 1998:III, p. 1003
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
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
Colombia – Textiles Appellate Body Report, Colombia – Measures Relating to the Importation of
Textiles, Apparel and Footwear, WT/DS461/AB/R and Add.1, adopted 22 June
2016, DSR 2016:III, p. 1131
Dominican Republic –
Import and Sale of
Cigarettes
Panel Report, Dominican Republic – Measures Affecting the Importation and
Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425
Dominican Republic –
Safeguard Measures
Panel Report, Dominican Republic – Safeguard Measures on Imports of
Polypropylene Bags and Tubular Fabric, WT/DS415/R, WT/DS416/R,
WT/DS417/R, WT/DS418/R, and Add.1, adopted 22 February 2012, DSR
2012:XIII, p. 6775
EC – Approval and
Marketing of Biotech
Products
Panel Reports, European Communities – Measures Affecting the Approval 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 by the United States,
WT/DS27/AB/RW/USA and Corr.1, adopted 22 December 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/RW2/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

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 Report WT/DS26/AB/R,
WT/DS48/AB/R, DSR 1998:II, p. 235
EC – Hormones (Canada)
(Article 22.6 – EC)
Decision by the Arbitrator, European Communities – Measures Concerning Meat
and Meat Products (Hormones), Original Complaint by Canada – Recourse to
Arbitration by the European Communities under Article 22.6 of the DSU,
WT/DS48/ARB, 12 July 1999, DSR 1999:III, p. 1135
EC – Hormones (US)
(Article 22.6 – EC)
Decision by the Arbitrator, European Communities – Measures Concerning Meat
and Meat Products (Hormones), Original Complaint by the United States –
Recourse to Arbitration by the European Communities under Article 22.6 of the
DSU, WT/DS26/ARB, 12 July 1999, DSR 1999:III, p. 1105
EC – IT Products Panel Reports, European Communities and its member States – Tariff
Treatment of Certain Information Technology 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 Trade in Large Civil Aircraft, WT/DS316/R, adopted 1 June 2011, as
modified by Appellate Body Report WT/DS316/AB/R, DSR 2011:II, p. 685
EU – 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 Report, 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 Report, India – Certain Measures Relating to Solar Cells and Solar
Modules, WT/DS456/R and Add.1, adopted 14 October 2016, as modified by
Appellate Body Report WT/DS456/AB/R, DSR 2016:IV, p. 1941
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples,
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of
Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I,
p. 3
Korea – Procurement Panel Report, Korea – Measures Affecting Government Procurement,
WT/DS163/R, adopted 19 June 2000, DSR 2000:VIII, p. 3541
Mexico – Taxes on 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, adopted 26 April 2019
Thailand – Cigarettes
(Philippines)
Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines, WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV, p.
2203
Thailand – Cigarettes
(Philippines)
Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the
Philippines, 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/DS34/AB/R, DSR 1999:VI, p. 2363
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain Products
from the European Communities, WT/DS165/AB/R, adopted 10 January 2001,
DSR 2001:I, p. 373
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL)
Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified

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 21.5 –
Canada and Mexico)
Panel Reports, United States – Certain Country of Origin Labelling (COOL)
Requirements – Recourse to Article 21.5 of the DSU by Canada and Mexico,
WT/DS384/RW and Add.1 / WT/DS386/RW and Add.1, adopted 29 May 2015,
as modified by Appellate Body Reports WT/DS384/AB/RW / WT/DS386/AB/RW,
DSR 2015:IV, p. 2019
US – Countervailing and
Anti-Dumping Measures
(China)
Appellate Body Report, United States – Countervailing and Anti-Dumping
Measures on Certain Products from China, WT/DS449/AB/R and Corr.1, adopted
22 July 2014, DSR 2014:VIII, p. 3027
US – Countervailing and
Anti-Dumping Measures
(China)
Panel Report, United States – Countervailing and Anti-Dumping Measures on
Certain Products from China, WT/DS449/R and Add.1, adopted 22 July 2014, as
modified by Appellate Body Report WT/DS449/AB/R, DSR 2014:VIII, p. 3175
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales Corporations",
WT/DS108/R, adopted 20 March 2000, as 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 2012:II, p. 649
US – Washing Machines Panel Report, United States – Anti-Dumping and Countervailing Measures on
Large Residential Washers from Korea, WT/DS464/R and Add.1, adopted 26
September 2016, as modified by Appellate Body Report WT/DS464/AB/R, DSR
2016:V, p. 2505
US – Wool Shirts and
Blouses
Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and
Corr.1, DSR 1997:I, p. 323

LIST OF FREQUENTLY CITED EXHIBITS
Panel Exhibit Short Title
(where applicable) 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 Bill, 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 (accessed on 22 April 2022)
Exhibit TPKM-64 Notification No.
57/2021
Notification No. 57/2021 (29 December 2021)

Panel Exhibit Short Title
(where applicable) Title
Exhibit TPKM-65 General Exemption
No. 239
Central Board of Indirect Taxes and Customs, General Exemption
No. 239 - Exemption to Goods Seeks to Prescribe BCD Rates on
Certain Electronic: Notification No. 57/2017 (30 June 2017) as
amended by Notification Nos. 22/2018, 37/2018, 69/2018,
75/2018, 2/2019, 24/2019, 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. 50/2017 (30 June 2017) as amended by
Notification Nos. 76/2017, 92/2017, 6/2018, 29/2018, 32/2018,
40/2018, 72/2018, 03/2019, 25/2019, 30/2019, 31/2019,
37/2019, 01/2020, 35/2020, 42/2020 and 02/2021
Exhibit IND-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 India to the WTO, Subject: "HS2007
transposition file: India"
Exhibit IND-51 Email from Market
Access Intelligence
Section, WTO, to
India (12
February 2014)
Email correspondence dated 12 February 2014 from Market
Access Intelligence Section, WTO, Senior Statistical Officer, to the
Permanent Mission of India to the WTO, Subject: "RE: HS2007
transposition file . India"
Exhibit IND-54 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,

Rectification and Modification of Schedules, Schedule XII - India,
Communication to the Secretariat (25 September 2018),

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)

Panel Exhibit Short Title
(where applicable) 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 taken 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

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
1980 Decision GATT Decision of 26 March 1980 on Procedures for Modification and
Rectification of Schedules of Tariff Concessions, L/4962
CBIC Central Board of Indirect Taxes and Customs
Customs Act 1962 The Customs Act, 1962, Act No. 52 of 1962 (13 December 1962)
Customs Rules 1996 Customs (Import of Goods at Concessional Rate of Duty for Manufacture of
Excisable Goods) Rules, 1996
Customs Rules 2017 Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017
Customs Tariff Act 1975 The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 1975)
General Council Decision
on HS2002 Transposition
Procedures
General Council Decision of 18 July 2001 on Concessions under the
Harmonized Commodity Description and Coding System, A Procedure for
Introduction of Harmonized System 2002, Changes To Schedules of
Concessions, WT/L/407
General Council Decision
on HS2007 Transposition
Procedures
General Council Decision of 15 December 2006 on A Procedure for the
Introduction of Harmonized System 2007 Changes to Schedules of
Concessions Using the Consolidated Tariff Schedules (CTS) Database,
WT/L/673
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT General Agreement on Tariffs and Trade
GATT 1947 General Agreement on Tariffs and Trade 1947
GATT 1994 General Agreement on Tariffs and Trade 1994
HS Harmonized System
HS1996 Harmonized System Nomenclature 1996 Edition
HS2002 Harmonized System Nomenclature 2002 Edition
HS2007 Harmonized System Nomenclature 2007 Edition
HS2017 Harmonized System Nomenclature 2017 Edition
HS2022 Harmonized System Nomenclature 2022 Edition
ICJ International Court of Justice
ICT Information communication technology
India's WTO Schedule Schedule XII – India
ITA Ministerial Declaration on Trade in Information Technology Products,
WT/MIN(96)/16
ITA Expansion Ministerial Declaration on the Expansion of Trade in Information Technology
Products, WT/MIN(15)/25
PCBA Printed circuit board assembly
PCIJ Permanent Court of International Justice
Transposition Note Email correspondence dated 8 November 2013 from IDB, WTO, to the
Permanent Mission of India to the WTO, Subject: "HS2007 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

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/DS588/7,
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/DS588/7 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 RÍOS

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/DS588/7.
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 2020, Ukraine requested to join this dispute as a third party. Invited by the Panel to
comment on Ukraine's request, the parties indicated that they had no objections to Ukraine's participation as a
third party. (Panel's communications of 29 October 2020 and parties' responses of 10 November 2020). On
18 November 2020, the Panel informed Ukraine, as well as the parties and third parties, that it had accepted
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.

1.8. The Panel adopted its Working Procedures 8 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 appointed 13 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 these questions were received on 23 May 2022, and comments on the
other party's responses were received on 21 June 2022.
1.15. On 5 July 2022, the Panel issued the descriptive part of its Report to the parties. The parties
provided written comments on 26 July 2022.
1.16. The Panel issued its Interim Report to the parties on 28 October 2022 and its Final Report on
27 February 2023.
1.3.2 Organizational phase - Working Procedures and timetable
1.17. On 16 October 2020, noting that the same panelists served on India – Tariffs on ICT Goods
(EU) (DS582), India – Tariffs on ICT Goods (Japan) (DS584), and India – Tariffs on ICT Goods
(Chinese Taipei) (DS588), and mindful of Article 9.3 of the DSU, the Panel sent a pre-organizational
meeting questionnaire to the parties seeking their views on how to set up the timetable and working
procedures in the three disputes.15 The Panel also invited the parties to indicate whether they agreed
to have a single organizational meeting for this dispute and the other two disputes in which the same
panelists were serving, or whether they preferred separate organizational meetings.

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 the 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.

1.18. While Chinese Taipei agreed to have a single joint organizational meeting for the three
disputes in which the same panelists had been appointed 16, 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 manner that the rights
that parties or third parties would otherwise have enjoyed are in no way impaired. " For Chinese
Taipei, the 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 requests for the establishment of a
panel are also different." India had no objection to the timetables in the three proceedings being
harmonized "to the extent that they allow India, a developing country respondent, sufficient time to
effectively respond to three different complaints." To that end, India agreed to have 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 requested 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 requested 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-organizational meeting questionnaire. On 26 October 2020, India informed the Panel that
the Permanent Mission of India to the World Trade Organization (WTO) had shut down because
several staff members had been diagnosed as COVID -19 positive. India requested that, "[i]n view
of these extraordinary circumstances", the Panel postpone the organizational meeting by 10 days
and extend by two weeks the deadline to submit comments on the other party's 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 communication 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.

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 particular on international travel, obliged
the Panel to modify the format of the substantive meetings. This section provides an overview of
the process leading to the Panel's decision to conduct its first and second substantive meetings in
virtual and hybrid format, respectively.
1.3.3.1 Format of the first substantive meeting
1.24. The first 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 COVID-19 pandemic
continued to present serious challenges for international travel and in -person meetings. The Panel
concluded that, in light of those challenges, it would not be possible to hold its first substantive
meeting with the parties and the third-party session in the traditional face-to-face format in Geneva
on the WTO premises. The Panel indicated that, under the prevailing circumstances, and taking into
account the objective of prompt settlement of disputes set out in Article 3.3 of the DSU and the need
to preserve the 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 concerning 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 meeting and third-party session, and on the
draft Additional Working Procedures concerning meetings with remote participation.28 On the same
date, t he Panel also invited the third parties to express their views on the 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 communication 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 the third parties (13 April 2021).
30 Chinese Taipei's communication (16 April 2021).

