INDIA – TARIFF TREATMENT ON CERTAIN GOODS REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 17 April 2023
Document codes: WT/DS584/R
Complainant: Japan
Respondent: India
Third parties: Brazil, Canada, China, Taiwan, EU, Indonesia, 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
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
JAPAN
Contents Page
Annex B-1 First integrated executive summary of the arguments of Japan 18
Annex B-2 Second integrated executive summary of the arguments of Japan 28

INDIA
Contents Page
Annex B-3 First integrated executive summary of the arguments of India 39
Annex B-4 Second integrated executive summary of the arguments of India 51
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 61
Annex C-2 Integrated executive summary of the arguments of Canada 63
Annex C-3 Integrated executive summary of the arguments of the European Union 66
Annex C-4 Integrated executive summary of the arguments of the Republic of Korea 68
Annex C-5 Integrated executive summary of the arguments of Norway 71
Annex C-6 Integrated executive summary of the arguments of Singapore 72
Annex C-7 Integrated executive summary of the arguments of Chinese Taipei 74
Annex C-8 Integrated executive summary of the arguments of Türkiye 77
Annex C-9 Integrated executive summary of the arguments of Ukraine 81
Annex C-10 Integrated executive summary of the arguments of the United Kingdom 83
Annex C-11 Integrated executive summary of the arguments of the United States 85
ANNEX D
COMMUNICATIONS BY THE PANEL CONCERNING THE SUBSTANTIVE MEETINGS
Contents Page
Annex D-1 Panel's communication to the parties (31 March 2021) 91
Annex D-2 Panel's communication to the parties (21 April 2021) 92
Annex D-3 Panel's communication to the parties (31 August 2021) 95
Annex D-4 Panel's communication to the parties (20 September 2021) 98
ANNEX E
OTHER DECISIONS BY THE PANEL
Contents Page
Annex E-1 Panel's decision on requests for enhanced third-party rights 101
Annex E-2 Panel's decision on India's preliminary objection and preliminary ruling request 102
Annex E-3 Panel's decision on Japan's evidentiary objection 111

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Import
Measures
Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted 26
January 2015, DSR 2015:II, p. 579
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items, WT/DS56/AB/R and Corr.1, adopted 22 April
1998, DSR 1998:III, p. 1003
Argentina – Textiles and
Apparel
Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles,
Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, as modified by
Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p. 1033
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted 23 October
2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 12
January 2009, DSR 2009:I, p. 3
China – Publications and
Audiovisual Products
Appellate Body Report, China – Measures Affecting Trading Rights and
Distribution Services for Certain Publications and Audiovisual Entertainment
Products, WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, p. 3
Colombia – Textiles Appellate Body Report, Colombia – Measures Relating to the Importation of
Textiles, Apparel and Footwear, WT/DS461/AB/R and Add.1, adopted 22 June
2016, DSR 2016:III, p. 1131
Dominican Republic –
Import and Sale of
Cigarettes
Panel Report, Dominican Republic – Measures Affecting the Importation and
Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425
Dominican Republic –
Safeguard Measures
Panel Report, Dominican Republic – Safeguard Measures on Imports of
Polypropylene Bags and Tubular Fabric, WT/DS415/R, WT/DS416/R,
WT/DS417/R, WT/DS418/R, and Add.1, adopted 22 February 2012, DSR
2012:XIII, p. 6775
EC – Approval and
Marketing of Biotech
Products
Panel Reports, European Communities – Measures Affecting the Approval 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 – 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
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

Short Title Full Case Title and Citation
EC – Hormones (US)
(Article 22.6 – EC)
Decision by the Arbitrator, European Communities – Measures Concerning Meat
and Meat Products (Hormones), Original Complaint by the United States –
Recourse to Arbitration by the European Communities under Article 22.6 of the
DSU, WT/DS26/ARB, 12 July 1999, DSR 1999:III, p. 1105
EC – IT Products Panel Reports, European Communities and its member States – Tariff
Treatment of Certain Information Technology Products, WT/DS375/R /
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p.
933
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998,
DSR 1998:V, p. 2031
EC and certain member
States – Large Civil Aircraft
Panel Report, European Communities and Certain Member States – Measures
Affecting Trade in Large Civil Aircraft, WT/DS316/R, adopted 1 June 2011, as
modified by Appellate Body Report WT/DS316/AB/R, DSR 2011:II, p. 685
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EU – Poultry Meat (China) Panel Report, European Union – Measures Affecting Tariff Concessions on
Certain Poultry Meat Products, WT/DS492/R and Add.1, adopted 19 April 2017,
DSR 2017:III, p. 1067
Greece – Phonograph
Records
Group of Experts Report, Greek Increase in Bound Duty, L/580, 9 November
1956, unadopted
India – Additional Import
Duties
Appellate Body Report, India – Additional and Extra-Additional Duties on
Imports from the United States, WT/DS360/AB/R, adopted 17 November 2008,
DSR 2008:XX, p. 8223
India – Autos Panel Report, India – Measures Affecting the Automotive Sector, WT/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
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry,
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and Corr.2, adopted
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples,
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of
Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I,
p. 3
Korea – Procurement Panel Report, Korea – Measures Affecting Government Procurement,
WT/DS163/R, adopted 19 June 2000, DSR 2000:VIII, p. 3541
Mexico – Taxes on Soft
Drinks
Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages,
WT/DS308/R, adopted 24 March 2006, as modified by Appellate Body Report
WT/DS308/AB/R, DSR 2006:I, p. 43
Russia – Tariff Treatment Panel Report, Russia – Tariff Treatment of Certain Agricultural and
Manufacturing Products, WT/DS485/R, Add.1, Corr.1, and Corr.2, adopted 26
September 2016, DSR 2016:IV, p. 1547
Russia – Traffic in Transit Panel Report, Russia – Measures Concerning Traffic in Transit, WT/DS512/R and
Add.1, adopted 26 April 2019
Thailand – Cigarettes
(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
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

Short Title Full Case Title and Citation
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
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 – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry
from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Renewable Energy Panel Report, United States – Certain Measures Relating to the Renewable
Energy Sector, WT/DS510/R and Add.1, circulated to WTO Members
27 June 2019, appealed 15 August 2019
US – Washing Machines Panel Report, United States – Anti-Dumping and Countervailing Measures on
Large Residential Washers from Korea, WT/DS464/R and Add.1, adopted 26
September 2016, as modified by Appellate Body Report WT/DS464/AB/R, DSR
2016:V, p. 2505
US – Wool Shirts and
Blouses
Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and
Corr.1, DSR 1997:I, p. 323
US – Wool Shirts and
Blouses
Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts
and Blouses from India, WT/DS33/R, adopted 23 May 1997, upheld by
Appellate Body Report WT/DS33/AB/R, DSR 1997:I, p. 343

LIST OF FREQUENTLY CITED EXHIBITS
Panel Exhibit Short Title
(where applicable)
Title
Exhibit JPN-4 Letter from Japan to
India (9 November
2018)
Letter dated 9 November 2018 from the Permanent Mission of
Japan to the Permanent Mission of India, Rectification and
Modification of Schedule (India's WTO Schedule XII)
Exhibit JPN-5 Customs Act 1962 The Customs Act, 1962, Act No. 52 of 1962 (13 December 1962)
Exhibit JPN-6 Customs Tariff Act
1975
The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 1975)
Exhibit JPN-10 First Schedule as of
12 February 2020
R. K. Jain, Customs Tariff of India: Customs Duty Rates &
Exemptions, 71st edn (Centax Publications, 2020), Vol. 1
Exhibit JPN-22 Provisional Collection
of Taxes Act 1931
The Provisional Collection of Taxes Act, 1931, Act No. 16 of 1931
(28 September 1931)
Exhibit JPN-23 Finance Act 2018 The Finance Act, 2018, No. 13 of 2018 (28 March 2018)
Exhibit JPN-27 Notification No.
57/2017
Notification No. 57/2017 (30 June 2017)
Exhibit JPN-28 General Exemption
No. 239
Central Board of Indirect Taxes and Customs, General Exemption
No. 239 - Exemption to Goods Seeks to Prescribe BCD Rates on
Certain Electronic: Notification No. 57/2017 (30 June 2017) as
amended by Notification Nos. 22/2018, 37/2018, 69/2018,
75/2018, 2/2019, 24/2019 and 02/2020 (accessed 28 January
2021)
Exhibit JPN-32 Notification No.
50/2017
Notification No. 50/2017 (30 June 2017)
Exhibit JPN-33 General Exemption
No. 183
Central Board of Indirect Taxes and Customs, General Exemption
No. 183 - Exemption and Effective Rate of Basic and Additional
Duty for Specified Goods of Chapters 1 to 99: Notification No.
50/2017 (30 June 2017) as amended by Notification Nos.
65/2017, 66/2017, 70/2017, 71/2017, 74/2017, 76/2017,
77/2017, 84/2017,85/2017, 87/2017, 89/2017, 92/2017,
93/2017, 2/2018, 5/2018, 6/2018, 24/2018, 26/2018, 27/2018,
29/2018, 31/2018, 32/2018, 40/2018, 44/2018,46/2018,
47/2018, 49/2018, 52/2018, 54/2018, 56/2018, 57/2018,
62/2018, 68/2018, 72/2018, 77/2018, 80/2018, 3/2019, 6/2019,
11/2019, 13/2019, 14/2019,15/2019, 17/2019, 25/2019,
30/2019, 31/2019, 34/2019, 37/2019, 01/2020, 23/2020,
26/2020 and 27/2020 (accessed 28 January 2021)
Exhibit JPN-40 Notification No.
24/2005
Notification No. 24/2005 (1 March 2005)
Exhibit JPN-41 Notification No.
132/2006
Notification No. 132/2006 (30 December 2006)
Exhibit JPN-42 Notification No.
58/2017
Notification No. 58/2017 (30 June 2017)
Exhibit JPN-43 Notification No.
36/2019
Notification No. 36/2019 (30 December 2019)
Exhibit JPN-44 General Exemption
No. 181
Central Board of Indirect Taxes and Customs, General Exemption
No. 181 - Exemption to Specified Goods to Chapter 38, 84, 85 and
90 and All Goods for the Manufacture Thereof: Notification No.
24/2005 (1 March 2005) as amended by Notification Nos.
132/2006, 11/2014, 19/2016, 32/2016, 67/2016, 58/2017,
38/2018, 76/2018, 36/2019 and 06/2020 (accessed 28 January
2021)
Exhibit JPN-45 Notification No.
22/2018
Notification No. 22/2018 (2 February 2018)
Exhibit JPN-46 Notification No.
75/2018
Notification No. 75/2018 (11 October 2018)
Exhibit JPN-47 Notification No.
02/2019
Notification No. 02/2019 (29 January 2019)
Exhibit JPN-48 Lok Sabha Statutory
Resolution Approving
Notification No.
36/2018
Statutory Resolution Re: Notification to Increase Basic Customs
Duty on Populated, Loaded or Stuffed Printed Circuit Boards, Lok
Sabha Official Report, Series 16, Vol. XXXI, 14th Session, No. 27
(4 April 2018)
Exhibit JPN-49 Rajya Sabha
Statutory Resolution
Approving
Notification No.
36/2018
Statutory Resolution Increasing Basic Customs Duty (BCD) on
Populated, Loaded or Stuffed Printed Circuit Boards, Falling Under
Tariff Item 8517 70 10 of the Customs Tariff Act, 1975 from Nil to
10%, Rajya Sabha Official Report, Vol. 245, No. 29 (5 April 2018)

Panel Exhibit Short Title
(where applicable)
Title
Exhibit JPN-50 Notification No.
36/2018
Notification No. 36/2018 (2 April 2018)
Exhibit JPN-51 Finance Bill 2020 Lok Sabha, The Finance Bill, No. 26 of 2020 (1 February 2020)
Exhibit JPN-52 Finance Act 2020 The Finance Act, 2020, No. 12 of 2020 (27 March 2020)
Exhibit JPN-53 Notification No.
38/2018
Notification No. 38/2018 (2 April 2018)
Exhibit JPN-54 Notification No.
76/2018
Notification No. 76/2018 (11 October 2018)
Exhibit JPN-55 Notification No.
02/2020
Notification No. 02/2020 (2 February 2020)
Exhibit JPN-56 Notification No.
01/2020
Notification No. 01/2020 (2 February 2020)
Exhibit JPN-57 Notification No.
37/2019
Notification No. 37/2019 (30 December 2019)
Exhibit JPN-58 Notification No.
37/2018
Notification No. 37/2018 (2 April 2018)
Exhibit JPN-60 General Rules for the
Interpretation of the
Harmonized System
World Customs Organization, General Rules for the Interpretation
of the Harmonized System
Exhibit JPN-68 McGraw-Hill Dictionary of Scientific and Technical Terms (6th
Edition), definitions of "carrier", "carrier current" and
"radiotelephony" (McGraw-Hill, 2002)
Exhibit JPN-69 HS1996 Explanatory
Notes to Headings
8517 and 8525
World Customs Organization, Harmonized System Nomenclature
1996 Explanatory Notes, 2nd edn (1996), Headings 8517 and 8525
Exhibit JPN-72 HS2007 Explanatory
Notes to Heading
8517
World Customs Organization, Harmonized System Nomenclature
2007 Explanatory Notes, 4th edn (2007), Heading 8517
Exhibit JPN-74 CBIC, Correlation of
Customs Tariff
between 2021 and
2022 (December
2021)
Central Board of Indirect Taxes and Customs, Correlation of
Customs Tariff between 2021 and 2022 (December 2021)
Exhibit JPN-75 First Schedule as of 1
February 2022
R. K. Jain, Customs Tariff of India: Customs Duty Rates &
Exemptions, 74th edn (Centax Publications, 2022), Vol. 1
Exhibit JPN-76 Notification No.
55/2021
Notification No. 55/2021 (29 December 2021)
Exhibit JPN-77 Notification No.
02/2022
Notification No. 02/2022 (1 February 2022)
Exhibit JPN-79 WCO, Classification
Opinion on
"smartphones"
(2018)
World Customs Organization, Classification Opinion on
"smartphones" (2018)
Exhibit IND-2 International Court of Justice, Case concerning Sovereignty over
Certain Frontier Land (Belgium v. Netherlands), 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-9 HS2007 Section
Notes to Section XVI
World Customs Organization, Harmonized System Nomenclature
2007, Section Notes to Section XVI
Exhibit IND-13 M. E. Villiger, Commentary on the 1969 Vienna Convention on the
Law of Treaties (Martinus Nijhoff, 2009)
Exhibit IND-14 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.),
Vienna Convention on the Law of Treaties, 2nd edn (Springer,
2018)
Exhibit IND-18 É. Wyler and R. Samson, "Article 48" in O. Corten and P. Klein
(eds.), The Vienna Conventions on the Law of Treaties (Oxford
University Press, 2011)
Exhibit IND-41 Notification No.
69/2011
Notification No. 69/2011 (29 July 2011)
Exhibit IND-42 Notification No.
55/2011
Notification No. 55/2011 (1 August 2011)

Panel Exhibit Short Title
(where applicable)
Title
Exhibit IND-49 Email from IDB,
WTO, to India (8
November 2013)
Email correspondence dated 8 November 2013 from IDB, WTO, to
the Permanent Mission of India to the WTO to the Permanent
Mission of India to the WTO, Subject: "HS2007 transposition file:
India"
Exhibit IND-50 Email from Market
Access 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-60 Finance Act 2021 The Finance Act 2021, No. 13 of 2021
Exhibit IND-75 India's rectification
request,

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

Exhibit IND-76 Prof. M. Waibel, Legal
Opinion on Error
Prof. M. Waibel's Legal Opinion on Error and Curriculum Vitae
Exhibit IND-78 Circular No. 04/2022 (27 February 2022)
Exhibit IND-79 Indian Wireless
Telegraphy Act 1933
The Indian Wireless Telegraphy Act 1933, No. 17 of 1933
Exhibit IND-80 Notification No. 71 (25 September 1953)
Exhibit IND-82 Notification No.
57/2021
Notification No. 57/2021 (29 December 2021) as amended by
Notification Nos. 22/2018, 37/2018, 69/2018, 75/2018, 02/2019,
24/2019, 02/2020, 03/2020, and 57/2021
Exhibit IND-83 Cambridge Advanced Learner's Dictionary online, definition of
"impair"
https://dictionary.cambridge.org/dictionary/english/impair
(accessed 22 May 2022)
Exhibit IND-85 Chapter 85 of the
HS2022
World Customs Organization, Harmonized System Nomenclature,
7th edn (2022), Chapter 85
Exhibit IND-86 World Customs Organization, 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
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
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

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
1980 Decision GATT Decision of 26 March 1980 on Procedures for Modification and
Rectification of Schedules of Tariff Concessions, L/4962
CBIC Central Board of Indirect Taxes and Customs
Customs Act 1962 The Customs Act, 1962, Act No. 52 of 1962 (13 December 1962)
Customs Rules 2017 Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017
Customs Tariff Act 1975 The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 1975)
General Council Decision
on 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 Japan
1.1. On 10 May 2019, Japan 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 23 May 2019 but failed to resolve the dispute.
1.2 Panel establishment and composition
1.3. On 19 March 2020, Japan requested the establishment of a panel pursuant to Article 6 of the
DSU with standard terms of reference.2 At its meeting on 29 July 2020, the Dispute Settlement Body
(DSB) established a panel pursuant to the request of Japan in document WT/DS584/9, in accordance
with Article 6 of the DSU.3
1.4. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by Japan in document
WT/DS584/9 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, Indonesia, the Republic of Korea, Norway, Pakistan,
the Russian Federation, Singapore, Chinese Taipei, Thailand, Türkiye5, the United Kingdom, and the
United States notified their interest in participating in the Panel proceedings as third parties.6
1.6. Further to the agreement of the parties on the three panelists to serve in this dispute, the Panel
was composed on 7 October 2020 as follows:
Chairperson: Mr Paul O'CONNOR

Members: Ms Samantha ATAYDE ARELLANO
 Mr Fabián VILLARROEL 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
1.8. The Panel adopted its Working Procedures 8 and timetable9 on 4 December 2020, after
consulting with the parties.

1 WT/DS584/1.
2 WT/DS584/9.
3 Dispute Settlement Body, Minutes of the meeting held on 29 July 2020, WT/DSB/M/443, p. 13.
4 WT/DS584/10.
5 Formerly "Turkey". (See WT/INF/43/Rev.23).
6 On 28 October 2020, Ukraine requested to join this dispute as a third party. Invited by the Panel to
comment on Ukraine's request, the parties indicated that they had no objections to Ukraine's participation as a
third party. (Panel's 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/DS584/10/Rev.1.
7 For more details regarding the organizational phase of the dispute, see section 1.3.2 below.
8 The Panel revised its Working Procedures on 27 January 2021 and on 12 April 2021.
9 The Panel's timetable was revised on 4 May 2021, 26 October 2021, 28 April 2022, 30 September
2022 and 6 February 2023.

1.9. Japan submitted its first written submission on 28 January 2021. India submitted its first
written submission on 8 April 2021.
1.10. On 22 April 2021, the Panel received third -party submissions from Brazil , Canada, the
European Union, Korea, Norway, Chinese Taipei, 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 7 -8 October
2021.11 Prior to the meeting, the Panel sent the parties a list of questions to be answered orally at
the meeting.12 A joint session with the third parties in this dispute and in the other two disputes in
which the same panelists had been appointed 13 took place i n virtual format on 13 October 2021.
Following these meetings, the Panel sent written questions to the parties and third parties on
18 October 2021. The parties and third parties sent their written responses on 24 November 2021.
1.13. The parties submitted their second written submissions on 15 February 2022.
1.14. The Panel held its second substantive meeting with the parties on 31 March – 1 April 2022 in
hybrid format.14 Prior to the substantive meeting, the Panel sent the parties a list of questions to be
answered o rally at the meeting. Following the meeting, the Panel sent written questions to the
parties. Written responses to these questions were received on 23 May 2022, and comments on the
other party's responses were received on 21 June 2022.
1.15. On 5 July 2022, the Panel issued the descriptive part of its Report to the parties. The parties
provided written comments on 26 July 2022.
1.16. The Panel issued its Interim Report to the parties on 28 October 2022 and its Final Report on
27 February 2023.
1.3.2 Organizational phase - Working Procedures and timetable
1.17. On 16 October 2020, noting that the same panelists served on India – Tariffs on ICT Goods
(EU) (DS582), India – Tariffs on ICT Goods (Japan) (DS584), and India – Tariffs on ICT Goods
(Chinese Taipei) (DS588), and mindful of 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.
1.18. While Japan agreed to have a single joint organizational m eeting 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

10 Brazil, Canada, the European Union, Korea, Chinese Taipei, Türkiye, Ukraine, and the United States
provided responses to the Panel.
11 For details regarding the 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.
16 Japan's communication (22 October 2020).
17 India's communication (22 October 2020).

1.19. Additionally, Japan considered that the scheduling of the three cases should be ha rmonized,
and the substantive meetings and third -party sessions should be held jointly . Japan further stated
that, to the extent that the Panels decided not to hold joint substantive meetings, "those third parties
which are a complainant in one of the other two proceedings be accorded enhanced third party rights
in the two other proceedings, including the right to attend the entire substantive meeting." Japan
submitted that the Panel should, "to the greatest extent possible, conduct a single panel process,
with a single record, resulting in separate reports contained in a single document in such a manner
that the rights that parties or third parties would otherwise have enjoyed are in no way impaired".
For Japan, documents submitted by the parties to the Panel as well as questions from the Panel to
the parties should also be shared with the parties in the other two disputes.18
1.20. India stated that "the three disputes involve distinctly different claims and arguments " and
"the measures identified by the complainants in their respective requests for the establishment of a
panel are also different." India 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 request ed sufficient time to
prepare and present its arguments. Insofar as meetings were concerned, India stated that " the
timetables cannot collapse the proceedings into a single, identical process by holding common
substantive meetings for all the three disputes. " India consider ed that "its ability to respond to
distinct claims and arguments requir es separate substantive meetings to be devoted to each
dispute." Therefore, India requested that "the substantive meetings between the respective parties
be held separately and sequentially on consecutive days ". India suggested that, "[i]n order to
achieve efficiency, a single, consolidated third party session may be held " and "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 response s to the
pre-organizational meeting questionnaire. 20 On the same date the Panel postponed the
organizational meeting and extended the deadline to submit comments on the parties' responses to
the pre -organizational meeting questionnaire. 21 The parties submi tted their comments on each
other's responses to the pre -organizational meeting questionnaire on 10 November 2020. On
19 November 2020, the Panel held an organizational meeting with the parties.22
1.22. The Panel adopted its Working Procedures and timetable on 4 December 2020. 23 In its
communication transmitting the Working Procedures and timetable to the parties, the Panel indicated
that it had noted the parties' agreement as well as differences of views regarding the conduct of the
proceedings in this dispute a nd in the other two disputes in which the same panelists had been
appointed. In taking its decisions in relation to the Working Procedures and timetable, the Panel
endeavoured to balance the efficient conduct of the proceedings with the parties' due process rights
under the DSU, bearing in mind Article 9.3 of the DSU . The Panel decided, inter alia, that the first
substantive meeting with the parties would be held separately for each dispute and the meetings
would be scheduled on consecutive dates and in the sequential order of the DS numbers of the
disputes. A joint third -party session would be held in DS582, DS584 and DS588. The Panel added

18 Japan's communication (22 October 2020).
19 India's communication (22 October 2020), p. 1.
20 India's communication (26 October 2020).
21 Panel's communication to the parties (26 October 2020).
22 The Panel held separate 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.

that it would advise on the conduct of the second substantive meeting in due course, after consulting
with the parties. Finally, the deadlines for submissions were harmonized in the three disputes.24
1.3.3 Format of the substantive meetings
1.23. The COVID-19 pandemic disrupted the work of the Panel, contributing to delays in the
proceedings. Moreover, restrictions related to COVID-19, in particular on international travel, obliged
the Panel to modify the format of the substantive meetings. This section provid es an overview of
the process leading to the Panel's decision to conduct its first and second substantive meetings in
virtual and hybrid format, respectively.
1.3.3.1 Format of the first substantive meeting
1.24. The first substantive meeting of the Panel was initially scheduled for 3-4 June 2021. On
31 March 2021, the Panel sent a communication to the parties noting that the 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 parties' due process rights, the Panel intended to hold both its first substantive
meeting and the third -party session with remote participation, through the Cisco Webex platform.
The Panel provided the parties with draft Additional Working Procedures concerning meetings with
remote participation and invited the parties to comment on the proposed arrangements 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. Japan indicated that it held a consistent view that substantive meetings should in
principle be held in face -to-face format but was aware of the challenges this format raised during
the COVID-19 pandemic. Japan submitted that "a substantive meeting in virtual format may be an
option, if the Panel decides that such a format is considered to be appropriate."26 India informed the
Panel that it would not be able to participate in the first substantive meeting remotely for several
reasons. India requested the Panel "to wait, observe the Covid -19 situation in India and hold the
first substantive meeting in this dispute only when the situation improves so as to permit face to
face meetings".27
1.26. On 13 April 2021, the Panel invited the parties to comment on each other's comments on the
Panel's proposed 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 parti es' comments
regarding the Panel's communication of 31 March 2021.29
1.27. Japan agreed with India that the utmost consideration should be given to India's concern
regarding certain technical issues in a virtual format meeting, "taking into account the need to
preserve the parties' due process rights". Japan observed that a virtual meeting, "by its nature, does
not itself favour one party over the other in any manner whatsoever, and that technical difficulties
may be alleviated to a certain extent by sufficient a dvance preparation, testing and other relevant
measures".30
1.28. India 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

24 Panel's communication to the parties (4 December 2020).
25 Panel's communication to the parties (31 March 2021). A copy of this communication can be found in
Annex D-1 of the Report.
26 Japan's communication (12 April 2021).
27 India's communication (12 April 2021).
28 Panel's communication to the parties (13 April 2021).
29 Panel's communication to the third parties (13 April 2021).
30 Japan's communication (16 April 2021).

had decided to postpone the substantive meeting due to the CO VID-19 pandemic. India submitted
that "a virtual meeting format without the consent of all parties would be inconsistent with Article
3.1 and 3.2" of the DSU and that "[t]he margin of discretion held by panels under Article 12.1 does
not extend to modifyin g 'substantive provisions' of the DSU." For India, "the manner in which
domestic judicial proceedings are conducted is not germane to the issue before the Panel." India
reiterated its concerns regarding security and confidentiality of the proceedings, as w ell as the
difficulty of extending technical support to members of its delegation who were working remotely.
India considered that the Panel could not "amend the working procedures and conduct the first
substantive meeting in virtual format as it would mod ify substantive provisions of the DSU and
impair the respondent's due process rights."31
1.29. On 16 April 2021, Canada, China, Singapore, Chinese Taipei, and the United States, as third
parties to the dispute, submitted comments on the parties' views regarding the Panel's proposed
arrangements for the first substantive meeting and third-party session.
1.30. In a communication dated 21 April 2021, the Panel noted that the DSU did not prescribe a
particular format for panel meetings and, therefore, the Panel 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 C OVID-19 cases in India, the Panel deemed it appropriate to postpone
the first substantive meeting in this dispute, and in the other two disputes in which the same three
panelists had been appointed, until the weeks of 4 and 11 October 2021. The Panel further indicated
that it would confirm the format of the first substantive meeting by 31 August 2021.32
1.31. On 31 August 2021, the Panel informed the parties and third parties that, in view of the
epidemiological situation, the first substantive meeting and the th ird-party session would be
conducted in virtual format on 7-8 and 13 October 2021, respectively.33 On 6 September 2021, the
Panel invited the parties to comment on the Panel's draft Additional Working Procedures concerning
meetings with remote participation.
1.32. On 20 September 2021, the Panel confirmed its decision of 31 August 2021 to conduct the
first substantive meeting in a virtual format. 34 On the same date, the Panel adopted
Additional Working Procedures concerning meetings with remote participation for the first
substantive meeting.35
1.3.3.2 Format of the second substantive meeting
1.33. On 22 February 2022, noting that measures related to COVID-19 had been relaxed in certain
parts of the world, the Panel sent a communication to the parties enquiring about the feasib ility of
an in -person meeting in Geneva. The Panel invited the parties to indicate whether, taking into
consideration remaining restrictions on international travel and their more general policy on official
travel, the parties would be in a position to 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 meetings on
consecutive days in the three disputes in which the same panelists had been appointed, the Panel
decided to consolidate all four parties' views regarding the organization of the second substantive
meetings. To th at end, the Panel copied its communication to the representatives of the
complainants in DS582 and DS588 and asked that the parties do so as well when conveying their
views.36

31 India's communication (16 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.
36 Panel's communication to the parties (22 February 2022).

1.34. Noting the rapidly changing situation concerning the COVID -19 pandemic and the resulting
possibility that not all members of Japan's delegation may be able to travel to Geneva, Japan
suggested that the second substantive meeting be held in a hybrid format.37
1.35. India requested that the Panel provide for a hybrid hearing, in which the parties'
representatives could attend the meeting in -person at the WTO premises and also participate
through a virtual mode.38
1.36. On 2 March 2022, the Panel informed the parties that, in light of the responses of the parties
in DS582, DS584, and 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 participation for the
second substantive meeting.41
1.3.4 Requests for enhanced third-party rights
1.37. On 21 and 22 Dece mber 2020, the Panel received requests for enhanced third -party rights
from the European Union and Chinese Taipei, respectively. The European Union and Chinese Taipei
requested that the Panel grant them the following enhanced third-party rights: (i) to receive copies
of all written submissions of the parties, their oral statements, rebuttals and responses to questions
from the Panel and each other, through all stages of the proceedings; (ii) to be present for the
entirety of all substantive meetings of t he Panel with the parties; (iii) to be allowed to make oral
statements, to orally reply to questions , and to ask questions to the parties or other third parties,
as appropriate, in those meetings; and (iv) to review the draft summary of their own arguments in
the descriptive part of the Panel Report.42
1.38. The European Union and Chinese Taipei noted that enhanced third -party rights ha d been
granted in previous disputes to address "practical considerations arising from a third party 's
involvement as a party in a parallel panel proceeding ".43 According to the European Union and
Chinese Taipei, their interest in the parallel disputes extend ed beyond the "substantial" interest in
Article 10.2 of the DSU because of their involvement as parties in, respectively, DS582 and DS588.44
The European Union and Chinese Taipei argued that the decision to compose the panels in the three
disputes with the same three panelists, as well as the decision by the Panel to hold a joint third -
party session in DS582, DS584 and DS588 – at the request of India – confirmed the fact that the
matters in those disputes overlapped substantially.45 The European Union and Chinese Taipei stated
that they had "an exceptionally strong interest in the Panel's assessment of the matter in the two
parallel disputes" and it was "a matter of due process for [them] to have the possibility of hearing
and following the discussions in the substantive meetings in the parallel proceedings in order to be

37 Japan's communication (25 February 2022).
38 India's communication (25 February 2022).
39 The European Union confirmed that its representatives would attend the second substantive meeting
in person at the WTO premises on 29-30 March 2022. (European Union's communication in DS582
(23 February 2022)). Chinese Taipei indicated that, with the 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. (Chinese Taipei's communication in DS588 (25 February 2022)).
40 Panel's communication to the parties (2 March 2022).
41 The Panel's Additional Procedures for the second substantive meeting can be found in Annex A-3 of
the Report.
42 European Union's communication (21 December 2020), p. 1; Chinese Taipei's communication
(22 December 2020), pp. 1-2.
43 European Union's communication (21 December 2020), p. 2; Chinese Taipei's communication
(22 December 2020), p. 2. Both communications refer to Panel Reports, EC – Hormones (Canada), para. 8.17;
US – COOL, para. 2.7; US – COOL (Article 21.5 – Canada 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; Chinese Taipei's communication
(22 December 2020), p. 2.
45 European Union's communication (21 December 2020), p. 2; Chinese Taipei's communication
(22 December 2020), p. 2.

in a position to properly defend [their] interests during th e substantive meeting[s] in [their] own
case[s]".46
1.39. The Panel invited the parties and the other third parties to comment on the requests. While
Japan agreed with the requests by the European Union and Chinese Taipei47, India asked the Panel
to reject those requests.48
1.40. India stated that granting the enhanced third-party rights requested by the European Union
and Chinese Taipei would require the parties' agreement, so as not to affect the balance guaranteed
by the DSU (such as the right to confidentiality) a nd in order to avoid due process concerns. India
submitted that the only reason cited in the requests (i.e. 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 provisions50 and by due process considerations. 51 In itself, the status as a
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 submitt ed that, without
prejudice to the applicability of Article 9 of the DSU to this dispute and the other two disputes where
the same panelists were appointed, this provision "has been found to not address the question of
rights of third parties" in parallel d isputes.53 For India, "any due process consideration in having a
right to be heard and having an adequate opportunity thereto, are already sufficiently addressed by
[the requesting third parties'] exercise of their right to initiate panel procedures under the DSU and
their standard third party rights under Article 10 [of the] DSU in this dispute." 54 The requests for
enhanced third-party rights "would inappropriately blur the distinction with the complainant".55 India
was of the view that the first two rights requested by the European Union and Chinese Taipei affected
India's "right to confidentiality of its submissions and positions under Article 18.2 [of the] DSU" and
the last two rights implied those third parties' "active involvement at par with that of the complaining
party [which] would also entail an additional burden" for India.56
1.42. China, the Ru ssian Federation, Türkiye, and the United States, as third parties, provided
comments on the requests submitted by the European Union and Chinese Taipei.57
1.43. On 27 January 2021, the Panel informed the parties and third parties , that "[a]fter carefully
reviewing the requests and the views of the parties and other third parties, the Panel has concluded
that the particular circumstances of this dispute warrant[ed] the granting of certain enhanced third-
party rights to the European Union and Chinese Taipei." The enhanced rights granted by the Panel
comprised "access to (i) the parties' second written submissions, (ii) the final written versions of the
parties' oral statements made during the first and second substantive meetings, (iii) each party's
responses to 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 those questions following the second substantive meetin g." The Panel rejected the

46 European Union's communication (21 December 2020), p. 2; Chinese Taipei's communication
(22 December 2020), pp. 2-3.
47 Japan's communication (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.

remainder of the requests.58 On the same date, the Panel revised the Working Procedures to reflect
its decision.59
1.3.5 Disclosure of a panelist's professional engagements
1.44. On 4 February 2021, the Chairperson of the Panel informed the parties that a panelist had
signed a new disclosure form under the Rules of Conduct for the DSU, reflecting an update of
professional engagements. The update conveyed the information that the consortium employing the
panelist was eligible, alongside with other law fir ms, to provide legal services to a WTO Member in
the field of international law, trade negotiations and dispute settlement, on request by the
Government of that Member. The panelist further indicated that this information was publicly
available and that, 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. Japan consider ed that there was no particular problem with regard to the disclosed
information but reserved its rights to comment in case a conflict issue arose in the future.61
1.46. India noted that the situation disclosed involved a WTO Member which was a third party in
this dispute and India was therefore concerned that the situation disclosed might present a direct
conflict of interest that ought to be avoided. India requested the panelist concerned to provide an
undertaking that the panelist's employer would avoid incurring any obligat ion or accepting any
benefit from the Member in question that could result in a direct or indirect conflict or give rise to
justifiable doubts as to the proper performance of the panelist's dispute settlement duties, in
particular with respect to 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 concer ned did not give rise to any direct or indirect
conflict of interest in respect of the subject matter of the proceedings, or to justifiable doubts
regarding that panelist's independence or impartiality. The Panel noted that, consistent with the
requirements in Section III of the Rules of Conduct for the DSU, the panelist concerned had
reiterated the undertaking to disclose any new information that was likely to affect or give rise to
justifiable doubts as to that panelist's independence or impartiality and would take due care to avoid
any direct or indirect conflicts of interest in respect of the subject matter of the proceedings.
1.3.6 Preliminary ruling
1.48. On 8 April 2021, India requested a preliminary ruling , incorporated in its first written
submission. In its preliminary ruling request, India claimed that Japan's panel request did not satisfy
the conditions laid down in Article 6.2 of the DSU.63
1.49. On 14 April 2021, the Panel invited Japan to comment on India's preliminary ruling request .
Third parties that wished to comment on the matter were also invited to do so.
1.50. On 23 June 2021, the Panel informed the parties that it intended to issue a communication
regarding India's preliminary ruling request on 28 June 2021. On 28 June 2021, India requested the
Panel to defer the issuance of its communication so as to ensure that these issues "are properly
discussed and considered at the first substantive meeting."64 On the same day, the Panel informed

58 The Panel's decision can be found in Annex E-1 of the Report. On 24 February 2021, the Panel
received a communication from India commenting on the Panel's decision. In that communication, India stated
that "reasons for granting the additional privileges are not available in [the Panel's] decision" and that "India
reserves the right to request the Panel to revisit this decision as these proceedings progress." (India's
communication (24 February 2021)). The Panel acknowledged receipt of India's communication and took note
of India's views. (Panel's communication to the parties and third parties (25 February 2021)).
59 The revision concerned paragraphs 21bis and 30(d) of the Working Procedures.
60 Panel's communication to the parties (4 February 2021).
61 Japan's communication (9 February 2021).
62 India's communication (9 February 2021).
63 India's first written submission, para. 20.
64 India's communication (28 June 2021).

the parties that, in light of India's communication, it would suspend the issuance of the Panel's
communication and invited Japan to comment on India's request.65
1.51. Japan submitted that the parties and third parties had sufficiently expressed their views
regarding India's preliminary ruling request, "and therefore the time is ripe for the Panel to make
findings and rulings in this respect."66
1.52. On 7 July 2021, the Panel issued a communication to the parties and third parties regarding
India's preliminary ruling request.67
1.3.7 Evidentiary objection
1.53. On 31 March 2022, during the second substantive meeting with the parties, the Panel
addressed a question to India regarding whether Professor Michael Waibel's Legal Opinion, which
had been submitted as Annex II to India's second written submission, constituted evidence or was
part of India's arguments.68 In its oral response, India explained that, in its view, Professor Waibel's
Legal Opinion was in the nature of an expert opinion that was independent of India's submissions,
and, if the Panel so wished, India would assign it an exhibit number in accordance with the Panel's
Working Procedures. Japan or ally objected to India's characterization of Professor Waibel's Legal
Opinion as evidence. According to Japan, Professor Waibel's Legal Opinion should not be given any
weight or probative value because it was neither neutral nor objective, and suffered from a number
of serious legal flaws. Japan further argued that, to the extent the Legal Opinion could be considered
evidence, it should be disregarded by the Panel because, inter alia, the submission of that Legal
Opinion as evidence was inconsistent with the Panel's Working Procedures.
1.54. On 6 April 2022, following the second substantive meeting, the Panel sent a communication
to the parties, noting that, in its comments on India's oral response to Panel question No. 3 at the
second substantive meeting, Japan had objected to the submission by India of Professor Waibel's
Legal Opinion as evidence. The Panel requested Japan to submit its objection in writing by 12 April
2022 and invited India to submit comments on Japan's objection by 19 April 2022. Additionally, and
without prejudice to Japan's objection, the Panel requested India to provide Professor Waibel's Legal
Opinion as an exhibit, reserving its right to make a ruling on that objection at a later stage of the
proceedings.69
1.55. Having received Japan's written objection, as well as India's comments on that objection, the
Panel issued its decision to the parties on 16 May 2022. 70 As explained in that decision, the Panel
rejected Japan's objection and invited Japan to comment on that exhibit in the course of its
comments on India's response to questions from the Panel.
2 FACTUAL ASPECTS
2.1 The measures at issue
2.1. Japan challenges the duties applied by India to imports of certain information communication
technology (ICT) products, on the ground that such duties are in excess of the relevant tariff bindings
set forth in India's WTO Schedule .71 According to Japan, at the time of the Panel's establishment,

65 Panel's communication to the parties (28 June 2021).
66 Japan's communication (1 July 2021).
67 The Panel's decision can be found in Annex E-2 of the Report.
68 On 11 March 2022, the Panel sent questions for oral responses at the second substantive meeting.
Panel question No. 3 addressed the following question to India (footnote omitted):
In its second written submission, India indicates that its "submissions are supplemented by the
expert opinion of Prof. Michael Waib el annexed as Annex II". The Panel notes that India has not
submitted Annex II as an exhibit. Should the Panel consider Professor Waibel's opinion to be part
of India's second written submission, and therefore by extension part of India's arguments, or
should the Panel consider Professor Waibel's opinion to be evidence in support of India's
arguments?
69 Panel question No. 62, sent on 11 April 2022.
70 The decision of the Panel can be found in Annex E-3 of the Report.
71 Request for the establishment of a panel by Japan (Japan's panel request), WT/DS584/9, pp. 1-5.

the ICT products concerned fell within the scope of the following tariff items 72: 8517.12.11;
8517.12.19; 8517.12.90; 85 17.61.00; 8517.62.90; 8517.70.10; and 8517.70.90 of the
First Schedule to the Customs Tariff Act, 1975 (First Schedule).73 Japan identifies a number of legal
instruments through which India applies the alleged tariff treatment to products falling under these
tariff items.74
2.2 India's customs regime
2.2.1 Main legal instruments
2.2. The main legislative instruments governing the imposition of customs duties on imports of
goods into India are the Customs Act, 1962, Act No. 52 of 13 December 1962 (Customs Act 1962)75
and the Customs Tariff Act, 1975, Act No. 51 of 18 August 1975 (Customs Tariff Act 1975).76
2.3. Section 12 of the Customs Act 1962, titled "Dutiable goods", provides as follows:
Except as otherwise provided in this Act, or any other law for the time being in force,
duties of customs shall be levied at such rates as may be specified under the … [Customs
Tariff Act], or any other law for the time being in force, on goods imported into, or
exported from, India.77
2.4. 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.78
2.5. The First Schedule of the Customs Tariff Act 1975 sets out maximum duty rates leviable on
imports of goods into India. 79 The First Schedule is based on the World Customs Organization's
(WCO's) Harmonized System (HS) Nomenclature.80 At the time of the Panel's establishment, India's
First Schedule was based on the HS Nomenclature 2017 Edition (HS2017). 81 Subsequently, during
the Panel proceedings, India amended its First Schedule to align it with the HS Nomenclature 202 2
Edition (HS2022).82
2.6. The duty rates set out in the First Schedule may be modified by the Indian Parliament or by
the Central Government of India (the Government), as illustrated below.

72 We understand that under the Harmonized System (HS) nomenclature, entries at the four-digit level
are referred to as "headings", entries at the six-digit level are referred to as "subheadings", 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. Japan's first written submission, para. 101 and fn 163 thereto; and
India's first written submission, para. 26). In this Report, we use the term "tariff item" to refer to subheadings
and tariff lines set forth in India's WTO Schedule and First Schedule. Where useful for the purposes of clarity,
we use the terms "subheading" and "tariff line" as per the HS nomenclature.
73 Japan's panel request. India amended its First Schedule during the panel proceedings. We analyse the
effect of those amendments on Japan's claims in section 7 below.
74 Japan's panel request. We address the parties' assertions regarding these legal instruments in the
context of assessing the merits of Japan's claims in section 7 below.
75 Customs Act 1962, (Exhibit JPN-5).
76 Customs Tariff Act 1975, (Exhibit JPN-6).
77 Customs Act 1962, (Exhibit JPN-5), section 12.
78 Customs Tariff Act 1975, (Exhibit JPN-6), section 2.
79 Japan notes that India has not officially published the First Schedule in a single document. However,
according to Japan, the latest First Schedule can be found in hard-copy format published by third-party
publications, and online on the website of the Central Board of Indirect Taxes and Customs (CBIC),
Department of Revenue, Ministry of Finance, India. (Japan's first written submission, para. 25. See also
Chinese Taipei's third-party submission, para. 3.26). India does not contest this assertion.
80 Japan's response to Panel question No. 66, para. 24; India's response to Panel question No. 66,
para. 36.
81 India's response to Panel question No. 21, para. 78.
82 India's second written submission, para. 105 (referring to Finance Act 2021, (Exhibit IND-60)).

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. 83
A Finance Bill becomes a Finance Act once passed by both Houses of Parliament and assented to by
the President.84
2.2.3 The Government's power to modify the applied duty rates
2.8. The Government has the power to (i) increase tariff rates in the First Schedule through customs
notifications or amendments, and (ii) provide exemptions from duties leviable, through customs
notifications.
2.2.3.1 Power to increase tariff rates
2.9. Section 8A(1) of the Customs Tariff Act 1975 authorizes the Government to increase the duty
rates set out in the First Schedule through customs notifications. Section 8A(1), titled "Emergency
power of Central Government to increase import duties" provides as follows:
Where in respect of 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).85
2.10. Notifications issued by the Government pursuant to section 8A(1) of the Customs Tariff Act
1975 are approved by each House of Parliament by way of resolution.86 Such notifications may also
be rescinded by the Government at any time by subsequent notification.87
2.2.3.2 Power to exempt goods from import duties
2.11. Section 25(1) of the Customs Act 1962, titled "Power to grant exemption from duty" provides
as follows:
If the Central Government is 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

83 See e.g. Chinese Taipei's third-party submission, para. 3.27. The parties do not contest this assertion.
Moreover, pursuant to Section 3 of the 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 JPN-22), sections 3, 4(1), and 4(2)(a)).
84 European Union's third-party submission, para. 40. The parties do not contest this assertion.
85 Customs Tariff Act 1975, (Exhibit JPN-6), section 8.
86 Customs Tariff Act 1975, (Exhibit JPN-6), section 7(3). Section 7(3) provides that "[e]very notification
under sub-section (2), in so far as it relates to increase of such duty, shall be laid before each House of
Parliament if it is sitting as soon as may be after the issue of the notification, and if it is not sitting within seven
days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification
by a resolution moved within a period of fifteen days beginning with the day on 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."
87 Customs Tariff Act 1975, (Exhibit JPN-6), 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)).

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.88
2.12. Section 25(1) thus empowers the Government to exempt goods from imposition of all
applicable import duties or part of the import duties leviable. The exemptions may also be subject
to conditions.
2.13. Notifications exempting goods from import duties (exemption notifications) may be amended,
superseded or rescinded by other exemptions notifications issued by the Government in the exercise
of its powers under Section 25(1) of the Customs Act 1962.89 The Government can also withdraw
exemptions issued under Section 25 at any time if the " 'public interest ' so demand[s]" and the
Government determines that the exemption does not require to be extended any further.90 In certain
instances, two exemption notifications or two different entries in the same exemption notification
may apply to the same tariff item. In such cases, an importer can claim the treatment afforded
under the most beneficial exemption notification or entry.91
2.2.4 Conclusion
2.14. From the foregoing, and in light of the clarifications of the parties, we understand that, under
India's customs regime , the duty rates set out in the First Schedule are not necessarily the duty
rates applied to imported products. Rather, t he applied duty rate is based not only on the
First Schedule, but also on any rel evant customs notifications which relate to the tariff item at
issue.92 In sum, the duty rates applicable to imports of goods into India are to be understood from
reading the First Schedule in light of relevant customs notifications.
2.3 India's WTO Schedule
2.15. Schedule XII – India (India's WTO Schedule) sets forth concessions and commitments
undertaken by India in relation to trade in goods. While the parties contest a number of issues
related to India's WTO Schedule, we nevertheless consider it useful to 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. 93 The HS nomenclature , which is establi shed
under the HS Convention, is administered by the WCO. 94 The WCO regularly amends the HS to
update the nomenclature. When an updated nomenclature is published, the WCO publishes
correlation tables, also referred to as concordance tables, which identify the correlations between
the product scope of HS headings and subheadings in the previous version of the nomenclature as
compared to the new version.95

88 Customs Act 1962, (Exhibit JPN-5), section 25(1).
89 European Union's third-party submission, para. 55. The parties do not contest this assertion.
90 Hon'ble Supreme Court in the case of Kasinka Trading and ANR v. Union of India and ANR, 1994 (74)
ELT 782 (S.C.), (European Union's third-party Exhibit EU-4), pp. 462-463.
91 Hon'ble Supreme Court in the case of Share Medical Care v. Union of India and 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); Hon'ble CESTAT,
Burroughs Wellcome (I) Ltd. v. Commissioner of Central Excise, 2007 (216) ELT 522 (Tri. – Chennai),
(European Union's third-party Exhibit EU-7).
92 India's response to Panel question No. 22, paras. 81-82, and No. 53, para. 52. In its first written
submission, India uses the term as "basic customs duty (BCD) rate" to refer to the duty rates set forth in the
First Schedule. (See e.g. India's first written submission, paras. 131, 147, and 159). Subsequently, India
clarified that its reference to "basic customs duty" in its first written submission should be read as "standard
rate". (India's response to Panel question No. 53, para. 52). In this Report, when referring to the duty rates
set out in the First Schedule we do so explicitly. We use the term "applied duty rate" to refer to the rate
applied to imports, taking into account all relevant legal instruments (including relevant customs notifications).
93 India's response to Panel question No. 1, paras. 9-10.
94 India is a contracting party to the HS Convention. (Japan's first written submission, para. 17; Chinese
Taipei's third-party submission, para. 3.24). This assertion is uncontested by the parties.
95 See e.g. General Council Decision of 18 July 2001 on Concessions under the Harmonized Commodity
Description and Coding System, A Procedure for Introduction of Harmonized System 2002, Changes to
Schedules of Concessions (General Council Decision on HS2002 Transposition Procedures), WT/L/407,

2.17. In the WTO, Members' Schedules are regularly updated in order to reflect newer versions of
the HS nomenclature. This process of updating a Member's Schedule is referred to as a transposition.
Prior to the establishment of the WTO, procedures were adopted that required the Contracting
Parties to the General Agreement on Tariffs and Trade 1947 (GATT 1947) to incorporate updated
nomenclature into their Schedules and, if necessary, conduct negotiations under Article XXVIII of
the GATT 1947 if the transposition resulted in a change in the scope of the concession.96
2.18. On 13 December 1996, a number of WTO Member s concluded the Ministerial Declaration on
Trade in Information Technology Products (ITA). India joined the ITA on 26 March 1997. The ITA
participants agreed among themselves to bind and eliminate customs duties and other duties and
charges of any kind, within the meaning of Article II:1(b) of the GATT 1994, with respect to certain
products.97 The Annex to the ITA requires that participants "shall incorporate" such measures into
their Schedules annexed to the GATT 1994, and indicates that their Schedules sh ould be modified
in accordance with the GATT Decision of 26 March 1980 on Procedures for Modification and
Rectification of Schedules of Tariff Concessions (1980 Decision).98 India, as a participant in the ITA,
proposed a modification to its WTO Schedule, 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 1997.99
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.100
2.20. In 2006, in preparation for the transposition of Members' Schedules from the HS2002 to the
HS Nomenclature 2007 Edition ( HS2007), the General Council adopted a Decision concerning
"A Procedure for the Introduction of Harmonized System 2007 Changes to Schedules of Concessions
Using the Consolidated Tariff Schedules (CTS) Database" (Decision on HS2007 Transposition
Procedures).101 Pursuant to that Decision, developed country Members were to prepare their o wn
transpositions from the HS2002 to the HS2007, and the WTO Secretariat was requested to
"transpose the schedules of developing country Members, except for those who undertake to prepare
their own transposition and submit a notification to this effect".102
2.21. Since India did not indicate that it intended to undertake the transposition of its Schedule
from the HS2002 to the HS2007, the WTO Secretariat undertook to prepare India's transposition.
On 8 November 2013, the Secretariat communicated to India via email the draft files for the HS2007
transposition of India's Schedule.103
2.22. Following receipt of the draft transposition files prepared by the WTO Secretariat, India
provided comments on the draft files.104 The Secretariat then communicated a revised file to India

Attachment A, p. 2; General Council Decision of 15 December 2006 on A Procedure for the Introduction of
Harmonized System 2007 Changes to Schedules of Concessions Using the Consolidated Tariff Schedules (CTS)
Database (General Council Decision on HS2007 Transposition Procedures), WT/L/673, Annex 2, para. 7.
96 GATT, Procedures to Implement Changes in the 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).
97 The relevant products are identified in the ITA as "(a) all products classified (or classifiable) with
[HS1996] headings listed in Attachment A to the Annex [to the ITA]; and (b) all products specified in
Attachment B to the Annex [to the ITA], whether or not they are included in Attachment A". (Ministerial
Declaration on Trade in Information Technology Products (ITA), WT/MIN(96)/16, para. 2).
98 Paragraphs 1 and 2 of the Annex to the ITA. See also GATT Decision of 26 March 1980 on Procedures
for Modification and Rectification of Schedules of Tariff Concessions (1980 Decision), L/4962. Pursuant to
paragraph 2 of the Annex to the ITA, each ITA participant's proposed modification of their WTO Schedules is
subject to review, and approval on a consensus basis, by all ITA participants.
99 WT/Let/181.
100 General Council Decision on HS2002 Transposition Procedures, WT/L/407.
101 General Council Decision on HS2007 Transposition Procedures, WT/L/673.
102 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.
103 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49).
104 India did not provide comments or seek clarifications regarding the transposition of the tariff items at
issue in this dispute. (Email from Market Access Intelligence Section, WTO, to India (12 February 2014),
(Exhibit IND-50)).

for approval. 105 A multilateral review session was held in the Committee on Market Access on
23 April 2015, during which the draft files were approved by Members in the Committee on
Market Access.106 The draft modifications to the Schedule were circulated on 12 May 2015 and, since
no objections were received within three months of circulation, on 12 August 2015 the changes to
the Schedule were certified.107
2.23. On 25 September 2018, India requested that its Schedule be rectified, in accordance with the
1980 Decision, in order to correct "certain errors contained in its HS2007 Schedule".108 Specifically,
India requested that its commitments with respect to 15 tariff items be rectified to "Unbound",
including certain of the tariff items at issue in this dispute.109 In its request, India stated that "[w]hile
transposing the HS2002 schedule to HS2007 schedule on the products concerned, errors occurred,
resulting in wrong bound tariff commitments on certain lin es which were inadvertently included in
the Schedule." 110 According to India, "the various tariff subheadings for which India is seeking
rectification to its HS2007 Schedule" were not covered by the commitments in the ITA, and "[t]he
new products became par t of the schedule on account of the WCO transposition from HS2002 to
HS2007".111 India considered that the rectification did not alter its commitments "either under
GATT 1994 or the ITA[]"112, and that "[t]he errors in the HS2007 scheduling should be interpreted
as an inadvertent oversight by India on binding of products not covered by the ITA[] at 0%".113
2.24. Several Members, including Canada114, China 115, the European Union 116, Japan 117,
Chinese Taipei118, Switzerland119, and the United States120 objected to India's proposed rectification
under the 1980 Decision. In light of these objections, and in accordance with the 1980 Decision121,
India's rectification request has not, to date, been certified.

105 India's response to Panel question No. 19, paras. 60-61.
106 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India,
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.
107 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India,
Communication from 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.
108 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75), p. 1.
109 India requested that, inter alia, the following tariff items be rectified to "unbound": 8517.12
(telephones for cellular networks or for other wireless networks); 8517.61 (base stations); ex 8517.62 (other
machines for the reception, conversion and transmission or regeneration of voice, images or other data
including switching and routing apparatus); ex 8517.70 (parts of 8517.12, 8517.61, ex 8517.62 and
ex 8517.69); and ex 8517.70 (other parts). (India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75),
Appendix 2, p. 3).
110 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75), p. 1.
111 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75), Appendix 1, p. 2.
112 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75), p. 1.
113 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75), Appendix 1, p. 2.
114 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134, p. 40;
and Committee on Market Access, Minutes of the meeting held on 11 November 2019, G/MA/M/71, para. 15.4.
115 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134,
para. 12.5; and Committee of Participants on the Expansion of Trade in Information Technology Products,
Minutes of the meeting held on 14 May 2019, G/IT/M/70, para. 1.14.
116 Council for Trade in Goods, Minutes of 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.
117 Letter from Japan to India (9 November 2018), (Exhibit JPN-4); Council for Trade in Goods, Minutes
of the meeting held on 12 and 13 November 2018, G/C/M/133, para. 18.13.
118 Letter from Chinese Taipei to India (19 October 2018), (Chinese Taipei's third-party Exhibit TPKM-3);
Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of the
meeting held on 30 October 2018, G/IT/M/69, para. 1.36.
119 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134,
para. 12.12.
120 Council for Trade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133,
paras. 18.7-18.8; Committee on Market Access, Minutes of the meeting held on 9 October 2018, G/MA/M/68,
para. 131.
121 The 1980 Decision indicates that proposed 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).

2.25. In light of the foregoing, India's WTO Schedule presently indic ates, inter alia, the following
tariff commitments 122:

Ex Description Bound
rate
85 Electrical machinery and equipment and parts thereof; sound recorders and
reproducers, television image and sound recorders and reproducers, and
parts and accessories of such articles

8517 Telephone sets, including telephones for cellular networks or for other
wireless networks; other apparatus for the transmission or reception of voice,
images or other data, including apparatus for communication in a wired or
wireless network (such as a local or wide area network), other than
transmission or reception apparatus of heading 84.43, 85.25, 85.27 or 85.28

8517.12 --Telephones for cellular networks or for other wireless networks 0%
8517.61 --Base stations 0%
8517.62

 --Machines for the reception, conversion and transmission or regeneration of
voice, images or other data, including switching and routing apparatus
0%
8517.70.00 -Parts
8517.70.00 01 --Parts and accessories of the machines of heading 84.71: For populated
PCBs
0%
8517.70.00 02 --Parts and accessories of the machines of heading 84.71: Other 0%
8517.70.00 03 --Other 0%

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. Japan requests the Panel to find that the measures at issue are inconsistent with India's
obligations under Articles II:1(a) and (b) of the GATT 1994. 123 Japan also requests, pursuant to
Article 19.1 of the DSU, that the Panel recommend that India bring its measures into conformity
with its obligations under the GATT 1994.124
3.2. India requests the Panel to find that:
a. India has not acted inconsistently with Articles II:1(a) and (b) of the GATT 1994 because
the applied rate of duty for products at issue is "nil" on imports of such products from
Japan125;
b. The products at issue are not covered by the ITA and the 2007 Schedule, which was
certified in error, included products not originally covered by the ITA126;
c. Since the products at issue are not covered under the ITA, the draft rectification circulated
by India is of a "purely formal character ".127 Therefore, the objection raised by Japan to
the draft rectification was unfounded, contrary to paragraph 3 of the 1980 Decision, and
impeded India's right to rectify its Schedule under the 1980 Decision128; and
d. The commitments under the contested subheadings of India's WTO Schedule are invalid
due to "error" within t he meaning of Article 48 of the Vienna Convention on the Law of
Treaties (Vienna Convention).129

122 WT/Let/181; WT/Let/1072.
125 India's first written submission, para. 263(c); second written submission, para. 135 (d).
126 India's first written submission, para. 263(d); second written submission, para. 135 (b).
127 India's first written submission, para. 263(e); second written submission, para. 135 (c).
128 India's second written submission, para. 122; response to Panel question No. 49, para. 43.
129 India's first written submission, para. 263(f); second written submission, para. 135(a).

