INDIA – TARIFF TREATMENT ON CERTAIN GOODS IN THE INFORMATION AND COMMUNICATIONS TECHNOLOGY SECTOR
Document: REPORT OF THE PANEL
Date: 17 April 2023
Document codes: WT/DS582/R
Complainant: EU
Respondent: India
Third parties: Brazil, Canada, China, Indonesia, Japan, South Korea, Norway, Pakistan, Russia, Singapore, Taiwan, Thailand, Turkey, Ukraine, U.S.
Dispute stage: Panel
Agreements cited: Art. II:1(a), II:1(b)  GATT 1994

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

REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures concerning meetings with remote participation for the
first substantive meeting
11
Annex A-3 Additional Working Procedures concerning meetings with remote participation for the
second substantive meeting
14
ANNEX B
ARGUMENTS OF THE PARTIES
EUROPEAN UNION
Contents Page
Annex B-1 First integrated executive summary of the arguments of the European Union 18
Annex B-2 Second integrated executive summary of the arguments of the European Union 26

INDIA
Contents Page
Annex B-3 First integrated executive summary of the arguments of India 31
Annex B-4 Second integrated executive summary of the arguments of India 44
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 53
Annex C-2 Integrated executive summary of the arguments of Canada 55
Annex C-3 Integrated executive summary of the arguments of Japan 58
Annex C-4 Integrated executive summary of the arguments of the Republic of Korea 63
Annex C-5 Integrated executive summary of the arguments of Norway 66
Annex C-6 Integrated executive summary of the arguments of Singapore 67
Annex C-7 Integrated executive summary of the arguments of Chinese Taipei 69
Annex C-8 Integrated executive summary of the arguments of Türkiye 72
Annex C-9 Integrated executive summary of the arguments of Ukraine 76
Annex C-10 Integrated executive summary of the arguments of the United States 78
ANNEX D
COMMUNICATIONS BY THE PANEL CONCERNING THE SUBSTANTIVE MEETINGS
Contents Page
Annex D-1 Panel's communication to the parties (31 March 2021) 84
Annex D-2 Panel's communication to the parties (21 April 2021) 85
Annex D-3 Panel's communication to the parties (31 August 2021) 88
Annex D-4 Panel's communication to the parties (20 September 2021) 91
ANNEX E
OTHER DECISIONS BY THE PANEL
Contents Page
Annex E-1 Panel's decision on requests for enhanced third-party rights 94
Annex E-2 Panel's decision on India's preliminary objection and preliminary ruling request 95

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
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated
Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I,
p. 167
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 – 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 – 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
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

Short Title Full Case Title and Citation
EC and certain member States –
Large Civil Aircraft
Panel Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/R,
adopted 1 June 2011, as modified by Appellate Body Report
WT/DS316/AB/R, DSR 2011:II, p. 685
EU – 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 – Autos Panel Report, India – Measures Affecting the Automotive Sector,
WT/DS146/R, WT/DS175/R, and Corr.1, adopted 5 April 2002, DSR
2002:V, p. 1827
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical
and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16
January 1998, DSR 1998:I, p. 9
India – Quantitative Restrictions Panel Report, India – Quantitative Restrictions on Imports of
Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22
September 1999, upheld by Appellate Body Report WT/DS90/AB/R,
DSR 1999:V, p. 1799
India – Solar Cells Panel Report, India – Certain Measures Relating to Solar Cells and
Solar Modules, WT/DS456/R and Add.1, adopted 14 October 2016, as
modified by Appellate Body Report WT/DS456/AB/R, DSR 2016:IV,
p. 1941
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation
of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR
2003:IX, p. 4391
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on
Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12
January 2000, DSR 2000:I, p. 3
Korea – Procurement Panel Report, Korea – Measures Affecting Government Procurement,
WT/DS163/R, adopted 19 June 2000, DSR 2000:VIII, p. 3541
Mexico – Taxes on Soft Drinks Appellate Body Report, Mexico – Tax Measures on Soft Drinks and
Other Beverages, WT/DS308/AB/R, adopted 24 March 2006, DSR
2006:I, p. 3
Russia – Tariff Treatment Panel Report, Russia – Tariff Treatment of Certain Agricultural and
Manufacturing Products, WT/DS485/R, Add.1, Corr.1, and Corr.2,
adopted 26 September 2016, DSR 2016:IV, p. 1547
Russia – Traffic in Transit Panel Report, Russia – Measures Concerning Traffic in Transit,
WT/DS512/R and Add.1, adopted 26 April 2019
Thailand – Cigarettes (Philippines) Appellate Body Report, Thailand – Customs and Fiscal Measures on
Cigarettes from the Philippines, WT/DS371/AB/R, adopted 15 July
2011, DSR 2011:IV, p. 2203
Turkey – Textiles Panel Report, Turkey – Restrictions on Imports of Textile and
Clothing Products, WT/DS34/R, adopted 19 November 1999, as
modified by Appellate Body Report WT/DS34/AB/R, DSR 1999:VI, p.
2363
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain
Products from the European Communities, WT/DS165/AB/R, adopted
10 January 2001, DSR 2001:I, p. 373
US – COOL Panel Reports, United States – Certain Country of Origin Labelling
(COOL) Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July
2012, as modified 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 – Countervailing Measures
(China)
Appellate Body Report, United States – Countervailing Duty Measures
on Certain Products from China, WT/DS437/AB/R, adopted 16
January 2015, DSR 2015:I, p. 7

Short Title Full Case Title and Citation
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign
Sales Corporations", WT/DS108/AB/R, adopted 20 March 2000, DSR
2000:III, p. 1619
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales
Corporations", WT/DS108/R, adopted 20 March 2000, as modified by
Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, p. 1675
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign
Sales Corporations" – Recourse to Article 21.5 of the DSU by the
European Communities, WT/DS108/AB/RW, adopted 29 January
2002, DSR 2002:I, p. 55
US – Large Civil Aircraft (2nd
complaint)
Panel Report, United States – Measures Affecting Trade in Large Civil
Aircraft (Second Complaint), WT/DS353/R, adopted 23 March 2012,
as modified by Appellate Body Report WT/DS353/AB/R, DSR 2012:II,
p. 649
US – Washing Machines Panel Report, United States – Anti-Dumping and Countervailing
Measures on Large Residential Washers from Korea, WT/DS464/R
and Add.1, adopted 26 September 2016, as modified by Appellate
Body Report WT/DS464/AB/R, DSR 2016:V, p. 2505
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of
Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted
23 May 1997, and Corr.1, DSR 1997:I, p. 323

LIST OF FREQUENTLY CITED EXHIBITS
Panel Exhibit Short Title
(where applicable) Full Title
Exhibit EU-2 Customs Act 1962 The Customs Act, 1962, Act No. 52 of 1962 (13 December
1962)
Exhibit EU-3 Customs Tariff Act
1975
The Customs Tariff Act, 1975, No. 51 of 1975 (18 August
1975)
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.)
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.)
Exhibit EU-6 Hon'ble CESTAT, Cipla Ltd. v. Commissioner of Customs,
2007 (218) ELT 547 (Tri. – Chennai)
Exhibit EU-7 Hon'ble CESTAT, Burroughs Wellcome (I) Ltd. v.
Commissioner of Central Excise, 2007 (216) ELT 522 (Tri. –
Chennai)
Exhibit EU-9 Notification No.
24/2005
Notification No. 24/2005 (1 March 2005)
Exhibit EU-10 Notification No.
25/2005
Notification No. 25/2005 (1 March 2005)
Exhibit EU-11 Notification No.
67/2017
Notification No. 67/2017 (14 July 2017)
Exhibit EU-12 Notification No.
57/2017
Notification No. 57/2017 (30 June 2017)
Exhibit EU-13 Notification No.
22/2018
Notification No. 22/2018 (2 February 2018)
Exhibit EU-14 Notification No.
23/2019
Notification No. 23/2019 (6 July 2019)
Exhibit EU-15 Finance Act 2018 The Finance Act, 2018, No. 13 of 2018 (28 March 2018)
Exhibit EU-16 Notification No.
02/2019
Notification No. 02/2019 (29 January 2019)
Exhibit EU-19 Finance Act 2019 The Finance (No. 2) Act, 2019, No. 23 of 2019 (1 August
2019)
Exhibit EU-24 Notification No.
133/2006
Notification No. 133/2006 (31 December 2006)
Exhibit EU-28 Finance Act 2020 The Finance Act, 2020, No. 12 of 2020 (27 March 2020)
Exhibit EU-29 Notification No.
38/2018
Notification No. 38/2018 (2 April 2018)
Exhibit EU-30 Notification No.
76/2018
Notification No. 76/2018 (11 October 2018)
Exhibit EU-31 Notification No.
02/2020
Notification No. 02/2020 (2 February 2020)
Exhibit EU-34 Notification No.
50/2017
Notification No. 50/2017 (30 June 2017)
Exhibit EU-35 Notification No.
36/2018
Notification No. 36/2018 (2 April 2018)
Exhibit EU-40 Constitution of India
2015
The Constitution of India, Government of India (9 November
2015)
Exhibit EU-41 Rules of Procedure in
Lok Sabha
Rules of Procedure and Conduct of Business in Lok Sabha,
15th edn, (Lok Sabha Secretariat, 2014)
Exhibit EU-42 Notification No.
6/2018
Notification No. 6 /2018 (2 February 2018)
Exhibit EU-43 "Draft Articles on the Law of Treaties with commentaries" in
Yearbook of the International Law Commission (1966), Vol.
II, Commentary to Article 45
Exhibit EU-44 WCO, HS Committee
document 41.337 E
World Customs Organization, Harmonized System Committee
document 41.337 E (19 August 1997)
Exhibit EU-45 WCO, HS Committee
document 42.034 E
World Customs Organization, Harmonized System Committee
document 42.034 E (30 January 1998)
Exhibit EU-46 WCO, HS Committee
document 42.100 E
World Customs Organization, Harmonized System Committee
document 42.100 E (31 March 1998)
Exhibit EU-49 Notification No.
36/2019
Notification No. 36/2019 (30 December 2019)
Exhibit EU-51 HS2002 Explanatory
Notes to Chapter 85
World Customs Organization, Harmonized System
Nomenclature 2002 Explanatory Notes to Section XVI,
Chapter 85

Panel Exhibit Short Title
(where applicable) Full Title
Exhibit EU-54 General Rules for the
Interpretation of the
Harmonized System
World Customs Organization, General Rules for the
Interpretation of the Harmonized System
Exhibit EU-55 WCO, Classification
Opinion on
"smartphones" (2018)
World Customs Organization, Classification Opinion on
"smartphones" (2018)
Exhibits EU-56,
IND-9
HS2007 Section Notes
to Section XVI
World Customs Organization, Harmonized System
Nomenclature 2007, Section Notes to Section XVI
Exhibit EU-59 First Schedule as of
2016/2017
First Schedule to India's Customs Tariffs Act, Consolidated
Version 2016/2017
Exhibit EU-60 World Customs Organization, Classification Opinions on
subheading 8517.62 (2015)
Exhibit IND-2 International Court of Justice, Case concerning Sovereignty
over Certain Frontier Land (Belgium v. Netherlands),
Judgment of 20 June 1959: ICJ Reports 1959, p. 209
Exhibit IND-3 International Court of Justice, Case concerning the Temple of
Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15
June 1962: ICJ Reports 1962, p. 6
Exhibit IND-6 HS1996 Explanatory
Notes to Heading
8525
World Customs Organization, Harmonized System
Nomenclature 1996 Explanatory Notes, 2nd edn (1996),
Heading 8525
Exhibit IND-8 HS2007 Explanatory
Notes to Heading
8517
World Customs Organization, Harmonized System
Nomenclature 2007 Explanatory Notes, 4th edn (2007),
Heading 8517
Exhibit IND-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-39 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
Exhibit IND-40 Notification No. 25/2005 (1 March 2005) as amended by
Notification Nos. 133/2006, 26/2007, 15/2012, 67/2017,
39/2018, 23/2019, 36/2019 and 07/2020
Exhibit IND-41 Notification No. 50/2017 (30 June 2017) as amended by
Notification Nos. 76/2017, 92/2017, 6/2018, 29/2018,
32/2018, 40/2018, 72/2018, 03/2019, 25/2019, 30/2019,
31/2019, 37/2019, 01/2020, 35/2020, 42/2020 and 02/2021
Exhibit IND-42 Notification No. 57/2017 (30 June 2017) as amended by
Notification Nos. 22/2018, 37/2018, 69/2018, 75/2018,
02/2019, 24/2019 and 02/2020
Exhibit IND-50 Email from IDB, WTO,
to India (8 November
2013)
Email correspondence dated 8 November 2013 from IDB,
WTO, to the Permanent Mission of India to the WTO,
Subject: "HS2007 transposition file: India"
Exhibit IND-51 Email from Market
Access Intelligence
Section, WTO, to
India (12
February 2014)
Email correspondence dated 12 February 2014 from Market
Access Intelligence Section, WTO, Senior Statistical Officer,
to the Permanent Mission of India to the WTO, Subject: "RE:
HS2007 transposition file . India"
Exhibit IND-54 Notification No.
3/2021
Notification No. 3/2021 (1 February 2021)
Exhibit IND-57 HS2017 Explanatory
Notes to Heading
8518
World Customs Organization, Harmonized System
Nomenclature 2017 Explanatory Notes, 4th edn (2017),
Heading 8518
Exhibit IND-59 HS2017 Explanatory
Notes to Heading
8517
World Customs Organization, Harmonized System
Nomenclature 2017 Explanatory Notes, 4th edn (2017),
Heading 8517
Exhibit IND-66 Finance Act 2021 The Finance Act 2021, No. 13 of 2021
Exhibit IND-73 Notification No.
15/2022
Notification No. 15/2022 (1 February 2022)
Exhibit IND-78 India's rectification
request,

Rectification and Modification of Schedules, Schedule XII -
India, Communication to the Secretariat (25 September
2018), G/MA/TAR/RS/572
Exhibit IND-79 Prof. M. Waibel, Legal
Opinion on Error
Prof. M. Waibel's Legal Opinion on Error and Curriculum Vitae
Exhibit IND-81 Circular No. 04/2022 (27 February 2022)

Panel Exhibit Short Title
(where applicable) Full Title
Exhibit IND-82 Indian Wireless
Telegraphy Act 1933
The Indian Wireless Telegraphy Act 1933, No. 17 of 1933
Exhibit IND-83 Notification No. 71 (25 September 1953)
Exhibit IND-85 Cambridge Advanced Learner's Dictionary online, definition
of "impair"
https://dictionary.cambridge.org/dictionary/english/impair
(accessed 22 May 2022)
Exhibit IND-87 Chapter 85 of the
HS2022
World Customs Organization, Harmonized System
Nomenclature, 7th edn (2022), Chapter 85
Exhibit IND-88 World Customs Organization, Harmonized System
Committee, 49th Session, "Classification of the Machines
Commercially Referred to as 'Tablet Computers'" (13
February 2012) document NC1730E1a; and World Customs
Organization, Harmonized System Committee, 50th Session,
"Possible Amendments to the Compendium of Classification
Opinions and Explanatory Notes arising from the Decisions
taken by the Committee at its 49th Session" (19 July 2012)
document NC1775E1a
Exhibit IND-89 Notification No.
57/2021
Notification No. 57/2021 (29 December 2021)
Exhibit IND-90 Notification No.
02/2022
Notification No. 02/2022 (1 February 2022)
Third-party
Exhibits JPN-22,
TPKM-6
Provisional Collection
of Taxes Act 1931
The Provisional Collection of Taxes Act, 1931, Act No. 16 of
1931 (28 September 1931)
Third-party Exhibit
JPN-4
Letter from Japan to
India (9 November
2018)
Letter dated 9 November 2018 from the Permanent Mission
of Japan to the Permanent Mission of India, Rectification and
Modification of Schedule (India's WTO Schedule XII)
Third-party Exhibit
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 1996 Customs (Import of Goods at Concessional Rate of Duty for Manufacture of
Excisable Goods) Rules, 1996
Customs Rules 2017 Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017
Customs Tariff Act 1975 The Customs Tariff Act, 1975, No. 51 of 1975 (18 August 1975)
General Council Decision
on HS2002 Transposition
Procedures
General Council Decision of 18 July 2001 on Concessions under the Harmonized
Commodity Description and Coding System, A Procedure for Introduction of
Harmonized System 2002, Changes To Schedules of Concessions, WT/L/407
General Council Decision
on HS2007 Transposition
Procedures
General Council Decision of 15 December 2006 on A Procedure for the
Introduction of Harmonized System 2007 Changes to Schedules of Concessions
Using the Consolidated Tariff Schedules (CTS) Database, WT/L/673
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT General Agreement on Tariffs and Trade
GATT 1947 General Agreement on Tariffs and Trade 1947
GATT 1994 General Agreement on Tariffs and Trade 1994
HS Harmonized System
HS1996 Harmonized System Nomenclature 1996 Edition
HS2002 Harmonized System Nomenclature 2002 Edition
HS2007 Harmonized System Nomenclature 2007 Edition
HS2017 Harmonized System Nomenclature 2017 Edition
HS2022 Harmonized System Nomenclature 2022 Edition
ICJ International Court of Justice
ICT Information communication technology
India's WTO Schedule Schedule XII – India
ITA Ministerial Declaration on Trade in Information Technology Products,
WT/MIN(96)/16
ITA Expansion Ministerial Declaration on the Expansion of Trade in Information Technology
Products, WT/MIN(15)/25
PCBA Printed circuit board assembly
PCIJ Permanent Court of International Justice
Transposition Note Email correspondence dated 8 November 2013 from IDB, WTO, to the
Permanent Mission of India to the WTO, Subject: "HS2007 transp osition 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 the European Union
1.1. On 2 April 2019, the European Union requested consultations with India pursuant to Articles 1
and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)
and Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) with respect to
the measures and claims set out below.1
1.2. Consultations were held on 21 May 2019 but failed to resolve the dispute.
1.2 Panel establishment and composition
1.3. On 17 February 2020, the European Union requested the establishment of a panel pursuant to
Article 6 of the DSU with standard terms of reference. 2 At its meeting on 29 June 2020, the
Dispute Settlement Body (DSB) established a panel pursuant to the request of the European Union
in document WT/DS582/9, 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 ma tter referred to the DSB by the European Union in
document WT/DS582/9 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, Indonesia, Japan, the R epublic of Korea, Norway, Pakistan, the
Russian Federation, Singapore, Chinese Taipei, Thailand, Türkiye5, Ukraine, and the United States
notified their interest in participating in the Panel proceedings as third parties.
1.6. On 19 August 2020 , the European Union requested the Director -General to determine the
composition of the panel, pursuant to Article 8.7 of the DSU . On 31 August 2020, the
Director-General accordingly composed the Panel as follows:
Chairperson: Mr Paul O'CONNOR

Members: Ms Samantha ATAYDE ARELLANO
 Mr Fabián VILLARROEL RÍOS

1.3 Panel proceedings
1.3.1 General
1.7. The Panel held an organizational meeting with the parties on 19 November 2020.6
1.8. The Panel adopted its Working Procedures 7 and timetable8 on 4 December 2020, after
consulting with the parties.
1.9. The European Union submitted its first written submission on 28 January 2021. India submitted
its first written submission on 8 April 2021.

1 WT/DS582/1.
2 WT/DS582/9.
3 Dispute Settlement Body, Minutes of the meeting held on 29 June 2020, WT/DSB/M/442, p. 13.
4 WT/DS582/10.
5 Formerly "Turkey". (See WT/INF/43/Rev.23).
6 For more details regarding the organizational phase of the dispute, see section 1.3.2 below.
7 The Panel revised its Working Procedures on 27 January 2021.
8 The Panel's timetable was revised on 4 May 2021, 26 October 2021, 28 April 2022, 30 September
2022 and 6 February 2023.

1.10. On 22 April 2021, the Panel received third -party submissions from Brazil, Canada , Japan,
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 parties9
submitted their written responses on 20 September 2021.
1.12. The Panel held its first substantive meeting with the parties in virtual format on 5 -6 October
2021.10 Prior to the meeting, the Panel sent the parties a list of questions to be an swered orally at
the meeting.11 A joint session with the third parties in this dispute and in the other two disputes in
which the same panelists had been appointed 12 took place in virtual format on 13 October 2021.
Following these meetings, the Panel sent written questions to the parties and third parties on
18 October 2021. The parties and third parties sent their written responses on 24 November 2021.
1.13. The parties submitted their second written submissions on 15 February 2022.
1.14. The Panel held its second substantive meeting with the parties on 29-30 March 2022 in hybrid
format.13 Prior to the substantive meeting, the Panel sent the parties a list of questions to be
answered orally at the meeting. Following the meeting, the Panel sent written questions to the
parties. Written responses to these questions were received on 23 May 2022, and comments on the
other party's responses were received on 21 June 2022.
1.15. On 5 July 2022, the Panel issued the descriptive part of its Report to the parties. The parties
provided written comments on 26 July 2022.
1.16. The Panel issued its Interim Report to the parties on 28 October 2022 and its Final Report on
27 February 2023.
1.3.2 Organizational phase - Working Procedures and timetable
1.17. On 16 October 2020, noting that the same panelists served on India – Tariffs on ICT Goods
(EU) (DS582), India – Tariffs on ICT Goods (Japan) (DS584), and India – Tariffs on ICT Goods
(Chinese Taipei) (DS588), and mindful of Article 9.3 of the DSU, the Panel sent a pre-organizational
meeting questionnaire to the parties seeking their views on how to set up the timetable and working
procedures in the three disputes.14 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 the European Union agreed to have a single joint organizational meeting for the three
disputes in which the same panelists had been appointed 15, India requested that consecutive
separate organizational meetings be held for each dispute.16
1.19. Additionally, the European Union considered that the Panel should hold joint substantive
meetings for the three disputes, as in the case of a single panel under Article 9.1 of the DSU, and a
joint third -party session. Should the Panels decide not to hold joint substantive meetings, the
European Union considered that "those third parties which are a complainant in one of the other two

9 Brazil, Canada, Japan, Korea, Chinese Taipei, Türkiye, Ukraine, and the United States provided
responses to the Panel.
10 For details regarding the organization of the first substantive meeting by remote means, see
section 1.3.3.1 below.
11 Panel's communication to the parties (29 September 2021).
12 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).
13 For details regarding the organization of the second substantive meeting in hybrid format, see
section 1.3.3.2 below.
14 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.
15 European Union's communication (22 October 2020).
16 India's communication (22 October 2020).

proceedings must be accorded enhanced third party rights in the two other proceedings, including
the right to attend the entire substantive meeting." The European Union further indicated that
"[p]ursuant to Article 9.3 of the DSU, 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 the European Union, documents submitted by the parties to the Panel
as well as questions from the Panel to the parties should be shared with the parties in the other two
disputes.17
1.20. India stated that "the three disputes invo lve 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 meeti ngs 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, consol idated 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.18
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 Tr ade 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 w eeks the deadline to submit comments on the other party's responses to the
pre-organizational meeting questionnaire. 19 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. 20 The parties submitted their comments on each
other's responses to the pre -organizational meeting questionnaire on 10 November 2020. On
19 November 2020, the Panel held an organizational meeting with the parties.21
1.22. The Panel adopted its Working Procedures and timetable on 4 December 2020. 22 In its
communication transmitting the Working Procedures and timetable to the parties, the Panel indicated
that it had noted the parties' agreement as well as differences of views regarding the conduct of the
proceedings in this dispute and in the other two disputes in which the same panelists had been
appointed. In taking its decisions in relation to the Working Procedures and timetable, the Panel
endeavoured to balance the efficient conduct of the proceedings with the parties' due process rights
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
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.23

17 European Union's communication (22 October 2020).
18 India's communication (22 October 2020), p. 1.
19 India's communication (26 October 2020).
20 Panel's communication to the parties (26 October 2020).
21 The Panel held separate consecutive organizational meetings in DS582, DS584, and DS588.
22 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.
23 Panel's communication to the parties (4 December 2020).

1.3.3 Format of the substantive meetings
1.23. The COVID-19 pandemic disrupted the work of the Panel, contributing to delays in the
proceedings. Moreover, restrictions related to COVID-19, in particular on international travel, obliged
the Panel to modify the format of the substantive meetings. This section provides an overview of
the process leading to the Panel's decision to conduct its first and second substantive meetings in
virtual and hybrid format, respectively.
1.3.3.1 Format of the first substantive meeting
1.24. The first substa ntive meeting of the Panel was initially scheduled for 1-2 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 substantiv e
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.24
1.25. The European Union agreed with the Panel's proposed arrangements for the first substantive
meeting and third-party session.25 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".26
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.27 On the same
date, t he Panel also invited the third parties to express their views on the parties' comments
regarding the Panel's communication of 31 March 2021.28
1.27. The European Union submitted that the Panel "has the ultimate power to decide on procedural
matters as per Article 12.1 and 2 of the DSU, even where the parties are unable to come to an
agreement on this matter and it should exercise that power in a way that ensure s both respect of
due process and the prompt settlement of the dispute ". For the European Union , online hearings
were "perfectly possible from a technical perspective and there are several precedents for the
participation of panelists in WTO proceedings via remote video/audio communication tools ".
Furthermore, "[v] ideoconferencing enable s effective communication, avoid s unnecessary delays,
keeps people safe in troubled pandemic times, and reduce s CO2 emissions." Finally, the European
Union observed that online hearings were widely employed by domestic courts, as a temporary
measure during the pandemic, including by the European Court of Justice , the US Supreme Court,
the International Court of Justice, and the Supreme Court of India. Given the unpredictable nature
of the COVID-19 pandemic, the European Union considered that it was crucial to prevent any further
delays in the timetable.29
1.28. India informed the Panel that , since submitting its comments on 12 April 2021, India had
"witnessed a surge of 42% in positive [COVID-19] cases in a period of just 5 days". India reiterated
that it was "not in a position to participate in full-fledged dispute settlement proceedings … through
remote participation". India drew attention to several ongoing panel proceedings where the panels
had decided to postpone the substantive meeting due to the COVID -19 pandemic. India submitted

24 Panel's communication to the parties (31 March 2021). A copy of this communication can be found in
Annex D-1 of the Report.
25 European Union's communication (7 April 2021).
26 India's communication (12 April 2021).
27 Panel's communication to the parties (13 April 2021).
28 Panel's communication to the third parties (13 April 2021).
29 European Union's communication (16 April 2021).

that "a virtual meeting format without the consent of all parties would be inconsistent with Article 3.1
and 3.2" of the DSU and that "[t]he margin of discretion held by panels under Article 12.1 does not
extend to modifying 'substantive provisions' of the DSU." For India, "the manner in which domestic
judicial proceedings are conducted is not germane to the issue before the Panel." India reiterated
its concerns regarding security and confidentiality of the proceedings, as well as the difficulty of
extending technical support to members of its delegation who were working remotely. India
considered that the Panel could not "amend the working procedures and conduct the first substantive
meeting in virtual format as it would modify substantive provisions of the DSU and impair the
respondent's due process rights."30
1.29. On 16 April 2021, Canada, China, Japan, 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 COVID -19 cases in India, the Panel deemed it appropriate to postpone
the first substantive meeting in this dispute, and in the other two disputes in which the same three
panelists had been appointed, until the weeks of 4 and 11 October 2021. The Panel further indicated
that it would confirm the format of the first substantive meeting by 31 August 2021.31
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 third -party session would be
conducted in virtual format on 5-6 and 13 October 2021, respectively.32 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 sub stantive meeting in a virtual format. 33 On the same date, the Panel adopted Additional
Working Procedures concerning meetings with remote participation for the first substantive
meeting.34
1.3.3.2 Format of the second substantive meeting
1.33. On 22 February 2022, noting that measures related to COVID-19 had been relaxed in certain
parts of the world, the Panel sent a communication to the parties enquiring about the feasibility of
an in -person meeting in Geneva. The Panel invited the parties to indicate whether, taking into
consideration remaining restrictions on international travel and their more general policy on official
travel, the parties would be in a position to attend the second substantive meeting in person at the
WTO premises on 29-30 March 2022. In light of the Panel's decision to hold separate 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 seco nd substantive
meetings. To th at end, the Panel copied its communication to the representatives of the
complainants in DS584 and DS588 and asked that the parties do so as well when conveying their
views.35

30 India's communication (16 April 2021) (quoting Appellate Body Report, India – Patents (US),
para. 92).
31 Panel's communication to the parties (21 April 2021). A copy of this communication can be found in
Annex D-2 of the Report.
32 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.
33 Panel's communication to the parties (20 September 2021). A copy of this communication can be
found in Annex D-4 of the Report.
34 The Panel's Additional Procedures for the first substantive meeting can be found in Annex A-2 of the
Report.
35 Panel's communication to the parties (22 February 2022).