1.28. India informed 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 … through
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 communication dated 21 April 2021, the Panel noted that the DSU did not prescribe a
particular format for panel meetings and, therefore, the Panel was not precluded from amending its
Working Procedures and conducting meetings in the format it deemed appropriate, after consulting
the parties to the dispute, as provided for in Article 12.1 of the DSU. However, mindful of the
alarming rate of growth in COVID -19 cases in India, the Panel deemed it appropriate to postpone
the first substantive meeting in this dispute, and in the other two disputes in which the same three
panelists had been appointed, until the weeks of 4 and 11 October 2021. The Panel 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 restrictions on international travel and their more general policy on official
travel, the parties would be in a position to attend the second substantive meeting in person at the
WTO premises on 29-30 March 2022. In light of the Panel's decision to hold separate 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 this communication can be found in
Annex D-2 of the Report.
33 Panel's communication to the parties and third parties (31 August 2021). A copy of the Panel's
communication to the parties can 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.

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 DS588 39, 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 had been granted in
previous disputes to address "practical considerations arising from a third party's involvement as a
party in a parallel panel proceeding".43 According to the European Union and Japan, their interest in
the parallel disputes extended beyond the "substantial' interest" in Article 10.2 of the DSU because
of their involvement as parties 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 communication 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 might 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 Procedures for the second substantive meeting can be found in Annex A-3 of
the Report.
42 European Union's communication (21 December 2020), p. 1; Japan's communication (23 December
2020), p. 1.
43 European Union's communication (21 December 2020), p. 2; Japan's communication (23 December
2020), pp. 1-2. Both communications refer to Panel Reports, 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 communication (21 December 2020), p. 2; Japan's communication (23 December
2020), p. 2.

meetings in the parallel proceedings in order to be in a position to properly defend [their] interests
during the substantive meeting[s] in [their] own case[s]".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. their 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 was circumscribed
by the relevant DSU provisions 50 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 applicability of Article 9 of the DSU to this dispute and the other two disputes where
the same panelists were appointed, this provision "has been found to not address the question of
rights of third parties" in parallel disputes. 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 submissions and positions under Article 18.2 [of the] DSU" and the last
two rights implied those third parties' "active involvement at par with that of the complaining party
[which] would also entail an additional burden" for India.56
1.42. China, the 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 communications (11 January 2021).
50 India's communications (11 January 2021), para. 5 (referring to Appellate Body Reports, India –
51 India's communications (11 January 2021), para. 5 (referring to Appellate Body Report, Thailand –
Cigarettes (Philippines), para. 147).
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 communications (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.

those questions following the second substantive meeting." 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 communication, the consortium had not provided any legal
service to that WTO Member. The Panel invited the parties to comment in this regard.60
1.45. Chinese Taipei reserved the right to address any conflict-of-interest issues which might 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 been 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 conditions 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
reserves the right to request the Panel to revisit this decision as these proceedings progress." (India's
communication (24 February 2021)). The Panel acknowledged receipt of India's communication and took note
of India's views. (Panel's communication to the parties and third parties (25 February 2021)).
59 The revision 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.

28 June 2021, India requested the Panel to defer the issuance of its communication so as to ensure
that these issues "are properly discussed and considered at the first substantive meeting."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 submitted 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 TPKM-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 items 74 in India's WTO Schedule:
8517.12; 8517.61; 8517.62; 8517.70 ex01, ex02, and ex03; 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 Panel 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),

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.

identifies 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 … [Customs
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 rates at which duties of customs shall be levied under the Customs Act, 1962 (52
of 1962), are specified in the First and Second Schedules.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, during
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 Government), 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 Tariff 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 submission, 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 assertion.
84 India's second written submission, para. 102 (referring to the Finance Act 2021, (Exhibit IND-74)).
Chinese Taipei does not contest this assertion.

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 assented 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 earlier notification issued under this sub-section by that Government before such
earlier notification has been approved with or without modifications under sub -section
(2).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. Moreover,
pursuant to Section 3 of the Provisional Collection of Taxes Act, a Bill that provides for the imposition or
increase of a customs duty may enter into force the day after it is introduced to Parliament. Such Bill ceases to
have force of law when it comes into operation as an enactment. (Provisional Collection of Taxes Act 1931,
(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 period 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 thereafter have
effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of
anything previously done thereunder."
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 11A(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).

If the Central 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 specified
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 exercise
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, the applied duty rate is based not only on the First
Schedule, but also on any relevant customs notifications which relate to the tariff item at issue.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 regarding that Schedule.
2.16. India's WTO Schedule is based on the HS nomenclature, which is a multilaterally agreed
system of classifying goods for customs purposes. 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
relevant legal instruments (including relevant customs notifications).
95 India's response to Panel question No. 1, paras. 10-11.
96 India is a contracting party to the HS Convention. (Japan's third-party submission, para. 17). This
assertion is uncontested by the parties. (See also Chinese Taipei's first written submission, para. 3.24).

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 respect 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 Members, pursuant to the 1980 Decision. These changes to India's Schedule, which were based
on the HS Nomenclature 1996 Edition (HS1996), were certified on 2 October 1997.101
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 notification 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 Schedules 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, Decision 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], whether 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.

On 8 November 2013, the Secretariat communicated 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 were certified.109
2.23. On 25 September 2018, India requested that its Schedule be rectified, in accordance with the
1980 Decision, in order to correct "certain errors contained in its HS2007 Schedule".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 tariff 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,
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.
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 transmission or regeneration of voice, images or other data
including switching and routing apparatus); ex 8517.70 (parts of 8517.12, 8517.61, ex 8517.62 and
ex 8517.69); and ex 8517.70 (other parts). (India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-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.

2.24. Several Members, including Canada116, China117, the European Union 118, 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, Minutes
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 Products, Minutes
of the meeting held on 30 October 2018, G/IT/M/69, paras. 1.19-1.21; and Committee on Market Access,
Minutes of the meeting held on 9 October 2018, G/MA/M/68, para. 134.
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 Expansion 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 Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133,
paras. 18.7-18.8; Committee on Market Access, Minutes of the meeting held on 9 October 2018, G/MA/M/68,
para. 131.
123 The 1980 Decision indicates that proposed changes shall become a certification provided that no
objection has been raised by a Member within three months of being communicated to all Members. (GATT,
1980 Decision, L/4962, para. 3).
124 WT/Let/181 and WT/Let/1072.

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
Treaties (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 November 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 modify 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. 53, 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).

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 reproduce every
aspect of the parties' arguments, which are more fully reflected in the executive summaries annexed
to this Report.
6.4. Certain of the parties' requests for review of the Interim Report also include requests to modify
or clarify aspects of the Panel's 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 commitments 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 addresses 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 existence 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 Taipei 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 course of these proceedings, India has argued that the "error" (within the meaning
of Article 48 of the Vienna Convention) that occurred during the transposition of its Schedule was
an expansion of India's WTO tariff commitments beyond those contained in the ITA.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. 16.
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. 2.11.
137 See e.g. India's first written submission, para. 58; second written submission, para. 19.

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 undertakings)
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 substantiate its burden of proof.
6.13. Regarding India's observation that its conduct during the transposition process is irrelevant
to the question of whether India's stated assumption constituted an essential basis for its consent
to be bound, we disagree. To the contrary, India's actions during the transposition process provide
some indication of what constituted India's essential bases for its consent to be bound by its
transposed Schedule.
6.14. We further note that India also argues that what matters in this context is 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 alleged 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 Schedule 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 expand India's tariff commitments beyond India's obligations under the ITA[]. That remains
India's clearly articulated position." (India's opening statement at the second meeting of the Panel, 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 WTO Secretariat would flag the relevant tariff items. Notwithstanding that
India has not framed its alleged error under Article 48 in this manner, we recall that in the context of applying
Article 48(2), we have indeed assessed India's arguments regarding the WTO Secretariat's alleged failure to
flag the relevant tariff items, and concluded that the WTO Secretariat correctly and appropriately flagged all
relevant tariff items. (See paras. 7.178-7.196 below). Thus, if India had alleged that the "error" under Article
48(1) was that the WTO Secretariat had failed to flag the relevant tariff items (quod non), our findings indicate
that no such error occurred.

6.1.2 Whether the circumstances were such as to put India on notice of a possible
expansion of its WTO tariff commitments from its ITA undertakings
6.15. Section 7.3.3.3.3.2 of the Report addresses whether the circumstances 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 reasoning 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 agree that document G/MA/283 does not flag any tariff items,
the parties are in fact saying two different things when they make their respective assertions.
Chinese Taipei argues that paragraph 4 of the General Council Decision on HS2007 Transposition
Procedures "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. 18.
144 India's request for interim review, para. 18.
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. 12.
147 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)
148 See paras. 7.178-7.194 below.

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 respect "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 the issue being addressed in the relevant paragraphs is India's argument that
"for a state to be put on notice of a possible error, the circumstances should be such that no
interested party should fail to notice the error or be under a misapprehension about it."158 The Report
addresses this argument and ultimately concludes that the relevant standard under this element of
Article 48(2) is whether the State was on notice of a possible error, not an actual error. Those are
plainly different things. We see no need to modify or further clarify our reasoning on this issue.
6.2 Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the
GATT 1994
6.2.1 Tariff item 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 tariff 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 request 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. 2.13.
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.

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 of 20% on products classified under tariff items 8517.12.11,
8517.12.19 and 8517.12.90 (all of which fall under tariff item 8517.12). 161 Therefore, paragraph
7.266 of the Interim Report accurately reflects the parties' arguments. Moreover, that same
paragraph also indicates that the tariff treatment accorded to products under tariff item 8517.12.90
differed from that set forth in the First Schedule, as products falling thereunder were exempted from
customs duties. This information is also uncontested by the parties.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 the other party's response.
In its response to our question, India referred to Notification No. 02/2022. On 18 January 2023, we
invited India to submit Notification No. 02/2022 as an exhibit. On 20 January 2023, India submitted
Notification No. 02/2022 as Exhibit IND-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 Therefore, with effect from 1 February 2022,
the tariff treatment applicable to base station controllers, base transreceiver stations, and antenna
systems, as well as parts of those products, pursuant to that Serial No., is no longer applicable. 164
We have accordingly 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 and 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 that 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. 4.15-4.24; 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, paras. 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, paras. 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 Schedule 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).

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 Opinion 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 Rectification
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 these 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 required 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, paras. 3 and 24. See also India's first written submission,
para. 58.
172 India's first written submission, paras. 91-92.
173 India's response to Panel question No. 65(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 Panel 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. 44-45.

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 measure is inconsistent
with Article II:1(b) , first sentence, on the ground that the tariff treatment is subject to "terms,
conditions or qualifications" that are not set forth in the relevant WTO Schedule, such tariff treatment
would necessarily constitute treatment less favourable than that set forth in the Schedule. In short,
where a measure is inconsistent with Article II:1(b), first sentence, it is also inconsistent with
Article II:1(a).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" extends 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 Reports, EC – IT Products,
para. 7.757).
178 Appellate Body Report, Colombia – Textiles, para. 5.34 (referring to Appellate Body Report,
179 Appellate Body Report, Argentina – Textiles and Apparel, para. 45.
180 Appellate Body Report, Argentina – Textiles and Apparel, para. 45.
182 See e.g. Panel Report, Russia – Tariff Treatment, para. 7.48 (referring to Appellate Body Report,
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) the treatment accorded to the products at issue under the challenged measures
at issue; and (c) whether the challenged measures result in less favourable treatment of the products at issue
than that provided for in the relevant schedule and, more specifically, whether the challenged measures result
in the imposition of duties and charges on the products at issue in excess of those provided for in the relevant
schedule. (Panel Reports, EC – Chicken Cuts, para. 7.65; EC – IT Products, para. 7.100).
184 The parties do not dispute that where the tariff treatment at issue in this dispute concerns "duties"
applied by India, such duties constitute "ordinary customs duties" within the meaning of Article II:1(b). We
note that a previous panel found that the expression "ordinary customs duties" refers to "duties collected at
the border which constitute 'customs duties' in the strict sense of the term (stricto sensu)" and "this expression
does not cover possible extraordinary or exceptional duties collected in customs". (Panel Report, Dominican
Republic – Safeguard Measures, para. 7.85). In our view, the duties at issue in this dispute are indeed ordinary
customs duties within the meaning of Article II:1(b), first sentence.
185 We also note that it is not necessary to find that all products falling under a specific tariff item are
treated inconsistently with the WTO Schedule, to conclude that India is acting inconsistently with Article
II:1(b), first sentence. As the panel in EC – IT Products found, "if we were to determine that some products fall
within the scope of duty-free concessions in the EC Schedule, then if the challenged measures provide for the
application of duties to those products covered by the concession, this would be sufficient to find a breach of
Article II." (Panel Reports, EC – IT Products, para. 7.116).
186 See parties' responses to Panel question No. 74.