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, the Republic of Korea, Norway,
Singapore, Chinese Taipei, Türkiye, Ukraine, the United Kingdom, and the United States are reflected
in their executive summaries, provided in accordance with paragraph 26 of the Working Procedures
adopted by the Panel (see Annexes C -1, C-2, C-3, C-4, C-5, C-6, C-7, C-8, C-9, C-10, and C-11).
China, Indonesia, Pakistan , the Russian Federation, and Thailand did not submit written or oral
arguments to the Panel.
6 INTERIM REVIEW
6.1. On 28 October 2022, the Panel issued its Interim Report to the parties. On 18 November 2022,
Japan and India each submitted written requests for the Panel to review aspects of the Interim
Report. On 9 December 2022, each party submitted comments on the other party's requests for
review. Neither party requested an interim review meeting.
6.2. In accordance with Article 15.3 of the DSU, this section of th e Report sets out the Panel's
response to the parties' requests made at the interim review stage, including certain requests
discussed in greater detail below . The numbering of some of the paragraphs and footnotes in the
Final Report has changed from the 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 parties'
arguments with a view to making an objective assessment of the matter before us, in order to make
such findings as will assist the DSB in making the recommendations or rulings provided for in the
relevant covered agreements. The Report therefore does not comprehensively reproduce every
aspect of the parties' arguments, which are more fully reflected in the executive summaries annexed
to this Report.
6.4. Certain of the parties' requests for review of the Interim Report also include requests to modify
or clarify aspects of the Panel's 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 instances (b oth with
respect to the summaries of the parties' arguments and our own reasoning) we have modified the
Report in response to a party's request, but without necessarily using the precise drafting requested
by the parties, or by adjusting paragraphs/footnot es other than those specifically identified by the
parties.
6.5. We have also made typographical and other editorial modifications in the Report, including in
response to the parties' requests for review.
6.6. We address below certain specific issues raised by the parties' requests for review.
6.1 General issues concerning India's WTO tariff commitments
6.7. Japan requests that the description of its arguments in paragraphs 7.14, 7.22, 7.85, and 7.90
of the Interim Report, with respect to the applicability of Article 48 of the Vienna Convention as well
as the relevance of the ITA, be clarified to indicate that they are specific to this dispute and do not
concern as a general matter the applicability of Article 48 or the ITA. 130 India considers that Japan

130 Japan's request for interim review, paras. 3-4, 6, and 20-22. In particular, Japan requests that its
arguments on this point be reflected.

does argue that Artic le 48 of the Vienna Convention does not apply in WTO dispute settlement. 131
Regarding the applicability of Article 48, in our view, Japan's arguments do not appear to be specific
to the circumstances of this dispute but rather appear to implicate the applicability of Article 48 more
generally.132 Nevertheless, Japan is correct that in its submissions it consistently refers to the
applicability issue as pertaining to this dispute. On that basis, and taking into account that we do
not actually address the merits of this issue, we consider it appropriate to accept Japan's request.133
6.8. Japan requests the addition of certain language describing India's arguments concerning the
interpretative relevance of the ITA.134 India does not comment on Japan's request. In our view, the
summary of India's arguments i s sufficient. We note that India's arguments regarding the
interpretative relevance of the ITA are comprehensively addressed in paragraphs 7.75 to 7.79 of
the Interim Report.
6.9. Japan requests certain minor modifications to the Panel's reasoning in paragraph 7.123 of the
Interim Report.135 India does not comment on Japan's request. In our view, the requested changes
might lead to unintended ambiguity and we therefore decline this request.
6.1.1 Whether India's assumption that the transposition of its WTO Sc hedule to the
HS2007 would not expand the scope of its WTO tariff commitments from its ITA
undertakings formed an essential basis of India's consent to be bound by its WTO
Schedule
6.10. Section 7.3.3.2.3.4 of the Report addresses whether India's assumption that the transposition
of its WTO Schedule to the HS2007 would not expand the scope of its WTO tariff commitments from
its ITA undertakings formed an essential basis of its consent to be bound by its WTO Schedule.
6.11. In its request for interim review, India asserts that the Panel's reasoning in paragraphs 7.137
to 7.139 of the Interim Report "inverts rather than addresses India's arguments".136 India considers
that "it is irrelevant what India's conduct signalled to the WTO members (if anything at all)" and
"[w]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".137 India requests the Panel to "provide
further clarity on its reasoning and conclusion, including for the Panel's basis to seek additional
evidence from India regarding the 'conditional basis for accepting the changes to its Schedules' to
confirm the existence of an assumption".138
6.12. Japan considers that the Panel provided a sufficient explanation in the Report as to how it
reached the conclusion that India failed to demonstrate that its assumption (i.e. that the scope of
its tariff commitments in its WTO Schedule would not be expanded beyond the scope of its ITA
undertakings) constituted an essential bas is for its consent. 139 Japan also considers that India's
comment regarding "the lack of flagging by the WTO Secretariat during the transposition process
appears to be relevant to the analysis of the requirements under Article 48(2) of the Vienna
Convention and, therefore, is irrelevant to what the Panel addresses in paragraphs 7.137 to

131 India's comments on Japan's request for interim review, para. 3.
132 We note that Japan's arguments on the issue of applicability of Article 48 are: (i) the Vienna
Convention is not a covered agreement within the meaning of Article 1.1 of the DSU and thus does not fall
within the Panel's terms of reference; (ii) Article 48 is not part of the "customary rules of interpretation" within
the meaning of Article 3.2 of the DSU; (iii) Article 48 does not constitute "relevant rules of international law"
within the meaning of Article 31(3)(c) of the Vienna Convention; (iv) the Panel cannot add to or diminish the
rights and obligations provided in the covered agreements in accordance with Article 3.2 of the DSU; and (v)
the specific procedures under Article XXVIII of the GATT 1994 must be followed when modifying Members'
tariff concessions. (See Japan's second written submission, paras. 32-33 and 36-67; opening statement at the
second meeting of the Panel, paras. 10-12; Japan's closing statement at the second meeting of the Panel,
paras. 6-8; and request for interim review, para. 20). All of Japan's arguments in relation to the DSU would
appear to apply to any invocation of Article 48 in WTO dispute settlement.
133 Since it is not necessary for us to address the merits of this issue, it is also not necessary to include
a full exposition of Japan's arguments on this issue in section 7 of the Report.
134 Japan's request for interim review, para. 12.
135 Japan's request for interim review, para. 29.
136 India's request for interim review, para. 15.
137 India's request for interim review, para. 15.
138 India's request for interim review, para. 16.
139 Japan's comments on India's request for interim review, para. 24.

7.139."140 Japan also notes that the Panel examined that issue at paragraphs 7.179 to 7.196 of the
Interim Report.141
6.13. At the outset, we recall that it is uncontested that the bu rden of proof under Article 48(1) of
the Vienna Convention falls on the party invoking Article 48. With that in mind, we note that
throughout the course of these proceedings, India has argued that the "error" (within the meaning
of Article 48 of the Vienna Convention) that occurred during the transposition of its Schedule was
an expansion of India's WTO tariff commitments beyond those contained in the ITA.142 On this basis,
India has argued that the "assumption" which allegedly constituted an "essential basi s" of India's
consent to be bound by its Schedule was that its WTO tariff commitments would not be expanded
beyond the ITA.143
6.14. Thus, in applying the distinct elements of Article 48(1), we have assessed, inter alia, whether
India has demonstrated that its assumption (i.e. that the transposition of its WTO Schedule to the
HS2007 would not expand the scope of its WTO tariff commitments beyond its ITA undertakings)
formed an essential basis of its consent to be bound by its WTO Schedule .144 Having reviewed the
evidence and arguments adduced by the parties, including with respect to India's conduct at the
time of the transposition, we have concluded that India has failed to meet its burden of proof with
respect to this element of the analysis under Article 48(1). Briefly put, there is no persuasive
evidence before us that, at the time of the transposition process, an essential basis for India's
consent to be bound by its transposed WTO Schedule was that the scope of its WTO tariff
commitments would be no broader than the ITA (with respect to relevant ITC products). In response
to India's request, we have modified paragraph 7.139 of the Interim Report to clarify this.
6.15. Regarding other aspects of India's request, we first note India's assertion t hat we required
"additional evidence" from India "to confirm the existence of an assumption". That is incorrect. In
the first step of our analysis under Article 48(1) (in section 7.3.3.2.3.2), we address the "existence"
of India's assumption and, on balanc e, accept in good faith India's assertion that it held that
assumption at the time of the transposition exercise. As a distinct step, in assessing the third element
of the test under Article 48(1) (in section 7.3.3.2.3.4), we address whether India has 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.
6.16. Regarding India's observation that its conduct during the transposition process is irrelevant
to the question of whether India's stated assumption constituted an essential basis for its consent
to be bound, we disagree. To the contrary, India's actions during the transposition process provide
some indication of w hat constituted India's essential bases for its consent to be bound by its
transposed Schedule.
6.17. We further note that India also argues that what matters in this context is whether India "was
provided with the required flagging of the relevant tariff lines ".145 We disagree. We recall that this
step of the analysis assesses whether India's assumption regarding the scope of the ITA and the
scope of its WTO Schedule constituted an essential basis of its consent to be bound by that Schedule.
Regardless of 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 Secretariat had failed to flag the relevant tariff items, that would
not prove (or even seem to be relevant to) India's assertions regarding its stated assumption being
an essential basis of its consent to be bound.146 Thus, India's argument regarding the alleged failure

140 Japan's comments on India's request for interim review, para. 25.
141 Japan's comments on India's request for interim review, para. 25.
142 See e.g. India's first written submission, para. 40; and second written submission, para. 20.
143 India states that it "assumed at the time of the certification of [India's] 2007 Schedule that the
HS2007 transposition did not expand India's tariff commitments beyond India's obligations under the ITA-1".
(India's first written submission, para. 42). Similarly, India states that "its mistaken assumption was that the
HS2007 did not expand India's tariff commitments beyond India's obligations under the ITA-1. That remains
India's clearly articulated position." (India's opening statement at the second meeting of the Panel, para. 26).
144 See section 7.3.3.2.3.4 below.
145 India's request for interim review, para. 15.
146 India's arguments during interim review might be interpreted as suggesting that its "assumption" for
purposes of Article 48 was that the WTO Secretariat would flag the relevant tariff items. Notwithstanding that
India has not framed its alleged error under Article 48 in this manner, we recall that in the context of applying

of the Secretariat to flag the relevant tariff items is not pertinent to our assessment of this specific
aspect of India's arguments under Article 48(1).
6.1.2 Whether the circumstances were such as to put India on notice of a possible
expansion of its WTO tariff commitments from its ITA undertakings
6.18. Section 7.3.3.3.3.2 of the Report addresses whether the circumstances of the transposition
of India's Schedule were such as t o put India on notice of a possible expansion of its WTO tariff
commitments from its ITA undertakings (one of two elements arising under Article 48(2) of the
Vienna Convention).
6.19. India notes the Panel's conclusion that the WTO Secretariat "fulfilled its obligation to flag the
complex technical transpositions … thereby put[ting] India on notice of the error", notwithstanding
the Panel's observation in paragraph 7.195 of the Interim Report that "both parties … may read
document G/MA/283 differently".147 India states that it is unclear "how a document like G/MA/283
should be read differently by different parties on a contested issue, and yet somehow justifiably
meet its purpose".148 India requests the Panel to "address the contradictions arising out of its legal
reasoning and make suitable modifications".149
6.20. Japan considers that India is misreading the Interim Report and its request should be rejected.
Japan submits that the Panel appropriately notes India's argument regarding the WTO Secretariat's
alleged failure to flag the relevant tariff items. Japan considers that the Panel refers to the parties'
difference in interpretation correctly and explains why the Panel's understanding of document
G/MA/283 is different. Thus, Japan considers that there are no contradic tions in the Interim
Report.150
6.21. While we agree with Japan that the Interim Report sufficiently conveyed the Panel's reasoning
on this issue, we have in any event modified paragraphs 7.194 to 7.195 of the Interim Report in
order to further elucidate that reasoning. For the sake of additional clarity, we consider it useful to
note here that although the parties appear to agree that document G/MA/283 does not flag any tariff
items, the parties are in fact saying two different things when they make their respective assertions.
Japan argues that "in case the contested subheadings were not flagged by the WTO Secretariat, this
fact indicates that there were no changes in the scope of concessions for the co ntested
subheadings".151 Thus, Japan asserts that the WTO Secretariat would only have flagged any tariff
items if there were actual changes in the scope of concessions of those tariff items. That assertion,
however, does not square with the plain language o f the flagging obligation imposed on the WTO
Secretariat – "[a]ny tariff line for which a change in the scope of a concession may have occurred
due to the complex technical nature of the transposition shall be clearly flagged."152 Japan does not
reconcile, on the one hand, its assertion that the Secretariat would only have flagged a tariff item if
there was a change in scope, with, on the other hand, the obligation on the Secretariat to flag any
tariff item for which a change in scope may have occurred. In a ny event, for our purposes, we
understand that when Japan says that the WTO Secretariat did not flag any tariff items, Japan means
that the WTO Secretariat did not flag any tariff items whose product scope had, in fact, changed.
6.22. That assertion by Japan t hat the WTO Secretariat did not flag any tariff items because their
product scope had not actually changed is not the same as India's assertions that the WTO
Secretariat failed to flag any tariff items for which the product scope of the concession may have
changed. In contrast to Japan, India acknowledges that the flagging obligation on the WTO
Secretariat applied to possible changes of scope, but India maintains that, contrary to that
obligation, the WTO Secretariat did not flag any relevant tariff items. Thus, when India says that

Article 48(2), we have indeed assessed India's arguments regarding the WTO Secretariat's alleged failure to
flag the relevant tariff items, and concluded that the WTO Secretariat 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.
147 India's request for interim review, para. 17.
148 India's request for interim review, para. 18.
149 India's request for interim review, para. 18.
150 Japan's comments on India's interim review request, para. 28.
151 Japan's comments on India's interim review request, para. 28.
152 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)

document G/MA/283 does not flag any tariff items, India means that document G/MA/283 does not
flag any tariff items for which the product scope of the concessions may have changed.
6.23. In short, while the parties appear to agree that the WTO Secretariat did not flag any relevant
tariff items, they are in fact making different assertions. In our findings regarding this issue, we
have addressed distinctly: (i) India's arguments regarding whether the Secretariat satisfied its
obligation to flag tariff items for which the product scope of the concession may have changed153;
and (ii) Japan's argument that the Secretariat did not flag any tariff items for which the product
scope of the concession actually changed.154
6.24. India also notes that in paragraph 7.199 of the Interim Report , the Panel "concludes that
India's argument deletes the word 'possible' as contained in Article 48(2) …, thereby requiring the
state to 'be unmistakeably aware of the actual error '".155 India considers that " the word 'possible'
has little to do with the customary international law standard which applies in the present instance
'that no interested party should fail to notice the error ' or indeed a 'possible error'."156 India states
that the "thrust of that 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) ".157 According to India, " that
standard is in the context of the prominence of an error or a possible error, and not in the context
of the range of errors that might be covered in its scope ".158 India requests the Panel to provide
"further clarity" on the conclusions reached by the Panel on this issue.159
6.25. Japan submits that India's request should be rejected. Japan c onsiders that the Panel
accurately summarizes the parties' arguments and addresses India's interpretation of the legal
standard under Article 48, such that there is no need for "further clarity". Japan considers that India's
request seeks to re-argue and further elaborate on its arguments regarding that legal standard.160
6.26. 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."161 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.
6.27. Japan requests the addition of a new paragraph of substantive reasoning by the Panel
following paragraph 7.202 of the Interim Report , addressing India's argument that India's "prior
conduct could not have given rise to any good faith expectations by Japan" and any party would
have known that India did not intend to commit to obligations beyond those in the ITA.162
6.28. India disagrees with the suggested addition and submits that "Japan seeks to write and
rewrite the substantive conclusions arrived at by the Panel".163
6.29. In our view, the arguments raised by India (and referred to by Japan in its request for review)
are not relevant in this section of the Report, where we address whether India was on notice as t o
a potential error. We recall that Article 48(2) of the Vienna Convention contains two distinct
elements: (i) w hether the circumstances were such as to put th e relevant State on notice of a
possible error; and (ii) whether the State in question contributed by its own conduct to the error. In
its first written submission, India raised various arguments in a subsection that addressed, without
distinction, both elements of Article 48(2). In our view, India's arguments that other Members were

153 See paras. 7.178-7.194 below.
154 See para. 7.195 below.
155 India's request for interim review, para. 19.
156 India's request for interim review, para. 19.
157 India's request for interim review, para. 19.
158 India's request for interim review, para. 19.
159 India's request for interim review, para. 20.
160 Japan's comments on India's request for interim review, paras. 29-31.
161 India's second written submission, para. 30. See also India's first written submission, para. 56.
162 Japan's request for interim review, paras. 35-36. Japan suggests that the Panel find that "it is not
relevant whether Japan was aware … because what is at issue is whether the circumstances were such as to
put India on notice of the alleged error" and not whether Japan was aware of India's alleged intentions. (Ibid.
para. 36).
163 India's comments on Japan's request for interim review, para. 6.

aware of India's intentions at the time of the transposition are not relevant to the question of whether
the circumstances were such as to put India on notice . Rather, these arguments concern whether
India contributed by its own conduct to the error, and we have discussed them in the relevant section
of the Report addressing that distinct issue.164 We therefore decline Japan's request.165
6.2 Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the
GATT 1994
6.2.1 Tariff items 8517.12.11, 8517.12.19, and 8517.12.90 of India's First Schedule
6.30. India submits that the description of the parties' arguments regarding the tariff treatment
accorded to products classified under tariff item 8517.12 is "not accurate when viewed at the 8-digit
HS level".166 India requests the deletion of language in paragraph 7.268 of the Interim Report to
the effect that it is uncontested that at the Panel's establishment, India's First Schedule imposed a
standard duty rate of 20% on products classified under tariff item 8517.12. India suggests that a
more accurate reflection of the parties' arguments is that it is uncontested that India's First Schedule
imposed a standard duty rate of 20% on products classified under tariff item s 8517.12.11 and
8517.12.19, and that those tariff items "would come under the tariff item 8517.12".167
6.31. Japan requests the Panel to reject India's comments because the language in the Interim
Report correctly describes the facts.168
6.32. We recall that the parties agree that at the time of the Panel's establishment, India's First
Schedule imposed a standard duty rate of 20% on products classified under tariff items 8517.12.11,
8517.12.19 and 8517.12.90 (all of which fall under tariff item 8517.12). 169 Therefore, paragraph
7.268 of the Interim Report accurately reflects the parties' arguments. Moreover, that same
paragraph also indicates that the tariff treatment accorded to products under tariff item 8517.12.90
differed from that set forth in the First Schedule, as products falling thereunder were exempted from
customs duties. This information is also uncontested by the parties.170 We therefore decline to make
the changes requested by India.
6.2.2 Tariff items 8517.61.00, 8517.70.10, and 8517.70.90 of India's First Schedule
6.33. Japan requests us to modify certain factual findings pertaining to Serial No. 425 of Notification
No. 50/2017.171 On 14 December 2022, we sent a question to the parties concerning this issue. On
21 December 2022, the parties responded to that question. On 11 January 2023, Japan commented
on India's response to that question. India indicated that it had no comments on Japan's response.
6.34. We understand that, in light of the parties' responses to our question, a nd on the basis of
Notification No. 02/2022, Serial No. 425 of Notification No. 50/2017 was omitted from that
Notification pursuant to Notification No. 02/2022. 172 Therefore, with effect from 1 February 2022,
the tariff treatment applicable to base station controllers, base transreceiver stations, and antenna
systems, as well as parts of those products, pursuant to that Serial No., is no longer applicable. 173
We have accordingly modified relevant paragraphs in sections 7.4.3 and 7.4.5.

164 See paras. 7.211-7.212 below.
165 To the extent that either party considers that other Members' awareness of India's intentions might
be relevant to the question of whether the circumstances were such as to put India on notice, we disagree. In
our view, other Members' awareness of India's intentions regarding the transposition process does not speak to
whether the circumstances of the transposition put India on notice of a possible expansion of its tariff
concessions beyond the commitments undertaken by India in the ITA.
166 India's request for interim review, para. 21.
167 India's request for interim review, para. 21.
168 Japan's comments on India's request for interim review, para. 33.
169 Japan's first written submission, para. 38; India's first written submission, para. 131.
170 Japan's first written submission, para. 39; India's response to Panel question No. 75(a), para. 58.
171 Japan's request for interim review, paras. 41-45.
172 India's response to Panel question No. 91; Japan's comments on India's response to Panel question
No. 91, para. 8.
173 Notification No. 02/2022, (Exhibit JPN-77).

6.2.3 Japan's additional claim under Article II:1(a) of the GATT 1994
6.35. Japan requests that certain language be added to the summary of its arguments in paragraph
7.422 of the Interim Report, regarding "why Japan believes the measures at issue lack predictability
and foreseeability", in order "to make the summary of Japan's arguments more comprehensive".174
India does not comment on Japan's request. We note that almost identical language to that which
Japan wishes to have included in the summary of its arguments already appears in paragraph 7.427
of the Interim Report . In the interest of brevity, we do not consider it necessary to duplicate this
aspect of Japan's arguments in the Report and therefore decline this request.
6.36. Japan requests the removal of aspects of the Panel's findings and observations in paragraph
7.441, and footnote 1024 thereto, of the Interim Report in order "to accurately reflect Japan's
claim which focuses on the specific instances where the products concerned are exempted from
applicable duties".175 India "disagrees with the deletion suggested by Japan", which in India's view
seek to replace the Panel's findings and conclusions with Japan's own conclusions.176 We consider it
appropriate to make the observations which Japan requests us to remove. We therefore decline this
request.
7 FINDINGS
7.1 Introduction
7.1. Japan claims that India is acting inconsistently with Article s II:1(a) and (b) of the GATT 1994
by imposing tariff treatment on certain information communications technology (ICT) products that
is inconsistent with the commitments inscribed in India's WTO Schedule. 177 Japan specifically
challenges the tariff treatment accorded by India to products that, at the time of the Panel's
establishment, fell under the following tariff items178 of the First Schedule in India's domestic
customs regime: 8517.12.11; 8517.12.19; 8517.12.90; 8517.61.00; 8517.62.90; and 8517.70.10;
and 8517.70.90. Japan considers that such tariff tr eatment is provided through India's domestic
customs regime, comprising in particular India's First Schedule and various customs notifications.
Essentially, Japan submits that the tariff treatment provided by India is inconsistent with India's
WTO Schedule because: (i) duties applied by India to certain such products are in excess of the
duty-free rates that India is obliged to provide under its WTO Schedule of Concessions; and (ii) duty-
free treatment that is accorded to certain products is subject to conditions that are not set forth in
India's WTO Schedule of Concessions. In addition, Japan argues that the measures at issue in this
dispute give rise "to a lack of foreseeability for traders operating in the marketplace, which has
serious effects on competition" , in a manner that is inconsistent with Article II:1(a) of the GATT
1994.179
7.2. India argues that when India's WTO Schedule was transposed from the HS2002 to the HS2007,
"an error by India and a likely oversight by other [WTO] Members" occurred, such that India's
"schedule of concessions was certified in error". 180 India argues that it had "communicated to the
wider WTO membership previously that it did not intend to expand its tariff commitments beyond
those contained in the ITA" and that "it would not have agreed to the certification of its schedule of
concessions if it were aware that such certification would effectively expand India's commitments
beyond those co ntained in the ITA []".181 India submits that, pursuant to Article 48 of the Vienna
Convention, the tariff commitments for these tariff items in its WTO Schedule were certified in error,
and consequently are both invalid and unbound. 182 India refers to the Le gal Opinion of Professor

174 Japan's request for interim review, para. 64.
175 Japan's request for interim review, para. 70. Japan "suggests that the panel's findings therefore
focus on the specific circumstances of the dispute rather than referring to India's system of customs
notifications in general". (Ibid.).
176 India's comments on Japan's request for interim review, para. 7.
178 As noted above, we use the term "tariff item" to refer to subheadings and tariff lines set forth in
India's WTO Schedule and First Schedule. Where useful for the purposes of clarity, we use the terms
"subheading" and "tariff line" as per the HS nomenclature. (See fn 72 to para. 2.1 above).
179 Japan's second written submission, para. 19.
180 India's second written submission, para. 1.
181 India's second written submission, paras. 3 and 25. See also India's first written submission,
para. 40.
182 India's first written submission, paras. 73-74.

Waibel who asserts that the WTO Secretariat "bears at least some of the responsibility for the
errors".183 India also asserts that the complainant violated paragraph 3 of the GATT Decision of 26
March 1980 on Procedures for Modification and Rectification of Schedules of Tariff Concessions (1980
Decision) by objecting to India's request to rectify its Schedule, through that Decision.184 India also
argues that, "[a]ssuming without admitting that India's 2007 Schedule is not in error, … the applied
rates of ordinary customs duty on products of Japan are not in excess " of the rates set forth in
India's WTO Schedule, because imported "products at issue from Japan into India [are] subject to
NIL duty pursuant to the Comprehensive Economic Pa rtnership Agreement " between Japan and
India.185 Additionally, with respect to certain specific aspects of Japan's claims, India claims that
Japan has failed to adequately identify the products at issue. 186 India also argues that a number of
the conditions c hallenged by Japan are not of a kind that are required to be inscribed in a
WTO Schedule.187
7.3. We proceed with our analysis in several steps. We first describe the legal standard under
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 relevanc e of the ITA; (ii) India's plea of
error under Article 48 of the Vienna Convention; and (iii) India's arguments concerning its
rectification request under the 1980 Decision. Having addressed these general issues, we then turn
to assess whether India is acting inconsistently with Articles II:1(a) and (b) with respect to the tariff
items at issue. We shall then address a third claim raised by Japan under Article II:1(a). Finally, we
shall turn to India's arguments that Notification No. 69/2011, implementing I ndia's commitments
under the India -Japan Comprehensive Economic Partnership Agreement (CEPA), brings India into
consistency with its WTO obligations.
7.2 The legal standard under 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 relat ing to any Member, which
are the products of territories of other Members, shall, on their importation into the
territory to which the Schedule relates, and subject to the terms, conditions or
qualifications set forth in the Schedule, be exempt from ordina ry customs duties in
excess of those set forth and provided therein. Such products shall also be exempt from
all other duties or charges of any kind imposed on or in connection with the importation
in excess of those imposed on the date of this Agreement o r those directly and
mandatorily required to be imposed thereafter by legislation in force in the importing
territory on that date.
7.5. Previous panels have found that "Article II generally … protects expectations of a competitive
relationship (or conditions of competition) and not expectations of any particular trade volume." 188
Moreover, the Appellate Body has stated that Article II:1 "serves the important function of
preventing Members from applying duties that exceed the bound rates agreed to in tariff negotiations
and incorporated into their Schedules of Concessions".189
7.6. We agree with prior interpretations of Article s II:1(a) and (b) such that, while paragraph (a)
of Article II:1 "contains a general prohibition against according treatment less favourable to imports

183 India's response to Panel question No. 60(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on
Error, (Exhibit IND-76), para. 39).
184 India's second written submission, para. 116.
185 India's second written submission, para. 12.
186 See e.g. India's response to Panel question No. 75, para. 60, and No. 83, para. 72.
187 See e.g. India's response to Panel question No. 69, paras. 47-49.
188 Panel Report, Russia – Tariff Treatment, para. 7.18 (referring to Panel Reports, EC – IT Products,
para. 7.757).
189 Appellate Body Report, Colombia – Textiles, para. 5.34 (referring to Appellate Body Report,

than that provided for in a Member's Schedule"190, paragraph (b) "prohibits a specific kind of practice
that will always be inconsistent with paragraph (a) : that is, the application of ordinary customs
duties in excess of those provided for in the Schedule."191 Similarly, where a measure is inconsistent
with Article II:1(b) , first sentence, on the ground that the tariff treatment is subject to "terms,
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).192 Thus, in a situation where a measure is challenged under both Article II:1(a) and
Article II:1 (b), first sentence, it is logical to begin the analysis by assessing the measure's
consistency with Article II:1(b) since the language of Article II:1(b), first sentence, "is more specific
and germane".193
7.7. Applying Article II:1(b) , first sentence, in the context of this dispute entails comparing the
treatment that India is obligated to provide in its WTO Schedule with the tariff treatment that India
accords to the products at issue under the challenged measures. 194 If we determine that India
imposes ordinary customs duties 195 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).196
7.8. We further note that, in response to a question from the Panel, both parties agree that the
reference in Article II:1(b) , first sentence, to "terms, conditions or qualifications" does not extend
to general conditions for importation.197 Indeed, in our view, to the extent that a Member imposes
a general condition on importation (i.e. a condition that must be satisfied in order for the product to
enter the market), this would not necessarily mean that such condition constitutes a term, condition,
or qual ification that must be met in order to receive certain tariff treatment. Such a general
condition, where it is not tied to tariff treatment, do es not appear to be a term, condition , or
qualification, that must be inscribed in a Member's Schedule, pursuant to Article II:1(b) , first
sentence. Where, however, a condition is tied to certain tariff treatment, such that a relevant product
must satisfy the condition in order to be eligible for the tariff treatment provided for in a Member's
Schedule, Article II:1(b), first sentence, requires such condition to be inscribed in the Member's
Schedule.
7.9. Pursuant to Article II:7 of the GATT 1994, Members' WTO Schedules of concessions are an
integral part of the GATT 1994. They are also, therefore, integral parts of the W TO Agreement,
binding on all Members, pursuant to Article II:2 of the WTO Agreement. Moreover, they form part
of the covered agreements listed in Appendix 1 of the DSU. Pursuant to Article 1.2 of the DSU, the
rules and procedures of the DSU apply to such covered agreements. Consequently, Article 3.2 of the

190 Appellate Body Report, Argentina – Textiles and Apparel, para. 45.
191 Appellate Body Report, Argentina – Textiles and Apparel, para. 45.
193 See e.g. Panel Report, Russia – Tariff Treatment, para. 7.48 (referring to Appellate Body Report,
194 In assessing claims under Articles II:1(a) and II:1(b), previous panels have examined whether the
complainant had established the following three elements: (a) the treatment accorded to the products at issue
in the relevant schedule; (b) the treatment accorded to the products at issue under the challenged measures
at issue; and (c) whether the challenged measures result in less favourable treatment of the 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).
195 The parties do not dispute that where the tariff treatment at issue in this dispute concerns "duties"
applied by India, such duties constitute "ordinary customs duties" within the 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.
196 We also note that it is not necessary to find that all products falling under a specific tariff item are
treated inconsistently with the WTO Schedule, to conclude that India is acting inconsistently with Article
II:1(b), 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).
197 See parties' responses to Panel question No. 69.

DSU, which states that the provisions of the covered agreements are to be clarified "in accordance
with customary rules of interpretation of public international law ", applies to the interpretation of
Members' WTO Schedules and the concessions set out therein. 198 When interpreting Members'
Schedules in accordance with customary rules of treaty interpretation, the Harmonized System (HS)
and its Explanatory Notes have been found to constitute relevant "context" pursuant to Article 31(1)
of the Vienna Convention.199 However, the relevance of the HS depends on the specific interpretative
question at issue, including whether the relevant concessions were based on the HS.200
7.10. To our understanding, the foregoing inte rpretative elements of the legal standard under
Article II:1(a) and Article II:1(b), first sentence, are uncontested by the parties. We turn next to
address certain contested issues pertaining to the scope and content of India's WTO tariff
commitments.
7.3 General issues concerning India's WTO tariff commitments
7.3.1 Overview
7.11. As explained above, under Article s II:1(a) and (b) of the GATT 1994, WTO Members are
obligated to provide tariff treatment that is in accordance with the commitments set forth in "the
appropriate Schedule annexed to [the GATT 1994]". Thus, to assess whether a Member is acting
inconsistently with Article s II:1(a) and (b), a panel must compare a Member's obligations as set
forth in the relevant WTO Schedule to the tariff treatment applied by that Member under the
measures at issue.201
7.12. In the present dispute, it is uncontested that the "appropriate Schedule" for the purpose of
assessing India's compliance with Articles II:1(a) and (b) is India's WTO Schedule. However, the
parties disagree over the content of India's WTO tariff commitments.
7.13. Throughout the course of these proceedings India has argued that: (i) the relevant binding
tariff commitments are set forth in the Information Technology Agreement (ITA) and those
commitments are static and did not change due to their incorporation into India's WTO Schedule202;
(ii) pursuant to Article 48 of the Vienna Convention, aspects of India's WTO Schedule are invalid
(and the relevant tariff commitments unbound) as a consequence of an error on the part of Ind ia
during the transposition of the Schedule from the HS2002 to the HS2007 203; and (iii) the errors in
India's WTO Schedule are of a formal nature and were therefore capable of rectification pursuant to
the 1980 Decision.204

198 Along these lines, the Appellate Body found in EC – Computer Equipment that Members' Schedules of
concessions must be interpreted in accordance with the general rules of treaty interpretation set out in the
Vienna Convention. The Appellate Body stated 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 result 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 conce ssion
are the general rules of treaty interpretation set out in the Vienna Convention.
(Appellate Body Report, EC – Computer Equipment, para. 84. See also Appellate Body Report,
EC – Export Subsidies on Sugar, para. 167; and Panel Reports, EC – Chicken Cuts, para. 7.87)
199 See Appellate Body Reports, EC – Computer Equipment, para. 89; EC – Chicken Cuts,
paras. 195-197; and China – Auto Parts, paras. 146 and 149.
200 See e.g. Panel Reports, EC – IT Products, para. 7.443.
201 We understand that tariff items for which a Member has not made a tariff binding need not be
included in the WTO Schedule. (See e.g. Japan's response to Panel question No. 67, para. 28).
202 See e.g. India's opening statement at the second meeting of the Panel, para. 48.
203 See e.g. India's first written submission, paras. 38-74.
204 See e.g. India's response to Panel question No. 49, para. 43. In India's view, Japan's objection to
India's request to rectify its Schedule under the 1980 Decision was unfounded in law, inconsistent with the
1980 Decision, and impeded India's right to rectify its Schedule, and India requests the Panel to find
accordingly.

7.14. Japan, 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 static205; (ii) Article 48
of the Vienna Convention is not applicable in this dispute, and, in any event, 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 this dispute 206; and (iii) there is no basis for the Panel to make the
findings requested by India regarding Japan's objection to India's rectification request under the
1980 Decision.207
7.15. We proceed by addressing, in turn, the parties' arguments concerning: (i) the ITA;
(ii) Article 48 of the Vienna Convention; and (iii) India's rectification request under the 1980
Decision.
7.3.2 The relevance of the ITA
7.3.2.1 Introduction
7.16. As described in section 2.3 above, on 13 December 1996 a number of WTO Members
concluded the ITA. India joined the ITA on 26 March 1997. The ITA participants agreed among
themselves to bind and eliminate customs duties and other duties and charges of any kind, within
the meaning of Article II:1(b) of the GATT 1994, with respect to certain products. 208 The Annex to
the ITA requires that participants "shall incorporate" such measures into their Schedules annexed to
the GATT 1994, and indicates that their Schedules should be modified in accordance with the
1980 Decision.209 India, as a participant in the ITA, proposed a modification to its WTO Schedule,
which was circulated on 2 April 1997 for review by all WTO Members, pursuant to the 1980 Decision.
These changes to India's Schedule, which were based on the HS1996, were certified on 2 October
1997.210
7.17. In section III (titled "Factual Background") of its first written submission in this dispute, Japan,
inter alia , describes cert ain aspects of India's participation in the ITA. Japan notes the ITA's
conclusion in December 1996, India's participation in the ITA, and the requirement under paragraph
2 of the ITA for all participants to bind and eliminate customs duties and other dutie s and charges
within the meaning of Article II:1(b) of the GATT 1994 on all products identified in Attachments A
and B.211 Japan further notes that, pursuant to paragraph 2 of the ITA Annex, India submitted a
proposed modification of its WTO Schedule, and that modification was certified on 2 October 1997.212
Japan also refers to two subsequent transpositions of India's WTO Schedule , including the
transposition of India's WTO Schedule to the HS2007. 213 Thereafter, in setting forth its legal
argument underpinning its claims that India is acting inconsistently with Article s II:1(a) and (b) of
the GATT 1994, Japan does not refer to the ITA, but compares India's commitments in its present
WTO Schedule to the tariff treatment provided by India to certain imported pro ducts pursuant to
India's First Schedule and relevant customs notifications.214
7.18. In its first written submission, India states that Japan suggested that India's concessions were
based on the ITA, "although without actually establishing that the products at issue were covered
under the ITA[]".215 India 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

205 See e.g. Japan's opening statement at the first meeting of the Panel, paras. 18-24; second written
submission, paras. 209-263; and opening statement at the second meeting of the Panel, para. 24.
206 See e.g. Japan's opening statement at the first meeting of the Panel, paras. 25-42; and second
written submission, paras. 31-144.
207 See e.g. Japan's second written submission, paras. 169-179.
208 The relevant products are identified in the ITA as "(a) all products classified (or classifiable) with
[HS1996] headings listed in Attachment A to the Annex [to the ITA]; and (b) all products specified in
Attachment B to the Annex [to the ITA], whether or not they are included in Attachment A". (ITA,
WT/MIN(96)/16, para. 2).
209 Paragraphs 1 and 2 of the Annex to the ITA. See also 1980 Decision, L/4962.
210 WT/Let/181.
211 Japan's first written submission, paras. 14-16.
212 Japan's first written submission, para. 16.
213 Japan's first written submission, para. 17.
214 Japan's first written submission, section IV.
215 India's first written submission, para. 75.

the objections against India's rectification request under the 1980 Decision were without merit.216
India further states that "the burden of proof is on Japan to prima facie demonstrate that the
products at issue were covered by the ITA[]" and "Japan does not even offer a hint of which entries
in the ITA[] allegedly covered the products at issue".217 India devotes approximately 29 pages218 of
its first written submission to demonstrating that the products at issue are not covered by the ITA.219
A significant component of India's argument is its view that "the intention of the parties [to the ITA]
… was not to include the vast range of information technology products which would be developed
in the future".220
7.19. In response to questions from the Panel, Japan clarified that its claim is under Articles II:1(a)
and (b) of the GATT 1994, and that " [i]n the present case, the concessions at issue are those
included in the currently certified schedule of India", and that while the ITA " may be relevant context
for the purposes of interpreting concessions included in a schedule of concessions … this may not be
the case with regard to the Schedule at issue in the present case which is not based on the same
version of the HS nomenclature than the one on which the ITA[] was based."221 According to Japan,
"India itself has not explained what impact the interpretation of the provisions of the ITA [] would
have upon the scope of its concessions under I ndia's Schedule at issue, nor has it explained how
this could refute Japan's claims of inconsistencies with Article II of the GATT 1994."222
7.20. In response to questions from the Panel, India further clarified its views regarding the
relevance of the ITA in 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 no t affect or change
India's obligations under the ITA[]".223 India elaborated that "the ITA[] did not include the range of
additional products that could be developed in the future".224 India further considered this relevant
to the present dispute, because " Japan develops arguments in relation to sub -headings 8517.12,
8517.61, 8517.62, and 8517.70, which presently relate to products that were not covered by the
ITA[] as they were beyond the scope of commitments made under the ITA []".225 India argued that
its "obligations under the ITA[] are distinguishable and 'separate from' the commitments under the
contested sub-headings in the 2007 Schedule", and "India has made no commitments regarding the
contested products since such contested products are not covered under the ITA[]".226
7.21. Throughout the course of these dispute settlement proceedings, the parties continued to
exchange views on the relevance of the ITA to this dispute. In India's view, Japan itself asserts that
the "source of India's commitments for the products at issue is the ITA []" and Japan's claims must
fail because "the products at issue are not covered by the ITA[]".227 India considers that "a resolution
of this issue lies in interpreting the scope of ITA[] which is relevant to the present dispute in various
ways".228 In response to a question from the Panel regarding the legal relevance of the ITA, India
responded that: (i) "[t]he ITA[] is an instrument that is critical to this dispute and applies in different
ways for Japan and India. Indeed, it is instrumental for analysing India's claim under Article 48 of
the VCLT"; and (ii) "the ITA also serves as an important comparative benchmark for determining if

216 India's first written submission, para. 93.
217 India's first written submission, para. 109.
218 See India's first written submission, paras. 75-194.
219 India's first written submission, para. 109.
220 India's first written submission, para. 85. In addition to referring to the ordinary meaning of the text
of the ITA, India considers that subsequent practice indicates that the scope of the ITA does not extend to new
products. (Ibid. paras. 86-106). India highlights, in particular, that the participants in the ITA "have agreed
that the product scope of the ITA[] does not adequately cover the rapid growth of information technology
products, and therefore an expansion of the ITA[] was required in order to liberalize the IT product sector".
(Ibid. para. 92 (underlining original)).
221 Japan's response to Panel question No. 3, para. 11.
222 Japan's response to Panel question No. 3, para. 11.
223 India's response to Panel question No. 1, para. 1.
224 India's response to Panel question No. 1, para. 5.
225 India's response to Panel question No. 1, para. 7.
226 India's response to Panel question No. 1, para. 8.
227 India's opening statement at the first meeting of the Panel, para. 32. See also India's first written
228 India's opening statement at the first meeting of the Panel, para. 32.

the draft rectification req uest to the 2007 Schedule submitted by India in 2018 was of a purely
formal character".229
7.22. Japan for its part, continues to insist that "by referring to the ITA[] as being the source of
static obligations with respect to information and communications technology products, which would
not cover the Products Concerned, India keeps on equating the ITA[] and the tariff concessions as
included in its Schedule". 230 Japan insists that "the source of India's obligations is the GATT 1994
and its Schedule" and the ITA "is not the source of India's obligations at issue in this dispute". 231
Japan considers that the ITA is not a covered agreement and "the Panel has no jurisdiction to clarify
the rights and obligations of WTO Members under the ITA[]".232 Japan further considers that, in this
dispute, neither the ITA nor the ITA Expansion can serve as relevant context for interpretation of
India's WTO Schedule, pursuant to Article 31(2)(b) of the Vienna Convention, nor are they
supplementary means of interpretation pursuant to Article 32 of the Vienna Convention. 233 Japan
also considers that India has not explained what effect the ITA and the ITA Expansion should have
on the Panel's interpretation of India's WTO Schedule. 234 In Japan's view, they "have no legal
relevance to the interpretation of India's Schedule".235
7.23. The parties' (and in particular India's) references to the ITA raise several threshold issues
concerning certain of India's WTO tariff commitments. Specifically, the parties appear to contest
whether certain of India's WTO tariff commitments in this dispute are set forth in the ITA, as well as
whether the ITA limits the scope of the tariff commitments set forth in India's WTO Schedule
(including with respect to new products that only came into existence after the 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 Article s 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.
7.3.2.2 Whether the ITA sets forth India's legal obligations
7.3.2.2.1 Main arguments of the parties
7.25. India argues that the legal issue that lies at "the heart of this dispute" is whether the products
identified by Japan are covered under the ITA.236 India states that "it is clear that the parties to the
dispute agree that the source of the purported commitments could only be the ITA[]."237 India states
that it "consider[s] itself bound by the obligations under the ITA[]" but argues that those obligations
are "separate from the commitments under the contested sub-headings that were certified in error
via the HS2007 transposition".238
7.26. Japan argues that "India errs by referring to the ITA [] and its obligations as those which
should be interpreted for the purposes of this dispute", because "[t]he relevant obligations are those
laid down in Articles II:1(a) and II:1(b) of the GATT 1994 and India's Schedule which is incorporated
into the GATT 1994 through Article II:7 of the GATT 1994 ".239 Japan considers that "the ITA[] and
its attachments are legally distinct from the concessions made by India in its Schedule, and it is only
India's Schedule that must be examined in order to determine whether India violates its obligations
under Articles II:1(a) and II:1(b) of the GATT 1994".240 Japan further considers that the ITA is not

229 India's response to Panel question No. 42, paras. 24 and 26. See also India's second written
submission, para. 44.
230 Japan's opening statement at the second meeting of the Panel, para. 24.
231 Japan's opening statement at the second meeting of the Panel, para. 24.
232 Japan's opening statement at the second meeting of the Panel, para. 24. See also Japan's second
written submission, paras. 190-196; response to Panel question No. 2, paras. 2-7; and comment on India's
response to Panel question No. 61, para. 37.
233 Japan's second written submission, paras. 199 and 203.
234 Japan's second written submission, para. 207.
235 Japan's second written submission, para. 197.
236 India's first written submission, para. 8.
237 India's opening statement at the first meeting of the Panel, para. 33.
238 India's first written submission, para. 75.
239 Japan's second written submission, para. 190.
240 Japan's opening statement at the second meeting of the Panel, para. 24.

a covered agreement within the meaning of the DSU and the Panel has no jurisdiction to interpret
the ITA.241
7.3.2.2.2 Main arguments of the third parties
7.27. Brazil considers that the ITA "is not a covered agreement within the meaning of Article 1.1 of
the DSU, and, therefore, the Panel has no authority to interpret the ITA[]".242 In Brazil's view, "the
main issue of the present dispute concerns the correct inte rpretation of India's Schedule, not the
interpretation of the ITA[]."243
7.28. Canada argues that the ITA "is not a 'covered agreement' within the meaning of Article 1.1
of the DSU as it is not an agreement listed in Appendix 1 to the DSU". 244 Canada considers 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".245 Canada considers that the ITA "may be considered as relevant context within the
meaning of Article 31 of the Vienna Convention for the purposes of interpreting the terms of the
concessions at issue, but the ITA[] is not itself the subject of the Panel's analysis in this case."246
7.29. The European Union submits that, because the ITA is not identified in the list of covered
agreements set forth in Appendix 1 to the DSU, pursuant to Article 1.1 of the DSU the ITA is not a
"covered agreement" within the meaning of the DSU.247 According to the European Union, this Panel
is only empowered to apply, "and therefore to interpret", the covered agreements.248 The European
Union clarifies, however, that "[t] his does not exclude that in the interpretation and application of
these covered agreements, the Panel may use the ITA [] as context within the meaning of
Article 31(2)(b) VCLT".249 The European Union further submits that the legal obligations at issue are
"Article II:1 of the GATT 1994, and India's Schedules and the tariff b indings provided for in those
schedules".250 The European Union submits that the ITA "is not the source of India's legal obligations
relevant in the present cases".251
7.30. Korea "is of the view that the agreement at issue in this dispute is not the ITA [], but t he
GATT 1994."252 Korea considers that the ITA "may be used as 'context' to interpret India 's tariff
concessions at issue in this dispute".253
7.31. Norway submits that the ITA is not a "covered agreement" within the meaning of Article 1.1
of the DSU, but could se rve as relevant context within the meaning of Article 31(2)(b) of the
Vienna Convention. For Norway, the Panel's main task in this dispute is to interpret India's
commitments contained in its WTO Schedule.254
7.32. Chinese Taipei argues that the ITA is not a cove red agreement within the meaning of
Article 1.1 of the DSU and consequently there is no basis for the Panel to interpret the ITA in
accordance with the rules of the Vienna Convention.255 Chinese Taipei considers that "the Panel must

241 Japan's opening statement at the first meeting of the Panel, para. 24; second written submission,
paras. 191-195.
242 Brazil's third-party response to Panel question No. 1, para. 2.
243 Brazil's third-party response to Panel question No. 1, para. 2.
244 Canada's third-party response to Panel question No. 1, para. 1.
245 Canada's third-party response to Panel question No. 1, para. 2.
246 Canada's third-party response to Panel question No. 1, para. 2.
247 European Union's third-party response to Panel question No. 1, para. 1.
248 European Union's third-party response to Panel question No. 1, para. 2.
249 European Union's third-party response to Panel question No. 1, para. 2.
250 European Union's third-party response to Panel question No. 2, para. 10. See also European Union's
third-party response to Panel question No. 15, paras. 1-2.
251 European Union's third-party response to Panel question No. 2, para. 10. (emphasis original)
252 Korea's third-party response to Panel question No. 3, p. 1.
253 Korea's third-party response to Panel question No. 3, p. 1.
254 Norway's third-party statement, para. 2.
255 Chinese Taipei's third-party response to Panel question No. 1, para. 2, incorporating Chinese Taipei's
response to panel question No. 2 in India – Tariffs on ICT Products (Chinese Taipei) (DS588). (In its responses
of 20 September 2021 to questions from the Panel to the third parties before the first substantive meeting,
Chinese Taipei responded to Panel question Nos. 1 to 12 by stating "Please see our response to this question
posed to the parties in DS588". In a communication to the parties in this dispute, the Panel confirmed its
understanding that Chinese Taipei's responses to the Panel's questions as a party in DS588 are on the record

interpret the relevant tariff concessions in India's Schedule in accordance with the rules of the
Vienna Convention", and that "India's tariff concessions made pursuant to the ITA[] are properly
inscribed in its currently certified Schedule of Concessions reflecting the 2007 HS nomenclature".256
According to Chinese Taipei, the ITA "formed the basis for India to enter into the commitments to
provide duty-free treatment to products falling under the tariff conces sions at issue, and, as such,
constitutes an important part of the factual background in this dispute" .257 Chinese Taipei further
states, however, that the "relevant treaty for the interpretation of the tariff concessions at issue in
this dispute is India's currently certified Schedule of Concessions reflecting the 2007
HS nomenclature".258
7.33. Türkiye submits that the claims raised in this dispute "have to be analysed with a view to
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 w ith respect to the interpretation of the tariff
concessions made by WTO Members pursuant to the ITA".259
7.34. Ukraine notes that "ITA concessions are included in the participants ' WTO schedules of
concessions and become part of that Member's obligations under the WTO covered agreements".260
Ukraine argues that "taking into account the connection between ITA [] and the GATT 1994, in
Ukraine's view, the ITA[] is a 'covered agreement' within the meaning of Article 1.1 of the DSU."261
7.35. The United States considers that the ITA is not a covered agreement under the DSU and,
pursuant to its terms of reference, the Panel "is not tasked with interpreting the ITA[] in this
dispute".262 According to the United States, "the Panel is tasked with interpreting the rel evant
provisions of the GATT 1994, including the tariff concessions in India 's Schedule, rather than the
ITA[]".263 The United States therefore considers that "India is mistaken that its commitments are
'under the ITA[]'".264
7.3.2.2.3 Panel's assessment
7.36. In our view, the parties' arguments raise the question of whether certain of India's legal
obligations, at issue in this dispute, are set forth in the ITA.
7.37. We recall that Japan's claim in this dispute is that India is acting inconsistently with its
obligations under Articles II:1(a) and (b) of the GATT 1994.265 Japan has not, in its panel request or
in any of its submissions, articulated any claim based on a provision of the ITA. We recognize that
Japan described the ITA, in its first written submission, as relevant factual background to explain
the history of India's tariff commitments at issue in this dispute. However, we do not read Japan's
references to the ITA as articulating any claim of inconsistency or requesting us to find that India is
acting inconsistently wit h the ITA. Thus, in our view, Japan has not asserted that India is acting
inconsistently with the ITA nor does Japan request us to make any such finding.266

in this dispute, DS584. The parties did not object or otherwise comment. (See Japan's communication (7 July
2022); and India's communication (7 July 2022)).
256 Chinese Taipei's third-party response to Panel question No. 1, para. 1, and No. 2, para. 2
incorporating Chinese Taipei's response to panel question No. 2, para. 4, and No. 3, para. 7, in India – Tariffs
on ICT Products (Chinese Taipei) (DS588).
257 Chinese Taipei's third-party response to Panel question No. 2, para. 2, incorporating Chinese Taipei's
response to panel question No. 3, para. 11, in India – Tariffs on ICT Products (Chinese Taipei) (DS588).
258 Chinese Taipei's third-party response to Panel question No. 2, para. 2, incorporating Chinese Taipei's
response to panel question No. 3, para. 11, in India – Tariffs on ICT Products (Chinese Taipei) (DS588).
259 Türkiye's third-party submission, paras. 2, 4 and 9.
260 Ukraine's third-party response to Panel question No. 1, para. 8.
261 Ukraine's third-party response to Panel question No. 1, para. 9.
262 United States' third-party response to Panel question No. 1, paras. 2-3.
263 United States' third-party response to Panel question No. 1, para. 3.
264 United States' third-party response to Panel question No. 5, para. 9.
265 Japan's first written submission, paras. 3-142. See also Japan's second written submission,
266 Indeed, to the extent that such a claim was brought, we struggle to see how it would fall within our
terms of reference, read in light of Japan's panel request in this dispute.