1.34. The European Union confirmed that its representatives would attend the second substantive
meeting in person at the WTO premises on 29-30 March 2022.36
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.37
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 38, 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. 39 On 18 March 2022, the Panel
adopted Additional Working Procedures concerning meetings with remote participati on for the
second substantive meeting.40
1.3.4 Requests for enhanced third-party rights
1.37. On 22 and 23 December 2020, the Panel received requests for enhanced third -party rights
from Chinese Taipei and Japan, respectively. Japan 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 the Panel with the parties; (iii) to be allowed to make oral statements, to orally reply to
questions, and to ask questions to the parties or other third parties, as appropriate, in those
meetings; and (iv) to review the draft summary of their own arguments in the descriptive part of
the Panel Report.41
1.38. Japan and Chinese Taipei noted that enhanced third-party rights had been granted in previous
disputes to address "practical considerations arising from a third party's involvement as a party in a
parallel panel proceeding ".42 According to Japan and Chinese Taipei, their interest in the parallel
disputes extended beyond the "substantial' interest" in Article 10.2 of the DSU because of the ir
involvement as parties in, respectively, DS584 and DS588.43 Japan 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. 44
Japan and Chinese Taipei stated that they had "an exceptionally strong in terest 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 in a position to properly defend [their] interests during the
substantive meeting[s] in [their] own case[s]".45

36 European Union's communication (23 February 2022).
37 India's communication (25 February 2022).
38 Noting the rapidly changing situation concerning the COVID-19 pandemic and the resulting possibility
that not all members of Japan's delegation might be able to travel to Geneva, Japan suggested that the second
substantive meeting be held in a hybrid format. (Japan's communication in DS584 (25 February 2022)).
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)).
39 Panel's communication to the parties (2 March 2022).
40 The Panel's Additional Procedures for the second substantive meeting can be found in Annex A-3 of
the Report.
41 Japan's communication (23 December 2020), p. 1; Chinese Taipei's communication (22 December
2020), pp. 1-2.
42 Japan's communication (23 December 2020), pp. 1-2; 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.
43 Japan's communication (23 December 2020), p. 2; Chinese Taipei's communication (22 December
2020), p. 2.
44 Japan's communication (23 December 2020), p. 2; Chinese Taipei's communication (22 December
2020), p. 2.
45 Japan's communication (23 December 2020), p. 2; Chinese Taipei's communication (22 December
2020), pp. 2-3.

1.39. The Panel invited the parties and the other third parties to comment on the requests. While
the European Union agreed with the requests by Japan and Chinese Taipei46, India asked the Panel
to reject those requests.47
1.40. India stated that granting the enhanced third-party rights requested by Japan 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) and in order to avoid due process concerns. India submitted
that the only reason cited in the requests, (i.e. their status as a complainant in a parallel proceeding)
"cannot be the only factor on the basis of which such extraordinary rights may be granted" over the
objection of a party.48
1.41. According to India, a panel's discretion to grant enhanced third-party rights was circumscribed
by the relevant DSU provisions49 and by due process considerations. 50 In it self, 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 seeki ng such additional rights. 51 India submitted that, without
prejudice to the applicability of Article 9 of the DSU to this dispute and the other two disputes where
the same panelists were appointed, this provision "has been found to not address the question of
rights of third parties" in parallel disputes. 52 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." 53 The requests for
enhanced third-party rights "would inappropriately blur the distinction with the complainant".54 India
was of the view that the first two rights requested by Japan 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.55
1.42. China, the Russian Federation, Türkiye, and the United States, as third parties, provided
comments on the requests submitted by Japan and Chinese Taipei.56
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 di spute warrant[ed] the granting of certain enhanced
third-party rights to Japan 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

46 European Union's communications (11 January 2021).
47 India's communications (11 January 2021).
49 India's communications (11 January 2021), para. 5 (referring to Appellate Body Reports, India –
50 India's communications (11 January 2021), para. 5 (referring to Appellate Body Report, Thailand –
Cigarettes (Philippines), para. 147).
53 India's communications (11 January 2021), para. 9 (referring to Panel Report, US – Washing
Machines, para. 1.12).
54 India's communications (11 January 2021), para. 11 (referring to Panel Report, India – Quantitative
Restrictions, para. 5.95).
55 India's communications (11 January 2021), paras. 14-15.
56 China and Türkiye generally supported the requests while the United States opposed them. The
Russian Federation noted that, if granted, enhanced third-party rights should extend to all third parties.

those questions following the second substantive meeting." The Panel rejected the remainder of the
requests.57 On the same date, the Panel revised the Working Procedures to reflect its decision.58
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 firms, 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.59
1.45. The European Union indicated that it had no comments on the Panel's communication.60
1.46. India noted that the situation disclosed involved a WTO Member which was part of the
European Union when consultations took place, and which could exercise its right to join as a third
party in this dispute. 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 pa nelist's employer would avoid incurring any obligation or accepting any
benefit from the Member in question that could result in a direct or indirect conflict or give rise to
justifiable doubts as to the proper performance of the panelist's dispute settlem ent 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.61
1.47. In a communication sent to the parties on 12 February 2021, the Panel indicated that, in its
view, the information disclosed by the panelist concerned did not give rise to any direct or indirect
conflict of interest in respect of the subject matter of the proceedings, or to justifiable doubts
regarding that panelist's independence or impartiality. The Panel noted that, consistent with the
requirements in Section III of the Rules of Conduct for the DSU, the panelist concerned had
reiterated the undertaking 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 made a preliminary objection and requested a preliminary ruling, both
incorporated in its first written submission. In its preliminary objection, India claimed that the Panel's
composition had been determined in violation of Articles 8.6 and 8.7 of the DSU and requested that
the Panel dec line to exercise jurisdiction in this dispute. 62 In its preliminary ruling request, India
claimed that the European Union'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 the European Union to comment on India's preliminary
objection and preliminary ruling request . Third parties that wished to comment on these matters
were also invited to do so.

57 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)).
58 The revision concerned paragraphs 21bis and 30(d) of the Working Procedures.
59 Panel's communication to the parties (4 February 2021).
60 European Union's communication (5 February 2021).
61 India's communication (9 February 2021).
62 India's first written submission, paras. 21 and 238.
63 India's first written submission, para. 36.

1.50. On 23 June 2021, the Panel informed the parties that it intended to issue a communication
regarding India's preliminary objection and preliminary ruling request on 28 June 2021. On 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 the parties that, in light of India's communication, it would suspend the
issuance of the Panel's communication and invited the European Union to comment on India's
request.65
1.51. The European Union responded that it had a legitimate interest in obtaining a ruling from the
Panel on these fundamental questions promptly and requested the Panel to issue the preliminary
rulings requested by India as soon as possible.66
1.52. On 7 July 2021, the Panel issued a communication to the parties and third parties regarding
India's preliminary objection and preliminary ruling request.67
2 FACTUAL ASPECTS
2.1 The measures at issue
2.1. The European Union 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. 68 According to the European U nion, the
ICT products concerned fall within the scope of the following tariff items69 in India's WTO Schedule:
8504.40 ex02; 8517.12; 8517.61; 8517.62; 8517.70 ex01, ex02, and ex03; 8518.30 ex01; and
8544.42 ex01.70 The European Union identifies a number of legal instruments through which India
applies the alleged tariff treatment to products falling under these tariff items.71
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 impo rts of
goods into India are the Customs Act, 1962, Act No. 52 of 13 December 1962 (Customs Act 1962)72
and the Customs Tariff Act, 1975, Act No. 51 of 18 August 1975 (Customs Tariff Act 1975).73
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.74

64 India's communication (28 June 2021).
65 Panel's communications to the parties (28 and 29 June 2021).
66 European Union's communication (29 June 2021).
67 The Panel's decision can be found in Annex E-2 of the Report.
68 Request for the establishment of a panel by the European Union (European Union's panel request),

69 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. European Union's first written submission, para. 13; and India's
first written submission, para. 38). 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.
70 European Union's panel request, p. 1.
71 European Union's panel request. We address the parties' assertions regarding these legal instruments
in the context of assessing the merits of the European Union's claims in section 7 below.
72 Customs Act 1962, (Exhibit EU-2).
73 Customs Tariff Act 1975, (Exhibit EU-3).
74 Customs Act 1962, (Exhibit EU-2), section 12.

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.75
2.5. The First Schedule of the Customs Tariff Act 1975 sets out maximum duty rates leviable on
imports of goods into India. 76 The First Schedule is based o n the World Customs Organization's
(WCO's) Harmonized System (HS) Nomenclature.77 At the time of the Panel's establishment, India's
First Schedule was based on the HS Nomenclature 2017 Edition (HS2017). 78 Subsequently, during
the Panel proceedings, India a mended its First Schedule to align it with the HS Nomenclature
2022 Edition (HS2022).79
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.
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. 80
A Finance Bill becomes a Finance Act once passed by both Houses of Parliament and assented to by
the President.81
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

75 Customs Tariff Act 1975, (Exhibit EU-3), section 2.
76 The European Union put on record the 2016/2017 consolidated version of the First Schedule.
(First Schedule as of 2016/2017, (Exhibit EU-59)). The European Union also notes that the tariff duties
applicable to various products have changed over time, and therefore the consolidated version of the
First Schedule submitted by the European Union does not necessarily reflect the changes to those tariff rates.
(European Union's response to Panel question No. 100(b), para. 36). Moreover, in its third-party submission,
Japan notes that India has not officially published the First Schedule in a single document. However, according
to Japan, the latest First Schedule can be found in hard-copy format published by third-party publications, and
online on the website of the Central Board of Indirect Taxes and Customs (CBIC), Department of Revenue,
Ministry of Finance, India. (Japan's third-party submission, para. 25. See also Chinese Taipei's third-party
submission, para. 3.26). The parties to this dispute do not contest these assertions.
77 European Union's response to Panel question No. 99, para. 34; India's response to Panel question
No. 99, para. 37.
78 India's response to Panel question No. 26, para. 78. The European Union does not contest this
assertion.
79 India's second written submission, para. 105 (referring to Finance Act 2021, (Exhibit IND-66)). The
European Union does not contest this assertion.
80 European Union's first written submission, paras. 38-41. See also Chinese Taipei's third-party
submission, para. 3.27. India does not contest this assertion. Moreover, pursuant to Section 3 of the
Provisional Collection of Taxes Act, a Bill that provides for the imposition or increase of a customs duty may
enter into force the day after it is introduced to Parliament. Such Bill ceases to have force of law when it comes
into operation as an enactment. (Provisional Collection of Taxes Act 1931, (Japan's third-party Exhibit JPN-22 /
Chinese Taipei's third-party Exhibit TPKM-6), sections 3, 4(1), and 4(2)(a)).
81 The Constitution of India 2015, (Exhibit EU-40), Articles 109-122; Rules of Procedure in Lok Sabha,
(Exhibit EU-41), rule 219.

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).82
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.83 Such notifications may also
be rescinded by the Government at any time by subsequent notification.84
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
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.85
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 1962.86 The Government can also withdraw
exemptions issued under Section 25 at any time i f the "'public interest ' so demand[s] " and the
Government determines that the exemption does not require to be extended any further.87 In certain
instances, two exemption notifications or two di fferent 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.88

82 Customs Tariff Act 1975, (Exhibit EU-3), section 8.
83 Customs Tariff Act 1975, (Exhibit EU-3), 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."
84 Customs Tariff Act 1975, (Exhibit EU-3), 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)).
85 Customs Act 1962, (Exhibit EU-2), section 25(1).
86 European Union's first written submission, para. 55. India does not contest this assertion.
87 Hon'ble Supreme Court in the case of Kasinka Trading and ANR v. Union of India and ANR, 1994 (74)
ELT 782 (S.C.),(Exhibit EU-4), pp. 462-463).
88 Hon'ble Supreme Court in the case of Share Medical Care v. Union of India and ORS, 2007 (209)
ELT 321 (S.C.), (Exhibit EU-5); Hon'ble CESTAT, Cipla Ltd. v. Commissioner of Customs, 2007 (218) ELT 547
(Tri. – Chennai), (Exhibit EU-6); and Hon'ble CESTAT, Burroughs Wellcome (I) Ltd. v. Commissioner of Central
Excise, 2007 (216) ELT 522 (Tri. – Chennai), (Exhibit EU-7). See also European Union's response to Panel
question No. 24(b), paras. 70-71; and India's response to Panel question No. 78, paras. 62-63.

2.2.4 Conclusion
2.14. From the foregoing, and in light of the clarifications of the parties, we understand that, under
India's customs regime , the duty rates set out in the First Schedule are not necessarily the duty
rates applied to imported products. Rather, t he applied duty rate is based not only on the
First Schedule, but also on any relevant customs notifications which relate to the tariff item at
issue.89 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. 90 The HS nomenclature , which is established
under the HS Convention, is administered by the WCO.91 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.92
2.17. In the WTO, Members' Schedules are regularly up dated 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.93
2.18. On 13 December 1996, a number of WTO Members concluded the Ministerial Declaration on
Trade in Information Technology Products (ITA). India joined the ITA on 26 March 1997. The ITA
participants agreed among themselves to bind and eliminate customs duties and other duties and
charges of any kind, within the meaning of Article II:1(b) of the GATT 1994, with respect to certain
products.94 The Annex to the ITA requires that participants "shall incorporate" such measures into
their Schedules annexed to t he GATT 1994, and indicates that their Schedules should be modified

89 India's response to Panel question No. 27, para. 80, and No. 79, para. 67. The European Union refers
to the duties set out in the First Schedule as "basic customs duty (BCD) rate". (European Union's first written
submission, paras. 34-35, and 38). In its first written submission, India uses the term "BCD" to refer to the
duty rates set forth in the First Schedule. (See e.g. India's first written submission, paras. 149, 166, 173, and
185). 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. 79, para. 67). 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).
90 See e.g. India's response to Panel question No. 1, paras. 10-11.
91 India is a contracting party to the HS Convention. (Japan's third-party submission, para. 17;
Chinese Taipei's third-party submission, para. 3.24). This assertion is uncontested by the parties.
92 See e.g. General Council Decision of 18 July 2001 on Concessions under the Harmonized Commodity
Description and Coding System, A Procedure for Introduction of Harmonized System 2002, Changes to
Schedules of Concessions (General Council Decision on HS2002 Transposition Procedures), WT/L/407,
Attachment A, p. 2; General Council Decision of 15 December 2006 on A Procedure for the Introduction of
Harmonized System 2007 Changes to Schedules of Concessions Using the Consolidated Tariff Schedules (CTS)
Database (General Council Decision on HS2007 Transposition Procedures), WT/L/673, Annex 2, para. 7.
93 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).
94 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).

in accordance with the GATT Decision of 26 March 1980 on Procedures for Modification and
Rectification of Schedules of Tariff Concessions (1980 Decision).95 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 1997.96
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.97
2.20. In 2006, in preparation for the transposition of Members' Schedules from the HS2002 to the
HS Nomenclature 2007 Edition (HS2007) , the General Co uncil 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).98 Pursuant to that De cision, 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".99
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.100
2.22. Following receipt of the draft transposition files prepared by the WTO Secretariat, India
provided comments on the draft files .101 The Secretariat then communicated a revised file to India
for approval. 102 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.103 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.104
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".105 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.106 In its request, India stated that "[w]hile
transposing the HS2002 schedule to HS2007 schedule on the products concerned, errors occurred,

95 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.
96 WT/Let/181.
97 General Council Decision on HS2002 Transposition Procedures, WT/L/407.
98 General Council Decision on HS2007 Transposition Procedures, WT/L/673.
99 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.
100 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50).
101 Email from Market Access Intelligence Section, WTO, to India (12 February 2014), (Exhibit IND-51).
India did not provide comments or seek clarifications regarding the transposition of the tariff items at issue in
this dispute.
102 India's response to Panel question No. 19, paras. 60-61.
103 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India,
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.
104 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.
105 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-78), p. 1.
106 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-78),
Appendix 2, p. 3).

resulting in wrong bound tariff commitments on certain lines which were inadvertently included in
the Schedule." 107 According to India, "the various tariff subheadings for which India is seeking
rectification to its HS2007 Schedule" were not covered by the commitments in th e ITA, and "[t]he
new products became part of the schedule on account of the WCO transposition from HS2002 to
HS2007".108 India considered that the rectification did not alter its commitments "either under
GATT 1994 or the ITA[]"109, 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%".110
2.24. Several Members, including Canada111, China 112, the European Union 113, Japan 114,
Chinese Taipei115, Switzerland116, and the United States117 objected to India's proposed rectification
under the 1980 Decision. In light of these objections, and in accordance with the 1980 Decision118,
India's rectification request has not, to date, been certified.
2.25. In light of the foregoing, India's WTO Schedule presently indicates, inter alia, the following
tariff commitments119:

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

8504 Electrical transformers, static converters (for example, rectifiers) and
inductors.

8504.40 -Static converters
8504.40 02 --Static converters for automatic data processing machines and units thereof,
and telecommunication apparatus
0%
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%

107 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-78), p. 1.
108 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-78), Appendix 1, p. 2.
109 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-78), p. 1.
110 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-78), Appendix 1, p. 2.
111 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134, p. 40;
Committee on Market Access, Minutes of the meeting held on 11 November 2019, G/MA/M/71, para. 15.4.
112 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134,
para. 12.5; Committee of Participants on the Expansion of Trade in Information Technology Products, Minutes
of the meeting held on 14 May 2019, G/IT/M/70, para. 1.14.
113 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.
114 Letter from Japan to India (9 November 2018), (Japan's third-party Exhibit JPN-4); Council for Trade
in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133, para. 18.13.
115 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.
116 Council for Trade in Goods, Minutes of the meeting held on 11 and 12 April 2019, G/C/M/134,
para. 12.12.
117 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.
118 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).
119 WT/Let/181; WT/Let/1072.

Ex Description Bound
rate
8517.70.00 -Parts
8517.70.00 01 --Parts and accessories of the machines of heading 84.71: For populated PCBs 0%
8517.70.00 02 --Parts and accessories of the machines of heading 84.71: Other 0%
8517.70.00 03 --Other 0%
8518 Microphones and stands therefor; loudspeakers, whether or not mounted in
their enclosures; headphones and earphones, whether or not combined with a
microphone, and sets consisting of a microphone and one or more
loudspeakers; audio-frequency electric amplifiers; electric sound amplifier sets.

8518.30 -Headphones, earphones and combined microphone/speaker sets
8518.30 01 --Line telephone handsets 0%
8544 Insulated (including enamelled or anodised) wire, cable (including co -axial
cable) and other insulated electric conductors, whether or not fitted with
connectors; optical fibre cables, made up of individually sheathed fibres,
whether or not assembled with electric conductors or fitted with connectors.

8544.4 -Other electric conductors, for a voltage not exceeding 1,000 V:
8544.42 01 --Of a kind used for telecommunications 0%

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. The European Union requests the Panel to find that, by applying ordinary customs duties in
excess of the tariff bindings set forth in its WTO Schedule, with regard to products falling under the
tariff items identified by the European Union, India is acting inconsistently with its obligations under
Articles II:1(a) and (b) of the GATT 1994. 120 The European Union further requests, pursuant to
Article 19.1 of the DSU, that the Panel recommend that India bring its measures into conformity
with its WTO obligations.121
3.2. India requests the Panel to find that:
a. The products at issue are not covered under the ITA, and the HS2007 Schedule which was
certified in error included products not originally covered by the ITA122;
b. Since the products at issue are not covered under the ITA, the draft rectification circulated
by India is of a "purely formal character". 123 Therefore, the objection raised by the
European Union to the draft rectification was unfounded, contrary to paragraph 3 of the
1980 Decision, and impeded India's righ t to rectify its Schedule under the
1980 Decision124;
c. India is not imposing duties on the following imported products and is therefore acting in
line with its commitments under the ITA:
i. Line telephone handsets;
ii. Products falling under subheadings 8544.42 and 8544.49 of its WTO Schedule125; and
d. The commitments under the contested subheadings of India's WTO Schedule are invalid
due to "error" within the meaning of Article 48 of the Vienna Convention on the Law of
Treaties (Vienna Convention).126

120 European Union's first written submission, para. 175.
121 European Union's first written submission, para. 176.
122 India's first written submission, para. 239(c); second written submission, para. 168 (b).
123 India's first written submission, para. 239(d); second written submission, para. 168 (c).
124 India's second written submission, para. 160; response to Panel question No. 74, para. 53.
125 India's first written submission, paras. 239(e) and (f).
126 India's first written submission, para. 239(h); second written submission, para. 168(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, Japan, the Republic of Korea, Norway, Singapore,
Chinese Taipei, Türkiye, Ukraine, and the United States are reflected in their executive summaries,
provided in accordance with paragraph 26 of the Working Proced ures adopted by the Panel
(see Annexes C-1, C-2, C-3, C-4, C-5, C-6, C-7, C-8, C-9, and C-10). 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,
the European Union and India each submitted written requests for the Panel to review aspects of
the Interim Report. Neither party submitted any comments on the other's party's requests fo r
review. Moreover, neither party requested an interim review meeting.
6.2. In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's
response to the parties' requests made at the interim review stage, including certain request s
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 pro vide
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 R eport, 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 agre ements. 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 (both with
respect to the summaries of the parties' arguments and our own reasoning) we have modified the
Report in response to a party's request, but without necessarily using the precise drafting requested
by the parties, or by adjusting paragraphs/footnotes 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
6.1.1 Whether India's assumption that the transposition of its WTO Schedule to the
HS2007 would not expand the scope of its WTO tariff commitments from its ITA
undertakings formed an essential basis of India's consent to be bound by its WTO
Schedule
6.7. Section 7.3.3.2.3.4 of the Report addresses whether India's assumption that the transposition
of its WTO Schedule to the HS2007 would not expand the scope of its WTO tariff commitments from
its ITA undertakings formed an essential basis of its consent to be bound by its WTO Schedule.

6.8. In its request for interim review, India asserts that the Panel's reasoning in paragraphs 7.135
to 7.137 of the Interim Report "inverts rather than addresses India's arguments".127 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 provid ed with the required flagging of the relevant tariff
lines – the absence of which led to India's flawed assumption".128 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".129
6.9. The European Union does not comment on India's request.
6.10. At the outset, we recall that it is uncontested that the burden of proof under Article 48(1) of
the Vienna Convention falls on the party invoking Article 48. With that in mind, we note that
throughout the course of these proceedings, India has argued that the "error" (within the meaning
of Article 48 of the Vie nna Convention) that occurred during the transposition of its Schedule was
an expansion of India's WTO tariff commitments beyond those contained in the ITA.130 On this basis,
India has argued that the "assumption" which allegedly constituted an "essential b asis" of India's
consent to be bound by its Schedule was that its WTO tariff commitments would not be expanded
beyond the ITA.131
6.11. Thus, in applying the distinct elements of Article 48(1), we have assessed, inter alia, whether
India has demonstrated that its assumption (i.e. that the transposition of its WTO Schedule to the
HS2007 would not expand the scope of its WTO tariff commitmen ts beyond its ITA undertakings)
formed an essential basis of its consent to be bound by its WTO Schedule .132 Having reviewed the
evidence and arguments adduced by the parties, including with respect to India's conduct at the
time of the transposition, we ha ve 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 I ndia'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 7.137 of the Interim Report to clarify this.
6.12. Regarding other aspects of India's request, we first note India's assertion that we required
"additional evidence" from India "to confirm the existence of an assumption". That is incorrect. In
the first step of our analysis under Article 48(1) (in section 7.3.3.2.3.2), we address the "existence"
of India's assumption and, on balance, accept in good faith India's assertion that it held that
assumption at the time of the transposition exercise. As a distinct step, in assessing the third element
of the test under Article 48(1) (in section 7.3.3.2.3.4), we address whether India has demonstrated
that its assumption constituted an "essential basis of its consent to be bound". It is in that specific
respect that we consider that India has failed to substantiate its burden of proof.
6.13. Regarding India's observation that its conduct during the transposition process is irrelevant
to the question of whether India's stated assumption constituted an essential basis for its consent
to be bound, we disagree. To the contrary, India's actions during the transposition process provide
some indication of what constituted India's essential bases for its consent to be bound by its
transposed Schedule.
6.14. We further note that India also argues that what matters in this context is whether India "was
provided with the required flagging of the relevant tariff lines". 133 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.

127 India's request for interim review, para. 15.
128 India's request for interim review, para. 15.
129 India's request for interim review, para. 16.
130 See e.g. India's first written submission, para. 57; second written submission, para. 19.
131 India states that it "assumed at the time of the certification of [India's] 2007 Schedule that the
HS2007 transposition did not expand India's tariff commitments beyond India's obligations under the ITA[]".
(India's first written submission, para. 59). Similarly, India states that "its mistaken assumption was that the
HS2007 did not expand India's tariff commitments beyond India's obligations under the ITA[]. That remains
India's clearly articulated position." (India's opening statement at the second meeting of the Panel, p. 2).
132 See section 7.3.3.2.3.4 below.
133 India's request for interim review, para. 15.

