INDIA – ADDITIONAL AND EXTRA-ADDITIONAL DUTIES ON IMPORTS FROM THE UNITED STATES
Document: Notification of an Appeal by the United States under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review
Date: 5 August 2008
Document codes: WT/DS360/8
Complainant: U.S.
Respondent: India
Third parties: Australia, Chile, EU, Japan, Vietnam
Dispute stage: Appellate Body
Agreements cited: Art. II:1, III:2, III:4  GATT 1994

INDIA – ADDITIONAL AND EXTRA-ADDITIONAL DUTIES
ON IMPORTS FROM THE UNITED STATES

Notification of an Appeal by the United States

under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appellate Review

 The following notification, dated 1 August 2008, from the Delegation of the United States, is
being circulated to Members.

Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (“DSU”) and Rule 20 of the Working Procedures for Appellate Review, the
United States hereby notifies its decision to app eal to the Appellate Body certain issues of law
covered in the report of the panel in India – Additional and Extra-A dditional Duties on Imports from
the United States () (“Panel Report”) and certain legal interpretations developed by the
panel in this dispute.
1. The United States seeks review by the Appellate Body of the panel's legal conclusions that the
United States failed to establish that:
(a) India's additional customs duty (AD) on imports of alcoholic beverages from the
United States is inconsistent with Article II:1(b) of the General Agreement on Tariffs
and Trade 1994 (GATT 1994);
1

(b) the AD imposed on imports of alcoholic beverages from the United States is
inconsistent with Article II:1(a) of the GATT 1994;2

(c) India's extra-additional customs duty (EAD) 3 on imports from the United States,
including alcoholic beverages, is inconsistent with Article II:1(b) of the GATT 1994;4

(d) the EAD imposed on imports from the Unite d States, including alcoholic beverages,
is inconsistent with Article II:1(a) of the GATT 1994;
5 and

(e) the AD on alcoholic beverages and the EAD fall outside the scope of Article II:2(a)
of the GATT 1994.6

1See, e.g., Panel Report, paras. 7.297-7.299.
3The panel refers to this measure as the “SUAD.” See, e.g., Panel Report, para. 7.18.
4See, e.g., Panel Report, paras. 7.392-7.394.
6See, e.g., Panel Report, paras. 7.260-7.295, 7.346-7.390.

 These findings are in error and are based inter alia on erroneous findings on issues of law and
related legal interpretations as described below and the panel's failure to undertake an objective
assessment described in paragraph 3.

2. The errors in the panel report include:
(a) the erroneous interpretati on and application of Articles II:1(b), II:2, and III:2 of the
GATT 1994;
7 and the following erroneous findings on issues of law and related legal
interpretations:

(b) Article II:1(b) applies only to duties or charges that "inherently discriminate against
imports";8

(c) the duties and charges described in Article II:2 fall outside the scope of
Article II:1(b);9

(d) establishing a prima facie case that the AD and the EAD fall within the scope of
Article II:1(b) requires the United States to demonstrate that the measure "inherently
discriminates against imports," including by demonstrating that the measures fall
outside the scope of Article II:2;
10

(e) a charge equivalent to an internal tax fall s within the scope of Article II:2(a) regardless
of whether the internal tax to which it is equivalent is imposed consistently with
Article III:2 of the GATT 1994;11

(f) a border charge equivalent to an in ternal tax is subject to Article III:2;12

(g) establishing that a duty or charge falls outside the scope of Article II:2(a) requires the
complaining party to raise and establish an "independent" claim under Article III:2;13

(h) "equivalent" in Article II:2(a) means having or serving the same function (in the
sense of purpose or objective) and does not relate to the amount, effect or function (in
the sense of operation) of the charge;
14 and

(i) a responding party is not required to support its assertions that a measure falls within
the scope of Article II:2(a).15