7.38. As described above267, 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 does not refer to the ITA, nor does any other
provision in the GAT T 1994. We therefore see no textual link in the GATT 1994 indicating that
Members' legal obligations, for the purposes of applying 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 1 994, with
respect to the following: (a) all products classified (or classifiable) with Harmonized
System (1996) ("HS") headings listed in Attachment A to the Annex to this Declaration;
and (b) all products specified in Attachment B to the Annex to this 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
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 Article s II:1(a) and (b) of the GATT 1994 if they are incorporated into Members'
WTO Schedules. Once incorporated into a Member's WTO Schedule, such concessions shall be
treated no differently to any other concession contained in that Schedule. Consequently, it is the
WTO Schedule of each ITA participant that sets forth those legal obligations within the broader WTO
legal structure – not the ITA.
7.42. In this respect, we observe that the ITA does not constitute a covered agreement within the
meaning of the WTO Agreement and the DSU. The DSU indicates that its rules and procedures apply
to disputes brought pursuant to the dispute settlement provisions of the agreements listed in
Appendix 1 of the DSU and concernin g Members' rights and obligations under provisions of the
WTO Agreement.268 The ITA is not listed in Appendix 1 of the DSU, nor is the ITA listed in Annexes
1 to 4 of the WTO Agreement. Thus, in contrast to India's WTO Schedule269, the ITA is not a "covered
agreement" within the meaning of the WTO Agreement and the DSU.270

267 See section 7.2 above.
268 Article 1.1 of the DSU indicates that the rules and procedures of the DSU shall apply to "disputes
brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1"
of the DSU, as well as "consultations and the settlement of disputes between Members concerning their rights
and obligations under the provisions of the Agreement Establishing the World Trade Organization … and of this
Understanding taken in isolation or in combination with any other covered agreement."
269 See para. 7.9 above.
270 We note India's argument that "at the very least, the contents of Attachment A and 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. 13) 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 the ITA is

7.43. We recognize that, in India's view, the ITA is the relevant instrument imposing India's legal
obligations in this dispute. We also recognize that the signing of the ITA forms part of the fa ctual
and historical background to this dispute. That the ITA may have induced India, as a factual matter,
to undertake certain WTO tariff commitments does not mean that, as a legal matter, the ITA sets
forth India's WTO legal obligations at issue in this dispute. Furthermore, having reviewed India's
submissions, we see no argument that explains how the ITA can be read into Article s II:1(a) and
(b) as the "source" of a Member's legal obligations under those provisions. To the extent that India's
arguments 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. 271 We note India's view that
Japan refers to the ITA as the relevant source of law in this dispute.272 As explained above, however,
we disagree with that understanding of Japan's arguments and claims.
7.44. As a final point of note with respect to this issue, we observe India's argument that Japan
"argues against using the ITA [] as the base -line comparator on th e basis that the 'Panel has no
jurisdiction to clarify the rights and obligations of WTO Members under the ITA[], if any, as the ITA[]
is not a covered agreement '".273 India considers that, "by that token, Japan must establish the
impossible fact that India's HS2002 Schedules continues to be a covered agreement despite being
no longer in currency".274 India considers that " [t]here is no legal basis for such an argument and
Japan does little to substantiate that self-inconsistent assertion".275
7.45. India's argument that its HS2002 Schedule is "no longer in currency" implies that, in India's
view, a newly transposed Schedule replaces the old Schedule. 276 We have examined the relevant
documents surrounding each transposition of India's WTO Schedule and we under stand that
following a transposition exercise it is not the case that a "new" Schedule replaces an "old" Schedule.
Rather, the documents that are agreed upon by Members, adopted as binding, and certified as such
by the Director-General, contain certain changes to the relevant Schedules.277 Indeed, the process
through which these changes are certified is under the 1980 Decision.278 That Decision does not set
forth procedures for replacing a Member' s Schedule, but rather sets forth procedures for
"modification" and "rectification", and the adoption of "changes".279 Thus, the files that are certified
following each transposition process do not set forth all of India's tariff concessions, but rather only
those tariff items that have changed as a result of the trans position exercise.280 India is therefore
incorrect when it suggests that its HS2002 Schedule was replaced with its HS2007 Schedule. To the
contrary, India only has one WTO Schedule concerning trade in goods , which is indeed a covered
agreement, and which has been changed several times over the years through various recourses to
the 1980 Decision. 281 The fact that India's WTO Schedule is a covered agreement does not imply
ipso facto that the ITA is a covered agreement. India's WTO Schedule is explicitly recognized as an

not a covered agreement, then "Japan must establish the impossible fact that India's HS2002 Schedule
continues to be a covered agreement despite being no longer in currency." (India's comments on Japan's
response to Panel question No. 59, para. 4). We address this argument in paras. 7.44-7.45 below.
271 See section 7.3.2.3 below.
272 In response to a question from the Panel asking why India considered that Japan bore the burden of
demonstrating that the products at issue were covered by the ITA, India responds that:
India reiterates that Japan fails to clearly articulate the precise source of India's commitments
under the contested sub-headings. For instance, as also noted previously, Japan argues that India
has started imposing "customs duties on the Products Concerned which are incompatible with the
tariff bindings included in 2007 Schedule which reflects India's concessions under the ITA". In light
of that statement by Japan, India maintains that the burden of pro of is on Japan to substantiate
its claim and to prima facie demonstrate that the products at issue were covered by the ITA[],
should it raise any arguments pertaining to the ITA[] in its future submissions.
(India's response to Panel question No. 5, para. 20)
273 India's comments on Japan's response to Panel question No. 59(b), para. 4.
274 India's comments on Japan's response to Panel question No. 59(b), para. 4.
275 India's comments on Japan's response to Panel question No. 59(b), para. 4.
276 India's comments on Japan's response to Panel question No. 59(b), para. 4.
277 See WT/Let/181; WT/Let/886; and WT/Let/1072.
278 See WT/Let/181; WT/Let/886; and WT/Let/1072.
279 1980 Decision, paras. 1-3 and 5.
280 See WT/Let/181; WT/Let/886; and WT/Let/1072.
281 In this Report, we consider it useful to use the nomenclature of "India's WTO HS1996 Schedule",
"India's WTO HS2002 Schedule", and "India's WTO HS2007 Schedule" to refer to India's Schedule as it existed
following each transposition to that iteration of the HS nomenclature. References in this Report to India's WTO
Schedule, without identifying any version of the HS nomenclature, refer to India's WTO Schedule as most
recently transposed (i.e. based on the HS2007). This nomenclature, however, should not be read to imply that
India has been bound by three distinct WTO Schedules.

integral part of the covered agreements.282 The ITA, which is a distinct legal instrument from India's
WTO Schedule, is not.
7.46. To conclude, we understand that Japan's claims in this dispute are exclusively under
Articles II:1(a) and (b) of the GAT T 1994. Having reviewed the ITA, we understand that the
undertakings contained therein were only operationalized within the WTO legal system through their
incorporation into Members' Schedules. We also note that the ITA is not a covered agreement within
the meaning of the WTO Agreement and the DSU.283 While we recognize that the ITA may have been
relevant to India's decision to undertake certain WTO tariff commitments, we consider that those
WTO legal obligations are distinct from the ITA. Moreover, it is th ose WTO tariff commitments, set
forth in India's WTO Schedule, that are the source of India's legal obligations for the purposes of
applying 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.284
7.3.2.3 Whether the ITA limits or modifies the scope of the tariff commitments set forth
in India's WTO Schedule
7.3.2.3.1 Main arguments of the parties
7.47. India considers that the ITA "represents a static source of commitments on ICT products".285
According to India, those commitments "were negotiated and agreed to in the context of HS 1996,
and were then incorporated into the schedules of concessions of member cou ntries – including
India."286 India considers that "[t]hose static commitments did not become elastic by virtue of their
incorporation into concession schedules."287 In India's view, the ITA "was a sui -generis instrument
with commitments over a limited scope of products and required those commitments to reflect in
the relevant tariff sub-headings of the schedule of concessions of parties." 288 India considers that,
"[u]nder Article 31(4) of the Vienna Convention, those sub-headings would require to be interpreted
in accordance with the special meaning the parties intended them to have – by engaging with
HS1996 and its explanatory notes, read in the context of ITA []."289 As a general matter, India
considers that the ITA constitutes "interpretative context to India's schedule of concessions".290
7.48. In support of its arguments regarding the static nature of its commitments on these ICT
products, India refers, as an example, to "Transmission Apparatus for Radio -Telephony or
Radio-Telegraphy" (which fell under HS1996 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".291 India notes that this "limitation [was] also reflected in HS2002".292
India submits that, "[c]learly, that static product definition is a closed and limited one which could
not have covered cellular phones capable of transmitting videos , base stations, and LTE
equipment."293
7.49. Also in support of its arguments regarding the static nature of its commitments under the
ITA, India refers to the WTO Schedules of concessions of various participants in the ITA who were
later also participants in the Ministerial Declaration on the Expans ion of Trade in Information

282 See para. 7.9 above.
283 We also recall that the ITA was not invoked in Japan's panel request.
284 Regarding India's argument that Japan bears the burden of demonstrating that certain products fell
within the scope of the ITA, since we do not consider that the ITA constitutes a source of India's legal
obligations in this dispute, we also do not consider that, in order to prevail in its claims under Articles II:1(a)
and (b), Japan must demonstrate that the products at issue fall within the scope of the ITA. Rather, Japan
must demonstrate that the products at issue fall within the scope of relevant tariff commitments set forth in
India's WTO Schedule.
285 India's opening statement at the second meeting of the Panel, para. 48.
286 India's opening statement at the second meeting of the Panel, para. 48.
287 India's opening statement at the second meeting of the Panel, para. 48.
288 India's opening statement at the second meeting of the Panel, para. 56. (emphasis original)
289 India's opening statement at the second meeting of the Panel, para. 56.
290 India's second written submission, para. 38.
291 India's opening statement at the second meeting of the Panel, para. 57. See also India's first written
submission; response to Panel question No. 37, para. 17; and second written submission, para. 43.
292 India's opening statement at the second meeting of the Panel, para. 57.
293 India's opening statement at the second meeting of the Panel, para. 57.

Technology Products ( ITA Expansion ).294 India submits that, "[a]n analysis of the Schedules of
Concessions of 36 such participants to the ITA [] reveal that they did not grant any concessions to
certain products at issue until they modified their concessions in keeping with the ITA Expansion."295
According to India, "the very purpose of the ITA Expansion was to extend concessions to a wider
range of products accounting for technological progress and market evolution which could not be
covered within the ITA[]", and "[t]he fact that the ITA Expansion covers almost all products at issue
in the present case - explicitly those under sub -headings 8517.61, 8517.62, 8517.70 - is a clear
affirmation that those products are in addition to and were beyond the scope of the ITA[]".296 India
also refers to what it considers constitutes "subsequent practice" in support of its interpretation,
namely: "the HS2007 schedules of some WTO Members reflect NIL duty for certain contested tariff
lines, wherea s these Members continue to impose duties on such tariff lines"; "some ITA []
Participants have not committed to a NIL duty for certain contested tariff lines"; and "certain ITA []
participants who are not participants to the ITA Expansion continue to impose duties on products
covered under certain contested tariff lines."297
7.50. Japan considers that the ITA and the ITA Expansion "have no legal relevance to the
interpretation of India's Schedule".298 Japan notes that, while the panel in EC – IT Products "found
that the ITA[] may serve as context within the meaning of Article 31(2)(b) of the Vienna Convention
for interpreting tariff concessions, this finding was made in the specific context of that case ".299
Japan notes that in that dispute " the relevant Schedule at issue was based on the same version of
the HS nomenclature as the one used by the ITA[]" whereas "in the present case, India's Schedule
is based on the HS 2007, while the ITA [] is based upon the HS 1996".300 Japan also observes that
"the version of the European Communities' Schedule which was examined in EC – IT Products
explicitly referred to the ITA[], which is not the case for India's Schedule at issue".301 Japan therefore
considers that the ITA "cannot serve as part of the context pursuant to Article 31(2)(b) of the Vienna
Convention for the purpose of interpreting India's Schedule in this dispute".302
7.51. Japan further considers that " neither the ITA[] nor the ITA Expansion can be con templated
as "supplementary means of interpretation" under Article 32 of the Vienna Convention, because the
conditions for relying upon such supplementary means of interpretation are not met ."303 Japan
argues that India has not "implied in any way that the terms of India's Schedule are ambiguous or
obscure, or that their interpretation in accordance with Article 31 of the Vienna Convention leads to
a result which is manifestly absurd or unreasonable".304 Japan submits that "[t]herefore, there is no
need to 'confirm the meaning resulting from the application of Article 31'" and "the requirements for
recourse to supplementary means of interpretation are not satisfied in this case".305

294 Under ITA Expansion, the participants agreed to "bind and eliminate customs duties and other duties
and charges of any kind", within the meaning of Article II:1(b) of the GATT 1994, with respect to certain
specified products. (Ministerial Declaration on the Expansion of Trade in Information Technology Products,
WT/MIN(15)/25, Annex, para. 1; WT/L/956, para. 1). We understand that the 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).
295 India's opening statement at the second meeting of the Panel, para. 50.
296 India's opening statement at the second meeting of the Panel, para. 52.
297 India's opening statement at the second meeting of the Panel, para. 54.
298 Japan's second written submission, para. 197.
299 Japan's second written submission, para. 201 (referring to Panel Reports, EC – IT Products,
para. 7.383). (emphasis original; fn omitted) Japan argues that the panel in EC – IT Products found that the
scope of tariff concessions is to be determined by interpreting the ordinary meaning of the actual terms of the
relevant commitment, and according to the panel "there [was] no need to consider further the particular status
of technology at the time of negotiating the concession in assessing the scope of the concession". (Ibid.
paras. 187-188 (quoting Panel Reports, EC – IT Products, para. 7.600)). Japan considers that that panel's
findings indicate that the fact that products did not exist at the time the concessions were made is not relevant
for the purposes of interpreting the scope of the concessions.
300 Japan's second written submission, para. 201. See also Japan's response to Panel question No. 3,
para. 11; and opening statement at the second meeting of the Panel, para. 26.
301 Japan's second written submission, para. 201. See also Japan's response to Panel question No. 4,
para. 17.
302 Japan's second written submission, para. 201. See also Japan's response to Panel question No. 3,
paras. 10-11.
303 Japan's second written submission, para. 203.
304 Japan's second written submission, para. 206.
305 Japan's second written submission, para. 206. See also Japan's opening statement at the second

7.52. Finally, Japan argues that " India has also, in fact, made no argument as to wha t effect the
ITA[] and the ITA Expansion should have upon the Panel's interpretation of the actual terms of
India's Schedule."306 Japan considers that, " when requested by the Panel to explain whether and
how the ITA[] and the ITA Expansion are relevant for the purpose of interpreting India's Schedule,
India did not provide an adequate answer to that question ", but " merely replied that it has no
obligation to provide duty-free treatment to the Products Concerned under the ITA[]".307 Japan also
submits that, contrary to what India argues, the text of the ITA does not indicate a "static product
scope", and neither the statements of the WTO Members cited by India nor the ITA Expansion
constitute "subsequent practice" to the ITA.308 Further, Japan reiterates that the ITA, including its
attachments, are legally distinct from the concessions made by India in its WTO Schedule and
therefore are irrelevant to the interpretation of that Schedule.309
7.3.2.3.2 Main arguments of the third parties
7.53. Brazil states that "the task before the Panel concerns the interpretation of India's Schedule in
line with the objective of ensuring the predictability and security of the reciprocal and mutually
agreed concessions that are the cornerstone of the WTO arch itecture."310 Brazil further considers
that "technological evolution cannot lead to unilateral reclassifications by importing Members in ways
that may circumvent the tariff commitments they negotiated and registered in their
WTO Schedules".311 Brazil argues that, "[o]therwise, the security and predictability of the tariff
concessions in the Schedules will be seriously undermined".312
7.54. Canada considers that "the scope of coverage of a concession is determined by an
examination of the meaning of the terms contain ed in the commitments set out in a Member's
Schedule".313 Canada considers that the ITA "may be considered as relevant context for the purposes
of interpreting the meaning of these terms".314 Canada further argues that "tariff concessions under
the Uruguay Round and ITA[] are not static and do not encompass only those products in existence
at that time." 315 Canada considers that "[t]he HS is updated to account for new products and
Members' obligations and tariff bindings will either apply to these new products to the extent that
they fall within existing tariff lines or will not apply to such new products should a Member exclude
them from coverage".316 Canada argues that "the Panel's task in this case is to determine whether
India has made tariff commitments with respect to the products at issue, and if so, whether duties
have been imposed on the products at issue in this case in excess of the tariff bindings set out in
India's 2007 Schedule."317 Canada considers that an interpretation that finds that a Member's WTO
tariff commitments "are static and unable to capture technological advancement would undermine
the WTO system of tariff concessions by allowing Members to simply disregard tariff commitm ents
on the basis that a product incorporates, or has become, a new technology".318
7.55. The European Union considers that the ITA could be regarded as interpretative context within
the meaning of Article 31(2)(b) of the Vienna Convention, but submits that, 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." 319 The European
Union highlights that in EC – IT Products the panel had relied on the ITA as context "in a situation
where all the main parties considered Article 31(2) VCLT to be fulfilled and where the particular
document to be interpreted included an explicit reference" to the ITA.320

306 Japan's second written submission, para. 207.
307 Japan's second written submission, para. 207.
308 Japan's second written submission, paras. 209 and 215-227.
309 Japan's comments on India's response to Panel question No. 61, para. 37.
310 Brazil's third-party response to Panel question No. 2, para. 10.
311 Brazil's third-party response to Panel question No. 6, para. 15.
312 Brazil's third-party response to Panel question No. 6, para. 15.
313 Canada's third-party response to Panel question No. 2, para. 4.
314 Canada's third-party response to Panel question No. 2, para. 4.
315 Canada's third-party response to Panel question No. 6, para. 10.
316 Canada's third-party response to Panel question No. 6, para. 10.
317 Canada's third-party response to Panel question No. 6, para. 13.
318 Canada's third-party response to Panel question No. 6, para. 14.
319 European Union's third-party response to Panel question No. 2, para. 15.
320 European Union's third-party response to Panel question No. 2, para. 14. (emphasis original)

7.56. Korea considers that the ITA "may be used as 'context' to interpret India's tariff concessions
at issue in this dispute".321 Korea submits that "as a general matter, modifications to the scope of a
Member's rights and obligations under certain schedule of concessions can only be made by actually
changing the schedule itself." 322 Korea clarifies, however, that "this is not to say that the
development of new technologies and new products cannot be incorporated into the previously
established scope of tariff concessions in a Member's WTO Schedule as a matter of interpretation."323
Korea also notes that "the mere existence of the products in the scope of the ITA Expansion does
not lead to the conclusion that these products were not accounted for in the ITA[]."324
7.57. Norway argues that "the obvious starting point … must be the commitments made in the
schedules".325 Furthermore, in Norway's view, "an interpretation which implies that a product
segment could automatically be released from binding commitments upon technological
advancement would seriously undermine the system".326 Norway therefore "strongly disagrees with
India's perceived assertion that including technological advancement within a product segment
falling within the tariff line listed in Attachment A would involve expansion of 'new' products".327
7.58. Chinese Taipei argues that "the ITA [] and India's Schedule of Concessions are two separate
distinct documents" and that "[t]his dispute concerns the implementation of India's concessions as
provided in its Schedule". 328 In Chi nese Taipei's view, "if tariff concessions were not subject to
HS transpositions, they would become static", which would "render tariff concessions meaningless
over time, as the relevant products may no longer exist or become obsolete". 329 Chinese Taipei
considers that "Members would be forced to conduct constant renegotiations for concessions on
'new' products, and the scope of tariff concessions would be uncertain", which "is not how tariff
concessions are meant to operate so as to achieve security and predictability".330
7.59. Türkiye submits that "[a]lthough a large number of high-tech products were covered [by the
ITA, it] envisages the incorporation of additional products in parallel to technological developments
provided that the parties to the ITA negotiate and agree by consensus."331 Türkiye further considers
that the products at issue in this dispute are not covered by the ITA, and that as "[a]ny
technologically newly developed product cannot automatically be considered as covered by ITA[], …
the duty-free treatment cannot be extended to all variants of the products." 332 Türkiye considers
that the Panel's "interpretation of concessions in ITA [] should not disrupt the balance which is
negotiated by the parties". 333 Türkiye shares India's view that the product scope of the ITA "has
remained the same since 1997", and is "defined in accordance with the product coverage envisaged
in HS1996 at that point in time".334 Türkiye also shares India's view that new "'products which are
a result of technological progress are not covered under the ITA []'".335 Türkiye considers that the
complainant seeks "an overly broad or inclusive construction of ITA [] commitments, damaging the
balance established during the negotiation process of ITA []."336 Türkiye submits that "India has no
obligation to extend concessions to products which were not included in the scope of an HS heading
or sub-heading at the time ITA[] concessions were negotiated".337
7.60. The United States considers that "the Panel may consider the ITA[] as relevant context within
the meaning of Article 31 of the Vienna Convention".338 The United States also considers that "[t]he
tariff concessions in a WTO Member 's Schedule apply to all products – regardless of technological

321 Korea's third-party response to Panel question No. 3, p. 1.
322 Korea's third-party response to Panel question No. 7, p. 2.
323 Korea's third-party response to Panel question No. 7, p. 2. (emphasis original)
324 Korea's third-party response to Panel question No. 10, p. 3.
325 Norway's third-party submission, para. 7.
326 Norway's third-party submission, para. 8.
327 Norway's third-party submission, para. 9.
328 Chinese Taipei's third-party response to Panel question No. 15, para. 1. (emphasis original)
329 Chinese Taipei's third-party response to Panel question No. 15, para. 2.
330 Chinese Taipei's third-party response to Panel question No. 15, para. 2.
331 Türkiye's third-party response to Panel question No. 2, p. 2.
332 Türkiye's third-party response to Panel question No. 2, p. 3.
333 Türkiye's third-party response to Panel question No. 3, p. 3.
334 Türkiye's third-party response to Panel question Nos. 4-5, p. 4.
335 Türkiye's third-party response to Panel question Nos. 8-10, p. 8 (quoting India's first written
submission, para. 28).
336 Türkiye's third-party response to Panel question Nos. 8-10, p. 9.
337 Türkiye's third-party response to Panel question No. 15, p. 2.
338 United States' third-party response to Panel question No. 3, para. 4.

development – that meet the terms of the concession, interpreted based on its ordinary meaning in
context and in light of the GATT 1994's object and purpose".339 The United States argues that "India's
position would undermine the fundamental obligations of Article II:1 of the GATT 1994 by allowing
Members to disregard tariff commitments on the basis that a product in corporates or constitutes a
perceived new technology".340 In the United States' view, "[t]he ITA Expansion is not relevant to the
Panel's interpretation of India's concessions under the customary rules of interpretation reflected in
the VCLT."341 The United States also argues that "India is mistaken that the coverage of a product
under the ITA Expansion necessarily excludes the product from the scope of the ITA[]".342
7.3.2.3.3 Panel's assessment
7.61. We understand that, in India's view, its commitments under the ITA are "st atic" and,
therefore, India considers that its WTO tariff commitments exclude new products resulting from
technological innovations that occurred after the ITA was concluded.343
7.62. We have addressed above the question of whether the ITA sets forth India's legal obligations
in this dispute and concluded that it does not. In order to assess Japan's claims, and apply
Articles II:1(a) and (b) of the GATT 1994, we will not look at the ITA, but rather at India's legal
obligations as set forth in those provisions and in India's WTO Schedule. To a large extent, therefore,
India's contentions regarding whether the ITA imposes "static" or "elastic" obligations are not
relevant to the task before us.
7.63. Having said that, we note India's argument that its "static commitments" in the ITA "did not
become elastic by virtue of their incorporation into concession schedules". 344 We also note India's
argument that certain tariff items of its WTO Schedule have a "special meaning" intended by the
parties, pursuant to Article 31(4) of th e Vienna Convention. We therefore consider it relevant to
examine whether, as a matter of legal interpretation, the ITA limits or modifies the scope of India's
WTO tariff commitments as set forth in its WTO Schedule (notwithstanding that the ITA does not set
forth those tariff commitments).
7.64. 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, pur suant to Article 3.2 of the DSU. 345 We also understand that a tariff
concession in a Member's WTO Schedule appl ies to all products, falling under the terms of the
concession, as interpreted based on its ordinary meaning when read in context, and in light of the
object and purpose of the agreement. This includes new products that come into existence as a
result of tech nological innovation, and which did not exist at the time that the concession in the
Schedule w as agreed upon. In this respect, we agree with prior interpretations of the scope of
Members' obligations under their WTO Schedules.346

339 United States' third-party response to Panel question No. 6, para. 13.
340 United States' third-party response to Panel question No. 6, para. 14.
341 United States' third-party response to Panel question No. 8, para. 18.
342 United States' third-party response to Panel question No. 9, para. 21.
343 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).
344 India's opening statement at the second meeting of the Panel, para. 48.
345 See para. 7.9 above. See also Appellate Body Reports, EC – Computer Equipment, para. 84;
EC – Export Subsidies on Sugar, para. 167; and Panel Reports, EC – Chicken Cuts, para. 7.87.
346 In China – Publications and Audiovisual Products, China argued that the principle of progressive
liberalization contained in Article XIX of the GATS "does not allow for the expansion of the scope of the
commitments of a WTO Member by interpreting the terms used in the Schedule based on the meaning of those
terms at the time of interpretation." (Appellate Body Report, China – Publications and Audiovisual Products,
para. 390). The Appellate Body stated that "the terms used in China's GATS Schedule ('sound 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

7.65. We further recall that, when interpreting Members' Schedules in accordance with customary
rules of treaty interpretation, the HS has been found to constitute relevant "context" pursuant to
Article 31(1) of the Vienna Convention.347 However, the relevance of the HS depends on the specific
interpretative question at issue (including whether the relevant concessions were based on the
HS).348 It is also uncontested by the parties that, pursuant to the rules of interpretation of the HS,
any product at any moment in time must fall within t he product scope of a tariff item in the
HS nomenclature.349 This necessarily includes new products that come into existence, for instance
as a consequence of technological innovations, subsequent to a given HS nomenclature having been
concluded. We agree with the parties on this point.350
7.66. Thus, for those Members whose WTO Schedules are based on the HS, such as India351, where
a product is classified under a particular HS heading or subheading of a Member's Schedule, that
product would also fall within the 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.
7.67. From the foregoing, it i s clear that as a general rule the product scope of Members' tariff
concessions evolves over time to capture products that may come into existence as a result of
technological developments. The only question that arises in this dispute is whether that gene ral
rule is modified by virtue of the existence of the ITA. In this respect, India essentially argues that,
because the product scope of the ITA is static, so is the scope of its tariff commitments in its
WTO Schedule with respect to undertakings made pursuant to the ITA.
7.68. In our view, India's argument rests on two premises: (i) the product scope of Attachment A
of the ITA is static, such that it "does not include technological advancements" 352; and (ii) the ITA
similarly limits the product scope of India's WTO Schedule.353 We note that it would only be necessary
to interpret the ITA for purposes of assessing India's first premise if India is correct regarding the
second premise. Given that the ITA is not a covered agreement, and does not set forth the tariff
concessions at issue in this dispute, we proceed on an arguendo basis to assess whether, assuming

date of a Member's accession to the treaty. Such interpretation would undermine the predictability,
security, and clarity of GATS specific commitments, which are undertaken through successive
rounds of negotiations, and which must be interpreted in accordance with customary rules of
interpretation of public international law.
(Ibid. para. 397 (footnotes omitted)).
Similarly, in Greece – Phonograph Records, a GATT 1947 Group of Experts addressed 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).
347 See Appellate Body Reports, EC – Computer Equipment, para. 89; EC – Chicken Cuts, paras.
195-197; and China – Auto Parts, paras. 146 and 149.
348 See e.g. Panel Reports, EC – IT Products, para. 7.443.
349 India's response to Panel question No. 10, para. 29 ("[t]he General Rules of Interpretation, annexed
to the [HS Convention], allow for all products to be classified under one or the other heading of any version of
the HS, and therefore, also the Schedule of Concessions of any given country (if unbound tariff lines are also
included in the Schedule of Concessions)" (emphasis original)); Japan's response to Panel question No. 67,
para. 26 ("Japan agrees, and it is actually well-established, that all products are to be classified under a
subheading in any edition of the HS nomenclature").
350 We observe that the General Rules for the 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, (Exhibit JPN-60), Rule. 4).
351 See para. 2.16 above.
352 India's first written submission, subheading IV.A.
353 India's opening statement at the second meeting of the Panel, para. 48.

that the product scope of the ITA is indeed static, the ITA limits the product scope of India's
WTO Schedule.
7.69. We therefore turn to address whether, assuming that the product scope of the ITA is static,
it limits the scope of certain Members' WTO tariff commitments. We recall the general rule that if,
at any given point in time, a product falls within the scope of a Member's WTO tariff commitments
pursuant to the general rules of interpretation under Article 31 of the Vienna Convention, then a
Member's obligations extend to that product. We understand that, under India's interpretation of
the relationship between th e ITA and its WTO Schedule, while the general rule described above
would continue to apply to WTO Members who are not participants in the ITA, WTO Members who
are participants in the ITA would be subject to a different rule. In other words, under India's
approach, a tariff concession set forth in an ITA participant's WTO Schedule would have a different
product scope to the same tariff concession set forth in a non-ITA participant's Schedule.
7.70. In our view, India's interpretation is at odds with the multilateral principles of reciprocity and
mutual advantageous arrangements underpinning the multilateral trading system. 354 To interpret
the product scope of ITA participants' WTO Schedules differently from the Schedules of Members
that are not participants in the ITA, when the product scope of those commitments is on its face
identical, would also substantially undermine the security and predictability of Members' tariff
commitments.
7.71. We note that India has not pointed 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".355 In our view, the
requirement that parties should meet periodically to review the product scope of the ITA suggests
that the ITA participants anticipated expanding the scope of the ITA to include additional tariff items
that 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 b e excluded from the coverage of
Members' existing WTO commitments.
7.72. We also note India's argument that its WTO Schedule should be given a "special meaning",
pursuant to Article 31(4) of the Vienna Convention, because the participants to the ITA "intended to
limit the scope of Attachment A to the HS1996 Nomenclature".356 Article 31 of the Vienna Convention
sets forth the "General rule of interpretation" of international treaties. Paragraph 4 of Article 31
indicates that:
A special meaning shall be given to a term if it is established that the parties so intended.

354 See the third recital of the preamble to the WTO Agreement.
355 India's first written submission, para. 84 (quoting ITA, Annex: Modalities and Product Coverage,
para. 3).
356 India's second written submission, para. 51. Aspects of India's arguments in this regard frame its
invocation of Article 31(4) as concerning the special meaning that the participants in the ITA allegedly 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, para. 56 (emphasis original)). It would seem to follow
that if India considers that the parties to the ITA intended for a special meaning to be ascribed to the terms of
the ITA, pursuant to Article 31(4) of the Vienna Convention, and India considers that the terms of the ITA
limits the terms of its WTO Schedule, then, in India's view, the terms of 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.

7.73. In our view, the reference in this provision to "the parties" includes all parties to a treaty, and
not some of those parties.357 We note that India's WTO Schedule forms part of the GATT 1994 and
the WTO Agreement. The "parties" to the GATT 1994 and the WTO Agreement include all Members
of the WTO. Moreover, India's WTO Schedule governs its tariff obligations with respect to all imports
from all WTO Members, and not solely the participants in the ITA. We understand that the ITA was
not signed by all WTO Members. Since the ITA was agreed to by only some of the Members of the
WTO, we do not see how the ITA could signal the intentions of the parties to the WTO Agreement
with respect to any of its treaty te rms (including the terms set forth in India's WTO Schedule). We
therefore consider that the present circumstances do not satisfy the requirements of Article 31(4),
since the ITA does not express the intentions of the parties to the WTO Agreement.
7.74. For 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,
a number of India's interpretative arguments regarding the static nature of the ITA are not relevant
for purposes of interpreting India's WTO Schedule, as elaborated below.
7.75. India argues that Members' intentions to maintain a static product scope for the ITA is
demonstrated by the content of the ITA itself, various subsequent 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 []".358 India also
refers to paragraph 3 of the Annex to the ITA, which states that "[p]articipants shall meet periodically
under the auspices of the Council on Trade in Goods to review the product coverage specified in the
Attachments, with a view to agreeing, by consensus, whether in the light of technological
developments, experience in applying tariff concessions, or changes to HS nomenclature, the
Attachments should be modified to include additio nal products." 359 Regarding the subsequent
practice of the participants in the ITA, India argues that "various statements and pronouncements
made by multiple Participants as 'subsequent practice' to the ITA[] … establish that the Participants
agree that the product scope of the ITA[] is limited and not automatically updated". 360 Regarding
the ITA Expansion, India argues that the scopes of the ITA and the ITA Expansion are mutually
exclusive and therefore any products covered by the ITA Expansion fall outside the scope of the
ITA.361
7.76. We understand that India's arguments in this respect pertain to the respective scope and
content of the ITA and the ITA Expansion. Thus, India relies on two agreements concluded by some
Members to interpret the rights and obligatio ns of all Members. As explained above, the
interpretation advocated by India would essentially read identical tariff commitments of various WTO
Members differently, depending on whether they were participants in the ITA and the ITA Expansion.
In our view, the scope and content of the ITA and ITA Expansion cannot modify the scope and
content of India's tariff commitments as set forth in its WTO Schedule.
7.77. Similarly, the statements and pronouncements referred to by India as relevant "subsequent
practice" 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 i s legally incorrect. ITA
participants may debate the scope and content of their obligations under the ITA. However, even
assuming that those debates constitute "subsequent practice" to the ITA – an issue on which we

357 The plain language of Article 31(4) refers to "the 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.
358 India's first written submission, para. 82.
360 India's second written submission, para. 62.
361 See e.g. India's first written submission, paras. 122-130; opening statement at the second meeting
of the Panel, para. 50; and response to Panel question No. 39, para. 20.

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.
7.78. Having said that, given the importance that India appears to attribute to the product scope
of the ITA Expansion, we wish to briefly note there is no indication in the ITA Expansion that the
product scope of that agreement does not overlap with the ITA. We understand, in fact, that the
negotiating history of the ITA Expansion suggests that there is indeed such an overlap of products.362
We do not consider it necessary, for purposes of resolving this dispute, to enter into the question of
which 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, the
concessions set forth in relevant Members' WTO Schedules).
7.79. Finally, we note India's argument that the ITA "qualifies as context to Schedule [s] of
Concessions under Article 31(2)(b) of the Vienna Convention and is therefore relev ant for
interpreting the tariff concessions at issue in this dispute". 363 In our view, however, India is not
relying on the ITA as context to interpret its WTO Schedule but rather is seeking to replace the
content of that WTO Schedule with the content of 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 existence of the ITA replaces or modifies the content of India's
WTO Schedule, or calls for a specific interpretative approach to certain tariff commitments contained
in that Schedule. We also recall that the relevance of contextual aids to interpreting Members'
Schedules can vary depending on the interpretative question at issue.364
7.80. We understand that India relies on the ITA as context to interpret its WTO Schedule
specifically to show that the concessions set forth in its WTO Schedule 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 argu ments invoking the ITA as "context" for purposes of
interpreting its Schedule are focused on replacing the content of the WTO Schedule with the content
of the ITA (rather than on interpreting tariff commitments in that Schedule using the ITA as context),
and since any differences in scope would not modify the scope of India's WTO Schedule, we do not
consider it necessary to further take into account the ITA as "context" for purposes of determining
the scope of India's tariff commitments as set forth in its WTO Schedule.
7.81. For the foregoing reasons, we consider it appropriate to assess the scope of India's WTO tariff
commitments by looking at India's WTO Schedule . Where necessary, we will interpret the scope of
that Schedule by applying the general rules of in terpretation set forth in Article 31 of the Vienna
Convention. For the reasons articulated above, we do not consider it relevant to examine the product
scope of the ITA as "context" to interpret India's WTO Schedule. In addition, we do not consider that
Members' subsequent practice with respect to the ITA (such as the scope of the ITA Expansion) can
modify the scope of India's WTO Schedule.365

362 Document G/IT/SPEC/15 contains a compilation of "Proposed Additions to Product Coverage:
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. 50). Given that India itself indicates that "the negotiations were
relaunched", we do not see why India considers that this document "is not a part of the negotiating history of
ITA Expansion". (Ibid.).
363 India's response to Panel question No. 4, para. 17. 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).
364 See para. 7.65 above.
365 We note that India also relies on the ITA as evidence to demonstrate that an error occurred in the
transposition of its WTO Schedule to the HS2007. We address these arguments, which concern the
interpretation of the ITA as a factual question, not as a legal question, below. (See section 7.3.3.2.3.5 below).

7.3.2.4 Conclusion
7.82. We have addressed above India's contentions that the ITA is the source of India's legal
obligations in this dispute. We disagree. We have also addressed above whether the ITA modifies or
limits the scope of India's WTO tariff commitments set forth in its W TO Schedule. Without taking a
position on whether the scope of India's concessions under the ITA is "static" in nature, we consider
that the ITA cannot overwrite the tariff commitments set forth in India's WTO Schedule (which are
not static in nature). We therefore proceed to apply Article s II:1(a) and (b) by comparing, on the
one hand, the tariff treatment accorded by India to certain products, and, on the other hand, India's
WTO tariff commitments as set forth in its WTO Schedule. Before doing so, however , we address
India's arguments regarding Article 48 of the Vienna Convention and its rectification request under
the 1980 Decision.366
7.3.3 Article 48 of the Vienna Convention
7.3.3.1 Introduction
7.83. As described in section 2.3 above, in 2006, in preparation for the transposition of Members'
Schedules from the HS2002 to the HS2007, the General Council adopted a Decision on HS2007
Transposition Procedures. Pursuant to that Decision, developed country Members were to prepare
their own transpositions from the HS2002 to the HS2007, and the WTO Secretariat was requested
to "transpose the schedules of developing country Members, except for those who undertake to
prepare their own transposition and submit a notification to this effect". 367 Since India did not
indicate that it intended to undertake the transposition of its Schedule from the HS2002 to the
HS2007, the WTO Secretariat prepared India's transposition and, on 8 November 20 13,
communicated to India via email the draft files for the HS2007 transposition of India's Schedule.368
Following receipt of the draft transposition files prepared by the WTO Secretariat, India provided
comments on the draft files. 369 The Secretariat then c ommunicated a revised file to India for
approval.370 A multilateral review session was held in the Committee on Market Access on
23 April 2015, during which the draft files were approved by Members.371 The draft modifications to
the Schedule were circulated on 12 May 2015 and, since no objections were received within three
months of circulation, on 12 August 2015 the changes to the Schedule were certified.372
7.84. India submits that, at the time of the transposition of its WTO Schedule to the HS2007, it had
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".373 India
argues that Article 48 of t he Vienna Convention is an applicable rule of law which codifies the
principle of customary international law whereby "freedom of consent [i]s an indispensable condition
for treaty validity" such that "a State cannot have freely concluded a treaty if at th e time of giving
its consent it was under a misapprehension relating to the subject matter of the treaty". 374 India
considers that "the core issue before the Panel is whether the products at issue are entitled for
exemption from customs duty as a result of informed and free consent of India, or a result of

366 In addition to the foregoing arguments regarding the ITA, India also raises the ITA in the context of
arguing that certain aspects of its WTO Schedule are invalid pursuant to Article 48 of the Vienna Convention.
Moreover, India considers the ITA to be 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).
367 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.
368 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49).
369 India did not provide comments or seek clarifications regarding the transposition of the tariff items at
issue in this dispute. (Email from Market Access Intelligence Section, WTO, to India (12 February 2014),
(Exhibit IND-50)).
370 India's response to Panel question No. 18, para. 57-58.
371 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India,
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.
372 Committee on Market Access, Rectification and 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. 18, para. 58.
373 India's first written submission, fn 81 to para. 48.
374 India's first written submission, para. 38.

technicalities invoked by" the complainant.375 India further submits that, although Article 48 would
ordinarily lead to the invalidation of the entire treaty, in these circumstances the contested tariff
items are separable from the rest of the Schedule such that only the contested tariff items are
invalid, in accordance with Article 44 of the Vienna Convention. 376 India submits that since the
contested tariff items are invalid, they are "rendered unbound".377
7.85. Japan argues that Article 48 of the Vienna Convention is not applicable in this dispute.378
Japan also considers that the present circumstances fail to satisfy the substantive requirements of
paragraphs 1 and 2 of Article 48. Specifically, Japan argues that the alleged error does not relate to
a "fact or situation" within the meaning of Article 48(1) . Japan further argues that , in any event,
India cannot avail itself of Article 48(1) because India contributed by its own conduct to the error
and the circumstances were such as to put India on notice of a possible error, within the meaning
of Article 48(2).379 Japan further considers that India has not demonstrated that the requirements
of Articles 44 and 45 of the Vienna Convention are satisfied in the present proceedings.380
7.86. Article 48 of the Vienna Convention is titled "Error" and provides as follows:
1. A State may invoke an error in a treaty as invalidating its consent to be bound by
the treaty if the error relates to a fact or situation which was assumed by that State to
exist at the time when the treaty was concluded and formed an essential basis of its
consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to
the error or if the circumstances were such as to put that State on notice of a possible
error.
3. An error relating only to the wording of the text of a treaty does not affect its validity;
article 79 then applies.
7.87. A Commentary on the Vienna Convention states that Article 48 is "based on the premise that
freedom of consent … is an indispensable condition for the validity of a treaty" and a "State cannot
be considered to have freely concluded a treaty if at the time of giving its consent, it was under a
misapprehension about t he subject matter of the treaty". 381 The Commentary also notes that
"reliance on error as a ground for invalidating consent may easily be abused", and consequently
Article 48 seeks to "preserve the 'reality of consent' while at the same time protecting the stability
of treaties and the good faith of the other parties by clearly defining the conditions under which an
error is capable of invalidating consent".382
7.88. Paragraph 1 of Article 48 sets out the essential criteria that must be satisfied in order for a
State to claim that its consent to be bound by a treaty was invalid due to an error related to a fact
or situation, including the requirements that the error both (i) was assumed to exist by the State in
question at the time when the treaty was concluded, and (ii) formed an essential basis 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. Specifically, the State in question cannot take advantage of paragraph 1 if (i) it has
"contributed by its own conduct to the error" or (ii) the circumstances were "such as to put that
State on notice of a possible error".
7.89. We understand that the requirements of paragraphs 1 and 2 are cumulat ive – if any of the
requirements of either paragraph are not satisfied, then a party's invocation of error under Article 48

375 India's second written submission, para. 5.
376 India's first written submission, paras. 69-73.
377 India's first written submission, para. 74.
378 Japan's second written submission, paras. 36-67.
379 Japan's second written submission, paras. 99-144.
380 Japan's second written submission, paras. 145-168.
381 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of
Treaties: A Commentary (2nd edn., Springer, 2018), (Exhibit IND-14), p. 879.
382 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of
Treaties: A Commentary (2nd edn., Springer, 2018) (Exhibit IND-14), pp. 879-880. (emphasis omitted)

fails. Paragraph 3, which distinguishes Article 48 from Article 79 of the Vienna Convention, is not
relevant in the present dispute.383
7.90. A threshold issue concerns whether Article 48 of the Vienna Convention constitutes an
applicable rule of law that can be invoked in WTO dispute settlement. The applicability of Article 48
is contested by the parties, as well as several of the third par ties.384 We note that one panel has
previously found that customary international law regarding error in treaty formation is applicable
in WTO dispute settlement and that Article 48 is a codification of that customary international law.385
In our view, it wo uld only be necessary for us to take a position on this issue if it is the case that
the substantive requirements of Article 48 are indeed satisfied. If the substantive requirements of
Article 48 are not satisfied, then it is a moot question whether 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.386
7.91. We also note the parties' disagreement concerning Article 45 of the Vienna Convention. 387
Article 45 concerns the loss of a right to invoke a ground for, inter alia, invalidating the operation of
a treaty.388 The parties contest whether, even assuming tha t the requirements of Article 48 are
satisfied, India has nonetheless lost its right to invoke Article 48 because, pursuant to Article 45(b),
India "must by reason of its conduct be considered as having acquiesced in the validity of the treaty".
As with the issue of Article 48's applicability, we consider that it would only be necessary to address

383 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).
384 See e.g. India's response to Panel question No. 16, paras. 45-51 and second written submission,
paras. 16-19; Japan's second written submission, paras. 36-67; Chinese Taipei's third-party statement,
paras. 11-13; European Union's third-party response to Panel question No. 11, para. 42; Korea's third-party
response to Panel question No. 17, paras. 7-9 and third-party submission, paras. 11-12; and United States'
third-party submission, paras. 42-43.
385 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.).
386 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 Report, India – Autos, para. 7.59). The panel elaborated that if it were to find
that the factual circumstances for the application res judicata could not be met in that particular case, then "it
would not be necessary to make a general ruling on the role of res judicata in WTO dispute settlement". (Ibid.
para. 7.60). The panel ultimately concluded that the doctrine of res judicata could not apply to the facts of that
dispute, and consequently the panel did "not seek to rule on whether the doctrine could potentially apply to
WTO dispute settlement". (Ibid. para. 7.103. See also Panel Reports, EC and certain member States – Large
387 See e.g. India's first written submission, paras. 62-68; Japan's second written submission,
paras. 152-168.
388 Article 45 of the Vienna Convention is titled "Loss of a right to invoke a ground for invalidating,
terminating, withdrawing from or suspending the operation of a treaty", and states as follows:
A State may no longer invoke a ground for invalidating, terminating, withdrawing from or
suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming
aware of the facts: (a) it shall have 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.

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.
7.92. We further observe the parties' disagreement regarding Article 44 of the Vienna
Convention.389 We understand that under the structure and logic of the Vienna Convention, if the
cumulative requirements of Articles 45 and 48 a re applicable and satisfied, then, pursuant to the
terms of Article 44(2) of the Vienna Convention, this would invalidate the relevant State's consent
to be bound by the entire treaty – not specific aspects of that treaty. 390 In the present case, the
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.391 India contends, however, that in accordance with the requirements of Article
44(3) of the Vienna Convention, because India invokes error "only with respect to the contested
sub-headings … such contested sub -headings are separable from the sub -headings comprising the
2007 Schedule on the whole", and therefore only specific tariff items of India's WTO Schedule would
need to be invalidated. 392 While this issue is contested by the parties, in accordance with our
approach to issues arising under Article 45, we consider that it would only be necessary for us to
address the 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.
7.93. We therefore to 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
7.94. India argues that certain tariff items in its WTO Schedule are invalid, and therefore unbound,
because it "was in error as to the scope of the contested sub -heading commitments in the 2007
Schedule, at the time of its certification, as a result of the complex nature of the HS2002 to HS2007
transposition".393 India submits that it "would not have agreed to the contested sub -heading
commitments if it was clear that the HS2007 transposition was effectively expanding India's
commitments beyond India's obligations under the ITA[]".394 India argues that this is "because … it
never intended on joining the [ITA Expansion] and made several pronouncements regarding the
same".395 India provides considerable argumentation seeking to demonstrate that its commitments
as set forth in its certified WTO Schedule cover products that are not covered by the ITA[].396 India
considers that its error "in relation to the material scope of the commitments under the contested
sub-headings at the time the 2007 Schedule was certified" is a "fact or a situation" within the
meaning of Article 48(1), because the word "situation" covers "the overall condition or circumstance
prevailing at a particular time".397 India notes that "a leading commentary … observes that 'Article 48
does not exclude mixed questions of fact and law and the line between one and the other may not

389 See e.g. India's first written submission, paras. 69-74; Japan's second written submission,
paras. 145-151.
390 Article 44 of the Vienna Convention, titled "Separability of treaty provisions", sets out in its second
paragraph the 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."
391 See Article II:2 of the WTO Agreement.
392 India's first written submission, para. 70. Article 44(3) states that:
If the ground [for invalidation/termination, withdrawal from or suspension of the treaty] relates
solely to particular clauses, it may be invoked only with respect to those clauses where: (a) the
said clauses are separable from the remainder of the treaty with regard to their application; (b) it
appears from the treaty or is otherwise established that acceptance of those clauses was not an
essential basis of the consent of the other party or parties to be bound by the treaty as a whole;
and (c) continued performance of the remainder of the treaty would not be unjust.
393 India's first written submission, para. 40.
394 India's first written submission, para. 46.
395 India's first written submission, para. 46 (referring to WTO, Committee of Participants on the
Expansion of Trade in Information Technology Products, Minutes of the meeting held on 1 November 2012,
G/IT/M/56). See also ibid. para. 42 and fn 70 thereto (referring to Committee of Participants on the Expansion
of Trade in Information Technology Products, Minutes of the meeting held on 15 May 2012, G/IT/M/55,
paras. 1.5 and 3.11).
396 India's first written submission, section IV.
397 India's response to Panel question No. 44, para. 28.

always be easy to draw'". 398 India considers that "the fact that an error might have legal
consequences (as indeed all contested errors would) does not make the error a legal error".399
7.95. Japan argues that there was no error in the transposition process, because the "Products
Concerned were already covered by the duty -free concessions in the certified Schedule of India
based on the HS2002".400 Japan notes that "India is silent on the level of the tariff concessions that
would have been afforded to the Products Concerned in its Schedule b ased on the HS2002", such
that India has not shown that the scope of its tariff concessions changed during the transposition
process.401 Japan submits that "the transposition of India's Schedule into the HS2007 cannot have
been the source of any 'error' by India as to the scope of the commitments when it certified the
Schedule based on the HS2007, because there has been no change in the scope of the concessions
concerned".402 Japan further submits that an error of law is not a valid ground for invalidating a
treaty pursuant to Article 48, as demonstrated by the fact that the language "fact or state of facts"
in the draft Article 48 was revised to "fact or situation" to avoid the possibility that the French version
could have been read as encompassing errors of law.403 Japan considers that "[i]n the present case,
India's alleged error clearly constitutes an error of law", since the alleged error concerns "the
'material scope' of [India's] rights and obligations under its Schedule", and this error of law "cannot
be used by India to invoke Article 48".404 Japan also considers that "the treaty as a whole to which
India was giving its consent, and which would have been affected by the alleged error, was India's
Schedule based on the HS2007". 405 Japan submits that India "has never argued that it would not
have agreed to the transposition of its Schedule based on the HS2007 'as a whole' had it been aware
of the alleged mistaken understanding", and consequently India has failed to demonstrate that the
alleged error formed a n essential basis of its consent to be bound by the treaty. 406 Additionally,
Japan submits that " the threshold for invoking an error vitiating consent is very high" 407 and that
the panel report in Korea – Procurement is of "limited relevance", because Article 48 was invoked in
that case in the context of a non-violation claim.408
7.3.3.2.2 Main arguments of the third parties
7.96. Brazil considers that "the 'material scope of commitments' resulting from [HS] transpositions
is a 'fact' or 'situation' in relation to which a State could hypothetically be in error."409 Brazil refers
to the complex nature of the transposition process in support of its view that a "possible change in
scope of a concession resulting from a HS transposition could be portrayed as an objective fact or
situation within the meaning of Article 48". 410 Brazil also states that "the current international
jurisprudence regarding error in the consent of treaties and Article 48 establishes a very high
threshold for demonstrating that the consent of a party to an agreement was made in error".411

398 India's response to Panel question No. 44, para. 29 (quoting M. E. Villiger, Commentary on the 1969
Vienna Convention on the Law of Treaties (Martinus Nijhoff, 2009), (Exhibit IND-13), p. 608).
399 India's response to Panel question No. 44, para. 29.
400 Japan's second written submission, para. 95.
401 Japan's second written submission, para. 97.
402 Japan's second written submission, para. 98. See also Japan's opening statement at the second
403 Japan's second written submission, paras. 103-105 (referring to T. Rensmann, "Article 48" in O. Dörr
and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn (Springer, 2018), (Exhibit
IND-14), pp. 886-887, para. 19). See also Japan's response to Panel question No. 44, para. 71.
404 Japan's second written submission, paras. 106-107. See also Japan's opening statement at the
second meeting of the Panel, para. 14.
405 Japan's second written submission, para. 114.
406 Japan's second written submission, para. 114.
407 Japan's second written submission, para. 87 (referring to É. Wyler and R. Samson, "Article 48" in
O. Corten and P. Klein (eds.), The Vienna Conventions on the Law of Treaties (Oxford University Press, 2011),
(Exhibit IND-18), p. 1121, para. 8 ("invoking error as a means of invalidating a treaty has persistently failed to
succeed"); and T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the
Law of Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14), p. 880, para. 1 ("The main purpose of Art 48 is
therefore to preserve the "reality of consent" while at the same time protecting the stability of treaties and the
good faith of the other parties by clearly defining the conditions under which an error is capable of invalidating
consent".))
408 Japan's second written submission, para. 88.
409 Brazil's third-party response to Panel question No. 16, para. 4.
410 Brazil's third-party response to Panel question No. 16, para. 7.
411 Brazil's third-party submission, para. 21 (referring to International Court of Justice (ICJ), Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports

7.97. Canada argues that "it is possible that the certification of India's 2007 Schedule could be
considered the conclusion of a treaty and, further, that a State's understanding as to the scope of
its tariff concessions prior t o certification of its Schedule could qualify as a 'fact or a situation …
assumed by that State to exist at the time' within the meaning of Article 48." 412 Canada considers
that "the 'fact or situation' allegedly assumed by India here … captures the product s at issue, the
terms used to accurately describe them, and the context surrounding the decision to accept, or
choose, the terms used to describe the concession", such that "it appears to be an error that includes
factual elements".413 Canada also questions whether "purely formal or technical amendments to
treaties, such as those which occur during the certification of tariff schedules following a
transposition process, could satisfy the requirement of forming an 'essential basis' of a State's
consent to be bound by the treaty."414
7.98. The European Union argues that the error alleged by India " involves a misinterpretation by
India of the terms of the treaty on which the complaining parties base their claims " and "[s]uch an
error is an unmixed error of law and falls squarely outside the scope of Article 48.1 of the VCLT."415
The European Union also argues that India " has not proven that it made the error which it alleges
now", because "India was not wrong to assume that the transposition to HS2007 could not 'expand'
the scope of its pre -existing concessions", but "[r] ather, India is wrong to assume that its pre -
existing concessions were limited to products which already existed in 1997".416
7.99. Korea argues that it is clear from India's statements that India's alleged 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. 417 Korea argues that "the scope of a Member 's
commitment cannot be 'the existence of a fact' " but rather "is a legal question which requires
interpretation of the treaty provision".418
7.100. Chinese Taipei submits that "no error occurred, and India has not shown otherwise". 419
Chinese Taipei further argues that, if it exists, India's alleged error is actually an error of law which
falls outside the scope of Article 48.420 Chinese Taipei considers that "India's alleged mistaken view
as to the 'material scope of the commitments' under the tariff concessions at issue is no more than
a mistaken view of its obligations on tariff concessions", and "[e]rrors of law are not covered by
Article 48(1) of the Vienna Convention".421
7.101. The United Kingdom agrees with Brazil that Article 48 establi shes a very high threshold for
demonstrating that a party's consent to be bound by a treaty was in error.422
7.102. The United States argues that "it appears that the alleged error concerns India's legal
interpretation of its WTO commitments and the terms of its WTO Schedule rather than a particular
'fact or situation'". 423 The United States notes India's characterization of the error "as concerning
'the complex nature of the HS2002 to HS2007 transposition'" as well as India's position "that it
'never intended to expand its tariff commitments with respect to ICT products beyond the remit of
India's obligations as contained in the ITA[]'".424

1962, p. 6; ICJ, Kasikili/Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999: ICJ Reports
1999, p. 1045; Permanent Court of International Justice (PCIJ), Legal Status of Eastern Greenland (Denmark
v. Norway), Judgment of 5 September 1933: PCIJ (ser. A/B) No. 53.; and ICJ, Case concerning Sovereignty
over Certain Frontier Land (Belgium v. Netherlands), Judgment of 20 June 1959: ICJ Reports 1959, p. 209).
412 Canada's third-party response to Panel question No. 16, para. 3.
413 Canada's third-party response to Panel question No. 16, para. 5.
414 Canada's third-party response to Panel question No. 17, para. 7.
415 European Union's third-party statement, para. 8.
416 European Union's third-party statement, para. 6.
417 Korea's third-party submission, para. 13.
418 Korea's third-party response to Panel question No. 16, para. 6.
419 Chinese Taipei's third-party response to Panel question No. 16, para. 8.
420 Chinese Taipei's third-party response to Panel question No. 16, paras. 5-9.
421 Chinese Taipei's third-party response to Panel question No. 16, para. 9.
422 United Kingdom's third-party statement, para. 14.
423 United States' third-party response to Panel question No. 16, para. 9.
424 United States' third-party response to Panel question No. 16, para. 9 (quoting India's first written
submission, para. 40).