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.134 Thus, India's argument regarding the alleged failure
of the Secretariat to flag the relevant tariff items is not pertinent to our assessment of this specific
aspect of India's arguments under Article 48(1).
6.1.2 Whether the circumstances were such as to put India on notice of a possible
expansion of its WTO tariff commitments from its ITA undertakings
6.15. Section 7.3.3.3.3.2 of the Report addresses whether the circumstances o f the transposition
of India's Schedule were such as to put India on notice of a possible expansion of its WTO tariff
commitments from its ITA undertakings (one of two elements arising under Article 48(2) of the
Vienna Convention).
6.16. India notes the Panel's conclusion that the WTO Secretariat "fulfilled its obligation to flag the
complex technical transpositions … thereby put[ting] India on notice of the error", notwithstanding
the Panel's observation in paragraph 7.192 of the Interim Report that "both parti es … may read
document G/MA/283 differently".135 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".136 India requests the Panel to "address the contradictions arising out of its legal
reasoning and make suitable modifications".137
6.17. The European Union does not comment on India's request.
6.18. While we consider that the Interim Report sufficiently conveyed the Panel's reasoning on this
issue, we have in any event modified paragraphs 7.191 to 7.192 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. The
European Union explains that its "position is that the transposition from HS2002 to HS2007 did not
modify the scope of the tariff concessions at issue in this dispute. Therefore, there was nothing to
be 'flagged' by the Secretariat."138 The European Union elaborates that, "[t]he 2012 Methodology
Note … informed all Members that '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 '. These
changes to the HS nomenclature, however, did not imply a modification of the scope of the tariff
concessions at issue in this dispute."139 Thus, the European Union appears to assert that the WTO
Secretariat was only required to flag those tariff items for which there were actual changes in the
scope of concessions. That assertion, however, does not square with the plain language of the
flagging obligation imposed on the WTO Secretariat – "[a]ny tariff line for which a change in the
scope of a concession may have occurred due to the complex technical nature of the transposition
shall be clearly flagged."140 The European Union does not reconcile, on the one hand, its assertion
that because there were no changes in scope the Secretariat was not required to flag any tariff
items, 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 any event, for our purposes, we understand that when the
European Union says that the WTO Secretariat did not flag any tariff items, the European Union

134 India's arguments during interim review might be interpreted as suggesting that its "assumption" for
purposes of Article 48 was that the WTO Secretariat would flag the relevant tariff items. Notwithstanding that
India has not framed its alleged error under Article 48 in this manner, we recall that in the context of applying
Article 48(2), we have indeed assessed India's arguments regarding the WTO Secretariat's alleged failure to
flag the relevant tariff items, and concluded that the WTO Secretariat correctly and appropriately flagged all
relevant tariff items. (See paras. 7.175-7.193 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.
135 India's request for interim review, para. 17.
136 India's request for interim review, para. 18.
137 India's request for interim review, para. 18.
138 European Union's comments on India's response to Panel question No. 90(a)(i) and (ii), para. 4.
139 European Union's comments on India's response to Panel question No. 90(a)(i) and (ii), para. 4.
140 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)

means that the WTO Secretariat did not flag any tariff items whose product scope ha d, in fact,
changed.
6.19. That assertion by the European Union that 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 i tems for which the product scope of the concession may
have changed. In contrast to the European Union, 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 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.
6.20. In short, while the parties appear to agree that the WTO Secretariat did not flag any relevant
tariff items, they are in fact making different assertions. In our findings regarding this issue, we
have addressed distinctly: (i) Indi a's arguments regarding whether the Secretariat satisfied its
obligation to flag tariff items for which the product scope of the concession may have changed141;
and (ii) the European Union's argument that the Secretariat did not flag any tariff items for which
the product scope of the concession actually changed.142
6.21. India also notes that in paragraph 7.196 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 '".143 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'."144 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) ".145 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 ".146 India requests the Panel to provide
"further clarity" on the conclusions reached by the Panel on this issue.147
6.22. The European Union does not comment on India's request.
6.23. We note that the issue being addressed in the relevant paragraphs is India's argument that
"for a state to be put on notice of a possible error, the circumsta nces should be such that no
interested party should fail to notice the error or be under a misapprehension about it."148 The Report
addresses this argument and ultimately concludes that the relevant standard under this element of
Article 48(2) is whether the State was on notice of a possible error, not an actual error. Those are
plainly different things. We see no need to modify or further clarify our reasoning on this issue.
6.2 Whether India's tariff treatment is inconsistent with Articles II:1(a) and (b) of the
GATT 1994
6.2.1 Tariff item 8504.40 ex02 of India's WTO Schedule
6.24. India requests us to delete language in paragraph 7.260, and footnote 660 thereto, of the
Interim Report highlighting a contradiction in India's argument regarding the tariff treatment
accorded to static converters for cellular mobile phones. India maintains that it chose to not contest
the assertions made by the European Union on the duty rate applied to such products. 149 The
European Union does not comment on India's request. We note that, as illustrated in paragraph
7.258, India indeed made different arguments on the tariff treatment accorded to such products.
Nonetheless, we have made modifications in order to more precisely reflect India's arguments.

141 See paras. 7.175-7.191 below.
142 See para. 7.192 below.
143 India's request for interim review, para. 19.
144 India's request for interim review, para. 19.
145 India's request for interim review, para. 19.
146 India's request for interim review, para. 19.
147 India's request for interim review, para. 20.
148 India's second written submission, para. 29. See also India's first written submission, para. 73.
149 India's request for interim review, paras. 21-22.

6.2.2 Tariff item 8517.12 of India's WTO Schedule
6.25. 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".150 India requests the deletion of language in paragraph 7.284 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 ta riff 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 items 8517.12.11 and
8517.12.19, and that those tariff items "would come under the tariff item 8517.12".151
6.26. The European Union does not comment on India's request for review.
6.27. We recall that t he parties agree that at the time of the Panel's establishment, India's First
Schedule imposed a standard duty rate of 20% on products classified under tariff items 8517.12.11,
8517.12.19 and 8517.12.90 (all of which fall under tariff item 8517.12). 152 Therefore, paragraph
7.284 of the Interim Report accurately reflects the parties' arguments. Moreover, tha t 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.153 We therefore decline to make
the changes requested by India.
6.2.3 Tariff items 8517.61 and 8517.70 ex01, ex02, and ex03 of India's WTO Schedule
6.28. During the interim review process, we considered it useful to clarify certain factual issues
pertaining to Serial No. 425 of Notification No. 50/2017. On 14 December 2022, we sent a question
to the parties concerning this issue. On 21 December 2022, the parties responded to that question.
On 11 January 2023, the parties indicated that they had no comments on the other party's response.
In its response to our question, India referred to Notification No. 02/2022. On 18 January 2023, we
invited India to submit Notification No. 02/2022 as an exhibit. On 20 January 2023, India submitted
Notification No. 02/2022 as Exhibit IND-90.
6.29. We understand that, in light of the parties' responses to our question, and on the basis of
Notification No. 02/2022, Serial No. 425 o f Notification No. 50/2017 was omitted from that
Notification pursuant to Notification No. 02/2022. 154 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. 155
We have accordingly modified relevant paragraphs in sections 7.4.4 and 7.4.6.
7 FINDINGS
7.1 Introduction
7.1. The European Union claims that India is acting inconsistently with Articles II:1(a) and (b) of
the GATT 1994 by imposing tariff treatment on certain information communication technology (ICT)
products that is inconsistent with the commitments inscribed in India's WTO Schedule. 156 The
European Union specifically chall enges the tariff treatment accorded by India to products falling
under the following tariff items157 of India's WTO Schedule: 8504.40 ex02; 8517.12; 8517.61;
8517.62; 8517.70 ex01, ex02, and ex03; 8518.30 ex01 and 8544.42.00 ex01. The European Union
considers that such tariff treatment is provided through India's domestic customs regime, comprising

150 India's request for interim review, para. 23.
151 India's request for interim review, para. 23.
152 European Union's first written submission, para. 94 (referring to Finance Act 2019, (Exhibit EU-19);
India's first written submission, para. 149.
153 European Union's first written submission, para. 104; and India's response to Panel question No.
108(a), para. 58.
154 India's response to Panel question No. 134.
155 Notification No. 02/2022, (Exhibit IND-90).
156 European Union's second written submission, para. 78.
157 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 69 to para. 2.1 above).

in particular India's First Schedule and various customs notifications. Essentially, the European Union
submits that the tariff treatment provided by India is inc onsistent with India's WTO Schedule
because: (i) duties applied by India to certain such products are in excess of the duty-free rates that
India is obliged to provide under its WTO Schedule; and (ii) duty-free treatment that is accorded to
certain products is subject to conditions that are not set forth in India's WTO Schedule.
7.2. For tariff items 8518.30 ex01 and 8544.42 .00 ex01, India acknowledges that the tariff
commitments set forth in its WTO Schedule indeed constitute relevant binding tariff commitment s,
but submits that products falling under such tariff items are subject to duty-free treatment, without
being subject to any conditions, and consequently such tariff treatment is consistent with its WTO
tariff commitments.158 With respect to the other tari ff items at issue in this dispute, India argues
that "there is no violation of Article [s] II:1(a) and (b) of the GATT 1994 since the contested
sub-headings under the 2007 Schedule are a result of an error." 159 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". 160 India argues that it had "communicated to the wider WTO membership
previously that it did not intend to expand its tariff commitments beyond those contained in the ITA"
and that "it would not have agreed to the certification of its schedule of concessions if it were aware
that such certification would effectively expand India's commitments beyond those contained in the
ITA[]".161 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.162 India refers to the Legal Opinion of Professor Michael Waibel who asserts that the
WTO Secretariat "bears at least some of the responsibility for the errors".163 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. 164 Finally, with respect to certain
specific aspects of the European Union's claims, India claims that the European Union has failed to
adequately identify the products at issue. 165 India also argues that a number of the conditions
challenged by the European Union are not of a kind that are required to be inscribed in a WTO
Schedule.166
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 ArticlesII:1(a) and
(b) in the circumstances of this dispute, namely: (i) the relevance of the ITA; (ii) India's plea of
error under Article 4 8 of the Vienna Convention; and (iii) India's arguments concerning its
rectification request under the 1980 Decision. Having addressed these general issues, we then turn
to assess whether India is acting inconsistently with Articles II:1(a) and (b).
7.2 The legal standard under Articles II:1(a) and (b) of the GATT 1994
7.4. Articles II:1(a) and (b) provide that:
(a) Each Member shall accord to the commerce of the other Members treatment no
less favourable than that provided for in the appropriate Part of the appro priate
Schedule annexed to this Agreement.
(b) The products described in Part I of the Schedule relating to any Member, which
are the products of territories of other Members, shall, on their importation into the
territory to which the Schedule relates, an d subject to the terms, conditions or
qualifications set forth in the Schedule, be exempt from ordinary customs duties in

158 India's response to Panel question No. 66, para. 29; second written submission, para. 4.
159 India's response to Panel question No. 50, para. 106.
160 India's second written submission, para. 1.
161 India's second written submission, paras. 3 and 25. See also India's first written submission,
para. 57.
162 India's first written submission, paras. 90-91.
163 India's response to Panel question No. 90(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on
Error, (Exhibit IND-79), para. 39).
164 India's second written submission, para. 160.
165 See e.g. India's response to Panel question No. 105, paras. 52-55, and No. 117, para. 71.
166 See e.g. India's response to Panel question No. 103, paras. 48-49.

excess of those set forth and provided therein. Such products shall also be exempt from
all other duties or charges of any kind imposed on or in connection with the importation
in excess of those imposed on the date of this Agreement or those directly and
mandatorily required to be imposed thereafter by legislation in force in the importing
territory on that date.
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." 167
Moreover, the Appellate Body has stated that Article II:1 "serves the important func tion of
preventing Members from applying duties that exceed the bound rates agreed to in tariff negotiations
and incorporated into their Schedules of Concessions".168
7.6. We agree with prior interpretations of Articles II:1(a) and (b) such that, while paragraph (a) of
Article II:1 "contains a general prohibition against according treatment less favourable to imports
than that provided for in a Member's Schedule"169, paragraph (b) "prohibits a specific kind of practice
that will always be inconsistent with paragr aph (a): that is, the application of ordinary customs
duties in excess of those provided for in the Schedule."170 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).171 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".172
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. 173 If we determine that India
imposes ordinary customs duties174 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).175

167 Panel Report, Russia – Tariff Treatment, para. 7.18 (referring to Panel Reports, EC – IT Products,
para. 7.757).
168 Appellate Body Report, Colombia – Textiles, para. 5.34 (referring to Appellate Body Report,
169 Appellate Body Report, Argentina – Textiles and Apparel, para. 45.
170 Appellate Body Report, Argentina – Textiles and Apparel, para. 45.
172 See e.g. Panel Report, Russia – Tariff Treatment, para. 7.48 (referring to Appellate Body Report,
173 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).
174 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.
175 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).

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.176 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 qualificat ion 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 Art icle 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 WTO Agr eement,
binding on all Members, pursuant to Article II:2 of the WTO Agreement. Moreover, they form part
of the covered agreements listed in Appendix 1 of the DSU. Pursuant to Article 1.2 of the DSU, the
rules and procedures of the DSU apply to such covered agreements. Consequently, Article 3.2 of the
DSU, which states that the provisions of the covered agreements are to be clarified "in accordance
with customary rules of interpretation of public international law ", applies to the interpretation of
Members' WTO Schedules and the concessions set out therein. 177 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.178 However, the relevance of the HS depends on the specific interpretative
question at issue, including whether the relevant concessions were based on the HS.179
7.10. To our understanding, the foregoing interpretative elements of the legal standard under
Article II:1(a) and Article II:1(b), first sentence, are uncontested by the parties. We turn next to
address certain contested issues pertaining to the scope and content of India's WTO tariff
commitments.
7.3 General issues concerning India's WTO tariff commitments
7.3.1 Overview
7.11. As explained above, under Articles II:1(a) and (b) of the GATT 1994, WTO Members are
obligated to provide tariff treatment that is in accordance with the commitments set forth in "the
appropriate Schedule annexed to [the GATT 1994]". Thus, to assess whether a Member is acting
inconsistently with Articles II:1(a) and (b) , a panel must compare a Member's obligations as set
forth in the relevant WTO Schedule to the tariff treatment applied by that Member under the
measures at issue.180

176 See parties' responses to Panel question No. 103.
177 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 concession
are the general rules of treaty interpretation set out in the Vienna Convention.
(Appellate Body Report, EC – Computer Equipment, para. 84. See also Appellate Body Report, EC –
Export Subsidies on Sugar, para. 167; and Panel Reports, EC – Chicken Cuts, para. 7.87)
178 See Appellate Body Reports, EC – Computer Equipment, para. 89; EC – Chicken Cuts, paras.
195-197; and China – Auto Parts, paras. 146 and 149.
179 See e.g. Panel Reports, EC – IT Products, para. 7.443.
180 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. European Union's response to Panel question No. 101, para. 48; and
India's comments on the European Union's response to Panel question No. 101, paras. 18-19).

7.12. In the present disp ute, it is uncontested that the "appropriate Schedule" for the purpose of
assessing India's compliance with Articles II:1(a) and (b) is India's WTO Schedule. It is further
uncontested that the tariff commitments for two tariff items set forth in India's WT O Schedule
(namely tariff items 8518.30 ex01 and 8544.42.00 ex01) constitute binding WTO tariff commitments
with which we must assess India's compliance in the present proceedings. However, with respect to
the other tariff items at issue in this dispute (namely tariff items 8504.40 ex02; 8517.12; 8517.61;
8517.62; and 8517.70 ex01, ex02, and ex03), the parties disagree over the content of India's WTO
tariff commitments.
7.13. Throughout the course of these proceedings India has argued that: (i) the relevant bind ing
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 Schedule181;
(ii) pursuant to Article 48 of the Vienna Convention, aspects of India's WTO Schedule are invalid
(and the relevant tariff commitments unbound) as a consequence of an error on the part of India
during the transposition of the Schedule from the HS2002 to the HS2007 182; 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.183
7.14. The European Union, 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 static184;
(ii) there was no error in the transposition of India's Schedule to the HS2007 and, even if there was
such an error, India either contributed to or was put on notice of the possibility of that error, such
that the requirements of Article 48 are not satisfied in this dispute 185; and (iii) there is no basis for
the Panel to make the findings requested by India regarding the European Union's objection to
India's rectification request under the 1980 Decision.186
7.15. We proceed by addres sing, 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 agree d 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. 187 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.188 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
1997.189

181 See e.g. India's opening statement at the second meeting of the Panel, p. 5.
182 See e.g. India's first written submission, paras. 55-91.
183 See e.g. India's response to Panel question No. 74, para. 53. In India's view, the European Union'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.
184 See e.g. European Union's opening statement at the first meeting of the Panel, paras. 56-78; and
second written submission, paras. 43-62.
185 See e.g. European Union's opening statement at the first meeting of the Panel, paras. 10-55; and
second written submission, paras. 3-17.
186 See e.g. European Union's second written submission, paras. 18-42.
187 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).
188 Paragraphs 1 and 2 of the Annex to the ITA. See also 1980 Decision, L/4962.
189 WT/Let/181.

7.17. In section III (titled "Background") of its first written submission in this dispute, the
European Union, inter alia, describes certain aspects of the ITA. The European Union notes the ITA's
conclusion in December 1996, India's joining the ITA in March 1997, and the requirement under
paragraph 2 of the ITA for all participants to bind and eliminate customs duties and other duties and
charges within the meaning of Article II:1(b) of the GATT 1994 on all products identified in
Attachments A and B.190 The European Union further notes that, pursuant to paragraph 2 of the ITA
Annex, ITA participants were required to modify their WTO Schedules in order to implement their
obligations under the ITA.191 In the next sub-section of section III of its first written submission, the
European Union refers to two subsequent transpositions of Ind ia's WTO Schedule , including the
transposition of India's WTO Schedule to the HS2007. 192 Thereafter, in setting forth its legal
argument underpinning its claims that India is acting inconsistently with Articles II:1(a) and (b) of
the GATT 1994, the European Union 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 products
pursuant to India's First Schedule and relevant customs notifications.193
7.18. In its first written submission, India states that the European Union suggested that India's
concessions were based on the ITA, "although without actually establishing that the products at
issue were covered under the ITA[]".194 India elaborated that it would subsequently seek to establish
that the products at issue were not covered under the ITA, and therefore the 2007 Schedule was
certified in error and the objections against India's rectification request under the 1980 Decision
were without merit. 195 India further states that "the burden of proof is on the EU to prima facie
demonstrate that the products at issue were covered by the ITA[]" and "the EU does not even offer
a hint of which entries in the ITA[] allegedly covered the products at issue". 196 India devotes
approximately 32 pages197 of its first written submission to demonstrating that the products at issue
are not covered by the ITA. 198 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".199
7.19. In response to questions from the Panel, the European Union clarified that its claim is under
Articles II:1(a) and (b) of the GATT 1994, and that the "legal obligations at issue in the present case
are therefore Article II:1 of the GATT 1994, and I ndia's Schedules and the tariff bindings provided
for in those schedules." 200 The European Union indicated that the ITA "is not the source of India 's
legal obligations relevant in the present case" .201 The European Union further considered that "the
development of new technologies and new products does not alter the content or scope of the legal
obligations provided for in India's Schedule of concessions", and that "[w]hat counts is … not whether
a product is 'new' or whether it has undergone technical advanc ements", but rather "whether a
specific product is within the scope of a tariff schedule, and in particular within the scope of the
product descriptions in that schedule".202
7.20. In response to questions from the Panel, India further clarified its views regardi ng 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

190 The European Union elaborates that Attachment A to the ITA contained a "table listing HS1996
headings (four digits) and subheadings (six digits) with their corresponding 'HS descriptions'", including certain
"HS1996 subheadings covering products at issue in this dispute". (European Union's first written submission,
para. 24).
191 European Union's first written submission, paras. 21-27.
192 European Union's first written submission, paras. 28-31.
193 European Union's first written submission, section IV.
194 India's first written submission, para. 92.
195 India's first written submission, para. 93.
196 India's first written submission, para. 126.
197 See India's first written submission, paras. 92-221.
198 India's first written submission, para. 126.
199 India's first written submission, para. 102. 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. 96-123). 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
200 European Union's response to Panel question No. 3, para. 11.
201 European Union's response to Panel question No. 3, para. 11. (emphasis original)
202 European Union's response to Panel question No. 8, paras. 21 and 23.

transposition of India 's schedule from H S1996 to HS2002 or HS2007 does not affect or change
India's obligations under the ITA[]".203 India elaborated that "the ITA[] did not include the range of
additional products that could be developed in the future".204 India further considered this relevant
to the present dispute, because "the EU develops arguments in relation to sub -headings 8517.12,
8504.40, 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[]".205 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[]".206
7.21. Throughout the course of these dispute settlement proceedings, the parties continued to
exchange views on the relevance of the ITA to this dispute. In India's view, the European Union
itself asserts that the "source of India's commitments for the products at issue is the ITA[]" and the
European Union's claims must fail because "the products at issue are not covered by the ITA[]".207
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". 208 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 the European Union and India. Indeed, it is instrumental
for analysing India's claim under Article 48 of the VCLT"; and (ii) " the ITA[] also serves as an
important comparative benchmark for determining if the draft rectification request to the
2007 Schedule submitted by India in 2018 was of a purely formal character".209
7.22. The European Union for its part, continues to insist that it is India's "schedule which is at the
centre of this case and which contains India's international legal obligations relevant in this case,
not the ITA[]".210 The European Union c onsiders that the ITA is not a covered agreement and the
"question of the consistency of India's measures with the ITA[] is not before this Panel". 211 In the
European Union's view, India misrepresents the European Union's position, and it is clear that the
European Union made reference to the ITA solely "for the purposes of providing the background of
the case", not in order to base its legal claim on the ITA.212 The European Union submits that it does
not bear any burden of showing that the products at issue are covered by the ITA. 213 The
European Union further considers that the ITA has no relevance for the interpretation of any of the
tariff items at issue in this dispute, because "the content of those tariff lines is clear".214
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 t o address, in this section: (i) whether the ITA sets forth India's
tariff commitments for purposes of applying Articles II:1(a) and (b) of the GATT 1994; and
(ii) whether the ITA otherwise limits the scope of the tariff commitments contained in India's WTO
Schedule. We note, in doing so, that the parties' arguments concerning the ITA pertain specifically
to the European Union's claims regarding products covered by tariff items 8504.40, 8517.12,
8517.61, 8517.62, and 8517.70 of India's WTO Schedule.215

203 India's response to Panel question No. 1, para. 1.
204 India's response to Panel question No. 1, para. 5.
205 India's response to Panel question No. 1, para. 8.
206 India's response to Panel question No. 1, para. 9.
207 India's opening statement at the first meeting of the Panel, para. 22. See also India's first written
208 India's opening statement at the first meeting of the Panel, para. 22.
209 India's response to Panel question No. 65, paras. 24 and 26. See also India's second written
submission, paras. 34 and 36.
210 European Union's opening statement at the second meeting of the Panel, para. 19.
211 European Union's second written submission, para. 46.
212 European Union's second written submission, paras. 48-49.
213 European Union's second written submission, para. 51.
214 European Union's second written submission, para. 55.
215 See India's first written submission, paras. 124-221; response to Panel question No. 66, para. 29;
and second written submission, paras. 83-148.

7.3.2.2 Whether the ITA sets forth India's legal obligations
7.3.2.2.1 Main arguments of the parties
7.25. India argues that the legal issue that lies "[a]t the heart of this dispute" is whether the
products identified by the European Union are covered under the ITA.216 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[]."217 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".218
7.26. The European Union considers that the "legal obligations at issue in the present case are …
Article II:1 of the GATT 1994, and In dia's Schedules and the tariff bindings provided for in those
schedules."219 The European Union submits that the ITA "is not the source of India's legal obligations
relevant in the present case".220 The European Union elaborates that insofar as it makes refe rence
to the ITA, "such reference is for the purposes of providing the background of the case". 221 The
European Union further considers that the ITA is not a covered agreement within the meaning of the
DSU.222
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[]".223 In Brazil's view, "the
main issue of the present dispute concerns the correct interpretation o f India's Schedule, not the
interpretation of the ITA[]."224
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". 225 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".226 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."227
7.29. Japan submits that the ITA is not a covered agreement within the meaning of Article 1.1 of
the DSU, and consequently "the Panel lacks jurisdiction to clarify the rights and obligations of the
parties under the ITA[]".228 Japan considers that the ITA "is not directly relevant to the interpretation
of India's tariff concessions at issue."229 In Japan's view, India errs when it refers to 'the obligations
under the ITA[]'", because what is relevant is India's obligations under Article II:1 of the GATT 1994
and under India's WTO Schedule.230 Japan argues that "the focus of the interpretative exercise is on
the relevant tariff concessions made by India in its Schedule, not the ITA[]".231

216 India's first written submission, para. 24.
217 India's opening statement at the first meeting of the Panel, para. 23.
218 India's first written submission, para. 92.
219 European Union's response to Panel question No. 3, para. 11.
220 European Union's response to Panel question No. 3, para. 11. (emphasis original)
221 European Union's second written submission, para. 49.
222 European Union's opening statement at the first meeting of the Panel, paras. 62-67; second written
submission, paras. 46-53.
223 Brazil's third-party response to Panel question No. 1, para. 2.
224 Brazil's third-party response to Panel question No. 1, para. 2.
225 Canada's third-party response to Panel question No. 1, para. 1.
226 Canada's third-party response to Panel question No. 1, para. 2.
227 Canada's third-party response to Panel question No. 1, para. 2.
228 Japan's third-party response to Panel question No. 1, para. 2.
229 Japan's third-party response to Panel question No. 2, para. 8.
230 Japan's third-party response to Panel question No. 15, para. 4.
231 Japan's third-party response to Panel question No. 15, para. 5.

7.30. Korea "is of the view that the agreement at issue in this dispute is not the ITA[], but the
GATT 1994."232 Korea considers that the ITA "may be used as 'context' to interpret India 's
tariff concessions at issue in this dispute".233
7.31. Norway submits that the ITA is not a "covered agreement" within the meaning of Article 1.1
of the DSU, but could serve as relevant context within the meaning of Article 31(2)(b) of the
Vienna Convention. For Norway, the Panel's main task in this dispute is to interpret India's
commitments contained in its WTO Schedule.234
7.32. Chinese Taipei argues that the ITA is not a covered 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.235 Chinese Taipei considers that "the Panel must
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 prope rly
inscribed in its currently certified Schedule of Concessions reflecting the 2007 HS nomenclature".236
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 concessions at issue, and, as such,
constitutes an important part of the factual background in this dispute" .237 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".238
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 adv ersely 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 "imp ortant questions with respect to the interpretation of the tariff
concessions made by WTO Members pursuant to the ITA".239
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".240
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."241
7.35. The United Stat es 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".242 According to the United States, "the Panel is tasked with interpreting the relevant
provisions of the GATT 1994, including the tariff concessions in India 's Schedule, rather than the

232 Korea's third-party response to Panel question No. 3, p. 1.
233 Korea's third-party response to Panel question No. 3, p. 1.
234 Norway's third-party statement, para. 2.
235 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 Goods (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
in this dispute, DS582. The parties did not object or otherwise comment. (See European Union's
communication, 7 July 2022; and India's communication, 7 July 2022)).
236 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 Goods (Chinese Taipei) (DS588)).
237 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 Goods (Chinese Taipei) (DS588).
238 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 Goods (Chinese Taipei) (DS588).
239 Türkiye's third-party submission, paras. 2, 4 and 9.
240 Ukraine's third-party response to Panel question No. 1, para. 8.
241 Ukraine's third-party response to Panel question No. 1, para. 9.
242 United States' third-party response to Panel question No. 1, paras. 2-3.