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 accordance
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 interpretation, the Harmonized System (HS)
and its Explanatory Notes have been found to constitute relevant "context" pursuant to Article 31(1)
of the Vienna Convention.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 WTO 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 Appellate Body Report,
EC – Export Subsidies on Sugar, para. 167; and Panel Reports, 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, paras. 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; and
India's comments on Chinese Taipei's response to Panel question No. 72, para. 18).

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 HS2007 192; 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 static 194;
(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, pursuant 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, describes 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 submission, 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, para. 34.
192 See e.g. India's first written submission, paras. 56-92.
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 right 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/MIN(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.

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 were covered under the ITA[]".203 India elaborated that it would subsequently seek to establish
that the products at issue were not covered under the ITA, and therefore the 2007 Schedule was
certified in error and the objections against India's rectification request under the 1980 Decision
were without merit.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 technology 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[] that 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 interpretation 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 first written submission, section 5.
203 India's first written submission, para. 93.
204 India's first written submission, para. 94.
205 India's first written submission, para. 127.
206 See India's first written submission, paras. 125-219.
207 India's first written submission, para. 127.
208 India's first written submission, para. 103. In addition to referring to the ordinary meaning of the
text of the ITA, India considers that subsequent practice indicates that the scope of the ITA does not extend to
new products. (Ibid. paras. 97-124). 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 growth of information
technology products, and therefore an expansion of the ITA[] was required in order to liberalize the IT product
209 Chinese Taipei's response to Panel question No. 3, para. 5.
210 Chinese Taipei'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.

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 (ii) "the ITA[] also serves as an important comparative benchmark for
determining if the draft rectification request to the 2007 Schedule submitted by India in 2018 was
of a purely 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 Articles 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. 125-219; response to Panel question No. 44, para. 29.
223 India's first written submission, para. 25
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.

7.3.2.2.2 Main arguments of the third parties
7.27. Brazil considers that the ITA "is not a covered agreement within the meaning of Article 1.1 of
the DSU, and, therefore, the Panel has no authority to interpret the ITA[]".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 31 of the Vienna Convention for the purposes of interpreting the terms of the concessions
at issue, but the ITA[] is not itself the subject of the Panel's analysis in this case."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 the 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 exercise 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 Vienna
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 response 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 third-party response to Panel question No. 2, para. 10. (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.

7.33. Türkiye submits that the claims raised in this dispute "have to be analysed with a view to
ensuring 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 of 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 Articles 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 indicating that
Members' legal obligations, for the purposes of applying Articles II:1(a) and (b), could be contained
in the ITA.
7.39. As to the ITA itself, we note that paragraph 2 of the ITA indicates that:
Pursuant to the modalities set forth in the Annex to this Declaration, each party shall
bind and eliminate customs duties and other duties and charges of any kind, within the
meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 1994, with
respect to the following: (a) all products classified (or classifiable) with Harmonized
System (1996) ("HS") headings listed in Attachment A to the Annex to this Declaration;
and (b) all products specified in Attachment B to 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 response 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, para. 9.
251 Chinese Taipei's first written submission, paras. 5.1-6.1. See also Chinese Taipei's second written
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.

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 Member'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 structure
– not the ITA.
7.42. In this respect, we observe that the ITA does not constitute a covered agreement within the
meaning of the WTO Agreement and the DSU. The DSU indicates that its rules and procedures apply
to disputes brought pursuant to the dispute 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 Schedule 255, 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 Appendix 1"
of the DSU, as well as "consultations and the settlement of disputes between Members concerning their rights
and obligations under the provisions of the Agreement Establishing the World Trade Organization … and of this
Understanding taken in isolation or in 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 'covered 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.

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 Schedules.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 part 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 demonstrating 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 articulating the source of
India's commitments under the contested sub -headings is apparent in their submissions which
(while principally basing themselves on the 2007 Schedule) attempt to link the present dispute to
India's commitments under the ITA[] without identifying 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 comments 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 WTO HS1996 Schedule",
"India's WTO HS2002 Schedule", and "India's WTO HS2007 Schedule" to refer to India's Schedule as it existed
following each transposition to that iteration of the HS nomenclature. References in this Report to India's WTO
Schedule, without identifying any version of the HS nomenclature, refer to India's WTO Schedule as most
recently transposed (i.e. based on the HS2007). This nomenclature, however, should not be read to imply that
India has been bound by three distinct WTO Schedules.
267 See para. 7.9 above.

undertakings contained therein were only operationalized within the WTO legal system through their
incorporation into Members' Schedules. We also note that the ITA is not a covered agreement within
the meaning of the WTO Agreement and the DSU. 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 under Attachment A of
the ITA). India submits that the product scope of its commitment s with respect to such products
"was limited by the then HS Explanatory Notes to devices capable of transmitting (1) speech, (2)
messages, or (3) still pictures".275 India notes 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 Schedules 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
Articles II:1(a) and (b), Chinese Taipei must demonstrate that the products at issue fall 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. 36.
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 customs duties and other
duties and charges of any kind", within the meaning of Article II:1(b) of the GATT 1994, with respect to certain
specified products. (Ministerial Declaration on the Expansion of Trade in Information Technology Products,
WT/MIN(15)/25, Annex, para. 1; WT/L/956, para. 1). We understand that the 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).

certain products at issue 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 are 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 scope 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 Regarding 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 agreement"
and "the interpretative 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 opening 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, fn 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 Audiovisual 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. 3.52.
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.

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 commitments "are static and unable to capture technological advancement would undermine
the WTO system of tariff concessions by allowing Members to simply disregard tariff commitments
on the basis that a product incorporates, or has become, a new technology".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 undertaken 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
schedule of India" and the ITA "does not appear to be legally relevant by virtue of either Article 31
or Article 32 of the Vienna Convention with regard to the interpretation of India's concessions as
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 dispute".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, para. 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. 10.
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 third-party response to Panel question No. 6, para. 22.
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)

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 covered [by the
ITA, it] envisages the incorporation of additional products in parallel to technological developments
provided that the parties to the ITA negotiate and agree by consensus."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
remained 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 seeks "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 the 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 concessions 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 concluded.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 third-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. 29).
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. 21.
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).

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 recalling that Members' WTO Schedules, as an integral part of the GATT 1994
and the WTO Agreement, are to be interpreted in accordance with customary rules of interpretation
of public international law, pursuant to Article 3.2 of the DSU. 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 Reports, 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 those
terms at the time of interpretation." (Appellate Body Report, China – Publications and Audiovisual Products,
para. 390). The Appellate Body stated that "the terms used in China's GATS Schedule ('sound recording' and
'distribution') are sufficiently generic that what they apply to may change over time." (Ibid. para. 396).
According to the Appellate Body, "GATS Schedules, like the GATS itself and all WTO agreements, constitute
multilateral treaties with continuing obligations that WTO Members entered into for an indefinite period of time,
regardless of whether they were original Members or acceded after 1995." (Ibid.). The Appellate Body
elaborated that:
[I]nterpreting the terms of GATS specific commitments based on the notion that the ordinary
meaning to be attributed to those terms can only be the meaning that they had at the time the
Schedule was concluded would mean that very similar or identically worded commitments could
be given different meanings, content, and coverage depending on the date of their adoption or
the date of a Member's accession to the treaty. Such interpretation would undermine the
predictability, security, and clarity of GATS specific commitments, which are undertaken through
successive rounds of negotiations, and which must be interpreted in accordance with customary
rules of interpretation of public international law.
(Ibid. para. 397 (footnotes omitted))
Similarly, in Greece – Phonograph Records, a GATT 1947 Group of Experts addressed whether
"long-playing" records were covered by the bound duty for "gramophone record" given that "such
records did not exist at the time the Greek Government granted the … concession [at issue], that they
contained a volume of recordings up to five times that of the old records, that they were lighter than
conventional records, that they were made of different material and that, therefore, as a new product,
they were not covered by the item bound" in Greece's Schedule. (Group of Experts Report, Greece –
Phonograph Records, p. 1). The Group of Experts "agreed that the practice generally followed in
classifying new products was to apply the tariff item, if one existed, that specified the products by
name, or, if no such item existed, to assimilate the new products to existing items in accordance with
the principles established by the national tariff legislation." (Ibid. p. 1). The Group found that
long-playing gramophones, developed after Greece made the relevant tariff concession, were covered
by the description of "gramophone records" in Greece's Schedule. (Ibid. p. 2).
329 See Appellate Body Reports, EC – Computer Equipment, para. 89; EC – Chicken Cuts, paras.
195-197; and China – Auto Parts, paras. 146 and 149.

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
nomenclature.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 commitments 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 argument rests on two premises: (i) the product scope of Attachment A
of the ITA is static, such that it "does not include technological advancements" 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 proceed on an arguendo basis to assess whether, assuming
that the product scope of the ITA is indeed static, the ITA limits the product scope of India's WTO
Schedule.
7.68. We therefore turn to address whether, assuming that the product scope of the ITA is static ,
it limits the scope of certain Members' WTO tariff commitments. We recall the general rule that if,
at any given point in time, a product falls within the scope of a Member's WTO tariff commitments
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
mutually advantageous arrangements underpinning the multilateral 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 response to Panel question No. 10, para. 31 ("[t]he General Rules of Interpretation, annexed
to the [HS Convention], allow for all products to be classified under one or the other heading of any version of
the HS, and therefore, also the Schedule of Concessions 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 "shall be classified under the heading appropriate to the goods to which they are most
akin". (See General Rules for the Interpretation of the Harmonized System, (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.

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 existence after the conclusion of the ITA and otherwise falling within the scope of Members'
tariff commitments as set forth in their WTO Schedules would 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 to "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. Moreover, India's WTO Schedule governs its tariff obligations with respect to all imports
from all WTO Members, and not solely the participants in the ITA. We understand that the ITA was
not signed by all WTO Members. Since the ITA was agreed to by only some of the Members of the
WTO, we do not see how the ITA could signal the intentions of the parties to the WTO Agreement
with respect to any of its treaty 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 interpretation of India's WTO Schedule whereby the ITA limits
the scope of India's WTO tariff commitments. We recall India's argument that the "static commitments"
contained in the ITA "did not become elastic by virtue of their incorporation into concession schedules", and
that the ITA "was a sui-generis instrument with commitments over a limited scope of products and required
those 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 Convention. 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 concerns "[a]greements to modify
multilateral treaties between certain of the parties only". We find it meaningful that this provision uses the
language in its title of "certain of the parties". The drafters of the Vienna Convention could have used similar
language in Article 31(4), but chose not to do so. Furthermore, regarding the content of Article 41, the drafters
of the Vienna Convention specifically accounted for a situation where certain parties to a treaty wish to modify
the treaty as between themselves. This situation is treated distinctly under the Vienna Convention from a
situation where the parties to a treaty wish to give a "special meaning" to a term in that treaty. These two
provisions should not be conflated. Moreover, the existence of Article 41 suggests that Article 31(4) is not a
mechanism through which some parties to a treaty can modify the treaty for all parties to the treaty.