7.3.3.2.3 Panel's assessment
7.3.3.2.3.1 General considerations
7.103. Article 48(1) indicates that:
A State may invoke an error in a treaty as in validating its consent to be bound by the
treaty if the error relates to a fact or situation which was assumed by that State to exist
at the time when the treaty was concluded and formed an essential basis of its consent
to be bound by the treaty.
7.104. Article 48(1) sets forth four elements that must be demonstrated: (i) at the time when the
treaty was concluded, the invoking State made an assumption; (ii) that was related to a "fact or
situation"; (iii) which formed an essential basis of the State's consent to be bound by the treaty;
and (iv) the assumption was in error.
7.105. It is uncontested that the burden of demonstrating that the requirements of Article 48(1)
are satisfied in a given case rests on the party invoking Article 48.425 We recall that India's assertion
of error is that India had assumed that the transposition of its Schedule to the HS2007 did not result
in an expansion of its tariff commitments beyond those set forth in the ITA, while, according to India,
such expansion did in fact occur.
7.106. Thus, in order for India to prevail under Article 48(1), India must demonstrate that: (i) at
the time when the changes to its WTO Schedule were certified following the HS2007 transposition
process, India assumed that the scope of its WTO tariff commitments would not be expanded beyond
the scope of its ITA undertakings; (ii) that assumption related to a "fact or situation" within the
meaning of Article 48(1); (iii) that assumption formed an essential basis of India's consent to be
bound by those changes to its Schedule; and (iv) that assumption was incorrect, because following
the HS2007 transposition process the scope of India's WTO tariff commitments w as expanded
beyond the scope of its ITA undertakings. We proceed to address each issue in turn.
7.3.3.2.3.2 Whether, at the time when the changes to its WTO Schedule were certified
following the HS2007 transposition process, India assumed that the scope of its WTO
tariff commitments would not be expanded beyond the scope of its ITA undertakings
7.107. The first element of the test under 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[]".426 We therefore proceed to assess whether India held this assumption.
7.108. India argues that the existence of its assumption is demonstrated by the fact that, a t the
time of the certification of the changes to the Schedule, "India had already made its intention clear
of not expanding its obligations under the ITA [] via the HS2007 transposition or otherwise", and
"India was already levying duties beginning 2014 on certain ICT products which were ostensibly at
variance with the commitments under the contested sub-headings it was entering into at the same
time via the HS2007 transposition". 427 India refers to "several pronouncements" made by India
indicating that India did not intend to join the ITA Expansion.428 India submits that, "[c]learly, India's
intent was never to expand upon its obligations under the ITA[], with such intent having been
communicated in advance via various committee meetings as well as confirmed in practice via
certain customs tariff levies."429
7.109. Japan does not take a position regarding India's assertion of its assumption at the time that
the changes to its WTO Schedule were certified. Japan submits that there is no error regarding the

425 Japan's response to Panel question No. 14, para. 37 ("[t]he burden of proof is on the defendant
alleging the error"); India's response to Panel question No. 17, para. 55 ("the party invoking error bears the
burden of proving that the conditions under Article 48(1) have been met").
426 India's first written submission, para. 11.
427 India's first written submission, para. 47.
428 India's first written submission, para. 46.
429 India's first written submission, para. 47.

scope of the concessions at issue as the transposition did not change the scope of India's pre-existing
concessions for the products concerned.430
7.110. We note at the outset that the evidence adduced by India does not conclusively indicate
that, at the time of the transposition, it assumed that the scope of its WTO tariff commitments would
not be expanded beyond the scope of its ITA undertakings. India points primarily to the following
passage from the Minutes of the meeting held on 1 November 2012431:
2.10 The representative of India thanked Korea for hosting both the technical
discussions as well as the transparency session. India's position on the effects of ITA
was well known as articulated during the symposium in May. India's IT manufacturing
had dipped quite profusely due to the ITA I. In the spirit of 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 th e
electronics sector, as well as the overall manufacturing sector of the country. As a result,
stakeholders had expressed serious reservations and he wanted to place these
reservations on record.432
7.111. We understand that the "technical discussions" referred to in this passage concerned a
review of the product coverage of the ITA. In our view, these Minutes reveal that India had
"reservations" regarding increasing the product scope of the ITA. We see no mention of India's WTO
tariff commitments, the HS2007 trans position process or any indication of India's intentions with
respect to that process.
7.112. India also refers to the following passages of the Minutes of the meeting held on 15 May
2012433:
1.5 The representative of India thanked the Chairman for his report o n the IT
Symposium and requested that his country's name be removed from the sentence which
stated that some countries had benefited from the ITA in terms of increasing
employment, IT spending and investment.
…
3.11 The representative of India thanked the US delegation and other co-sponsors for
the concept paper. He supported the statement made by El Salvador also on behalf of
others (Guatemala, Honduras, Nicaragua and the Dominican Republic) on the fact that
the Comm ittee would need to take into account the flexibilities required by many
developing countries in the expansion of IT products. He asked the United States and
other co-sponsors a question on the concept paper regarding the issue of the critical
mass. He won dered whether there were any specific numbers in terms of the critical
mass for product expansion as proposed by the co -sponsors. His second question
concerned the mandate that the co-sponsors quoted, i.e., paragraph 3 of the Annex to
the Ministerial 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

430 Japan's second written submission, paras. 93-98.
431 India's first written submission, fn 68 to para. 40, fn 70 to para. 42, fns 76-78 to paras. 46-47, fn 82
432 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of
the meeting held on 1 November 2012, G/IT/M/56, para. 2.10.
433 India's first written submission, fn 70 to para. 42.

managing to export their products. On the issue of classification divergences, he said
that it was an issue that comprised 55 products and had not been resolved for the past
15 years. He doubted that one could just brush it aside in terms of saying that these
were complicated by HS96, HS2002 or HS2007 nomenclature changes as otherwise the
participants would have actu ally solved the problem in the first place. He posed a
question to the Secretariat regarding procedures for consultations concerning the
decision of Paragraph 3 of the Annex to the Ministerial Declaration which gave the
mandate to the CTG. He said that the re was a decision which came out later on the
implementation of the Ministerial Declaration, G/L/160. In his view, it talked about the
mandate of this particular Committee as well as the fact that the first review would be
conducted in 1997 and 1998. Howev er, there were no procedures in place for
subsequent reviews. Thus he wished to have some clarification from the Secretariat on
this.434
7.113. Paragraph 1.5 of these Minutes appears to suggest that India did not share the feeling of
some other Members that they 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.
7.114. As to paragraph 3.11, we observe that India's delegate highlighted that the issue of
classification divergences (presumably in relation to products covered by the ITA) was an issue that
affected 55 pro ducts, which had not been resolved since the signing of the ITA, and he "doubted
that one could just brush it aside in terms of saying that these were complicated by HS96, HS2002
or HS2007 nomenclature changes as otherwise the participants would have actua lly solved the
problem in the first place".435 This passage indicates to us that India was fully aware of differences
of opinion among the Members regarding the HS classification of certain ITA products. It does not
indicate to us that India assumed that the transposition of its Schedule would not expand the scope
of its WTO tariff commitments beyond the scope of its ITA undertakings.
7.115. We also note India's argument that its understanding and intentions with respect to its
Schedule were clear from the fact 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 tha t, prior to
2014, India had indeed been according duty -free treatment to almost all products at issue in this
dispute.436 Moreover, we understand that the majority of products at issue in this dispute continued
to receive duty-free treatment until as recently as 2017 (and 2018 in the case of some products).437
7.116. We do not wish to speculate on India's reasons for applying certain duties in 2014, some
months before its transposed Schedule would be certified. We are wary, however, of accepting a
Member's act of potential WTO-inconsistency as evidence that the Member misunderstood the scope
of its WTO obligations.438 To a certain extent, it would be circular if parties invoking Article 48 of the
Vienna Convention could rely on their violation of treaty obligations t o demonstrate that they
committed an "error" in agreeing to be bound by that treaty. We therefore do not consider that
India's application of duties to certain products at issue in this dispute demonstrates that, at the
time when the changes to its WTO Sch edule were certified following the HS2007 transposition

434 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of
the meeting held on 15 May 2012, G/IT/M/55, paras. 1.5 and 3.11.
435 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of
the meeting held on 15 May 2012, G/IT/M/55, para. 3.11.
436 Japan's first written submission, paras. 18, 33, 42, 49, 56, and 63. See also European Union's third-
party submission, paras. 67-68; Chinese Taipei's third-party submission, para. 3.29 and section 4.
437 See Japan's first written submission, paras. 33, 42, 56, and 63. We recognize, in making these
observations, that even if India's tariff commitments with respect to these products were "unbound" prior to
the conclusion of the transposition 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.
438 We also refer to our findings in section 7.4 below that India is acting inconsistently with
Articles II:1(a) and (b) of the GATT 1994.

process, India assumed that the scope of its WTO tariff commitments would not be expanded beyond
the scope of its ITA undertakings.
7.117. Notwithstanding our reservations regarding the evidence adduced by I ndia, we recognize
that evidence of an "assumption" may be difficult to obtain. To the extent that such an assumption
is a widely held implicit understanding, there may be little to no documentary evidence. We therefore
do not consider India's lack of docu mentary evidence sufficient to conclude that India has not met
its burden of proof with respect to the existence of its assumption. We also note India's arguments
and assertions in the course of these proceedings regarding the assumptions it held during th e
transposition process.439
7.118. On balance, taking into account the necessary evidentiary limitations attached to providing
proof of an assumption, we accept in good faith India's arguments and explanations in the course
of these dispute settlement proceedings. Accordingly, we find that, at the time of the transposition,
India assumed that the scope of its WTO commitments w as limited to the scope of its ITA
undertakings, with respect to those tariff commitments adopted by India in order to implement its
ITA undertakings, and that the scope of those tariff commitments would not be expanded through
the HS2007 transposition process.440
7.3.3.2.3.3 Whether India's assumption regarding the alleged expansion of its WTO tariff
commitments from its ITA undertakings relates to a "fact or situation" within the meaning
of Article 48(1)
7.119. The second element to be assessed in applying Article 48(1) is whether the invoking party's
assumption relates to a "fact or situation" within the meaning of Article 48(1). In this dispute, this
entails assessing whether India's assumption (i.e. that the scope of its WTO tariff commitments
would not be expanded beyond the scope of its ITA undertakings) relates to "a fact or situation"
within the meaning of Article 48(1).
7.120. India argues that "the 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".441 According to India,
"[t]hat a mistaken 'fact or situation' may have legal consequences (as indeed all contest ed errors
would) does not make the error a legal error". 442 India submits that its "factual or situational error
was in relation to the inadvertent expansion of the scope of its commitments via the
2007 transposition, which was contrary to India's stated position and intent of not expanding upon
its ITA[] commitments". 443 In India's view, "similar errors relating to technical entries have
previously been considered as a potential ground for invalidity in international law."444
7.121. Japan submits that the l anguage "fact or state of facts" in the draft Article 48 was revised
to "fact or situation" to avoid the possibility that the French version could have been read as
encompassing errors of law.445 Japan considers that "[a]s an integral part of the WTO Agreem ent,
India's Schedule based on the HS 2007 is (part of) an international treaty and thus constitutes
international law".446 Japan asserts that "India's alleged error clearly constitutes an error of law",

439 See e.g. India's first written submission, para. 46; and opening statement at the second meeting of
the Panel, para. 26.
440 In coming to this conclusion, we note that the application of the legal standard under Article 48 not
only requires that the invoking party held an assumption, but requires the invoking party to demonstrate that
such assumption constituted an essential 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.
441 India's response to Panel question No. 44, para. 30. See also India's second written submission,
paras. 7 and 21-23.
442 India's second written submission, para. 23. See also India's response to Panel question No. 44,
para. 30.
443 India's second written submission, para. 23.
444 India's response to Panel question No. 44, para. 30.
445 Japan's second written submission, para. 105 (referring to T. Rensmann, "Article 48" in O. Dörr and
K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14),
pp. 886-887, para. 19).
446 Japan's second written submission, para. 106.

since the alleged error concerns "the 'material scope ' of [India's] rights and obligations under its
Schedule", and this error of law "cannot be used by India to invoke Article 48".447
7.122. We note that India does not dispute that purely legal errors (for instance, a mistaken
interpretation of a legal obligation contained in a treaty) do not qualify as errors relating to a fact or
situation, within the meaning of Article 48(1). 448 Indeed, we agree with the parties that pure legal
error falls outside the scope of Article 48(1).449 At the same time, we recognize that a Commentary
to the Vienna Convention suggests that "[a]n error of law may … qualify as a ground for vitiating
consent if it also raises questions of fact."450
7.123. We have concluded above that the ITA is not a covered agreement and does not set forth
India's 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 concerns the scope of
the tariff commitments contained in its WTO Schedule and ther efore 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.
7.124. We recall that, for India to prevail under Article 48(1), it must prevail with respect to each
element thereof. Therefore, in light of our findings regarding the next element under Article 48(1)
(in section 7.3.3.2.3.4 below), we do not consider it necessary to make a determination as to
whether India's alleged error relates to a fact or a situation, within the meaning of Article 48(1).
7.3.3.2.3.4 Whether India's assumption that the transposition of its WTO Schedule to the
HS2007 would not expand the scope of its WTO tariff commitments from its ITA
undertakings formed an essential basis of India's consent to be bound by its WTO
Schedule
7.125. 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 undertakin gs) constituted an
essential basis for its consent to be bound by its HS2007 Schedule.
7.126. India argues that "it should be evident that India would not have certified the contested sub-
headings in its 2007 Schedule had it not been in error" and that "India ha d communicated to the
wider WTO membership previously that it did not intend to expand its tariff commitments beyond
those contained in the ITA[]". 451 As evidence of these communications, India refers to the same
evidence and arguments adduced to demonstrat e the existence of its assumption, specifically
"several pronouncements" made by India indicating that India did not intend to join the
ITA Expansion.452 India argues that "[c]learly, India's intent was never to expand upon its obligations
under the ITA[] – with such intent having been communicated in advance via various committee

447 Japan's second written submission, paras. 106-107. See also Japan's response to Panel question
No. 44, para. 71; opening statement at the second meeting of the Panel, para. 14.
448 See e.g. India's second written submission, paras. 22-23; response to Panel question No. 44.
449 The principle that errors of law fall outside the scope of Article 48(1) is outlined in the Commentary
on the Vienna Convention. A Commentary on the Vienna Convention indicates that "[a]s a general rule, an
error of law cannot in itself be regarded as 'an error relating to a fact or situation'" and that "[e]rrors relating
to international law are genuine errors of law and are as such immaterial under Art 48 para. 1". (T. Rensmann,
"Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn
(Springer, 2018), (Exhibit IND-14), pp. 886 and 888). We agree with this reasoning. We further note that in
the Eastern Greenland case, Petroleum Development v Sheikh of Abu Dhabi, and the Temple of Preah Vihear,
the relevant international tribunals consistently found that errors of law may not be invoked as invalidating
consent to be bound by a treaty. (Ibid. p. 887 (referring to PCIJ, Legal Status of Eastern Greenland (Denmark
v. Norway), Judgment of 5 September 1933: PCIJ (ser. A/B) No. 53.; Petroleum Development (Trucial Coast)
Ltd v Sheikh of Abu Dhabi (1951) 18 ILR 144; and ICJ, Case concerning the Temple of Preah Vihear (Cambodia
v. Thailand), Preliminary Objections, Judgment of 26 May 1961: ICJ Reports 1961, p. 17, at p. 30)).
450 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of
Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14), p. 888. (emphasis omitted)
451 India's second written submission, para. 25.
452 India's first written submission, para. 46.

meetings as well as confirmed in practice via certain customs tariff levies." 453 India argues that "if
India were already aware that the HS2007 transposition was going to expand its commitments
beyond the ITA[] and had gone as far as to caution against such potential expansion specifically, it
would not have certified the schedule in error as it did."454
7.127. Japan considers that "the treaty as a whole to which India was giving its consent, and which
would have been affected by the alleged error, was India's Schedule based on the HS2007".455 Japan
argues that India "has never argued that it would not have agreed to the transposition of its Schedule
based on the HS2007 'as a whole' had it bee n aware of the alleged mistaken understanding", and
consequently India has failed to demonstrate that the alleged error formed an essential basis of its
consent to be bound by the treaty.456 Japan further argues that, "because the error alleged by India
does not exist, there was no error at the time when the treaty was concluded."457
7.128. We observe that the procedures to be followed in conducting the transposition of Members'
Schedules to the HS2007 were regulated in a series of documents that were approved by
WTO Members and which are publicly available. The overarching procedural framework for the
transposition process was established in the General Council Decision of 15 December 2006 on
A Procedure for the Introduction of Harmonized System 2007 Changes to Schedules of Concessions
Using the Consolidated Tariff Schedules (CTS) Database, WT/L/673 (General Council Decision on
HS2007 Transposition Procedures ).458 The General Council Decision further indicates certain
procedural steps to be followed by the Secretariat. Specifically, the Secretariat had to "abide by the
technical procedures described in Annex 2 to th[e] Decision".459 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". 460 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.461
7.129. We also note that, as part of the WTO Secretariat's preparations for the transposition of
developing country Members' Schedules, the Committee on Market Access approved document
G/MA/283, titled "Transposition of Members' CTS Files to the HS 2007 Nomenclature – Notes on
Methodology" (hereafter "document G/MA/283").462 This document, in its introduction, explains that

453 India's first written submission, para. 47.
454 India's response to Panel question No. 64, para. 32.
455 Japan's second written submission, para. 114.
456 Japan's second written submission, para. 114.
457 Japan's comments on India's response to Panel question No. 61, para. 42.
458 See e.g. India's first written submission, fn 32 to para. 21, fn 51 to para. 31, and fn 100 to para. 48;
and Japan's opening statement at the first meeting of the Panel, para. 37 and fn 31 thereto.
459 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 5.
460 General Council Decision on HS2007 Transposition Procedures, WT/L/673, Annex 2, para. 7.
461 Committee on Market Access, International Convention on the Harmonized Commodity Description
and Coding System – Changes in the Harmonized System to be introduced on 1 January 2007, G/MA/W/67;
and Committee on Market Access, Harmonized Commodity Description and Coding System – Changes in the
Harmonized System to be Introduced on 1 January 2007, G/MA/W/76. We note that none of the parties
appears to have referred to document G/MA/W/76 in their submissions to the Panel. It is, however, explicitly
referenced in the General Council Decision on HS2007 Transposition Procedures contained in document
WT/L/673, which is referred to by the parties. (See e.g. India's first written submission, fn 80 to para. 48). We
therefore consider that the parties and the Panel were on notice of this document's potential relevance to the
issues arising in this dispute. Moreover, since document WT/L/673 is relied upon by the parties, and explicitly
refers to document G/MA/W/76, we consider that, as a publicly accessible WTO document, document
G/MA/W/76 is part of the official record. In our 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.
462 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

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". 463 Furthermore, Annex I of document
G/MA/283 contains the HS2002 to HS2007 correlation tables prepared by the WTO Secretariat,
based on document G/MA/W/76, but update d to account for "[f]urther amendments to the HS by
the WCO".464
7.130. Having reviewed these documents governing the conduct of the transposition process, we
see no mention of the ITA. We therefore understand that, for all intents and purposes, WTO Members
and the WTO Secretariat did not consider the ITA to be relevant to the transposition process. Rather,
WTO Members appeared to share an understanding that the transposition exercise would follow the
correlation tables that were prepared at the multilateral level by the WCO, updated by the WTO
Secretariat, and approved multilaterally by the WTO Members themselves at the General Council
and the Committee on Market Access. 465 Importantly, these correlation tables identified the
"correlations" between HS2007 tariff items and HS2002 tariff items – in other words, how the
product scope of tariff items under the HS2002 overlapped with that of tariff items under the
HS2007.466 Since these procedures did not contemplate any kind of comparison or discussion of the
ITA, we 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.
7.131. These documents indicate that, in the absence of any evidence to the contrary, India's
governing assumption and intention, during the transposition of its Schedule, was for the WTO
Secretariat to follow the agreed -upon procedures, including the relevant agreed -upon correlation
tables. The fact that India approved the content of thes e documents governing the transposition
process, including at the General Council and in the Committee on Market Access, without objection,
indicated at the time to the WTO Members and to the WTO Secretariat (and indicates to us now)
that India intended fo r the transposition of its Schedule to follow those multilaterally approved
procedures, including the relevant correlation tables.467
7.132. It is in this context that we observe India's assertion that "the WTO Membership, at large,
including Japan, could not 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".468 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.469 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.
7.133. We have reviewed the Minutes of these meetings in paragraphs 7.110 to 7.114 above. We
see no indication in any of India's statements during those meetings that India's willingness to be
bound by the changes to 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 proceedings to the
statements made by India during those meetings reveals no overlap. We therefore do not see any
evidence of India's alleged "persistent expression of its stand to not be bound by commitments
beyond the ITA[] via any process which would have such an effect".470

question to the parties. It is, however, referenced numerous times in an Exhibit submitted to the Panel by
India. (See Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49), Attachment 3, CTS HS2007
Transposition Note XII - India). In accordance with our approach to document G/MA/W/76, we consider that
document G/MA/283 is part of the official record. (See fn 462 to para. 7.129 above).
463 G/MA/283, paras. 1-2.
464 G/MA/283, Annex I, fn 1 on p. 24.
465 See WT/L/673, Annex 2, paras. 1-7. See also G/MA/W/67; G/MA/W/76; and G/MA/283.
466 The WCO communication emphasizes that the correlation tables "are not to be regarded as
constituting classification decisions" by the HS Committee, constitute "a guide published by the [WCO]
Secretariat", and "do not have legal status". (G/MA/W/76, p. 1). (emphasis omitted)
467 WT/L/673; G/MA/W/67; G/MA/W/76; and G/MA/283.
468 India's second written submission, para. 31.
469 India's response to Panel question No. 64, para. 31; first written submission, para. 46; and fn 193 to
para. 125.
470 India's response to Panel question No. 64, para. 31.

7.134. In our view, aspects of these Minutes indicate that Members disagreed as to the tariff
classification of products falling under the ITA .471 Thus, India was on notice that there was a
difference of opinion among ITA participants regarding certain classification issues, including with
respect to the scope of their ITA undertakings. This makes India's failure to highlight its alleged
assumption regarding the relationship between the ITA and its WTO tariff commitments during the
transposition process even more glaring, considering its present assertion that this assumption
constituted an essential basis for its consent to be bound by its transposed Schedule.
7.135. We also note that in these dispute settlement proceedings India has not sought to
demonstrate that any technical errors occurred during the transposition process.472 India does argue
that the WTO Secretariat, in preparing India's transposition files, acted inconsistently with
paragraph 4 of the General Council Decision on HS2007 Transposition Procedures, because the
Secretariat failed to clearly flag certain tariff items "for which a change in the scope of a concession
may have occurred due to t he complex technical nature of the transposition". 473 We address that
issue further below. 474 For our present purposes, however, we note that India has not sought to
demonstrate that the Secretariat incorrectly applied the correlation tables that were agreed upon by
Members (in particular the correlation tables that were approved by the General Council and the
Committee on Market Access).
7.136. Thus, notwithstanding that the transposition was conducted in accordance with the agreed-
upon correlation tables, India 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 concessions in the transposed HS2007 Schedule was no broader than the scope of i ts
obligations in the ITA. In our view, if India had held such condition to be fundamental to its
willingness to be bound by the outcome of the transposition process, it would have made this
condition obvious. Indeed, as discussed in greater detail below, India had numerous opportunities
to do so. 475 Based on the evidence before us, we can see no point at which India made such a
statement or otherwise expressed that intention.
7.137. We note that in support of its arguments under Article 48, India submits as evidence a Legal
Opinion by Professor Waibel. 476 In our view, Professor Waibel's Legal Opinion is inapposite insofar
as it relates to the evidentiary question of whether India's 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.
7.138. We recognize Professor Waibel's assertion that "[t]here is no indication, given India's
persistently expressed desire to the contrary, that India wished to expand the coverage of its existing
tariff bindings under the ITA []".477 As explained above, however, India's agreement on the
correlation tables and procedures 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.
7.139. To sum up, we recall that the burden of proof under Article 48(1) is on India. With respect
to this element of Article 48(1), India has pro vided no persuasive evidence that its assumption
constituted an essential basis of its consent to be bound by the certified Schedule. To the contrary,

471 This may be read from the 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
472 See India's response to Panel question No. 64(b).
473 India's first written submission, fn 81 to para. 48.
474 See section 7.3.3.3.3.2 below.
475 See para. 7.206 below.
476 Prof. M. Waibel, Legal Opinion on Error, (Exhibit IND-76).
477 Prof. M. Waibel, Legal Opinion on Error, (Exhibit IND-76), para. 37.

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 commitmen ts would not be
expanded beyond the scope of its ITA undertakings was in error
7.140. The fourth element of the test under Article 48(1) is whether the invoking party's assumption
was in error. In this dispute, that entails assessing whether the scope of India's WTO tariff
commitments was expanded beyond the scope of its ITA undertakings.
7.141. 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. 478 India explains that if it
"never intended to undertake tariff commitments on ICT products beyond those contained in the
ITA[] (with the commitments under the contested sub -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
obligations beyond those in the ITA[])".479 India also emphasizes that it never intended to undertake
concessions with respect to products covered under the ITA Expansion, and that "[t]here were simply
no negotiations or commitments undertaken by India with respect to products tha t are specifically
covered within the ITA [Expansion]".480
7.142. Japan argues that "India has not provided any evidence in support of its allegation that the
scope of the tariff concessions regarding the Products Concerned changed when its Schedule was
transposed from the HS2002 to the HS2007 ", and "[g]iven that there has been no change in the
scope of the concessions concerned, that transposition could not have been the source of any 'error'
by India as to the scope of the commitments ".481 Japan argues that there is no error in relation to
the scope of India's commitments, because the transposition to the HS2007 constituted "a mere
process of transposing from the previous version which did not change the scope of the pre-existing
concessions of India".482 Japan considers that the fact that India's concessions already covered the
products at issue "is demonstrated by the correlation tables between the HS2002/HS1996 and the
HS2007 which were prepared by the WTO Secretariat and circulated to the WTO Members. "483
Moreover, Japan considers that a document prepared by the WTO Secretariat at the request of the
Chairman of the Committee of Participants on the Expansion of Trade in Information Technology
Products, which was circulated to WTO Members, " clearly indicates that th e Products Concerned
were included in the duty-free concessions in India's Schedule based on the HS2002".484
7.143. We recall that the ITA is not a covered agreement . Moreover, given the cumulative nature
of the elements under Article 48(1) and our finding that 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.
7.144. First, we emphasize that India's assertion of error concerns a purported expansion in the
scope of its WTO tariff commitments as compared to the ITA. We recall that the HS2007 transposition
process did not take into account and did not purport to transpose Members ' ITA undertakings.
Rather, the HS2007 transposition process sought to transpose Members' WTO tariff commitments
from the HS2002 to the HS2007. In this respect, India does not argue that any technical mistakes

478 India's first written submission, paras. 49 and 75-194.
479 India's first written submission, para. 49.
480 India's first written submission, para. 51.
481 Japan's opening statement at the second meeting of the Panel, para. 13. See also Japan's second
written submission, para. 95.
482 Japan's opening statement at the first meeting of the Panel, para. 39.
483 Japan's response to Panel question No. 44, para. 70 (referring to document JOB(07)/96 (25 June
2007)).
484 Japan's second written submission, para. 96 (referring to document JOB(07)/96 (25 June 2007)).

occurred in the transposition of its Schedule to the HS2007. 485 As noted above, it is uncontested
that the WTO Secretariat correctly followed the correlation tables communicated by the WCO,
updated by the WTO Secretariat, and approved by the General Council and the Committee on Market
Access.486
7.145. As indicated, however, India argues that its mistaken assumption at the time that it agreed
to be bound by its HS2007 Schedule was not in relation to the 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 Schedule. 487 In this respect, we have already concluded above that India is
mistaken with respect to the relationship between the ITA and its WTO Schedule.488 Specifically, we
concluded that as a general rule the product scope of Members' tariff concessions contained in their
WTO Schedules evolves over time to capture products that may come into existence as a r esult of
technological developments, and that this general rule is not changed for certain WTO Members by
virtue of their participation in the ITA.489
7.146. Second, we also note that the parties have conducted a substantial exchange of views
regarding whether the ITA and India's WTO tariff commitments in its HS1996 Schedule covered
"telephones for cellular networks or for other wireless networks". We note, in particular, that India's
arguments with respect to several other products at issue in this dispute appear to be premised on
its argument that telephones for cellular networks or for other wireless networks were not covered
by the ITA.490 Given the importance that the parties attribute to this issue, we consider it useful to
address the parties' arguments as to whether these products were covered by India's tariff
concessions in its WTO HS1996 Schedule.
7.147. In this respect, India argues that it is not obliged to provide duty -free treatment to
"telephones for cellular networks or for other wireless networks" in its WTO HS2007 Schedule,
because its commitment s under the ITA did not extend to such products. 491 India argues that
"transmission apparatus" within the meaning of tariff item 8525.20 of the HS1996 referred
specifically to "transmission apparatus for radio -telephony or radio telegraphy". 492 India submits
that such transmission apparatus were defined in the HS1996 Explanatory Notes as apparatus "which
allowed the transmission of signals representing (1) speech, (2) messages, or (3) still pictures ".493
India considers that "apparatus which could transmit signals representing videos or any other media
(other than the three listed above) could not be included in the scope of sub-heading 8525.20 under
HS1996".494 Regarding an amendment to the HS1996 Explanatory Notes adopted in 1998, India
argues that "[s]ince LET/181 was certified on October 2, 1997, the product scope agreed upon by
India is what is delineated by the Explanatory Notes as on October 2, 1997" and "such amendment
is subject to the main definition of Transmission Apparatus for Radio Telephony or Radio

485 See India's responses to Panel question No. 64. Specifically, while India considers that certain
changes were not flagged by the WTO Secretariat, as required under the relevant 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. 33). India also
agrees that no mistakes occurred in any prior transpositions of its WTO Schedule. (India's response to Panel
question No. 59).
486 We therefore see no need to examine the accuracy of the WCO's correlation tables, the updated
correlation tables prepared by the WTO Secretariat and approved by the General Council and the Committee on
Market Access, or the transposition process as undertaken by the WTO Secretariat. (See also para. 7.206
below).
487 India's opening statement at the second meeting of the Panel, para. 26.
488 See section 7.3.2.3 above.
489 See para. 7.67 above.
490 The parties' arguments with respect to "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. 131-158 and 176-194).
491 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. 133).
492 India's first written submission, para. 134. 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)).
493 India's second written submission, para. 87.
494 India's second written submission, para. 43.

Telegraphy".495 India submits that mobile phones capable of transmitting video were, in fact,
classified under tariff item 8543.89 of the HS1996, which covers "other" products falling under
heading 8543, which covers "electrical machines and apparatus, having individual f unctions, not
specified or included elsewhere in this Chapter".496
7.148. Japan argues that telephones for cellular networks or for other wireless networks were
classified as "transmission apparatus incorporating reception apparatus" under tariff item 8525.20
of the HS1996, and were therefore covered by India's ITA undertaking with respect to this tariff
item.497 Japan considers that this is revealed by the ordinary meaning of India's WTO Schedule based
on the HS1996.498 Japan also argues that the Explanatory Notes to headings 8517 and 8525 of the
HS1996 reveal that cellular telephones or mobile phones, including car telephones, were classified
under heading 8525.499
7.149. It is uncontested that, under the ITA, India undertook to provide duty -free treatment to
"transmission apparatus incorporating reception apparatus", falling under tariff item 8525.20 of the
HS1996.500 India implemented this undertaking in its WTO HS1996 Schedule, such that a bound
duty rate of 0% was inscribed with respect to "[t]ransmission apparatus incor porating reception
apparatus" falling under tariff item 8525.20 of the HS1996. 501 The issue debated by the parties is
whether cellular telephones or mobile phones (presently classified under tariff item 8517.12 of
India's WTO HS2007 Schedule) were classifie d under tariff item 8525.20 of India's WTO HS1996
Schedule.
7.150. We understand that mobile phones, on their face, are indeed transmission apparatus
incorporating reception apparatus.502 Based on its ordinary meaning, we therefore see no reason to
consider that 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.
7.151. It is also uncontested that the HS1996 and its Explanatory Notes constitute relevant
contextual aids for inte rpreting the scope of India's WTO tariff commitments as set forth in its
HS1996 Schedule. We note India's argument that the HS1996 Explanatory Notes exhaustively
defined transmission apparatus falling under tariff item 8525.20 as apparatus "which allowed t he
transmission of signals representing (1) speech, (2) messages, or (3) still pictures" , such that
"apparatus which could transmit signals representing videos or any other media (other than the
three listed above) could not be included in the scope of sub -heading 8525.20 under HS1996". 503

495 India's opening statement at the second meeting of the Panel, para. 48.
496 India's second written submission, para. 104; response to Panel question No. 63, para. 27.
497 Japan's second written submission, para. 232.
498 Japan considers that "'telephones for cellular networks' refer to devices which are used for the
transmission of voice by means of a wireless system distributed over cells which are served by radio signal
transmission machines" and that "'telephones for other wireless networks' refers to an unspecified group of
devices which are used for the transmission of voice data on the basis of a wireless network which is distinct
from a cellular network". (Japan's second written submission, para. 233). Japan notes that the term
"transmission apparatus" in tariff item 8525.20 of India's WTO Schedule based on the HS1996 "refers to a
piece of equipment which is designed for transmitting, that is transferring a form of intelligence by means of a
communication system". (Ibid. para. 234). Japan further observes that the wording of heading 8525 in that
Schedule refers to transmission apparatus for "radio-telephony", which is defined as "a two-way transmission
of sounds by means of modulated radio waves, without interconnecting wires". (Ibid. (referring to McGraw-Hill
Dictionary of Scientific and Technical Terms (6th edn), definitions of "carrier", "carrier current" and
"radiotelephony" (McGraw-Hill, 2002), (Exhibit JPN-68), p. 1740)).
499 Japan's second written submission, paras. 236-238 (referring to HS1996 Explanatory Notes to
Headings 8517 and 8525, (Exhibit JPN-69), p. 1487a).
500 See e.g. India's first written submission, para. 132.
501 WT/Let/181.
502 A 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 that 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)).
503 India's second written submission, para. 43.

India considers that because " [t]elephones for cellular networks can transmit signals representing
data other than speech, messages or still pictures ", they fall outside the scope of heading 8525 of
the HS1996.504
7.152. The 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.
7.153. We further note that the HS1996 Explanatory Notes, as of June 1998, unambiguously
indicate that cellular and mobile phones were in deed classified under tariff item 8525.20 of the
HS1996.505 Regarding India's argument that these Explanatory Notes are not relevant because they
are based on an amendment that was adopted in 1998, and "the product scope agreed upon by
India is what is delineated by the Explanatory Notes as on October 2, 1997"506, as we have explained
above, we consider that Members' WTO commitments are not static, and India has not pointed to
any provision of the ITA indicating that Members' WTO tariff commitments undertaken in relation to
the ITA would exclude products that subsequently come into existence due to technological
development and that would otherwise fall within the scope of that tariff item. In short, we see no
basis to exclude an amendment of the Explanatory N otes from our consideration. As stated, t he
HS1996 Explanatory Notes suggest that tariff item 8525.20 of the HS1996 covered mobile phones.
7.154. We note that as an alternative to tariff item 8525.20, India submits that mobile phones were
in fact classified 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"). 507 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."508
Moreover, if goods cannot otherwise be c lassified, they shall be "classified under the heading
appropriate to the goods to which they are most akin".509 In our view, heading 8525 of India's WTO
HS1996 Schedule provides a more specific description of "telephones for cellular networks or for
other wireless networks" than heading 8543 of that Schedule and, in any event, such products are
more akin to transmission apparatus capable of transmitting speech, messages, and still pictures
than they are to the more generic definition of "electrical machines and apparatus, having individual
functions".
7.155. We therefore understand that India's WTO tariff commitments in its HS1996 Schedule with
respect to "[t]ransmission apparatus incorporating reception apparatus" falling under tariff item
8525.20 covered, inter alia, telephones for cellular networks or for other wireless networks. We note
that when India's Schedule was transposed to the HS2002, th ese commitments remained
unchanged.510 Following the transposition of its Schedule to the HS2007, the commitment s under
tariff item 8525.20 of the HS2002 w ere split into four distinct HS2007 tariff items, including tariff
item 8517.12 of the HS2007, which covers "[t]elephones for cellular networks or for other wireless
networks".511 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

504 India's second written submission, para. 43.
505 The HS1996 Explanatory Notes, as of June 1998, indicate that "[c]ellular telephones or mobile
phones, including car telephones, are classified in heading 85.25" and that the group of apparatus constituting
"transmission apparatus for radio-telephony or radio-telegraphy" 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)". (HS1996 Explanatory Notes to Headings 8517 and 8525, (Exhibit JPN-69)).
506 India's opening statement at the second meeting of the Panel, para. 58.
507 India's second written submission, para. 104; response to Panel question No. 63, para. 27.
508 See General Rules for the Interpretation of the Harmonized System, (Exhibit JPN-60), Rule 3(a).
509 See General Rules for the Interpretation of the Harmonized System, (Exhibit JPN-60), Rule 4.
510 WT/Let/886.
511 See G/MA/283; and WT/Let/1072.

process, and following the HS2007 transposition exercise are presently set forth in tariff item
8517.12 of India's HS2007 Schedule.512
7.156. To conclude, we recall that, in light of our findings with respect to the third element of
Article 48(1), it is not necessar y for us to form a definitive conclusion on the fourth element. We
nevertheless considered it useful to make certain observations regarding the parties' arguments on
whether India erred in assuming that the scope of its WTO tariff commitments did not expan d as
compared to the ITA. To that end, we have observed, first, that India has not argued that any
transpositions of its WTO Schedule were conducted inconsistently with the relevant correlation tables
agreed to by Members. We have further observed that India's argument of "error" in invoking Article
48 relates to the scope of the ITA as compared to its WTO HS2007 Schedule and, in this respect,
we have already concluded that India misunderstands the relationship between the ITA and its WTO
Schedule. Second, we have observed that India's tariff commitments in its HS2007 Schedule with
respect to products presently classified under tariff item 8517.12 did not expand from India's tariff
commitments in its WTO HS1996 Schedule.513 While we do not consider these 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)
7.157. To conclude, we consider that India has failed to demonstrate that India's assumption that
the scope of its tariff concessions in its WTO Schedule would be limited to the scope of its ITA
undertakings constituted an essential basis for India's willingness to be bound by the changes to its
Schedule. We therefore consider that India has failed to meet its burden of proof with respect to
Article 48(1) of the Vienna Convention, and consequently reject India's invocation of error under
Article 48 of the Vienna Convention as a ground for invalidating aspects of its WTO Schedule.
7.158. Having come to this conclusion with respect to Article 48(1), it could suffice for us to conclude
our analysis of Article 48 here. 514 Nevertheless, we consider it useful for purposes of resolving the
parties' dispute to continue to address the parties' arguments regarding Article 48(2).
7.3.3.3 Article 48(2)
7.3.3.3.1 Main arguments of the parties
7.159. India submits that the burden of "proving the vitiating circumstances" described in
Article 48(2) falls on the "party opposing the plea of error" (i.e. the complainant). 515 In any event,
India argues that its error "was in the context of a complex and technical transposition exercise
undertaken by the WTO Secretariat" and that it "neither contributed actively to such an error nor
was there a circumstance that put it on notice of such possible error". 516 India 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." 517 India further
submits that Article 48(2) requires the party claiming error "to have employed all reasonable (rather

512 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. 156, 184, and 192).
513 We also noted that this interpretation of India's tariff commitments with respect to tariff item
8517.12 of Its WTO HS2007 Schedule implies that India's tariff commitments with respect to products falling
under tariff items 8517.61 and 8517.70 of its WTO HS2007 Schedule similarly have not expanded. (See fn 512
to para. 7.155 above).
514 See para. 7.88 above.
515 India's second written submission, para. 26 (referring to T. Rensmann, "Article 48" in O. Dörr and
K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14),
p. 893).
516 India's first written submission, para. 53.
517 India's first written submission, para. 56. See also India's second written submission, para. 30.

than possible) means of establishing the facts when concluding the treaty and of having taken
precautions to avoid any error".518
7.160. India submits that its error "was not unlikely given the surrounding circumstances (including
that of an admittedly complex technical transposition which was not flagged)". 519 India also notes
that "the communication (Transposition Note) received from the Secretaria t accompanying the
Transposition Files specifically mentioned certain 'technical issues' and 'complex changes' – but …
those notations by the Secretariat did not cover the tariff lines at issue in the present dispute." 520
India also submits that prior to the certification of the Schedule, its "unequivocal public stance" had
been that "it would not commit to obligations beyond those under the ITA[]".521 India considers that
the panel's findings in Korea – Procurement suggest that "there exists a duty for all n egotiating
parties to verify the concessions being offered" and "[i]n the present context, that would imply that
Japan ought to have reconciled India's stance of intending no further commitments on ICT products
vis-à-vis its certification of the 2007 Schedule".522
7.161. Japan submits that the party alleging an error bears the burden of proof under Article 48,
including Article 48(2). 523 Japan further argues that " the applicable standard for a state's due
diligence is that expected of qualified government officials".524 Japan also considers that " Article 48
of the Vienna Convention does not require that the contribution to the error be 'substantial'". 525
Japan highlights that during the process "leading to the certification of the 2007 Schedule, India's
representatives repeatedly examined the relevant documents and had ample opportunity to avoid
or correct the alleged error". 526 According to Japan, "India cannot be relieved of its obligations by
hiding behind the allegedly 'complex' transposition process."527 Japan highlights that India "chose to
seek assistance from the WTO Secretariat", with the consequence that "India assumed the
responsibility to verify the accuracy of th[e] file". 528 Japan notes that in accordance with the
Transposition Procedure, "concordance tables outlining the changes between the HS 2002 and the
HS 2007" were provided by the WTO Secretariat to Members in January 2007, "well in advance of
India's certification process in 2015".529 Japan notes that India "failed to make any inquiries about
or objections to the tariff lines at issue, even when it was requested to review the revised file
containing those tariff lines".530 Japan therefore submits that "India, by its own negligent behavior

518 India's first written submission, para. 52 (quoting M. E. Villiger, Commentary on the 1969 Vienna
Convention on the Law of Treaties (Martinus Nijhoff, 2009), (Exhibit IND-13), p. 609; and referring to T.
Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd
edn (Springer, 2018), (Exhibit IND-14), p. 894). (emphasis omitted) See also India's second written
submission, para. 29.
519 India's second written submission, para. 31. In a Legal Opinion submitted by India as evidence in
support of its assertions, Professor Waibel submits that "for the most part, the error was not of India's making,
and any contribution by India to the error is minor and excusable rather than substantial". (Prof. M. Waibel,
Legal Opinion on Error (Exhibit IND-76), para. 39). Professor Waibel states that the "WTO Secretariat carried
out the 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)).
520 India's response to Panel question No. 18, para. 57 (referring to Email from IDB, WTO, to India
(8 November 2013), (Exhibit IND-49), Attachment 3, CTS HS2007 Transposition Note XII – India).
521 India's first written submission, para. 58.
522 India's first written submission, para. 60.
523 Japan's response to panel question No. 48, para. 84; second written submission, para. 76; opening
statement at the second meeting of the Panel, para. 16. Japan notes that "India that has most of the relevant
information and evidence to prove that the conditions of Article 48(2) of the Vienna Convention are met, and
that it is difficult for Japan to access such information and evidence". (Japan's response to panel question
524 Japan's second written submission, para. 124.
525 Japan's opening statement at the second meeting of the Panel, para. 17.
526 Japan's second written submission, para. 126. Japan states that "[a]s a sovereign state engaging in
international trade and concluding international treaties, India is bound by the actions of its competent
representatives." (Ibid.).
527 Japan's second written submission, para. 126.
528 Japan's second written submission, para. 128.
529 Japan's second written submission, para. 131 (referring to General Council Decision on HS2007
Transposition Procedures, WT/L/673, para. 1; Canada's third-party submission, paras. 13 and 15).
530 Japan's second written submission, para. 132.

and failure to properly verify its tariff commitments, c aused or at least contributed to the alleged
error, assuming arguendo that such error exists".531
7.162. Japan also argues that even if India did not contribute to the alleged error, "it is clear that
India was put on notice of what would allegedly constitute its error".532 Specifically, Japan considers
that "India had sufficient time and materials to carefully study the proposed transposition file,
including all changes in India's concessions which would occur as a result of the transposition if any,
and was aware of what it must do if it did not agree to have its updated Schedule certified."533 Japan
also considers that the fact that the contested tariff items were not flagged does not demonstrate
that India was not on notice of the alleged error.534 Japan submits that "the fact that the contested
sub-headings were not flagged indicates that there were no changes in the scope of concessions"
and, in any event, "India was informed of how the transposition process would be conducted", such
that "India must have known of … the alleged error".535
7.3.3.3.2 Main arguments of the third parties
7.163. Brazil does not take a position on the application of Article 48(2) in this dispute, but considers
that "the current international jurisprudence regarding error in the consent of treaties and Article 48
establishes a very high threshold for demonstrating that the consent of a party to an agreement was
made in error".536
7.164. Canada argues that "[u]pon review of the draft HS07 file, despite the available information,
India did not inquire further as to the scope of the concessions and thus, by its own conduct, arguably
contributed to the alleged error regarding the scope of such concessions."537 Furthermore, according
to Canada, "the availability of …[HS] 2007 concordance documentation may further suggest that the
circumstances were such as to put India on notice as to a possible error in understanding the scope
of the concessions". 538 Canada considers that "[i]n the draft HS07 file prepared for India by the
Secretariat, the tariff lines at i ssue in this case were not flagged by the Secretariat as possibly
changing the scope of the concessions".539 Canada also considers that "[t]he jurisprudence on Article
48 further suggests that it is difficult to invoke Article 48 where qualified personnel of a State review
the documentation at issue". 540 Canada considers that, "absent any indication to the contrary by
India, there is a presumption that qualified personnel reviewed the draft HS07 file prior to its
certification by India".541 Canada also 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". 542 Canada submits that "the
Secretariat offered the results of its transposition procedures to India, and India, in exchange, was
required to review and verify the Schedule and to make any relevant inquiries if something was
uncertain or unclear."543
7.165. The European Union considers that India "had ample opportunity to review the drafts, to
request clarifications and provide comments and, if necessary, to object to the transposition to

531 Japan's second written submission, para. 133.
532 Japan's second written submission, para. 135.
533 Japan's second written submission, para. 137.
534 Japan's second written submission, para. 138.
535 Japan's second written submission, paras. 138-139. (emphasis original)
536 Brazil's third-party submission, para. 21 (referring to ICJ, Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports 1962, p. 6; ICJ, Kasikili/Sedudu
Island (Botswana v. Namibia), Judgment of 13 December 1999: ICJ Reports 1999, p. 1045; PCIJ, Legal Status
of Eastern Greenland (Denmark v. Norway), Judgment of 5 September 1933, PCIJ (ser. A/B) No. 53; and ICJ,
Case concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands), Judgment of 20 June 1959:
ICJ Reports 1959, p. 209). See also Brazil's third-party response to Panel question No. 17.
537 Canada's third-party submission, para. 13.
538 Canada's third-party submission, para. 13.
539 Canada's third-party submission, para. 15.
540 Canada's third-party submission, para. 19 (referring to ICJ, Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports 1962, p. 6 (Exhibit IND-3), at
p. 26).
541 Canada's third-party submission, para. 19.
542 Canada's third-party submission, para. 16 (referring to ICJ, Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports 1962, p. 6 (Exhibit IND-3), at
p. 26).
543 Canada's third-party submission, para. 18.

HS 2007 prepared by the WTO Secretariat", and by failing to do so "India contributed by its own
conduct to the alleged error." 544 The European Union further argues that "[i]t was clear from the
terms of draft transposition prepared by the WTO Secretariat that the concessions for the HS 2007
subheadings at issue in this dispute did cover 'new products' which did not exist when the ITA[] was
negotiated" and, moreover, "the findings made by the panel in the EC – IT Products case, as well as
the views expressed by a large number of Members in that dispute, should have alerted India to the
possibility that India's assumption that GATT concessions linked to the ITA[] did not cover 'new
products' could be in error."545 The European Union thus considers that the error alleged by India is
"clearly inexcusable according to Article 48.2 of the VCLT".546
7.166. Korea contends that "India appears to have contributed to the alleged error and was duly
put on notice about it." 547 According to Korea, "India had ample opportunity and access to
appropriate redress mechanisms to avoid the alleged error and to fix it." 548 Korea notes that "the
process of transposition was done in accordance with a detailed procedure that allowed India to
carefully examine the proposed updates and comment on them." 549 Korea also notes that the
transposition procedures "provided for a 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".550 In Korea's view, "India should not be entitled to shift responsibility fo r
its error onto the WTO Secretariat as India had not been proscribed from preparing its own HS2007
transposition, and India neglected to verify the specifics of the transposition 's effects despite
knowing that it had the potential to change the scope of its concessions."551
7.167. The United Kingdom does not take a position on the application of Article 48(2) in this
dispute, but agrees with Brazil that Article 48 establishes a "very high threshold" for vitiating a
party's consent to be bound by a treaty on the basis of an alleged error.552
7.168. The United States observes that "India participated in the process for transposition of its
Schedule into HS2007 nomenclature in accordance with established WTO procedures, and … failed
to raise any specific concern or objection during that process with respect to the tariff subheadings
at issue".553 According to the United States, "India has not established that it did not contribute by
its own conduct to the alleged error, or that the circumstances were such that India was not on
notice of the alleged error."554
7.3.3.3.3 Panel's assessment
7.3.3.3.3.1 General considerations
7.169. Article 48(2) states that:
Paragraph 1 [of Article 48] shall not apply if the State in question contributed by its own
conduct to the error or if the circumstances were such as to put that State on notice of
a possible error.
7.170. For the purposes of applying Article 48(2) we proceed on an arguendo basis and assume
that India was indeed in error at the time that it agreed to the changes to its Schedule resulting
from the transposition 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.

544 European Union's third-party statement, para. 10.
545 European Union's third-party statement, para. 11.
546 European Union's third-party statement, para. 9.
547 Korea's third-party submission, para. 14.
548 Korea's third-party submission, para. 15.
549 Korea's third-party submission, para. 15.
550 Korea's third-party submission, paras. 16-17.
551 Korea's third-party submission, para. 19.
552 United Kingdom's third-party statement, para. 14.
553 United States' third-party response to Panel question No. 16, para. 8.
554 United States' third-party response to Panel question No. 16, para. 8.

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). Japan considers that India, as the party
invoking Article 48, must demonstrate that it did not contribute to the error and the circumstances
were not such as to put India on notice of a possible error.555 India considers that the burden is on
Japan, as the party o bjecting to the invocation of Article 48, to demonstrate that India either
contributed to the error or that the circumstances were such as to put India on notice of a possible
error.556 In our view, there is ample information before us (in the form of the arguments and
evidence adduced by the parties) to apply Article 48(2), regardless of which party bears the burden
of proof. As explained below, we do not consider the arguments and 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 48.557
7.172. We proceed by assessing in turn whether: (i) the circumstances were such as to put India
on notice of a possibl e expansion of its WTO tariff commitments from its ITA undertakings; or
(ii) India contributed by its own conduct to the alleged expansion in the scope of its WTO tariff
commitments from its ITA undertakings.
7.3.3.3.3.2 Whether the 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 India defines the alle ged error, we examine whether the circumstances were
such as to put India on notice of a possible expansion of its WTO tariff commitments from its ITA
undertakings.
7.174. We recall that the evidence adduced by India in this dispute indicates that in 2012, three
years prior to the certification of the changes to India's WTO Schedule resulting from the HS2007
transposition process, India was aware of differences of opinion among the Members regarding the
HS classification of certain products falling within the sco pe of the ITA.558 Specifically, the Minutes
of a meeting of the Committee of Participants on the Expansion of Trade in Information Technology
Products indicate that "[o]n the issue of classification divergences, [India's delegate] said that it was
an issue that comprised 55 products and had not been resolved for the past 15 years." 559 India's
delegate "doubted that one could just brush it aside in terms of saying that these were complicated
by HS96, HS2002 or HS2007 nomenclature changes as otherwise the parti cipants would have
actually solved the problem in the first place." 560 This statement by India suggests that India was
aware not only of product classification differences among ITA participants, but that HS
transpositions (including the HS2007 transposition process) could have substantial implications for
those classification differences.
7.175. We further recall that Members agreed on the procedures to be followed in that transposition
process, including the relevant correlation tables prepared by the WCO, updat ed by the
WTO Secretariat, and agreed upon by WTO Members. 561 In addition to setting forth the correlation
tables indicating the relevant overlaps in product coverage as between the HS2002 and the HS2007,
those procedures also indicate that the scope of Members' tariff concessions could potentially change
through 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

555 Japan's second written submission, paras. 76-82.
556 India's second written submission, para. 26 (referring to T. Rensmann, "Article 48" in O. Dörr and K.
Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14),
p. 893).
557 See e.g. Panel Report, India – Solar Cells, fn 269 to para. 7.104.
558 See para. 7.114 above.
559 Committee of 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. 42 and fn 70 thereto).
560 Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes of
the meeting held on 15 May 2012, G/IT/M/55, para. 3.11.
561 See paras. 7.128-7.130 above.

unchanged".562 The General Council Decision f urther indicates that "[a]ny tariff line for which a
change in the scope of a concession may have occurred due to the complex technical nature of the
transposition shall be clearly flagged." 563 The General Council Decision also provides for the
procedures to be followed in the event that a Member disagrees with the way in which the scope of
a concession has changed.564 Specifically, paragraph 15 of the General Council Decision states that
"[w]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."565
7.177. Thus, in our view, Ind ia was on notice that the scope of its tariff concessions could,
potentially, be modified through the transposition process. Given that India, as a Member of the
WTO, is also a member of the General Council, we consider that India was aware of the content of
the General Council Decision on HS2007 Transposition Procedures , and of the possibility that its
tariff concessions might be modified through the transposition process, notwithstanding that this
was to be avoided "to the extent possible".
7.178. Indeed, India acknowledges that, pursuant to paragraph 15 of the General Council Decision,
"[i]n ordinary circumstances, it would be the WTO Member … concerned aided by the procedures of
the transposition exercise that would be responsible for determining whether a transposition process
resulted in changes to the scope of its concessions". 566 India argues, however, that "in the present
instance, the role of the WTO Secretariat is nevertheless also relevant to the extent it was an active
participant in the transposition pr ocess."567 India refers to Professor Waibel's Legal Opinion, which
states that since "it was the Secretariat rather than India that was holding the pen … the Secretariat
bears at least some of the responsibility for the errors in this transposition process" .568 Professor
Waibel's Legal Opinion echoes multiple submissions by India in which India argues that "the
contested tariff lines – all of which comprised complex technical transpositions which changed the
scope of India's concessions – were required to be adequately flagged according to the procedure
for transposition".569
7.179. We observe that India, referring to Professor Waibel's Legal Opinion, 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 reading of the General Council Decision on HS2007
Transposition Procedures , however, indicates not that the WTO Secr etariat had to affirmatively
identify any changes in concessions, but rather that they had to clearly flag "[a]ny tariff line for
which a change in the scope of a concession may have occurred due to the complex technical nature
of the transposition ".570 In other words, the General Council Decision did not place an affirmative
burden on the WTO Secretariat – or indeed Members preparing their own transpositions – to
decisively conclude on the question of whether there was a change in the scope of concessions.
Rather, in any situation where the scope of a concession "may" have changed due to the "complex
technical nature of the transposition", this possibility had to be flagged. To the extent that the WTO
Secretariat faithfully followed the correlation tables ap proved by the General Council and the

562 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)
563 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
564 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
565 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 15. (emphasis
added)
566 India's response to Panel question No. 60(b), para. 14. We note India's argument, regarding
paragraph 15 of the General Council Decision on HS2007 Transposition Procedures, that "the phrase 'the scope
of [the] concession has been modified … in a way that impairs the value of the concession' does not necessarily
apply to the present circumstance" because "the ordinary meaning of the term impair is to 'weaken or damage
something so that it is less effective' … [and i]n the present instance, the value of concessions given by India
has not been impaired, but in fact, has been extended without any reciprocal benefits." (Ibid. para. 16 (quoting
Cambridge Advanced Learner's Dictionary online, definition of "impair"
https://dictionary.cambridge.org/dictionary/english/impair (accessed 22 May 2022), (Exhibit IND-83)). We do
not consider it necessary to take a position on whether paragraph 15 was applicable to India. Rather, we
simply note that the existence of paragraph 15 (along with paragraph 4) put India on notice of the possibility
that the transposition process could result in a change to the value of the tariff concessions.
567 India's response to Panel question No. 60(b), para. 14.
568 India's response to Panel question No. 60(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on
Error, (Exhibit IND-76), para. 39).
569 India's response to Panel question No. 52, para. 49.
570 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)

Committee on Market Access, this, it seemed, would substantially mitigate against the possibility
that there would be any disagreement as to whether the scope of any Member's concessions changed
through the transpositi on process. Since these correlation tables were specifically prepared and
approved in order to indicate the overlaps in product coverages as between the HS2002 and the
HS2007, it would seem to follow that if the Secretariat followed those correlation table s (and it is
uncontested that they did so), then there would have been no change in the scope of Members'
concessions.
7.180. Nevertheless, we recognize that the General Council Decision on HS2007 Transposition
Procedures acknowledged that such a possibility could occur, and required the WTO Secretariat (and
Members in their preparation of their own transpositions) to clearly flag any tariff line for which a
change in the scope of a concession may have occurred due to the complex technical nature of the
transposition.571
7.181. In this context, we recall that on 8 November 2013 the WTO Secretariat transmitted to India,
via email, the draft HS2007 transposition files prepared by the Secretariat.572 The Secretariat's cover
email referred to four attached documents: (i) the draft HS07 file; (ii) an Excel version of the
database; (iii) notes and comments from the Secretariat , titled "HS2007 Transposition Note"
(hereafter "Transposition Note"); and (iv) "document G/MA/283 describing in detail the methodology
used by the Secretariat for th[e] exercise". 573 Attachment 3 to that email, containing the
Secretariat's Transposition Note for India's Schedule, also refers to document G/MA/283.
Specifically, that T ransposition Note, under the heading "Processing strategy", indicates that "[a]
detailed description of the transposition methodology is presented in documents G/MA/283 of
22 May 2012 and WT/L/673 of 18 December 2006."574
7.182. Document G/MA/283, titled "Transpos ition of Members' CTS Files to the HS 2007
Nomenclature – Notes on Methodology" , was approved by the Committee on Market Access on
26 April 2012. The introduction to that document explains that it "describes the guidelines that the
Secretariat intend[ed] 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".575
7.183. At the most general level, document G/MA/283 indicates that two types of changes to
Members' Schedules could result from the transposition process: (i) "clarifying changes" (which did
not change the scope of the HS subheadings); and (ii) "structural changes" (which always changed
product coverage of one or more HS subheadings).576 Specifically with respect to structural changes,
document G/MA/283 identifies 196 structural changes, defined by 355 groups of correlations, and
elaborates that each of these structural changes can be categorized as: (i) one-to-one 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. 577 With respect to the last of these
categories, namely "complex changes", document G/MA/283 explains that:
A complex change includes both splitting and 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 manu al intervention will be required for most of the
complex changes. Moreover, some complex changes could involve as many as 20 to 30
subheadings from different HS 2002 headings, Chapters, and even Sections. In order
to maintain all these concessions in the new HS 2007 nomenclature, complicated coding

571 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
572 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49).
573 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49), p. 1.
574 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49), Attachment 3, CTS HS2007
Transposition Note XII - India, p. 1.
575 G/MA/283, paras. 1-2.
576 G/MA/283, para. 1.2.
577 G/MA/283, para. 1.5.

structures and descriptions need to be introduced. And the situation could be even more
complicated if national breakouts are involved.578
7.184. Document G/MA/283 elaborates that "[t]he categorization for each individua l correlation is
indicated in Annex I". 579 Annex I of document G/MA/283 contains a correlation table prepared by
the WTO Secretariat, which identifies, inter alia, all 355 groups of correlations (of HS2002 tariff
items to HS2007 tariff items), the "category" of the correlation group, and any 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 table of
correlations set forth in Annex I of document G/MA/283. 580 Their inclusion in that table indicates
that such changes are "structural" in nature. The table also explicitly identifies the changes to these
tariff items as "complex" and includes certain comments on the changes to these tariff items, namely
that "[t]he structure of heading 85.17 has been revised based on technological progress in the high
technology sector" and "[a]t the same time, the scope of heading 85.17 has been expanded and the
transposition of heading 85.25 entails the transfer of certain products to heading 85.17".581 We note
that these comments on the changes to these tariff items also appear in document G/MA/W/76,
containing the correlation tables as communicated to the WTO by the WCO.582
7.186. From the foregoing, we wish to h ighlight certain salient points. First, regarding the WTO
Secretariat's communication to India of the draft transposition files: (i) i n its cover email, the
Secretariat highlighted that document G/MA/283 described in detail the methodology used by the
Secretariat to conduct the transposition; (ii) in the Transposition Note attached to that email the
Secretariat again highlighted that a detailed description of its transposition methodology was
presented in document G/MA/283; and (iii) document G/MA/283 was o ne of four attachments that
the Secretariat included in that email to India. We therefore consider that India could not have been
unaware of the contents of that document, and indeed its importance to the transposition process.
7.187. Second, regarding the conte nts of document G/MA/283 itself: (i) this document
unambiguously identifies the changes from the transposition process resulting in HS2007 tariff items
8517.12, 8517.61, 8517.62, and 8517.70 as both "structural" and "complex in nature"; and (ii) the
comments attached to these tariff items explicitly indicate that the scope of heading 8517 was
expanded, and included the transfer of certain products to tha t heading. We note, in this respect,
that this does not necessarily imply that the scope of Members' tariff concessions was expanded.
Rather, this reference in document G/MA/283 to an expansion in the scope of heading 8517 simply
means that products 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.
7.188. We note India's assertions that "the language in [document G/MA/283] is, at best,
ambiguous and indicates a restructuring (between sub-heading 85.17 and sub-heading 85.25) and
not the flagging of a clear expansion in scope due to a complex technical transposition". 583 India
considers that "the complex technical nature of the transposition was such that India was not put
on clear notice (via communication from the WTO Secretariat or otherwise) as to the exact changes

578 G/MA/283, para. 2.10.
579 G/MA/283, para. 1.6.
580 See para. 7.129 above.
581 G/MA/283, Annex I, entries 299-300, p. 41.
582 G/MA/W/76, p. 30.
583 India's response to Panel question No. 60(a), para. 8.

being effected d ue to the increased product complexity of the ITA [] product coverage via the
contested sub-headings".584
7.189. We recall that the General Council Decision on HS2007 Transposition Procedures did not
require the WTO Secretariat to determine whether there had been a "clear expansion" in the scope
of concessions. Rather, the Secretariat was expected to clearly flag "[a]ny tariff line for which a
change in the scope of a concession may have occurred due to the complex technical nature of the
transposition".585 Document G/MA/283 identifies the changes to the relevant tariff items as complex
in nature, indicates that new products have been added to the scope of heading 8517, and highlights
that the scope of heading 8517 has expanded. This, in our view, suffices to 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 c hanges to India's Schedule in specific relation to sub -
heading 28.52 and sub -heading 3006.10" and India "sought clarifications and commented on
HS 2007 sub-heading 28.52 via an email to the Secretariat". 586 In India's view, the Secretariat's
Transposition Note was an "exhaustive document in relation to entries that were sought to be 'clearly
flagged' for the exercise of transposition".587
7.191. In this respect, we emphasize that document G/MA/283 is itself explicitly referenced in that
same Transposition Note. The Transposition Note, the cover email, and the inclusion of document
G/MA/283 in the Secretariat's email to India all advised India to scrutinize document G/MA/283,
which unambiguously identifies a significant number of changes occurring during the transpos ition
process as "complex" in nature. Moreover, a very brief review of the "comments" included in the
correlation table contained in document G/MA/283 would have enabled India to observe that,
according to the WCO, the product scope of numerous headings and subheadings w as expanded
through the transposition process, including heading 85.17.588 The fact that these possible changes
of scope, all of which related to explicitly complex changes, were comprehensively flagged in
document G/MA/283 means that India i s incorrect that the only complex changes flagged by the
Secretariat were those identified in the Secretariat's Transposition Note.
7.192. Moreover, we note that the specific section of the Secretariat's Transposition Note that, in
India's view, contains this al legedly "exhaustive"589 list of complex changes possibly changing the
scope of the concessions appears under the subheading, "Additional Technical Issues". That is one
of six subheadings in the Transposition Note: (i) "Introduction"; (ii) "Sources"; (iii) "Processing
strategy"; (iv) "Additional Technical Issues"; (v) "Problems encountered during processing"; and
(vi) "Content of HS07 transposition database". 590 Under this subheading, "Additional Technical
Issues", the Transposition Note identifies certain issues pertaining to: (i) "AG – non-AG breakdown";
and (ii) "Simplified correlations".591 Under "[s]implified correlations", the Transposition Note states
that "[b]ased on an analysis of HS2007 changes included in the WCO correlation table, the
Secretariat proposed the simplificati on of some correlations as described in detail in Annex I of

584 India's response to Panel question No. 60(a), para. 8.
585 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)
586 India's response to Panel question No. 60(a), para. 10.
587 India's response to Panel question No. 60(a), para. 10.
588 Document G/MA/283 indicates, inter alia, the following: "[t]he scope of subheading 3006.10 was
expanded to cover also sterile absorbable surgical or dental yarn and sterile surgical or dental adhesion
barriers, whether or not absorbable"; "[t]he scope of heading 38.21 was expanded to cover also prepared
culture media for maintenance of micro-organisms and prepared culture media for the development and
maintenance of plant, human or animal cells"; "[t]he scope of new subheadings 7321.19 and 7321.89 has
been expanded to cover other cooking 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).
589 India's response to Panel question No. 60(a), para. 10.
590 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49), Attachment 3, CTS HS2007
Transposition Note XII - India), pp. 1-3.
591 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49), Attachment 3, CTS HS2007
Transposition Note XII - India), p. 1. The technical 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.)