ITA[]".243 The United States therefore considers that "India is mistaken that its commitments are
'under the ITA[]'".244
7.3.2.2.3 Panel's assessment
7.36. In our vie w, 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 the European Union's claim in this dispute is that India is acting inconsistently
with its obligations under Articles II:1(a) and (b) of the GATT 1994.245 The European Union has not,
in any of its submissions, articulated any claim based on a provision of the ITA. We recognize that
the European Union 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
the European Union's references to the ITA as articulating any claim of inconsistency or requesting
us to find that India is acting inconsistently with the ITA. Thus, in our view, the European Union has
not asserted that India is acting inconsistently with the ITA nor does the European Union request us
to make any such finding.246
7.38. As described above247, 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 GATT 1994. We therefore see no textual link in the GATT 1994 indicating that
Members' legal obligations, for the purposes of applying Articles II:1(a) and (b), could be contained
in the ITA.
7.39. As to the ITA itself, we note that paragraph 2 of the ITA indicates that:
Pursuant to the modalities set forth in the Annex to this Declaration, each party shall
bind and eliminate customs duties and other duties and charges of any kind, within the
meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 1994, with
respect to the following: (a) all products classified (or classifiable) with Harmonized
System (1996) ("HS") headings listed in Attachment A to the Annex to this Declaration;
and (b) all products specified in Attachment B to the Annex to this Declaration, whether
or not they are included in Attachment A; through equal rate reductions of customs
duties beginning in 1997 and concluding in 2000, recognizing that extended staging of
reductions and, before implementation, expansion o f 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 tar iff
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 under takings made under the ITA only become binding WTO obligations

243 United States' third-party response to Panel question No. 1, para. 3.
244 United States' third-party response to Panel question No. 5, para. 9.
245 European Union's first written submission, paras. 1-4, 86-87, 106-107, 117-118, 131-132, 153-154,
162-163, and 173-175. See also European Union's second written submission, para. 78; and panel request,
p. 3.
246 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 the European Union's panel request in this dispute.
247 See section 7.2 above.

under Articles II:1(a) and (b) of the GATT 1994 if they are incorporated into Members'
WTO Schedules. Once incorporated into a Member's WTO Schedule, such concession shall be treated
no differe ntly 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 concerning Members' rights and obligations under provisions of the
WTO Agreement.248 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 Schedule249, the ITA is not a "covered
agreement" within the meaning of the WTO Agreement and the DSU.250
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 fo rms part of the factual
and historical background to this dispute. That the ITA may have induced India, as a factual matter,
to undertake certain WTO tariff commitments does not mean that, as a legal matter, the ITA sets
forth India's WTO legal obligations at issue in this dispute. Furthermore, having reviewed India's
submissions, we see no argument that explains how the ITA can be read into Articles II:1(a) and
(b) as the "source" of a Member's legal obligations under those provisions. To the extent that India's
arguments related to the ITA focus on its relevance for purposes of interpreting the obligations set
forth in India's WTO Schedule, we address those arguments below.251 We note India's view that the
European Union refers to the ITA as the relevant source of law in this dispute.252 As explained above,
however, we disagree with that understanding of the European Union's arguments and claims.
7.44. As a final point of note with respect to this issue, we observe India's argument th at "the
European Union asserts that a comparison with the ITA[] is not relevant because the ITA[] is not a
'covered agreement' within the meaning of Article 1.1 of the DSU" .253 According to India, "by that
token, India's Schedule in WT/Let/886 (i.e., its Schedule based on the HS2002) which is no longer

248 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."
249 See para. 7.9 above.
250 We note India's argument that "at the very least, the contents of Attachment A and Attachment B of
the ITA[] were incorporated in WT/LET/181 dated July 2, 1997 which is a covered agreement within the
meaning of Article 1 of the [DSU]". (India's response to Panel question No. 2, para. 14). We understand that
document WT/Let/181 contained certain changes to India's WTO Schedule that were certified on 2 October
1997. For the reasons already explained above, we understand that India's WTO Schedule is indeed a covered
agreement. That does not make the ITA a covered agreement. We also note India's argument that if the ITA is
not a covered agreement, then "India's Schedule in WT/Let/886 (i.e. its Schedule based on the HS2002) which
is no longer in currency can equally not be considered a covered agreement." (India's comments on the
European Union's response to Panel question No. 89, para. 2). We address this argument in paras. 7.44-7.45
below.
251 See section 7.3.2.3 below.
252 In response to a question from the Panel asking why India considered that the European Union bore
the burden of demonstrating that the products at issue were covered by the ITA, India responds that:
India reiterates that the EU fails to clearly articulate the precise source of India's commitments
under the contested sub-headings. For instance, as also noted previously, India notes that the EU
does not identify the precise commitments of the ITA[], which would cover the products at issue.
Indeed, the EU's difficulty in articulating the source of India's commitments under the contested
sub-headings is apparent in their submissions which (while principally basing themselves on the
2007 Schedule) attempt to link the present dispute to India's commitments under the ITA[] without
identifying the basis of such linkage. For instance, the EU argues that HS1996 sub -headings
8471.80, 8473.30, ex8504.40, 8517.22, 8517.30, 8517.50, 8517.80, 8517.90, ex8518.30,
ex8525.10, 8525.20, ex8529.90 and ex8544.41 cover "the products at issue in this dispute. "
However, the EU has failed to demonstrate the relevance of these sub-headings in the dispute or
how the products at issue are covered by the aforementioned sub-headings. India maintains that
the burden of proof is on the EU to substantiate its claim and to prima facie demonstrate that the
products at issue were covered by the ITA[].
(India's response to Panel question No 5, paras. 21-22 (emphasis original))
253 India's comments on the European Union's response to Panel question No. 89(b), para. 2.

in currency can equally not be considered a covered agreement".254 India considers that "there is no
legal basis to term a schedule (WT/Let/886), which has been replaced with a subsequent schedule
(WT/Let/1072), as a covered agreement".255
7.45. We have examined the relevant documents surrounding each transposition of India's
WTO Schedule and we understand that following a transposition exercise it is not the case that a
"new" Schedule replaces an "old" Schedule. Rath er, 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.256 Indeed, the process through which these changes are certified is under
the 1980 Decision.257 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".258 Thus, the files that are certified following each transposition process do not set forth
all of India's tariff concessions, but rather only those tariff items that have changed as a result of
the transposition exercise.259 India is therefore incorrect when it suggests that its HS2002 Schedule
was "replaced with" its HS2 007 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.260 The fact that India's
WTO Schedule is a covered agreement does not imply ipso facto that the ITA is a covered agreement.
India's WTO Schedule is explicitly recognized as an integral part of the covered agreements.261 The
ITA, which is a distinct legal instrument from India's WTO Schedule, is not.
7.46. To conclude, we understand that the European Union's claims in this dispute are exclusively
under Articles II:1(a) and (b) of the GATT 1994. Having reviewed the ITA, we understand that the
undertakings contained therein were only operationalized within the WTO legal system through their
incorporation into Members' Schedules. We also note that the ITA is not a covered agreement within
the meaning of the WTO Agreement and the DSU. While we recognize that the ITA may have been
relevant to In dia's decision to undertake certain WTO tariff commitments, we consider that those
WTO legal obligations are distinct from the ITA. Moreover, it is those WTO tariff commitments, set
forth in India's WTO Schedule, that are the source of India's legal obliga tions 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.262
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".263
According to India, those commitments "were negotiated and agreed to in the context of HS1996,
and were then incorporated into the schedules of concessions of member countries – including
India."264 India considers that "[t]hose static commitments did not become elastic by virtue of their

254 India's comments on the European Union's response to Panel question No. 89(b), para. 2.
255 India's comments on the European Union's response to Panel question No. 89(b), para. 2.
256 See WT/Let/181; WT/Let/886; and WT/Let/1072.
257 See WT/Let/181; WT/Let/886; and WT/Let/1072.
258 1980 Decision, paras. 1-3 and 5.
259 See WT/Let/181; WT/Let/886; and WT/Let/1072.
260 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.
261 See para. 7.9 above.
262 Regarding India's argument that the European Union 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), the European Union must demonstrate that the products at issue fall within the scope
of the ITA. Rather, the European Union must demonstrate that the products at issue fall within the scope of
relevant tariff commitments set forth in India's WTO Schedule.
263 India's opening statement at the second meeting of the Panel, p. 5.
264 India's opening statement at the second meeting of the Panel, p. 5.

incorporation into concession schedules."265 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." 266 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 engag ing with
HS1996 and its explanatory notes, read in the context of ITA[]."267 As a general matter, India
considers that the ITA constitutes "interpretative context to India's schedule of concessions".268
7.48. In support of its arguments regarding the static natur e 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
ITA). India submits that the product s cope of its commitments 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". 269 India notes that this "limitation [was] also reflected in
HS2002".270 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."271
7.49. Also in support of its arguments regarding the sta tic 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 Expansion of Trade in Information
Technology Products ( ITA Expansion ).272 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."273
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 8504.40, 8517.61, 8517.62, 8517.70,
8518.30 - is a clear affirmation that those products are in addition to and were beyond the scope of
the ITA[]".274 India also refers to what it considers constitutes "subsequent practice" in support of
its interpretation, namely: "the HS2007 schedules of some WTO Members reflect NIL duty for certain
contested tariff lines, whereas these Members continue to impose duties on such tariff lines"; "some
ITA[] Participants have not committed to a NIL duty for certain contested tariff lines"; and "certain
ITA[] participants who are not participants to the ITA Expansion continue to impose duties on
products covered under certain contested tariff lines."275
7.50. The European Union considers that the ITA could be considered to be "context" within the
meaning of Article 31(2)(b) of the Vienna Convention, but argues that the ITA is not relevant to the
interpretation of the tariff items of India's WTO Schedule at issue because "the content of those tariff
lines is clear".276 The European Union also considers that the content of the ITA is not "limited to
such products or technical features of products which existed at that signing" and notes that the ITA
"uses broad language and generic terms". 277 In the European Union's view, "the products at issue
in the present case were all covered by the ITA[]".278 Regarding the ITA Expansion, the European
Union considers that "nothing in the text of the ITA -Expansion indicates that the ITA -Expansion

265 India's opening statement at the second meeting of the Panel, p. 5.
266 India's opening statement at the second meeting of the Panel, p. 5. (emphasis original)
267 India's opening statement at the second meeting of the Panel, p. 5.
268 India's second written submission, para. 35.
269 India's opening statement at the second meeting of the Panel, p. 5.
270 India's opening statement at the second meeting of the Panel, p. 5.
271 India's opening statement at the second meeting of the Panel, p. 5.
272 Under the ITA Expansion, the participants agreed to "bind and eliminate customs duties and other
duties and charges of any kind", within the meaning of Article II:1(b) of the GATT 1994, with respect to certain
specified products. (Ministerial Declaration on the Expansion of Trade in Information Technology Products,
WT/MIN(15)/25, Annex, para. 1; WT/L/956, para. 1). We understand that the participants in the ITA Expansion
do not include all participants in the ITA. In particular, India is not a participant in the ITA Expansion. (See
India's opening statement at the first meeting of the Panel, para. 5).
273 India's opening statement at the second meeting of the Panel, p. 6.
274 India's opening statement at the second meeting of the Panel, p. 6.
275 India's opening statement at the second meeting of the Panel, p. 6.
276 European Union's second written submission, paras. 54-55.
277 European Union's opening statement at the first meeting of the Panel, para. 77.
278 European Union's opening statement at the second meeting of the Panel, para. 21.

covers only such products which were not covered by the ITA[] and that therefore the product scope
of these two documents is mutually exclusive".279
7.51. The European Union further considers that "neither the ITA -Expansion nor the practices of
participants to the ITA -Expansion can be regarded as 'subsequent practice' within the meaning of
Article 31.3(b)" of the Vienna Convention .280 Regarding India's assertion that the ITA Expansion
could be a supplementary means of interpretation, within the meaning of Article 32 of the
Vienna Convention, the European Union submits that the meaning of the ITA is neith er ambiguous
nor obscure, such that the conditions for recourse to supplementary means of interpretation are not
fulfilled in the present case. 281 Moreover, regarding the alleged "subsequent practice" identified by
India, the European Union considers that the official statements quoted by India "are general political
statements, which do not establish a specific interpretation of the ITA[]".282 The European Union
also considers that the "applied tariff schedules of other WTO Members do not purport to interpre t
the ITA[]", and "even if those Members imposed tariff duties on products which are subject to this
claim, the practice of such Members and potential incompliance with their commitments under
GATT Article II does not provide a relief for India from its obligation to respect the commitments in
its certified WTO Schedule".283
7.3.2.3.2 Main arguments of the third parties
7.52. Brazil states that "the task before the Panel concerns the interpretation of India's Schedule in
line with the objective of ensuring the predictabili ty and security of the reciprocal and mutually
agreed concessions that are the cornerstone of the WTO architecture." 284 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".285 Brazil argues that, "[o]therwise, the security and predictability of the
tariff concessions in the Schedules will be seriously undermined".286
7.53. Canada considers that "the scope of coverage of a concession is determined by an
examination of the meaning of the terms contained in the commitments set out in a Member's
Schedule".287 Canada considers that the ITA "may be considered as relevant context for the purposes
of interpreting the meaning of these terms".288 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." 289 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".290 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."291 Canada considers that an interpretation that finds that a Member's WTO
tariff commitments "are static and unable to capture technological advancement would undermine
the WTO system of tariff concessions by allowing Members to simply disregard tariff commitments
on the basis that a product incorporates, or has become, a new technology".292
7.54. Japan submits that "the concessions at issue are those included in the currently certified
schedule of India" and the ITA "does not appear to be legally relevant by virtue of either Article 31
or Article 32 of the Vienna Convention with regard to the interpretation of India's concessions as

279 European Union's second written submission, para. 61.
280 European Union's second written submission, para. 62.
281 European Union's opening statement at the second meeting of the Panel, para. 39.
282 European Union's opening statement at the second meeting of the Panel, para. 33 (referring to
India's first written submission, fn 157 to para. 104).
283 European Union's opening statement at the second meeting of the Panel, para. 36.
284 Brazil's third-party response to Panel question No. 2, para. 10.
285 Brazil's third-party response to Panel question No. 6, para. 15.
286 Brazil's third-party response to Panel question No. 6, para. 15.
287 Canada's third-party response to Panel question No. 2, para. 4.
288 Canada's third-party response to Panel question No. 2, para. 4.
289 Canada's third-party response to Panel question No. 6, para. 10.
290 Canada's third-party response to Panel question No. 6, para. 10.
291 Canada's third-party response to Panel question No. 6, para. 13.
292 Canada's third-party response to Panel question No. 6, para. 14.

included in its currently certified Schedule". 293 Japan considers that "[n]either techno logical
development nor product development modify the scope of a tariff concession." 294 Japan also
considers that "the ITA Expansion qualifies as neither context, nor a supplementary means of
interpretation, and is therefore not relevant for the purposes o f interpreting the concessions at
issue".295 Japan asserts that "India's argument based on the ITA[] is irrelevant, and thus, the Panel's
analysis should focus on the text of India's currently certified tariff concessions".296
7.55. Korea considers that the ITA "may be used as 'context' to interpret India's tariff concessions
at issue in this dispute".297 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." 298 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."299
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[]."300
7.56. Norway argues that "the obvious s tarting point … must be the commitments made in the
schedules".301 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".302 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".303
7.57. 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". 304 In Chinese Taipei's view, "if t ariff 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". 305 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".306
7.58. Türkiye submits that "[a]lthough a large number of high-tech products were covered [by the
ITA, it] envisages the incorporation of additional products in parallel to technological developments
provided that the parties to the ITA negotiate and agree by consensus."307 Türkiye further considers
that the products at issue in this dispute are not covered by the ITA, and that as "[a]ny
technologically newly developed product cannot automatically be considered as covered by ITA[], …
the duty-free treatment cannot be extende d to all variants of the products." 308 Türkiye considers
that the Panel's "interpretation of concessions in ITA[] should not disrupt the balance which is
negotiated by the parties". 309 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". 310 Türkiye also shares India's view that new "'products which are
a result of technological progress are not covered under the ITA[]'".311 Türkiye considers that the

293 Japan's third-party response to Panel question No. 2, paras. 11 and 16.
294 Japan's third-party response to Panel question No. 6, para. 22.
295 Japan's third-party response to Panel question No. 9, para. 32.
296 Japan's third-party response to Panel question No. 15, para. 6.
297 Korea's third-party response to Panel question No. 3, p. 1.
298 Korea's third-party response to Panel question No. 7, p. 2.
299 Korea's third-party response to Panel question No. 7, p. 2. (emphasis original)
300 Korea's third-party response to Panel question No. 10, p. 3.
301 Norway's third-party submission, para. 7.
302 Norway's third-party submission, para. 8.
303 Norway's third-party submission, para. 9.
304 Chinese Taipei's third-party response to Panel question No. 15, para. 1. (emphasis original)
305 Chinese Taipei's third-party response to Panel question No. 15, para. 2.
306 Chinese Taipei's third-party response to Panel question No. 15, para. 2.
307 Türkiye's third-party response to Panel question No. 2, p. 2.
308 Türkiye's third-party response to Panel question No. 2, p. 3.
309 Türkiye's third-party response to Panel question No. 3, p. 3.
310 Türkiye's third-party response to Panel question Nos. 4-5, p. 4.
311 Türkiye's third-party response to Panel question Nos. 8-10, p. 8 (quoting India's first written
submission, para. 28).

complainant seeks "an overly broad or inclusive construction of ITA[] commitments, damaging the
balance established during the negotiation process of ITA[]."312 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".313
7.59. The United States considers that "the Panel may consider the ITA[] as relevant context within
the meaning of Article 31 of the Vienna Convention".314 The United States also considers that "[t]he
tariff concessions in a WTO Member 's Schedule apply to all products – regardless of technological
development – that meet the terms of the concession, interpreted based on its ordinary meaning in
context and in light of the GATT 1994's object and purpose".315 The United States argues that "India's
position would undermine the fundamental obligations of Article II:1 of the GATT 1994 by allowing
Members to disregard tariff commitments on the basis that a product incorporates or constitutes a
perceived new technology".316 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."317 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[]".318
7.3.2.3.3 Panel's assessment
7.60. We understand that, in India's view, its commi tments under the ITA are "static" and,
therefore, India considers that its WTO tariff commitments exclude new products resulting from
technological innovations that occurred after the ITA was concluded.319
7.61. We have addressed above the question of whether the ITA sets forth India's legal obligations
in this dispute and concluded that it does not. In order to assess the European Union'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.
7.62. Having said that, we note India's argument that its "static commitments" in the ITA "did not
become elastic by virtue of their incorporation into concession schedules". 320 We also note India's
argument that certain tariff items of its WTO Schedule have a "special meaning" intended by the
parties, pursuant to Article 31(4) of the Vienna Convention. We therefore consider it relevant to
examine whether, as a matter of legal interpretation, the ITA limits or modifies the scope of India's
WTO tariff commitments as set forth in its WTO Schedule (notwithstanding that it does not set forth
those tariff commitments).
7.63. We start by recalling that Members' WTO Schedules, as an integral part of the GATT 1994
and the WTO Agreement, are to be interpreted in accordance with customary rules of interpretation
of public international law, pursuant to Article 3.2 of the DSU. 321 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 ordinar y meaning when read in context, and in light of the
object and purpose of the agreement. This includes new products that come into existence as a
result of technological innovation, and which did not exist at the time that the concession in the
Schedule w as agreed upon. In this respect, we agree with prior interpretations of the scope of
Members' obligations under their WTO Schedules.322

312 Türkiye's third-party response to Panel question Nos. 8-10, p. 9.
313 Türkiye's third-party response to Panel question No. 15, p. 2.
314 United States' third-party response to Panel question No. 3, para. 4.
315 United States' third-party response to Panel question No. 6, para. 13.
316 United States' third-party response to Panel question No. 6, para. 14.
317 United States' third-party response to Panel question No. 8, para. 18.
318 United States' third-party response to Panel question No. 9, para. 21.
319 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).
320 India's opening statement at the second meeting of the Panel, p. 5.
321 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.
322 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

7.64. 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.323 However, the relevance of the HS depends on the specific
interpretative question at issue (including whether the relevant concessions were based o n the
HS).324 It is also uncontested by the parties that, pursuant to the rules of interpretation of the HS,
any product at any moment in time must fall within the product scope of a tariff item in the
HS nomenclature.325 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.326
7.65. Thus, for those Members whose WTO Schedules are based on the HS, such as India327, where
a product is classified under a particular HS heading or subheading of a Member's Schedule, that
product would also fall within the scope of a WTO Member's obligations unless the Schedule specifies
otherwise. This includes new products that only come into existence following the binding of a
Member's commitments with respect to the relevant heading or subheading.
7.66. From the foregoing, it is clear that as a general rule the product scope of Members' tariff
concessions evolves over time to capture products th at may come into existence as a result of
technological developments. The only question that arises in this dispute is whether that general
rule is modified by virtue of the 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.

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 th e notion that the ordinary
meaning to be attributed to those terms can only be the meaning that they had at the time the
Schedule was concluded would mean that very similar or identically worded commitments could
be given different meanings, content, and coverage depending on the date of their adoption or the
date of a Member's accession to the treaty. Such interpretation would undermine the predictability,
security, and clarity of GATS specific commitments, which are undertaken through successive
rounds of negotiations, and which must be interpreted in accordance with customary rules of
interpretation of public international law.
(Ibid. para. 397 (footnotes omitted))
Similarly, in Greece – Phonograph Records, a GATT 1947 Group of Experts addressed whether "long-
playing" records were covered by the bound duty for "gramophone record" given that "such records did
not exist at the time the Greek Government granted the … concession [at issue], that they contained a
volume of recordings up to five times that of the old records, that they were lighter than conventional
records, that they were made of different material and that, therefore, as a new product, they were not
covered by the item bound" in Greece's Schedule. (Group of Experts Report, Greece – Phonograph
Records, p. 1). The Group of Experts "agreed that the practice generally followed in classifying new
products was to apply the tariff item, if one existed, that specified the products by name, or, if no such
item existed, to assimilate the new products to existing items in accordance with the principles
established by the national tariff legislation." (Ibid. p. 1). The Group found that long-playing
gramophones, developed after Greece made the relevant tariff concession, were covered by the
description of "gramophone records" in Greece's Schedule. (Ibid. p. 2).
323 See Appellate Body Reports, EC – Computer Equipment, para. 89; EC – Chicken Cuts, paras.
195-197; and China – Auto Parts, paras. 146 and 149.
324 See e.g. Panel Reports, EC – IT Products, para. 7.443.
325 India's response to Panel question No. 10, para. 31 ("[t]he General Rules of Interpretation, annexed
to the [HS Convention], allow for all products to be classified under one or the other heading of any version of
the HS, and therefore, also the Schedule of Concessions of any given country (if unbound tariff lines are also
included in the Schedule of Concessions)" (emphasis original)); European Union's response to Panel question
No. 101 ("[t]he European Union considers that the HS nomenclature is exhaustive in the sense that every good
must find its place in the HS").
326 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 EU-54), para. 4).
327 See para. 2.16 above.

7.67. In our view, India's argument rests on two premises: (i) the product scope of Attachment A
of the ITA is static, such that it "does not include technological advancements" 328; and (ii) the ITA
similarly limits the product scope of India's WTO Schedule.329 We note that it would only be necessary
to interpret the ITA for purposes of assessing India's first premise if India is correct regarding the
second premise. Given that the ITA is not a covered agreement, and does not set forth the tariff
concessions at issue in this dispute, we proceed on an arguendo basis to assess whether, assuming
that the product scope of the ITA is indeed static, the ITA limits the product scope of India's
WTO Schedule.
7.68. We therefore turn to address whether, assuming that the product scope of the ITA is static,
it limits the scope of certain Members' WTO tariff commitments. We recall t he 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 the ITA and its WTO Schedule, while the general rule described above
would continue to apply to WTO Members who are not participants in the ITA, WTO Members who
are participants in the ITA would be subject to a different rule. In other words, under India's
approach, a tariff concession set forth in an ITA participant's WTO Schedule would have a different
product scope to the same tariff concession set forth in a non-ITA participant's Schedule.
7.69. In our view, India's interpretation is at odds with the multilateral principles of reciprocity and
mutually advantageous arrangements underpinning the multilateral trading system.330 To interpret
the product s cope 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.
7.70. We note that India has not pointed to any provision in the ITA indicating that the ITA excluded
from the scope of participants' WTO tariff commitments new products resulting from technological
developments, if such new products were to fall within the scope of the relevant tariff commitments
in Members' Schedules as interpreted pursuant to the general rules of treaty interpretation. We are
aware of India's argument that the ITA specifically requires ITA participants to "mee t periodically"
and modify the product scope of the ITA "in light of technological developments".331 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 M embers'
tariff commitments as set forth in their WTO Schedules would be excluded from the coverage of
Members' existing WTO commitments.
7.71. We also note India's argument that its WTO Schedule should be given a "special meaning",
pursuant to Article 31(4) of the Vienna Convention, because the participants to the ITA "intended to
limit the scope of Attachment A to the HS1996 Nomenclature".332 Article 31 of the Vienna Convention

328 India's first written submission, subheading IV.A.
329 India's opening statement at the second meeting of the Panel, p. 5.
330 See the third recital of the preamble to the WTO Agreement.
331 India's first written submission, para. 101 (quoting ITA, Annex: Modalities and Product Coverage,
para. 3).
332 India's second written submission, para. 45. 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, p. 5 (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

sets forth the "General rule of interpretation" of international treaties. Paragraph 4 of Article 31
indicates that:
A special meaning shall be given to a term if it is established that the parties so intended.
7.72. In our view, the reference in this provision to "the parties" includes all parties to a treaty, and
not some of those parties.333 We note that India's WTO Schedule forms part of the GATT 1994 and
the WTO Agreement. The "parties" to the GATT 1994 and the WTO Agreement include all Members
of the WTO. Moreover, India's WTO Schedule governs its tariff obligations with respect to all imports
from all WTO Members, and not solely the participants in the ITA. We understand that the ITA was
not signed by all WTO Members. Since the ITA was agreed to by only some of the Members of the
WTO, we do not see how the ITA could signal the intentions of the parties to the WTO Agreement
with respect to any of its treaty terms (including the terms set forth in India's WTO Schedule). We
therefore consider that the present 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.
7.73. For these reasons, we see no basis to interpret India's WTO Schedule differently to how we
would interpret the Schedule of a WTO Member who was not a participant in the ITA. Consequently,
a number of India's interpretative arguments regarding the static nature of the ITA are not relevant
for purposes of interpreting India's WTO Schedule, as elaborated below.
7.74. India argues that Members' intentions to maintain a static product scope for the ITA is
demonstrated by the content of the ITA itself, various subsequent practice of the participants in the
ITA, and the product scope of the ITA Expansion. Regarding the con tent 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[]".334 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 additional products." 335 Regarding the subsequent
practice of the participants in the ITA, India argues th at "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". 336 Regarding
the ITA Expansi on, 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.337
7.75. We understand that India's arguments in this respect pertain to the respe ctive scope and
content of the ITA and the ITA Expansion. Thus, India relies on two agreements concluded by some
Members to interpret the rights and obligations of all Members. As explained above, the
interpretation advocated by India would essentially rea d identical tariff commitments of various
WTO Members differently, depending on whether they were participants in the ITA and the

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.
333 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.
334 India's first written submission, para. 99.
336 India's second written submission, para. 49.
337 See e.g. India's first written submission, paras. 140-148; opening statement at the second meeting
of the Panel, p. 6; and response to Panel question No. 62, para. 20.