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 the Annex to the ITA, which states that "[p]articipants shall meet periodically
under the auspices of the Council on Trade in Goods to review the product coverage specified in the
Attachments, with a view to agreeing, by consensus, whether in the light of 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 concern India's WTO Schedule and necessarily exclude
a considerable portion of the WTO Membership who are not participants in the ITA. As stated above,
we do not consider that a group of WTO Members can define treaty terms for all WTO Members.
7.77. Having said that, given the importance that India appears to attribute to the product scope
of the ITA Expansion, we wish to briefly note there is no indication in the ITA Expansion that the
product scope of that agreement does not overlap with the ITA. We understand, 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.
342 India's second written submission, para. 63.
343 See e.g. India's first written submission, paras. 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 covered in the ITA". (Proposed Additions to Product Coverage:
Compilation of Participants' Submissions, G/IT/SPEC/15, p. 1). We note India's argument that this document
"was issued during the negotiations under 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.).

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 its face, covered by India's WTO
Schedule, that legal obligation would not be changed merely because that product is not covered by
the ITA. Since India's 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 consider it
necessary to further take into account the ITA as "context" for purposes of determining the scope of
India's tariff commitments as set forth in its WTO Schedule.
7.80. 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, we do not consider it relevant to examine the product
scope of the ITA as "context" to interpret India's WTO Schedule. In addition, we do not consider that
Members' subsequent practice with respect to the ITA (such as the scope of the ITA Expansion) can
modify the scope of India's WTO Schedule.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 panels in EC – IT
Products that the ITA "may serve as context within the meaning of Article 31(2)(b) of the Vienna Convention
for the purpose of interpreting tariff concessions". (Panel Reports, EC – IT Products, para. 7.383). The panels
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 legal 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
arguing that certain aspects of its WTO Schedule are invalid pursuant to Article 48 of the Vienna Convention.
Moreover, India considers the ITA to be relevant in relation to its request for findings concerning its
rectification request under the 1980 Decision. We address these arguments below. (See sections 7.3.3-7.3.4
below).

7.3.3 Article 48 of the Vienna Convention
7.3.3.1 Introduction
7.82. As described in section 2.3 above, in 2006, in preparation for the transposition of Members'
Schedules from the HS2002 to the HS2007, the General Council adopted a Decision on HS2007
Transposition Procedures Pursuant to that Decision, developed country Members were to prepare
their own transpositions from the HS2002 to the HS2007, and the WTO Secretariat was requested
to "transpose the schedules of developing country Members, except for those who undertake to
prepare their own transposition and submit a notification to this effect". 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 expanded from the commitments it
had undertaken under the ITA. However, in India's view, the transposition of its Schedule resulted
in an expansion of its tariff commitments from the ITA. India 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 Panel 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 of Schedules, Schedule XII – India,
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015, as certified in WT/Let/1072, effective
12 August 2015; India's response to Panel question No. 19, para. 61.
355 India's first written submission, fn 107 to para. 66.
356 India's first written submission, para. 56.
357 India's second written submission, para. 5.
358 India's first written submission, paras. 87-91.
359 India's first written submission, para. 92.
360 Chinese Taipei's second written submission, paras. 3.6-3.11.

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, and (ii) formed an essential basis for its consent
to be bound. Paragraph 2 establishes that, in certain circumstances, a State cannot invoke error as
a ground for invalidating its consent to be bound, even if the requirements of paragraph 1 are
satisfied. 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), pp. 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 wording of a treaty do not affect the validity
of the treaty and are addressed under Article 79 of the Vienna Convention, and not Article 48. In this respect,
we tend to agree with the European Union that "the error invoked by India under Article 48 of the VCLT in
these proceedings and the error invoked by India in support of its request for a rectification under the 1980
Procedures are legally distinct and manifestly incompatible with each other." (See European Union's third-party
response to Panel question No. 19, para. 21).

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 international 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 it is a moot question whether Article 48 is an applicable rule of law
in WTO dispute settlement. We therefore defer addressing the question of applicability 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 satisfied 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 requirements 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. 47-53 and second written submission,
paras. 15-18; 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. 38
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, paras. 11-12; and United States' third-party submission, paras. 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 Schedule
could be considered to have been corrected under either paragraph of Article 79". (Panel Report, Russia –
Tariff Treatment, para. 7.55). Similarly, in India – Autos, the panel considered that "the potential 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
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 for invalidating,
terminating, withdrawing from or suspending the operation of a treaty", and states as follows:
A State may no longer invoke a ground for invalidating, terminating, withdrawing from or
suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after
becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains
in force or continues in operation, as the case may be; or (b) it must by reason of its conduct be
considered as having acquiesced in the validity of the treaty or in its maintenance in force or in
operation, as the case may be.
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 the Vienna Convention, titled "Separability of treaty provisions", sets out in its second
paragraph the general principle that "[a] ground for invalidating, terminating, withdrawing from or suspending
the operation of a treaty recognized in the present Convention may be invoked only with respect to the whole
treaty except as provided in the following paragraphs or in article 60."

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 the 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 application of Article 45.
7.92. We therefore assess the parties' arguments regarding, in turn, Articles 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 "because … 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 error, 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. 58.
376 India's first written submission, para. 64.
377 India's first written submission, para. 64 (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 96 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 question 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 at 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).

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 nature of the transposition process in support of its view that a "possible change in
scope of a concession resulting from a HS transposition could be portrayed as an objective fact or
situation within the meaning of Article 48". 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 the transposition to HS2007 could not 'expand'
the scope of its pre -existing concessions ", but "[r] ather, India is wrong to assume that its
pre-existing concessions were limited to products which already existed in 1997".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 certified 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. 23.
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, para. 21 (referring to International Court of Justice (ICJ), Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports
1962, p. 6; ICJ, Kasikili/Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999: ICJ Reports
1999, p. 1045; Permanent Court of International Justice (PCIJ), Legal Status of Eastern Greenland (Denmark
v. Norway), Judgment of 5 September 1933, PCIJ (ser. A/B) No. 53; and ICJ, Case concerning Sovereignty
over certain Frontier Land (Belgium v. Netherlands), Judgment of 20 June 1959: ICJ Reports 1959, p. 209).
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 question 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.

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 error regarding the scope of a tariff commitment clearly does not concern 'a fact
or situation' since it relates to the scope [of] a treaty provision".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 concerning
'the complex nature of the HS2002 to HS2007 transposition'" as well as India's position "that it
'never intended to expand its tariff commitments with respect to ICT products beyond the remit of
India's obligations as contained in the ITA[]'".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 tariff 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 omitted)
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 under
Article 48(1) have been met").

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 assumption. In this dispute, India
asserts that, at the time that it certified its WTO HS2007 Schedule, India assumed that "the HS2007
transposition did not expand India's tariff commitments beyond India's obligations under the
ITA[]".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 was 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 notes 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. 28.
406 India's first written submission, para. 65.
407 India's first written submission, para. 64.
408 India's first written submission, para. 65.
409 Chinese Taipei's comments on India'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. 64-65,
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.

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 process.
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 sentence which
stated that some countries had benefited from the ITA in terms of increasing
employment, IT spending and investment.
…
3.11 The representative of India thanked the US delegation and other co-sponsors for
the concept paper. He supported the statement made by El Salvador also on behalf of
others (Guatemala, Honduras, Nicaragua and the Dominican Republic) on the fact that
the 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 products. The applied tariffs were not
so substantial as so to create those market access barriers and many companies were
managing to export their products. On the issue of classification divergences, he said
that it was an issue that comprised 55 products and had not been resolved for the past
15 years. He doubted that one could just brush it aside in terms of saying that these
were complicated by HS96, HS2002 or HS2007 nomenclature changes as otherwise the
participants would have 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 scope 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 96 to para. 60.
414 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.

problem in the 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 Schedule 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 evidence of an "assumption" may be difficult to obtain. To the extent that such an assumption
is a widely held implicit understanding, there may be little to no documentary evidence. We therefore
do not consider India's lack of documentary evidence sufficient to conclude that India has not met
its burden of proof with respect to the existence of its assumption. We also note India's arguments
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, with respect to those tariff commitments adopted by India in order to implement its
ITA undertakings, and that the scope of those tariff commitments would not be expanded through
the HS2007 transposition process.420

415 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.
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 that 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 application of the legal standard under Article 48 not
only requires that the invoking party held an assumption, but requires the invoking party to demonstrate that
such assumption constituted an essential basis for its consent. (See section 7.3.3.2.3.4 below). In our view,
this latter question imposes an additional evidentiary burden on the invoking party, over and above
demonstrating that they made an assumption. It therefore follows, in our view, that taking India at its word
with respect to this first step of the analysis does not alleviate India from its evidentiary burden under
Article 48.

7.3.3.2.3.3 Whether India's assumption regarding the alleged expansion of its WTO tariff
commitments from its ITA undertakings relates to a "fact or situation" within the meaning
of Article 48(1)
7.118. 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 potential ground for invalidity in international law."424
7.120. Chinese Taipei argues that an 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 falls 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. 31. 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 (referring 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 Treaties, 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 first meeting of the Panel, paras. 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 Vienna Convention. A Commentary on the Vienna Convention indicates that "[a]s a general rule, an
error of law cannot in itself be regarded as 'an error relating to a fact or situation'" and that "[e]rrors relating
to international law are genuine errors of law and are as such immaterial under Art 48 para. 1". (T. Rensmann,
"Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn
(Springer, 2018), (Exhibit IND-14), pp. 886 and 888). We agree with this reasoning. We further note that in
the Eastern Greenland case, Petroleum Development v Sheikh of Abu Dhabi, and the Temple of Preah Vihear,
the relevant international tribunals consistently found that errors of law may not be invoked as invalidating
consent to be bound by a treaty. (Ibid. p. 887 (referring to 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).

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 concerns 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 schedule 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 submission, para. 64.
433 India's first written submission, para. 65.
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.

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 that 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 documents
circulated by the Committee on Market Access, containing certain communications 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 "document 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 54 to para. 38, fn 77 to para. 49, and fn 106 to para. 66;
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 document
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 dispute. Moreover, since document WT/L/673 is relied upon by the parties, and
explicitly refers to document G/MA/W/76, we consider that, as a publicly accessible WTO document, document
G/MA/W/76 is part of the official record. In our view, this approach accords with the approach taken by a
previous panel in analogous circumstances. (See Panel Report, US – Countervailing and Anti-Dumping
Measures (China), para. 7.370). We further note that, even to the extent that this publicly available WTO
document was not specifically identified in the evidence adduced by the parties, we do not consider that this
would preclude us from taking it into account. In our view, panels are not obliged to disregard publicly
available WTO documents of which they are aware, and which bear directly on the matters before them, simply
because such documents were not raised by the parties to the dispute.
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 to 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/673, Annex 2, paras. 1-7. See also G/MA/W/67; G/MA/W/76; and G/MA/283.

HS2007.444 Since these procedures did not contemplate any kind of comparison or discussion of the
ITA, we understand 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 not have been unaware of India's very public and unequivocal stance
against the expansion of the ITA[] including the fact that it was already levying duties in derogation
to the 2007 Schedule at the time of its certification".446 As evidence of its "persistent expression of
its stand to not be bound by commitments beyond the ITA[] via any process which would have such
an effect", India refers to "several pronouncements" that it made.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 products falling under the ITA .449 Thus, India was on notice that there was a
difference of opinion among ITA participants regarding certain classification issues, including with
respect to the scope of their ITA undertakings. This makes India's failure to highlight its alleged
assumption regarding the relationship between the ITA and its WTO tariff commitments during the
transposition 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 the

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 the [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 written 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
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.