G/MA/283. If a Member intends to make use of the standard correlation table or take other
approaches, it would need to inform the Secretariat."592 The Transposition Note further states that:
Two cases are described in G/MA/283 for new HS2007 heading 28.52 and subheading
3006.10. Although the scope of HS2007 subheading 3006.10 was expanded to cover
items classified under 34 different HS2002 subheadings, the main property of this
subheading remains the same. Thus, the new HS2007 subheading 3006.10 is kept as
one tariff line without adding any new breakouts for the ex -outs. In the case of
subheading 2852.00 a simple average of all the HS2002 tariff lines under the 29 HS2002
candidate subheadings was u sed for the duty of the new HS2007 subheading. The
binding coverage was expanded if the subheading is partially bound, that is the new
HS2007 subheading is fully bound.
7.193. It is not clear to us why India interpreted this paragraph as setting forth an exhausti ve list
of tariff items whose scope may have changed due to complex changes occurring during the
transposition process. Notwithstanding that this paragraph of the Transposition Note does not
purport to do so, a cursory review of document G/MA/283 would hav e revealed to India numerous
other tariff items that were flagged by the Secretariat as having undergone complex changes, and
whose scope was indicated by the WCO to have changed. We understand from the content of the
Transposition Note that the reason two such instances are specially identified in this paragraph of
the Transposition Note is because they were subject to a very specific issue addressed by the
Secretariat, namely the simplification of complex changes. We understand that these changes were
therefore particularly worthy of mention. This did not mean – and the Transposition Note did not
assert or otherwise represent – that these were the only two instances of complex changes that may
have changed the scope of concessions.
7.194. Thus, with respect to 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 593; and (ii) through document G/MA/283 (and the
numerous references to this document in its communication to India), the WTO Secretariat satisfied
that requirement. In our view, the WTO Secretariat clearly flagged all tariff items (including the tariff
items at issue in this dispute) for which a change in the scope of the concession "may have occurred"
due to the complex technical nature of the transposition.594

592 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-49), Attachment 3, CTS HS2007
Transposition Note XII - India), p. 2. We observe that document G/MA/283 describes in detail how there was a
"need for simplification", in order to avoid excessively complex Schedules which would 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 alter ing any concessions for these subheadings, the result was
complex coding structures, and sometimes very complex technical descriptions, which had to be
introduced in order to retain all the details of concessions. The advantage of this methodology is
that it is technically correct (in the sense of representing exactly the same concessions as before),
and thus it helps Members to avoid potential disputes and lengthy negotiations on changes in the
concessions resulting from the transposition. On the other 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)
593 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)
594 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.

7.195. We recognize that both parties to this dispute assert that the WTO Secretariat did not flag
the relevant tariff items at issue. 595 We have addressed India's arguments above. As to Japan, we
note Japan's view that "in the case the contested subheadings were not flagged" 596, that would
indicate that there was no change in the scope of the tariff concessions. Japan's argument appears
to imply that the WTO Secretariat was required to flag those tariff items for which there had, in fact,
been a change in the scope of tariff concessions. We recall, however, that the Secretariat was
required to flag those tariff items with respect to which a change in product scope may have occurred
due to the complex nature of the transposition.597 In our view, the Secretariat did exactly that with
respect to all relevant complex structural changes. The onus then shifted to the Members, in
reviewing these complex changes, to assess whether they considered that "the scope of a concession
has been modified as a result of the transposition in a way that impairs the value of the
concession".598 Thus, pursuant to the General Council Decision on HS2007 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
Japan's arguments do not imply otherwise.
7.196. From the foregoing we consider that India was on notice, prior to and during the
transposition process, that the HS2007 transposition process could have substantial implications for
the classification differences among ITA participants regarding their ITA undertakings. Furthermore,
as a general matter, India was on notice, throughout the transposition process, that the scope of its
tariff concessions could change. Moreover, we consider that the WTO Secretariat clearly flagged the
relevant tariff items at issue in this dispute as having undergone complex changes that may have
changed the scope of India's concessions.
7.197. Before concluding as to whether the foregoing factual circumstance satisfies the
requirements of Article 48(2), we note India's interpretation of the legal standard under Article 48
such that, "for a state to be put on notice of a possible error, the circumstances should be such that
no interested party should fail to notice the error or be under a misapprehension about it." 599 As
support for this interpretation, India refers to two judgments by the International Court of Justice
(ICJ), in which cases error was invoked as a basis to invalidate a State's consent to be bound by a
treaty. India refers to Case concerning Sovereignty over Certain Fronti er Land (Belgium v.
Netherlands), where "in the contested map 'which was to become part of the Boundary Convention,
it was shown clearly, and in a manner which could not escape notice, that the disputed plots belonged
to Belgium'". 600 India also refers to Case concerning the Temple of Preah Vihear (Cambodia v.
Thailand), where the ICJ concluded that "the map itself drew such pointed attention to the Preah
Vihear region that no interested person, nor anyone charged with the duty of scrutinizing it, could
have failed to see what the map was purporting to do in respect of that region".601 India also states
that "Article 48 of the VCLT does not regard as relevant whether the error was the result of an
intentional act or of negligence, or of bad faith".602
7.198. We note 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.

595 India's second written submission, para. 31; Japan's second written submission, para. 138.
596 Japan's comments on India's response to Panel question No. 60(a), para. 10.
597 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
598 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 15.
599 India's response to Panel question No. 60(a), para. 11. See also India's second written submission,
para. 30.
600 India's second written submission, para. 30 (quoting ICJ, Case concerning Sovereignty over Certain
Frontier Land (Belgium v. Netherlands), Judgment of 20 June 1959: ICJ Reports 1959, p. 209 (Exhibit IND-2),
at pp. 225-227).
601 India's second written submission, para. 30 (quoting ICJ, Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports 1962, p. 6 (Exhibit IND-3), at
p. 26).
602 India's response to Panel question No. 19, para. 64. In response, Japan refers to Case concerning
the Temple of Preah Vihear (Cambodia v. Thailand) as an example which demonstrates that the standards for
examining the fulfilment of conditions under Article 48(2) have become increasingly strict. (Japan's second
written submission, para. 121).

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 India's interpretation of the legal standard applicable thereto. Article 48(2) refers to the
invoking State being put on notice of "a possible error". India asserts that for a State to be put on
notice of a possible error, the circumstances should be such that "no interested party should fail to
notice the error".603 India's interpretation of Article 48(2) deletes the word "possible", and requires
that the State in question be unmistakeably aware of the actual error.
7.200. In our view, Article 48(2) is clear on its face. Contrary to 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 standar d to the facts, as described above, we recall that India alleges
that its "error" at the time of the certification of its Schedule was its mistaken assumption that the
scope of its WTO tariff commitments would not be expanded beyond the scope of its ITA
undertakings. We consider that India was on notice that the HS2007 transposition exercise could
have implications for the classification differences of ITA participants regarding their ITA
undertakings. Furthermore, in the circumstances of the HS2007 transpo sition exercise, India was
on notice of the possibility that the scope of the concessions set forth in tariff items 8517.12,
8517.61, 8517.62, and 8517.70 of its HS2007 Schedule may have expanded as a consequence of
the complex changes to those tariff items. If India was on notice of the possibility that its WTO tariff
commitments in its HS2007 Schedule may have expanded from the scope of the commitments set
forth in its HS2002 Schedule, then India was also necessarily on notice that its WTO tariff
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 terms of Article 48(2),
paragraph 1 of Article 48 "shall not apply", and India's plea of error under Article 48 fails. Having
reached this conclusion, it is unnecessary for us to determine whether India "contributed by its
conduct" to the alleged error. Nevertheless, we consider it useful in the circumstances of this 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 scrutinized the relevant documents available to us concerning the
procedures and obligations governing the transposition process, we see no indication that in the
HS2007 transposition process WTO Members or the Secretariat were expected to identify any
differences in the product scope of the ITA as compared to the produc t scope of the HS2007. It
appears to us that no Member, in preparing its own Schedule, was expected to identify any such
differences in product coverage. This similarly applies to the WTO Secretariat, in its preparation of
developing countries' transpositions on their behalf. Rather, Members and the WTO Secretariat were
explicitly told by the General Council and the Committee on Market Access to follow the
HS2002-HS2007 correlation tables that had been reviewed and approved by Members.
7.205. We also note that 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 tariff commitments being limited to the scope of its ITA undertakings. Moreover,
India could have explicitly indicated to Members and the WTO Secretariat that its interpretation of
those undertakings was such that they were static in nature, and did not extend to new products
resulting from technological advances that did not exist at the time that India joined the ITA.

603 India's first written submission, para. 56. (emphasis added)

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.604 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. 605 To the extent that India remained silent on such issues in the
context of the transposition exercise, WTO Membe rs and the WTO Secretariat could only assume
that India was satisfied that the transposition exercise would follow the multilaterally approved
correlation tables.
7.208. In our view, if India had raised its concerns, they could have been appropriately addressed
in a timely fashion. Indeed, if India's concerns were not addressed in a manner satisfactory to India,
then India could have refused to certify the changes to its WTO Schedule. By failing to raise its
concerns, and by then agreeing to certify the changes 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 unambiguously 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 be bound. 606 For the
purposes of applying Arti cle 48(2), we moreover note that India's failure to raise those concerns
would appear to have directly contributed to the alleged error arising in the first place.
7.210. We also highlight that, as a Member of the WTO, it was India's responsibility to verify the
scope of its legal commitments before undertaking to accept those commitments. Indeed, the
transposition procedures which had been approved by India, explicitly 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
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"607 contribution to the creation of the alleged error, and would indeed
seem to be a significant contributing factor in causing the error to occur, especially taking into
account that India had already approved the corre lation tables relied upon by the Secretariat, and
was on notice that the changes to the tariff items at issue were complex, accounted for technological
developments, and, in some instances, might have increased the scope of the tariff items.

604 See para. 7.114 above.
605 We recall that in the Committee of Participants on the Expansion of Trade in Information Technology
Products, India's delegate stated that "[o]n the issue of classification divergences, … it was an issue that
comprised 55 products and had not been resolved for the past 15 years. He doubted that one could just brush
it aside in terms of saying that these were complicated by HS96, HS2002 or HS2007 nomenclature changes as
otherwise the participants would have 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
606 See para. 7.157 above.
607 Prof. M. Waibel, Legal Opinion on Error (Exhibit IND-76), para. 39.

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 asserted that the Secretariat failed to follow the transposition
procedures by failing to flag the relevant tariff items, this is contradicted by the existence of
document G/MA/283, which was referred to numerous times in the Secretariat's communications to
India, and which was included in the bundle of documents transmitted by the Secretariat to India
with the draft transpos ition files. 608 Moreover, since India did not communicate any concerns
regarding the ITA to the WTO Secretariat during the transposition process, the WTO Secretariat
could not have contributed to India's apparent misunderstanding regarding the scope of its
commitments under the ITA and the Schedule (even assuming that there was an increase in the
scope of those commitments).
7.212. As to the contribution of other WTO Members, we note that, because the transposition
procedures had been multilaterally approved and w ere followed to the letter, and since India itself
had approved both the transposition procedures as well as the draft files prepared by the
WTO Secretariat, there was no reason for any other Member to doubt India's willingness to be bound
by the changes to its Schedule. Indeed, even assuming arguendo that there was any expansion of
India's commitments, other WTO Members would have been justified in assuming that since all
Members had approved the correlation tables, and since India had already approved the draft
Schedule, India was content with expanding the scope of its commitments. Thus, India's error cannot
be attributed to other WTO Members or the WTO Secretariat.
7.213. In our view, India's inaction in the circumstances of its transposition would seem to sa tisfy
the standard of "contributing by its conduct" to the error. We nevertheless do not consider it
necessary to resolve this interpretative question, in light of our conclusion above that India was
undoubtedly put on notice of the possibility of the 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 commitments may have
expanded from its ITA undertakings. While India's actions (or inaction) could also be read as having
contributed to that error, we do not consider it necessary to make a definitive finding on that
question. It suffices to note that India was on notice of the possibility that its tariff concessions may
have been expanded. Consequently, pursuant to the terms of Article 48(2), India may not rely on
Article 48(1) to invalidate its WTO Schedule, in whole or in part.
7.3.3.4 Conclusion
7.215. We have concluded that India has failed to demonstrate that an essential basis for its consent
to be bound by its HS2007 Schedule was its assumption that its WTO tariff commitments would not
be expanded beyond the scope of its ITA undertakings. We have also concluded that , during the
transposition process, India was on notice of the possibility that the scope of its WTO tariff
commitments 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 parties' arguments regarding the applicability of Articles
44, 45 and 48 of the Vienna Convention, or the substantive requirements under Articles 44 and 45.

608 India's only ground for arguing that the Secretariat did not follow the transposition procedures
correctly is that "the contested tariff items were not adequately flagged". (India's response to Panel question
No. 52, paras. 49 and 51. See also India's response to Panel question No. 64, para. 33). We have addressed
that argument and dismissed it. In our view, the Secretariat followed the agreed-upon transposition
procedures, including with respect to flagging possible changes of product scope.

7.3.4 India's rectification request under the 1980 Decision
7.3.4.1 Introduction
7.217. As described in section 2.3 above, on 25 September 2018, India requested a rectification of
its WTO Schedule in accordance with the 1980 Decision, "for the purpose of correcting certain errors
contained in its HS2007 Schedule". 609 India stated that the supposed errors occurred while
transposing its HS2002 Sched ule to its HS2007 Schedule. 610 India also stated that the draft
rectification did not "alter India's commitments either under GATT 1994 or the ITA[], as contained
in the WTO document WT/Let/181 dated 2 October 1997."611
7.218. Several WTO Members, including Japan, objected to India's draft rectification.612 Japan took
the view that the proposed modifications "would alter the scope of India's concessions … [and] could
not be considered to be purely formal in nature."613
7.219. In these proceedings, India argues that through its rectification request it sought to correct
an "inadvertent error of a purely formal character", and that the draft rectification was in accordance
with the 1980 Decision. 614 According to India, the HS2007 Schedule is to be read in light of the
originally negotiated concessions such that products that "have never been negotiated upon remain
outside the scope of the 2007 Schedule." 615 India requests us to "recognize and declare that the
Draft Rectification was of a purely formal character and Japan's objections on the same were
unfounded."616 Specifically, India requests us to:
[A]ssess the objection raised by Japan. If the Panel were t o find that the ITA[] did not
cover the products at issue, it will be evident that the Draft Rectification was of a purely
formal character. Therefore, the objection raised by Japan to the Draft Rectification
would be unfounded in law and would be contrary to Paragraph 3 of the 1980 [Decision].
Further, such a determination shall also establish that Japan's action impeded India's
right to rectify its Schedule under the 1980 [Decision].617
7.220. India clarifies that it does not seek the certification of the draft rectification by the Panel
through the dispute settlement mechanism.618
7.3.4.2 Main arguments of the parties
7.221. India argues that Japan "acted beyond the prescriptions of Paragraph 3 of the 1980 Decision
by raising an objection unfounded in law", and that "Jap an's objections were an impediment to
India's right to make a formal rectification to its Schedule of Concessions under the
1980 [Decision]".619 As to the legal basis for the Panel to make findings requested by India, India
maintains that the 1980 Decision is a "covered agreement" within the meaning of Article 1.1 of the
DSU, by virtue of it being an "other decision[] of the Contracting Parties to the GATT 1947" within
the meaning of paragraph 1(b)(iv) of the GATT 1994. 620 Therefore, India posits that the Pan el has
authority to interpret the draft rectification and clarify the rights and obligations of the Members

609 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75), p. 1.
610 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75), p. 1.
611 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-75), p. 1.
612 Letter from Japan to India (9 November 2018), (Exhibit JPN-4); Council for Trade in Goods, Minutes
of the meeting held on 12 and 13 November 2018, G/C/M/133, para. 18.13.
613 Council for Trade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133,
para. 18.13. See also Letter from the Permanent Mission of Japan titled "Rectification and Modification of
Schedule (India's WTO Schedule XII)", (Exhibit JPN-4).
614 India's first written submission, para. 10.
615 India's first written submission, para. 36. See also India's response to Panel question No. 15, fn 44
to para. 36.
616 India's first written submission, para. 36.
617 India's response to Panel question No. 49, para. 43. See also India's second written submission,
para. 122.
618 India's second written submission, para. 123.
619 India's response to Panel question No. 49, para. 39. See also India's second written submission,
para. 116.
620 India's response to Panel question No. 49, paras. 40-41; second written submission, paras. 117-118
(referring to Panel Report, US – FSC, para. 7.63).

under it pursuant to Article 3.2 of the DSU.621 India adds that Article 11 of the DSU obliges the Panel
to "objectively assess the facts of the dispute and examine the conformity of Members' actions with
covered agreements." 622 India also submits that the Panel has an obligation to assess "if the
objection raised by Japan is in good faith or if it is merely an instrument to force India to grant
concessions on products, which it never agreed to."623 Moreover, India posits that if it is found that
the proposed draft rectification is of a purely formal character, "it would lead to the conclusion that
the bound rates assigned to the products at issue were cle arly in error and that such concessions
were capable of rectification via the 1980 [Decision]."624 India also contends that as a consequence
of such a finding, "it would be found that the bound rates assigned to the products at issue are a
consequence of a formal error and are therefore severally void. Therefore, there can be no violation
of Article II:1(a) and Article II:1(b) of the GATT if the contested tariff lines of India's schedule of
concessions are void."625
7.222. For its part, Japan submits that there is n o legal basis, under the DSU, for the Panel to
"recognize and declare that the Draft Rectification was of a purely formal character" and that Japan's
objections on the same were unfounded. 626 Japan submits that such request is outside the Panel's
terms of reference in the present dispute, because Japan has not referred to the Draft Rectification
or the 1980 Decision in its panel request. 627 Japan also argues that India's Draft Rectification and
the 1980 Decision are not "covered agreements" within the meaning of Article 1.1 of the DSU, and
therefore the Panel has no authority under its terms of reference to make any findings with respect
to these two documents.628 Japan also submits that there is "no absolute right for a WTO Member
to have a proposed rectificat ion automatically accepted and no corresponding obligation of other
WTO Members to accept that rectification request", rather, rectification requests are subject to
multilateral review under the 1980 Decision.629 For Japan, the 1980 Decision "only establish[es] the
procedures for modification and rectification of the Schedules." 630 Japan argues that "if there is a
disagreement between WTO Members as to whether the requested changes to a Schedule 'alter the
scope of a concession' and affect the rights and obligations of other WTO Members, the WTO Member
requesting to change its Schedule needs to follow the procedure set out in Article XXVIII of the GATT
1994 in order to effectuate that change. It is therefore not for the Panel to rule on the nature of a
rectification request or of the objections submitted by WTO Members on that request."631 Japan also
submits that, given that other WTO Members which are not parties to this and the parallel disputes
raised objections to India's Draft Rectification, "[a]ny Panel's finding pursuant to India's request
would thus risk to undermine the rights of those other WTO Members and raise serious systemic
concerns in respect of reliability and predictability of the system of tariff concessions."632 Moreover,
any findings by the Pa nel "would not affect the validity of the objections by those other WTO
Members that are not parties to this dispute, there would still remain valid objections to the Draft
Rectification."633 Japan maintains that even if the Panel were to make the findings requested by
India, "the Draft Rectification which was submitted by India in 2018 would not automatically become
certified or deemed effective, unless the procedure set out in the 1980 Procedures is followed."634

621 India's response to Panel question No. 49, para. 42; second written submission, para. 120 (referring
to Appellate Body Report, Mexico – Taxes on Soft Drinks, para. 53).
622 India's response to Panel question No. 49, para. 42.
623 India's response to Panel question No. 49, para. 42; second written submission, para. 121.
624 India's response to Panel question No. 49, para. 45. See also India's comments on Japan's response
625 India's second written submission, para. 123.
626 Japan's response to Panel question No. 49 (b), para. 90.
627 Japan's response to Panel question No. 49(b), para. 90, and No. 65, para. 20-22. See also Japan's
second written submission, para. 170.
628 Japan's response to Panel question No. 65, para. 22.
629 Japan's response to Panel question No. 49 (b), para. 91. See also Japan's second written submission,
para. 172.
630 Japan's second written submission, para. 172.
631 Japan's response to Panel question No. 49 (b), para. 92. See also Japan's second written submission,
para. 175.
632 Japan's response to Panel question No. 49 (b), para. 93; second written submission, para. 178.
633 Japan's response to Panel question No. 49(c), para. 99.
634 Japan's response to Panel question No. 49, paras. 94, 97-98; Japan's second written submission,

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."635 Brazil therefore "does not see any basis in the DSU or in the Panel's
terms of reference in [this] dispute[] for the Panel to overturn the objections that were raised in
connection with India's draft rectification."636
7.224. Canada considers that a determination on whether India's draft rectification was of a purely
formal character is not within the purview of a panel, and would amount to the Panel substituting
its views for those of WTO Members, ther eby overriding the procedures that have been agreed to
by all WTO Members.637 Canada also maintains that even assuming arguendo the Panel had capacity
to consider India's request for findings, the Panel would still need to analyse whether the products
at issue were covered by the tariff items as amended by the draft rectification, and determine
whether India imposes on those products duties in excess of those set forth in its Schedule.638
7.225. The European Union maintains that the 1980 Decision does not envision the possibility of
referring the matter to dispute settlement where parties disagree on existence of an error. 639
Moreover, the European Union argues that the alleged error in India's Schedule was not a formal
one, and the proposed rectification would have required a substantial modification of India's certified
commitments.640
7.226. Korea submits that the Panel's mandate is confined to i ts terms of reference, which do not
include recognizing and declaring the invalidity of the complainant's objections to India's rectification
request.641 Further, Korea considers that negotiation and agreement among Members are the
"essence of the modification and/or rectification procedure" under Article XXVII I of the GATT 1994
and the 1980 Decision. Therefore, Korea is concerned that the possibility of negotiations under those
procedures would be undermined if a Member's objection to a proposed rectificati on is declared
unfounded by the Panel.642 Korea maintains that regardless of the Panel's findings on India's draft
rectification, India's obligations are to be assessed in light of India's existing Schedule because
"treaty terms are not based on a subjectiv e intent of one Party, but rather on a common intent of
all relevant Parties interpreted through the general rule of treaty interpretation".643
7.227. Chinese Taipei submits that the DSU does not provide a legal basis for the Panel to "recognize
and declare that the Draft Rectification was of a purely formal character and [the complainant's]
objections on the same were unfounded". 644 For Chinese Taipei, neither "India's Draft Rectification
nor the 1980 [Decision] are 'covered agreements' within the meaning of Artic le 1.1 of the DSU".645
Chinese Taipei also argues that pursuant to its terms of reference, the Panel in this dispute "is neither
required nor authorized" to make findings with respect to India's draft rectification or the 1980

635 Brazil's third-party response to Panel question No. 19, para. 13.
636 Brazil's third-party response to Panel question No. 19, para. 14.
637 Canada's third-party response to panel question No. 19, para. 14, and No.20, para. 16.
638 Canada's third-party response to panel question No. 20, para. 17.
639 European Union's third-party response to Panel question No. 20, para. 26.
640 European Union's third-party response to Panel question No. 20, para. 27. The European Union also
considers that there is an incompatibility between the error India invokes under Article 48 of the Vienna
Convention and that invoked in the context of the 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).
641 Korea's third-party response to Panel question No. 19, para. 12 (referring to Appellate Body Report,
Brazil – Desiccated Coconut, p. 22).
642 Korea's third-party response to Panel question No. 19, para. 13.
643 Korea's third-party response to Panel question No. 20, para. 14 (referring to Appellate Body Report,
EC – Computer Equipment, para. 84).
644 Chinese Taipei's third-party response to Panel question No. 19, para. 16.
645 Chinese Taipei's third-party response to Panel question No. 19, para. 17.

Decision.646 Chinese Taipei maintains that certification of a Schedule pursuant to the 1980 Decision
is subject to the agreement of all WTO Members, who are provided an opportunity to object to the
proposed modifications, and therefore such a matter is not to be decided by a dispute set tlement
panel.647 Thus, for Chinese Taipei, the Panel is "called upon to determine whether India violates its
commitments under Articles II:1(a) and II:1(b) of the GATT 1994 based on India's last certified
Schedule under HS2007."648
7.228. The United Kingdom consid ers that it is not necessary to make the findings requested by
India because neither Japan nor India relies on the draft rectification when determining the relevant
tariff commitments for India.649
7.229. The United States argues that there is no legal basis in th e DSU for the Panel to determine
that India's draft rectification request was of a purely formal character and the objections to that
request were unfounded.650 According to the United States, although the 1980 Decision was agreed
upon by WTO Members, it is not a "covered agreement" within the meaning of Article 1.1 of the
DSU. Thus, the DSU does not contemplate that a panel would make findings regarding Member's
actions under the 1980 Decision.651 The United States also considers that the findings requested by
India could raise questions on altering the balance of rights and obligations struck with respect to
India's WTO Schedule. 652 Moreover, the United States argues that the 1980 Decision does not
contemplate recourse to WTO dispute settlement where an objection is made.653 Finally, the United
States maintains that pending any resolution of the objections raised by other WTO Members, the
authentic text of India's Schedule remains unaltered.654
7.3.4.4 Panel's assessment
7.230. We recall that India requests us to find that: ( i) Japan violated paragraph 3 of the
1980 Decision by raising an objection "unfounded in law", and (ii) Japan's objection constituted an
"impediment to India's rights to make a formal rectification to its schedule of concessions under the
1980 [Decision]."655 The parties disagree on whether we have a legal basis under the DSU to address
India's request for findings.
7.231. According to India, the 1980 Decision is a covered agreement within the meaning of
Article 1.1 of the DSU. Therefore, in India's vie w, we have the authority to "interpret the
Draft Rectification and clarify the rights and obligations of the Members under it" under Article 3.2
of the DSU.656 India also argues that Article 11 of the DSU imposes an obligation on us to objectively
assess the facts of the dispute and examine the conformity of Members' actions with the covered
agreements.657 Japan disagrees that the 1980 Decision is a covered agreement within the meaning
of Article 1.1 of the DSU.658 Japan also submits that because its panel request did not refer to India's
draft rectification or the 1980 Decision, we lack jurisdiction to assess India's request and make the
requested findings.659
7.232. The parties' arguments raise two issues concerning the existence of a legal basis for us to
address India's request for findings: (i) whether our terms of reference allow us to assess India's
request for findings; and (ii) whether the 1980 Decision is a 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

646 Chinese Taipei's third-party response to Panel question Nos. 19, para. 18.
647 Chinese Taipei's third-party response to Panel question No. 20, para. 21.
648 Chinese Taipei's third-party response to Panel question No. 20, para. 22.
649 United Kingdom's third-party response to Panel question Nos. 19 and 20, paras. 4-5.
650 United States' third-party response to Panel question Nos. 19-20, para. 16.
651 United States' third-party response to Panel question Nos. 19-20, para. 17.
652 United States' third-party response to Panel question Nos. 19-20, para. 18.
653 United States' third-party response to Panel question Nos. 19-20, para. 19 (referring to Panel Report,
Russia – Tariff Treatment, paras. 7.50-7.56).
654 United States' third-party response to Panel question Nos. 19-20, para. 20.
655 India's second written submission, para. 116.
656 India's response to Panel question No. 49, paras. 40-41; second written submission, paras. 11-117
(referring to Panel Report, US – FSC, para. 7.63).
657 India's response to Panel question No. 49, para. 42.
658 Japan's response to Panel question No. 65, para. 22.
659 Japan's response to Panel question No. 49(b), para. 90, and No. 65, paras. 20-22. See also Japan's
second written submission, para. 170.

reference, we have jurisdiction over India's request for findings. We will only evaluate whether the
1980 Decision is a "covered agreement" within the meaning of Article 1.1 of the DSU if we determine
that we have jurisdiction to address India's request. 660 Moreover, if we determine that we lack the
legal mandate to address India's request for findings, we would not proceed to address the substance
of that request (i.e. whether the rectification request was purely of a formal character and whether
Japan's objection was "unfounded in law").
7.233. Article 7.1 of the DSU sets out the "Terms of 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 Japan in [its panel request]
and to make such findings as will assist the DSB in making the recommendations or in
giving the rulings provided for in those agreements.661
7.234. Regarding the "matter referred to the DSB", Article 6.2 of the DSU stipulates that a
complainant's panel request shall, inter alia : (i) identify the specific measures at issue; and
(ii) provide a brief summary of the legal basis of the complaint sufficient to present the problem
clearly. In our view, these two elements of Article 6.2 define the "matter 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. 662 We note that Japan's
panel request identifies the specific measures at issue as the legal instruments through which India
applies customs duties on imports of certain ICT products in excess of the bindings set forth in its
WTO Schedule. The panel request then indicates that the legal basis of Japan's complaint is India's
tariff treatment of certain ICT products inconsistent ly with Articles II:1(a) and (b) of the GATT
1994.663
7.236. Consequently, our mandate, pursuant to the explicit terms of the DSU, is limited to
examining whether the tariff treatment imposed by India on 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 Japan's claims under Articles II:1(a) and (b), India stated that "if it is found that the proposed
Draft Rectification is, in fact, of a purely formal character, it would lead to the conclusion that the
bound rates assigned to the products at issue were clearly in error and that such concessions were
capable of rectification via the 1980 [Decision]." 664 We 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 Articles II:1(a) and Article II:1(b) of the GATT if the contested tariff items of India's schedule of
concessions are void."665
7.238. We do not see how findings that the rectification request was "of a purely formal character"
and that Japan's objection was "unfounded in law" would modify India's WTO tariff commitments or
otherwise affect our application of Articles II:1(a) and (b) of the GATT 1994. India has clarified that
it is not r equesting us to certify its rectification request. 666 In any case, we do not read the 1980

660 See also Panel Report, EU – Poultry Meat (China), fn 39 to para. 7.27.
661 Constitution Note of the Panel, WT/DS584/10, para. 2.
662 See e.g. Appellate Body Reports, Argentina – Import Measures, para. 5.11; US – Countervailing
Measures (China), para. 4.6; and US – Countervailing and Anti-Dumping Measures (China), para. 4.6.
663 Japan's panel request.
664 India's response to Panel question No. 49, para. 45.
665 India's second written submission, para. 123.
666 India's second written submission, para. 123 ("India clarifies that it does not seek … certification of
the Draft Rectification through the dispute settlement mechanism").

Decision to permit a panel to certify a rectification request made under the 1980 Decision. We note
that pursuant to paragraph 3 of the 1980 Decision, changes to a Sc hedule requested through the
1980 Decision "become a Certification provided that no objection has been raised by a [Member]
within three months". We recall that WTO Members other than Japan – including the European Union
and Chinese Taipei, complainants in the other two disputes in which the same panelists were
appointed667 – objected to India's rectification request. Consequently, even assuming arguendo that
we determined that India's draft rectification was of a "purely formal character" and that Japan's
objection on the same was "unfounded", our findings would not have any effect vis-à-vis India's
WTO Schedule. Until all objections to India's rectification request are withdrawn (including objections
by WTO Members who are not parties to this dispute), and India's proposed changes are certified,
India's WTO Schedule, as a legal matter, remains unmodified.668 Contrary to India's arguments, our
findings in this regard would not render its bound rates "severally void" and would not in any way
modify India's WTO obligations under Articles II:1(a) and (b) or under its WTO Schedule.
7.239. Indeed, from our review of India's arguments, we understand that India is in fact raising a
claim that Japan acted inconsistently with its own WTO obligations. We note that a "claim" in WTO
dispute settlement refers to an allegation that another Member has violated a provision of a covered
agreement, thereby nullifying or impairing the benefits accruing to the aggrieved Member.669 India,
in its own words, requests us to find that "Japan violated paragraph 3 of the 1980 [Decision]" and
"imped[ed] India's rights … under the 1980 [Decision]".670 This, in our view, constitutes a claim by
India that Japan has violated, and in effect nullified or impaired the benefits that accrue to India
under, the 1980 Decision.671
7.240. Therefore, we consider that India's claim does not concern the matter before the Panel, as
defined in Japan's panel request, namely whether the tariff treatment imposed by India on certain
ICT products is inconsistent with Articles II:1(a) and (b) of the GATT 1994.672 Consequently, India's
request for findings appears to fall outside our terms of reference, pursuant to Articles 6.2 and 7.1
of the DSU.
7.241. We note India's argument that Article 11 of the DSU requires us to "objectivel y assess the
facts of the dispute and examine the conformity of Members' actions with [the] covered
agreements".673 We agree that Article 11 requires us to make an objective assessment of the facts
of the case and the applicability of, and conformity with, the relevant covered agreements. However,
we understand that India is not requesting factual or even legal finding s that would be relevant for
assessing the consistency of the measures challenged by Japan with the covered agreements. To
the contrary, India is requesting legal findings that Japan acted inconsistently with its own WTO
obligations.

667 The same panelists were appointed in India – Tariffs on ICT Goods (EU) (DS582), India – Tariffs on
ICT Goods (Japan) (DS584), and India – Tariffs on ICT Goods (Chinese Taipei) (DS588).
668 We note that several third parties agree with this understanding. (See e.g. Canada's third-party
response to panel question No. 19, and No. 20, para. 16; European Union's third-party response to Panel
question No. 19, para. 26; Korea's third-party response to Panel question No. 20, para. 14; and United States'
third-party response to Panel question Nos. 19-20, para. 20). A previous panel took a similar view, stating that
"a proposed rectification to correct an alleged error in a Schedule would have no legal effect until such time as
the text of the Schedule is changed through certification." (Panel Report, EU – Poultry Meat (China), para.
7.536. See also Panel Report, Russia – Tariff Treatment, para. 7.54).
669 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.8 (referring
to Appellate Body Report, Korea – Dairy, para. 139).
670 India's second written submission, para. 116. (emphasis added)
671 We note that India itself refers to its request for findings as a "claim". India states in its second
written submission:
As pointed out by India in its previous submissions, the objections made by Japan were
unfounded and lacked legal merit. Therefore, India is claiming that: (i) Japan violated Paragraph
3 of the 1980 [Decision] by raising an [objection] unfounded in law, and (ii) Japan's action was
an impediment to India's rights to make a formal rectification to its schedule of 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. 116)
672 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 Japan.
673 India's second written submission, para. 121.

7.242. Article 11 requires that "a panel should make an objective assessment of the matter before
it, including an objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered agreements". 674 In our view, "the matter" before us (under Article 11)
constitutes the "matter referred to the DSB" (under Article 7.1), and is delimited by the
complainant's panel request. We have found above that India's request for findings is outside the
scope of our terms of reference. We therefore see nothi ng in Article 11 of the DSU that permits us
to make the findings requested by India.
7.243. India also refers to the findings of the Appellate Body in Mexico – Taxes on Soft Drinks to
support its position that Article 3.2 of the DSU requires us to "interpret the Draft Rectification and
clarify the rights and obligations of the Members under it" .675 India quotes the following finding by
the Appellate Body:
A decision by a panel to decline to exercise validly established jurisdiction would seem
to 'diminish' the rig ht of a complaining Member to 'seek the redress of a violation of
obligations' within the meaning of Article 23 of the DSU, and to bring a dispute pursuant
to Article 3.3 of the DSU. This would not be consistent with a panel's obligations under
Articles 3.2 and 19.2 of the DSU. We see no reason, therefore, to disagree with the
Panel's statement that a WTO panel 'would seem … not to be in a position to choose
freely whether or not to exercise its jurisdiction'.676
7.244. We note, however, that India is not a complai ning party in this dispute. By declining to
"interpret the Draft Rectification"677, we are not diminishing India's rights to bring a dispute pursuant
to the DSU. India is not precluded from requesting the establishment of a panel with appropriate
terms of reference to determine whether Japan's actions "violated" the 1980 Decision. Moreover, we
note that India has neither entered into consultations with Japan under Article 4 of the DSU, nor
requested the establishment of a panel by the DSB under Article 6 of the DSU. In our view, if we
were to assess the substance of India's request for findings, this would in fact diminish the rights of
the complainant in this dispute, namely its right to seek a positive solution through consultations.
The Appellate Body's 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 pa nel found that: (i) "WTO Members have an obligation to perform treaties in good
faith, and if Members' actions are not in conformity with the relevant provisions, the Panel has an
obligation to review it"; and (ii) "systemic issues might arise if Members a buse provisions to
circumvent obligations".678 India argues that for these reasons, we have an obligation to "assess if
the objection raised by Japan is in good faith or if it is merely an instrument to force India to grant
concessions on products, which it never agreed to."679
7.246. In our view, the observations of the panel in Russia – Traffic in Transit not only fail to provide
a legal basis for us to address India's request, but further reinforce our view on this issue. Regarding
the requirement to assess 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.

674 Emphasis added.
675 India's second written submission, para. 120.
676 India's second written submission, para. 120 (quoting Appellate Body Report, Mexico – Taxes on Soft
Drinks, para. 53).
677 India's second written submission, para. 120.
678 India's second written submission, para. 121 (referring to Panel Report, Russia – Traffic in Transit,
paras. 7.132-7.133).
679 India's second written submission, para. 121.

7.247. In sum, we conclude that, in accordance with the provisions of the DSU, our terms of
reference do not permit us to assess in the present proceedings whether: (i) Japan violated
paragraph 3 of the 1980 Decision by raising an objection unfounded in law; or (ii) Japan's action
was an impediment to India's rights to make a formal rectification to its Schedule of concessions
under the 1980 Decision. We also note that, even if we did indeed have the legal mandate to make
the findings requested by India, doing so would not assist in resolving this dispute. 680 For these
reasons, we do not consider it necessary to assess whether the 1980 Decision is a "covered
agreement" within the meaning of Article 1.1 of the DSU, or the substance of India's arguments that
its rectification request was purely of a formal nature and Japan's objection was inconsistent with
its obligations under the 1980 Decision.681
7.3.5 Conclusion
7.248. We have addressed above the parties' arguments concerning the ITA, A rticle 48 of the
Vienna Convention, and India's rectification request under the 1980 Decision. We have concluded
that the ITA is not a covered agreement within the meaning of the WTO Agreement and the DSU,
and does not set forth the legal obligations at is sue in this dispute. Moreover, the ITA does not
otherwise limit the scope of India's tariff commitments as set forth in its WTO Schedule. In our view,
the circumstances of this case do not satisfy the substantive requirements of Article 48 of the Vienna
Convention, and we therefore decline to read aspects of India's WTO Schedule as invalid. Finally, we
consider that India's request for findings that the complainant acted inconsistently with the 1980
Decision is not within our terms of reference, and we cons equently do not have the legal mandate
to make such findings. Moreover, even assuming arguendo that we had the legal mandate to address
India's request for findings, we do not see how such findings would contribute to a positive resolution
of this dispute.
7.249. We therefore proceed with the application of Article s II:1(a) and (b) of the GATT 1994 in
this dispute by comparing, on the one hand, India's WTO tariff commitments as set forth in its
WTO Schedule682, and, on the other hand, the tariff treatment applied by India to imported products.
7.4 Whether India's tariff treatment is inconsistent with Articles II:1(a ) and (b) of the
GATT 1994
7.4.1 Overview
7.250. Japan claims that India is acting inconsistently with Articles II:1(a) and (b) of the GATT 1994
by imposing on certain products tariff treatment that is inconsistent with the commitments inscribed
in India's WTO Schedul e. Japan specifically challenges the tariff treatment accorded by India to
products falling under the following tariff items of India's First Schedule at the time of the Panel's
establishment: 8517.12.11, 8517 .12.19, 8517 .12.90, 8517.61.00, 8517.62.90, 851 7.70.10 and
8517.70.90.683 Japan also claims that, even where India unconditionally exempts certain products
from customs duties, India acts inconsistently with Article II:1(a) of the GATT 1994.
7.251. For its part, India contests certain assertions by Japan regar ding the scope and content of
its WTO tariff commitments, and considers that Japan has failed to substantiate its burden of
demonstrating that the tariff treatment of certain products is inconsistent with Articles II:1(a) and
(b).684 India also argues that pursuant to the India -Japan Comprehensive Economic Partnership
Agreement (CEPA), and implementing Notification No. 69/2011, India exempts the products at issue
when originating from Japan from ordinary customs duties. Regarding Japan's additional claim under
Article II:1(a), India considers that it has discretion to effectuate its obligations under the covered
agreements as it sees fit, and Japan's claim essentially requests an interpretation specifying the
manner in which India must satisfy its obligations under Articles II:1(a) and (b).

680 See para. 7.238 above.
681 See also Panel Report, EU – Poultry Meat (China), fn 39 to para. 7.27.
682 Unless otherwise specified, all references in this Report to India's "WTO Schedule" are to the HS2007
version of that Schedule.
683 See para. 7.1 above.
684 See para. 7.2 above.

7.252. We proceed with our analysis by assessing each tariff items in turn. We recall that where a
measure is inconsistent with Article II:1(b), it is also inconsistent with Article II:1(a).685 We also
recall that 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.686 We therefore conduct our assessment of each
tariff item by: (i) identifying, as a legal matter, India's WTO tariff commitments; (ii) assessing, as a
factual matter, the parties' assertions regarding the tariff treatment accorded by India to certain
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 step s, we also consider it useful to address
certain general issues arising with respect to certain of the tariff items. Where necessary, we address
these general issues at the outset, before conducting our four -step analysis of whether India is
acting inconsistently with Articles II:1(a) and (b). Following our assessment of each tariff item, we
turn to address Japan's additional claim of inconsistency with Article II:1(a), and finally India's
argument that any inconsistency with Articles II:1(a) and (b) is neg ated because products
originating from Japan are exempt from customs duties pursuant to Notification No. 69/2011.
7.4.2 Tariff items 8517.12.11, 8517.12.19, and 8517.12.90 of India's First Schedule
7.4.2.1 General issues
7.4.2.1.1 Main arguments of the parties
7.253. Japan challenges the tariff treatment accorded by India to products falling under tariff items
8517.12.11, 8517.12.19 and 8517.12.90 of India's First Schedule at the time of the Panel's
establishment, covering telephones for cellular networks or for other wireless networks .687 Japan
acknowledges that India amended its First Schedule during the Panel proceedings to reflect the
HS2022. Japan submits that pursuant to those amendments, "subheading 8517 12 has been
replaced by two new subheadings, i.e. subheadings 8517 13 and 851 7 14", and that the products
at issue "now fall under two different subheadings, the descriptions of which are 'smartphones' and
'other telephones for cellular networks or for other wireless networks'". 688 In response to an
argument by India that the measur e challenged by Japan has ceased to exist, Japan argues that
"the entry into force of the HS 2022 has merely reshaped the structure of heading 8517 of the First
Schedule, pursuant to which subheading 8517 12 has been replaced by two new subheadings, i.e.
subheadings 8517 13 and 8517 14" and that "the 20% customs duty is still applied to 'telephones
for cellular networks and other wireless networks' which now fall under two different
subheadings".689 Thus, for Japan, the measure continues to exist. 690 Japan also submits that the
changes to India's First Schedule enacted through the Finance Act 2021 constitute an "amendment
or replacement" which falls within the Panel's terms of reference.691 In response to India's argument
that the Panel cannot issue any rulings or recommendations on the measures pertaining to tariff
item 8517.12, Japan submits that even if the measures have expired (which it disputes), the Panel
must still make findings with regard to those measures.692
7.254. India argues that the measures identified by Japan have ceased to exist, as its First Schedule
was amended to align it with the HS2022, with effect from 1 January 2022, and therefore the Panel
cannot issue rulings or recommendations on the measures pertaining to tariff item 8517.12. 693
According to India, "if a product is to be classified under a tariff entry, then the heading and
description both must be examined to determine the commitments prescribed in the schedule." 694
In this regard, India argues that the scopes and descriptions of tariff items 8517.13 and 8517.14

685 See para. 7.6 above.
686 See para. 7.7 above.
687 Japan's first written submission, para. 32.
688 Japan's response to Panel question No. 72(a), para. 51.
689 Japan's opening statement at the second meeting of the Panel, para. 48. See also Japan's response
to Panel question No. 72(a), para. 51.
690 Japan's opening statement at the second meeting of the Panel, para. 48. See also Japan's response
to Panel question No. 72(a), para. 53.
691 Japan's opening statement at the second meeting of the Panel, paras. 49-53; response to Panel
question No. 72(b), paras. 58-59.
692 Japan's opening statement at the second meeting of the Panel, paras. 45-46.
693 India's second written submission, paras. 105-107.
694 India's response to Panel question No. 68, para. 45.

are different from those of tariff items 8517.12.695 India also submits that "the term 'smartphones'
does not appear in the ITA[] or in the 2007 Schedule. Accordingly, no commitments exist with
respect to such smartphones. Further, there exists no certified schedule with respect to sub-headings
8517.13 and 8517.14."696 India asserts that "[t]he burden of proof is on the complainant to identify
the sub-heading under which smartphones were classified under [the] HS2007, and whether India
has violated its commitments viz -a-viz such sub -headings. However, the complainant [has] not
made any such claims with regard to smartphones." 697 India also submits that "[w]ith regard to
'other telephones for cellular networks' classified under sub-heading 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."698
7.4.2.1.2 Panel's assessment
7.255. Before turning to assess the merits of the parties' arguments with respect to Jap an's claim
concerning products classified under tariff item 8517.12 of India's First Schedule at the time of the
Panel's establishment, we consider it useful to briefly address certain threshold issues concerning
our terms of reference.
7.256. We recall that the measures challenged by Japan are the imposition of customs duties on
products falling within the scope of tariff item 8517.12 of India's First Schedule.699 Japan argues that
the product description of tariff item 8517.12 of the First Schedule is an exact match to the product
description of tariff item 8517.12 of India's WTO Schedule. Thus, for Japan, tariff item 8517.12 of
India's WTO Schedule reflects India's WTO tariff commitments regarding products classified under
tariff item 8517.12 of India's First Sch edule, namely, telephones for cellular networks or other
wireless networks.700
7.257. India argues that: (i) the measures as challenged by Japan have ceased to exist, as a result
of certain amendments to India's First Schedule; and (ii) Japan has failed to demonstrate that
"smartphones" fall within the scope of tariff item 8517.12 of India' s WTO Schedule. We note that
the first of these arguments, on its face, appears to raise threshold issues concerning the scope of
Japan's claim and our terms of reference. The second of these arguments relates to whether the
tariff commitments set forth in tariff item 8517.12 of India's WTO Schedule apply to the products
covered by Japan's claim. In our view, it is not possible to address the merits of these arguments
without assessing: (i) the effect, if any, of India's amendments to its First Schedule on the measures
as challenged by Japan and our terms of reference; and (ii) whether smartphones are products
covered by tariff item 8517.12 of India's WTO Schedule, such that the tariff commitments set forth
therein apply to the products covered by Japan's claim.
7.258. We therefore consider it appropriate to proceed with our analysis by first identifying India's
WTO tariff commitments with respect to products classified under tariff item 8517.12 of its
WTO Schedule. We then address, as a factual matter, the parties ' arguments concerning the tariff
treatment applied by India to certain products, including smartphones. In our view, this factual
assessment is essential to our determination of whether, as alleged by India, the measures at issue
have ceased to exist. 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 Japan
has demonstrated that smartphones are classified under tariff item 8517.12 of India's
WTO Schedule, such that India's tariff commitments for tariff item 8517.12 extend to smartphones,
classified under tariff item 8517.13.00 of India's First Schedule as of 1 January 2022; and whether
the measures challenged by Japan have ceased to exist or have otherwise been amended.

695 India's response to Panel question No. 68, para. 45.
696 India's second written submission, para. 107. See also India's response to Panel question No. 102,
para. 45.
697 India's response to Panel question No. 75(a), para. 60.
698 India's response to Panel question No. 75(a), para. 59.
699 Japan's panel request, p. 1.
700 Japan's first written submission, paras. 92-94.