ITA Expansion. In our view, the scope and content of the ITA and ITA Expansion cannot modify the
scope and content of India's tariff commitments as set forth in its WTO Schedule.
7.76. Similarly, the statements and pronouncements referred to by India as relevant "subsequent
practice" relate to the ITA, and not to the content of India's WTO Schedule. If we were to take into
consideration the actions of certain participants in the ITA for purposes of interpreting India's
WTO Schedule, it would conflate these two agreements in a manner that is legally incorrect. ITA
participants may debate the scope and content of their obligations under the ITA. However, even
assuming that those debates constitute "subsequent practice" to the ITA – an issue on which we
refrain from taking any position – they do not concern India's WTO Schedule and necessarily exclude
a considerable portion of the WTO Membership who are not participants in the ITA. As stated above,
we do not consider that a group of WTO Members can define treaty terms for all WTO Members.
7.77. Having said that, given the importance that India appears to attribute to the product scope
of the ITA Expansion, we wish to briefly note there is no indication in the ITA Expansion that the
product scope of that agreement does not overlap with the ITA. We understand, in fact, that the
negotiating history of the ITA Expansion suggests that there is indeed such an overlap of products.338
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).
7.78. Finally, we note India's ar gument that the ITA "qualifies as context to Schedule [s] of
Concessions under Article 31(2)(b) of the Vienna Convention and is therefore relevant for
interpreting the tariff concessions at issue in this dispute". 339 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' obligation s 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.340
7.79. We understand that India relies on the ITA as context to interpret its WTO Schedule
specifically to show that the concessions set forth in its WTO Schedule cover products that were not
covered by the ITA. In our view, to the extent that a product is, on its f ace, covered by India's
WTO Schedule, that legal obligation would not be changed merely because that product is not
covered by the ITA. Since India's arguments invoking the ITA as "context" for purposes of
interpreting its Schedule are focused on 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.

338 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. 39). 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.).
339 India's response to Panel question No. 4, para. 18. We note the finding of the panels in EC – IT
Products that the ITA "may serve as context within the meaning of Article 31(2)(b) of the Vienna Convention
for the purpose of interpreting tariff concessions". (Panel Reports, EC – IT Products, para. 7.383). The panels
in that dispute considered that the ITA represented an instrument "made by one or more parties in connection
with the conclusion of the treaty". (Ibid. para. 7.384).
340 See para. 7.64 above.

7.80. For the foregoing reasons, we consider it appropriate to assess the scope of India's WTO tariff
commitments by looking at India's WTO Schedule . Where necessary, we will interpret the scope of
that Schedule by applying the general rules of interpretation set forth in Article 31 of the Vienna
Convention. For the reasons articulated above, we do not consider it relevant to examine the product
scope of the ITA as "context" to interpret India's WTO Schedule. In addition, we do not consider that
Members' subsequent practice with respect to the ITA (such as the scope of the ITA Expansion) can
modify the scope of India's WTO Schedule.341
7.3.2.4 Conclusion
7.81. We have addressed above India's contentions that the ITA is the source of India's legal
obligations in this dispute. We disagree. We have also addressed above whether the ITA modifies or
limits the scope of India's WTO tariff commitments set forth in its WTO Schedule. Without taking a
position on whether the scope of India's concessions under the ITA is "static" in nature, we consider
that the ITA cannot overwrite the tariff commitments set forth i n India's WTO Schedule (which are
not static in nature). We therefore proceed to apply Articles II:1(a) and (b) by comparing, on the
one hand, the tariff treatment accorded by India to certain products, and, on the other hand, India's
WTO tariff commitment s 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.342
7.3.3 Article 48 of the Vienna Convention
7.3.3.1 Introduction
7.82. As described in section 2.3 above, in 2006, in preparation for the transposition of Members'
Schedules from the HS2002 to the HS2007, the General Council adopted a Decision on HS2007
Transposition Procedures. Pursuant to that Decision, developed country Members were to prepare
their own transpositions from the HS2002 to the HS2007, and the WTO Secretariat was requested
to "transpose the schedules of developing country Members, except for those who undertake to
prepare their own transposition and submit a notification to this effect". 343 Since India did not
indicate that it intended to undertake the transposition of its Schedule from the HS2002 to the
HS2007, the WTO Secretariat p repared India's transposition and, on 8 November 2013,
communicated to India via email the draft files for the HS2007 transposition of India's Schedule.344
Following receipt of the draft transposition files prepared by the WTO Secretariat, India provided
comments on the draft files. 345 The Secretariat then communicated a revised file to India for
approval.346 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.347 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.348
7.83. India submits that, at the time of the transposition of its WTO Schedule to the HS2007, it had
understood that the scope of its tariff concessions would not be expanded from the commitments it
had undertaken under the ITA. However, in India's view, the transposition of its Schedule resulted

341 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).
342 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).
343 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 2.
344 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50).
345 India did not provide comments or seek clarifications regarding the transposition of the tariff items at
issue in this dispute. (Email from Market Access Intelligence Section, WTO, to India (12 February 2014),
(Exhibit IND-51)).
346 India's response to Panel question No. 19, paras. 60-61.
347 Committee on Market Access, Rectification and Modification of Schedules, Schedule XII – India,
Communication from the Secretariat, G/MA/TAR/RS/409, 12 May 2015.
348 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.

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".349 India
argues that Article 48 of the 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 S tate cannot have freely concluded a treaty if at the time of giving
its consent it was under a misapprehension relating to the subject matter of the treaty". 350 India
considers that "the core issue before the Panel is whether the products at issue are entit led for
exemption from customs duty as a result of informed and free consent of India, or a result of
technicalities invoked by" the complainant.351 India further submits that, although Article 48 would
ordinarily lead to the invalidation of the entire trea ty, 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. 352 India submits that since the
contested tariff items are invalid, they are "rendered unbound".353
7.84. The European Union agrees with India that Article 48 of the Vienna Convention constitut es
customary international law that is applicable in WTO dispute settlement. 354 However, the
European Union considers that the present circumstances fail to satisfy the substantive requirements
of paragraphs 1 and 2 of Article 48. Specifically, the European Union argues that the alleged error
does not relate to a "fact or situation" within the meaning of Article 48(1) . The European Union
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).355 The European Union also considers that India
has not demonstrated that the requirements of Articles 44 and 45 of the Vienna Convention are
satisfied in the present proceedings.356
7.85. Article 48 of the Vienna Convention is titled "Error" and provides as follows:
1. A State may invoke an error in a treaty as invalidating its consent to be bound by
the treaty if the error relates to a fact or situation which was assumed by that State to
exist at the time when the treaty was concluded and formed an essential basis of its
consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to
the error or if the circumstances were such as to put that State on notice of a possible
error.
3. An error relating only to the wording of the text of a treaty does not affect its validity;
article 79 then applies.
7.86. A Commentary on the Vienna Convention states that Article 48 is "based on the premise that
freedom of consent … is an indispensable condition for the validity of a treaty" and a "State cannot
be considered to have freely concluded a treaty if at the time of giving its consent, it was under a
misapprehension about the subject matter of the treaty". 357 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 a t 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".358

349 India's first written submission, fn 101 to para. 65.
350 India's first written submission, para. 55.
351 India's second written submission, para. 5.
352 India's first written submission, paras. 86-90.
353 India's first written submission, para. 91.
354 European Union's response to Panel question No. 14, paras. 41-52.
355 European Union's opening statement at the first meeting of the Panel, paras. 18-55; second written
submission, paras. 3-17.
356 European Union's response to Panel question No. 91, paras. 9-22.
357 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of
Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14), p. 879.
358 T. Rensmann, "Article 48" in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of
Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14), pp. 879-880. (emphasis omitted)

7.87. Paragraph 1 of Article 48 sets out the essential criteria that must be satisfied in order for a
State to claim that its consent to be bound by a treaty was invalid due to an error related to a fact
or situation, including the requirements that the error both (i) was assumed to exist by the State in
question at the time when the treaty was concluded, and (ii) formed an essential basis for its consent
to be bound. Paragraph 2 establishes that, in certain circumstances, a State cannot invoke error as
a ground for invalidating its consent to be bound, even if the requirements of paragraph 1 are
satisfied. 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".
7.88. We understand that the requirements of paragraphs 1 and 2 are cumulative – if any of the
requirements of either paragraph are not satisfied, then a party's invocation of error under Article 48
fails. Paragraph 3, which distinguishes Article 48 from Article 79 of the Vienna Convention, is not
relevant in the present dispute.359
7.89. A threshold issue concerns whether Article 48 of the Vienna Convention constitutes an
applicable rule of law that can be invoked in WTO dispute settlement. While the parties to this dispute
agree that Article 48 is applicable in WTO dispute settlement, the issue of applicability is contested
by several of the third parties. 360 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 .361 In our view, it would only be
necessary for us to take a position on this issue if it is the case that the substantive requirements of
Article 48 are indeed satisfied. If the substantive requirements of Article 48 are not satisfied, then
it is a moot question whether Article 48 is an applicable rule of law in WTO dispute settlement. We
therefore defer addressing the question of applicability until after we have examined the substantive
requirements of Article 48. A similar approach has been taken by several previous panels.362
7.90. We also note the parties' disagreement concerning Article 45 of the Vienna Convention. 363
Article 45 concerns the loss of a right to invoke a ground for, inter alia, invalidating the operation of

359 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 response
360 See e.g. European Union's response to Panel question No. 14, paras. 41-55; India's response to
Panel question No. 16, paras. 47-53; Chinese Taipei's third-party statement, paras. 11-13; Japan's third-party
response to Panel question No. 11, para. 38 and third-party statement, paras. 15-20 and 25; Korea's third-
party response to Panel question No. 17, paras. 7-9 and third-party submission, paras. 11-12; and United
States' third-party submission, paras. 42-43.
361 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.).
362 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
363 European Union's response to Panel question No. 91, paras. 17-22; India's first written submission,
paras. 79-85.

a treaty.364 The parties contest whether, even assuming that the requirements of Article 48 are
satisfied, India has nonetheless lost its right to invoke Article 48 because, pursuant to Article 45(b),
India "must by reason of its conduct be considered as having acquiesced in the validity of the treaty".
As with the issue of Article 48's applicability, we consider that it would only be necessary to address
the applicability and application of Article 45 if we were to conclude that the substantive
requirements of Article 48 are satisfied and that Article 48 is applicable in WTO dispute settlement.
7.91. We further observe the parties' disagreement regarding Art icle 44 of the
Vienna Convention.365 We understand that under the structure and logic of the Vienna Convention,
if the cumulative requirements of Articles 45 and 48 are applicable and satisfied, then, pursuant to
the terms of Article 44(2) of the Vienna Con vention, this would invalidate the relevant State's
consent to be bound by the entire treaty – not specific aspects of that treaty.366 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.367 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. 368 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.
7.92. We therefore assess the parties' arguments regarding, in turn, Articles 48(1) and (2).
7.3.3.2 Article 48(1)
7.3.3.2.1 Main arguments of the parties
7.93. India argues that certain tariff items in its WTO Schedule are invalid, and therefore unbound,
because it "was in error as to the scope of the contested sub -heading commitments in the
2007 Schedule, at the time of its certificat ion, as a result of the complex nature of the HS2002 to
HS2007 transposition".369 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[]".370 India argues that this is "because … it
never intended on joining the [ITA Expansion] and made several pronouncements regarding the
same".371 India provides considerable argumentation seeking to demonstrate that its commitments

364 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.
365 See European Union's response to Panel question No. 91, paras. 9-16; India's first written
submission, paras. 86-91.
366 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."
367 See Article II:2 of the WTO Agreement.
368 India's first written submission, para. 87. 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.
369 India's first written submission, para. 57.
370 India's first written submission, para. 63.
371 India's first written submission, para. 63 (referring to WTO, Committee of Participants on the
Expansion of Trade in Information Technology Products, Minutes of the meeting held on 1 November 2012,

as set forth in its certified WTO Schedule cover products that are not covered by the ITA. 372 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".373 India notes that "a leading commentary … observes that 'Article 48
does not exclude mixed questions of fact and law and the line between one and the other may not
always be easy to draw'". 374 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".375
7.94. According to the European Union, "India's mistaken 'assumption', at the time of t he
certification of its 2007 GATT Schedule, 'that the HS2007 transposition did not expand India's tariff
commitments beyond India's obligations under the ITA[]'" was not in error, because the
transposition of India's WTO Schedule did not "expand the scope of India 's pre -existing tariff
concessions".376 Moreover, the European Union submits that "[t]he term 'relates to a fact or
situation' makes it clear that an 'error of law' does not constitute a ground for invalidating
consent".377 The European Union argues that the present alleged "error involves a misinterpretation
by India of the terms of the treaty on which the European Union bases its claims" and such an error
"is a manifest unmixed error of law", which falls outside the scope of Article 48(1).378
7.3.3.2.2 Main arguments of the third parties
7.95. Brazil considers that "the 'material scope of commitments' resulting from [HS] transpositions
is a 'fact' or 'situation' in relation to which a State could hypothetically be in error." 379 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". 380 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".381
7.96. 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 to certification of its Schedule could qualify as a 'fact or a situation …
assumed by that State to exist at the time' within the meaning of Article 48." 382 Canada considers
that "the 'fact or situation' allegedly assumed by India here … captures the products at issue, the

G/IT/M/56). See also ibid. para. 59 and fn 90 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).
372 India's first written submission, section IV.
373 India's response to Panel question No. 67, para. 31.
374 India's response to Panel question No. 67, para. 32 (quoting M. E. Villiger, Commentary on the 1969
Vienna Convention on the Law of Treaties (Martinus Nijhoff, 2009), (Exhibit IND-13), p. 608).
375 India's response to Panel question No. 67, para. 32.
376 European Union's opening statement at the second meeting of the Panel, para. 5 (quoting India's
first written submission, para. 59).
377 European Union's second written submission, para. 7. The European Union notes in this regard that
the commentary of the International Law Commission to the Final Draft of the Vienna Convention indicates that
the term "'fact or situation' was intended to make clear that an error of law does not constitute a ground for
invalidating consent". (European Union's opening statement at the first meeting of the Panel, para. 24
(referring to "Draft Articles on the Law of Treaties with commentaries" in Yearbook of the International Law
Commission (1966), Vol. II, Commentary to Article 45, (Exhibit EU-43), p. 244, para. 6)). The European Union
also notes that if "errors of law were covered by Article 48.1 of the VCLT, it would be open to the respondent in
virtually every WTO dispute to invoke, as an alternative defence, the invalidity of its consent to the provisions
relied upon by the claimant, on the ground that the respondent had made an error with regard to the correct
interpretation of that provision". (Ibid. para. 29).
378 European Union's second written submission, para. 11.
379 Brazil's third-party response to Panel question No. 16, para. 4.
380 Brazil's third-party response to Panel question No. 16, para. 7.
381 Brazil's third-party submission, para. 21 (referring to International Court of Justice (ICJ), Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: ICJ Reports
1962, p. 6; ICJ, Kasikili/Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999: ICJ Reports
1999, p. 1045; Permanent Court of International Justice (PCIJ), Legal Status of Eastern Greenland (Denmark
v. Norway), Judgment of 5 September 1933, PCIJ (ser. A/B) No. 53.; and ICJ, Case concerning Sovereignty
over certain Frontier Land (Belgium v. Netherlands), Judgment of 20 June 1959: ICJ Reports, p. 209).
382 Canada's third-party response to Panel question No. 16, para. 3.

terms used to accurately describe them, and the context surro unding 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".383 Canada also questions whether "purely formal or technical amendments to
treaties, such as those wh ich 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."384
7.97. Japan argues that India has failed to demonstrate that the present circumstances satisfy the
requirements of Article 48(1) because: (i) India has failed to demonstrate the existence of an error,
since the transposition to the HS2007 merely transposed existing commitments without changing
the scope of those concessions; and (ii) India failed to demonstrate that a material error related to
a "fact or situation" exists. 385 Japan considers that "[t]here was no error because India's tariff
concessions as included in its Schedule which was certified in 1997, after the conclusion of the ITA[],
already covered the products at issue." 386 Japan considers that this "is demonstrated by the
correlation tables between the HS 2002/HS 1996 and the HS 2007 which were prepared by the
secretariat of the WTO ('WTO Secretariat') and circulated to the WTO Members." 387 Japan also
submits that "[a]n error regarding the scope of a tariff commitment clearly does not concern 'a fact
or situation' since it relates to the scope [of] a treaty provision".388
7.98. 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. 389 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".390
7.99. Chinese Taipei submits that "no error occurred, and India has not shown otherwise". 391
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 48.392 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".393
7.100. 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'". 394 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[]'".395
7.3.3.2.3 Panel's assessment
7.3.3.2.3.1 General considerations
7.101. Article 48(1) indicates that:
A State may invoke an error in a treaty as invalidating its consent to be bound by the
treaty if the error relates to a fact or situation which was assumed by that State to exist

383 Canada's third-party response to Panel question No. 16, para. 5.
384 Canada's third-party response to Panel question No. 17, para. 7.
385 Japan's third-party statement, paras. 22-23.
386 Japan's third-party response to Panel question No. 16, para. 10. (footnote omitted)
387 Japan's third-party response to Panel question No. 16, para. 10. (footnotes omitted)
388 Japan's third-party response to Panel question No. 16, para. 11.
389 Korea's third-party submission, para. 13.
390 Korea's third-party response to Panel question No. 16, para. 6.
391 Chinese Taipei's third-party response to Panel question No. 16, para. 8.
392 Chinese Taipei's third-party response to Panel question No. 16, paras. 5-9.
393 Chinese Taipei's third-party response to Panel question No. 16, para. 9.
394 United States' third-party response to Panel question No. 16, para. 9.
395 United States' third-party response to Panel question No. 16, para. 9 (quoting India's first written
submission, para. 57).

at the time when the treaty was concluded and formed an essential basis of its consent
to be bound by the treaty.
7.102. 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.
7.103. 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 48.396 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.
7.104. 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 essen tial 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
7.105. 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[]".397 We therefore proceed to assess whether India held this assumption.
7.106. India argues that the existence of its assumption is demonstrated by the fact that, at the
time of the certification of the changes to the Schedule, "India had already made its intention clear
of not expanding its obligations under the ITA[] via the HS2007 transpos ition 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". 398 India refers to "several pronouncements" made by India
indicating that India did not intend to join the ITA Expansion.399 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."400
7.107. The European Union notes that India did not indicate to the WTO Secretariat or Membership
its desire to not extend its WTO tariff commitments beyond those contained in the ITA.401
7.108. 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

396 European Union's response to Panel question No. 14, para. 45 ("[t]he burden of proof is on the
defendant alleging the error"); India's response to Panel question No. 17, para. 57 ("the party invoking error
bears the burden of proving that the conditions under Article 48(1) have been met").
397 India's first written submission, para. 27.
398 India's first written submission, para. 64.
399 India's first written submission, para. 63.
400 India's first written submission, para. 64.
401 European Union's comments on India's response to Panel question No. 95, para. 11.

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 2012402:
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 tar gets in terms of manufacturing in the
electronics sector, as well as the overall manufacturing sector of the country. As a result,
stakeholders had expressed serious reservations and he wanted to place these
reservations on record.403
7.109. We understand that the "technical discussions" referred to in this passage concerned a
review of the product coverage of the ITA. In our view, these Minutes reveal that India had
"reservations" regarding increasing the product scope of the ITA. We see no mention of India's WTO
tariff commitments, the HS2007 transposition process or any indication of India's intentions with
respect to that process.
7.110. India also refers to the following passages of the Minutes of the meeting held on 15 May
2012404:
1.5 The representative of India thanked the Chairman for his report on the IT
Symposium and requested that his country's name be removed from the sentence which
stated that some countries had benefited from the ITA in terms of increasing
employment, IT spending and investment.
…
3.11 The representative of India thanked the US delegation and other co-sponsors for
the concept paper. He supported the statement made by El Salvador also on behalf of
others (Guatemala, Honduras, Nicaragua and the Dominican Republic) on the fact that
the Commit tee 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 wonde red 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
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 actual ly solved the problem in the first place. He posed a
question to the Secretariat regarding procedures for consultations concerning the

402 India's first written submission, fn 88 to para. 57, fn 90 to para. 59, fns 96-98 to paras. 63-64,
403 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.
404 India's first written submission, fn 90 to para. 59.

decision of Paragraph 3 of the Annex to the Ministerial Declaration which gave the
mandate to the CTG. He said that there was a decision which 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. However , there were no procedures in place for
subsequent reviews. Thus he wished to have some clarification from the Secretariat on
this.405
7.111. 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.
7.112. 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 produ cts, 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 actuall y solved the
problem in the first place".406 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.
7.113. We also note India's argument that its understanding and intentions with respect to its
Schedule were clear from the fact that, as from 2014, prior to the certification of the changes to the
Schedule, India had already begun levying duties on certain products that fall under the contested
tariff items. In our view, however, this argument is partially undermined by the fact that, prior to
2014, India had indeed been according duty -free treatment to almost all products at issue in this
dispute.407 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).408
7.114. We do not wish to speculate on India's reasons for applying certa in 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.409 To a certain extent, it would be circular if parties invoking Article 48 of the
Vienna Convention could rely on their violation of treaty obligations to demonstrate that they
committed an "error" in agreeing to be bound by that treaty. We therefore do not consider that
India's application of duties to certain products at issue in this dispute demonstrates that, at the
time when the changes to its WTO Schedule were certified 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.
7.115. Notwithstanding our reservations regarding the evidence adduced by India, we recognize
that evidence of an "assumption" may be difficult to obtain. To the extent that such an assumption
is a widely held implicit understanding, there may be little to no documentary evidence. We therefore
do not consider India's lack of documentary evidence sufficient to conclude that India has not met
its burden of proof with respect to the existence of its assumption. We also note India's arguments

405 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.
406 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.
407 European Union's first written submission, paras. 67-68. See also Chinese Taipei's third-party
submission, para. 3.29 and section 4; Japan's third-party submission, paras. 18, 33, 42, 49, 56, and 63.
408 See European Union's first written submission, paras. 79-84, 91-104, 111-115, 122-129, and
138-152. 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.
409 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.

and assertions in the course of these proceedings regarding the assumptions it held during the
transposition process.410
7.116. 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.411
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)
7.117. 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).
7.118. 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".412 According to India,
"[t]hat a mistaken 'fact or situation' may have legal consequences (as indeed all contested errors
would) does not make the error a legal error". 413 India submits that its "factual or situational error
was in relat ion 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". 414 In India's view, "similar errors relating to technical ent ries have
previously been considered as a potential ground for invalidity in international law."415
7.119. The European Union argues that the alleged "error involves a misinterpretation by India of
the terms of the treaty on which the European Union bases its claims" and "[s]uch an error is a
manifest unmixed error of law and, therefore, falls squarely outside the scope of Article 48.1 of the
VCLT".416 The European Union further argues that "[i]f errors of law were covered by Article 48.1 of
the VCLT, it would b e open to the respondent in virtually every WTO dispute to invoke, as an
alternative defence, the invalidity of its consent to the provisions relied upon by the claimant, on the
ground that the respondent had made an error with regard to the correct interp retation of that
provision".417
7.120. 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 o f Article 48(1).418 Indeed, we agree with the parties that pure legal
error falls outside the scope of Article 48(1).419 At the same time, we recognize that a Commentary

410 See e.g. India's first written submission, para. 63; and opening statement at the second meeting of
the Panel, p. 2.
411 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.
412 India's response to Panel question No. 67, para. 32. See also India's second written submission,
paras. 8 and 20-23.
413 India's second written submission, para. 22. See also India's response to Panel question No. 67,
para. 33.
414 India's second written submission, para. 22.
415 India's response to Panel question No. 67, para. 33.
416 European Union's second written submission, para. 11.
417 European Union's opening statement at the first meeting of the Panel, para. 29.
418 See e.g. India's second written submission, paras. 21-22; and response to Panel question No. 67.
419 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

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."420
7.121. 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 therefore also 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 factu al 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.
7.122. 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 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 b ound by its WTO
Schedule
7.123. 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 ass umption (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.
7.124. India argues that "it should be evident that Indi a would not have certified the contested
sub-headings in its 2007 Schedule had it not been in error" and that "India had communicated to
the wider WTO membership previously that it did not intend to expand its tariff commitments beyond
those contained in t he ITA[]".421 As evidence of these communications, India refers to the same
evidence and arguments adduced to demonstrate the existence of its assumption, specifically
"several pronouncements" made by India indicating that India did not intend to join the
ITA Expansion.422 India argues that "[c]learly, India's intent was never to expand upon its obligations
under the ITA[], with such intent having been communicated in advance via various committee
meetings as well as confirmed in practice via certain customs tariff levies."423 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."424

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, p. 22; 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)).
420 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)
421 India's second written submission, para. 24.
422 India's first written submission, para. 63.
423 India's first written submission, para. 64.
424 India's response to Panel question No. 95, para. 31.

7.125. The European Union notes that India did not indicate to the WTO Secretariat or Membership
its desire to not extend its WTO tariff commitments beyond those contained in the ITA.425
7.126. 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 est ablished 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 ).426 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".427 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". 428 We note that document s G/MA/W/67 and G/MA/W/76 a re
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.429
7.127. 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").430 This document, in its introduction, explains that
it "describes the guidelines that the Secretariat intend[ed] to follow for the implementation of the
HS 2007 transposition" and "provides a detailed description of the methodology that the Secretariat
[would] follow in the HS 2007 transposition exercise". 431 Furthermore, Annex I of document
G/MA/283 contains the HS2002 to HS2007 correlation tables prepared by the WTO Secretariat,
based on document G/MA/W/76, but updated to account for "[f]urther am endments to the HS by
the WCO".432

425 European Union's comments on India's response to Panel question No. 95, para. 11.
426 See e.g. India's first written submission, fn 52 to para. 37, fn 71 to para. 48, and fn 100 to para. 65;
European Union's response to Panel question No. 75, para. 107 and fn 74 thereto.
427 General Council Decision on HS 2007 Transposition Procedures, WT/L/673, para. 5.
428 General Council Decision on HS 2007 Transposition Procedures, WT/L/673, Annex 2, para. 7.
429 Committee on Market Access, International Convention on the Harmonized Commodity Description
and Coding System – Changes in the Harmonized System to be introduced on 1 January 2007, G/MA/W/67;
Committee on Market Access, Harmonized Commodity Description and Coding System – Changes in the
Harmonized System to be Introduced on 1 January 2007, G/MA/W/76. We note that none of the parties
appears to have referred to document G/MA/W/76 in their submissions to the Panel. It is, however, explicitly
referenced in the General Council Decision on HS2007 Transposition Procedures, contained in document
WT/L/673, which is referred to by the parties. (See e.g. India's first written submission, fn 100 to para. 65).
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.
430 Committee on Market Access, Transposition of Members' CTS Files to the HS 2007 Nomenclature –
Notes on Methodology, approved on 26 April 2012, G/MA/283. We note that none of the parties referred to
document G/MA/283 in their submissions to the Panel, until this document was raised by the Panel in a
question to the parties. It is, however, referenced numerous times in an Exhibit submitted to the Panel by
India. (See Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50), Attachment 3, CTS HS2007
Transposition Note XII - India). In accordance with our approach to document G/MA/W/76, we consider that
document G/MA/283 is part of the official record. (See fn 429 to para. 7.126 above).
431 G/MA/283, paras. 1-2.
432 G/MA/283, Annex I, fn 1 on p. 24.