7See, e.g., Panel Report, paras. 7.125-7.172, 7.179-7.215, 7.240-7.299, 7.331-7.394.
8See, e.g., Panel Report, paras. 7.141, 7.156; see also, e.g., 7.128-7.164.
9See, e.g., Panel Report, paras. 7.133-7.141, 7.156-7.160.
10See, e.g., Panel Report, paras. 7.156-7.164, 7.258-7.261, 7.297-7.299, 7.392-7.394.
11See, e.g., Panel Report, paras. 7.199-7.215.
12See, e.g., Panel Report, paras. 7.196, 7.206-7.215.
14See, e.g., Panel Report, paras. 7.179-7.198, 7.273-7.274, 7.369.
15See, e.g., Panel Report, paras. 7.159-7.164, 7.293-7.297, 7.388-7.390.

3. The United States requests the Appellate Body to find that the panel failed to 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 re levant covered agreements " as required by Article
11 of the DSU with respect to India's assertion that the AD on alcoholic beverages and the EAD
constitute "charges equivalent to an internal tax impo sed consistently with [Article III:2] in respect of
the like domestic product" and fall within the scope of Article II:2(a) of the GATT 1994. The panel
failed to undertake an objective assessment, for example, by:
(a) not requiring India to support its assertions (in particular that the AD on alcoholic
beverages and the EAD are "equivalent" to internal taxes on like domestic products),
including by finding that India was not required to specify the particular internal taxes
to which it asserted the AD and the EAD are e quivalent or to substantiate that the
Indian states imposed such taxes;16

(b) making inferences that are not supported by evidence before the panel about the
existence and operation of Indian state-le vel excise taxes and the AD on alcoholic
beverages, for example by inferring, based on the AD being collected at the time the
panel was established and on general references to state-level excise taxes under
provisions of Indian law, that state-level excise taxes exist and that the AD is
"equivalent" to them,
17 and relying on evidence pertaining to the AD on products
other than alcoholic beverages to make findings about the AD on alcoholic beverages
that are not supported by evidence before the panel;18

(c) making inferences that are not supported by evidence before the panel about the
existence and operation of Indian state-le vel value-added taxes (VATs), sales taxes
and other local taxes and the EAD, for example by inferring, based on the EAD being
collected at the time the panel was established and on general references to state-
level VATs, sales taxes and other local ta xes under provisions of Indian law, that
such taxes exist and that the EAD is "equivalent" to them,
19 and relying on evidence
pertaining to the AD to make findings about the EAD that are not supported by
evidence before the panel;
20 and

(d) disregarding evidence before the panel that Indian state-level VATs, the Central Sales
Tax, and other local taxes apply to imported products.21

4. The United States seeks review by the Appellate Body of the panel's legal conclusion that the
United States is not challenging Section 12 of the Customs Act and Section 3(1) of the Customs Tariff
Act with respect to the AD on alcoholic beverages and its related finding that the United States is only
challenging the AD as specified in Customs Notification (CN) 32/2003.
5. The United States seeks review by the Appellate Body of the panel’s legal conclusion that the
United States is not challenging Section 12 of the Customs Act and Section 3(5) of the Customs Tariff
Act with respect to the EAD and its related finding that the United States is only challenging the EAD
as specified in Customs Notification (CN) 19/2006.

16See, e.g., Panel Report, paras. 7.160-7.164, 7.270.
17See, e.g., Panel Report, paras. 7.247, 7.262-7.295.
18See, e.g., Panel Report, paras. 7.247- 7.248, 7.263, 7.279-7.281.
19See, e.g., Panel Report, paras. 7.336, 7.346-7.394.

6. In light of the errors in the panel's lega l findings, related lega l interpretations, and
conclusions, as well as its failure to make an objective assessment of the matters elaborated above, the
United States requests that the Appellate Body re verse the panel and find that the AD on alcoholic
beverages and the EAD are each inconsistent with Article II:1(a) and (b) and are not justified under
Article II:2(a).