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 was conducted in accordance with the agreed-
upon correlation tables, India is (and asserts that it was at the time) unwilling to be bound by the
transposed Schedule. India argues that it was only willing to be bound by its Schedule if the scope
of its 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 assumption (during the transposition
process and at the time of certifying the changes to its Schedule resulting from that process ), that
the scope of its tariff concessions would be limited to the scope of its undertakings in the ITA,
constituted an 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 this
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 and failure to mention the ITA in the context of the transposition
process signalled to WTO Members and the WTO Secretariat that it intended for the Secretariat to
follow those correlation tables and procedures. If India had wished otherwise, it could and s hould
have said so. According to the evidence before us, India did not do so. In short, there is no indication
in the evidence before us that India's assumption that the scope of its concessions with respect to
certain ICT products would be limited to the product scope of the ITA constituted an essential basis
for its consent to be bound by the changes to its Schedule.
7.138. 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 demonstrating 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 was expanded beyond the scope of its ITA undertakings.
7.140. India argues that the scope of its WTO tariff commitments was 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 except 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. 37.
456 India's first written submission, paras. 68 and 93-219.

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 argues that its "mistaken assumption" at the time that it agreed
to be bound by its HS2007 Schedule was not in relation to the transposition of its tariff commitments
from the HS2002 to the HS2007, but rather in relation to the scope of its ITA undertakings as
compared to its WTO 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 contained in their
WTO Schedules evolves over time to capture products that may come into existence as a result of
technological developments, and that this general rule is not changed for certain WTO Members by
virtue of their participation in the ITA.467

457 India's first written submission, para. 67.
458 India's first written submission, para. 69.
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 that 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 agreed and approved procedures and correlation tables". (Ibid. para. 32). India also
agrees that no mistakes occurred in any prior transpositions of its WTO Schedule. (India's response to Panel
question No. 64).
464 We therefore see no need to examine the accuracy of the WCO's correlation tables, the updated
correlation tables prepared by the WTO Secretariat and approved by the General Council and the Committee on
Market Access, or the transposition process as 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.

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 importance that the parties attribute to this issue, we consider it useful to
address the parties' arguments as to whether these products were covered by India's tariff
concessions in its WTO HS1996 Schedule.
7.146. 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 as 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 "telephones 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. 150-178 and 198-219).
469 India considers that "[t]he issue before the Panel is whether sub-heading 8525.20 [of the HS1996] –
'Transmission apparatus incorporating reception apparatus' could cover telephones for cellular networks."
(India's first written submission, para. 152).
470 India's first written submission, para. 153. 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 record. (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 pictures". (Ibid.).

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 Explanatory
Notes cited by Chinese Taipei and those contained in an exhibit submitted by India, Chinese Taipei
explains that the language on cellular telephones and mobile phones was 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 debated by the parties is
whether cellular telephones or mobile phones (presently classified under tariff item 8517.12 of
India's WTO HS2007 Schedule) were classified under tariff item 8525.20 of India's WTO HS1996
Schedule.
7.149. 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 tariff 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 (referring 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 Committee 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. 151.
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, definition 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" (Cambridge Dictionary online, definition of "mobile phone"
https://dictionary.cambridge.org/dictionary/english/mobile-phone (accessed 17 October 2022)); "a phone that
you can carry with you and use to make or receive calls wherever you are" (Collins Dictionary online, definition
of "mobile phone" https://www.collinsdictionary.com/dictionary/english/mobile-phone (accessed 17 October
2022)).
487 India's second written submission, para. 41.
488 India's second written submission, para. 41.

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 Notes prior to the 1998 amendment
as excluding from the scope of tariff item 8525.20 products that completely satisfy the requirement
of being capable of transmitting speech, messages, and still pictures, but nevertheless are also
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 its duty-free commitment with respect to this tariff item
in its WTO Schedule. As we have explained above, we consider that Members' WTO commitments
are not static, and India has not pointed to any provision of the ITA indicating that Members' WTO
tariff commitments undertaken in relation to the ITA would exclude products that subsequently come
into existence due to technological development and that would otherwise fall within the scope of
that tariff item. In short, we see no basis to exclude 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 argument 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 submission, para. 154). 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, "telephones
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 Explanatory 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 8525, 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.

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 commitments remained
unchanged.495 Following the transposition of its Schedule to the HS2007, the commitment s under
tariff item 8525.20 of the HS2002 w ere split into four distinct HS2007 tariff items, including tariff
item 8517.12 of the HS2007, which covers "[t]elephones for cellular networks or for other wireless
networks".496 Thus, India's WTO tariff commitments with respect to telephones for cellular networks
or for other wireless networks were initially set forth as an undertaking in the ITA, were made binding
WTO tariff commitments pursuant to certain amendments introduced into India's WTO HS1996
Schedule, were not affected by the changes to India's Schedule during the HS2002 transposition
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 could 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 the 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 Schedule fall outside the scope of the ITA are directly premised on
India's understanding that products falling under tariff item 8517.12 of its WTO Schedule fall outside the scope
of the ITA. (See India's first written submission, paras. 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. 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).

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 factor 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. 894). (emphasis omitted) See also 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 limited input from India … It was the Secretariat rather than India that was
holding the pen. Consequently, the Secretariat bears at least some of the responsibility for the errors in this
transposition process". (Ibid.). Professor Waibel emphasizes that "[e]ven though [the transposition] procedure
was not meant to lead to any change in the scope of concessions and other commitments, it did result in such
changes, without the WTO Secretariat flagging the disputed changes to India." (Ibid. (referring to WT/L/673,
para. 3) (emphasis omitted)).
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 submission, 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 they
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 responsible 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).

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 Schedule".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
establishes 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 concessions 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
circumstances 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 jurisprudence on Article 48 "suggests that
there is a certain level of diligence that is required on the part of the State invoking the error in
order to demonstrate that its conduct did not contribute to the error". 523 Canada submits that "the
Secretariat offered the results of its transposition procedures to India, and India, in exchange, was

512 Chinese Taipei's second written submission, 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 over certain Frontier Land (Belgium v. Netherlands), Judgment of 20 June
1959: ICJ Reports 1959, p. 209). See also Brazil's third-party response to Panel question No. 17.
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).

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 Secretariat as India had not been proscribed from preparing its own HS2007
transposition, and India neglected to verify the specifics of the transposition 's effects despite
knowing that it had the potential to change the scope of 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 United States observes that "India participated in the process for transposition of its
Schedule into HS2007 nomenclature in accordance with established WTO procedures, and … failed
to raise any specific concern or objection during that process with respect 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 statement, para. 24.
529 Korea's third-party submission, para. 14.
530 Korea's third-party submission, para. 15.
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.

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 assume that: (i) an essential basis for India's
consent to be bound by the changes to its Schedule was India's assumption that the transposition
of that Schedule to the HS2007 did not expand the scope of its tariff commitments beyond the scope
of its ITA undertakings; and (ii) such an expansion occurred.
7.171. 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 opinions 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 of 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 parties to be in equipoise. We therefore do not consider it necessary to resolve the
question of which party bears the burden of proof under Article 48.539
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 delegate] 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 statement by India suggests that India was
aware not only of product classification differences among ITA participants, but that HS
transpositions (including the HS2007 transposition process) could have substantial implications for
those classification differences.

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 96 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.

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 setting forth the correlation tables
indicating the relevant overlaps in product coverage as between the HS2002 and the HS2007, those
procedures also indicate that the scope of Members' tariff concessions could potentially change
through the transposition process.
7.176. In this respect, the General Council Decision on HS2007 Transposition Procedures instructs
that, "to the extent possible , the scope of the concessions and other commitments shall remain
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 the 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 argues, however, that "in the present
instance, the role of the WTO Secretariat is nevertheless also relevant to the extent it was an active
participant in the transposition process." 549 India refers to Professor Waibel's Legal Opinion, which
states that since "it was the Secretariat rather than India that was holding the pen … the Secretariat
bears at least some of the responsibility for the errors in this transposition process". 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 that India, referring to Professor Waibel's Legal Opinion, asserts 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 argument, regarding
paragraph 15 of the General Council Decision on HS2007 Transposition Procedures, that "the phrase 'the scope
of [the] concession has been modified … in a way that impairs the value of the concession' does not necessarily
apply to the present circumstance" because "the ordinary meaning of the term impair is to 'weaken or damage
something so that it is less effective' … [and i]n the present instance, the value of concessions given by India
has not been impaired, but in fact, has been extended without any reciprocal benefits." (Ibid. para. 16 (quoting
Cambridge Advanced Learner's Dictionary online, definition of "impair"
https://dictionary.cambridge.org/dictionary/english/impair (accessed 22 May 2022), (Exhibit IND-84)). We do
not consider it necessary to take a position on whether paragraph 15 was applicable to India. Rather, we note
that the existence of paragraph 15 (along with paragraph 4) put India on notice of the possibility that the
transposition process could result in a change to the value of the tariff concessions.
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. 53.

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 possibility 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 there 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 files 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"
(hereafter "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 one HS2002 subheading corresponds exactly to one HS2007 subheading; (ii) splitting of one
HS2002 subheading into two or more new HS2007 subheadings; (iii) merging two or more HS2002
subheadings into one new HS2007 subheading; or (iv) more complex cases, involving 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, paras. 1-2.
558 G/MA/283, para. 1.2.
559 G/MA/283, para. 1.5.

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 nomenclature, 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 transposition 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 transferred
to heading 8517 of the HS2007. It is entirely plausible (and indeed it was the intention of the
transposition exercise) that there was no change in the scope of the tariff concessions, to the extent
that the bound duty rates inscribed in Members' Schedules for products falling under these HS2007
tariff items, under heading 8517, were identical to the bound duty rates inscribed on the relevant
correlated tariff items of the HS2002 Schedule. Nevertheless, document G/MA/283 highlighted that
these changes were complex in nature and emphasized that the product scope of heading 8517 had
expanded. In our view, by doing so, document G/MA/283 clearly flags that the scope of Members'
concessions in their HS2007 Schedules, with respect to products falling under heading 8517 (and
specifically set forth at tariff items 8517.12, 8517.61, 8517.62, and 8517.70 of their HS2007
Schedules) may have undergone a change as a consequence 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.

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-heading 28.52 and sub -heading 3006.10" and India "sought clarifications and commented on
HS 2007 sub -heading 28.52 via an email to the Secretariat". 568 In India's view, the Secretariat's
Transposition Note was an "exhaustive document in relation to entries that were 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 oscillographs"; "[t]he scope of instruments and apparatus of subheadings
9030.31 and 9030.39 is no longer limited to instruments and apparatus without a recording device".
(G/MA/283, Annex I, pp. 28, 30, 37, 41, and 43).
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.

"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 complex 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 transposition 575; 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 order 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 Secretariat 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
concessions 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 difficulties when making links between
bound and applied tariffs. Moreover, this practice led to a proliferation of HS 1996 duty rates in HS
2002 tariff lines which may in fact represent somewhat theoretical allocations, covering little or no
actual trade. In fact, some of the new breakouts might be virtually empty, 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/673, para. 4. (emphasis added)

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 relevant 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 consider 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. 12.
578 Chinese Taipei's comments on India's response to Panel question No. 65(a)(i) and (ii), paras. 10-11.
(emphasis original)
579 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
580 General Council Decision on HS2007 Transposition 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. 28.
582 India's second written submission, para. 28 (quoting ICJ, Case concerning Sovereignty over Certain
Frontier Land (Belgium v. Netherlands), Judgment of 20 June 1959: ICJ Reports 1959, p. 209, (Exhibit IND-2),
at pp. 225-227).
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).