7.4.2.2 India's WTO tariff commitments
7.4.2.2.1 Main arguments of the parties
7.259. Japan 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%.701
7.260. India contends that the tariff commitments under tariff item 8517.12 as reflected in its
WTO Schedule based on the HS2007 were certified in error.702 India maintains that it did not intend
to make commitments on telephones for cellular networks, which in its view were not covered under
the ITA or the HS1996.703 According to India, the commitments under tariff item 85 17.12 were
undertaken in error, are void pursuant to Article 48 of the Vienna Convention, and are therefore
rendered unbound.704
7.4.2.2.2 Panel's assessment
7.261. We have addressed India's arguments that its WTO Schedule was certified in error above,
and held that India' s tariff commitments are set forth in India's WTO Schedule. 705 We have also
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff
commitments in its WTO HS2007 Schedule. 706 Moreover, we have declined to make the fin dings
requested by India regarding its request to rectify its WTO Schedule pursuant to the
1980 Decision.707
7.262. Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's
WTO HS2007 Schedule provides, inter alia, the following 708:
 Product description Bound
rate
8517 Telephone sets, including telephones for cellular networks or for
other wireless networks; other apparatus for the transmission
or reception of voice, images or other data, including apparatus
for communication in a wired or wireless network (such as a
local or wide area network), other than transmission or
reception 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%

7.263. Given that the relevant tariff binding for "[t] elephones for cellular networks or for other
wireless networks " set forth in India's WTO Schedule is 0%, and given that the WTO Schedule
indicates no terms, conditions, or qualifications attached to that bound duty rate, we observe that
India is obligated to provide unconditional duty -free treatment to t elephones for cellular networks
or for other wireless networks falling under tariff item 8517.12 of its WTO Schedule.
7.4.2.3 India's tariff treatment
7.4.2.3.1 Main arguments of the parties
7.264. Japan submits that at the time of the Panel's establishment, India's First Schedule imposed
a standard duty rate of 20% on imports of telephones for cellular networks and telephones for other
wireless networks, which were classified under tariff items 8517.12.11, 8517.12.19 and 8517.12.90

701 Japan's first written submission, paras. 92 and 94.
702 India's first written submission, paras. 40-74.
703 India's first written submission, paras. 132-146.
704 India's first written submission, paras. 69-74.
705 See para. 7.216 above.
706 See para. 7.82 above.
707 See para. 7.247 above.
708 WT/Let/1072.

of that Schedule.709 Japan also notes that Notification No. 57/2017 exempted from customs duties
"[t]elephones for other wireless networks, other than cellular networks", classified under tariff item
8517.12.90 of India's First Schedule.710 Japan submits that telephones for cellular networks classified
under tariff items 8517.12.11 and 8517.12.19 of the First Schedule remained subject to the 20%
duty rate set out in the First Schedule, as Notification No. 57/2017 did not apply to such products.711
Japan acknowledges that during these proceedings tariff items 8517.12.11, 8517.12.19 and
8517.12.90 of India's First Schedule were replaced with tariff items 8517.13.00 and 8517.14.00.
Japan submits that, following these amendments, In dia's First Schedule imposes a standard duty
rate of 20% on imports of such products, namely smartphones and other telephones for cellular
networks or other wireless networks.712 Japan also notes that Notification No. 57/2017, as amended
by Notification No. 57/2021, exempts " other telephones for other wireless networks ", presently
classified under tariff item 8517.14.00, from customs duties.713
7.265. India does not dispute that at the time of the Panel's establishment, it imposed a 20% duty
rate on telephones for cellular networks, and exempted telephones for other wireless networks from
customs duties.714 India also does not dispute that, following its amendments to the First Schedule,
India imposes a 20% duty rate on products classified under tariff item 8517.13.00 (smartphones)
and certain products classified under tariff item 8517.14.00 (namely other telephones for cellular
networks).715 India submits that Notification No. 57/2017, as amended by Notification No. 57/2021,
exempts certain products classified under tariff item 8517.14.00 (namely other telephones for other
wireless networks) from customs duties.716
7.4.2.3.2 Panel's assessment
7.266. We proceed with our assessment by first examining the tariff treatment accorded to products
that, at the time of the Panel's establishment, fell under tariff item 8517.12 of India's First Schedule.
We then turn to assess the effects of India's amendment of the First Schedule during these
proceedings.
7.267. It is uncontested that at the time of the Panel's establishment, India's First Schedule 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". 717 It is also uncontested that, through
Notification No. 57/2017, India exempted "[t]elephones for other wireless networks, other than
cellular networks" from customs duties. 718 Therefore, at the time of the Panel's establishment,
India's tariff treatment of products under tariff item 8517.12 of its First Schedule was as follows:
Tariff item Product description Applied duty rate
8517.12 -- Telephones for cellular networks or for other
wireless networks:
--- Telephones for cellular networks:

8517.12.11 ---- Mobile phones, other than push button type 20%
8517.12.19 ---- Mobile phones, push button type 20%
8517.12.90 --- Telephones for other wireless networks 0%

7.268. During the Panel proceedings, India amended its First Schedule through the Finance Act
2021 to align it with the HS2022. The Finance Act 2021 came into effect on 1 January 2022. The
Finance Act 2021 provides that the words "including telephones" occurring against heading 8517 be

709 Japan's first written submission, para. 38 (referring to First Schedule as of 12 February 2020,
(Exhibit JPN-10), p. 1578).
710 Japan's first written submission, para. 39 (referring to Notification No. 57/2017, (Exhibit JPN-27),
p. 5; General Exemption No. 239, (Exhibit JPN-28), p. 2206)).
711 Japan's first written submission, para. 40.
712 Japan's response to Panel question No. 78, para. 76.
713 Japan's comments on India's response to Panel question No. 77, para. 100.
714 India's first written submission, para. 131.
715 India's response to Panel question No. 77, para. 64.
716 India's response to Panel question No. 75(a), para. 58 (referring to Notification No. 57/2017 as
amended by Notification No. 57/2021, (Exhibit IND-82)).
717 Japan's first written submission, para. 38; India's first written submission, para. 131. See also First
Schedule as of 12 February 2020, (Exhibit JPN-10), p. 1578.
718 Notification No. 57/2017, (Exhibit IND-82). See also Japan's first written submission, para. 39; and
India's response to Panel question No. 75(a), para. 58.

substituted with the words "including smartphones and other telephones". The Finance Act 2021
also amended the First Schedule, as follows: "for sub -heading 8517 12, tariff items 8517 12 11 to
8517 12 90 and the entries relating ther eto" were substituted with tariff item 8517.13.00, relating
to "smartphones", and tariff item 8517.14.00, relating to "other telephones for other cellular
networks or other wireless networks".719 Therefore, following the amendments to the First Schedule,
tariff item 8517.12 was replaced with tariff items 8517.13.00 and 8517.14.00. India's First Schedule
as of 1 January 2022 imposes a standard duty rate of 20% on products classified under tariff items
8517.13.00 and 8517.14.00.720
7.269. We also observe that pursuan t to India's Notification No. 57/2017, as amended by
Notification No. 57/2021, India exempts certain products covered by tariff item 8517.14.00, namely
"telephones for other wireless networks, other than cellular networks", from customs duties.721 It is
uncontested that all other products covered by tariff items 8517.13.00 and 8517.14.00, (i.e.
"smartphones" and "other telephones for cellular networks") are subject to a tariff treatment of
20%.722 Therefore, pursuant to Notification No. 57/2017 (as amended) as well as the First Schedule,
India's tariff treatment of products classified under tariff item 8517.13.00 and 8517.14.00 of its First
Schedule is presently as follows:
Tariff item Product description Applied duty rate
8517.13.00 -- Smartphones 20%
8517.14.00 -- Other telephones for cellular networks 20%
8517.14.00 -- Other telephones for other wireless networks 0%

7.4.2.4 Comparison of India's tariff treatment to its WTO tariff commitments
7.4.2.4.1 Preliminary issues
7.270. As indicated above, India argues that the measures as challenged by Japan have ceased to
exist, as a consequence of the amendments to India's First Schedule to reflect the HS2022, and are
therefore outside the terms of reference of the Panel. Japan argues that both the original and the
amended measures are within the Panel's terms of reference and requests us to make distinct
assessments of WTO -consistency for both measures. India also argues that Japan has failed to
demonstrate that smartphones are product s classified under tariff item 8517.12 of India's WTO
Schedule.
7.271. Below, we assess whether the amended measures are within the Panel's terms of reference.
If we find that the amended measures are within our terms of reference, we shall then assess
whether i t is necessary for the resolution of this dispute to make distinct assessments of
WTO-consistency regarding both the original and the amended measures. Third, we shall assess
whether smartphones are classified under tariff item 8517.12 of India's WTO Sched ule. Having
addressed these three preliminary issues, we shall compare India's tariff treatment to its WTO tariff
commitments.
7.4.2.4.1.1 Whether the measures are within the Panel's terms of reference
Main arguments of the parties
7.272. India argues that, following the " amendments" to its First Schedule which took effect on 1
January 2022, "subheading 8517.12 has ceased to exist", and therefore the measures challenged
by Japan have ceased to exist. India submits that "[s]martphones and [t]elephones for cellular
networks are now classified under sub-headings 8517.13 and 8517.14, respectively." India observes
that "[t]he description of sub-headings 8517.13 and 8517.14 is different from the description of the
erstwhile sub-heading 8517.12." According to India, "if a product i s to be classified under a tariff

719 Finance Act 2021, (Exhibit IND-60), p. 176.
720 First Schedule, as amended by Finance Act 2021, (Exhibit IND-60), p. 176.
721 Notification No. 57/2017 as amended by Notification No. 57/2021, (Exhibit IND-82), p. 12. See also
India's response to Panel question No. 75(a), para. 58 (referring to Notification No. 57/2017 as amended by
Notification No. 57/2021, (Exhibit IND-82)); and Japan's comments on India's response to Panel question
No. 77, para. 100.
722 Japan's response to Panel question No. 78, paras. 74-77; India's response to Panel question No. 77,
para. 64.

entry, then the heading and description … would have to be seen together to determine the
commitments prescribed in the schedule." India also maintains that "the term 'smartphones' does
not appear in the ITA[] or in the 2007 Schedule. Accordingly, no commitments exist with respect to
such smartphones."723 Further, according to India, "there exists no certified schedule with respect
to sub-headings 8517.13 and 8517.14." Therefore, India submits that "the measure identified by
Japan has ceased to exist, and the Panel cannot issue any rulings or recommendation on the
measures pertaining to sub-heading 8517.12."724
7.273. Japan disagrees that the measures have ceased to exist. Japan maintains that the measures
at issue consist of "acts and notifications through which the 20% customs duty is applied by India
to 'telephones for cellular networks or other wireless networks'". 725 Japan observes that India
continues to apply a 20% customs duty on such products, which are presently classified under tariff
items 8517.13 and 8517.14 of India's First Schedule. 726 For Japan, "the entry into force of the HS
2022 has merely reshaped the structure of heading 8517 of the First Schedule, pursuant to which
subheading 8517 12 has been replaced by two new subheadings, i.e. subheadings 8517 13 and 8517
14."727 Japan also submits that the changes introduced by the Finance Act 2021 constitute "an
amendment or a replacement" in the First Schedule which falls within the Panel's terms of
reference.728 Japan argues that (i) the terms of reference are broad enough to include subsequent
amendments to the First Schedule 729, (ii) the amendments introduced by the Finance Act do not
change the essence of the original measures identified in the panel request730, and (iii) the inclusion
of this amendment within the Panel's terms of reference is necessary to secure a positive solution
to the dispute.731
Panel's assessment
7.274. In this section, we assess whether, as argued by India, the challenged measures have ceased
to exist and are outside our terms of reference following the amendments to India's First Schedule.
7.275. We observe that in its panel request, Japan challenges various legislation through which
India applies a 20% duty on telephones for cellular networks or for other wirel ess networks falling
under tariff items 8517.12.11, 8517.12.19 and 8517.12.90 of the First Schedule. Japan's panel
request indicates that "[t]he measures at issue through which the duties are imposed include: … the
Customs Tariff Act, 1975 ('Customs Tariff Act') including the First Schedule…; and any amendments,
replacements, extensions, implementing measures or other related measures regarding the
measures referred to above".732
7.276. We recall that the product description attached to tariff item 8517.12 of India's First Schedule
at the time of the Panel's establishment was "[t]elephones for cellular networks or for other wireless
networks".733 Specifically, India classified these products under tariff items 8517.12.11, 8517.12.19
and 8517.12.90 of its First Schedule.734 Following the Panel's establishment, the Finance Act 2021,
which amended India's First Schedule by substituting tariff items 8517.12.11, 8517.12.19 and
8517.12.90 with tariff items 8517.13.00 and 8517.14.00, was passed into law.735 Therefore, as India
argues, tariff item 8517.12 no longer exists in its First Schedule subsequent to the amendments.
We also observe that, as India argues, the product descriptions attached to tariff items 8517.13.00

723 India's second written submission, para. 107.
724 India's second written submission, para. 107.
725 Japan's opening statement at the second meeting of the Panel, para. 47.
726 Japan's opening statement at the second meeting of the Panel, para. 48.
727 Japan's opening statement at the second meeting of the Panel, para. 48.
728 Japan's opening statement at the second meeting of the Panel, para. 49; response to Panel question
No. 68, para. 32.
729 Japan's opening statement at the second meeting of the Panel, paras. 49-50 (referring to Panel
730 Japan's opening statement at the second meeting of the Panel, paras. 49 and 51.
731 Japan's opening statement at the second meeting of the Panel, paras. 49 and 52 (referring to
Appellate Body Report, Chile – Price Band System, para. 143; and Panel Reports, EC – IT Products, paras.
7.144-7.145).
732 Japan's panel request, p.1.
733 India's First Schedule as of 12 February 2020, (Exhibit JPN-10).
734 India's First Schedule as of 12 February 2020, (Exhibit JPN-10).
735 Finance Act 2021, (Exhibit IND-60), p. 176.

and 8517.14.00 differ from those attached to 8517.12.11, 8517.12.19 and 8517.12.90 of the
First Schedule at the time of the Panel's establishment, as follows:
India's First Schedule in HS2017 (at the
time of the Panel's establishment)736
India's First Schedule in HS2022 (as of
1 January 2022)
8517 Telephone sets, including telephones for
cellular networks or for other wireless networks;
other apparatus …
- Telephone sets, including telephones for
cellular networks or for other wireless networks:
8517.12 -- Telephones for cellular networks or
for other wireless networks
--- Telephones for cellular networks or other
wireless networks
8517.12.11---- Mobile phones, other than push
button type
8517.12.19---- Mobile phones, push button type
8517.12.90--- Telephones for other wireless
networks
8517 Telephone sets, including smartphones
and other telephones for cellular networks or
for other wireless networks; other apparatus
…
- Telephone sets, including smartphones and
other telephones for cellular networks or for
other wireless networks:
8517.13.00-- Smartphones
8517.14.00-- Other telephones for cellular
networks or for other wireless networks

7.277. Given that the measures challenged by Japan concern legal instruments through which
customs duties are imposed, and that certain such legal instruments, in particular India's First
Schedule, have since been amended, we consider that the challenged measures, as identified in
Japan's panel request, have been amended.
7.278. We therefore turn to assess whether the amended measures are within our terms of
reference. In this regard, we note that Article 6.2 of the DSU provides that a panel request shall
identify, inter alia, the "specific measures at issue". The term "specific measures at issue" has been
understood to suggest that, as a general rule, the measures at issue are those that are in existence
at the time of a panel's establishment.737 However, where a legal instrument enacted after a panel's
establishment amends a measure identified in the panel request, such legal instrument may be
within the panel's terms of reference, provided that the amendment does not change the essence of
the measure identified in the panel request. 738 In our view, an analysis of whether an amended
measure falls within a panel's terms of reference requires a consideration of whether: (i) the terms
of the panel request are broad enough to include subsequent amendments; (ii) the new measure
changes the essence of the original measure included in the panel request or has legal implications
overly different from those of the original measure; and (iii) the inclusion of the amendment within
a panel's terms of reference is necessary to secure a positive solution of the dispute.739 We address
each of these elements in turn.
Whether the terms of Japan's panel request include amendments to the First Schedule
7.279. Japan submits that in its panel request, Japan indicated that the measures it challenges
consist of "acts and notifications through which a 20% duty is applied to 'telephones for cellular
networks or for other wireless networks' including inter alia the Customs Tariff Act including the First
Schedule, as well as 'any amendments, replacements, extensions, implementing measures or other
related measures regarding the measures referred to above'". 740 Given this wording of its panel
request, Japan submits that i ts panel request is "sufficiently broad to account for the possibility of
amendments or replacements in the First Schedule, taking into account the nature of the First
Schedule."741
7.280. We observe that Japan's panel request states that the "measures at issue through which the
duties are imposed include: … (b) the Customs Tariff Act, 1975 ('Customs Tariff Act') including the

736 We recall that India's First Schedule at the time of the Panel's establishment was based on the
HS2017. However, tariff item 8517.12 remained unchanged between the HS2007 and the HS2017.
737 Appellate Body Report, EC – Chicken Cuts, para. 156.
738 Appellate Body Report, EC – Customs Matters, para. 184 (referring to Appellate Body Report, Chile –
Price Band System, para. 139).
739 Panel Reports, EC – IT Products, para. 7.139.
740 Japan's opening statement at the second meeting of the Panel, para, 50.
741 Japan's opening statement at the second meeting of the Panel, para, 50.

First Schedule; … and (l) any amendments, replacements, extensions, implementing measures or
other related measures regarding the measures r eferred to above". 742 Given that Japan's panel
request includes "amendments" and "replacements" to the measures explicitly listed therein, we
consider that the terms of the panel request are broad enough to include the amendments to India's
First Schedule brought into effect by the Finance Act 2021.
Whether the amendments to the First Schedule change the essence of the measure s
identified in Japan's panel request
7.281. Japan submits that the amendments to the First Schedule do not change the scope of the
"portion of the First Schedule which was identified in the panel request since 'telephones for cellular
networks or for other wireless networks' which fall under the then … subheading 8517 12 have
simply been transferred to the new subheadings 8517 13 and 8517 14". 743 Japan submits that
correlation tables prepared by India show that tariff items 8517.12.11 and 8517.12.19 of the original
First Schedule correspond to tariff item 8517.13.00 of the First Schedule as of 1 January 2022, while
tariff item 8517.12.90 of the original First Schedule corresponds to tariff item 8517.14.00 of the
First Schedule as of 1 January 2022.744
7.282. India does not explicitly address whether the amendments to its First Schedule changed the
essence of the measures challenged by Japan. We observe, however, that India more generally
submits that "other telephones for cellular networks" presently classified under tariff item 8517.14
of the First Schedule as of 1 January 2022 "would have been classified under [tariff items]
8517.12.11 or 8517.12.19 of the HS2007".745 India maintains that smartphones could not have been
classified under tariff item 8517.12 of the HS2007.746 According to India, the "HS2007, HS2012 and
HS2017 solely used the 'type of network' a particular telephone uses to classify telephone s under
sub-headings 8517.11 and 8517.12" while tariff item 8517.13.00 is based on "functionality of the
phone and the type of network". 747 India submits that since "smartphones" were not granted a
dedicated tariff subheading in the HS2007, they were classi fiable under different tariff items,
depending on the functionality of the smartphones.748
7.283. We recall that the measures identified by Japan in its panel request are the set of legal
instruments through which India accords certain tariff treatment to products falling under certain
tariff items of India's First Schedule. In assessing whether India's amendment of the First Schedule
changes the essence of the measures identified by Japan, we consider whether: (i) the amendment
is linked to the measures identified in Japan's panel request749; (ii) the amended measures cover a
similar product scope as the original measure s750; and (iii) the legal implications of the amended
measures are similar to th ose of the original measure s.751 We consider these three elements in
turn.752
7.284. Starting with the link between the amended measures and the original measures, it is
uncontested that the Finance Act 2021 amended India's First Schedule. 753 As indicated above, the

742 Japan's panel request, pp. 1-2.
743 Japan's opening statement at the second meeting of the Panel, para. 51. See also Japan's response
744 Japan's response to Panel question No. 72(a), para. 52 (referring to CBIC, Correlation of Customs
Tariff between 2021 and 2022 (December 2021), (Exhibit JPN-74), pp. 326-327)).
745 India's response to Panel question No. 75(a), para. 59.
746 India's comments on Japan's response to Panel question No. 72(a), para. 33.
747 India's comments on Japan's response to Panel question No. 72(a), para. 33.
748 India's comments on Japan's response to Panel question No. 72(a), para. 33.
749 The situation before us differs from that in EC – Chicken Cuts. In that dispute, the Appellate Body
stated that "[t]he two subsequent measures in this dispute make no explicit reference to the two original
measures, which continue to remain in force." (Appellate Body Report, EC – Chicken Cuts, para. 158). In this
dispute, the Finance Act 2021 makes an explicit reference to legislation included in the original measure, i.e.
the First Schedule. (Finance Act 2021, (Exhibit IND-60), p. 132).
750 Appellate Body Report, EC – Chicken Cuts, paras. 158-159. See also Panel Reports, EC – IT Products,
para. 7.186.
751 Panel Reports, EC – IT Products, para. 7.139.
752 In our view, whether the essence of a measure remains unchanged shall be determined on a
case-by-case basis depending on the relevant facts before the panel. We are also of the view that
consideration of these three elements, and indeed any other elements a panel may deem relevant, is a holistic
exercise and the weight to be ascribed to them may depend on the circumstances of the case.
753 India's second written submission, para. 105. See also Finance Act 2021, (Exhibit IND-60), p. 132.

Finance Act 2021 "substituted" tariff items 8517.12.11, 8517.12.19 and 8517.12.90 with tariff items
8517.13.00 and 8517.14.00. 754 Subsequent to the amendments, tariff items 8517.12.11,
8517.12.19 and 8517.12.90 of the First Schedule ceased to exist. 755 These amendments therefore
establish a direct lin k between the amended measures (tariff treatment of products presently
classified under tariff items 8517.13.00 and 8517.14.00) and the original measures (tariff treatment
of products previously classified under tariff items 8517.12.11, 8517.12.19 and 8517.12.90).
7.285. Regarding the scope of products covered by the measure s, it is uncontested that products
covered under tariff item 8517.14.00 were covered by the original measure s, i.e. India's First
Schedule at the time of the panel's establishment.756 Japan also maintains that smartphones, which
are presently covered under tariff item 8517.13.00 of the First Schedule as of 1 January 2022, were
covered under tariff item 8517.12 of the First Schedule at the time of the panel's establishment.757
We note that India's arguments explicitly relate to whether smartphones were classified under tariff
item 8517.12 of the HS2007. India submits that "no commitments exist with respect to …
smartphones"758 and that smartphones "could not be classified under HS2007 8517.12". 759 We
understand India's arguments to relate to the classification of such products in India's
WTO Schedule, and consequently India's WTO tariff commitments with regard to smartphones, an
issue we address in section 7.4.2.4.1.3 below. This section of our assessment, however, relates to
whether the amendments to the First Schedule changed the essence of the measures, specifically,
whether the product scope of tariff items 8517.13.00 and 8517.14.00 of the First Schedule as of 1
January 2022 differs from the produc t scope of tariff item 8517.12 of India's First Schedule at the
time of the Panel's establishment.
7.286. As indicated above, the Finance Act 2021 "substituted" tariff items 8517.12.11, 8517.12.19
and 8517.12.90 with tariff items 8517.13.00 and 8517.14.00. We also observe that the correlation
table prepared by India indicates that the product scope of tariff items 8517.13.00 and 8517.14.00
comprises those products previously classified under tariff items 8517.12.11, 8517.12.19, and
8517.12.90.760 The correlation tables provide as follows:
Tariff 2021 Tariff 2022 Correlation code
85171211 85171300 NP
85171219 85171300 NP
85171290 85171400 NF

7.287. India's Guidance Note on the Correlation Table clarifies that the correlation code "NP"
indicates that the "[right hand side] tariff is new and relatable to multiple entries in the [left hand
side]".761 The Correlation Table, read together with the Guidance Note, indicates that India itself
previously classified smartphones (presently classified under tariff item 8517.1 3.00 of the First
Schedule as of 1 January 2022) under tariff item 8517.12 of its First Schedule. We also observe that
India's Finance Act 2021 provides that "[f]or the purposes of heading 8517, the term 'smartphones'
means telephones for cellular networks , …" which indicates that India's domestic classification
classified smartphones as a type of telephone for cellular networks. Therefore, subsequent to the
amendment to India's First Schedule, the product scope of the amended measures has remained
similar to that of the original measures.

754 Finance Act 2021, (Exhibit IND-60), p. 176.
755 First Schedule as of 1 February 2022, (Exhibit JPN-75), p. 1404. See also India's second written
submission, paras. 105-107.
756 India's response to Panel question No. 75(a), para. 59. India argues that "[w]ith regard to 'other
telephones for cellular networks' classified under sub-heading 8517.14, it is submitted that such phones would
have been classified under 8517.12.11 or 8517.12.19 of the HS2007 and India's other legal arguments would
continue to apply."
757 Japan's response to Panel question No. 72(a), para. 51.
758 India's second written submission, para. 107.
759 India's response to Panel question No. 75(b), para. 62.
760 CBIC, Correlation of Customs Tariff between 2021 and 2022 (December 2021), (Exhibit JPN-74),
pp. 326-327.
761 CBIC, Correlation of Customs Tariff between 2021 and 2022 (December 2021), (Exhibit JPN-74),
p. 2. The first letter "N" in the correlation code indicates that the tariff item on the right-hand side did not exist
in the previous HS Version, while the second letter "P" indicates that the tariff entry on the right-hand side is
only partially covered within the tariff entry at the left-hand side. (Ibid. p. 2).

7.288. We now turn to the third element – whether the legal implications of the original measures
are similar to those of the amended measures. We observe that India's First Schedule, as amended
by the Finance Act 2021, presently imposes a customs duty of 20% on products classified under
tariff items 8517.13.00 and 8517.14.00.762 As indicated above, those products comprise telephones
for cellular networks and for wireless networks, previously classified under tariff item 8517.12 of
India's First Schedule and subject to a 20% duty rate. Thus, the amendment to India's First Schedule
does not appear to have modified the tariff treatment that was accorded under the First Schedule to
the products at issue at the time of the panel's establishment, and which is the basis for Japan's
claim in this dispute. We consider, therefore, that the amended measures have similar legal
implications as the original measures.
7.289. Taking into account that the amended measures are directly linked to the original measures,
and that the original and amended measures apply to the same product scope and have similar legal
implications, we find that the Finance Act 2021 amends India's First Schedule without changing the
essence of the measures identified in Japan's panel request.
Whether the inclusion of the amendments within the panel's terms of reference is
necessary to secure a positive solution to the dispute
7.290. Japan submits that the inclusion of the amendment to the First Schedule in the panel's terms
of reference is necessary to secure a positive solution to the dispute in accordance with Articles 3.7
and 3.4 of the DSU.763
7.291. We recall that, in India's view, the measures as challenged by Japan have ceased to exist.
We have found above that the amended measures, similarly to the original measures, impose
customs duties on the products covered by Japan's panel request , namely, telephones for cellular
networks and for wireless networks. We consider that the essence of the measures as challenged
remains the same. We also recall that Japan claims that India accords tariff treatment that is
inconsistent with Articles II:1( a) and (b) to such products. In light of the parties' arguments, we
consider that if we were to refrain from making findings on the amended measures, it would leave
unresolved the question of whether India is presently acting consistently with its WTO obli gations.
We therefore consider that assessing the WTO -consistency of the amended measures is necessary
to positively resolve this dispute.764
Conclusion
7.292. In conclusion, we find that the amended measures, which comprise the imposition of
customs duties on products classified under tariff item 8517.12 of India's First Schedule at the time
of the Panel's establishment, and presently classified under tariff items 8517.13.00 and 8517.14.00
of the First Schedule as of 1 January 2022, are within our terms of reference.
7.4.2.4.1.2 Relevant measures on which to make findings
7.293. Turning to the second preliminary issue, India submits that the Panel cannot issue any
rulings and recommendations pertaining to tariff item 8517.12, which it maintains has ceased to
exist.765
7.294. Japan argues that even if the challenged measures have ceased to exist, the Panel must still
make findings regarding those measures. Japan submits that the Panel ought to take into account

762 Finance Act 2021, (Exhibit IND-60), p. 176.
763 Japan's response to Panel question No. 68, para. 35. India does not respond to this argument by
Japan.
764 We agree with the findings of the Appellate Body in Chile – Price Band System that "generally
speaking, the demands of due process are such that a complaining party should not have to adjust its
pleadings throughout dispute settlement proceedings in order to deal with a disputed measure as a 'moving
target'". The Appellate Body further considered that if the terms of reference in a dispute are broad enough to
include amendments to a measure and if it is necessary to consider an amendment in order to secure a
positive solution to the dispute, it is appropriate to consider the measure as amended in coming to a decision
in a dispute. (Appellate Body Report, Chile – Price Band System, para. 144).
765 India's response to Panel question No. 68, paras. 40-45.

that (i) the measures expired after the panel establishment 766, (ii) the complain ant continued to
request that the panel make findings767, (iii) the respondent argued that the measures at issue are
consistent with its obligations768, and (iv) the respondent could take measures that may give rise to
certain, or materially similar, WTO inconsistencies.769 Moreover, Japan requests the Panel to assess
the consistency of the measures as they existed on the date of the Panel's establishment and as it
was amended thereafter.770
7.295. Regarding India's view that the measures pertaining to tariff item 8517.12 have ceased to
exist, we note that even assuming arguendo that the challenged measures had ceased to exist,
those measures would be within our terms of reference as they existed at the time of the Panel's
establishment.771 We recall that, consistent with previous findings of panels and the Appellate Body,
once a panel is established and its terms of reference set, a panel has discretion to decide how to
take into account subsequent repeals of measures covered by its terms of reference.772 Some panels
have exercised that discretion by making findings on the WTO-consistency of the expired measures,
while refraining from making recommendations pursuant to Article 19 of the DSU. 773 In this case,
we consider the measures as they existed at the time of the P anel's establishment are within our
terms of reference and we therefore have discretion to assess whether those measures were
consistent with India's WTO obligations.
7.296. That we have jurisdiction to assess the WTO-consistency of the measures as they existed at
the time of the Panel's establishment does not mean that we necessarily have to do so. 774 In this
case, we observe that both the original and the amended measures concern India's tariff treatment
for telephones for cellular networks or for other wireless networks, and, as we found above, the
essence of the challenged measures has not changed. We also understand that the basis for Japan
to claim that th e measure s are inconsistent with Article s II:1(a) and (b) has not changed. We
therefore see no reason to make distinct findings regarding the WTO -consistency of the measures
as they existed at the time of the Panel's establishment and as they presently exist. We therefore
assess the WTO -consistency of the measures at issue based on the most up -to-date information
available to the Panel (i.e. based on the situation as it stands following India's amendment of the
First Schedule on 1 January 2022).
7.4.2.4.1.3 Whether "smartphones" are classified under tariff item 8517.12 of India's
WTO Schedule
7.297. Turning now to the third preliminary issue identified in paragraph 7.270 above, we examine
whether Japan has demonstrated that smartphones are classified under tariff item 8517.12 of India's
WTO Schedule.
Main arguments of the parties
7.298. Japan asserts that "smartphones" are "telephones for cellular networks" and are covered by
India's commitments under tariff item 8517.12 of India's WTO Schedule. Japan submits that item 5
of the Chapter Notes of Chapter 5 of the First Schedule states that "smar tphones" should be
understood as telephones for cellular networks equipped with certain functions .775 Japan also

766 Japan's opening statement at the second meeting of the Panel, para. 46 (referring to Panel Reports,
Dominican Republic – Import and Sales of Cigarettes, para. 7.343; Indonesia – Autos, para. 14.9; and
EC - Approval and Marketing of Biotech Products, paras. 7.1307-7.1308).
767 Japan's opening statement at the second meeting of the Panel, para. 46 (referring to Panel Reports,
US – Wool Shirts and Blouses, para. 6.2; Indonesia – Autos, paras. 14.134-14.135; and Dominican Republic –
Import and Sale of Cigarettes, para. 7.343).
768 Japan's opening statement at the second meeting of the Panel, para. 46 (referring to Panel Reports,
769 Japan's opening statement at the second meeting of the Panel, para. 46 (referring to Panel Report,
US – Poultry (China), para. 7.55).
770 Japan's response to Panel question No. 68, para. 30.
771 See e.g. Panel Reports, US – Poultry (China), para. 7.54; and Indonesia – Autos, para. 14.9.
772 Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5
– US), para. 270.
773 See e.g. Panel Reports, US – Poultry (China), paras. 7.55-7.56; and Indonesia – Autos, para. 4.97.
774 See also Panel Reports, US – Renewable Energy, para. 7.17; and Russia – Tariff Treatment,
para. 7.84.
775 Japan's response to Panel question No. 76, para. 70; comments on India's response to Panel
question No. 75, para. 92 (referring to First Schedule as of 1 February 2022, (Exhibit JPN-75), p. 1396).

considers that the structure of the First Schedule indicates that smartphones are a subgroup of
"[t]elephone sets, including smartphones and other telephones, telephones for cellular networks or
for other wireless networks". 776 Thus, for Japan, smartphones are a subgroup of "telephone sets"
and were therefore classified under heading 8517 of the First Schedule based on the HS2017. 777
Japan also submits that tariff item 8517.14.00 covers "[ o]ther telephones for cellular networks or
for other wireless networks" and considers that this structure of the First Schedule indicates that
smartphones are a subgroup of "telephones for cellular or for other netw orks".778 Japan maintains
that tariff items 8517.13.00 and 8517.14.00 of India's First Schedule have "replaced subheading
8517 12 of the First Schedule based on the HS 2017 for which India bears obligations to provide
duty-free treatment pursuant to its Sch edule."779 Relying on correlation tables prepared by India,
Japan argues that products previously classified under tariff item 8517.12 of the First Schedule are
presently classified under tariff items 8517.13.00 and 8517.14.00.780 Japan also submits that a WCO
classification opinion adopted in 2018 confirms that "smartphones" were classified under tariff item
8517.12 of India's WTO Schedule.781
7.299. India maintains that "the term 'smartphones' does not appear in the ITA [] or in the [HS]
2007 Schedule."782 India submits that the "HS2007, HS2012 and HS2017 solely used the 'type of
network' a particular telephone uses to classify telephones under sub -headings 8517.11 and
8517.12", while tariff item 8517.13.00 in the HS2022 is "based on functionality of the phone and
the type of network ".783 In India's view, smartphones could not have been classified under tariff
item 8517.12, which "solely used the 'type of network'" to classify telephones.784 Relying on Chapter
Note 5 to Chapter 85 of the HS2022, India considers that "smartphones are multifunctional devices,
and the principal function of these devices is not that of telephones". 785 India also submits that
"since 'smartphones' were not granted a dedicated tariff sub -heading in HS2007, they were
classifiable under different tariff items, depending on the functionality of the smartphones".786 India
also notes that tablet computers were classified under HS2007 subheading 8471.30, and while "not
tak[ing] a definitive position on the issue", considers that "tablets too could potentially be classifiable
as 'smartphones' (within the meaning of HS2022), being capable of making calls over a cellular
network."787 India argues that "smartphones could have been classified under various tariff items
under HS2007 (on the bas is of the primary functionality of the machine) and not just under
sub-heading 8517.12."788

776 Japan's comments on India's response to Panel question No. 75, para. 91.
777 Japan's comments on India's response to Panel question No. 75, para. 91.
778 Japan's response to Panel question No. 76, para. 71. (emphasis original)
779 Japan's comments on India's response to Panel question No. 75, para. 93.
780 Japan's response to Panel question No. 76, para. 72 (referring to CBIC, Correlation of Customs Tariff
between 2021 and 2022 (December 2021), (Exhibit JPN-74), pp. 1 and 326-327).
781 Japan's comments on India's response to Panel question No. 75, para. 94 (referring to WCO,
Classification Opinion on "smartphones" (2018), (Exhibit JPN-79)).
782 India's second written submission, para. 107.
783 India's response to Panel question No. 75(a), para. 60, and No. 76(b), para. 63.
784 India's response to Panel question No. 76, para. 63.
785 India's response to Panel question No. 76, para. 63 (referring to Chapter 85 of the HS2022,
(Exhibit IND-85), Note 5). Chapter Note 5 to Chapter 85 reads: "[f]or the purposes of heading 85.17, the term
'smartphones' means telephones for cellular networks, equipped with a mobile operating system designed to
perform the functions of an automatic data processing machine such as downloading and running multiple
applications simultaneously, including third-party applications, and whether or not integrating other features
such as digital cameras and navigational aid systems."
786 India's response to Panel question No. 75, paras. 60 and 62. See also India's comments on Japan's
response to Panel question No. 76, para. 41.
787 India's comments on Japan's response to Panel question No. 76(a), para. 41. India notes that tablets
were defined in a WCO Classification Opinion as "machines which are 'designed to be primarily operated by
using its touch screen. It can process data, execute programs, and connect to the Internet via a wireless
network in order to, for example, exchange and manage e-mails, exchange or download files, download
software applications, conduct video or VoIP ('Voice over Internet Protocol') communications, etc." (Ibid.
(quoting WCO, HS Committee, 49th Session, "Classification of the Machines Commercially Referred to as 'Tablet
Computers'" (13 February 2012) document NC1730E1a; and WCO, HS Committee, 50th Session, "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-86))).
788 India's comments on Japan's response to Panel question No. 76(a), para. 41.

Panel's assessment
7.300. We note at the outset that the product description of subheading 8517.12 of India's
WTO Schedule is "telephones for cellular networks or for other wireless networks".789 Japan submits
that "smartphones" are "telephones for cellular networks", and are therefore classified under this
tariff item.790 India maintains that smartphones could have been classified under other subheadings
of its WTO Sched ule depending on their primary functionality, and not just under tariff item
8517.12.791 We also note that Japan is not arguing that smartphones are classified under any other
tariff item of India's WTO Schedule and, hence, our assessment focuses on tariff item 8517.12 of
India's WTO Schedule, which is the source of India's obligations according to Japan. Therefore, to
the extent that smartphones are not classified under tariff item 8517.12 of India's WTO Schedule,
India's tariff commitments under that tariff item would not extend to such products. Should we find
that India's WTO obligations under tariff item 8517.12 of India's WTO Schedule do not extend to
smartphones, then Japan would have failed to establish India's bound duty rate with respect to
smartphones for purposes of assessing the consistency of India's tariff treatment with Articles II:1(a)
and (b).
7.301. We recall India's argument that the term "smartphones" does not appear in the ITA or in
the HS2007 Schedule. 792 We have rejected India's arguments that the ITA limits the scope of its
tariff commitments in its WTO HS2007 Schedule.793 Therefore, we consider that the absence of the
term "smartphones" from the ITA is not determinative of the scope of India's WTO tariff
commitments. Further, the absence of th e term "smartphones" in the HS2007 Schedule is not
determinative of this issue either because tariff concessions in Members' WTO Schedules apply to
all products falling within the terms of the concession, when interpreted in accordance with
customary rules of interpretation.794 We will therefore assess whether "smartphones" are covered
by subheading 8517.12 of India's WTO Schedule by interpreting the relevant terms in such Schedule
in accordance with customary rules of interpretation.
7.302. The terms of the 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.
7.303. We consider, however, that the HS2007 Explanatory Notes may serve as relevant context
when interpreting India's WTO Schedule, which is based on the HS2007 .795 In this regard, we
observe that the HS2007 Explanatory Notes provide that the product description "[t ]elephones for
cellular networks or for other wireless networks" covers "telephones for use on any wireless
networks", and indicate that "[s]uch telephones receive and emit radio waves which are received
and retransmitted, e.g. by base stations or satellit es", including, inter alia "[c]ellular phones or
mobile phones" and "[s]atellite phones". 796 The key point of disagreement between the parties is
whether "smartphones" are "cellular phones or mobile phones".
7.304. The dictionary meaning of "smartphone" is "a mobile phone capable of running general -
purpose computer applications, now typically with a to uch-screen interface, camera, and internet
access".797 Other dictionaries define "smartphone" as a "cell phone that includes additional software
functions (such as email or an Internet browser)"798 and "a mobile telephone with computer features
that may enab le it to interact with computerized systems and access the web". 799 The foregoing

789 See para. 7.262 above.
790 Japan's response to Panel question No. 76, paras. 67-73.
791 India's response to Panel question No. 75, paras. 60 and 62; India's comments on the Japan's
response to Panel question No. 76, para. 41.
792 India's second written submission, para. 107.
793 See para. 7.82 above.
794 See para. 7.66 above.
795 Appellate Body Report, EC – Computer Equipment, para. 89.
796 HS2007 Explanatory Notes to Heading 8517, (Exhibit JPN-72), p. XVI-8517-2.
797 Oxford English Dictionary online, definition of "smartphone"
https://www.oed.com/view/Entry/381083?redirectedFrom=smartphones#eid (accessed 17 October 2022).
798 Merriam-Webster Dictionary online, definition of "smartphone" https://www.merriam-
webster.com/dictionary/smartphone (accessed 17 October 2022).
799 Collins Dictionary online, definition of "smartphone"
https://www.collinsdictionary.com/dictionary/english/smartphone (accessed 17 October 2022).

suggests that "smartphones" are indeed "telephones for cellular networks", to the extent that they
have the same functions as (and indeed are defined as) "mobile phones" and "cell phones".
7.305. However, t he dictionary definitions described above indicate that "smartphones" have
functions additional to those of "telephones", such as "computer features". Given that smartphones
have various functions, India submits that "the principal function no longer appears to be that of a
telephone" and therefore smartphones "were classifiable under different tariff items, depending on
the functionality of the smartphones", and such products would not necessarily be classified under
subheading 851 7.12.800 In this regard, w e observe that, pursuant to the General Rules for the
Interpretation of the HS, classification shall be determined according to the terms of the headings
and any relative Section or Chapter Notes. These Rules further provide that c lassification of goods
shall be determined according to the terms of those subheadings and any related Subheading
Notes.801
7.306. We note that Chapter Note 3 to Section XVI provides as follows regarding Chapter 85, the
relevant Chapter relating to the products at issue:
Unless the context otherwise requires, composite machines consisting of two or more
machines fitted together to form a whole 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.802
7.307. 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 observe that the definitions of "smartphone" set out above indicate 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.
7.308. We also note that the WCO, applying the General Rules for the Interpretation referred to
above, issued a Classification Opinion in which it classified "smartphones" under subheading
8517.12.803 Classification Opinions, which are issued by the Harmonized System Committee of the
WCO, are not binding upon parties to the WCO. However, pursuant to Artic le 7(1)(b) of the
HS Convention, such Classification Opinions serve as guides to interpreting the HS. In this regard,
we agree with a previous panel which considered WCO decisions to be "a very useful source of
information on the subsequent practice of WTO Members, a large proportion of whom are signatories
to the HS Convention and, therefore, are members of the HS Committee".804 We therefore consider
it relevant to our interpretative exercise that this WCO Classification Opinion indicates that
smartphones a re "telephones for cellular networks", and are appropriately classified under
subheading 8517.12 of India's WTO Schedule.805
7.309. We understand that the term "smartphones" was introduced into the HS nomenclature
through the HS2022 amendment. We consider that 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 "sma rtphones" means " telephones for cellular networks , equipped with a mobile
operating system designed to perform the functions of an automatic data processing machine such
as downloading and running multiple applications simultaneously, including third-party applications,
and whether or not integrating other features such as digital cameras and navigational aid

800 India's response to Panel question No. 75, paras. 60 and 62; comments on Japan's response to Panel
question No. 76, para. 41.
801 General Rules for the Interpretation of the Harmonized System, (Exhibit JPN-60), paras. 1 and 6.
802 HS2007 Section Notes to Section XVI, (Exhibit IND-9), Note 3. (emphasis added)
803 WCO, Classification Opinion on "smartphones" (2018), (Exhibit JPN-79).
804 Panel Reports, EC – Chicken Cuts, para. 7.298. See also Appellate Body Report, EC – Computer
Equipment, para. 90.
805 We note that this Classification Opinion was issued in 2018, with regard to the HS2017. We also
observe that subheading 8517.12 remains unchanged between the HS2007 and the HS2017. Therefore, this
Classification Opinion is relevant to our interpretation of India's WTO Schedule, which is based on the HS2007.

systems."806 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
definition indicates, some of the additional functions that India refers to, such as "photography and
videography"807 are not core functions of smartphones.808
7.310. The structure and content of the HS2022 further supports this interpretation. The relevant
sections of the HS2022 read as follows809:
 Product description
8517 Telephone sets, including smartphones and other telephones for cellular networks
or for other wireless networks; other apparatus for the transmission or reception of
voice, images or other data, including apparatus for communication in a wired or
wireless network (such as a local 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

7.311. We observe that the product description s of heading 8517 of the HS2022 and the
single-hyphen entry immediately following it read "[t]elephone sets, including smartphones and
other telephones for cellular networks or for other wireless networks ."810 Subheading 8517.14, in
turn, refers to "[o]ther telephones for cellular networks or for other wireless networks". The use of
the word "other"811 preceding the term "telephones for cellular networks" in heading 8517 and in
subheading 8517.14 indicates that products in addition to smartphones are also telephones for
cellular networks. Thus, the HS2022 indicates that "smartphones" are "telephones for cellular
networks". The fact that the HS2022 further splits the classification of "telephones for cellular
networks" into two subheadings (namely smartphones, and a residual categ ory, comprising "other
telephones for cellular networks") confirms this conclusion.
7.312. Finally, we note that the manner in which India amended its First Schedule indicates that,
in India's domestic customs regime, smartphones are telephones for cellular networks. We observe
that the product description attached to heading 8517 of the First Schedule as of 1 January 2022
reads "including smartphones and other telephones for other cellular networks ".812 Moreover, the
product description attached to tariff item 8517.14.00 of the First Schedule is " [o]ther telephones
for cellular networks ".813 These product descriptions suggest that smartphones are a type of
telephone for cellular networks. We further note that the Finance Act 2021 itself confirms that "[f]or
the purposes of heading 8517, the term 'smartphones' means telephones for cellular networks."814
7.313. While India argues that "smartphones could have been classified under various tariff items
under HS2007 (on the basis of the primary functionality of the machine)", Ind ia does not
demonstrate under which subheading of its WTO Schedule it considers such products should have

806 Chapter 85 of the HS2022, (Exhibit IND-85), Note 5. (emphasis added)
807 India's response to Panel question No. 76(b), para. 63. See also India's response to Panel question
No. 75(a), para. 60.
808 We emphasize that the definition of a smartphone includes the language "whether or not integrating
other features such as digital cameras". (Chapter 85 of the HS2022, (Exhibit IND-85), Chapter Note 5).
(emphasis added)
809 Emphasis added.
810 Chapter 85 of the HS2022, (Exhibit IND-85). (emphasis added)
811 The word "other" means "[s]eparate or distinct from 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)).
812 Emphasis added. We recall that the description of heading 8517 in the First Schedule at the time of
the Panel's establishment read "including telephones for other cellular networks". India's Finance Act 2021
provides that the words "including telephones" in the description attached to heading 8517 be substituted with
the words "including smartphones and other telephones". (Finance Act 2021, (Exhibit IND-60), p. 176. See
also First Schedule as of 1 February 2022, (Exhibit JPN-75), p. 1404).
813 Finance Act 2021, (Exhibit IND-60), p. 176.
814 Finance Act 2021, No. 13 of 2021, (Exhibit IND-60), p. 44. (emphasis added)

been classified. We note that India suggests that tablet computers, which are defined as "machines
which are 'designed to be primarily operated by usi ng its touch screen" because they "can process
data, execute programs, and connect to the Internet via a wireless network in order to, for example,
exchange and manage e-mails, exchange or download files, download software applications, conduct
video or 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."815 India also submits that it "does not take a definitive po sition on the issue". 816 We do
not consider it necessary to discuss whether tablet computers could potentially be classifiable as
smartphones. Notwithstanding that India does not take a firm view on the issue, the question before
us is not whether tablets are classified as smartphones in India's WTO Schedule (indeed, the term
"smartphone" does not appear in that Schedule), but rather whether smartphones are classified as
"telephones for cellular networks" within the meaning of India's WTO Schedule.
7.314. In light of the foregoing, we conclude that smartphones are cellular mobile phones within
the meaning of subheading 8517.12 of India's WTO Schedule.
7.4.2.4.2 Comparison of applied and bound duty rates
7.4.2.4.2.1 Main arguments of the parties
7.315. Japan argues that India imposes customs duties on imports of telephones for cellular mobile
networks in excess of the bound rate of 0% set forth in India's WTO Schedule.817 Japan acknowledges
that telephones for other wireless networks are exempted from customs duties pursuant to
Notification No. 57/2017, and submits that such products are not subject to customs treatment in a
manner inconsistent with Article II:1(b). 818 Japan however maintains that India is providing less
favourable treatment than what is provided for in its Schedule, which is inconsistent with its
obligations under Article II:1(a) because "this exemption is subject to the possibility of repeal at any
time and, therefore, there remains uncertainty and unpredictability regarding the customs duties
which will apply to such product".819
7.316. India submits that it imposes a 20% customs duty on products classified under tariff item
8517.13.00 (smartphones) and certain products classified under tariff item 8517.14.00 (other
telephones for cellular networks), but exempts from customs duties certain products classified under
tariff item 8517.14.00 (other telephones for other wireless networks).820
7.4.2.4.2.2 Panel's assessment
7.317. We recall that pursuant to its WTO Schedule, India is obligated to accord unconditional
duty-free treatment to products fallin g under tariff item 8517.12 of that Schedule, namely
telephones for cellular networks or for other wireless networks. 821 We also recall that, effective
1 January 2022, such products are classified under tariff items 8517.13.00 and 8517.14.00 of India's
First Schedule.
7.318. We have also found that India applies a 20% duty rate on smartphones covered under tariff
item 8517.13.00, and other telephones for cellular networks covered under tariff item 8517.14.00.
India exempts "other telephones for other wireless networks" covered under tariff item 8517.14.00
from customs duties.
7.319. Therefore, with regard to smartphones and other telephones for other cellular networks,
India imposes a duty rate that is in excess of the bound duty rate set forth in India's WTO Schedule.
India exempts "other telephones for other wireless networks" from customs duties, and therefore

815 India's comments on Japan's response to Panel question No. 76(a), para. 41.
816 India's comments on Japan's response to Panel question No. 76(a), para. 41.
817 Japan's opening statement at the second meeting of the Panel, paras. 47-49; response to Panel
question No. 78, paras. 74-76; first written submission, paras. 113-114.
818 Japan's response to Panel question No. 73, para. 61, and No. 74(a), para. 63; comments on India's
response to Panel question No. 77, para. 100.
819 Japan's response to Panel question No. 73, para. 62, and No. 74(a), para. 64.
820 India's response to Panel question No. 77, para. 64; comments on Japan's response to Panel
question No. 78, para. 43.
821 See para. 7.263 above.

accords to such products unconditional duty -free treatment, in accordance with the terms of its
WTO Schedule.
7.4.2.5 Conclusion
7.320. Based on the foregoing, we find that India's tariff treatment of telephones for cellular
networks, which at the time of the Panel's establishment fell within the scope of tariff items
8517.12.11 and 8517.12.19 of India's First Schedule and which presently fall within the scope of
tariff items 8517.13.00 and 8517.14.00 of India's First Schedule, is inconsistent with Article II:1(b),
first sentence, of the GATT 1994, because such products are subject to ordinary customs duties in
excess of those set forth and provided in India's WTO Schedule. We also find that India accords
unconditional duty-free treatment to telephones for other wireless networks, which at the time of
the Panel's establishment fell within the scope of tariff item 8517.12.90 of India's First Schedule and
which presently fall within the scope of tariff item 8517.14.00 of India's First Schedule, in accordance
with the terms of its WTO Schedule, and is therefore acting consistently with Article II:1(b), first
sentence, of the GATT 1994.822
7.321. We recall that the application of ordinary customs duties in excess of those provided for in
a Member's Schedule, inconsistent with the first sentence of Article II:1(b), also constitutes "less
favourable" treatment within the meaning of Article II:1(a). Consequently, we find that India's tariff
treatment of such products is less favourable than that provided in its WTO Schedule, and India is
therefore acting inconsistently with Article II:1(a) of the GATT 1994.
7.4.3 Tariff item 8517.61.00 of India's First Schedule
7.4.3.1 India's WTO tariff commitments
7.4.3.1.1 Main arguments of the parties
7.322. Japan asserts that India's bound duty rate for products falling under tariff item 8517.61 of
India's WTO Schedule, base stations, is 0%.823
7.323. India contends that the tariff commitments under tari ff item 8517.61 as reflected in its
WTO Schedule based on the HS2007 were certified in error.824 India maintains that it did not intend
to make commitments on base stations, which in its view were not covered under the ITA or the
HS1996, and were introduced to the HS Nomenclature in the 2007 edition. 825 According to India,
the commitments under tariff item 8517.61 were undertaken in error, are void pursuant to Article 48
of the Vienna Convention, and are therefore rendered unbound.826
7.4.3.1.2 Panel's assessment
7.324. We 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. 827 We have also
rejected India's arguments that the ITA sets forth, or otherwise limits the sc ope of, its tariff
commitments in its WTO HS2007 Schedule. 828 Moreover, we have declined to make the findings
requested by India regarding its request to rectify its WTO Schedule pursuant to the
1980 Decision.829

822 Japan makes an additional claim to the effect that "even where exemptions are not subject to any
terms or conditions, those exemptions do not eliminate the inconsistency with Article II:1(a) as far as the
exempted products are concerned … because of the potential of deleterious effects on competition arising from
these exemptions." (Japan's first written submission, para. 133. See also Japan's second written submission,
paras. 19-20). Given that this claim, as we understand it, applies to all four tariff items covered by Japan's
panel request, we consider it appropriate to provide our assessment in section 7.4.6 below.
823 Japan's first written submission, para. 97.
824 India's first written submission, paras. 38-74.
825 India's first written submission, paras. 148-158.
826 India's first written submission, paras. 73-74.
827 See para. 7.216 above.
828 See para. 7.82 above.
829 See para. 7.247 above.

7.325. Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's
WTO HS2007 Schedule provides, inter alia, the following830:

Product description Bound
rate
8517.61 -- Base stations 0%

7.326. A review of India's WTO Schedule shows that India committed to a bound duty rate of 0%
for products falling under tariff item 8517.61, namely "[b]ase stations".831 We also note that India's
WTO Schedule does not indicate any terms, qualifications or conditi ons that must be met in order
for products under tariff item 8517.61 to receive the 0% bound duty rate.832 Therefore, in accordance
with its WTO Schedule, India is obligated to provide unconditional duty -free treatment to base
stations falling under tariff item 8517.61 of its WTO Schedule.
7.4.3.2 India's tariff treatment
7.4.3.2.1 Main arguments of the parties
7.327. Japan argues that India's First Schedule imposes a standard duty rate of 20% on imports of
base stations, which India classifies under tariff item 8517.61.00 of its First Schedule.833 Japan also
submits that pursuant to Serial No. 425 of Notification No. 50 /2017, India exempts base station
controllers, base transreceiver stations, and antenna systems from customs duties, subject to the
condition that they are imported by a person licenced by the Department of Telecommunications of
India for the purpose of pr oviding Public Mobile Trunked Service. 834 Japan maintains that if this
condition is not fulfilled, "relevant goods can be imported into India upon completion of the applicable
customs procedures" but "such imports would be subject to the basic customs duty rate exceeding
0% rather than the reduced rate applicable under the exemption".835
7.328. India does not dispute that the applied duty rate on base stations is 20%.836 India also does
not dispute that certain products are exempt from customs duties if they meet the condition set out
in Serial No. 425. H owever, India maintains that "the licensing requirement is applicable for the
possession of the specified wireless apparatus in the country – whether it is procured domestically
or imported." 837 According to India, there is no requirement to record such "pr ocedural and
documentary formalities for the importation of goods" in the WTO Schedule. 838 India also submits
that Serial No. 425 was omitted from Notification No. 50/2017 through Notification No. 02/2022.839
Finally, India maintains that the products covered by Serial No. 425 (base station controllers, base
transreceiver stations, and antenna systems) are " sub-systems and not complete base stations ",
and are therefore not covered by tariff item 8517.61.00.840
7.4.3.2.2 Panel's assessment
7.329. India's First Schedule imposes a standard duty rate of 20% on products falling under tariff
item 8517.61.841
7.330. At the time of the Panel's establishment, Serial No. 425 of Notification No. 50/2017
exempted from customs duties base station controllers, base transreceiver stations, and antenna

830 WT/Let/1072.
831 WT/Let/1072.
832 WT/Let/1072.
833 Japan's first written submission, para. 45 (referring to First Schedule as of 12 February 2020,
(Exhibit JPN-10), p. 1578).
834 Japan's first written submission, para. 46 (referring to Notification No. 50/2017, (Exhibit JPN-32);
and General Exemption No. 183, (Exhibit JPN-33)).
835 Japan's response to Panel question No. 70, para. 40; Japan's comments on India's response to Panel
question No. 70, paras. 75-78.
836 India's first written submission, para. 147.
837 India's response to Panel question No. 69, para. 48 (referring to Indian Wireless Telegraphy Act
1933, (Exhibit IND-79); and Notification No. 71 (25 September 1953), (Exhibit IND-80)).
838 India's response to Panel question No. 69, para. 48.
839 India's response to Panel question No. 91.
840 India's response to Panel question No. 91.
841 First Schedule as of 12 February 2020, (Exhibit JPN-10), p. 1578.

systems if imported by a person licenced by the Department of Telecommunications for the purpose
of providing Public Mobile Radio Trunked Service.842 Notification No. 02/2022 amended Notification
No. 50/2017 and omitted Serial No. 425 from that Notification with effect from 1 February 2022.843
Therefore, with effect from 1 February 2022, the three products at issue are not eligible for
exemption, even assuming that such products are classified under tariff item 8517.61 of the First
Schedule.844 Therefore, all products falling under tariff item 8517.61 are subject to the duty rate of
20% stipulated in the First Schedule.
7.331. In sum, we find that India imposes a duty rate of 20% on products falling under tariff item
8517.61.
7.4.3.3 Comparison between India's WTO tariff commitments and its tariff treatment
7.332. We recall our finding above that pursuant to its WTO Schedule, India is obligated to provide
unconditional duty-free treatment to base stations, under tariff item 8517.61 of that Schedule.
7.333. We have found that India imposes a 20% customs duty on products falling under tariff item
8517.61.00 of its First Schedule. We consider that such products are covered by India's WTO tariff
commitments with respect to base stations, falling under tariff item 8517.61 of India's WTO
Schedule. A comparison between India's bound duty rate and India's tariff treatment indicates that
India is imposing ordinary customs duties on those products in excess of the bound duty rate set
forth in India's WTO Schedule.
7.4.3.4 Conclusion
7.334. Based on the foregoing, we find that India's tariff treatment of base stations, falling within
the scope of tariff item 8517.61.00 of India's First Schedule, is inconsistent with Article II:1(b), first
sentence, of the GATT 1994, because such products are subject to ordinary customs duties in excess
of those set forth and provided in India's WTO Schedule.
7.335. We recall that the application of ordinary customs duties in excess of those provided for in
a Member's Schedule, or subject to terms, conditions or qualifications not set forth in the Schedule,
inconsistent with the first sentence of Article II:1(b), also constitutes "less favourable" treatment
within the meaning of Article II:1(a). Consequently, we find that India's tariff treatment of such
products is less favourable t han that provided in its WTO Schedule, and India is therefore acting
inconsistently with Article II:1(a) of the GATT 1994.
7.4.4 Tariff item 8517.62.90 of India's First Schedule
7.4.4.1 India's WTO tariff commitments
7.4.4.1.1 Main arguments of the parties
7.336. Japan asserts that India's bound duty rate for products falling under tariff item 8517.62 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%.845
7.337. India contends that the tariff commitments under tariff item 8517.62 as reflected in its
WTO Schedule based on the HS2007 were certified in error.846 India maintains that it did not make
commitments on machines for the reception, conversion and transmission or regeneration of voice,
images or other data, including switching and routing apparatus, which in its view were not covered

842 Serial No. 425 of Notification No. 50/2017, (Exhibit JPN-32), pp. 259-260 and 339.
843 Notification No. 02/2022, (Exhibit JPN-77).
844 We note India's arguments that base station controllers, base transreceiver stations, and antenna
systems are "sub-systems and not complete base stations", and are therefore not necessarily classified under
tariff item 8517.61.00 of India's First Schedule. (India's response to Panel question No. 91). Given that Serial
No. 425 is no longer in effect, we do not consider it necessary for the resolution of this dispute to address the
classification of these products.
845 Japan's first written submission, para. 98.
846 India's first written submission, paras. 40-74.

under the ITA or the HS1996.847 India also submits that the commitments under tariff item 8517.62
were undertaken in error, are void pursuant to Article 48 of the Vienna Convention, and are therefore
rendered unbound.848
7.4.4.1.2 Panel's assessment
7.338. We have addressed India's arguments th at its WTO Schedule was certified in error above,
and held that India's tariff commitments are set forth in India's WTO Schedule. 849 We have also
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff
commitments in its WTO HS2007 Schedule.850 We have also considered that the fact that a product
is covered by the ITA Expansion does not necessarily imply that such product did not already fall
within the scope of tariff concessions set forth in relevant Members' WTO Sch edules.851 Moreover,
we have declined to make the findings requested by India regarding its request to rectify its
WTO Schedule pursuant to the 1980 Decision.852
7.339. Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's
WTO HS2007 Schedule provides, inter alia, the following853:
 Product description Bound
rate
8517.62 --Machines for the reception, conversion and transmission or
regeneration of voice, images or other data, including switching and
routing apparatus
0%

7.340. A review of India's WTO Schedule shows 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, including switching and routing
apparatus".854 We also note that India's WTO Schedule does not indicate any terms, qualifications
or conditions that must be met in order for products falling under tariff item 8517.62 to receive the
0% bound duty rate.855 Therefore, in accordance with its WTO Schedule, India is obligated to provide
unconditional duty-free treatment to m achines for the reception, conversion and transmission or
regeneration of voice, images or other data, including switching and routing apparatus falling under
tariff item 8517.62 of its WTO Schedule.
7.4.4.2 India's tariff treatment
7.4.4.2.1 Main arguments of the parties
7.341. Japan submits that its claim relate to products classified under tariff item 8517.62.90, i.e.
products which fall under item 8517.62 of the Fi rst Schedule, but do not fall under tariff items
8517.62.10, 8517.62.20, 8517.62.30, 8517.62.40, 8517.62.50, 8517.62.60, and 8517.62.70 of the
First Schedule.856 Japan argues that India's First Schedule sets a standard duty rate of 20% on
imports of 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. 857 Japan also submits that the applied duty
rate is limited by certain customs notifications. First, Japan submits that Notification No. 24/2005
and its succeeding amending notifications exempts "routers" from customs duties.858 Second, Japan

847 India's first written submission, paras. 170-173.
848 India's first written submission, paras. 73-74.
849 See para. 7.216 above.
850 See para. 7.82 above.
851 See para. 7.78 above.
852 See para. 7.247 above.
853 WT/Let/1072.
854 WT/Let/1072.
855 WT/Let/1072.
856 Japan's first Written submission, para. 48.
857 Japan's first written submission, paras. 51-52 (referring to First Schedule as amended by the Finance
Act 2018, (Exhibit JPN-23)).
858 Japan's first written submission, para. 53 (referring to Notification No. 24/2005, (Exhibit JPN-40),
p. 81, as amended by Notification No. 132/2006, (Exhibit JPN-41), pp. 48- 49, Notification No. 58/2017,

submits that Notification No. 57 /2017 and its succeeding amending notifications exempts all
products falling under the tariff item 8517.62.90 of the First Schedule from the portion of customs
duty exceeding 10%, except a specified list of goods. 859 Thus, according to Japan, India imposes a
duty rate of 10% or 20% to products falling under tariff item 8517.62.90860, except for routers which
are exempted from customs duties.861
7.342. India submits that the applied duty rate on products classified under tariff item 8517.62.90
of the First Schedule is 10% or 20%.862 India notes that Notification No. 57/2017 which reduces the
applicable duty rate to 10% for certain products covered by tari ff item 8517.62.90 applies to
products covered by tariff item "8517.62.90 or 8517.69.90". 863 India submits that the products
described in that Notification "may not be classified under tariff item 8517.62.90". 864 India argues
that Japan has failed to demonstrate that these products listed in Notification No. 57/2017 fall within
the scope of tariff item 8517.62.90 of India's First Schedule. 865 Thus, according to India, to the
extent that those goods are appropriately classified under tariff item 8517.69, they are outside the
scope of the present Panel request.866
7.4.4.2.2 Panel's assessment
7.343. We observe that India's First Schedule provides as follows with regard to tariff item
8517.62867:
Tariff item Product description Standard
duty rate
8517.62 -- Machines for the reception, conversion and transmission or
regeneration of voice, images or other data, including switching
and routing apparatus

8517.62.10 --- PLCC equipment 0%
8517.62.20 --- Voice frequency telegraphy 0%
8517.62.30 --- Modems (modulators-demodulators) 0%
8517.62.40 --- High bit rate digital subscriber line system (HSDL) 0%
8517.62.50 --- Digital loop carrier system (DLC) 0%
8517.62.60 --- Synchronous digital hierarchy system (SDH) 0%
8517.62.70 --- Multiplexers, statistical multiplexers 0%
8517.62.90 --- Other 20%

7.344. India's First Schedule thus imposes a standard duty rate of 20% on products falling under
tariff item 8517.62.90, covering "other" machines for the reception, conversion and transmission or
regeneration of voice, images or other data, including switching and routing apparatus.
7.345. The applied duty rate for products classified under tariff item 8517.62.90 is subject to several
customs notifications. We observe that Notification No. 36/2019 presently exempts routers, falling

(Exhibit JPN-42), p. 9, and Notification No. 36/2019, (Exhibit JPN-43), pp. 8-9; General Exemption No. 181,
(Exhibit JPN-44), pp. 1753-1754).
859 Japan's first written submission, para. 53 (referring to Notification No. 57/2017, (Exhibit JPN-27), as
amended by Notification No. 22/2018, (Exhibit JPN-45), p. 29, Notification No. 75/2018, (Exhibit JPN-46), p. 3,
and Notification No. 02/2019, (Exhibit JPN-47), pp. 3-4; General Exemption No. 239, (Exhibit JPN-28),
pp. 2206 and 2210). According to Japan, the goods which do not benefit from the reduced duty rate are:
(i) Wrist wearable devices (commonly known as smart watches); (ii) Optical transport equipment; (iii)
Combination 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.
860 Japan's first written submission, para. 54.
861 Japan's first written submission, para. 53.
862 India's first written submission, para. 159.
863 India's first written submission, paras. 159 and 161-162.
864 India's first written submission, para. 162.
865 India's response to Panel question No. 79, para. 68.
866 India's response to Panel question No. 71, para. 53.
867 First Schedule as of 12 February 2020, (Exhibit JPN-10), p. 1578.

under tariff item 8517.62.90, from customs duties. Thus, India a ccords unconditional duty -free
treatment to such products.868
7.346. Additionally, Notification No. 57/2017, as amended by Notification No. 22/2018, subjects all
other goods falling under tariff item 8517.62.90 of the First Schedule "other than wrist wearable
devices (commonly known as smart watches)" to a reduced duty rate of 10% .869 Thus, while
smart watches classified under tariff item 8517.62.90 remained subject to the standard duty rate of
20% set forth in the First Schedule, all other products classified under tariff item 8517.62.90 (other
than routers870) became subject to a duty rate of 10%.
7.347. Subsequently, Notification No. 57/2017 was amended by Notification No. 75/2018 to expand
the list of goods subject to the standard duty rate of 20%, as follows:871
S. No. Tariff item Description
20 8517.62.90 (a) Wrist wearable devices (commonly known as smart watches)
(b) Optical transport equipment
(c) Combination of one or more of Packet Optical Transport Product or
Switch (POTP or POTS)
(d) Optical Transport Network (OTN) products
(e) IP Radios
21 8517.69.90 (a) Soft switches and Voice over Internet Protocol (VoIP) equipment,
namely, VoIP phones, media gateways, gateway controllers and session
border controllers
(b) Carrier Ethernet Switch, Packet Transport Node (PTN) products,
Multiprotocol Label Switching-Transport Profile (MPLS-TP) products
(c) Multiple Input/Multiple Output (MIMO) and Long Term Evolution
(LTE) products

7.348. All other goods falling under tariff item 8517.62.90 that 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).
7.349. Finally, Notification No. 57/2017 was amended by Notification No. 02/2019, which merged
Serial Nos. 20 and 21 as follows872:
S. No. Tariff item Description
20 8517.62.90
or
8517.69.90
(a) Wrist wearable devices (commonly known as smart watches) (b)
Optical transport equipment
(c) Combination of one or more of Packet Optical Transport Product or
Switch (POTP or POTS)
(d) Optical Transport Network (OTN) products
(e) IP Radios
(f) Soft switches and Voice over Internet Protocol (VoIP) equipment,
namely, VoIP phones, media gateways, gateway controllers and
session border controllers
(g) Carrier Ethernet Switch, Packet Transport Node (PTN) products,
Multiprotocol Label Switching-Transport Profile (MPLS-TP) products
(h) Multiple Input/Multiple Output (MIMO) and Long Term Evolution
(LTE) products

7.350. Thus, taking into account all evidence before us, we understand that:

868 Notification No. 24/2005, (Exhibit JPN-40), as amended by Notification No. 36/2019, (Exhibit
JPN-43). See also Japan's first written submission, para. 53.
869 Notification No. 57/2017 as amended by Notification No. 22/2018, (Exhibit IND-82).
870 We recall that in India's customs regime, two or more customs notifications may apply
simultaneously, such that an importer can benefit from the most beneficial tariff treatment available under any
871 Notification No. 57/2017 as amended by Notification No. 75/2018, (Exhibit IND-82).
872 Notification No. 02/2019, (Exhibit JPN-47).

a. Pursuant to Notification No. 36/2019, routers, classified under tariff item 8517.62.90 of
India's First Schedule, are unconditionally exempted from all customs duties; and
b. All other goods falling under tariff item 8517.62.90 are subject to a reduced duty rate of
10%, except for those products listed under Serial No. 20 of Notification No. 57/2017, as
amended by Notification No. 02/2019, which are subject to the standard duty rate of 20%.
7.351. We note that the parties disagree on whether the products listed under Serial No. 20 of
Notification No. 57/2017, as amended by Notification No. 02/2019, are classified under tariff items
8517.62.90 or 8517.69.90 of India's First Schedule. Japan submits at least some of those products
are covered by tariff item 8517.62.90873, while India maintains that Japan has failed to demonstrate
that they are classified under that tari ff item.874 For India, to the extent that these products are
appropriately classified under tariff item 8517.69, "such products are … outside the scope of the
present [p]anel request".875
7.352. At this stage of our analysis, we do not consider it necessary to address wheth er the tariff
treatment of certain products falls outside the scope of Japan's claim. We simply note, as a factual
matter, the tariff treatment described above. We address below, in the context of our comparison
of that tariff treatment to India's WTO lega l obligations, the question of whether certain tariff
treatment falls outside the scope of Japan's claim.
7.4.4.3 Comparison between India's WTO tariff commitments and its tariff treatment
7.4.4.3.1 Main arguments of the parties
7.353. Japan argues that products falling under 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. 876 In response to India's argument that the products listed in
Notification N o. 02/2019 and subject to a 20% duty rate may be classified under tariff item
8517.62.90 or 8517.69.90, Japan submits that, in order to establish a claim pursuant to Article II:1,
it is sufficient for a complainant to demonstrate that some of the products falling within the duty -
free tariff concessions at issue bear certain import duties or otherwise are subject to less favourable
treatment than is given under the tariff concessions. 877 Japan also argues that "whether certain
products listed in Customs Notif ication No. 02/2019 may or may not be classified under tariff item
8517 62 90 of the First Schedule does not affect its claim, because a portion of tariff item 8517 62 90
of the First Schedule is subject to 20% customs duties … and another portion of the t ariff item is
subject to 10% customs duties".878 For Japan, to the extent that such products fall under tariff item
8517.62.90 of India's First Schedule, they are subject to a 20% duty rate and are covered by Japan's
claims.879 Japan also argues that "even if some of the goods described in Serial No. 20 of Customs
Notification No. 02/2019 are classified under tariff item 8517 69 90 of the First Schedule rather than
tariff item 8517 62 90 of the First Schedule, this only indicates that the scope of the portion of the
products that fall under tariff item 8517 62 90 of the First Schedule and are subject to 10% customs
duties instead of 20% custom duties becomes narrower."880
7.354. India argues that Japan is obligated to identify the specific products at issue and their correct
classification in order to demonstrate that there has been a violation of Article s II:1(a) and (b) of
the GATT 1994.881 According to India, Japan has not provided any evidence to show that the products
described in Serial No. 20 of Notification No. 57/2017, as amended by Notification No. 02/2019, are
classified under tariff item 8517.62.90 of the First Schedule and not tariff item 8517.69.90.882 India
further argues that, because Japan's claim is limited to products classified under tariff item 8517.62,

873 Japan's response to Panel question No. 79, paras. 83-84.
874 India's response to Panel question No. 79, para. 68.
875 India's first written submission, para. 162. See also India's response to Panel question No. 79,
paras. 66-68.
876 Japan's first written submission, paras. 98 and 117.
877 Japan's comment on India's response to Panel question No. 71, para. 83.
878 Japan's response to Panel question No. 26, para. 53.
879 Japan's response to Panel question No. 79, para. 84.
880 Japan's response to Panel question No. 79, para. 84.
881 India's response to Panel question No. 71, para. 52.
882 India's response to Panel question No. 71, para. 53.