7.128. 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. 433 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
HS2007.434 Since these procedures did not contemplate any kind of comparison or discussion of the
ITA, we understand that if India, or i ndeed 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.
7.129. These documents indicate that, in the absence of any evidence to the contrary, India's
governing assumpti on and intention, during the transposition of its Schedule, was for the
WTO Secretariat to follow the agreed -upon procedures, including the relevant agreed -upon
correlation tables. The fact that India approved the content of these 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 for the transposition of its Schedule to follow those
multilaterally approved procedures, including the relevant correlation tables.435
7.130. It is in this context that we observe India's assertion that "the WTO Membership, at large,
including the European Union, 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". 436 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. 437 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.
7.131. We have reviewed the Minutes of these meetings in paragraphs 7.108 to 7.112 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 Sch edule 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".438
7.132. In our view, aspects of these Minutes indicate that Members disagreed as to the tariff
classification of products falling under the ITA .439 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 highl ight 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.

433 See WT/L/673, Annex 2, paras. 1-7. See also G/MA/W/67; G/MA/W/76; and G/MA/283.
434 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)
435 WT/L/673; G/MA/W/67; G/MA/W/76; and G/MA/283.
436 India's second written submission, para. 30.
437 India's response to Panel question No. 95, para. 40; first written submission, para. 63 and fn 213 to
para. 143.
438 India's response to Panel question No. 95, para. 30.
439 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

7.133. We also note that in these dispute settlement proceedings India has not sought to
demonstrate that any technical errors occurred during the transposition process.440 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 concessio n may have
occurred due to the complex technical nature of the transposition".441 We address that issue further
below.442 For our present purposes, however, we note that India has not sought to demonstrate that
the Secretariat incorrectly applied the correla tion 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).
7.134. 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 its
obligations in the ITA. In our view, if India had held such condition to be fundamental to its
willingness to be bound by the outcome of the transposition process, it would have made this
condition obvious. Indeed, as discuss ed in greater detail below, India had numerous opportunities
to do so. 443 Based on the evidence before us, we can see no point at which India made such a
statement or otherwise expressed that intention.
7.135. We note that in support of its arguments under Article 48, India submits as evidence a Legal
Opinion by Professor Waibel. 444 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 essential basis for India's willingness to be bound by the ch anges to its Schedule.
There is no indication in Professor Waibel's Legal Opinion that he has any knowledge regarding this
factual question.
7.136. 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[]".445 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 should
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.
7.137. To sum up, we recall that the burden of proof und er Article 48(1) is on India. With respect
to this element of Article 48(1), India has provided no persuasive evidence that its assumption
constituted an essential basis of its consent to be bound by the certified Schedule. To the contrary,
India's conduct throughout the transposition process indicates that such a condition was not an
essential basis of its consent. On the basis of the evidence before us , we consider that India has
failed to satisfy its burden of demonstrating that its assumption (i.e. that the scope of its WTO tariff
commitments would not be expanded beyond the scope of its ITA undertakings) constituted an
essential basis for its consent to be bound by its HS2007 Schedule.

440 See India's response to Panel question No. 95(b).
441 India's first written submission, fn 101 to para. 65.
442 See section 7.3.3.3.3.2 below.
443 See para. 7.203 below.
444 Prof. M. Waibel, Legal Opinion on Error, (Exhibit IND-79).
445 Prof. M. Waibel, Legal Opinion on Error, (Exhibit IND-79), para. 37.

7.3.3.2.3.5 Whether India's assumption that its tariff commitments would not be
expanded beyond the scope of its ITA undertakings was in error
7.138. 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.
7.139. 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 8504.40, 8517.12, 8517.61,
8517.62, and 8517.70 of its WTO HS2007 Schedule were not covered by the ITA.446 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 th e ITA[])".447 India also emphasizes that it never intended to
undertake concessions with respect to products covered under the ITA Expansion, and that "[t]here
were simply no negotiations or commitments undertaken by India with respect to products that are
specifically covered within the ITA [Expansion]".448
7.140. The European Union argues that India's assumption was not in error because the
transposition of its WTO Schedule to the HS2007 merely transposed pre-existing concessions into a
new version of the HS nomenclature and "did not purport to expand and, in practice, did not expand
the scope of India's pre-existing tariff concessions".449 According to the European Union, "India did
not err by assuming that the HS 2007 transposition could not expand the scope of pre-existing
concessions in India's GATT Schedule", but rather "India erred by assuming that those pre-existing
concessions could not cover any products that did not exist at the time when the ITA[] was
concluded."450 The European Union further argues th at the scope of the ITA is not "limited to such
products or technical features of products which existed at that signing"451, and submits that "all of
the products at issue in the present case are covered by the ITA[]."452
7.141. We recall that the ITA is not a cov ered 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.
7.142. First, we emphasize that India's assertion of error concer ns 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 transpositi on 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
occurred in the transposition of its Schedule to the HS2007. 453 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.454

446 India's first written submission, paras. 66 and 92-221.
447 India's first written submission, para. 66.
448 India's first written submission, para. 68.
449 European Union's opening statement at the first meeting of the Panel, para. 19.
450 European Union's opening statement at the first meeting of the Panel, para. 20.
451 European Union's opening statement at the first meeting of the Panel, para. 77.
452 European Union's response to Panel question No. 62(b), para. 27.
453 See India's response to Panel question No. 95. Specifically, while India considers that certain
changes were not flagged by the WTO Secretariat, as required under the relevant procedures, India "does not
argue or emphasize any other facets of the technical exercise of transposing India's Schedules in accordance
with the multilaterally agreed and approved procedures and correlation tables". (Ibid. para. 32). India also
agrees that no mistakes occurred in any prior transpositions of its WTO Schedule. (India's response to Panel
question No. 89).
454 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

7.143. 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.455 In this respect, we have already concluded above that India is
mistaken with respect to the relationship between the ITA and its WTO Schedule.456 Specifically, we
concluded that as a general rule the product scope of Members' tariff concessions contained in their
WTO Schedules evolves over time to capture products that may come into existence as a result of
technological developments, and that this general rule is not changed for certain WTO Members by
virtue of their participation in the ITA.457
7.144. 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.458 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.
7.145. 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. 459 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". 460 India submits
that such transmission apparatus were defined in the HS1996 Explanatory Notes as apparatus "used
for the transmission of signals (representing speech, messages or still pictures) by means of electro-
magnetic waves which are transmitted through the ether without any line connection". 461 India
considers that this definition in the HS1996 Explanatory Notes sets forth a "cumulative and
exhaustive list" of products falling under this tariff item, such that "no apparatus which can transmit
signals representing any other media other than the three listed above, can be included in the scope
of heading 8525".462 India considers that since "mobile phones transmit signals representing video
information and other forms of multimedia", they fall outside the scope of heading 8525 of the
HS1996.463 India acknowledges that the Explanatory Notes to the HS1996 were amended to add
mobile phones as an example of transmission apparatus covered by heading 8525. 464 India
considers, however, that this does not change the "main definition" of such transmission apparatus
as being limited to apparatus capable of transmitting speech, mes sages, or still pictures. 465
Moreover, India argues that "the product scope agreed upon by India was the product scope as
delineated by the Explanatory Notes as on October 2, 1997" and since the amendment was adopted
in 1998, it is not relevant to the inter pretation of India's tariff commitments.466 India submits that
mobile phones capable of transmitting video were, in fact, classified under tariff item 8543.89 of the

Market Access, or the transposition process as undertaken by the WTO Secretariat. (See also para. 7.203
below).
455 India's opening statement at the second meeting of the Panel, p. 2.
456 See section 7.3.2.3 above.
457 See para. 7.66 above.
458 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 8504.40 ex01, 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. 149-184 and 204-221).
459 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. 151).
460 India's first written submission, para. 152. 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)).
461 India's second written submission, para. 87 (quoting HS1996 Explanatory Notes to Heading 8525,
(Exhibit IND-6)). (underlining original)
462 India's second written submission, para. 88.
463 India's second written submission, para. 89.
464 India's second written submission, paras. 91-92.
465 India's second written submission, para. 93.
466 India's second written submission, para. 94.

HS1996, which covers "other" products falling under heading 8543, which covers "electrical
machines and apparatus, having individual functions, not specified or included elsewhere in this
Chapter".467
7.146. The European Union 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.468 The European Union notes that the definition of "transmission apparatus for
Radio-telephony or Radio-Telegraphy" in the Explanatory Notes to the HS1996 is broad and is not
exhaustive, as indicated by the use of the words "inter alia".469 The European Union also notes that
the Explanatory Notes were amended in 1998 to explicitly indicate that "[c]ellular telephones or
mobile phones" were classified under heading 8525 of the HS1996.470
7.147. It is uncontested that, under the ITA, India undertook t o provide duty -free treatment to
"transmission apparatus incorporating reception apparatus", falling under tariff item 8525.20 of the
HS1996.471 India implemented this undertaking in its WTO HS1996 Schedule, such that a bound
duty rate of 0% was inscribed w ith respect to "[t]ransmission apparatus incorporating reception
apparatus" falling under tariff item 8525.20 of the HS1996.472 The issue debated by the parties is
whether cellular telephones or mobile phones (presently classified under tariff item 8517.12 of
India's WTO HS2007 Schedule) were classified under tariff item 8525.20 of India's WTO HS1996
Schedule.
7.148. We understand that mobile phones, on their face, are indeed transmission apparatus
incorporating reception apparatus.473 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.
7.149. It is also uncontested that the HS1996 and its Explanatory Note s constitute relevant
contextual aids for interpreting the scope of India's WTO tariff commitments as set forth in its
HS1996 Schedule. We note India's argument that the HS1996 Explanatory Notes exhaustively
defined relevant "transmission apparatus" fallin g under tariff item 8525.20 as apparatus "used for
the transmission of signals (representing speech, messages or still pictures ) by means of electro -
magnetic waves which are transmitted through the ether without any line connection". 474 India
considers that because "mobile phones transmit signals representing video information and other
forms of multimedia", they fall outside the scope of heading 8525 of the HS1996.475
7.150. The parties do not dispute that mobile phones are indeed apparatus capable of transmitting
speech, messages, or still pictures. In our view, the fact that mobile phones can also transmit other
signals does not eliminate the fact that they are capable of transmitting signals representing speech,
messages, or still pictures. We do not read the HS Explanatory Notes prior to the 1998 amendment
as excluding from the scope of tariff item 8525.20 products that completely satisfy the requirement
of being capable of transmitting speech, messages, and still pictures, but nevertheless are also

467 India's second written submission, para. 96.
468 European Union's response to Panel question No. 62(b), para. 30.
469 European Union's response to Panel question No. 62(b), para. 34.
470 European Union's response to Panel question No. 62(b), paras. 36-39 (referring to WCO,
HS Committee document 41.337 E, (Exhibit EU-44); WCO, HS Committee document 42.034 E,
(Exhibit EU-45); and WCO, HS Committee document 42.100 E, (Exhibit EU-46)).
471 See e.g. India's first written submission, para. 150.
472 WT/Let/181.
473 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)).
474 India's second written submission, para. 87 (quoting HS1996 Explanatory Notes to Heading 8525,
(Exhibit IND-6)). (underlining original)
475 India's second written submission, para. 89.

capable of transmitting other signals.476 Thus, the unamended HS1996 Explanatory Notes suggest
to us that cellular and mobile phones could fall within the scope of tariff item 8525.20 of India's WTO
HS1996 Schedule.
7.151. We further note that the WCO amendment of the HS1996 Explanatory Notes, introduce d in
1998, unambiguously indicates that cellular and mobile phones were indeed classified under tariff
item 8525.20 of the HS1996. 477 We disagree with India that this amendment is not relevant as it
occurred subsequent to India's inscription of its duty-free commitment with respect to this tariff item
in its WTO Schedule. As we have explained above, we consider that Members' WTO commitments
are not static, and India has not pointed to any provision of the ITA indicating that Members' WTO
tariff commitments undertaken in relation to the ITA would exclude products that subsequently come
into existence due to technological development and that would otherwise fall within the scope of
that tariff item. In short, we see no basis to exclude this amendment of the Explanatory Notes from
our consideration. That amendment further suggests that tariff item 8525.20 of the HS1996 covered
mobile phones. This is reinforced by the HS2002 Explanatory Notes, which also indicate that
transmission apparatus for radio -telephony or radio-telegraphy, falling under heading 8525 of the
HS2002, covers "[p]ortable radio -telephones, usually battery operated, of the 'walkie -talkie' type,
as well as cellular telephones (also called 'mobile phones')".478
7.152. 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"). 479 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."480
Moreover, if goods cannot otherwise be classified, they shall be "classified under the heading
appropriate to the goods to which they are most akin".481 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".
7.153. We therefore understand that India's WTO tariff commitments in its HS1996 Schedule with
respect to "[t]ransmission apparatus incor porating 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.482 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]eleph ones for cellular networks or for other
wireless networks".483 Thus, India's WTO tariff commitments with respect to telephones for cellular

476 We also note India's argument that "a radiotelephone is a device which uses radio signals between
fixed points", whereas "telephones for cellular networks use radio waves to transmit a signal to a base station
nearby [which then] re-transmits the signal". (India's first written submission, para. 153). India considers that
"'radio telephones' and 'telephones for cellular networks' are distinct products and cannot be clubbed into the
same category". (Ibid. para. 154 (emphasis omitted)). We disagree. As India itself acknowledges, "telephones
for cellular networks use radio waves to transmit a signal". (Ibid. para. 153). This would seem to constitute the
very definition of "radio-telephony" within the meaning of the HS1996, including the Explanatory Notes
thereto.
477 The amendment of the Explanatory Notes adds the following language to the Explanatory Note for
Heading 8517: "Cellular telephones or mobile phones, including car telephones, are classified in heading
85.25." Additionally, the amendment changes the Explanatory Note for Heading 8525, such that the group of
apparatus constituting "transmission apparatus for radio-telephony or radio-telegraphy" includes, inter alia,
"[p]ortable radio-telephones, usually battery operated, of the 'walkie-talkie' type, as well as portable radio-
telephones (cellular telephones also called 'mobile phones') including apparatus which can be fitted inside a
vehicle (car telephones)". (WCO, HS Committee document 41.337 E, (Exhibit EU-44); WCO, HS Committee
document 42.034 E, (Exhibit EU-45); and WCO, HS Committee document 42.100 E, (Exhibit EU-46)).
478 HS2002 Explanatory Notes to Chapter 85, (Exhibit EU-51), p. 1667.
479 India's second written submission, para. 96.
480 See General Rules for the Interpretation of the Harmonized System, (Exhibit EU-54), para. 3(a).
481 See General Rules for the Interpretation of the Harmonized System, (Exhibit EU-54), para. 4.
482 WT/Let/886.
483 See G/MA/283; and WT/Let/1072.

networks or for other wireless networks w ere initially set forth as an undertaking in the ITA, w ere
made binding WTO tariff commitments pursuant to certain amendments introduced into India's WTO
HS1996 Schedule, w ere not affected by the changes to India's Schedule during the HS2002
transposition process, and following the HS2007 transposition exercise are presently set f orth in
tariff item 8517.12 of India's HS2007 Schedule.484
7.154. To conclude, we recall that, in light of our findings with respect to the third element of Article
48(1), it is not necessary for us to form a 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 expand as
compared to the ITA. To that end, we have observed, first, that Indi a 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 t he 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. 485 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)
7.155. 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 sc ope 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, a nd consequently reject India's invocation of error under
Article 48 of the Vienna Convention as a ground for invalidating aspects of its WTO Schedule.
7.156. Having come to this conclusion with respect to Article 48(1), it could suffice for us to conclude
our analysis of Article 48 here. 486 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
7.157. India submits that the burden of "proving the vitiatin g circumstances" described in
Article 48(2) falls on the "party opposing the plea of error" (i.e. the complainant). 487 In any event,
India argues that its error "was in the context of a complex and technical transposition exercise
undertaken by the WTO Secr etariat" and that it "neither contributed actively to such an error nor
was there a circumstance that put it on notice of such possible error". 488 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." 489 India further
submits that Article 48(2) requires the party claiming error "to have employed all reasonable (rather

484 We further understand that, as a consequence of the foregoing interpretation, India's WTO tariff
commitments with respect to products falling under tariff items 8504.40, 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 8504.40, 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. 170, 182, 209, and 219).
485 We also noted that this interpretation of India's tariff commitment 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 8504.40, 8517.61, and 8517.70 of its WTO HS2007 Schedule similarly have not expanded. (See fn
484 to para. 7.153 above).
486 See para. 7.87 above.
487 India's second written submission, para. 25 (referring to T. Rensmann, "Article 48" in O. Dörr and K.
Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14),
p. 893).
488 India's first written submission, para. 70.
489 India's first written submission, para. 73. See also India's second written submission, para. 29.

than possible) means of establishing the facts when concluding the treaty and of having taken
precautions to avoid any error".490
7.158. India submits that its error "was not unlikely given the surrounding circumstances (including
that of an admittedly complex technical transposition which was not flagged)". 491 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." 492
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[]".493 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
the EU ought to have reconciled India's stance of intending no further commitments on ICT products
vis-à-vis its certification of the 2007 Schedule".494
7.159. The European Union submits that, as the party invoking Article 48, India bears the burden
of proving all the constituent elements of Article 48, including the conditions contained in Article
48(2).495 The European Union argues that India had the possibility to prepare its own transposition
and, "having chosen not to do so, India cannot shift the responsibility for the alleged error to the
WTO Secretariat."496 Moreover, 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 from HS2002 to HS2007 prepared by the WTO Secretariat", but India did not do so.497
The European Union also considers that the findings of the panel in EC – IT Products "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".498
7.160. As to the complexity of the process, the European Union submits that "it can be s afely
presumed that the drafts prepared by the WTO Secretariat were, or at least could have been,
reviewed by highly qualified Indian customs officials with the required ability to understand all their
implications and identify any possibl [e] inconsistencies with India's 'assumptions' regarding the

490 India's first written submission, para. 69 (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. 28.
491 India's second written submission, para. 30. 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-79), 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)).
492 India's response to Panel question No. 19, para. 60 (referring to Email from IDB, WTO, to India
(8 November 2013), (Exhibit IND-50), Attachment 3, CTS HS2007 Transposition Note XII - India).
493 India's first written submission, para. 75.
494 India's first written submission, para. 77.
495 European Union's response to Panel question No. 71, para. 91.
496 European Union's opening statement at the first meeting of the Panel, para. 35. The European Union
considers this to be similar to the situation in the Temple of Preah Vihear case, where the ICJ "held that
Thailand was barred from relying on a plea of error since the Thai authorities had themselves entrusted the
work of producing the maps to the French officers". (Ibid. para. 36 (referring to 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 pp. 26-27)).
497 European Union's opening statement at the first meeting of the Panel, para. 44. Specifically, the
European Union notes that India sought no clarifications from the WTO regarding the draft HS07 file, and when
India provided comments to the Secretariat, none of those comments concerned the tariff items at issue in this
dispute. (Ibid. paras. 40-41). The European Union also notes that India did not raise any objection to the draft
HS07 file during the multilateral review of the file, nor did India object to certification when the file was
circulated for purposes of certification. (Ibid. paras. 42-43).
498 European Union's opening statement at the first meeting of the Panel, para. 55.

scope of its pre -existing concessions". 499 The European Union considers that the "the drafts
communicated by the WTO Secretariat as part of the transposition process put India on notice that
India's 'assumption' t hat the products at issue were not covered by the HS 2007 transposition,
because they were 'new products' which did not exist yet at the time where the ITA[] was negotiated,
was in error". 500 The European Union also considers that the panel report s in EC – IT Products
"addressed in detail the relevance of the status of technology at the time of negotiating the ITA[]"
and "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".501
7.3.3.3.2 Main arguments of the third parties
7.161. 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".502
7.162. 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."503 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". 504 Canada considers that "[i]n the draft HS07 file prepared for India by the
Secretariat, the tariff lines at issue in this case were not flagged by the Secretariat as possibly
changing the scope of the concessions".505 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". 506 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".507 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 invokin g the error in
order to demonstrate that its conduct did not contribute to the error". 508 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 Schedu le and to make any relevant inquiries if something was
uncertain or unclear."509

499 European Union's opening statement at the first meeting of the Panel, para. 50. The European Union
further argues that since the transposition process did not change the scope of any concessions, "there was no
reason why the WTO Secretariat should have 'flagged' those tariff lines to India". (European Union's second
written submission, para. 16). The European Union also considers that India's error was not in assuming that
the HS 2007 transposition did not expand the scope of pre-existing concessions, but in assuming that those
pre-existing concessions did not cover products that did not exist when the ITA was concluded. The European
Union submits that the transposition procedure "did not require the WTO Secretariat to anticipate that India
would make that 'assumption' and to 'flag' to India that such 'assumption' would be in error". (Ibid. para. 17).
500 European Union's opening statement at the first meeting of the Panel, para. 54.
501 European Union's opening statement at the first meeting of the Panel, para. 55.
502 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, p. 209). See also Brazil's third-party response to Panel question No. 17.
503 Canada's third-party submission, para. 13.
504 Canada's third-party submission, para. 13.
505 Canada's third-party submission, para. 15.
506 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).
507 Canada's third-party submission, para. 19.
508 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).
509 Canada's third-party submission, para. 18.

7.163. Japan highlights that "during the negotiations leading to the certification of India's Schedule
based on HS 2007, India's representatives repeatedly examined and had ample oppo rtunities to
avoid the alleged error and correct it before the certification".510
7.164. Korea contends that "India appears to have contributed to the alleged error and was duly
put on notice about it." 511 According to Korea, "India had ample opportunity and acces s to
appropriate redress mechanisms to avoid the alleged error and to fix it." 512 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 the m."513 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".514 In Korea's view, "India should not be entitled to shift responsibility for
its error onto the WTO Secretariat as India had not been proscribed from preparing its own HS2007
transposition, and India neglected to verify the specifics of the transposit ion's effects despite
knowing that it had the potential to change the scope of its concessions."515
7.165. 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".516 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."517
7.3.3.3.3 Panel's assessment
7.3.3.3.3.1 General considerations
7.166. 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.
7.167. For the purposes of applying Article 48(2) we proceed on an arguendo basis and assume
that India was indeed in error at the time that it agreed to the changes to its Schedule resulting
from the transposition to the HS2007. Specifically, we assume that: (i) an essential basis for India's
consent to be bound by the changes to its Schedule was India's assumption that the transposition
of that Schedule to the HS2007 did not expand the scope of its tariff commitments beyond the scope
of its ITA undertakings; and (ii) such an expansion occurred.
7.168. 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). The European Union 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.518 India considers that
the burden is on the European Union, as the party objecting to the invocation of Article 48, to
demonstrate that India either contributed to the error or that the circumstances were such as to put
India on notice of a possible error.519 In our view, there is ample information before us (in the form

510 Japan's third-party statement, para. 24.
511 Korea's third-party submission, para. 14.
512 Korea's third-party submission, para. 15.
513 Korea's third-party submission, para. 15.
514 Korea's third-party submission, paras. 16-17.
515 Korea's third-party submission, para. 19.
516 United States' third-party response to Panel question No. 16, para. 8.
517 United States' third-party response to Panel question No. 16, para. 8.
518 European Union's response to Panel question No. 14, para. 45 ("[t]he burden of proof is on the
defendant alleging the error"). See also European Union's opening statement at the first meeting of the Panel,
para. 14.
519 India's second written submission, para. 25 (referring to T. Rensmann, "Article 48" in O. Dörr and K.
Schmalenbach (eds.), Vienna Convention on the Law of Treaties, 2nd edn (Springer, 2018), (Exhibit IND-14),
p. 893).

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 48.520
7.169. We proceed by assessing in turn whether: (i) the circumstances were such as to put India
on notice of a possible 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
7.170. 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 alleged error, we examine whether the circumstances were
such as to put India on notice of a possible expansion of its WTO tariff commitments from its ITA
undertakings.
7.171. We recall that the evidence adduced by India in this dispute indicates that in 2012, three
years prior to the ce rtification 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 with in the scope of the ITA. 521 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 prod ucts and had not been resolved for the past 15 years." 522 India's
delegate "doubted that one could just brush it aside in terms of saying that these were complicated
by HS96, HS2002 or HS2007 nomenclature changes as otherwise the participants would have
actually solved the problem in the first place." 523 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.
7.172. We further recall that Members agreed on the procedures to be followed in that transposition
process, including the relevant correlation tables prepared by the WCO, updated by the
WTO Secretariat, and agreed upon by WTO Members. 524 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.
7.173. In this respect, the General Council Decision on HS2007 Transposition Procedures instructs
that, "to the extent possible , the scope of the concessions and other commitments shall remain
unchanged".525 The General Council Decision further 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." 526 The General Council Decis ion 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.527 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

520 See e.g. Panel Report, India – Solar Cells, fn 269 to para. 7.104.
521 See para. 7.112 above.
522 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. 59 and fn 90 thereto).
523 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.
524 See paras. 7.126-7.128 above.
525 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)
526 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
527 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.

impairs the value of the concession, GATT Article XXVIII consultations and renegotia tions shall be
entered into by the Member concerned."528
7.174. Thus, in our view, India 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, notwi thstanding that this
was to be avoided "to the extent possible".
7.175. 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". 529 India argues, however, that "in the present
instance, the role of the WTO Secretariat is nevertheless also relevant to the extent it was an active
participant in the transposition process." 530 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". 531 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 trans positions which changed the
scope of India's concessions – were required to be adequately flagged according to the procedure
for transposition".532
7.176. 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 Decisi on on HS2007
Transposition Procedures , however, indicates not that the WTO Secretariat had to affirmatively
identify any changes in concessions, but rather that they had to clearly flag "[a]ny tariff line for
which a change in the scope of a concession may have occurred due to the complex technical nature
of the transposition ".533 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 approved by the General Council and the
Committee on Market Access, this, it seemed, would substantially mitigate against the possibility
that there would be any disagreement as to whether the scope of any Member's concessions changed
through the transposition process. Since these correlation tables were specifically prepared and
approved in order to indicate the overlaps in product coverages as between the HS2002 and the
HS2007, it would seem to follow that if the Secretariat followed those correlation tables (and it is
uncontested that they did so), then there would have been no change in the scope of Members'
concessions.