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 pertains 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 that "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
possibility 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 expanded as a consequence of
the complex changes to those tariff items. If India was on notice of the possibility that its WTO tariff
commitments in its HS2007 Schedule may have expanded from the scope of the commitments set
forth in its HS2002 Schedule, then India was also necessarily on notice that its WTO tariff
commitments may have expanded as compared to the scope of its commitments in its HS1996
Schedule, and the scope of its ITA undertakings. In our view, therefore, India was put on notice of
the possibility of an "error", as India defines its error, within the meaning of Article 48(2).
7.202. 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. Nevertheless, we consider it useful in the circumstances of this dispute
to make certain observations regarding this issue.
7.3.3.3.3.3 Whether India contributed by its own conduct to the alleged expansion in the
scope of its WTO tariff commitments from its ITA undertakings
7.203. 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)

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 comments when it received the draft transposition files from the
WTO Secretariat in 2013. India could further have raised objections or made comments during the
multilateral review session held in April 2015. Notwithstanding these three specific opportunities set
forth in the transposition procedures, India, on its own initiative, could have raised any concerns or
objections either bilaterally (to the WTO Secretariat) or multilaterally (in the Committee on Market
Access or other relevant WTO committees) at any time during the nine-year transposition process,
which started in 2006 and (in the case of India) ended in 2015. India did not do so.
7.207. Additionally, we recall that India itself was aware of Members' differences of opinion with
respect to product classification under the ITA.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, and by then agreeing to certify the changes to its WTO Schedule, India agreed to become
bound by the HS2007 Schedule, including with respect to any tariff items whose scope may have
expanded. Moreover, by agreeing to the 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 directly attributable to India's silence.
7.209. In short, we consider that India had both specific and general opportunities to highlight to
Members and to the WTO Secretariat any concerns that it may have had regarding the relationship
between the ITA and its HS2007 Schedule. India did not do so. In our 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 participants would have actually solved the problem in the first place." (Committee of
Participants on the Expansion of Trade in Information Technology Products, Minutes of the meeting held on 15
588 See para. 7.156 above.

has not asserted that its customs officials or government representatives lacked sufficient expertise
to properly review or understand the implications of India's commitments as set forth in the draft
Schedule prepared by the WTO Secretariat. India's failure to properly review its legal commitments
is not a "minor and excusable"589 contribution to the creation of the alleged error, and would indeed
seem to be a significant contributing factor in causing the error to occur, especially taking into
account that India had already approved the correlation 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, such as other WTO Members and
the WTO Secretariat, also contributed to the error. We understand however, that the WTO
Secretariat correctly followed the transposition procedures that had been multilaterally agreed
(including by India). While India has 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 on notice of the possibility that its tariff concessions may
have been expanded. Consequently, pursuant to the terms of Article 48(2), India may not rely on
Article 48(1) to invalidate its WTO Schedule, in whole or in part.
7.3.3.4 Conclusion
7.215. We have concluded that India has failed to demonstrate that an essential basis for its consent
to be bound by its HS2007 Schedule was its assumption that its WTO tariff commitments would not
be expanded beyond the scope of its ITA undertakings. We have also concluded that , during the

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 argument and dismissed it. In our view, the Secretariat followed the agreed-upon transposition
procedures, including with respect to flagging possible changes of product scope.

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 satisfy the
substantive requirements of Articles 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 WTO 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 considered 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 Rectification would be unfounded in law and would be contrary to Paragraph
3 of the 1980 [Decision]. Further, such a determination shall also establish that Chinese
Taipei's action impeded India's right to rectify its Schedule under the 1980 [Decision].599
7.220. India clarifies 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 the 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.

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 paragraph 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 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." 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 same 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 meaning
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 Chinese 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 see any basis in the DSU or in the Panel's
terms of reference in [this] dispute[] for the Panel to overturn the objections that were raised in
connection with India's draft rectification."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 question 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 written 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.

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 Canada also maintains that even assuming arguendo the Panel had capacity
to consider India's request for findings, the Panel would still need to analyse whether the products
at issue were covered by the tariff items as amended by the draft rectification, and 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 submits that there is no legal basis for the Panel to make the findings requested by
India under the DSU or any other covered agreement. Japan maintains that such findings go against
the Panel's mandate, which is limited by Articles 3.2 and 11 of the DSU.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
objections by other WTO Members, and until the draft rectification is certified in accordance with the
1980 Decision, the proposed changes would have no legal effect.623
7.227. Korea submits that the Panel's mandate is confined to its terms of reference, which do not
include recognizing 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 XXVIII 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, para. 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 response 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.

"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 draft 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 for findings.
7.231. According to India, the 1980 Decision is a covered agreement within the meaning of
Article 1.1 of the DSU. Therefore, in India's 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 Article 1.1 of the DSU. We consider it logical to first determine whether, pursuant to our terms of
reference, we have jurisdiction over India's request for findings. We will only evaluate whether the
1980 Decision is a "covered agreement" within the meaning of Article 1.1 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 (referring 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 Treatment, 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.

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 Reference of Panels". Specifically, this provision
sets forth the terms of reference that shall apply "unless the parties to the dispute agree otherwise
within 20 days from the establishment of the panel". In this dispute, the parties did not "agree
otherwise", and consequently the standard terms of reference set out in Article 7.1 apply to us.
Accordingly, our terms of reference are:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by 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 products inconsistently 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 reference,
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, 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]."642 We also note India's argument in its second
written submission that "[i]f it is found that the Draft Rectification is, in fact, of a purely formal
character, it would be found that the bound rates assigned to the products at issue are a
consequence of a formal error and are therefore severally void. Therefore, there can be no violation
of Article II:1(a) and Article II:1(b) of the GATT if the contested tariff lines of India's schedule of
concessions are void."643
7.238. We do not see how findings that the rectification request was "of a purely formal character"
and that Chinese Taipei's objection was "unfounded in law" would modify India's WTO tariff
commitments or otherwise affect our application of Articles II:1(a) and (b) of the GATT 1994. India
has clarified that it is not requesting us to certify 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 through the 1980 Decision "become a Certification provided that no objection has been
raised by a [Member] within three months". We recall that WTO Members other than Chinese Taipei
– including the European Union and Japan, complainants in the other two disputes 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 request, 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 seek … certification of
the Draft Rectification through the dispute settlement mechanism").

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 Articles II:1(a) and (b) or under its WTO
Schedule.
7.239. Indeed, from our review of India's arguments, we understand that India is in fact raising a
claim that 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 Taipei 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 inconsistent 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 assessment of the matter before
it, including an objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered agreements". 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 also
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 defence a provision other than those
which the complainant claims have been violated. However, as we have noted above, India is not raising a
defence, but rather is making a claim against Chinese Taipei.
651 India's second written submission, para. 118.
652 Emphasis added.

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 and 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 on Soft Drinks therefore do
not support India's view that we are required to address India's requests for findings.
7.245. India also refers to certain observations of the panel in Russia – Traffic in Transit. According
to India, that 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
circumvent 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' actions are in conformity with relevant provisions, we
have explained above that this obligation under Article 11 of the DSU is delimited by our terms of
reference, and our terms of reference do not extend to the findings requested by India. 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 Schedule 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.

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
commitments inscribed in India's WTO Schedule. Chinese Taipei specifically challenges the 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 applying Article II:1(b) in the context of this dispute entails comparing the treatment that
India is obligated to provide in its WTO Schedule with the tariff treatment that India accords to the
products at issue under the challenged measures.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.

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 relevant 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. Before 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 our 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 arguments, 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. 104.
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.

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 asserts 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 local or wide area network), other than

676 Chinese Taipei's first written submission, para. 4.14.
677 India's first written submission, paras. 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.

 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, conditions, or qualifications attached to that bound duty rate, we observe that
India is obligated to provide unconditional duty -free treatment to t elephones for cellular networks
or for other wireless networks falling under tariff item 8517.12 of its WTO Schedule.
7.4.2.3 India's tariff treatment
7.4.2.3.1 Main arguments of the parties
7.263. 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 tariff 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 networks 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 networks) 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, paras. 4.19-4.20 (referring to Notification No. 57/2017,
(Exhibit TPKM-11)).
686 Chinese Taipei'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 question No. 81, para. 60.
692 India's response to Panel question No. 79(a), para. 54.

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 the entries relating thereto" were "substituted" with tariff item 8517.13.00, relating
to "smartphones", and tariff item 8517.14.00, relating to "other telephones for other cellular
networks or other wireless networks". 695 India's First Schedule as of 1 January 2022 imposed a
standard duty rate of 20% on products 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 follows:
Tariff item Product description Applied duty rate
8517.13.00 -- Smartphones 20%
8517.14.00 -- Other telephones for cellular networks 20%
8517.14.00 -- Other telephones for other wireless networks 0%

693 Chinese Taipei's first written submission, para. 4.15-4.24; 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 No. 82, para. 83.
698 Chinese Taipei's response to Panel question No. 82, paras. 82 and 84; India's response to Panel
question No. 81, para. 60.

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 these 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 reflected 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 considers 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 under 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/smartphone).
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 84, (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.

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 for 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 2012) 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 Panel 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).

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 functions 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 smartphones
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 form a whole and other machines designed for the purpose
of performing two or more complementary or alternative functions are to be classified
as if consisting only of that component or as being that machine which performs the
principal function.721
7.280. Therefore, for composite machines falling under Chapter 85, including subheading 8517.12,
the general rule is to classify such products "as being that machine which performs the principal
function". We 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 for 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 applications 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 to Panel question No. 80(a), paras. 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, depending 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)

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 description
8517 Telephone sets, including smartphones and other telephones for cellular networks
or for other wireless networks; other apparatus for the transmission or reception of
voice, images or other data, including apparatus for communication in a wired or
wireless network (such as a local or wide area network), other than transmission
or reception apparatus of heading 84.43, 85.25, 85.27 or 85.28.
 - Telephone sets, including smartphones and other telephones for cellular
networks or for other wireless networks:
8517.11 -- Line telephone sets with cordless handsets
8517.13 -- Smartphones
8517.14 -- 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 question
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 establishment read "including telephones for other cellular networks". India's Finance Act 2021
provides that the words "including telephones" in the description attached to heading 8517 be "substituted"
with the words "including smartphones and other telephones". (Finance Act 2021, (Exhibit IND-74), p. 176).
729 Finance Act 2021, No. 13 of 2021, (Exhibit IND-74), p. 44. (emphasis added)

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 not whether tablets are classified as smartphones in India's WTO Schedule (indeed, the term
"smartphone" does not appear in that Schedule), but rather whether smartphones are classified as
"telephones for cellular networks" within the meaning of India's WTO Schedule.
7.286. 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 that, 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 Schedule. 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 Panel's
terms of reference because: (i) the panel's terms of reference must be broad enough to include
subsequent amendments 734; (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 statement 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 request, 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. 21 (referring to
Appellate Body Reports, 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 meeting of the Panel, para. 21 (referring to
Appellate Body Report, US – Certain EC Products, paras. 81-82).

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 cellular 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 " substituted" 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 attached 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 above, 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 challenged 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 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 . 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.

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 such products is less favourable than that provided in its WTO Schedule, and
India is therefore acting inconsistently with Article II:1(a) of the GATT 1994.
7.4.3 Tariff item 8517.61 of India's WTO Schedule
7.4.3.1 India's WTO tariff commitments
7.4.3.1.1 Main arguments of the parties
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
Schedule 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 written 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.

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 that 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 arguments 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 systems from customs duties, subject to the condition that they are imported by a person
licenced by the Department of Telecommunications of India for the purpose of providing Public Mobile
Trunked Service.759 Chinese Taipei maintains that this condition is not "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. 425 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. 50/2017, (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.

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
exempted from customs duties base station controllers , base transreceiver stations , and antenna
systems, if imported by a person licenced by the Department of Telecommunications for the purpose
of providing Public Mobile Radio Trunked Service .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 February 2022, the three products at issue are not
eligible for exemption, even assuming that such products are classified under tariff item 8517.61 of
the First Schedule.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 item 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 1994, 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. 50/2017, (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.