"to the extent that the products described [in Notification No. 57/2017] are appropriately classified
under sub-heading 8517.69, such products are outside the scope of the present [p]anel request."883
7.4.4.3.2 Panel's assessment
7.355. We recall our finding above that pursuant to its WTO Schedule India is obligated to provide
unconditional duty-free treatment to machines for the reception, conversion and transmission or
regeneration of voice, images or other data, including switching and routing apparatus, classif ied
under tariff item 8517.62 of that Schedule. We note that tariff item 8517.62 of India's First Schedule
covers machines for the reception, conversion and transmission or regeneration of voice, images or
other data, including switching and routing apparatus. It is uncontested that products falling under
tariff item 8517.62 of India's First Schedule are products covered by tariff item 8517.62 of India's
WTO Schedule. We therefore understand that all products falling under tariff item 8517.62 of India's
First Schedule are required to be subject to unconditional duty-free treatment.
7.356. We recall that routers classified under tariff item 8517.62.90 of India's First Schedule are
unconditionally exempted from all customs duties. These products therefore receive tariff treatment
in accordance with India's WTO tariff commitments. We further recall that all other products
classified under tariff item 8517.62.90 of India's First Schedule are either subject to a duty rate of
10% or, if they fall within the scope of Seri al No. 20 of Notification No. 57/2017, as amended by
Notification No. 02/2019, the standard duty rate of 20%.
7.357. We note that the parties disagree over whether Serial No. 20 of Notification No. 57/2017,
as amended by Notification No. 02/2019, covers products falling within the scope of Japan's claim.
In this respect, we recall that Japan's claim concerns products falling within the scope of tariff item
8517.62.90 of India's First Schedule. 884 We also recall that since the product description of tariff
item 8517.62 of India's First Schedule perfectly matches the product description of tariff item
8517.62 of India's WTO Schedule, it follows that India is obligated to provide unconditional duty-free
treatment to all products classified under tariff item 8517.62 of India's First Schedule. In order for
Japan to prevail in its claim, it needs to demonstrate that at least some products falling under tariff
item 8517.62 of India's First Schedule are subject to tariff treatment that is inconsistent with India's
WTO obligations.885
7.358. Japan has established that India's First Schedule imposes a 20% duty rate on products
classified under tariff item 8517.62.90.886 Moreover, it is uncontested that India's customs
notifications modify the tariff treatment accorded to certain produc ts classified under tariff item
8517.62.90 (namely routers) by exempting them from customs duties in whole, or by exempting
certain other products from customs duties in part (subjecting such products to a reduced duty rate
of 10%).887 In addition, we have found that India's exemptions do not extend to products listed
under Serial No. 20 of Notification No. 57/2017, as amended by Notification No. 02/2019, (which
may be classified under tariff item 8517.62.90888) and that those products are subject to the 20%
duty rate set forth in India's First Schedule. We therefore consider that Japan has established that
some of the products classified under tariff item 8517.62 of India's First Schedule are subject to a
duty rate of 10% or 20%, and are therefore taxed in excess of the bound duty rate relating to tariff
item 8517.62 of India's WTO Schedule. In light of the foregoing, we do not consider it necessary to
identify which of the products listed under Serial No. 20 of Notification No. 57/2017, as amended by
Notification No. 02/2019, are classified under tariff item 8517.62.90.889 This, in our view, suffices

883 India's first written submission, para. 162. See also India's response to Panel question No. 71,
para. 53.
884 Japan's first written submission, para. 13; panel request, p. 1.
885 See also fn 196 to para. 7.7 above; and Panel Reports, EC – IT Products, para. 7.116.
886 See para. 7.343 above.
887 See para. 7.356 above.
888 Indeed, Notification No. 02/2019 relates to products classified under tariff items "8517.62.90 or
8517.69.90". (emphasis added) This wording indicates that at least some of the products listed therein may be
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.
889 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. 7.346 above).
Similarly, Notification No. 75/2018 amended the duty rate applied to optical transport equipment, combination

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
7.359. Based on the foregoing, we find that India's tariff treatment of certain machines for the
reception, conversion and transmission or regeneration of voice, images or other data, including
switching and routing apparatus , falling within the scope of tariff item 8517.62.90 of India's
First Schedule, is inconsistent with Article II:1(b), first sentence, of the GATT 1994, because certain
such products are subject to ordinary customs duties in excess of those set forth and pr ovided in
India's WTO Schedule.
7.360. We recall that the application of ordinary customs duties in excess of those provided for in
a Member's Schedule, or subject to terms, conditions or qualifications not set forth in the Schedule,
inconsistent with the first sentence of Article II:1(b), also constitutes "less favourable" treatment
within the meaning of Article II:1(a). Consequently, we find that India's tariff treatment of certain
such products is less favourable than that provided in its WTO Schedule, and India is therefore acting
inconsistently with Article II:1(a) of the GATT 1994.
7.4.5 Tariff items 8517.70.10 and 8517.70.90 of India's First Schedule
7.4.5.1 General issues
7.4.5.1.1 Main arguments of the parties
7.361. Japan challenges the legal instruments regulating the tariff treatmen t accorded by India to
products that, at the time of the Panel's establishment, fell under tariff items 8517.70.10 and
8517.70.90 of India's First Schedule.890 In response to a question from the Panel following the
second substantive meeting, Japan clarifie d that, following certain amendments to India's First
Schedule, pursuant to the Finance Act 2021, the challenged tariff treatment is presently accorded
to products falling under tariff items 8517.71.00, 8517.79.10, and 8517.79.90.891 Japan considers
that "the creation of new tariff items by the Finance Act, 2021 does not affect Japan's claims"892 and
"the scope of the Products Concerned has not changed". 893 Japan considers that "the Panel should
make findings regarding the inconsistency with Articles II:1(a) and II:1(b) of the GATT 1994 of the
measures as they existed at the time of the establishment of the panel, as well as the measures as
they now exist following the changes brought into the First Schedule by the Finance Act, 2021".894
7.362. India notes that " as opposed to the replacement of tariff line 8517.12 with tariff lines
8517.13 and 8517.14, the 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 tari ff
lines 8517.79.10 and 8517.79.90".895 India also argues that "all submissions made by it with regard
to sub-heading 8517.70, including that the complainant has failed to identify the products at issue
under HS2007 tariff lines 8517.70.10 and 8517.70.90, e xtend to sub -headings 8517.79.10 and
8517.79.90, respectively ".896 In this respect, India argues, inter alia , that the burden is on the
complainant to "identify the specific products at issue and their correct classification in order to
demonstrate that the re has been a violation of Article s II:1(a) and (b) of the GATT 1994." 897
Specifically with respect to tariff item 8517.70.90 of the First Schedule, as it existed at the time of
the Panel's establishment, India acknowledges that certain products 898 fell unde r tariff item

of one or more of Packet Optical Transport Product or Switch, Optical Transport Network products, and IP
radios falling under tariff item 8517.62.90. (See para. 7.347 above). This suggests that certain of the products
described in Serial No. 20 are classified under tariff item 8517.62.90 of India's First Schedule.
890 Japan's first written submission, para. 13(f)-(g).
891 Japan's response to Panel question No. 83, paras. 91-95.
892 Japan's response to Panel question No. 83, para. 91.
893 Japan's response to Panel question No. 68, para. 34.
894 Japan's response to Panel question No. 68, para. 36.
895 India's response to Panel question No. 83, para. 72.
896 India's response to Panel question No. 83, para. 72.
897 India's response to Panel question No. 71, para. 52.
898 Namely "[a]ll goods other than the parts of cellular mobile phones", "[i]nputs for all goods other than
the parts of cellular mobile phones", "connectors for use in manufacture of cellular mobile phones", and

8517.70.90 of the First Schedule, but considers that "[f]or all other products mentioned in Japan's
Panel Request and first written submissions, Japan has not established that such products are
classified under tariff item 8517.70.90" and consequently "such products must be held to be outside
the scope of the present dispute".899
7.4.5.1.2 Panel's assessment
7.363. Before turning to assess the merits of the parties' arguments with respect to Japan's claims
concerning products that, at the time of the Panel's establishment, were classified under tariff item
8517.70.10 and 8517.70.90 of India's First Schedule, we consi der it useful to address two general
issues. First, we address the impact, on our assessment, of India's amendment of the First Schedule
during these proceedings. Second, we address the complainant's burden of proof under Articles
II:1(a) and (b) of the GATT 1994 with respect to the domestic tariff classification of the products at
issue.
7.364. First, regarding India's amendments to the First Schedule during these proceedings, we
recall that India's Finance Act 2021 came into effect on 1 January 2022 , resulting i n certain
amendments to India's First Schedule. 900 Specifically, products previously classified under tariff
items 8517.70.10 and 8517.70.90 of the First Schedule are presently classified under tariff items
8517.71.00, 8517.79.10, and 8517.79.90.901 India 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".902
7.365. We note that Japan considers that the Panel should make findings regarding "the measures
as they existed at the time of the establishment of the panel, as well as the measures as they exist
following the changes brought into the First Schedule by the Finance Act, 2021".903 In other words,
Japan requests us to make distinct assessments of the WTO-consistency of the measures at issue
with respect to the situation before and after India's amendment of its First Schedule. We also note
that India does not argue that the amendments to its First Schedule have modified the tariff
treatment accorded to the products at issue, nor does India argue that those amendments have
resolved any potential WTO -inconsistency.904 Moreover, Japan acknowledges that "the creation of
new tariff items by the Finance Act, 2021 does not affect Japan's claims "905 and "the scope of the
Products Concerned has not changed". 906 From the foregoing, we understand that, while the
measures as challenged by Japan have been amended through the Finance Act 2021, the basis for
Japan to claim that the measures are inconsistent with Articles II:1(a) and (b) has not changed.907
We therefore see no reason to make distinct findings regarding the WTO-consistency of the measures
as they existed at the time of the establishment of the panel and as they exist "now".908 We therefore
proceed with our an alysis by observing the evolution of India's tariff treatment during these
proceedings, and assessing the WTO -consistency of the measures at issue based on the most up -
to-date information available to the Panel (i.e. based on the situation as it stands fol lowing India's
amendment of the First Schedule on 1 January 2022).
7.366. Turning to the second issue, we note India's argument that the Panel should reject Japan's
claim on the grounds that the burden is on Japan to demonstrate India's domestic classification of
the products at issue, that Japan has failed to confirm the domestic classification of certain products,
and that they consequently fall " outside the scope of the present dispute". 909 We agree with India
that the burden of demonstrating India's inconsistency with Articles II:1(a) and (b) of the GATT 1994

"certain limited camera modules such as those used in the manufacture of cellular mobile phones". (India's
first written submission, para. 188).
899 India's first written submission, para. 188.
900 See para. 7.268 above.
901 Japan's response to Panel question No. 83, paras. 91-94; India's response to Panel question No. 83,
para. 72.
902 India's response to Panel question No. 83, para. 72.
903 Japan's response to Panel question No. 68, para. 36.
904 India's response to Panel question No. 83, para. 72.
905 Japan's response to Panel question No. 83, para. 91.
906 Japan's response to Panel question No. 68, para. 34.
907 It is uncontested that the amended measures fall within the scope of the Panel's terms of reference.
In any event, for the reasons explained above, we consider that the amended measures fall within the scope of
the Panel's terms of reference. See also para. 7.292 above.
908 Japan's response to Panel question No. 68, para. 36.
909 India's first written submission, para. 210. See also India's response to Panel question No. 71,
para. 55.

falls on the complainant. We note, however, that there is a distinction between the burden of
demonstrating a violation of a WTO provision, and the burden of demonstrating a particular factual
assertion.910 In this respect, "the party who asserts a fact, whether the claimant or the respondent,
is responsible for providing proof thereof".911
7.367. We recall that Japan's claim concerns products that, at the time of the Panel's establishment,
fell within the scope of tariff items 8517.70.10 and 8517.70.90 of India's First Schedule. 912 Japan
alleges that these products fall within the scope of tariff item 8517.70.00 of India's WTO Schedule.913
In order to apply the legal standard under Articles II:1(a) and (b) of the GATT 1994, we will first
identify India's WTO tariff commitments with respect to products falling under tariff item 8517.70.00
of India's WTO Schedule. We will then turn to assess the parties' respective factual assertions
regarding the tariff treatment applie d by India to certain products under its domestic customs
regime. In that context, we will assess whether Japan's factual assertions are supported by sufficient
evidence to raise a presumption that such assertions are correct and, if so, whether India has
adduced sufficient evidence to rebut that presumption. As a final step, we will compare our factual
findings concerning India's tariff treatment to India's WTO tariff commitments. In that context, we
will assess, inter alia, whether the challenged tariff t reatment concerns products falling within the
scope of India's WTO tariff commitments concerning tariff item 8517.70.00 of its WTO Schedule.
7.4.5.2 India's WTO tariff commitments
7.4.5.2.1 Main arguments of the parties
7.368. Japan submits that tariff items 8517.70.10 and 8517.70.90 of India's First Schedule, as it
existed at the time of the Panel's establishment, "correspond" to tariff item 8517.70.00 of India's
WTO Schedule, in respect of which the bound rate is 0%.914
7.369. India contends that the tariff commitments under tariff item 8517.70 as reflected in its WTO
Schedule based on the HS2007 were certified in error. 915 India maintains that it did not intend to
make commitments on printed circuit assemblies for telephones for cellular networks, or on parts of
telephones for cellular networks, which in its view were not covered under the ITA or the HS1996,
and were introduced to the HS Nomenclature in the 2007 edition. 916 According to India, the
commitments under tariff item 8517.70 were undertaken in error, are void pursuant to Article 48 of
the Vienna Convention, and are therefore rendered unbound.917
7.4.5.2.2 Panel's assessment
7.370. We have addressed India's arguments that its WTO Schedule was certified in error above,
and held that India's tariff commitments are set forth in India's WTO Schedule. 918 We have also
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff
commitments in its WTO HS2007 Schedule. 919 Moreover, we have declined to make the findings

910 As the Appellate Body stated in Japan – Apples, "[i]t is important to distinguish, on the one hand, the
principle that the complainant must establish a prima facie case of inconsistency with a provision of a covered
agreement from, on the other hand, the principle that the party that asserts a fact is responsible for providing
proof thereof. In fact, the two principles are distinct." (Appellate Body Report, Japan – Apples, para. 157).
(footnotes omitted)
911 Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:I, 323, at p. 335. The
Appellate Body also observed that "the burden of proof rests upon the party, whether complaining or
defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence
sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will
fail unless it adduces sufficient evidence to rebut the presumption." (Ibid.).
912 Japan's first written submission, para. 13(f)-(g); panel request, pp. 3-5.
913 Japan's first written submission, paras. 101-104.
914 Japan's first written submission, paras. 101-104.
915 India's first written submission, paras. 38-74.
916 India's first written submission, paras. 176-194.
917 India's first written submission, paras. 74.
918 See para. 7.216 above.
919 See para. 7.82 above.

requested by India regarding its request to rectify its WTO Schedule pursuant to the
1980 Decision.920
7.371. Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. A review
of India's WTO HS2007 Schedule shows that India committed to a bound duty rate of 0% for products
falling under tariff items 8517.70 ex01, ex02, and ex03.921 Such tariff items collectively cover "parts"
(tariff item 8517.70.00) of "telephone sets, including telephones for cellular networks or for other
wireless networks" and "other apparatus for the transmission or reception of voice, images or other
data, including apparatus for communication in a 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")922:
 Product description Bound
rate
8517 Telephone sets, including telephones for cellular networks or for
other wireless networks; other apparatus for the transmission or
reception of 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

8517.70.00 - Parts
8517.70.00 ex01 -- Parts and accessories of the machines of heading 84.71: For
populated PCBs
0%
8517.70.00 ex02 -- Parts and accessories of the machines of heading 84.71: Other 0%
8517.70.00 ex03 -- Other 0%

7.372. India's WTO Schedule does not indicate any terms, qualifications or conditions that must be
met in order for such products to receive the 0% bound duty rate. Therefore, in accordance with its
WTO Schedule, India is obligated to provide unconditional duty-free treatment to parts of telephone
sets and other certain apparatus for transmission or reception of voice, images, or data falling under
tariff items 8517.70 ex01, ex02, and ex03 of its WTO Schedule.
7.4.5.3 India's tariff treatment
7.4.5.3.1 Main arguments of the parties
7.373. Japan's arguments focus on the tariff treatment that was, at the time of the Panel's
establishment, accorded by India to products falling under tariff items 8517.70.10 and 8517.70.90
of India's First Schedule.923 With respect to the tariff treatment of products falling under tariff item
8517.70.10 of the First Schedule, Japan argues that, under the First Schedule, as amended by the
Finance Act 2020, the duty rate applied to such products was 20%, unless exempted from that duty
rate pursuant to a customs not ification.924 Japan argues in this regard that: (i) pursuant to
Notification No. 24/2005, except for certain specified products, products falling under tariff item
8517.70.10 of India's First Schedule were subject to a total exemption from the standard duty rate
if they satisfied certain conditions; (ii) subject to certain conditions, Notification No. 50/2017 also
exempted certain products from the entirety of the duty925; and (iii) Notification No. 57/2017 further
exempted certain products from "the portion of customs duty exceeding 10%", without being subject

920 See para. 7.247 above.
921 WT/Let/1072.
922 WT/Let/1072. With respect to tariff items 8517.70 ex01 and 8517.70 ex02 we note that "machines
of heading 84.71" of the HS2007 are "[a]utomatic data processing machines and units thereof; magnetic or
optical readers, machines for transcribing data onto data media in coded form and machines for processing
such data, not elsewhere specified or included". (Ibid.).
923 Japan's first written submission, paras. 55-68, 101-104, and 119-122.
924 Japan's first written submission, paras. 55-59 (referring to Notification No. 36/2018,
(Exhibit JPN-50), p. 2; Lok Sabha Statutory Resolution Approving Notification No. 36/2018, (Exhibit JPN-48),
p. 32; Rajya Sabha Statutory Resolution Approving Notification No. 36/2018, (Exhibit JPN-49), p. 548; Finance
Bill 2020, (Exhibit JPN-51), pp. 40 and 59; and Finance Act 2020, (Exhibit JPN-52), p. 1).
925 Japan's first written submission, para. 60(b) (referring to Notification No. 50/2017, (Exhibit JPN-32),
pp. 256 and 283; and General Exemption No. 183, (Exhibit JPN-33), pp. 1785 and 1807).

to any conditions.926 Japan submits that products falling within the scope of tariff item 8517.70.10
of India's First Schedule, that d id not benefit from a complete exemption, were subject to either a
10% or 20% duty rate.927
7.374. With respect to products falling under tariff item 8517.70.90 of India's First Schedule, Japan
submits that pursuant to the Finance Act 2018, the standard duty rate applicable to such products
was 15%.928 Japan argues that a number of specified products falling under tariff item 8517.70.90
were exempted from duties pursuant to Notification Nos. 50/2017 and 57/2017, read in conjunction
with their succeeding notifications.929 However, according to Japan, products "other than those which
benefit from the tariff exemption pursuant to the relevant notifications … [we]re subject to either
10% or 15% customs duty".930
7.375. Japan acknowledges that, as of 1 January 2022, tariff items 8517.70.10 and 8517.70.90 of
India's First Schedule were replaced with tariff items 8517.71, 8517.79.10, and 8517.79.90. 931
Japan highlights, however, that the " Finance Act, 2021 has merely reshaped the structure of
subheading[s] covering 'Parts' of products falling under heading 8517 of the First Schedule, pursuant
to which subheading 8517 70 of the First Schedule has been replaced by two new subheadings (i.e.
subheadings 8517 71 and 8517 79)" such that "'Parts' of products falling under heading 8517 of the
First Schedule are still subject to a 20% or 15% customs duty regardless of changes due to the
Finance Act, 2021."932 Japan further elaborates that " as long as the necessary amendments were
made to the relevant customs notifications, the exemptions which applied to tariff items 8517 70 10
and 8517 70 90 of the First Schedule at the time of the establishment of the Panel apply to tariff
items 8517 79 10, as well as tariff items 8517 71 00 and 8517 79 90, of the new version of the
First Schedule."933
7.376. With respect to tariff item 8517.70.10 of the First Schedule at the time of the Panel's
establishment, India "does not contest that the current duty is 20% on the [PCBA] for Cellular Mobile
Phones and 10%" for certain items covered under heading 8517.70.10.934 India considers, however,
that it provides duty-free treatment to all other products falling under tariff item 8517.70.10.935 With
respect to tariff item 8517.70.90 of the First Schedule, India does not contest that "'connectors for
use in manufacture of cellular mobile phones' and certain limited camera modules such as those
used in the manufacture of cellular mobile phones" are subject to a 10% duty rate.936
7.377. With respect to the tariff treatment accorded after 1 January 2022, India states that " the
replacement of tariff lines 8517.70.10 and 8517.70.90 has only resulted in a change in headings,
and not the descriptions ", and therefore " India has not raised any defense concerning the
replacement of HS2007 tariff lines 8517.70.10 and 8517.70.90 with HS2022 tariff lines 8517.79.10
and 8517.79.90 ".937 India states, however, " that all submissions made by it with regard to

926 Japan's first written submission, para. 60(c) (referring to Notification No. 57/2017, (Exhibit JPN-27),
as amended by Notification No. 22/2018, (Exhibit JPN-45), and Notification No. 02/2020, (Exhibit JPN-55));
and General Exemption No. 239, (Exhibit JPN-28), pp. 2206 and 2210-2211).
927 Japan's first written submission, para. 61.
928 Japan's first written submission, paras. 65-66.
929 Japan's first written submission, para. 67. See also Japan's response to Panel question No. 81.
930 Japan's first written submission, para. 68.
931 Japan's response to Panel question No. 83, paras. 91-94.
932 Japan's response to Panel question No. 83, para. 93.
933 Japan's response to Panel question No. 83, para. 95. As an example of such an amendment, Japan
notes that Serial No. 402 of Notification No. 50/2017 has been amended to replace a reference to tariff item
8517.70.10 with a reference to tariff item 8517.79.10 of India's First Schedule. (Japan's response to Panel
question No. 83, para. 95 (referring to Notification No. 55/2021, (Exhibit JPN-76)). Japan notes, however, that
"the tariff exemption applicable to populated printed circuit boards falling under tariff item 8517 70 10 of the
First Schedule was subsequently repealed by Customs Notification No. 2/2022, effective from 2 February
2022". (Ibid. fn 137 to para. 95 (referring to Notification No. 02/2022, (Exhibit JPN-77)).
934 India identifies these products as printed circuit board assemblies of the following goods: base
stations; Optical Transport Equipment; Combination of one or more of Packet Optical Transport Product or
Switch; Optical Transport Network Products; IP Radios; Soft switches and Voice over Internet Protocol
equipment, namely, Voice over Internet Protocol phones, media gateways, gateway controllers and session
border controllers; Carrier Ethernet Switch, Packet Transport Node products, and Multiprotocol Label
Switching-Transport Profile products; and Multiple Input/Multiple Output and Long Term Evolution products.
(India's first written submission, para. 176 (referring to Notification No. 57/2017, (Exhibit IND-82))).
935 India's first written submission, para. 177.
936 India's first written submission, para. 188. (emphasis omitted)
937 India's response to Panel question No. 83, para. 72.

sub-heading 8517.70, including that the complainant has failed to identify the products at issue
under HS2007 tariff lines 8517.70.10 and 8517.70.90, extend to sub -headings 8517.79.10 and
8517.79.90, respectively".938
7.4.5.3.2 Panel's assessment
7.378. We proceed with our assessment by examining the tariff treatment accorded to products
that, at the time of the Panel's establishment, fell under tariff 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
7.379. It is uncontested that, at the time of the P anel's establishment , India's First Schedule
imposed: (i) a standard duty rate of 20% on products falling under tariff item 8517.70.10, covering
"[p]opulated, loaded or stuffed printed circuit boards" constituting parts of telephone sets or other
certain apparatus for transmission or reception of voice, images, or data ; and (ii) a standard duty
rate of 15% on products falling under tariff item 8517.70.90, covering "[o]ther" parts of telephone
sets or other certain apparatus for transmission or reception of voice, images, or data939:
Tariff
item
Product description Standard
duty rate
8517 Telephone sets, including telephones for cellular networks or for
other wireless networks: other apparatus for the transmission or
reception of 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%

7.380. It is further uncontested that the duty rate applied to certain products falling within the
scope of these tariff items was subject to several customs notifications. We have examined the
assertions and evidence adduced by the parties and certain third parties940 regarding the content of
relevant customs notifications, in order to determine, as a factual matter, the tariff treatment
accorded to products falling under these tariff items.941 Based on our examination of the evidence,
we consider the following factual findings to be adequately supported by the evidence on the record.
7.381. Turning, first, to products falling under tariff item 8517.70.10 of India's First Schedule, we
note that this tariff item covered populated, loaded or stuffed printed circuit boards c onstituting
parts of telephone sets or other certain apparatus for transmission or reception of voice, images, or
data.942 As indicated above, the standard duty rate applicable to such products under the First
Schedule was 20%.943 However, the applied duty rate is subject to customs notifications, as follows:

938 India's response to Panel question No. 83, para. 72.
939 First Schedule as of 12 February 2020, (Exhibit JPN-10), p. 1578.
940 Specifically, the European Union and Chinese Taipei.
941 We recall that the burden of demonstrating a factual assertion falls on the party making that factual
assertion. (See para. 7.366 above).
942 See para. 7.379 above.
943 See para. 7.379 above.

a. Pursuant to Serial No. 22 of Notification No. 57/2017 , as amended by Notification
No. 02/2020, PCBAs for certain specified products944, falling under this tariff item, became
unconditionally subject to a 10% duty rate.945
b. Pursuant to Serial No. 13S of Notification No. 24/2005, as amended by Notification
No. 76/2018, products falling under this tariff item other than PCBAs for cellular mobile
phones and the products identified in footnote 944 above were eligible for dut y-free
treatment if they satisf ied certain conditions.946 Specifically, in order for the product to
receive such duty-free treatment: (i) the importer had to follow the 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 947 and in the event of failure to comply with
that condition the importer w ould be liable to pay an amount equal to the difference
between the duty leviable on the imported goods but for the exemption under this
notification and that already paid at the time of importation.948
c. Pursuant to Serial No. 402 of Notification No. 50/2017, 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 data
processing machines and units thereof of tariff items 8443.31.00, 8443.32.00, 8471,
8517.62, 8528.42.00, 8528.49.00, 8528.52.00 or 8528.62.00 of India's First Schedule.949
7.382. Any products falling under tariff item 8517.70.10 that did not benefit from the tariff
treatment available under these cus toms notifications (for instance PCBAs for cellular mobile
phones950) remained subject to the 20% standard duty rate set forth in the First Schedule.
7.383. We recall that Article II:1(b) does not require Members to inscribe general conditions for
importation in their WTO Schedules. However, where conditions are tied to tariff treatment, such
that a product must satisfy those conditions in order to be eligible for the tariff treatment set forth
in a Member's WTO Schedule, Article II:1(b) requires that such conditions must be inscribed in the
Member's WTO Schedule.

944 Specifically PCBAs for: base stations; optical transport 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 945 to para. 7.381 below).
945 Serial No. 22 of Notification No. 57/2017 as amended by Notification No. 02/2020, (Exhibit IND-82).
See also General Exemption No. 239, (Exhibit JPN-28).
946 Serial No. 13S of Notification No. 24/2005, (Exhibit JPN-40), as amended by Notification
No. 132/2006, (Exhibit JPN-41), Notification No. 58/2017, (Exhibit JPN-42), Notification No. 38/2018,
(Exhibit JPN-53), and Notification No. 76/2018, (Exhibit JPN-54). See also General Exemption No. 181,
(Exhibit JPN-44).
947 Specifically, the imported goods were not to be used in the manufacture of: cellular mobile phones;
base stations; optical transport equipment; combination of one or more of Packet Optical Transport Product or
Switch; Optical Transport Network products; IP radios; soft switches and Voice over Internet Protocol
equipment, namely, Voice 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, (Exhibit JPN-40), as amended by Notification No. 132/2006,
(Exhibit JPN-41), Notification No. 58/2017, (Exhibit JPN-42), Notification No. 38/2018, (Exhibit JPN-53), and
Notification No. 76/2018, (Exhibit JPN-54)). See also General Exemption No. 181, (Exhibit JPN-44).
948 Serial No. 13S of Notification No. 24/2005, (Exhibit JPN-40), as amended by Notification No.
132/2006, (Exhibit JPN-41), Notification No. 58/2017, (Exhibit JPN-42), Notification No. 38/2018,
(ExhibitJPN-53), and Notification No. 76/2018, (Exhibit JPN-54). See also General Exemption No. 181,
(Exhibit JPN-44).
949 Serial No. 402 of Notification No. 50/2017, (Exhibit JPN-32).
950 Pursuant to Serial No. 21 of Notification No. 57/2017, PCBAs for cellular mobile phones were subject
to a duty rate of 10%, without being subject to any conditions, until 31 March 2020 when this partial
exemption expired. (Notification No. 57/2017 as amended by Notification No. 02/2020, (Exhibit IND-82)).
PCBAs for cellular mobile phones do not appear to fall within the scope of any of the exemptions applicable to
products falling under tariff item 8517.70.10 of India's First Schedule.

7.384. In our view, the conditions attached to the duty -free treatment available under Serial No.
13S of Notification No. 57/2012 and Serial No. 402 of Notification No. 50/2017 are not general
conditions for importation. Regarding the condition that the importer follow the procedures set out
in the Customs Rules 2017 , we note that India argues that this cond ition "merely requires the
intimation of intent to avail concessional rates of duties and registration of bills of entry" and that
"[t]hese processes have been automated, where all details can be uploaded on a common portal."951
In support of its assertion, India submits Circular No. 04/2022 as an exhibit.952 We note that Circular
No. 04/2022 makes certain amendments to the Customs Rules 2017. 953 Circular No. 04/2022
indicates that these amendments are "aimed at simplifying the procedures with a focus on
automation and making the entire process contact-less".954 We also note that Circular No. 04/2022
provides the procedure to be followed by "[a]n importer who intends to import goods at a
concessional rate of duty ."955 On the basis of the procedures set out in Cir cular No. 04/2022, the
"Deputy Commissioner or Assistant Commissioner of Customs at the port of importation shall allow
the benefit of exemption notification ."956 The language in Circular No. 04/2022 therefore indicates
that the conditions therein relate to the tariff treatment accorded to the goods at issue, and not to
importation per se . The foregoing indicates that the requirement that the importer follow the
procedure set out in the Customs Rules 2017 is a condition that an importer must meet in order to
be eligible for exemption from customs duties. There is no indication that a failure to comply with
such conditions would prevent the importer from importing the products. We therefore do not see
anything on the record to suggest that these are general conditions for importation of goods.
7.385. As to the requirement that the importer undertake not to use the products in the
manufacture of certain specified goods, this condition makes clear on its face that failure to comply
will lead to the application of the "duty leviable … but for the exemption". 957 This, on its face, is a
condition for beneficial tariff treatment. As to the condition that certain products be used in the
manufacture of other specified products, we understand that failure to comply with this condition
would not prevent the products fr om being imported – rather, they would be imported subject to
the 20% standard duty rate. Indeed, with respect to all relevant conditions described above, we
understand that failure to comply with those conditions would not prevent the products from being
imported, but rather would result in importation subject to the 20% standard duty rate set forth in
the First Schedule. Thus, these conditions are conditions for tariff treatment and not general
conditions for importation.
7.386. Turning to products falling 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).958 The standard duty rate applicable to such products under
the First Schedule was 15%.959 However, the applied duty rate was subject to customs notifications,
as follows:
a. Pursuant to Serial Nos. 468, 506 -508, and 513 of Notification No. 50/2017, as amended
by Notification Nos. 37/2019 and 01/2020, certain products falling under tariff item
8517.70.90 of the First Schedule: (i) were unconditionally eligible for duty -free

951 India's response to Panel question No. 69, para. 47 (referring to Circular No. 04/2022 (27 February
2022), (Exhibit IND-78)).
952 Circular No. 04/2022 (27 February 2022), (Exhibit IND-78), p. 1.
953 Circular No. 04/2022 (27 February 2022), (Exhibit IND-78), p. 1.
954 Circular No. 04/2022 (27 February 2022), (Exhibit IND-78), p. 1.
955 Circular No. 04/2022 (27 February 2022), (Exhibit IND-78), para. 4.1. (emphasis added)
956 Circular No. 04/2022 (27 February 2022), (Exhibit IND-78), para. 4.8. (emphasis added)
957 Serial No. 13S of Notification No. 24/2005, (Exhibit JPN-40), as amended by Notification No.
132/2006, (Exhibit JPN-41), Notification No. 58/2017, (Exhibit JPN-42), Notification No. 38/2018,
(Exhibit JPN-53), and Notification No. 76/2018, (Exhibit JPN-54). See also General Exemption No. 181,
(Exhibit JPN-44).
958 See para. 7.379 above.
959 See para. 7.379 above.

treatment960; or (ii) were eligible for duty-free treatment subject to the condition that the
importer followed the procedures set out in the Customs Rules 2017.961
b. Similarly, pur suant 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 treatment962; (ii) were eligible for duty-free treatment subject to the
condition that the importer followed the procedures set out in the Customs Rules 2017963;

960 Pursuant to Serial No. 468 of Notification No. 50/2017, the following products falling under Chapter
84 or 85 of the First Schedule (i.e. including products falling under tariff item 8517.70.90) of the First Schedule
were unconditionally eligible for duty-free treatment: (i) micro ATMs as per standards version 1.5.1; (ii)
fingerprint readers/scanners other than fingerprint readers/scanners for use in manufacturing of cellular mobile
phones; (iii) iris scanners; (iv) miniaturized POS card readers for mPOS (other than mobile phones or tablet
computers). (Notification No. 50/2017, (Exhibit JPN-32), as amended by Notification No. 01/2020, (Exhibit
JPN-56)). See also General Exemption No. 183, (Exhibit JPN-33), pp. 1759, 1791-1792 and 1807).
961 The following products falling under tariff item 8517.70.90 of the First Schedule, subject to the
condition that the importer follow the procedures set out in the Customs Rules 2017, were eligible for duty-free
treatment under Notification No. 50/2017: (1) pursuant to Serial No. 468, parts and components for use in the
manufacture of: (i) micro ATMs as per standards version 1.5.1; (ii) fingerprint readers/scanners other than
fingerprint readers/scanners for use in manufacturing of cellular mobile phones; (iii) iris scanners; and (iv)
miniaturized POS card readers for mPOS (other than mobile phones or tablet computers); (2) pursuant to
Serial Nos. 506, 507, and 508: (i) parts, components and accessories 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,
(Exhibit JPN-32), as amended by Notification No. 37/2019, (Exhibit JPN-57), and Notification No. 01/2020,
(Exhibit JPN-56). See also General Exemption No. 183, (Exhibit JPN-33), pp. 1759, 1791-1792 and 1807). In
making these factual findings, we observe that other Serial Nos. of Notification No. 50/2017 set forth
conditional exemptions for other products, over and above the products we have identified above. Since no
party or third-party has argued or asserted that the exemptions for those other products are relevant to
Japan's claims concerning products falling under tariff items 8517.70.10 and 8517.70.90 of India's First
Schedule, as they existed at the time of the Panel's establishment, we consider it uncontested that the
exemptions for those products are not relevant. We also note that 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. 91). As noted in paragraph 7.330
above, Serial No. 425 was repealed by Notification No. 02/2022 and is no longer in effect, as from 1 February
2022. (Notification No. 02/2022, (Exhibit JPN-77)). Hence, we do not consider it necessary for the resolution of
this dispute to make further factual findings regarding the tariff treatment accorded under Serial No. 425 of
Notification No. 50/2017 at the time of the Panel's establishment.
962 Pursuant to Serial No. 5 of Notification No. 57/2017, the following products falling under tariff item
8517.70.90, without being subject to any conditions, were eligible for duty-free treatment: (i) all goods other
than parts of cellular mobile phones; and (ii) inputs or sub-parts for use in manufacture of parts mentioned at
(i) above. (Notification No. 57/2017, (Exhibit IND-82). See also General Exemption No. 239, (Exhibit JPN-28),
p. 2206)).
963 The following products falling under tariff item 8517.70.90 of the First Schedule, subject to the
condition that the importer follow the procedures set out in the 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

or (iii) became eligible for a 10% duty rate (rather than the 15% standard duty rate set
forth in the First Schedule) subject to the condition that the importer follow ed the
procedures set out in the Customs Rules 2017.964
7.387. Regarding the conditional nature of the tariff treatment accorded to certain products falling
under tariff item 8517.70.90, we recall our finding that the condition that an importer follow the
procedures set out in the Customs Rules 2017 in order to receive beneficial tariff treatment
constitutes a condition for tariff treatment and not a general condition for importation. 965 We
understand that if the relevant products failed to satisfy such conditions they could be imported into
India, 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
7.388. Having addressed the tariff treatment applicable to products falling under ta riff items
8517.70.10 and 8517.70.90 at the time of the Panel's establishment, we recall that on 1 January
2022 the First Schedule was amended, such that "[tariff items] 8517 70 10 and 8517 70 90 and the
entries relating thereto" were substituted with the following entries966:
Tariff
item
Product description Standard
duty rate
 - Parts
8517.71.00 -- Aerials and aerial reflectors of all kinds; parts suitable for use
therewith
20%
8517 79 -- Other:
8517.79.10 --- Populated, loaded or stuffed printed circuit boards 20%
8517.79.90 --- Other 15%

7.389. Following the second substantive meeting with the parties, the Panel asked the parties to
confirm its understanding that no party had identified any customs notifications on the Panel's record
setting forth any exemptions pertaining to products falling und er tariff items 8517.71.00,
8517.79.10, or 8517.79.90. Japan indicated that "as long as the necessary amendments were made
to the relevant customs notifications, the exemptions which applied to tariff items 8517 70 10 and

connectors of cellular mobile phones and (b) inputs or sub-parts for use in manufacture of connectors of
cellular mobile phones; (3) pursuant to Serial No. 7: (i) wired headsets; (ii) battery covers; (iii) front covers;
(iv) front covers (with zinc casting); (v) middle covers; (vi) GSM antennae/antennae of any technology; (vii)
side keys; (viii) main lenses; (ix) camera lenses; (x) screws; (xi) microphone rubber cases; (xii) sensor rubber
cases/sealing gaskets including sealing gaskets/cases from rubbers like SBR, EPDM, CR, CS, silicone and all
other individual rubbers or combination/combination of rubbers; (xiii) PU cases/sealing gasket – other articles
of 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 No. 22/2018, 37/2018,
02/2019, 24/2019, and 02/2020, (Exhibit IND-82). See also General Exemption No. 239, (Exhibit JPN-28),
pp. 2206, 2209 and 2211)).
964 The following products falling under tariff item 8517.70.90 of the First Schedule, subject to the
condition that the importer follow the procedure set out in the Customs Rules 2017, were eligible to be
exempted from the portion of customs duty exceeding 10% under Notification No. 57/2017: (1) pursuant to
Serial Nos. 5A and 5B: (i) camera modules for use in manufacture of cellular mobile phones; and (ii)
connectors for use in manufacture of cellular mobile phones; and (2) pursuant to Serial Nos. 5C, 5D, and 5E:
(i) vibrator motors/ringers for 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-82). See also General Exemption No. 239, (Exhibit JPN-28), pp. 2206-2207 and 2211).
965 See paras. 7.384-7.385 above.
966 Finance Act 2021, (Exhibit IND-60), p. 176.

8517 70 90 of the First Schedule at the time of the establishment of the Panel apply to tariff items
8517 79 10, as well as tariff items 8517 71 00 and 8517 79 90, of the new version of the First
Schedule."967 Japan further submitted, a s an example of such an amendment, that Serial No. 402
of Notification No. 50/2017 was amended to replace a reference to tariff items 8517.70.10 with a
reference to tariff item 8517.79.10 of India's First Schedule.968 Japan noted, however, that "the tariff
exemption applicable to populated printed circuit boards falling under tariff item 8517 70 10 of the
First Schedule was subsequently repealed by Customs Notification No. 2/2022, effective from
2 February 2022".969 India did not dispute the Panel's understand ing. India stated that the " the
replacement of tariff lines 8517.70.10 and 8517.70.90 has only resulted in a change in headings,
and not the descriptions."970
7.390. Having reviewed the most recent evidence submitted by Japan, we understand that although
Serial No . 402 of Notification No. 50/2017 was indeed initially amended to refer to tariff items
8517.79.10 instead of tariff items 8517.70.10, Notification No. 50/2017 was subsequently further
amended to "omit" Serial No. 402 from that Notification. 971 Thus, based on the most up -to-date
evidence submitted to us, the conditional duty-free treatment that was available for products falling
under tariff item 8517.70.10 of the First Schedule, as it existed at the time of the Panel's
establishment, pursuant to Serial No. 402 of Notification No. 50/2017972, is not presently available
for products falling under tariff item 8517.79.10 of India's First Schedule.
7.391. We also note that, in the context of responding to certain questions from the Panel regarding
Japan's claim pertaining to products falling under tariff item 8517.12 of India's WTO Schedule, India
refers to Notification No. 57/2021.973 Notwithstanding that neither party refers to this Notification in
the context of Japan's claim concerning products that at the time of the Panel's establishment fell
under tariff items 8517.70.10 and 8517.70.90 of India's First Schedule, our review of this exhibit
suggests that it is indeed relevant for such products. Such products are presently classified under
tariff items 8517.71.00, 8517 .79.10, and 8517.79.90 of India's First Schedule. Specifically, we
understand that Notification No. 57/2021 amended Notification Nos. 24/2005 and 57/2017 such that
certain exemptions set forth in those Notifications may continue to apply to products presen tly
classified under those tariff items.
7.392. Having reviewed this evidence, we understand that, in light of the amendments to various
customs notifications introduced by Notification No. 57/2021:
a. With respect to products classified under tariff item 8517.71.00 of the First Schedule,
pursuant to Serial No. 5 of Notification No. 57/2017, g oods other than parts of cellular
mobile phones, as well as the inputs o r sub-parts for use in the manufacture of goods
other than parts of cellular mobile phones, are eligible for duty-free treatment974;
b. With respect to products classified under tariff item 8517.79.10 of the First Schedule:
i. Pursuant to Serial No. 13S of Notification No. 24/2005, all products other than PCBAs
for cellular mobile phones and the products identified in footnote 944 above are eligible
for 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

967 Japan's response to Panel question No. 83, para. 95.
968 Japan's response to Panel question No. 83, para. 95 (referring to Notification No. 55/2021,
(Exhibit JPN-76)).
969 Japan's response to Panel question No. 83, para. 95, fn 137 to para. 95 (referring to Notification
No. 02/2022, (Exhibit JPN-77)).
970 India's response to Panel question No. 83, para. 72. India also argues that "all submissions made by
[India] with regard to sub-heading 8517.70, including that the complainant has failed to identify the products
at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90, extend to sub-headings 8517.79.10 and
8517.79.90, respectively". (Ibid.).
971 Serial No. 402 of Notification No. 50/2017, (Exhibit JPN-32), as amended by Notification
No. 55/2021, (Exhibit JPN-76), and Notification No. 02/2022, (Exhibit JPN-77).
972 See para. 7.381c above.
973 India's responses to Panel question No. 75, para. 58, and Panel question No. 77, para. 64 (referring
to Notification No. 57/2021, (Exhibit IND-82)).
974 See Notification No. 57/2017 as amended by Notification No. 57/2021, (Exhibit IND-82).

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 975
and in the event of failure to comply with that condition the importer is liable to pay
an amount equal to the difference between the duty leviable on the imported goods
but for the exemption under this notification and that already paid at the time of
importation976;
ii. Pursuant to Serial No. 22 of Notification No. 57/2017, PCBAs for certain specified
products977 are unconditionally subject to a 10% duty rate; and
c. With respect to products classified under tariff item 8517.79.90 of the First Schedule:
i. Pursuant 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 treatment978;
ii. Pursuant to Serial Nos. 5A and 5B of Notification No. 57/2017, camera modules for
use in the manufacture of cellular mobile phones and connectors for use in the
manufacture of cellular mobile phones are eligible to receive a 10% duty rate, subject
to the condition that the importer follow the procedure set out in the Customs Rules
2017.979
7.393. We recognize that India may amend its customs notifications such that other exemptions
applying to products falling under tariff items 8517.70.10 and 8517.70.90 of India's First Schedule,
at the time of the Panel's establishment, may continue to apply to products presently falling under
tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of the First Schedule. In such a case, our
analysis of the tariff treatment accorded b y India to products falling under tariff items 8517.70.10
and 8517.70.90 of India's First Schedule at the time of the Panel's establishment would be equally
applicable to the tariff treatment accorded by India to products presently falling under tariff items
8517.71.00, 8517.79.10, and 8517.79.90 of the First Schedule. We note in this regard India's
argument that its "submissions" with regard to items 8517.70.10 and 8517.70.90 continue to apply
to items 8517.79.10 and 8517.79.90. 980 We therefore do not precl ude the possibility that such
notifications may continue to apply to the products presently classified under tariff items 8517.71.00,
8517.79.10, and 8517.79.90. However, nothing on the record of this dispute allows us to make a
determination in this regard.
7.394. To summarize, at the time of the Panel's establishment , certain specified products falling
under tariff item 8517.70.10 of India's First Schedule were unconditionally subject to a 10% duty

975 Specifically, the imported goods are not to be used in the manufacture of: cellular mobile phones;
base stations; optical transport equipment; combination of one or more of Packet Optical Transport Product 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, (Exhibit JPN-40), as amended by Notification No. 132/2006,
(Exhibit JPN-41), Notification No. 58/2017, (Exhibit JPN-42), Notification No. 38/2018, (Exhibit JPN-53), and
Notification No. 76/2018 (Exhibit JPN-54)).
976 Serial No. 13S of Notification No. 24/2005, (Exhibit JPN-40), as amended by Notification
No. 132/2006, (Exhibit JPN-41), Notification No. 58/2017, (Exhibit JPN-42), Notification No. 38/2018,
(Exhibit JPN-53), and Notification No. 76/2018, (Exhibit JPN-54) and Notification No. 57/2021, (Exhibit
IND-82). We note that these conditions are attached to the tariff treatment and are not general conditions for
importation. (See para. 7.383 above).
977 Specifically PCBAs for: base stations; optical transport equipment; combination of one or more of
Packet Optical Transport Product or Switch; Optical Transport Network products; IP radios; soft switches and
Voice over Internet Protocol equipment, namely, Voice over Internet Protocol phones, media gateways,
gateway controllers and session border controllers; carrier ethernet switches, Packet Transport Node products,
and Multiprotocol Label Switching-Transport Profile products; and Multiple Input/Multiple Output products and
Long Term Evolution products. (Serial No. 22 of Notification No. 57/2017 as amended by Notification
Nos. 02/2020, 03/2021, and 57/2021, (Exhibit IND-82)).
978 See Notification No. 57/2017 as amended by Notification No. 57/2021, (Exhibit IND-82).
979 Notification No. 57/2017 as amended by Notification Nos. 37/2018, 02/2020, and 57/2021,
(Exhibit IND-82).
980 India's response to Panel question No. 83, para. 72.

rate.981 Certain other products falling under this tariff item were eligible for duty -free treatment if
they satisfied certain conditions. 982 All other products classified under this tariff item, as well as
products that failed to satisfy the conditions for duty-free treatment, were subject to the 20% duty
rate set forth in the First Schedule. As for products falling under tariff item 8517.70.90 of India's
First Schedule, certain such products were eligible for unconditional duty-free treatment.983 Subject
to certain conditions, certain other products were eligible for eit her duty-free treatment or a 10%
duty rate.984 All other products classified under this tariff item, as well as products that failed to
satisfy the conditions for the duty -free treatment or the 10% duty rate, were subject to the 15%
duty rate set forth in the First Schedule.
7.395. Regarding the tariff treatment as of 1 January 2022, we note, based on the evidence before
us, that: (i) with respect to products falling under tariff item 8517.71.00 of the First Schedule,
certain specified products are unconditionally subject to duty-free treatment, while all other products
are subject to the 20% duty rate set forth in the First Schedule 985; (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 Schedule 986; and (iii) with respect to produ cts falling under tariff item 8517.79.90 of the
First Schedule, certain specified products are unconditionally subject to duty -free treatment, other
specified products are subject to a 10% duty rate subject to certain conditions, and all other products
are subject to the 15% duty rate set forth in the First Schedule.987
7.4.5.4 Comparison of India's tariff treatment to its WTO tariff commitments
7.4.5.4.1 Main arguments of the parties
7.396. Japan argues that, at the time of the Panel's establishment, the products classified under
tariff items 8517.70.10 and 8517.70.90 of India's First Schedule were products falling within the
scope of India's WTO tariff commitments as set forth at tariff items 8517.70 ex01, ex02, and ex03
of India's WTO Schedule.988 Japan argues that the duty rates for such products as set forth in India's
First Schedule were in excess of the 0% bound duty rate set forth in India's WTO Schedule.989 Japan
further considers that although the customs duty was "waived" with respect to som e of those
products, if those conditions were not fulfilled, " a customs duty would apply at a rate higher than
0% and this amounts to an inconsistency with India's obligations under Article II:1(b), first sentence,
of the GATT 1994 ".990 According to Japan, "[f]or those exemptions that are subject to conditions,
the inconsistency with Article II:1(b), first sentence, of the GATT 1994 remains, since no such
conditions are provided for in India's Schedule to benefit from duty-free treatment".991 Moreover, in
Japan's view, " any deviation from Article II:1(b) 'will always [also] be inconsistent with '
Article II:1(a) of the GATT 1994 ".992 Regarding India's amendment of the First Schedule, Japan
considers that " the creation of new tariff items by the Finance Act, 2021 does not affect Japan's
claims".993 In response to India's argument that "the complainant has failed to identify the products
at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90" of India's First Schedule, Japan
submits that "it is sufficient for the complainant making a claim under Article II:1 of the GATT 1994
to demonstrate that some of the products falling under the duty-free tariff concessions at issue bear
certain import duties or otherwise are subject to less favourable treatment than that under the tariff
concession."994

981 See para. 7.381a above.
982 See paras. 7.381b-7.381c above.
983 See paras. 7.386a-7.386b above.
984 See paras. 7.386a-7.386b above.
985 See para. 7.392a above.
986 See para. 7.392b above.
987 See para. 7.392c above.
988 Japan's first written submission, paras. 101-104.
989 Japan's first written submission, paras. 119-122.
990 Japan's first written submission, paras. 119 and 121.
991 Japan's second written submission, para. 15.
992 Japan's first written submission, para. 129 (quoting Panel Reports, EC – IT Products, para. 7.747).
993 Japan's response to Panel question No. 83, para. 91.
994 Japan's comments on India's response to Panel question No. 83, para. 112.