528 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 15. (emphasis
added)
529 India's response to Panel question No. 90(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-85)). We do
not consider it necessary to take a position on whether paragraph 15 was applicable to India. Rather, we note
that the existence of paragraph 15 (along with paragraph 4) put India on notice of the possibility that the
transposition process could result in a change to the value of the tariff concessions.
530 India's response to Panel question No. 90(b), para. 14.
531 India's response to Panel question No. 90(b), para. 15 (quoting Prof. M. Waibel, Legal Opinion on
Error, (Exhibit IND-79), para. 39).
532 India's response to Panel question No. 77, para. 59.
533 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)

7.177. Nevertheless, we recognize that the General Council Decis ion 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.534
7.178. 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.535 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". 536 Attachment 3 to that email, containing the
Secretariat's Transposition Note for India's Schedule, also refers to document G/MA/283.
Specifically, that Transposition Note, under the heading "Processing strategy", indicates that "[a]
detailed description of the transposition methodology is presented in documents G/MA/283 of
22 May 2012 and WT/L/673 of 18 December 2006."537
7.179. Document G/MA/283, titled "Transposition of Members' CTS Files to the HS 2007
Nomenclature – Notes on Methodology" , was approved by the Committee on Market Access on
26 April 2012. The introduction to that document explains that it "describes the guidelines that the
Secretariat intend[ed] to follow for the implementation of the HS 2007 transposition" and "provides
a detailed description of the methodology that the Secretariat [would] follow in the HS 2007
transposition exercise".538
7.180. 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).539 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. 540 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 fo r this reason that manual intervention will be required for most of the
complex changes. Moreover, some complex changes could involve as many as 20 to 30
subheadings from different HS 2002 headings, Chapters, and even Sections. In order
to maintain all these concessions in the new HS 2007 nomenclature, complicated coding
structures and descriptions need to be introduced. And the situation could be even more
complicated if national breakouts are involved.541
7.181. Document G/MA/283 elaborates that "[t]he categoriza tion for each individual correlation is
indicated in Annex I". 542 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.

534 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
535 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50).
536 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50), p. 1.
537 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50), Attachment 3, CTS HS2007
Transposition Note XII - India, p. 1.
538 G/MA/283, paras. 1-2.
539 G/MA/283, para. 1.2.
540 G/MA/283, para. 1.5.
541 G/MA/283, para. 2.10.
542 G/MA/283, para. 1.6.

7.182. 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. 543 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".544 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.545
7.183. From the foregoing, we wish to highlight certain salient points. First, regarding the
WTO Secretariat's communication to India of the draft transposition files: (i) i n its cover email, the
Secretariat highlighted that docume nt G/MA/283 described in detail the methodology used by the
Secretariat to conduct the transposition; (ii) in the Transposition Note attached to that email the
Secretariat again highlighted that a detailed description of its transposition methodology was
presented in document G/MA/283; and (iii) document G/MA/283 was one of four attachments that
the Secretariat included in that email to India. We therefore consider that India could not have been
unaware of the contents of that document, and indeed its importance to the transposition process.
7.184. Second, regarding the contents of document G/MA/283 itself: (i) this document
unambiguously identifies the changes from the transposition process resulting in HS2007 tariff items
8517.12, 8517.61, 8517.62, and 8517.70 as both "structural" and "complex in nature"; and (ii) the
comments attached to these tariff items explicitly indicate that the scope of heading 8517 was
expanded, and included the transfer of certain products to that heading. We note, in this respect,
that this does not 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.
7.185. 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 expans ion in scope due to a complex technical transposition". 546 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
being effected due to the increased product complexity of the ITA[] product coverage via the
contested sub-headings".547
7.186. 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".548 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

543 See para. 7.127 above.
544 G/MA/283, Annex I, entries 299-300, p. 41.
545 G/MA/W/76, p. 30.
546 India's response to Panel question No. 90(a), para. 8.
547 India's response to Panel question No. 90(a), para. 8.
548 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)

the changes to these tariff items may have implicated the scope of concessions under those tariff
items.
7.187. We also note India's argument that the Secretariat's Transposition Note contained in its
email to India "describ ed certain complex changes to India's Schedule in specific relation to
sub-heading 28.52 and sub -heading 3006.10" and India "sought clarifications and commented on
HS 2007 sub-heading 28.52 via an email to the Secretariat". 549 In India's view, the Secretari at's
Transposition Note was an "exhaustive document in relation to entries that were sought to be 'clearly
flagged' for the exercise of transposition".550
7.188. 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 transposition
process as "complex" in nature. Moreover, a very brief review of the "comments" included in the
correlation table contained in document G/MA/283 would have enabled India to observe that,
according to the WCO, the product scope of numerous headings and subheadings w as expanded
through the transposition process, including heading 85.17.551 The fact that these possible changes
of scope, all of which related to explicitly complex changes, were comprehensively flagged in
document G/MA/283 means that India is incorrect that the only complex changes flagged by the
Secretariat were those identified in the Secretariat's Transposition Note.
7.189. Moreover, we note that the specific section of the Secretariat's Transposition Note that, in
India's view, contains this allegedly "exhaustive" 552 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".553 Under this subheading, "Additional Technical Issues",
the Transposition Note identifies certain issues pertaining to: (i) "AG – non-AG breakdown"; and (ii)
"Simplified correlations". 554 Under "[s]implified correlations", the Transposition Note states that
"[b]ased on an analysis of HS2007 changes included in the WCO correlation table, the Secretariat
proposed the simplification of some correlations as described in detail in Annex I of G/MA/283. If a
Member intends to make use of the standard correlation tab le or take other approaches, it would
need to inform the Secretariat."555 The Transposition Note further states that:

549 India's response to Panel question No. 90(a), para. 10.
550 India's response to Panel question No. 90(a), para. 10.
551 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).
552 India's response to Panel question No. 90(a), para. 10.
553 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50), Attachment 3, CTS HS2007
Transposition Note XII - India, pp. 1-3.
554 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50), Attachment 3, CTS HS2007
Transposition Note XII - India, p. 1. The technical issues arising in relation to "AG – non-AG breakdown"
pertained to specific issues arising due to negotiating texts as well as two cases "where the HS2007
transposition results in a mix of AG and non-AG products". (Ibid.).
555 Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50), Attachment 3, CTS HS2007
Transposition Note XII - India, p. 2. We observe that document G/MA/283 describes in detail how there was a
"need for simplification", in order to avoid excessively complex Schedules which would undermine the purpose
of the transposition exercise. Specifically, according to document G/MA/283:
In the HS 2002 transposition exercise, a significant amount of manual work by the Secretariat
focused on a number of changes relating to chemical wastes in HS Chapter 38 and to paper in HS
Chapter 48. These changes involved many subheadings and implied very complicated correlations
between the HS 1996 and HS 2002. Since the methodology followed by the Secretariat was a pure
technical transposition without altering any concessions for these subheadings, the result was
complex coding structures, and sometimes very complex technical descriptions, which had to be

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 used for the duty of the new HS2007 subheading. The
binding coverage was expanded if the subheading is partially bound, that i s the new
HS2007 subheading is fully bound.
7.190. It is not clear to us why India interpreted this paragraph as setting forth an exhaustive list
of tariff items whose scope may have changed due to complex changes occurring during the
transposition process. Notwi thstanding that this paragraph of the Transposition Note does not
purport to do so, a cursory review of document G/MA/283 would have revealed to India numerous
other tariff items that were flagged by the Secretariat as having undergone complex changes, and
whose scope was indicated by the WCO to 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 s pecific 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.
7.191. 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 556; 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.557
7.192. We recognize that both parties to this dispute assert that the WT O Secretariat did not flag
the relevant tariff items at issue.558 We have addressed India's arguments in this respect above. As
to the European Union, we note the European Union's view that "the transposition from HS2002 to
HS2007 did not modify the scope o f the tariff concessions at issue in this dispute " and that
"[t]herefore, there was nothing to be 'flagged' by the Secretariat ".559 The European Union'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 not required to make such a determination. Rather, it was required to flag those
tariff items with respect to which a change in product scope may have occurred due to the complex

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)
556 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4. (emphasis added)
557 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
558 India's second written submission, paras. 29-30; European Union's opening statement at the first
meeting of the Panel, para. 47 and comments on India's response to Panel question No. 90(a)(i) and (ii), para.
4.
559 European Union's comments on India's response to Panel question No. 90(a)(i) and (ii), para. 4.

nature of the transposition.560 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". 561 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 the European Union's
arguments do not imply otherwise.
7.193. From th e 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.
7.194. 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." 562 As
support for this interp retation, India refers to two judgments by the International Court of Justice
(ICJ), in which cases error was invoked as a basis to invalidate a State's consent to be bound by a
treaty. India refers to Case concerning Sovereignty over Certain Frontier Land (Belgium v.
Netherlands), where "in the contested map 'which was to become part of the Boundary Convention,
it was shown clearly, and in a manner which could not escape notice, that the disputed plots belonged
to Belgium'". 563 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".564 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".565
7.195. We note that the two findings relied upon by India as support for its interpretation are both
factual findings regarding the circumstances of those cases. In neither case did the ICJ conclude as
a matter of legal interpretation that a State can only invoke an error if the State could not but have
been aware of the existence of the error. Rather, the ICJ's factual findings indicate that, regardless
of how high or low that legal standard may be, the circumstances of those cases were such that the
States in question must have been aware of the error.
7.196. 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".566 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.
7.197. 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

560 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 4.
561 General Council Decision on HS2007 Transposition Procedures, WT/L/673, para. 15.
562 India's response to Panel question No. 90(a), para. 11. See also India's second written submission,
para. 29.
563 India's second written submission, para. 29 (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),
pp. 225-227).
564 India's second written submission, para. 29 (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).
565 India's response to Panel question No. 20, para. 67.
566 India's first written submission, para. 73. (emphasis added)

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.
7.198. Applying that legal standard to the facts, as described above, we recall that India alleges
that its "error" at the time of the certification of its Schedule was its mistaken assumption that the
scope of its WTO tariff commitments would not be e xpanded 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 t he circumstances of the HS2007 transposition exercise, India was
on notice of the possibility that the scope of the concessions set forth in tariff items 8517.12,
8517.61, 8517.62, and 8517.70 of its HS2007 Schedule may have expanded as a consequence of
the complex changes to those tariff items.567 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 Sche dule, 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).
7.199. 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
7.200. 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.
7.201. We recall tha t, 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 identi fy any
differences in the product scope of the ITA as compared to the product scope of the HS2007. It
appears to us that no Member, in preparing its own Schedule, was expected to identify any such
differences in product coverage. This similarly applies to the WTO 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.
7.202. 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 di d not extend to new products
resulting from technological advances that did not exist at the time that India joined the ITA.
7.203. 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

567 As to India's invocation of error with respect to tariff item 8504.40, we recognize that India could not
have been on notice of any possible error, since this tariff item did not change during the transposition
process. However, the fact that this tariff item did not change during the transposition process also means that
there could not have been any error, on the part of India, during the transposition process. (See generally
G/MA/W/76; G/MA/283; Email from IDB, WTO, to India (8 November 2013), (Exhibit IND-50); and Email from
Market Access Intelligence Section, WTO, to India (12 February 2014), (Exhibit IND-51)).

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 committ ees) 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.
7.204. Additionally, we recall that India itself was aware of Members' differences of opinion with
respect to product classification under the ITA.568 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. 569 To the extent that India remained silent on such issues in the
context of the transposition exercise, WTO Members and the WTO Secretariat could only assume
that India was satisfied that the transposition exercise would follow the multilaterally approved
correlation tables.
7.205. 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 re levant 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.
7.206. 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 relat ionship
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 "ess ential basis" for its consent to be bound. 570 For the
purposes of applying Article 48(2), we moreover note that India's failure to raise those concerns
would appear to have directly contributed to the alleged error arising in the first place.
7.207. 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 Me mbers 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"571 contribution to the creation of the alleged error, and would indeed
seem to be a significant contributing factor in causing the error to occur, especially taking into
account that India had already approved the correlation table s 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.
7.208. 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

568 See para. 7.112 above.
569 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
570 See para. 7.155 above.
571 Prof. M. Waibel, Legal Opinion on Error, (Exhibit IND-79), para. 39.

India, and which was included in the bundle of documents transmitted by the Secretariat to India
with the draft transpos ition files. 572 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).
7.209. 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.
7.210. 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)
7.211. 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
7.212. 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.
7.213. 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.
7.3.4 India's rectification request under the 1980 Decision
7.3.4.1 Introduction
7.214. 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". 573 India stated that the supposed errors occurred while

572 India's only ground for arguing that the Secretariat did not follow those transposition procedures is
that "the contested tariff items were not adequately flagged". (India's response to Panel question No. 77,
paras. 59 and 61. See also India's response to Panel question No. 95, para. 32). We have addressed that
argument and dismissed it. In our view, the Secretariat did indeed follow the agreed-upon transposition
procedures, including with respect to flagging possible changes of product scope.
573 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-78), p. 1.

transposing its HS2002 Sched ule to its HS2007 Schedule. 574 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."575
7.215. Several WTO Members, including the Eu ropean Union, objected to India's draft
rectification.576 The European Union took the view that the proposed rectification "did not constitute
a change of a purely formal character, but rather that it altered the scope of India's GATT 1994
commitments." The European Union "considered that the changes were not within the terms of
paragraph 2 of the 1980 Decision".577
7.216. 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. 578 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." 579 India requests us to "recognize and declare that the
Draft Rectification was of a purely formal character and the European Union's objections on the same
were unfounded."580 Specifically, India requests us to:
[A]ssess the objection raised by the European Union. If the Panel were to find that the
ITA[] did not cover the products at issue, it will be evident that the Draft Rectification
was of a purely formal character. Therefore, the objection raised by the European Union
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 the
European Union's action impeded India's right to rectify its Schedule under the 1980
[Decision].581
7.217. India clarifies that it does not seek the certification of the draft rectification by the Panel
through the dispute settlement mechanism.582
7.3.4.2 Main arguments of the parties
7.218. India argues that the European Union "acted beyond the prescriptions of Paragraph 3 of the
1980 Decision by raising an objection unfounded in law", and that "the European Union's objections
were an impediment to India's right to make a formal rectification to its Schedule of Concessions
under the 1980 [Decision]."583 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 1994.584 Therefore, India posits that the Panel
has authority to interpret the draft rectification and clarify the rights and obligations of the Members
under it pursuant to Article 3.2 of the DSU.585 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

574 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-78), p. 1.
575 India's rectification request, G/MA/TAR/RS/572, (Exhibit IND-78), p. 1.
576 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; Committee on Market Access, Minutes
of the meeting held on 9 October 2018, G/MA/M/68, para. 134.
577 Council for Trade in Goods, Minutes of the meeting held on 12 and 13 November 2018, G/C/M/133,
para. 18.4.
578 India's first written submission, para. 26.
579 India's first written submission, para. 53. See also India's response to Panel question No. 50, para.
109.
580 India's first written submission, para. 53.
581 India's response to Panel question No. 74, para. 53. See also India's second written submission,
para. 166.
582 India's second written submission, para. 167.
583 India's response to Panel question No. 74, para. 49. See also India's second written submission,
para. 160.
584 India's response to Panel question No. 74, paras. 50-51; second written submission, paras. 161-162
(referring to Panel Report, US – FSC, para. 7.63).
585 India's response to Panel question No. 74, para. 52; second written submission, para. 164 (referring
to Appellate Body Report, Mexico – Taxes on Soft Drinks, para. 53).

covered agreements." 586 India also submits that the Panel has an obligation to assess "if the
objection raised by the European Union is in good faith or if it is merely an instrument to force India
to grant concessions on products, which it never agreed to." 587 In response to an argument by the
European Union that India's request is a "counter -claim", India submits that "India's claim with
regard to the Draft Rectification is not a counter-claim".588 India submits that given that in its view
the 1980 Decision is a "covered agreement", the Panel is "obligated to assess the complaint in light
of the 1980 [Decision]" . For India, "[a]ny position to the contrary would result in the respondents
not being able to raise any defence in proceedings before the Panel. India considers the assessment
of the complainant's objections to the Draft Re ctification essential for an objective assessment of
the facts of the dispute under Article 11 of the DSU."589 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 clearly in error and that such concessions
were capable of rectification via the 1980 [Decision]."590 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."591
7.219. For its part, the European Union submits that there is no legal basis, under the DSU, for the
Panel to recognize and declare that the Draft Rectification was of a purely formal character and that
the European Union's objections on the same were unfounded. 592 The European Union maintains
that the 1980 Decision is not an "other decision[] of the Contracting Parties to the GATT 1947" within
the meaning of paragraph 1(b)(iv) of the GATT 1994 , and is therefore not a covered agreement
within the meaning of Article 1.1 of the DSU.593 The European Union also indicates that because its
panel request has not referred to India's draft rectification or to the 1980 Decision, the Panel lacks
the authority, pursuant to its terms of reference, to make findings regarding India's draft rectification
or the 1980 Decision. 594 The European Union argues that India's request in this respect is a
"counter-complaint" within the meaning of Article 3.10, second sentence, of the DSU because "India
claims that the European Union violated paragraph 3 of the 1980 [Decision] by objecting to India's
Draft Rectification Request and requests the Panel to make a positive finding to that effect".595 Thus,
according to the European Union, Article 3.10 of the DSU precludes India fr om bringing "counter-
claims against the complaining party". 596 The European Union also maintains that its objection to
the proposed rectification was "entirely founded" because "it was manifest that the proposed
rectification was not of 'purely formal chara cter'".597 The European Union also considers that the
error invoked by India under Article 48 of the Vienna Convention in these proceedings and the error
invoked by India in support of its request for a rectification under the 1980 Decision are "legally
distinct and manifestly incompatible with each other."598 For the European Union, the error alleged
by India under Article 48 of the Vienna Convention in this dispute is "a very material one" and is "an
error in India's consent relating to the scope of the commitments included in the 2007 certification"

586 India's response to Panel question No. 74, para. 52.
587 India's response to Panel question No. 74, para. 52; second written submission, para. 165.
588 India's response to Panel question No. 97, para. 35.
589 India's response to Panel question No. 97, para. 36.
590 India's response to Panel question No. 74, para. 55. See also India's response to Panel question
No. 97, para. 35.
591 India's second written submission, para. 167.
592 European Union's second written submission, paras. 19-42.
593 European Union's second written submission, paras. 22-29.
594 European Union's response to Panel question No. 96, para. 26.
595 European Union's response to Panel question No. 98, paras. 28-32.
596 European Union's second written submission, para. 31.
597 European Union's second written submission, para. 33. Addressing India's arguments that "[i]f the
Panel were to find that the ITA[] did not cover the products at issue, it will be evident that the Draft
Rectification was of a purely formal character", the European Union submits that the "relevant comparison is
between the existing text of a Member's WTO schedule, i.e. in this case the text of India's certified [WTO]
Schedule following the transposition to HS 2007, and the text of the proposed rectification to that schedule".
(Ibid. paras. 36-37 (quoting India's response to Panel question No. 74, para. 53)). For the European Union,
when that comparison is made, "it is beyond dispute that the rectification requested by India would
substantially 'alter the scope of the concession' and cannot therefore be regarded as being of 'purely formal
598 European Union's response to Panel question No. 74, para. 100.

but "not an error in the text of the treaty"; while the error invoked under the 1980 Decision was
allegedly a purely formal error, and was an error in the text of the treaty.599
7.3.4.3 Main arguments of the third parties
7.220. 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."600 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."601
7.221. Canada considers that a determination on whether India's draft rectification was of a purely
formal character is not within the purview of a panel, and would amount to the Panel substituting
its views for those of WTO Members, thereby overriding the procedures that have been agreed to
by all WTO Members.602 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.603
7.222. Japan submits that there is no legal basis for the Panel to make the findings requested by
India under the DSU or any other covered agreement. Japan maintains that such findings go against
the Panel's mandate, which is limited by Articles 3.2 and 11 of the DSU.604 Japan adds that there is
no absolute right for a proposed rectification to be automatically accepted, or a corresponding
obligation of other Members to accept that rectification request. 605 Moreover, Japan considers that
it is not for the Panel to rule on the nature of a rectification request, or objections on that request.
Rather, when a Member's rectifica tion request is objected to, that Member ought to follow the
procedure set out in Article XXVIII of the GATT 1994 in order to effectuate the proposed change.606
Japan also argues that, given that WTO Members other than the complainants in this and the parallel
disputes objected to India's draft rectification, any findings by the Panel would risk undermining the
rights of those WTO Members and raise serious systemic concerns regarding of the reliability and
predictability of the system of tariff concessions.607 Finally, Japan maintains that any findings by the
Panel on India's request would be inutile because those findings would not affect the validity of
objections by other WTO Members, and until the draft rectification is certified in accordance with the
1980 Decision, the proposed changes would have no legal effect.608
7.223. Korea submits that the Panel's mandate is confined to its terms of reference, which do not
include recognizing and declaring the invalidity of the complainant's objections to India's rectification
request.609 Further, Korea considers that negotiation and agreement among Members are the
"essence of the modification and/or rectification procedure" under Article XXVIII of the GATT 1994
and the 1980 Decision. Therefore, Korea is concerned that the possibility of negotiations under those
procedures would be undermined if a Member's objection to a proposed rectification is declared
unfounded by the Panel.610 Korea maintains that regardless of the Panel's findings on India's draft
rectification, India's o bligations are to be assessed in light of India's existing Schedule because
"treaty terms are not based on a subjective intent of one Party, but rather on a common intent of
all relevant Parties interpreted through the general rule of treaty interpretation".611

599 European Union's response to Panel question No. 74, paras. 101-102.
600 Brazil's third-party response to Panel question No. 19, para. 13.
601 Brazil's third-party response to Panel question No. 19, para. 14.
602 Canada's third-party response to panel question No. 19, para. 14, and No. 20, para. 16.
603 Canada's third-party response to panel question No. 20, para. 17.
604 Japan's third-party response to Panel question No. 19, para. 23.
605 Japan's third-party response to Panel question No. 19, para. 24.
606 Japan's third-party response to Panel question No. 19, para. 25.
607 Japan's third-party response to Panel question No. 19, para. 26.
608 Japan's third-party response to Panel question No. 20, paras. 31-32.
609 Korea's third-party response to Panel question No. 19, para. 12 (referring to Appellate Body Report,
Brazil – Desiccated Coconut, p. 22).
610 Korea's third-party response to Panel question No. 19, para. 13.
611 Korea's third-party response to Panel question No. 20, para. 14 (referring to Appellate Body Report,
EC – Computer Equipment, para. 84).

7.224. 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 ".612 For Chinese Taipei, neither "India's Draft Rectification
nor the 1980 [Decision] are 'covered agreements' within the meaning of Article 1.1 of the DSU".613
Chinese Taipei also argues that pursuant to its terms of reference, the Panel in this dispute "is neither
required n or authorized" to make findings with respect to India's draft rectification or the
1980 Decision.614 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
settlement panel.615 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."616
7.225. The United States argues that there is no legal basis in the DSU for the Panel to determine
that India's draft rectification request was of a purely formal charact er and the objections to that
request were unfounded.617 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.618 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. 619 Moreover, the United States argues that the 1980 Decision does not
contemplate recourse to WTO dispute settlement where an objection is made.620 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.621
7.3.4.4 Panel's assessment
7.226. We recall that India requests us to find that: (i) the European Union violated paragraph 3 of
the 1980 Decision by raising an objection "unfounded in law", and (ii) the European Union's objection
constituted an "impediment to India's rights to make a formal rectification to its schedule of
concessions under the 1980 [Decision]." 622 The parties disagree on whether we have a legal basis
under the DSU to address India's request for findings.
7.227. According to India, the 1980 Decision is a covered agreement within the meaning of
Article 1.1 of the DSU. Therefore, in India's view, we have the authority to "interpret the
Draft Rectification and clarify the rights and obligations of the Memb ers under it" under Article 3.2
of the DSU.623 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.624 The European Union disagrees that the 1980 Decision is a covered agreement within
the meaning of Article 1.1 of the DSU. 625 The European Union also indicates 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.626 Additionally, the European Union maintains that
India is precluded from making a counter-complaint by Article 3.10 of the DSU.627

612 Chinese Taipei's third-party response to Panel question No. 19, para. 16.
613 Chinese Taipei's third-party response to Panel question No. 19, para. 17.
614 Chinese Taipei's third-party response to Panel question No. 19, para. 18.
615 Chinese Taipei's third-party response to Panel question No. 20, para. 21.
616 Chinese Taipei's third-party response to Panel question No. 20, para. 22.
617 United States' third-party response to Panel question Nos. 19-20, para. 16.
618 United States' third-party response to Panel question Nos. 19-20, para. 17.
619 United States' third-party response to Panel question Nos. 19-20, para. 18.
620 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).
621 United States' third-party response to Panel question Nos. 19-20, para. 20.
622 India's second written submission, para. 160.
623 India's response to Panel question No. 74, paras. 50-51; second written submission, paras. 161-162
(referring to Panel Report, US – FSC, para. 7.63).
624 India's response to Panel question No. 74, para. 52.
625 European Union's second written submission, paras. 22-29.
626 European Union's response to Panel question No. 96, para. 26.
627 European Union's response to Panel question No. 98, paras. 28-32; European Union's second written
submission, paras. 31-32.