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
8517.62 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 machines for the reception, conversion and transmission or regeneration of voice,
images or other data, including switching and routing apparatus, which in its view were not covered
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 Schedule 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 that India committed to a bound duty rate of 0%
for products falling under tariff item 8517.62, 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 8517.62 of its WTO Schedule.

770 Chinese Taipei's first written submission, paras. 4.44.
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.

7.4.4.2 India's tariff treatment
7.4.4.2.1 Main arguments 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 also 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 under 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 Ethernet 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 first 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.

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 line system (HSDL) 0%
8517.62.50 --- Digital loop carrier system (DLC) 0%
8517.62.60 --- Synchronous digital hierarchy system (SDH) 0%
8517.62.70 --- Multiplexers, statistical multiplexers 0%
8517.62.90 --- Other 20%

7.321. India's First Schedule thus imposes a standard duty rate of 20% on products falling under
tariff item 8517.62.90, 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 a ccords 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 under 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
799 Notification No. 57/2017 as amended by Notification No. 75/2018, (Exhibit IND-41).

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 Description
20 8517.62.90
or
8517.69.90
(a) Wrist wearable devices (commonly known as smart watches)
(b) Optical transport equipment
(c) Combination of one or more of Packet Optical Transport Product or
Switch (POTP or POTS)
(d) Optical Transport Network (OTN) products
(e) IP Radios
(f) Soft switches and Voice over Internet Protocol (VoIP) equipment,
namely, VoIP phones, media gateways, gateway controllers and
session border controllers
(g) Carrier Ethernet Switch, Packet Transport Node (PTN) products,
Multiprotocol Label Switching-Transport Profile (MPLS-TP) products
(h) Multiple Input/Multiple Output (MIMO) and Long Term Evolution
(LTE) products

7.327. 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 8517.62.90 801, 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 present
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.

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 products 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 demonstrate that there has been a violation of Articles 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 to 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
8517.62.90 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. 43.
806 Chinese Taipei's comments on India's response to Panel question No. 84(a), para. 42.
807 India's response to Panel question No. 76, para. 48.
808 India's response to Panel question 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.

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, it is uncontested that India's customs
notifications modify the tariff treatment accorded to certain products classified under tariff item
8517.62.90 (namely routers) by exempting them from customs duties in whole , or by exempting
certain other products from customs duties 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 tariff item 8517.62 of India's WTO Schedule
are subject to a duty rate of 10% or 20%, and are therefore taxed in excess of the bound duty rate.
In light of the foregoing, 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 Articles 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 is 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 refer 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 products, 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.

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 referred 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 amendments
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
imposition 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 products 826 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 issues. First, we address the impact, on

818 Chinese Taipei's first written submission, 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, para. 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 phones", "[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.

our assessment, of India's amendment of the First Schedule during these proceedings. Second, we
address the complainant's burden of proof under Articles II:1(a) and (b) of the GATT 1994 with
respect to the domestic tariff classification of the 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 tariff 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, we 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 issue, 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 claimant 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, paras. 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. 210. 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 distinguish, on the one hand, the
principle that the complainant must establish a prima facie case of inconsistency with a provision of a covered
agreement from, on the other hand, the principle that the party that asserts a fact is responsible for providing
proof thereof. In fact, the two principles are distinct." (Appellate Body Report, Japan – Apples, para. 157).
(footnotes omitted)
837 Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:I, 323, at p. 335. The
Appellate Body also observed that "the burden of proof rests upon the party, whether complaining or
defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence
sufficient to raise a presumption that what is claimed 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.

sufficient evidence to raise a presumption that such assertions are correct and, if so, whether India
has adduced sufficient evidence to rebut that presumption. As a final step, we will compare our
factual findings concerning India's tariff treatment to India's WTO tariff commitments. In that
context, we will assess, inter alia, whether the challenged tariff treatment concerns products falling
within the scope of India's WTO tariff commitments concerning tariff items 8517.70 ex01, ex02, and
ex03 of its WTO Schedule.
7.4.5.2 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
Schedule 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 that 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 wireless network (such as a local or wide
area network), other than transmission or reception apparatus of heading 84 .43, 85.25, 85.27 or
85.28" (hereafter we refer to these products as "parts of telephone sets and other certain apparatus
for transmission or 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 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

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, paras. 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.).

 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 parties
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 treatment 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 pursuant to a customs notification.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 submits 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 Taipei 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 Taipei'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 stations; optical transport equipment; combinations 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.

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 Taipei 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 (PCBAs)] for Cellular Mobile 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. 4.75.
857 Chinese Taipei's response to Panel question No. 87, para. 103 (referring to Notification No. 57/2017,
(Exhibit TPKM-11), as amended by Notification 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. 28.
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), entries 5, 5A, 5B, and 22, as amended by Notification No. 57/2021,
(Exhibit TPKM-64), Serial No. 6). Chinese Taipei elaborates that "[t]hese modifications do not alter the scope of
customs duty impositions and exemptions under tariff 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, provides 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, para. 101).
862 India identifies these products as printed circuit board assemblies of the following goods: base
stations; optical transport equipment; combination of one or more of Packet Optical Transport Product or
Switch; optical transport network Products; IP radios; soft switches and Voice over Internet Protocol
equipment, namely, Voice over Internet Protocol phones, media gateways, gateway controllers and session
border controllers; carrier ethernet switch, Packet Transport Node products, and Multiprotocol Label
Switching-Transport Profile products; Multiple Input/Multiple Output and Long Term Evolution products.
(India's first written submission, para. 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.

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 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 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 products 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.

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 procedures 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 goods 874 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: base stations; optical transport equipment; combination of one or more of
Packet Optical Transport Product or Switch; Optical Transport Network products; IP radios; soft switches and
Voice over Internet Protocol equipment, namely, Voice over Internet Protocol phones, media gateways,
gateway controllers and session border controllers; carrier ethernet switches, Packet Transport Node products,
and Multiprotocol Label Switching-Transport Profile products; and Multiple Input/Multiple Output and Long
Term Evolution products. (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 Nos. 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 Transport Product or
Switch; Optical Transport Network products; IP radios; soft switches and Voice over Internet Protocol
equipment, namely, Voice over Internet Protocol phones, media gateways, gateway controllers and session
border controllers; carrier ethernet switches, Packet Transport Node products, and Multiprotocol Label
Switching-Transport Profile products; and Multiple Input/Multiple Output and Long Term Evolution products.
(Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 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.

7.363. Regarding the condition that the importer follow the procedures set out in the Customs Rules
2017, we note that India argues that this condition "merely requires the intimation of intent to avail
concessional rates of duties and registration of bills of entry" and that "[t]hese processes have been
automated, where all details can be uploaded on a common portal." 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 authorities.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 requirement that the importer follow
the procedure set out in the Customs Rules 2017 is a condition that an importer must meet in order
to be eligible for exemption from customs duties. There is no indication that a failure to comply with
such conditions would prevent the importer from importing the products. We therefore do not see
anything on the record to suggest that these are general conditions for importation of goods.
7.365. As to the requirement that the importer undertake not to use the products in the
manufacture of certain specified goods, this condition makes clear on its face that failure to comply
will lead to the application of the "duty leviable … but for the exemption". 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 establishment this tariff item covered "other" parts of telephone sets or other certain
apparatus for transmission or reception of voice, images, or data, (namely "other" than populated,
loaded or stuffed printed circuit boards).886 The standard duty rate applicable 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 Taipei'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. 68/2017, (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.

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 followed the procedures 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
Notification 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 followed the procedures set out in the Customs Rules 2017891;

888 Pursuant to Serial No. 468 of Notification No. 50/2017, the following products falling under Chapter
84 or 85 of the First Schedule (i.e. including products falling under tariff item 8517.70.90 of the First Schedule)
were unconditionally eligible for duty-free treatment: (i) micro ATMs as per standards version 1.5.1; (ii)
fingerprint readers/scanners other than fingerprint readers/scanners for use in manufacturing of cellular mobile
phones; (iii) iris scanners; (iv) miniaturized POS card readers for mPOS (other than mobile phones or tablet
computers). (Notification No. 50/2017 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 readers/scanners other than
fingerprint readers/scanners for use in manufacturing of cellular mobile phones; (iii) iris scanners; and (iv)
miniaturized POS card readers for mPOS (other than mobile phones or tablet computers); (2) pursuant to
Serial Nos. 506, 507, and 508: (i) parts, components and accessories for use in manufacture of broadband
modem falling under tariff item 8517.62.30 of the First Schedule, other than populated printed circuit boards,
chargers and power adapters; (ii) parts, components and accessories for use in the manufacture of routers
falling under tariff item 8517.62.90 of the First Schedule, other than populated printed circuit boards, chargers,
and power adapters; (iii) parts, components and accessories for use in the manufacture of set-top boxes for
gaining access to internet falling under tariff item 8517.69.60 of the First Schedule, other than populated
printed circuit boards, chargers, and power adapters; and (iv) sub-parts for use in the manufacture of items
covered in (i) through (iii) above; and (3) pursuant to Serial No. 513: (i) parts or components for use in the
manufacture of populated printed circuit boards of; (a) broadband modems falling under tariff item 8517.62.30
of the First Schedule; (b) routers falling under tariff item 8517.62.90 of the First Schedule; and (c) set-top
boxes for gaining access to internet falling under tariff item 8517.69.60 of the First Schedule; and (ii) sub-
parts for use in the manufacture of the parts or components in item (i) above. (Notification No. 50/2017 as
amended by Notification Nos. 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 followed the procedures set out in
the Customs Rules 2017. We further note that India contends that such products were not "always classified
under tariff item 8517.70.90 of India's First Schedule" and that they must be examined individually to
ascertain their correct classification. (India's response 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 Notification No. 57/2017, the following products falling under tariff item
8517.70.90, without being subject to any conditions, were eligible for duty-free treatment: (i) all goods other
than parts of cellular mobile phones; and (ii) inputs or sub-parts for use in manufacture of parts mentioned at
(i) above. (Notification No. 57/2017, (Exhibit IND-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 under Notification No. 57/2017: (1) pursuant to Serial Nos. 5C, 5D, and 5E: (i) inputs or sub-parts
for use in the manufacture of vibrator motors/ringers for use in the manufacture of cellular mobile phones,
display assemblies for use in the manufacture of cellular mobile phones, or touch panels/cover glass
assemblies for use in manufacture of cellular mobile phones; and (ii) inputs or sub-parts for use in the
manufacture of parts mentioned at (i) above; (2) pursuant to Serial Nos. 6A, 6B, and 6C: i. (a) inputs or
parts for use in manufacture of PCBA of cellular mobile phones and (b) inputs or sub-parts for use in
manufacture of PCBAs of cellular mobile phones, provided that both of these categories exclude the following
goods; (i) connectors; (ii) microphones; (iii) receivers; (iv) speakers; and (v) SIM sockets; ii. (a) inputs or
parts for use in manufacture of camera modules of cellular mobile phones and (b) inputs or sub-parts for use in
manufacture of camera modules of cellular mobile phones; and iii. (a) inputs or parts for use in manufacture of
connectors of cellular mobile phones and (b) inputs or sub-parts for use in manufacture of connectors of
cellular mobile phones; (3) pursuant to Serial No. 7: (i) wired headsets; (ii) battery covers; (iii) front covers;
(iv) front covers (with zinc casting); (v) middle covers; (vi) GSM antennae/antennae of any technology;

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
procedures 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 70 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 Notification 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 gaskets including sealing gaskets/cases from rubbers like SBR, EPDM, CR, CS, silicone
and all other individual rubbers or combination/combination of rubbers; (xiii) PU cases/sealing gasket – other
articles of 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 sockets/other mechanical
items (Metal); (xvi) SIM sockets/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) microphones and receivers; (xxviii) key pads; (xxix) USB cables; and (xxx) fingerprint readers/scanner;
(4) pursuant to Serial No. 7A: inputs and raw material, other than PCBAs (falling under the tariff item
8504.90.90 of the First Schedule) and moulded plastics (falling under the tariff items 3926.90.99 or
8504.90.90 of the First Schedule) for use in the manufacture of chargers or adapters for cellular mobile
phones; and (5) pursuant to Serial No. 8: inputs or raw material for use in manufacture of the following
goods: (i) base stations; (ii) all goods falling under tariff item 8517.62.90 of the First Schedule; and (iii) all
goods falling under tariff item 8517.69.90 of the First Schedule. (Notification No. 57/2017 as amended 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 modules for use in manufacture of cellular mobile phones; and (ii)
connectors for use in manufacture of cellular mobile phones; and (2) pursuant to Serial Nos. 5C, 5D, and 5E:
(i) vibrator motors/ringers for use in manufacture of cellular mobile phones; (ii) display assemblies for use in
manufacture of cellular mobile phones; and (iii) touch panels/cover glass assemblies for use in manufacture of
cellular mobile phones. (Notification No. 57/2017 as amended by Notification Nos. 37/2018 and 02/2020,
(Exhibit IND-41)).
893 See paras. 7.364-7.365 above.
894 Finance Act 2021, (Exhibit IND-74), p. 176.