7.397. India notes that a Section Note to Section XVI of the HS2007 indicates that "[p]arts which
are goods included in any of the headings of Chapter 84 or 85 (other than headings 84.09, 84.31,
84.48, 84.66, 84.73, 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".995 India submits that
"[g]iven that the Section Notes make a nuanced distinction on the kinds of goods that may be
covered as 'Parts' (classifiable under 8517.70) and those 'Parts which are goods' (classifiable under
the appropriate heading of Chapter 84 or Chapter 85), the complainant's failure to explicitly confirm
the classification of the products at issue must lead to the rejection of its claim."996 Specifically with
respect to tariff item 8517.70.90 of the First Schedule (as it existed at the time of the Panel's
establishment), India argues that "'[a]ll goods other than the parts of cellular mobile phone s' and
'Inputs for all goods other than the parts of cellular mobile phones ' falling under tariff item
8517.70.90 of the Customs Tariff Act are exempt from duties", and submits that "[f]or all other
products mentioned in Japan's Panel Request and first written submissions", Japan has failed to
demonstrate that such products are classified under this tariff item.997 According to India, such
products "must be held to be outside the scope of the present dispute". 998 India also notes "the
replacement of tariff items 8517.70.10 and 8517.70.90 has only resulted in a change in headings,
and not the descriptions" and therefore "India has not raised any defense concerning the
replacement of HS2007 tariff items 8517.70.10 and 8517.70.90 with HS2022 tariff items 8517.79.10
and 8517.79.90". 999 India nevertheless argues that "all submissions made by it with regard to
sub-heading 8517.70, including that the complainant has failed to identify the products at issue
under HS2007 tariff lines 8517.70.10 and 8517.70.90, extend to sub -headings 8517.79.10 and
8517.79.90, respectively".1000
7.4.5.4.2 Panel's assessment
7.398. We recall that tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule indicate
that India is obligated to accord unconditional duty -free treatment to parts of telephone sets and
other certain apparatus for transmission or reception of voice, images, or data.1001
7.399. We note that, at the time of the Panel's establishment, tariff item 8517.70.10 of India's
First Schedule covered p opulated, loaded or stuffed printed circuit boards constituting parts of
telephone 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 scope of India's WTO tariff commitments
under tariff items 8517.70 ex01, ex02, and ex03 of its WTO Schedule.
7.400. Following India's amendment of its First Schedule on 1 January 2022, the products
previously covered by tariff items 8517.70.10 and 8517.70.90 became classified under tariff items
8517.71.001002, 8517.79.10 1003, and 8517.79.901004 of the First Schedule. Since the products
previously classified under tariff items 8517.70.10 and 8517.70.90 fell within the scope of India's
WTO tariff commitments under tariff items 8517.70 ex01, ex02, and ex03 of its WTO Schedule, it
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

995 India's response to Panel question No. 71, para. 54 (quoting HS2007 Section Notes to Section XVI
(Exhibit IND-9)). See also India's response to Panel question No. 71, paras. 54-55.
996 India's response to Panel question No. 105, para. 55.
997 India's first written submission, para. 188.
998 India's first written submission, para. 188.
999 India's response to Panel question No. 83, para. 72.
1000 India's response to Panel question No. 83, para. 72.
1001 See para. 7.372 above.
1002 Aerials and aerial 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.
7.388 above).
1003 Populated, loaded or stuffed printed circuit boards constituting parts of telephone sets and other
certain apparatus for transmission or reception of voice, images, or data. (See para. 7.388 above).
1004 Other parts of telephone sets and other certain apparatus for transmission or reception of voice,
images, or data. (See para. 7.388 above).

India does not dispute this. 1005 We find therefore that, as of 1 Janua ry 2022, these tariff items of
India's First Schedule cover parts of telephone sets and "other" certain apparatus for transmission
or reception of voice, images, or data , which are products covered by India's WTO tariff
commitments under tariff items 8517.70 ex01, ex02, and ex03 of its WTO Schedule.1006
7.401. Regarding India's argument that aspects of Japan's claims must fail because Japan allegedly
failed to demonstrate that certain products were, at the time of the Panel's establishment, classified
under tariff item 8517.70.90 of India's First Schedule , we recall that Japan's claim under Article s
II:1(a) and (b) of the GATT 1994 concerns the tariff treatment accorded by India to products falling,
at the time of the Panel's establishment, within the scope of tariff items 8517.70.10 and 8517.70.90
of India's First Schedule.1007 We have concluded above that these same products are presently
classified under tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of India's First Schedule.
Based on the arguments and evidence adduced by the parties, we have made factual findings
regarding the tariff treatment accorded by India to such products. In our view, this tariff treatment
concerns products that properly fall within the scope of Japan's claim.
7.402. We have also concluded above that India's WTO tariff commitments with respect to such
products are those set forth at tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule.
We proceed therefore to compare the challenged tariff treatment to the relevant tariff commitments
set forth in India's WTO Schedule. We emphasize that this comparison is limited to the tariff
treatment of products that were classified under tariff items 8517.70.10 and 8517.70.90 of India's
First Schedule, and which therefore fall within the scope of Japan's claim.1008
7.403. For the reasons explained above, India is obligated to accord unconditional duty -free
treatment to products falling under tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of the First
Schedule. We recall that, as of 1 January 2022: (i) with respect to products falling under tariff item
8517.71.00 of the First Schedule, certain specified products are unconditionally subject to duty-free
treatment, while all other products are subject to the 20% duty rate set forth in the First
Schedule1009; (ii) with respect to products falling under tariff item 8517.79.10 of the First Schedule,
certain specified products are eligible for duty-free 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 Schedule 1010; 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 specified products are subject to a 10% duty rate subject to
certain conditions, and all other products are subject to the 15% d uty rate set forth in the First
Schedule.1011 We understand that the unconditional duty-free treatment accorded to certain products
is consistent with India's WTO Schedule. The 10%, 15%, and 20% duty rates applied to certain

1005 India explained that "as opposed to the replacement of tariff line 8517.12 with tariff lines 8517.13
and 8517.14, the replacement of tariff lines 8517.70.10 and 8517.70.90 has only resulted in a change in
headings, and not the descriptions". (India's response to Panel question No. 83, para. 72).
1006 See fns 1002, 1003, and 1004 to para. 7.400 above.
1007 Specifically, Japan challenges the tariff treatment applied by India to products that, at the time of
the Panel's establishment, were classified under tariff items 8517.70.10 and 8517.70.90 of India's First
Schedule. (Japan's first written submission, para. 13; panel request, pp. 3-5).
1008 We note that certain of the tariff treatment described in section 7.4.5.3 above, in addition to being
available for some specified products that fall within the scope of Japan's claim, may also have been available
for other products (i.e. products presently classified under tariff items of India's First Schedule other than
8517.71.00, 8517.79.10, or 8517.79.90). This is because those exemptions are available for a wide number of
products, including some products that fall within the scope of Japan's claim and others which do not. We wish
therefore to clarify that our factual and legal findings in section 7.4.5 of this Report do not concern products
which did not, at the time of the Panel's establishment, fall within the scope of tariff items 8517.70.10 and
8517.70.90 of India's First Schedule (and which do not presently fall under tariff items 8517.71.00,
8517.79.10, and 8517.70.90). In our view, the tariff treatment, in India's domestic customs regime, of the
products challenged by Japan is clear. In this respect, we also consider India's references to the Section Note
of Section XVI of the HS2007 to be inapposite. (See para. 7.397 above). The tariff treatment identified by
Japan is that applied to products classified under certain tariff items of India's First Schedule. We have
concluded that the products falling under those tariff items fall within the scope of tariff items 8517.70 ex01,
ex02, and ex03 of India's WTO Schedule. It is not necessary for us (or for Japan) to independently identify
each individual product falling under the relevant tariff items (8517.71.00, 8517.79.10 and 8517.79.90 of the
First Schedule, since all products falling under those tariff items are covered by India's WTO legal obligations
and, as indicated, the tariff treatment of those products is clear.
1009 See para. 7.392a above.
1010 See para. 7.392b above.
1011 See para. 7.392c above.

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 conditions1012 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.
7.404. We also recall that, at the time of the Panel's establishment , India either partially or
completely exempted certain products falling under tariff items 8517.70.10 and 8517.70.90 of the
First Schedule from the standard duty rates set forth in that First Schedule , through a number of
customs notifications. Several such exemptions have been amended to cover products that, after
1 January 2022, fall under tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of India's First
Schedule.
7.405. We do not preclude the possibility that other exemptions may also, through relevant
amendments, continue to apply to the products presently cl assified under tariff items 8517.71.00,
8517.79.10, and 8517.79.90. However, nothing on the record of this dispute allows us to make a
determination in this regard. Nevertheless, for the sake of facilitating the resolution of this dispute,
we proceed to co mpare the duty rate that may be applicable pursuant to customs notifications on
the assumption that customs notifications that applied prior to 1 January 2022 may, through relevant
amendments, continue to apply to the products at issue.1013
7.406. In this respect, we recall that certain products that, at the time of the Panel's establishment,
fell under tariff item 8517.70.10 of India's First Schedule were unconditionally subject to a 10% duty
rate.1014 Other products falling under this tariff item were eligible for duty-free treatment if they
satisfied certain conditions.1015 All other products classified under this tariff item, as well as products
that failed to satisfy the conditions for duty -free treatment, were subject to the 20% duty rate set
forth in the First Sc hedule. As for products falling under tariff item 8517.70.90 of India's
First Schedule, certain such products were eligible for unconditional duty-free treatment.1016 Subject
to certain conditions, other products were eligible for either duty -free treatment or a 10% duty
rate.1017 All other products classified under this tariff item, as well as products that failed to satisfy
the conditions for the duty-free treatment or the 10% duty rate, were subject to the 15% duty rate
set forth in the First Schedule.
7.407. In comparing the tariff treatment applied pursuant to these Notifications to India's WTO tariff
commitments, we note at the outset that only certain products classified under tariff items
8517.70.10 and 8517.70.90 were eligible for the beneficial tariff treatme nt set forth in those
Notifications. Thus, at least some products falling under those tariff items remained subject to the
standard duty rates set forth in the First Schedule. Those standard duty rates of 20% and 15%,
respectively, were in excess of the bound duty rate of 0%. To the extent that the relevant customs
notifications are amended to refer to products presently falling under tariff items 8517.71.00,
8517.79.10, and 8517.79.90 of the First Schedule, those exemptions would continue to apply to a
specific subset of products falling under those tariff items. All other products would be subject to the
standard duty rates of 20% or 15% set forth in the First Schedule. Such applied duty rate is in
excess of the bound duty rate of 0%.
7.408. With respect to those specified products that were eligible for unconditional duty -free
treatment, we consider that th e tariff treatment accorded to these products was consistent with
India's WTO tariff commitments. However, with respect to those specified products that were eligible
for duty-free treatment subject to satisfying certain conditions, we note that those cond itions for

1012 See para. 7.392b.i above.
1013 We note that this approach is different to our approach to 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
available under Notification No. 57/2017 continued to be available to the same products. (See section 7.4.3.3.2
above).
1014 See para. 7.381a above.
1015 See paras. 7.381b-7.381c above.
1016 See paras. 7.386a-7.386b above.
1017 See paras. 7.386a-7.386b above.

duty-free treatment1018 are not set forth in India's WTO Schedule. To the extent that the relevant
customs notifications are amended to refer to products falling under tariff items 8517.71.00,
8517.79.10, and 8517.79.90 of the First Schedule : (i) the unconditional duty -free treatment
accorded to certain specified products is consistent with India's WTO tariff commitments; and (ii) the
conditional duty-free treatment accorded to certain specified products is subject to conditions that
are not set forth in India's WTO Schedule.
7.409. Finally, with respect to those specified products that were eligible for a partial exemption
from the duty rates imposed under the First Schedule, such that they were subject to a 10%
duty rate, we note that such applied duty rate was in excess of the bound duty rate of 0%. Among
those specified products, certain products were unconditionally subject to the 10% duty rate while
for other such products the reduced 10% duty rate was only applicable if the importer followed the
procedures set out in the Customs Rules 2017. This is not a condition set out in India's WTO
Schedule. To the extent that the relevant customs notifications are amended to refer to products
falling under tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of the First Schedule : (i) the
unconditional tariff treatment accorded to certain specified products continues to be in excess of the
bound duty rate; and (ii) the conditional tariff treatment accorded to certain specified products
continues to be in excess o f the bound duty rate and subject to a condition that is not set forth in
India's WTO Schedule.
7.4.5.5 Conclusion
7.410. Based on the foregoing, we find that India's tariff treatment of certain parts of telephone
sets and other apparatus for transmission or reception of voice, images, or data, which at the time
of the Panel's establishment fell within the scope of tariff items 8517.70.10 and 8517.70.90 of India's
First Schedule and which presently fall within the scope of tariff items 8517.71.00, 8517.79.10, and
8517.79.90 of India's First Schedule, is inconsistent with Article II:1(b), first sentence , of the
GATT 1994, because: (i) certain such products are subject to ordinary customs duties in excess of
those set forth and provided in India's WTO Schedule; and (ii) certain such products are subject to
ordinary customs duties in excess of those set forth in India's WTO Schedule, unless they satisfy
certain conditions not set forth in that WTO Schedule.
7.411. We recall that the application of ordinary customs duties in excess o f those provided for in
a Member's Schedule, or subject to terms, conditions or qualifications not set forth in the Schedule,
inconsistent with the first sentence of Article II:1(b), also constitutes "less favourable" treatment
within the meaning of Articl e II:1(a). Consequently, w e find that India's tariff treatment of such
products is less favourable than that provided in its WTO Schedule, and India is therefore acting
inconsistently with Article II:1(a) of the GATT 1994.
7.4.6 Additional claim under Article II:1(a) of the GATT 1994
7.4.6.1 Main arguments of the parties
7.412. Japan submits that the challenged measures are inconsistent with Article II:1(a) in three
"ways".1019 Japan argues, first, that because "India's measures are inconsistent with Article II:1(b),
first sentence, of the GATT 1994, they are also necessarily inconsistent with Article II:1(a) of the
GATT 1994."1020 Second, Japan argues that " India exempts some of the Products Concerned from
the duties", that "[s]ome of the applicable exemptions are subject to conditions", and where "[t]hose
conditions constitute additional terms and conditions not provided for in India's Schedule … [t]here

1018 The relevant conditions for duty-free treatment are: (i) that the importer follow the procedures set
out in the Customs Rules 2017; (ii) the 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. 7.381-7.387 above).
1019 Japan's second written submission, para. 17.
1020 Japan's second written submission, para. 18. See also Japan's first written submission, para. 131.

is an inconsistency with Article II:1(b) and therefore also with Article II:1(a). "1021 Third, Japan
argues that "even where exemptions are not subject to any terms or conditions, those exemptions
do not eliminate the inconsistency with Article II:1(a) as far as the exempted products are concerned
… because of the potential of deleterious effects on competition arising from these exemptions."1022
With respect to its third claim, Japan refers to the findings of the panels in EC – IT Products and
argues that "a measure may be found to provide for less favourable treatment in a manner
inconsistent with Article II:1(a) even in cases where there is no inconsistency with Article
II:1(b)."1023 Japan considers that the measures at issue in this dispute give rise " to a lack of
foreseeability for traders operating in the marketplace, which has serious effects on competition".1024
Japan submits that these "three claims under Article II:1(a) of the GATT 1994 are distinct and
independent from each other", and that "while the first claim is consequential to the claims under
Article II:1(b) of the GATT 1994, the remaining claims are independent from the claims under Article
II:1(b)".1025
7.413. With respect to Japan's third claim, India argues that "Japan essentially requests an
interpretation from the Panel, which would specify the manner in which India is required to meet its
obligations under Article II of the GATT."1026 India disagrees with such an interpretation because, in
its view, "that would lead to the Panel adjudicating on the … efficacy of a particular legal system
over all others and essentially prescribing a uniform legal system to be followed by all members of
the WTO for implementing the commitments under Article II of the GATT."1027 India submits that it,
like other Members, "has the discretion … to effectuate its rights and obligations in the manner it
deems fit".1028 India also submits that none of the factual features identified by Japan as leading to
lack of predictability resemble the factual features in EC – IT Products1029, and emphasizes that
India's exemptions "remain in place until there has been a modification by the Government of
India".1030 India considers that "the manner in which it implements its duty suspension regime to
afford the relevant tariff treatment to the products corresponding to that provided in the 2007
Schedule under the GATT 1994 is different and distinct from the EU duty suspension regime, which
was considered by the Panel in EC – IT Products".1031 India further points out that the Appellate
Body "recognized that ordinary customs dut [ies] are legitimate instruments to accomplish certain
trade policies and can be applied through an act of a Member's legislature as well as the executive
at any time".1032
7.4.6.2 Main arguments of the third parties
7.414. The United States submits that "if the Panel finds that the measures at issue impose duties
in excess of the bound rates set forth in India 's Schedule, then it should also find those measures
inconsistent with Article II:1(a) on that basis, and need not reach Japan 's other claim. "1033 The
United States "agrees that Article II:1(a) does not require a Member to implement its tariff
commitments in a specific manner ."1034 The United States further submits that " even if India 's
argument that exemptions are available for the product at issue is correct, it is not clear to what
extent importers are able to identify and claim the applicable exemptions and in turn benefit fr om

1021 Japan's first written submission, para. 132. See also Japan's second written submission, para. 21.
1022 Japan's first written submission, para. 133. See also Japan's second written submission,
paras. 19-20.
1023 Japan's first written submission, para. 130.
1024 Japan's second written submission, para. 19.
1025 Japan's second written submission, para. 22.
1028 India's second written submission, para. 133. India submits that "Japan cannot insist that the Panel
dictate the manner or procedure through which India is required to apply a measure for providing certainty
regarding tariff commitments under its Schedule as India submits that such an exercise is not contemplated
and entirely outside the purview of Article II." (India's first written submission, para. 259).
1029 India's second written submission, paras. 128-130 (referring to Panel Report, Russia – Tariff
Treatment, para. 7.140 (referring, in turn, to Panel Reports, EC – IT Products, para. 7.761)).
1030 India's second written submission, para. 132. See also India's first written submission, paras. 253
and 255.
1031 India's first written submission, para. 248.
1032 India's first written submission, para. 250 (referring to Appellate Body Reports, India - Additional
1033 United States' third-party submission, para. 56.
1034 United States' third-party submission, para. 57.

the tariff treatment set forth in those exemptions ."1035 The United States "understands that
importers bear certain responsibilities in import transactions; the ability to exercise those
responsibilities would seem to depend on the availability of informa tion regarding applicable
requirements."1036 The United States concludes that "[r] egardless of how a WTO Member chooses
to implement its tariff commitments, Article II:1(a) obligates it to provide treatment 'no less
favourable' than that set forth in its Schedule."1037
7.4.6.3 Panel's assessment
7.415. We note at the outset that Japan has identified three "claims" that it raises under
Article II:1(a) of the GATT 1994. Its first claim is that of a "consequential" finding of
inconsistency.1038 Japan claims that because the challenged measure is inconsistent with Article
II:1(b) of the GATT 1994, it is also inconsistent with Article II:1(a) of the GATT 1994. Japan's
second1039 claim is that certain conditions attached to duty exemptions in India's domestic customs
regime "constitute additional terms and conditions not provided for in India's Schedule ", which are
inconsistent with " Article II:1(b) and therefore also with Article II:1(a). "1040 Japan's third claim is
that the measures at issue in this dispute give rise "to a lack of foreseeability for traders operating
in the marketplace, which has serious effects on competition".1041
7.416. In sections 7.4.2 -7.4.5 above we have addressed Japan's arguments that India is acting
inconsistently with Articles II:1(a) and (b) because: (i) India imposes customs duties in excess of
those provided for in the Schedule; and (ii) certain products must satisfy conditions that are not set
forth in India's WTO Schedule in order to receive the tariff treatment set forth in that Schedule. In
our view, our assessment and our findings above comprehensively address both Japan's first and
second claims that India is acting inconsistently with Article II:1(a).
7.417. We therefore turn to address Japan's third claim under Article II:1(a). In this respect, Japan
argues that "even if specific Products Concerned are exempt from customs duties, there remains an
inconsistency with Article II:1(a) of the GATT 1994 because those exemptions are subject to the
possibility of repeal at any time, and thus create a lack of foreseeability for traders operating in the
marketplace."1042 Japan submits that: (i) Section 25 of the Customs Act 1962 authorizes India to
apply, modify, or repeal the tariff exemptions of any product, at any time, on a discretionary basis;
(ii) the notifications establishing tariff exemptions do not provide an explanation or objective criteria
for the granting of exemptions; (iii) the notifications do not provide any information concerning
conditions under which the exemptions may be terminated or modified ; and (iv) there is no
predictability as to how long and under what conditions the exemp tions would continue to apply,
and this lack of predictability has serious effects on competition in the Indian market.1043
7.418. Japan's third claim under Article II:1(a) relates to India's use of customs notifications issued
pursuant to Section 25 of the Custom s Act 1962 to exempt imported products from the standard
duty rates set forth in the First Schedule.1044 We understand that Japan considers that India is acting
inconsistently with Article II:1(a) in situations where the products at issue receive uncondition al
duty-free treatment in accordance with the terms of India's WTO Schedule, because the Government
of India may modify such tariff treatment at any point in time, through customs notifications issued
pursuant to Section 25.
7.419. On its face, this claim appear s to challenge India's system of exemptions through customs
notifications, and in particular Section 25, pursuant to which those notifications are issued by the

1035 United States' third-party submission, para. 57.
1036 United States' third-party submission, para. 57.
1037 United States' third-party submission, para. 57.
1038 See Japan's response to Panel question No. 85, para. 99.
1039 In its first written submission, Japan indicates that a second ground for finding that India is acting
inconsistently with Article II:1(a) is that certain exemptions are subject to conditions not set forth in India's
WTO Schedule. In its second written submission, Japan refers to this as its "third" claim of inconsistency with
Article II:1(a). (See Japan's first written submission, para. 132; second written submission, para. 21). For the
purpose of our analysis in this section, we refer to this claim as Japan's "second" claim.
1040 Japan's first written submission, para. 132. See also Japan's second written submission, para. 21.
1041 Japan's second written submission, para. 19.
1042 Japan's response to Panel question No. 86, para. 101.
1043 Japan's second written submission, para. 20.
1044 See paras. 2.11 -2.13 above.

Government of India. We note in this regard that Japan's panel request, which delimits our terms of
reference, does not raise any such claims regarding India's system of exemptions or notifications.
7.420. In response to a question from the Panel, Japan clarified, however, that it is not requesting
us to find that Section 25 is "as such" inconsistent with Article II:1(a) of the GATT 1994. 1045
According to Japan, its reference to Section 25 is "simply in order to explain the legal grounds upon
which the Government of India has authority to amend or repeal the exemptions at any time through
customs notificatio ns"1046 and Section 25 is therefore "part of the evidence showing the lack of
foreseeability and predictability, for the purposes of establishing that India's measures are
inconsistent with Article II:1(a) of the GATT 1994 even with regard to those products that benefit
from an exemption ".1047 In response to another question from the Panel, Japan confirms that the
measures challenged under Japan's third claim under Article II:1(a) "are not different from the
measures challenged under the other claims. They refer to the tariff treatment applied through the
acts and notifications on imports of the Products Concerned". 1048 Japan further explains that "the
exemptions granted to some of the Products Concerned do not eliminate the inconsistency with
Article II:1(a) … Rather, those exemptions … generate 'deleterious effects on competition', because
such exemptions can be enacted, … modified or revoked at any time by simple act of the Government
of India, in contrast to the basic duty rate exceeding 0% which can only be changed through an act
of the Parliament."1049
7.421. In light of Japan's clarifications regarding the nature of this claim, we proceed with our
assessment by examining whether Japan has demonstrated that India acts inconsistently with
Article II:1(a) when unconditionally exempting the products at issue from customs duties through
customs notifications, on the ground that such exemptions lack foreseeability and predictability, thus
affecting conditions of competition for traders.
7.422. We recall that Article II:1(a) requires that:
Each Member shall accord to the commerce of the other Members treatment no less
favourable than that provided for in the appropriate Part of the appropriate Schedule
annexed to this Agreement.
7.423. Article II:1(a) thus prohibits treatment less favourable than "that provided for in … the
appropriate Schedule".1050
7.424. We note that Japan's claim of inconsistency concerns situations where India is according
tariff treatment that is consistent with the tariff bindings and other obligations set forth in India's
WTO Schedule (in other words, situations where India is acting consistently with Article II:1(b) of
the GATT 1994). Indeed, Japan has not identified any terms or obligations set forth in India's WTO
Schedule against which we can assess whether the challenged measures accord treatment less
favourable. Rather, Japan's argument is premised on the notion that Article II:1(a) prohibits the
application of tariff treatment through legal instruments that allegedl y result in a lack of
foreseeability or predictability, thus affecting conditions of competition for traders.1051
7.425. As a general matter, we see nothing in the text of Article II:1(a) suggesting that a finding
of inconsistency with this provision is necessaril y dependent on a finding of inconsistency with
Article II:1(b). While Article II:1(b) refers specifically to the application of ordinary customs duties
and other duties or charges, Article II:1(a) refers more broadly to the treatment of the commerce
of the other Members provided for in the Schedule. Thus, Article II:1(a) may encapsulate obligations,
as set forth in Members' Schedules, notwithstanding that such obligations are not implicated by
Article II:1(b).

1045 Japan's response to Panel question No. 86, para. 100.
1046 Japan's response to Panel question No. 86, para. 103.
1047 Japan's response to Panel question No. 86, para. 104.
1048 Japan's response to Panel question No. 87, para. 106. See also Japan's response to Panel question
No. 31(c)(iv), para. 15.
1049 Japan's response to Panel question No. 87, paras. 107-108 (quoting Panel Reports, EC – IT
Products, para. 7.761).
1050 Emphasis added.
1051 See e.g. Japan's closing statement at the second meeting of the Panel, para. 13.

7.426. Turning to the more specific question of whethe r Article II:1(a) prohibits tariff treatment
resulting in a lack of foreseeability or predictability, we note that in support of its proposed
interpretation of Article II:1(a), Japan refers inter alia to several findings by the panels in
EC – IT Products. Specifically, Japan highlights the panels' findings that: (i) the term "less favourable
treatment" in Article II:1(a) should be understood as referring to "conditions of competition";
(ii) "negotiated tariff concessions and the certainty thereof are import ant market access
guarantees"; and (iii) in that dispute a duty suspension with an expiry clause did not eliminate the
challenged measure's inconsistency with Article II:1(a) because there remained "the potential of
deleterious effects on competition".1052
7.427. We do not disagree with Japan that the expression "treatment no less favourable" in
Article II:1(a) can be interpreted as referring to conditions of competition. We observe, however,
that the phrase "treatment no less favourable than"1053 necessarily entails a comparison – in other
words, for a measure to be inconsistent with Article II:1(a), there must be something against which
the challenged treatment is less favourable. That comparator is explicitly identified in Article II:1(a)
as the treatment "provided for in … the appropriate Schedule". As the panels in EC – IT Products
found, "if a measure adversely affects the conditions of competition for a product from that which it
is entitled to enjoy under a Schedule , this would be less favourable treatment un der
Article II:1(a)".1054
7.428. Thus, to succeed in its third claim under Article II:1(a), Japan would need to demonstrate
that the lack of foreseeability or predictability allegedly attached to the use of customs notifications
and exemptions by the Government of I ndia results in treatment that is less favourable than the
treatment set forth in India's WTO Schedule. In the context of this third claim, however, and in
contrast to its other two claims under Article II:1(a), Japan has conducted no comparison of the
tariff treatment at issue to India's WTO Schedule. While Japan makes a passing reference to India's
WTO Schedule in the context of this claim1055, Japan does not attempt to explain how the challenged
measures – certain customs notifications unconditionally exempting the products at issue from
customs duties – would adversely affect the conditions of competition of the products of Japan at
issue "from that which [they are] entitled to enjoy under" 1056 India's WTO Schedule. Thus, Japan
has not tried to show how such customs notifications have "the potential of deleterious effects on
competition"1057 for those products, as compared to the conditions of competition such products are
entitled to under India's WTO Schedule.
7.429. We note Japan's arguments that customs notifications issued pursuant to Section 25 are
discretionary, do not provide an explanation or objective criteria for the granting of exemptions, and
do not provide any information concerning conditions und er which the exemptions may be
terminated or modified. Japan has not sought to demonstrate how any such aspects of the customs
notifications exempting certain products at issue from duties are inconsistent with the obligations
set forth in India's WTO Sche dule.1058 Mere statements to the effect that India's system of duty
exemptions through customs notifications "lacks foreseeability or predictability" because the
exemptions "do not provide any explanation or refer to any objective criteria" and may be modified
or repealed "at any time"1059, do not amount to a demonstration that the measures at issue accord

1052 Japan's first written submission, para. 130 (referring to Panel Reports, EC – IT Products, paras.
7.756-7.757 and 7.761). Japan also refers to the Panel Report in Argentina – Textiles and Apparel, para. 6.46.
1053 Emphasis added.
1054 Panel Reports, EC – IT Products, para. 7.757. (emphasis added)
1055 See Japan's second written submission, para. 19 ("even where specific Products Concerned are
exempted from customs duties, India accords to such products a less favourable treatment than that provided
for in India's Schedule, because such exemptions are subject to the possibility of repeal at any time and,
therefore, there is uncertainty and unpredictability regarding the customs duties which will apply to the
Products Concerned").
1056 Panel Reports, EC – IT Products, para. 7.757. (emphasis added)
1057 See Japan's first written submission, para. 133. See also Japan's second written submission,
paras. 19-20.
1058 For instance, in the context of its claim concerning the tariff treatment accorded by India to
"telephones for other wireless networks, other than cellular networks" (see section 7.4.2 above), Japan states,
without elaboration, that "even if [such products] are exempted from customs duties, India is still providing a
less favourable treatment than what is provided for in its Schedule, which is inconsistent with its obligations
under Article II:1(a) of the GATT 1994, because this exemption is subject to the possibility of repeal at any
time and, therefore, there remains uncertainty and unpredictability regarding the customs duties which will
apply to such product." (Japan's response to Panel question No. 73, para. 62).
1059 Japan's second written submission, para. 20.

treatment less favourable than that provided for in India's WTO Schedule. There is therefore no
baseline identified by Japan by which we can assess whether a ny lack of foreseeability or
predictability allegedly attached to the measures at issue in this dispute constitutes treatment less
favourable than that set forth in India's WTO Schedule, inconsistent with Article II:1(a).
7.430. With respect to Japan's references to the panels' findings in EC – IT Products, we note that
the panels in EC – IT Products interpreted Article II:1(a) as requiring that products' conditions of
competition are not adversely affected from that which they are entitled to under the relevant
WTO Schedule.1060 Moreover, the panels' findings of inconsistency with Article II:1(a) were based
on the facts that: (i) "but for the duty suspension, the European Communities' measures [we]re
inconsistent with its obligations under Article II:1(b)"; and (ii ) the duty suspension at issue was
scheduled to "automatically expire" on a specific date. 1061 As noted by India 1062, the factual
circumstances of that dispute are distinct from the present circumstances, where the relevant
customs notifications exempting the products at issue from customs duties contain no general expiry
date that we can see, and none has been brought to our attention.1063
7.431. As a final observation on this issue, we note that Article II:1(a) does not, on its face, regulate
the manner in which a Member implements the obligations under that provision. India has adopted
a system whereby the executive may exempt certain products from ordinary customs duties through
customs notifications and we see nothing in Article II:1(a) or in India's WTO Schedule t hat would
prevent India from implementing its WTO obligations in that manner. In short, in the circumstances
of this dispute, Japan has provided no argument or evidence demonstrating that India's use of
customs notifications to apply the tariff treatment s et forth in its WTO Schedule results in tariff
treatment less favourable than that set forth in its WTO Schedule.1064 There is therefore no basis for
us to find that the manner in which India implements its WTO obligations under Article II:1(b) is
inconsistent with Article II:1(a).1065
7.432. For these reasons we consider that Japan has failed to demonstrate that the measures at
issue in this dispute impose treatment less favourable than that set forth in India's WTO Schedule,
inconsistent with Article II:1(a) of the GATT 1994, on the ground th at India's customs notifications
lack foreseeability or predictability, thus affecting conditions of competition for traders.

1060 See para. 7.427 above.
1061 Panel Reports, EC – IT Products, para. 7.758.
1063 We note that where certain individual exemptions have indeed contained expiry dates, we have
addressed these exemptions in the context of our analysis of the relevant tariff items above and found that the
tariff treatment accorded to the relevant products is inconsistent with Articles II:1(a) and (b). Since that tariff
treatment has already been found to be inconsistent with Articles II:1(a) and (b) we understand that it is not
subject to this claim by Japan, which concerns situations where there is no inconsistency with Article II:1(b).
1064 We note Japan's argument that "India has applied and progressively increased the customs duties
applicable to the Products Concerned", and that "even after the Panel's establishment, India again increased
the tariff rate on some of the Products Concerned through new customs notifications and the Finance Act,
2021". (Japan's opening statement at the second meeting of the Panel, para. 39). In particular, Japan argues
that "India's application of customs duties in February (effective in April) 2021, through Customs Notification
No. 3/2021, read in conjunction with its preceding notifications, on some products that had been exempted
from all customs duties … shows the uncertainty and unpredictability for traders regarding customs duties in
the Indian marketplace". (Japan's response to Panel question No. 29, para. 6. See also Japan's opening
statement at the second meeting of the Panel, para. 39). Given that Japan refers to this Notification as
evidence of "the application of customs duties" in excess of India's bound duty rates, it is not clear to us
exactly how this Notification is relevant to Japan's third claim under Article II:1(a) which, as described above,
concerns situations where India exempts products from customs duties. We also note that to the extent that
Japan's arguments imply that India is acting inconsistently with Article II:1(a) simply because, in Japan's view,
India frequently modifies its applied duty rates through customs notifications, we reiterate that Japan has not
demonstrated that customs notifications imposing unconditional duty-free treatment, in accordance with
India's WTO Schedule, constitutes treatment less favourable than that set forth in the Schedule.
1065 Indeed, in light of our findings above that India is acting inconsistently with its obligations under
Articles II:1(a) and (b), to the extent that India seeks to come into compliance with its obligations we
understand that India could in fact rely on the same system of customs notifications which Japan challenges
under this third claim. We see no basis in Article II:1(a) of the GATT 1994 to proscribe (or indeed prescribe)
any particular mechanism for India to comply with its WTO obligations, at least to the extent that India accords
treatment no less favourable than that set forth in its WTO Schedule.

7.4.7 Notification No. 69/2011
7.4.7.1 Main arguments of the parties
7.433. India argues that, pursuant to the India -Japan Comprehensive Economic Par tnership
Agreement (CEPA), the Government of India issued Notification No. 69/2011, which reduced the
ordinary customs duty rate to "Nil" on all items covered under heading 8517 when originating in
Japan.1066 India submits that it "applies a 0% rate of ordinary customs duty on imports of all goods
of Japan under heading 8517 and all its sub-headings and therefore, Japan's claim that India applies
a rate of duty in excess of 0% at the 6 -digit level for, inter alia, sub-headings 8517.12, 8517.61,
8517.62, and 8517.70 is incorrect."1067 In India's view, therefore, assuming arguendo that India's
WTO Schedule is not in error, the measures at issue identified by Japan are not inconsistent with
Articles II:1(a) and (b) of the GATT 1994 "because they do not accord less favourable treatment to
products of Japan than that provided for in India's [WTO Schedule]".1068 For India, "Notification No.
69/2011 negates Japan's claims under Article II:1(a) and II:1(b) of the GATT 1994."1069
7.434. Japan responds that Notification No. 69/2011 does not eliminate the inconsistency of India's
measures with Article II:1 of the GATT 1994. 1070 According to Japan, this is because: (i) "the
India-Japan CEPA only covers products which qualify as being of Japanese origin under the rules of
origin of the India–Japan CEPA, whereas India is required under Article II:1 of the GATT 1994 to
provide duty -free treatment in accordance with India's Schedule to imports from all WTO
Members"1071; (ii) "even for those Products Concerned which may benefit from duty-free treatment
under the provisions of the India –Japan CEPA, this does not eliminate the inconsistency of India's
measures with Articles II:1(a) and II:1(b) of the GATT 1994, because receiving duty-free treatment
under the India–Japan CEPA is subject to fulfilment of additional conditions"1072; and (iii) "even for
those Products Concerned which may benefit from duty-free treatment under the India–Japan CEPA,
this does not eliminate the inconsistency of India's measures with Articles II:1(a) and (b) of the
GATT 1994, since such duty-free treatment is conditioned on the existence of the India–Japan CEPA
itself."1073
7.4.7.2 Main arguments of the third parties
7.435. Canada asserts that the obligations under Article II of the GATT 1994 exist independently of
any preferential trade agreement (PTA). 1074 According to Canada, the concessions set out in
Members' WTO S chedules establish the maximum most -favoured-nation (MFN) duties that may
apply to WTO Members, and these rates are unaffected by particular PTAs.1075 Canada submits that
the concessions contained in India's WTO Schedule still apply to products that are not eligible for
preferential treatment under the India -Japan CEPA and that the Panel remains able to assess
whether products falling under the tariff items at issue have been subject to treatment inconsistent
with Articles II:1(a) and (b) of the GATT 1994.1076
7.436. The European Union asserts that "tariff treatment pursuant to a [PTA] is relevant in principle
in order to determine whether the overall tariff tre atment accorded by … [a] Member to imports of
products of other Members is consistent with the obligations imposed on the first Member by
Article II:1 of the GATT 1994 ."1077 The European Union notes, however, that " tariff concessions
granted pursuant to a [PTA] are usually subject to specific conditions stipulated in that agreement",
including those requiring compliance with certain rules of origin, and "those conditions are usually
different and more demanding than those s tipulated in Article II:1 of the GATT 1994 and each

1066 India's first written submission, para. 204 (referring to Notification No. 69/2011, (Exhibit IND-41)).
1067 India's first written submission, para. 205.
1068 India's first written submission, paras. 13 and 206.
1069 India's second written submission, para. 125.
1070 Japan's second written submission, paras. 264 and 278.
1071 Japan's second written submission, paras. 265-267.
1072 Japan's second written submission, paras. 268-276.
1073 Japan's second written submission, para. 277. See also Japan's response to Panel question No. 27,
paras. 57-61.
1074 Canada's third-party submission, para. 22.
1075 Canada's third-party submission, para. 22.
1076 Canada's third-party submission, para. 23.
1077 European Union's third-party response to Panel question No. 13, para. 60.

Member's own GATT Schedule. "1078 According to the European Union, "t o that extent, tariff
treatment accorded pursuant to a [PTA] may not be sufficient to ensure compliance with Article II:1
of the GATT 1994 in respect of imports of the products of the other Member which is a party to that
preferential agreement ."1079 The European Union argues that a Member is not precluded from
bringing a claim under Article II:1 of the GATT 1994 concerning the tariff treatmen t accorded to
imports of products of other Members that are not parties to the [PTA], and a Member may have a
legitimate trade interest in doing so.1080
7.437. Korea notes that prior panels and the Appellate Body have acknowledged the limited
relevance of bilateral agreements in the context of WTO disputes.1081 Korea agrees with Japan that
"the requirement of no 'less favourable treatment ' under Article II:1(a) should be understood by
reference to 'conditions of competition '".1082 Korea stresses that t ariff concessions are "legal
instruments that describe the treatment a Member must provide to the trade in goods of other
WTO Members" and are "one of the main WTO tools to ensure transparency, security, and
predictability for world trade ".1083 In Korea's view, a Member would therefore "not be free from
violation of Article II:1(a) even if it applies a NIL rate pursuant to its bilateral agreement while
maintaining [a] WTO-inconsistent rate" as this would otherwise "impinge on a Member 's right to
transparency, security, and predictability of the trade in goods".1084
7.438. Chinese Taipei argues that "a Member must exempt ordinary customs duties in excess of
the bound rates on 'products of territories of other [Members]'".1085 Chinese Taipei emphasizes that
"it is not enough for a Member to exempt duties on the products of the complaining Member ."1086
According to Chinese Taipei, "even assuming arguendo that India does accord duty-free treatment
on imports of the products at issue from Japan, it would still apply duties on imports of products at
issue from other Members, inconsistent with its obligation under Article II:1(b)."1087
7.439. The United States submits that, even if goods of Japan are entitled to duty -free treatment
under India's preferential measures, this doe s not establish a defence to a breach of
Article II:1(b).1088 For the United States, "it does not follow from India's argument that a Member
may determine for purposes of the tariff treatment provided for in its WTO Schedule that some
goods of a Member will be afforded that treatment (such as goods that meet a prefe rential rule of
origin under the terms of a non-WTO agreement), but not others, or that goods from some Members
may qualify for the treatment provided in its Schedule, but not others."1089
7.4.7.3 Panel's assessment
7.440. In sections 7.4.2.5, 7.4.3.4, 7.4.4.4 and 7.4.5.5 above, we have found that by imposing
ordinary customs duties on certain products in excess of those set forth and provided in its WTO
Schedule, or subject to terms, conditions or qualifications not set forth in that Schedule, India is
acting inconsistently with Articles II:1(a) and (b) of the GATT 1994. The question before us now is
whether, as alleged by India, Notification No. 69/2011 brings India into compliance with its
obligations under the aforementioned provisions.
7.441. Notification No. 69/2011 was put on the record of these proceedings by India to support its
argument that it applies a 0% duty rates to the products at issue in this dispute. We note at the

1078 European Union's third-party response to Panel question No. 13, para. 61.
1079 European Union's third-party response to Panel question No. 13, para. 61.
1080 European Union's third-party response to Panel question No. 13, para. 62.
1081 Korea's third-party response to Panel question Nos. 13 and 14 (referring to Appellate Body Report,
EC – Poultry, paras. 84-85; and Decision by the Arbitrator, EC – Hormones (US) (Article 22.6 – EC), para. 50).
1082 Korea's third-party response to Panel question Nos. 13 and 14. See also Korea's third-party
submission, para. 26.
1083 Korea's third-party response to Panel question Nos. 13 and 14.
1084 Korea's third-party response to Panel question Nos. 13 and 14.
1085 Chinese Taipei's third-party response to Panel question No. 14, para. 14.
1086 Chinese Taipei's third-party response to Panel question No. 14, para. 14.
1087 Chinese Taipei's third-party response to Panel question No. 14, para. 14.
1088 United States' third-party submission, para. 52 (referring to Panel Reports, EC – IT Products,
para. 7.113).
1089 United States' third-party submission, para. 54. (emphasis original) See also United States'
third-party responses to Panel question Nos. 13 and 14, paras. 29-33; and third-party statement,
paras. 10-12.

outset that we are not called upon to assess the consistency of Notification No. 69/2011 with India's
WTO obligations.1090 We also note that the parties do not dispute that Japan's claims are limited to
the tariff treatment granted by India to "products of the territory of Japan" (hereinafter "products of
Japan").1091 We will therefore confine our analysis to the WTO -consistency of the tariff treatment
accorded by India to products of Japan. In light of the foregoing, we will examine whether, pursuant
to Notification No. 69/2011, India grants to the products of Japan at issue in this dispute
unconditional duty-free treatment, as required by India's WTO Schedule.1092
7.442. Turning, first, to the content of Notification No. 69/2011, we note that it reads in relevant
part:
In the exercise of the powers conferred by sub -section (1) of section 25 of the
Customs Act, 1962, the Central Government, … hereby exempts goods … as specified
in column (3) of the Table appended hereto and falling under the Chapter, Heading,
Subheading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of
1975) as specified in the corresponding entry on column (2) of the said Table, when
imported from Japan, from so much of the duty of customs leviable thereon as is in
excess of the amount calculated at the rate specified in the corresponding entry in
column (4) of the aforesaid Table:
Provided that the exemption shall be available only if the importer proves to the
satisfaction of the Deputy Commissioner of Customs or Assistant Commi ssioner of
Customs, as the case may be, that the goods in respect of which the benefit of this
exemption is claimed are of the origin of Japan, in terms of rules as may be notified in
this regard by the Central Government by publication in the official Gazette.
7.443. The relevant entry in the table appended to Notification No. 69/2011 is as follows.1093
S. No. Chapter or heading or subheading or tariff item Description Rate
663 8517 All goods 0.0

7.444. India also refers to Notification No. 55/2011, which sets forth rules for the "Determination
of Origin of Goods" under the CEPA (hereinafter "CEPA Rules 2011"). 1094 India submits that "if the
products are classified under tariff heading 8517 and are determined as originating from Japan or
products of Japan in accordance with CEPA Rules 2011, they are eligible for the treatment provided
for" in Notification No. 69/2011. 1095 We observe that Rule 3 ("Originating goods") of CEPA Rules
2011 provides, inter alia, that "goods imported by a Party … shall be deemed to be origi nating and
eligible for preferential tariff treatment if … the goods are wholly obtained or produced entirely in
the Party, as provided for in [R]ule 4."1096 When goods are "not wholly obtained or produced in the
Party", they must meet certain requirements in terms of value content and change in tariff item, as
provided for in Rules 5 and 6.1097
7.445. Our review of the evidence placed on the record by India shows that Notification No. 69/2011
"exempts" from customs duties "goods … when imported from Japan", including goods falling under

1090 As noted by India, Notification No. 69/2011 is not a measure at issue in this dispute. (India's second
written submission, para. 124).
1091 India submits that Japan's claims are limited to products and commerce of Japan, and posits that
the Panel's terms of reference "do not allow the Panel to expand its analysis … viz-a-viz all WTO Members".
(India's response to Panel question No. 89, para. 77). Japan agrees that "[a]s stated in Japan's request for the
establishment of a panel, Japan's claims … are limited to the tariff treatment accorded to Japan's commerce
and the products of the territory of Japan". (Japan's response to Panel question No. 88, para. 115). We note
that, when setting out the legal basis for its complaint under Articles II:1(a) and (b), Japan's panel request
refers to "Japan's commerce" and "products of the territory of Japan" respectively. (Japan's panel request,
p. 5).
1092 See sections 7.4.2.2, 7.4.3.1, 7.4.4.1, and 7.4.5.2 above.
1093 Notification No. 69/2011, (Exhibit IND-41).
1094 Notification No. 55/2011, (Exhibit IND-42), Rule 1.
1095 See India's first written submission, para. 241.
1096 Notification No. 55/2011, (Exhibit IND-42), Rule 3. Rule 4 defines which goods shall be considered
as being "wholly obtained or produced in a Party" for the purpose of Rule 3.
1097 Notification No. 55/2011, (Exhibit IND-42), Rules 3, 5, and 6. Rule 5 sets forth the conditions that
"goods produced using non-originating materials" must satisfy to qualify as "originating goods" of a Party.
Rule 6 provides for a formula for calculating the qualifying value content of goods.

heading 8517. In order to benefit from the exemption provided for in that Notification, the importer
must prove that "the goods in res pect of which the benefit of this exemption is claimed are of the
origin of Japan." To that end, the importer must show that the goods comply with the origin
requirements set forth in CEPA Rules 2011. Thus, pursuant to Notification No. 69/2011, products of
Japan falling under the tariff items at issue in this dispute are subject to a preferential 0% duty rate
provided that they comply with the origin requirements set forth in CEPA Rules 2011.
7.446. We recall that the relevant MFN tariff treatment set forth in In dia's WTO Schedule for the
products falling under the tariff items at issue in this dispute is 0%, with no terms, conditions, or
qualifications attached .1098 Pursuant to Articles II:1(a) and (b) , India is therefore obligated to
provide, with respect to all WTO Members, unconditional duty-free treatment to all products covered
by the tariff items at issue.1099 Accordingly, for India to establish that it is acting consistently with
its WTO tariff commitments, India must establish that, pursuant to Notification No . 69/2011 , it
accords unconditional duty-free treatment to all products of Japan falling under the tariff items at
issue.
7.447. As noted above, Notification No. 69/2011 grants a 0% duty rate to the products of Japan
falling under the tariff items at issue provided that such products comply with the origin requirements
set forth in CEPA Rules 2011. We note that, according to India, "the determination of origin is inbuilt
into the phrase 'products of territories of other contracting parties' for which the countries are at
liberty to design their own specific laws. Such origin -related laws and regulations do not constitute
additional terms and conditions which must be recorded in the 2007 Schedule."1100 For India, "[t]he
equivalency of or the effect of difference betwe en (a) origin criteria inbuilt into Article II:1(a) and
II:1(b) of GATT; and (b) origin criteria spelt out in [the CEPA] could be a subject matter of provisions
contained elsewhere in the GATT 1994. Japan has not raised such claims in the present dispute."1101
Japan "fails to see the basis of India's arguments that the origin-related laws do not constitute terms
and conditions" and submits that "even if origin-related laws are inbuilt into the phrase 'products of
territories of other contracting parties' and do not constitute 'terms' or 'conditions' within the
meaning of Article II:1(b), first sentence of the GATT 1994, which Japan contests, this only applies
to non-preferential rules of origin."1102
7.448. We understand that, for India, origin requirement s, such as those set forth in CEPA Rules
2011, are "inbuilt" in the phrase "products of territories of other contracting parties" in Article II:1(b)
and, therefore, do not constitute "terms, conditions or qualifications" within the meaning of that
provision. Japan disputes India's proposed interpretation. The disagreement between the parties
appears to rest on whether origin requirements are encompassed in the phrase "products of
territories of other Members" in Article II:1(b), first sentence.
7.449. We note tha t it is uncontested that the origin requirements set forth in CEPA Rules 2011
constitute preferential rules of origin, and that India has no non-preferential rules of origin in place
for imports.1103 Keeping in mind the MFN nature of the obligations containe d in Articles II:1(a) and
(b), we do not see how the phrase "products of territories of other Members" in Article II:1(b) can
encompass preferential rules of origin such as those applied by India pursuant to CEPA Rules 2011.
In other words, even assuming t hat non-preferential rules of origin are "inbuilt" in the phrase

1098 See sections 7.4.2.2, 7.4.3.1, 7.4.4.1, and 7.4.5.2 above.
1099 See section 7.2 above.
1100 India's first written submission, para. 240. See also India's response to Panel question No. 57,
para. 60.
1101 India's second written submission, para. 126.
1102 Japan's second written submission, para. 273.
1103 India clarifies that:
India has no non-preferential rules of origin in place for imports entering the country. Ordinarily,
the country of origin is determined by the certificate of origin issued by the authorities of the
exporting country under the relevant rules of origin. In this context, India has Preferential Rules
of Origin for preferential imports under FTAs or under other preferential schemes like Duty Free
Tariff Preference (DFTP) scheme provided for the Least Developed Countries (LDCs). However, as
of now India has no Preferential Rules of Origin in place for imports.
(India's response to Panel question No. 89, para. 73)
According to Japan, "no specific non-preferential rules of origin apply in India" but India does use preferential
rules of origin in its free trade agreements, such as the CEPA. Japan also notes that India has notified the
Committee on Rules of Origin of the WTO that India does not have non-preferential rules of origin. (Japan's
response to Panel question No. 89, paras. 117-119 (referring to G/RO/N/1, 9 May 1995; India's Trade Policy
Review, WT/TPR/S/403, section 3.1.2)).

"products of territories of other Members" in Article II:1(b) – an issue which is not before us in this
dispute – nothing in the text of this provision indicates that preferential rules of origin, such as those
contained in CEPA Rules 2011, are "inbuilt" in that phrase. We consider, therefore, that the origin
requirements set forth in CEPA Rules 2011 are not encompassed in the phrase "products of territories
of other Members" in Article II:1(b), first sentence. To the extent that, pursuant to Notification No.
69/2011, products of Japan are required to comply with origin requirements set forth in CEPA Rules
2011 to be exempted from customs duty, it follows that Notification No. 69/2011 does not accord
unconditional duty-free treatment to products of Japan falling under the tariff items at issue in this
dispute.
7.450. As to India's argument that Japan has not raised a "claim" regarding the "equivalency of or
the effect of difference" between so -called "in-built" origin criteria in Article II:1 of the GATT 1994
and the origin rules applied under the CEPA, we agree that Japan has not raised a claim regarding
Notification No. 69/2011. Indeed, Japan's arguments concerning Notification No. 69/2011 are merely
in response to India's arguments that Notification No. 69/2011 "negates" Japan's claim. 1104 In our
view, it is insufficient for India, as the respondent seeking to demonstrate that the measures at issue
are not WTO-inconsistent, to merely identify the existence of a legal instrument and assert that the
complainant, who based no claims on that legal instrument, has failed to demonstrate that that
instrument is WTO-inconsistent. Thus, we do not consider that Japan's alleged failure to demonstrate
any "distincti on" between the CEPA Rules 2011 and the phrase "products of territories of other
Members" in Article II:1(b) means that Japan has failed to substantiate its burden of proof under
Articles II:1(a) and (b) of the GATT 1994 with respect to the challenged measures.
7.451. We recall that, pursuant to Articles II:1(a) and (b), India has the obligation to grant
unconditional duty-free treatment on an MFN basis to all products covered by the tariff items at
issue, including all such products of Japan, as set forth in its WTO Schedule. We have found that the
origin requirements set forth in CEPA Rules 2011 constitute preferential rules of origin and are not
"inbuilt" in the phrase "products of territories of other Members" in Article II:1(b), first sentence, of
the GATT 1994. To the extent that the products of Japan falling under the tariff items at issue are
required to comply with such origin requirements to be exempted from customs duties, those
products of Japan are not accorded unconditional duty-free treatment.
7.452. Accordingly, we find that India has not established that, pursuant to Notification No.
69/2011, it is acting consistently with its WTO obligations under Articles II:1(a) and (b), because
Notification No. 69/2011 does not grant unconditional duty -free treatment to all products of Japan
at issue in this dispute.
8 CONCLUSIONS AND RECOMMENDATIONS
8.1. For the reasons set forth in this Report, we conclude as follows:
a. In respect of India's assertions concerning its WTO tariff commitments, we find that:
i. The ITA is not a covered agreement within the meaning of the WTO Agreement and
the DSU, does not set forth India's legal obligations at issue in this dispute, and 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 Japan acted inconsistently with the 1980 Decision is
not within our terms of reference, and we consequently do not have the legal mandate
to make such findings.
b. In respect of Japan's claims that India's tariff treatment of certain products is inconsistent
with Articles II:1(a) and (b) of the GATT 1994, we find that:

1104 India's second written submission, para. 125.

i. India's tariff treatment of products falling within the scope of tariff items 8517.12.11
and 8517.12.19 of India's First Schedule at the time of the Panel's establishment, and
which presently fall within the scope of tariff items 8517.13.00 and 8517.14.00 of
India's First Schedule, is inconsistent with Articles II:1(a) and (b) of the GATT 1994;
ii. India's tariff treatment of products falling within the scope of tariff item 8517.61.00 of
India's First Schedule is inconsistent with Articles II:1(a) and (b) of the GATT 1994;
iii. India's tariff treatment of certain products falling within the scope of tariff item
8517.62.90 of India's First Schedule is inconsistent with Articles II:1(a) and (b) of the
GATT 1994;
iv. India's tariff treatment of certain products falling within the scope of tariff items
8517.70.10 and 8517.70.90 of India's First Schedule at the time of the Panel's
establishment, and which presently fall within the scope of tariff items 8517.71.00,
8517.79.10, and 8517.79.90 of India's First Schedule, is inconsistent with
Articles II:1(a) and (b) of the GATT 1994;
v. India's tariff treatment of products cla ssified under tariff item 8517.12.90 of India's
First Schedule at the time of the Panel's establishment, and which presently fall within
the scope of tariff item 8517.14.00 is consistent with Articles II:1(a) and (b) of the
GATT 1994;
vi. Japan has failed to d emonstrate that, even where India accords products at issue
treatment that is consistent with Article II:1(b) of the GATT 1994, the measures at
issue in this dispute accord treatment less favourable than that set forth in India's
WTO Schedule, inconsistent with Article II:1(a) of the GATT 1994, on the ground that
India's customs notifications lack foreseeability or predictability, thus affecting
conditions of competition for traders; and
vii. India has failed to establish that Notification No. 69/2011 brings India into compliance
with its WTO obligations pursuant to Articles II:1(a) and (b) of the GATT 1994.
8.2. Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. We conclude that, to the extent that the measures at issue are
inconsistent with Articles II:1(a) and (b) of the GATT 1994, they have nullified or impaired benefits
accruing to Japan under that agreement.
8.3. Pursuant to Article 19.1 of the DSU, we recommend that India bring its measures into
conformity with its obligations under Articles II:1(a) and (b) of the GATT 1994.