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. 50/2017 899, 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 duty-free treatment if they satisfy certain conditions – specifically, in order for the
product to receive such duty -free treatment: (i) the importer must follow the
procedures set out in the Customs Rules 2017; and (ii) at the time of importation, the
importer must furnish an undertaking to the Deputy Commissioner of Customs or the
Assistant Commissioner of the Customs , as the case may be, to the effect that
imported goods would not be used in the manufacture of certain specified goods 901
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), entries 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, 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. 132/2006, 58/2017, 38/2018, and
76/2018, (Exhibit IND-38)).
902 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) and No. 57/2021, (Exhibit TPKM-64). We note that these conditions
are attached to the tariff treatment and are not general conditions for importation. (See para. 7.361 above).
903 Specifically PCBAs for: base stations; optical transport equipment; combination of one or more of
Packet Optical Transport Product or Switch; Optical Transport Network products; IP radios; soft switches and
Voice over Internet Protocol equipment, namely, Voice over Internet Protocol phones, media gateways,
gateway controllers and session border controllers; carrier ethernet switches, Packet Transport Node products,
and Multiprotocol Label Switching-Transport Profile products; and Multiple Input/Multiple Output and Long

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. 57/2017, goods other than parts of cellular
mobile phones, as well as the inputs or sub-parts for use in the manufacture of goods
other than parts of cellular mobile phones, are eligible for duty-free 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 to 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 Schedule 911; (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
Schedule, 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 Notification 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 Nos. 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.

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.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 receiving 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 lines 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 with 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
phones' 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 Taipei'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 response 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.

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 treatment 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 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 . 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 8517.71.00 929,
8517.79.10930, and 8517.79.90 931 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 WTO 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 Schedule. Based on the arguments and evidence adduced
by the parties, we have made factual findings regarding the tariff treatment accorded by India to
such products. In our view, this tariff treatment concerns products that properly fall within the scope
of 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 reflectors 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).
934 India's response to Panel question No. 76, para. 48.
935 Specifically, Chinese 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

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 subject 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 falling 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 conditions 940 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 amendments, continue to apply to the products at issue.941

936 We note that certain of the tariff treatment described in section 7.4.5.3 above, in addition to being
available for some specified products that fall within the scope of Chinese Taipei'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 8517.70 ex01, ex02, and ex03 of India's
WTO Schedule. In our view, the tariff treatment, in India's domestic 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 those tariff items fall within the scope of tariff items 8517.70 ex01,
ex02, and ex03 of India's WTO Schedule. It is not necessary for us (or for 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 item 8517.12. In this respect, we
recall that at the time of the Panel's establishment certain products falling under tariff item 8517.12 of India's
First Schedule (namely, telephones for other wireless networks) were exempted from customs duties 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

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 treatment, were subject to the 20% duty rate set
forth in the First Schedule. As for products falling under tariff item 8517.70.90 of India's First
Schedule, certain such products were eligible for unconditional duty -free treatment.944 Subject to
certain conditions, 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, were 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 Schedule, those exemptions would continue to apply to a specific subset of
products falling under those tariff items. All other products would be subject to the standard duty
rates of 20% or 15% set forth in the First Schedule. Such applied duty rate is in excess of the bound
duty rate of 0%.
7.386. 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 the extent that the relevant customs notifications are amended to refer to products
falling under tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of the First Schedule : (i) the
unconditional tariff treatment accorded to certain specified products continues to be in excess of the
bound duty rate; and (ii) the conditional tariff treatment accorded to certain specified products

available under Notification No. 57/2017 continued 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 furnish an undertaking to the Deputy Commissioner of
Customs or the Assistant Commissioner of the Customs, as the case may be, to the effect that imported goods
would not be used in the manufacture of certain specified goods and in the event of failure 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; or (iii) that the imported product be used in the manufacture of static converters for automatic
data processing machines and units thereof of tariff items 8443.31.00, 8443.32.00, 8471, 8517.62,
8528.42.00, 8528.49.00, 8528.52.00 or 8528.62.00 of India's First Schedule (as it existed at the time of the
Panel's establishment). (See paras. 7.359-7.367 above).

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 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 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 Article 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 asserts 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/Let/181.

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 provide 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 argued 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 elaborated that, "[e]ven if India did in fact
accord duty-free treatment to 'Line telephone handsets' by classifying them under tariff line 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 considered 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)). (underlining added)
954 Chinese Taipei's first written submission, paras. 4.86 and 4.88.
955 India's first written submission, para. 221. (underlining added)
956 India's first written submission, para. 221. Following the first substantive meeting, India elaborated
that it "has not imposed any duty on 'Line Telephone Handsets'", that it "never intended on imposing a duty on
'Line Telephone Handsets'", and that "the amendments introduced by India should not be construed as an
imposition of duty on 'Line Telephone Handsets.'" (India's response to Panel question No. 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.

was incorrect because: (i) line telephone handsets that are not used for the manufacture of line
telephone 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 Panel, India clarified that, pursuant to Notification
No. 15/2022, issued on 1 February 2022, "line telephone handsets are subject to duty free treatment
under sub-heading 8518.30 as well as sub -heading 8517.11".965 India also argued that, since the
measure has been withdrawn, the Panel may not make any recommendations 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 assessment
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 Notification brought India into consistency with its obligations. India, for
its part, argues that the Panel may not make any recommendations regarding the tariff treatment
accorded by India to line telephone handsets.
7.401. 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 inconsistency 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 whether India was, at the time of the
Panel's establishment, acting inconsistently with its WTO obligations, we consider it useful for the
purposes of resolving the parties' dispute to address this issue. 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 (referring to Appellate Body Report, US – Certain EC Products, para. 81;
and Panel Reports, US – Large Civil Aircraft (2nd Complaint), para 8.6 and fn 4266 thereto; EC – Approval and
967 Chinese Taipei's response to Panel question No. 93, paras. 114-116.
968 Chinese Taipei's response to Panel question No. 93, para. 115 (referring to Appellate Body Reports,
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. 93, para. 116 (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.

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 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 8443, 8525, 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 microphone and one or more loudspeakers", which are a sub-
category of products falling under heading 8518 (which, again, is identical in both Schedules). We
further note that India's WTO Schedule specifically indicates that "line telephone handsets", classified
under tariff item 8518.30 ex01, are a subcategory of products falling under the broader category of

971 Chinese Taipei's first written submission, paras. 4.86-4.87.
972 India's first written submission, paras. 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. 221.
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.

"[h]eadphones and earphones, whether or not combined with a microphone, and sets consisting of
a microphone and one or more loudspeakers" covered by tariff item 8518.30.977 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 item 8517.11 of the HS2017 defines "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
presented, 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 Specifically regarding tariff item 8518.30, the Explanatory Note
elaborates that this heading covers, inter alia , "line telephone handsets which are combined
microphone/speaker sets for telephony and which are generally used by telephone operators". 982
The HS Explanatory Notes therefore indicate that "line telephone handsets" are distinct from "line
telephone sets", in that the former are a component product that may (or may not) be included in
the latter. As to where they should be 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 acknowledges 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 8518.30.00 covers only
"parts" of line telephone handsets. We note that entry 9 of Notification No. 25/2005 exempts certain
products from customs duties. When Notification No. 25/2005 was initially published in 2005, the
exemption was available for "[l]ine 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 line 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 telephone 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 legal framework is dualist, such that "Parliament must legislate a specific enabling law to give
effect to India's commitments under a treaty …[and] there is no domestic legislation which mirrors the HS
Convention and the HS Explanatory Notes". (Ibid. para. 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 Nos. 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).

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 products falling under tariff item 8518.30.00 of the First Schedule. As published
in 2005, Notification No. 25/2005 provided an exemption from that duty rate for line telephone
handsets falling under that tariff item. That exemption, however, was amended 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 Serial Nos. 1 to 38 of Notification No. 24/2005, provided that the importer follows the
procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of
Excisable Goods) Rules, 1996 (Customs Rules 1996 ).989 Chinese Taipei does not contest that line
telephone handsets can be used in the production of certain of the products identified in Serial Nos.
1 to 38 of Notification No. 24/2005. 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 such 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 such procedural
requirements is a general condition for importation – to the contrary, Notification No. 24/2005
explicitly ties both conditions to eligibility for exemption from customs duties. Indeed, we consider
that Notification No. 25/2005 clearly indicates that these conditions are attached to the exemption
from customs duties, not entry into India.

987 Notification No. 25/2005 as amended by Notification Nos. 26/2007 and 23/2019, (Exhibit 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; responses to Panel question No. 30(c)
and No. 90.

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 followed
the procedures set out in the Customs Rules 1996. Those conditions are not general conditions for
importation, but rather conditions to receive duty -free treatment. During the course of these
proceedings, however, 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 considers that line telephone handsets falling within the scope of tariff item
8518.30.00 of India's First Schedule are covered by India's tariff commitments inscribed under tariff
item 8518.30 ex01 of India's WTO Schedule.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 Notification No. 24/2005, subject to two conditions: (i) the line telephone
handsets had to be used in the production of certain specified products; and (ii) the importer was
required to comply with certain 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 subject to conditions, neither of those conditions was inscribed in India's WTO
Schedule. If an imported line telephone handset failed to satisfy one of those conditions, it would
have been subject to a 15% duty rate. We consider, therefore, that at the 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 submission, para. 226; response to Panel question No. 28, para. 86.
994 See para. 7.394 above.

7.4.6.4 Conclusion
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 consistent with Article II:1(a) of the GATT 1994.
8 CONCLUSIONS AND RECOMMENDATIONS
8.1. For the reasons set forth in this Report, we conclude as follows:
a. With respect to India's assertions concerning its WTO tariff commitments, we find that:
i. The ITA is not a 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 does
not otherwise limit the scope of India's tariff commitments as set forth in its WTO
Schedule;
ii. The circumstances of this case do not satisfy the substantive 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 constitute a case of
nullification or impairment. We conclude that, to the extent that the measures at issue are
inconsistent with Articles II:1(a) and (b) of the GATT 1994, they have nullified or impaired benefits
accruing to Chinese Taipei under that agreement.

8.3. Pursuant to Article 19.1 of the DSU, to the extent that India's tariff treatment of certain
products classified under tariff items 8517.12, 8517.61, 8517.62 and 8517.70 ex01, ex02, and ex03
of India's WTO Schedule continues to be inconsistent with Articles II:1(a) and (b) of the GATT 1994,
we recommend that India bring such measures into conformity with its obligations under the GATT
1994.