7.228. The parties' arguments raise two issues concerning the ex istence of a legal basis for us to
address India's request for findings: (i) whether our terms of reference allow us to assess India's
request for findings; and (ii) whether the 1980 Decision is a covered agreement within the meaning
of Article 1.1 of the DSU. We consider it logical to first determine whether, pursuant to our terms of
reference, we have jurisdiction over India's request for findings. We will only evaluate whether the
1980 Decision is a "covered agreement" within the meaning of Article 1.1 of the DSU if we determine
that we have jurisdiction to address India's request. 628 Moreover, if we determine that we lack th e
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
the European Union's objection was "unfounded in law").
7.229. 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 the European Union 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.629
7.230. 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".
7.231. 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. 630 We note that the
European Union's panel re quest identifies the specific measures at issue as "the duties applied by
India on imports of certain ICT products in excess of the bindings set forth in its [WTO Schedule]".
The panel request then indicates that the legal basis of the European Union's complaint is India's
tariff treatment of certain ICT products inconsistently with Articles II:1(a) and (b) of the GATT
1994.631
7.232. 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.
7.233. 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 the European Union'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]."632 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 a re 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."633
7.234. We do not see how findings that the rectification request was "of a purely formal character"
and that the European Union's objection was "unfounded in law" would modify India's WTO tariff

628 See also Panel Report, EU – Poultry Meat (China), fn 39 to para. 7.27.
629 Constitution Note of the Panel, WT/DS582/10, para. 2.
630 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.
631 European Union's panel request, pp. 1-2.
632 India's response to Panel question No. 74, para. 55.
633 India's second written submission, para. 167.

commitments or otherwise affect our application of Articles II:1(a) and (b) of the GATT 1994. India
has clarified that it is not requesting us to certify its rectification request.634 In any case, we do not
read the 1980 Decision to permit a panel to certify a rectification request made under the
1980 Decision. We note that pursuant to paragraph 3 of the 1980 Decision, changes to a Schedule
requested through the 1980 Decision "become a Certification provided that no objection has been
raised by a [Member] within three months". We recall that WTO Members other than the European
Union – including Japan and Chinese Taipei, complainants in the other two disputes in which the
same panelists were appointed 635 – 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 the European Union'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.636 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.
7.235. Indeed, from our review of India's arguments, w e understand that India is in fact raising a
claim that the European Union 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.637 India, in its own words, requests us to find that "the European Union violated
paragraph 3 of the 1980 [Decision]" and "imped[ed] India's rights … under the 1980 [Decision]".638
This, in our view, constitutes a claim by India that the European Union has violated, and in effect
nullified or impaired the benefits that accrue to India under, the 1980 Decision.639
7.236. Therefore, we consider that India's claim does not concer n the matter before the Panel, as
defined in the European Union'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. 640
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.
7.237. We note India's argument that Article 11 of the DSU requires us to "objectively assess the
facts of the dispute and examine the conformity of Members' actions with [the] covered
agreements".641 We agree that Article 11 requires us to make an objective assessment of the facts

634 India's second written submission, para. 167 ("India clarifies that it does not seek … certification of
the Draft Rectification through the dispute settlement mechanism"). See also India's response to Panel
question No. 97, para. 36.
635 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).
636 We note that several third parties agree with this understanding. (See e.g. Canada's third-party
response to Panel question No. 19, para. 14, and No. 20, para 16; Japan's third-party response to Panel
question No. 20, paras. 31-32; Korea's third-party response to Panel question No. 20, para. 14; Chinese
Taipei's third-party response to Panel question No. 20, para. 21; 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).
637 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.8 (referring
to Appellate Body Report, Korea – Dairy, para. 139).
638 India's second written submission, para. 160. (emphasis added)
639 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 the European Union
were unfounded and lacked legal merit. Therefore, India is claiming that: (i) the European Union
violated Paragraph 3 of the 1980 [Decision] by raising an [objection] unfounded in law, and (ii)
the European Union'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. 160)
640 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 the European Union.
641 India's second written submission, para. 165.

of the case and the applicability of, and conformity with, the relevant covered agreements. However,
we understand that India is not requesting factual or even legal findings that would be relevant for
assessing the consistency of the measures challenged by the European Union with the covered
agreements. To the contrary, India is requesting legal findings that the European Union acted
inconsistently with its own WTO obligations.
7.238. 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 ".642 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 findi ngs is outside the
scope of our terms of reference. We therefore see nothing in Article 11 of the DSU that permits us
to make the findings requested by India.
7.239. 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". 643 India quotes the following finding by
the Appellate Body:
A decision by a panel to decline to exercise validly established jurisdiction would seem
to 'diminish' the right of a complaining Member to 'seek the 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'.644
7.240. We note, however, that India is not a complaining party in this dispute. By declining to
"interpret the Draft Rectification"645, we are not diminishing India's rights to bring a dispute pursuant
to the DSU. India is not preclude d from requesting the establishment of a panel with appropriate
terms of reference to determine whether the European Union's actions "violated" the 1980 Decision.
Moreover, we note that India has neither entered into consultations with the European Union 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.
7.241. India also refers to certain observations of the panel in Russia – Traffic in Transit. According
to India, that panel 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 provi sions, the Panel has an
obligation to review it "; and (ii) "systemic issues might arise if Members abuse provisions to
circumvent obligations".646 India argues that for these reasons, we have an obligation to "assess if
the objection raised by the European Union is in good faith or if it is merely an instrument to force
India to grant concessions on products, which it never agreed to."647
7.242. 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 un der 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

642 Emphasis added.
643 India's second written submission, para. 164.
644 India's second written submission, para. 164 (quoting Appellate Body Report, Mexico – Taxes on Soft
Drinks, para. 53).
645 India's second written submission, para. 164.
646 India's second written submission, para. 165 (referring to Panel Report, Russia – Traffic in Transit,
paras. 7.132-7.133).
647 India's second written submission, para. 165.

claim before a panel without following the relevant procedural steps set forth in the DSU. This would
not only amount to India circumvent ing its obligations under t he DSU , but could indeed raise
significant systemic issues concerning the function of panels and the procedural rights and
obligations of Members with respect to WTO dispute settlement.
7.243. We also note the European Union's argument that India's request is a "counter-complaint"
within the meaning of Article 3.10, second sentence, of the DSU, which India is precluded, by that
provision, from bringing.648 India disputes that its arguments regarding the draft rectification are a
"counter-claim".649 India argues that if we find that the contested products were not covered by the
ITA, that finding would "validate the purely formal character of India's rectification request and
reveal the European Union's objections to such rectification request to be unfounded."650
7.244. We have found in paragraph 7.235 above that India's request is a claim and not a defence.
We have also found that we do not have a legal basis to evaluate whether India's rectification request
was of a purely formal character within the meaning of paragraph 2 of the 1980 Decision, or whether
the European Union's objection on the same was unfounded. Therefore, we do not consider it
necessary to evaluate whether India's request is a "counter -complaint" within the meaning of
Article 3.10, second sentence, of the DSU. We also do not express a view on the scope, relevance
or application of Article 3.10 of the DSU in this dispute.
7.245. 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) the European Union
violated paragraph 3 of the 1980 Decision by raising an objection unfounded in law; or (ii) the
European Union's action was an impediment to India's rights to make a formal rectification to its
WTO Schedule under the 1980 Decision. We also note that, even if we did indeed have the legal
mandate to make the findings requested by India, doing so would not assist in resolving this
dispute.651 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 natur e and the European Union's
objection was inconsistent with its obligations under the 1980 Decision.652
7.3.5 Conclusion
7.246. We have addressed above the parties' arguments concerning the ITA, Article 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 issue 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 consequently 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.
7.247. We therefore proceed with the application of Articles II:1(a) and (b) of the GATT 1994 in
this dispute by comparing, on the one hand, India's WTO tariff commitments as set forth in its
WTO Schedule653, and, on the other hand, the tariff treatment applied by India to imported products.

648 European Union's second written submission, paras. 30-32; response to Panel question No. 98,
paras. 28-32.
649 India's response to Panel question No. 97, paras. 35-36; comments on the European Union's
650 India's comments on the European Union's response to Panel question No. 96, para. 14.
651 See para. 7.234 above.
652 See also Panel Report, EU – Poultry Meat (China), fn 39 to para. 7.27.
653 Unless otherwise specified, all references in this Report to India's "WTO Schedule" are to the HS2007
version of that Schedule.

7.4 Whether India's tariff treatment is inconsis tent with Articles II:1(a) and (b) of the
GATT 1994
7.4.1 Overview
7.248. The European Union 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 Schedule. The European Union specifically challenges the
tariff treatment accorded by India to products falling under the following tariff items of India's
WTO Schedule: 8 504.40 ex02; 8517.12; 8517.61; 8517.62; 8517.70 ex01, ex02, and ex03 ;
8518.30 ex01 and 8544.42.00 ex01.654
7.249. For its part, India contests certain assertions by the European Union regarding the scope
and content of its WTO tariff commitments, and considers th at the European Union has failed to
substantiate its burden of demonstrating that the tariff treatment of certain products is inconsistent
with Articles II:1(a) and (b).655
7.250. We proceed with our analysis by assessing each tariff item in turn. We recall that where a
measure is inconsistent with Article II:1(b), it is also inconsistent with Article II:1(a).656 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.657 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 conclu sion as to whether India is acting inconsistently
with Articles II:1(a) and (b). In addition to these four steps, we also consider it useful to address
certain general issues arising with respect to certain of the tariff items. Where necessary, we address
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).
7.4.2 Tariff item 8504.40 ex02 of India's WTO Schedule
7.4.2.1 India's WTO tariff commitments
7.4.2.1.1 Main arguments of the parties
7.251. The European Union asserts that India's WTO tariff binding for static converters for automatic
data processing machines and units thereof, and telecommunication apparatus, set forth at tariff
item 8504.40 ex02 of India's WTO Schedule , is 0%.658 The European Union also clarifies that its
claim in relation to this tariff binding is limited to "static converters for cellular mobile phones". 659
According to the European Union, cellular mobile phones are telecommunication apparatus, and
therefore India's WTO tariff binding for static converters for cellular mobile phones is 0%.660
7.252. India acknowledges that it committed to providing duty -free tariff treatment to products
falling under tariff item 8504.40 ex02, i.e. "static converters for … telecommunications
apparatus".661 However, India maintains that "the scope of concessions for the sub -heading has
expanded"662 and that India did not commit to the "liberalization of 'static converters for telephones
for cellular network'" under the ITA since "such static converters are specific to the development of
telephones for cellular networks".663 India also submits that while cellular mobile phones were not

654 See para. 7.1 above.
655 See para. 7.2 above.
656 See para. 7.6 above.
657 See para. 7.7 above.
658 European Union's first written submission, para. 76.
659 European Union's response to Panel question No. 81(a), para. 116.
660 European Union's first written submission, para. 85; response to Panel question No. 81(b),
paras. 117-125.
661 India's first written submission, para. 167.
662 India's response to Panel question No. 72, para. 40.
663 India's first written submission, para. 170. See also India's second written submission, para. 146;

covered under the ITA or the HS1996, such products may qualify as telecommunication apparatus
under the HS2007.664 India also contends that its tariff commitments under tariff item 8504.40 ex02
as reflected in its WTO Schedule based on the HS2007 were certified in error.665
7.4.2.1.2 Panel's assessment
7.253. We have addressed India's arguments that its WTO Schedule was certified in err or above,
and held that India's tariff commitments are set forth in India's WTO Schedule. 666 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. 667 We also reca ll that, in our view, the tariff
commitments set forth in India's WTO Schedule are not static in nature.668
7.254. Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's
WTO HS2007 Schedule provides, inter alia, the following669:
 Product description Bound
rate
8504.40 - Static converters
8504.40 ex02 -- Static converters for automatic data processing machines and units
thereof, and telecommunication apparatus
0%

7.255. We observe that the product description attached to India's tariff item 8504.40 ex02 is "static
converters for… telecommunication apparatus". We also note that India confirms that cellular mobile
phones are "telecommunication apparatus" under the HS2007. 670 Hence, there is no disagreement
that static converters for cellular mobile phones are static converters for telecommunication
apparatus within the meaning of the HS2007. We consider, therefore, that static converters for
cellular mobile phones are covered under tariff item 8504.40 ex02 of India's WTO Schedule. Having
found that India's WTO Schedule, which is based on the HS2007, sets forth Indi a's WTO tariff
commitments, we conclude that India's tariff commitments regarding "static converters for cellular
mobile phones" are set out in tariff item 8504.40 ex02 of its WTO Schedule.
7.256. Given that the relevant tariff binding for static converters for cellular mobile phones 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 conclude that India is obligated to provide
unconditional duty-free treatment to static converters for cellular mobile phones falling under tariff
item 8504.40 ex02 of its WTO Schedule.
7.4.2.2 India's tariff treatment
7.4.2.2.1 Main arguments of the parties
7.257. The European Union sub mits that India's First Schedule imposes a standard duty rate of
20% on imports classified under tariff item 8504.40 of that Schedule, namely "[s]tatic
converters".671 The European Union considers that static converters for telecommunication
apparatus imported into India are classified under tariff item 8504.40.90 of the First Schedule, which
is a residual category described as "other".672 According to the European Union, static converters for

664 India's second written submission, para. 147; response to Panel question No. 72, paras. 40-45, and
No. 127, para. 81.
665 India's response to Panel question No. 18, para. 58, and No. 66, paras. 28 and 30. India argues that
"[i]t is irrelevant that the sub-headings were not included in the Draft Rectification to India's 2007 Schedule."
(India's response to Panel question No. 18, para. 58).
666 See para. 7.213 above.
667 See para. 7.81 above.
668 See para. 7.245 above.
669 WT/Let/1072.
670 India's second written submission, para. 147; response to Panel question No. 127, para. 81.
671 European Union's first written submission, para. 77 (referring to First Schedule of the Customs Tariff
Act, as amended by Finance Act 2020, (Exhibit EU-28)).
672 European Union's first written submission, paras. 77-78; response to Panel question No. 29,
paras. 74-77.

cellular mobile phones, to which its claim is limited 673, are class ified under this tariff item. 674 The
European Union submits that Notification No. 25/2005, as amended by Notification No. 67/2017,
exempts "static converters for … telecommunication apparatus, other than static converters for
cellular mobile phones" from im position of customs duties. 675 The European Union also notes that
Notification No. 57/2017, as amended by subsequent notifications, reduces the duty rate applicable
to "[a]ll goods other than charger or power adapter" to 10%.676 Therefore, according to the European
Union, India subjects static converters for cellular mobile phones to a 10% or 20% duty rate.677
7.258. India submits that "[s]tatic converters for automatic data processing machines and units
thereof and telecommunication apparatus are classifiable under sub-heading 8504.40" in its
domestic classification.678 In response to questioning from the Panel before the first substantive
meeting, India states that it imposes a 20% duty on static converters for cellular mobile phones.679
In its second written submission, India submits that static converters for cellular mobile phones are
subject to a "10% or 20%" duty rate. 680 Subsequently, asked by the Panel to clarify the tariff
treatment accorded to these products, India submits that static converters for cellular mobile phones
are subject to a 20% duty rate.681
7.4.2.2.2 Panel's assessment
7.259. It is uncontested that "static converters for … telecommunication apparatus" are classified
under tariff item 8504.40.90 of India's First Schedule. 682 It is also uncontested that India's First
Schedule sets the standard duty rate leviable on sta tic converters classified under tariff item
8504.40.90 at 20%. 683 Our review of the First Schedule, as amended by the Finance Act 2020,
confirms that India set the standard duty rate for static converters falling under tariff item
8504.40.90 of that Schedule at 20%.684
7.260. We recall that the duty rate applied by India to certain products may be different from that
set forth in the First Schedule, depending on any relevant customs notifications. In this respect, the
European Union submits that India applies a "10% or 20%" duty rate on static converters for cellular
mobile phones.685 India clarifies that such products are subject to a 20% duty rate.686
7.261. Based on the evidence on the record, we observe that the duty rate applied to products
classified under tariff item 8504.40.90 of the First Schedule is subject to various customs
notifications. Pursuant to Notification No. 25/2005, India exempted static converters for automatic
data processing machines and units thereof, and telecommunication apparatus from the customs
duties leviable under the First Schedule.687 Notification No. 25/2005 was subsequently amended by
Notification No. 67/2017, to exclude "static converters for cellular mobile phones" from that
exemption.688 Therefore, we understand that static converters for cellular mobile phones, the
products at issue in this dispute , are not eligible for the duty -free treatment available under

673 European Union's response to Panel question No. 81(a), para. 116.
674 European Union's first written submission, paras. 78-85. See also response to Panel question No. 29,
paras. 74-77.
675 European Union's first written submission, paras. 79-81 (referring to Notification No. 25/2005,
(Exhibit EU-10), as amended by Notification No. 67/2017, (Exhibit EU-11)).
676 European Union's first written submission, paras. 83-84 (referring to Notification No. 57/2017,
(Exhibit EU-12), as amended by Notification No. 22/2018, (Exhibit EU-13), and Notification No. 02/2020,
(Exhibit EU-31)).
677 European Union's first written submission, para. 86.
678 India's second written submission, para. 137; response to Panel question No. 78, para. 65.
679 India's response to Panel question No. 30, para. 84.
680 India's second written submission, para. 139.
681 India's response to Panel question No. 128, para. 85.
682 European Union's response to Panel question No. 29, paras. 74-77. India does not dispute the
European Union's assertion in this respect.
683 European Union's first written submission, para. 78; India's first written submission, para. 166.
684 First Schedule as of 2016/2017, (Exhibit EU-59), p. 750, as amended by Finance Act 2020,
(Exhibit EU-28), p. 100.
685 European Union's first written submission, para. 86.
686 India's response to Panel question No. 128, para. 85.
687 Serial No. 4 of Notification No. 25/2005, (Exhibit IND-40).
688 Notification No. 67/2017, (Exhibit EU-11).

Notification No. 25/2005, as amended by Notification No. 67/2017. The parties agree with this
understanding.689
7.262. We also note that the parties refer to Notification No. 57/2017, as amended by Notification
Nos. 22/2018 , 02/2020, and 03/2021, which accords a reduced duty rate of 10% to all goods
classified under tariff item 8504.40, other than (a) charger or power adapters, and (b) solar
inverters.690 India has clarified that static converters for cellular mobile phones, the products at issue
here, are not covered by any exemption notifications, and are therefore subject to the 20% duty
rate stipulated in the First Schedule.691 Therefore, absent any custom notifications exempting such
products from the duty rate set out in the First Schedule either in whole or in part692, such products
are subject to that standard duty rate of 20%.
7.263. In light of the foregoing, we conclude that static converters for cellular mobile phones are
subject to the standard duty rate of 20%.693
7.4.2.3 Comparison of India's tariff treatment to its WTO tariff commitments
7.4.2.3.1 Main arguments of the parties
7.264. The European Union considers that static converters for cellular mobile phones falling within
the scope of tariff item 8504.40.90 of India's First Schedule are covered by India's tariff
commitments inscribed under tariff item 8504.40 ex02 of India's WTO Schedule. 694 The European
Union submits that India is acting inconsistently with Articles II:1(a) and (b) of the GATT 1994
because it imposes customs duties on these products in excess of those set forth in its
WTO Schedule.695
7.265. India submits that it provides duty-free treatment to all static converters for automatic data
processing machines and units thereof, and telecommunication apparatus except cellular mobile
phones, in accordance with its ITA commitments. This is because according to India, cellular mobile
phones are not covered under the ITA. Therefore, in its view, by providing duty -free treatment to
all static converters for telecommunication apparatus except static converters for cellular mobile
phones, India "has not breached its commitments under the ITA[]".696

689 European Union's first written submission, paras. 81-82; India's response to Panel question No. 126,
para. 80.
690 Notification No. 57/2017 as amended by Notification Nos. 22/2018 and 02/2020, (Exhibit IND-42),
and Notification No. 03/2021, (Exhibit IND-54).
691 India's response to Panel question No. 30, para. 84. See also India's response to Panel question
No. 128, para. 85. We note that India submits that "[s]tatic converters for automatic data processing
machines and units thereof and telecommunication apparatus are classifiable under sub-heading 8504.40.
Serial No. 4 of Notification No. 25/2005 dated March 1, 2005, provides a complete exemption to 'Static
converters for automatic data processing machines and units thereof, and telecommunication apparatus, other
than static converters for cellular mobile phones,' while Serial No. 13 of Notification No. 57/2017 dated June
30, 2017, exempts all goods classifiable under sub-heading 8504.40 (except charger, power adapter and solar
adapter) from any duty above 10% (to simplify, 10% duty is applicable on such products). Therefore, even
though 'Static converters for automatic data processing machines and units thereof' are classifiable under sub-
heading 8504.40, the importer may choose the more beneficial exemption notification upon importation, i.e.,
Notification No. 25/2005. … Therefore, an importer/exporter can choose to import their goods under either of
the notifications to reap the benefit intended to be handed out to 'Static converters for automatic data
processing machines and units thereof, and telecommunication apparatus.'" (India's second written
submission, paras. 137-138). We note that in other submissions, India clarifies that static converters for
cellular telephones are not covered in any exemption notification and are therefore subject to the standard
duty rate set out in the First Schedule. (India's response to Panel question No. 30, para. 84).
692 See paras. 2.11-2.13 above.
693 We also consider that, since it is clear that static converters for cellular mobile phones are subject to
duties in excess of the duty rate set forth in India's WTO Schedule, the question of whether such products may
be subject to a 10% or 20% duty rate does not concern India's WTO-consistency, but rather the degree to
which India is acting inconsistently with its WTO obligations. In our view, it is unnecessary to delimit the
precise extent to which India may be acting inconsistently.
694 European Union's first written submission, para. 85.
695 European Union's first written submission, paras. 86-87.
696 India's response to Panel question No. 126, para. 80.

7.4.2.3.2 Panel's assessment
7.266. We recall that, pursuant to its WTO Schedule, India is obligated to accord u nconditional
duty-free treatment to static converters for telecommunication apparatus falling under tariff item
8504.04 ex02 of that Schedule. 697 We also consider that, as India's Schedule is based on the
HS2007, and given that under the HS2007 "telecommunication apparatus" includes "cellular mobile
phones", India is obligated to accord unconditional duty -free treatment to static converters for
cellular mobile phones.698
7.267. In our view, these tariff commitments apply to static converters for cellular mobile pho nes
imported into India and classified under tariff item 8504.40.90 of India's First Schedule. We recall
that such static converters for cellular mobile phones imported into India are subject to a 20% duty
rate.
7.268. A comparison between India's WTO tariff commitments and India's tariff treatment indicates
that India is imposing ordinary customs duties on static converters for cellular mobile phones
imported into India in excess of the bound rate set forth in India's WTO Schedule.
7.4.2.4 Conclusion
7.269. Based on the foregoing, we find that India's tariff treatment of static converters for cellular
mobile phones, falling within the scope of tariff item 8504.40 ex02 of India's WTO Schedule, is
inconsistent with Article II:1(b), first sentence, of the GATT 1994, because such products are subject
to ordinary customs duties in excess of those set forth and provided in India's WTO Schedule.
7.270. 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 8517.12 of India's WTO Schedule
7.4.3.1 General issues
7.4.3.1.1 Main arguments of the parties
7.271. The European Union challenges the tariff treatment accorded by India to products falling
under tariff item 8517.12 of India's WTO Schedule, covering telephones for cellular networks or for
other wireless networks.699 The European Union argues that at the time of the Panel's establishment,
India classified such products under tariff items 8517.12.11, 8517.12.19 and 8517.12.90 of its
First Schedule.700 The European Union submits that pursuant to India's amendment of its First
Schedule to reflect the HS2022, "India now classifies these products under two new tariff lines in its
domestic customs system, namely 8517.13 and 8517.14". 701 In response to an argument by India
that the measure challenged by the European Union has ceased to exist, the European Union argues
that "the measures which are the subject of the European Union's claims in the present case have
not disappeared or have been changed: India continues to impose customs duties on the same
products (previously class ified under a different tariff line number), and in doing so is acting
inconsistently with its obligations under Article II of the GATT 1994 and its certified schedule of
concessions".702
7.272. India argues that the measure identified by the European Union has ce ased to exist, as its
First Schedule was amended to align it with the HS2022, and therefore the Panel cannot issue rulings

697 See para. 7.254 above.
698 We recall that it is uncontested that, under the HS2007, telecommunication apparatus includes
cellular mobile phones. (See para. 7.255 above).
699 European Union's first written submission, paras. 13 and 15.
700 European Union's first written submission, paras. 88-90.
701 European Union's response to Panel question No. 106, para. 63.
702 European Union's response to Panel question No. 106, para. 64.

or recommendations on the measures pertaining to tariff item 8517.12. 703 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."704 In this regard, India argues
that the scopes and descriptions of tariff items 8517.13 and 8517.14 are different from those of
tariff item 8517.12.705 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." 706
India asserts that "[t]he burden of proof is on the complainant to identify the sub -heading under
which smartphones were classified under HS2007, and whether India has violated its commitments
viz-a-viz such sub-headings. However, the complainant [has] not made any such claims with regard
to smartphones."707 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."708
7.4.3.1.2 Panel's assessment
7.273. Before turning to assess the merits of the parties' arguments with respect to the European
Union's claim concerning products classified under tariff item 8517.12 of India's WTO Schedule, we
consider it useful to briefly address certain threshold issues concerning our terms of reference.
7.274. We recall that the measure challenged by the European Union is the imposition of customs
duties on products falling within the scope of tariff item 8517.12 of India's WTO Schedule.709 India
argues that: (i) the measure as challenged by the European Union has ceased to exist, as a result
of certain amendments to India's First Schedule; and (ii) the European Union has failed to
demonstrate that "smartphones" fall within the scope of tariff item 8517.12 of India's WTO Schedule.
We note that these arguments, on their face, appear to raise threshold issues concerning the scope
of the European Union's claim and our terms of reference. Nevertheless, in our view, it is not possible
to address the merits of these arguments without assessing: (i) as a factual matter , the effect, if
any, of India's amendments to its First Schedule on the measure as challenged b y the European
Union; and (ii) as a legal matter, whether smartphones are products covered by tariff item 8517.12
of India's WTO Schedule, such that the tariff treatment of such products is part of the measure as
challenged by the European Union.
7.275. 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 co ncerning the tariff
treatment applied by India to certain products, including smartphones. In our view, this factual
assessment is essential to our determination of whether, as alleged by India, the measure at issue
has ceased to exist. Finally, we will compare our factual findings concerning India's tariff treatment
to India's WTO tariff commitments for purposes of determining whether India is acting inconsistently
with Articles II:1(a) and (b) of the GATT 1994. In that context, we will also assess whether the
European Union has demonstrated that smartphones are classified under tariff item 8517.12 of
India's WTO Schedule, such that the tariff treatment of such products constitutes part of the measure
challenged by the European Union and thereby falls within our terms of reference; and whether the
measure challenged by the European Union has ceased to exist or has otherwise been amended.

703 India's second written submission, para. 151.
704 India's response to Panel question No. 102, para. 46.
705 India's response to Panel question No. 102, para. 46.
706 India's second written submission, para. 151. See also India's response to Panel question No. 102,
para. 46.
707 India's response to Panel question No. 108, para. 60.
708 India's response to Panel question No. 108, para. 59.
709 European Union's panel request, p. 1.

7.4.3.2 India's WTO tariff commitments
7.4.3.2.1 Main arguments of the parties
7.276. The European Union 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%.710
7.277. 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.711 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 HS1996.712 According to India, the commitment s under tariff item 8517.12 were
undertaken in error, are void pursuant to Article 48 of the Vienna Convention, and are therefore
rendered unbound.713
7.4.3.2.2 Panel's assessment
7.278. 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. 714 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.715 Moreover, we have declined to make the findings
requested by India regarding its request to rectify its WTO Schedule pursuant to the
1980 Decision.716
7.279. Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's
WTO HS2007 Schedule provides, inter alia, the following 717:
 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%
7.280. Given that the relevant tariff binding for "[t] elephones for cellular networks or for other
wireless networks " set forth in India's WTO Sch edule 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.
7.4.3.3 India's tariff treatment
7.4.3.3.1 Main arguments of the parties
7.281. The European Union submits that, at the time of the Panel's establishment, India's First
Schedule set a standard duty rate of 20% on imports of telephones for cellular networks and
telephones for other wireless networks, which were classified under tariff items 8517.12.11,

710 European Union's first written submission, para. 88.
711 India's first written submission, paras. 57-91.
712 India's first written submission, paras. 150-164.
713 India's first written submission, paras. 90-91.
714 See para. 7.213 above.
715 See para. 7.81 above.
716 See para. 7.245 above.
717 WT/Let/1072.

8517.12.19 and 8517.12.90 of that Schedule. 718 The European Union 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.719 The European
Union clarifies that its claim does not include telephones for other wireless networks, because such
products are exempted from customs duties. 720 The European Union submits that telephones for
cellular networks were subject to a 20% duty rate, as such products were not exempted from
customs duties.721 The European Union 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. The European Union submits that, following these amendments, India's
First Schedule set a standard duty rate of 20% on imports of such products, namely smartphones
and other telephones for cellular networks or other wireless networks. 722 The European Union also
notes that Notifi cation 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.723
7.282. 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.724 India also does not dispute that, following its amendments to the First Schedule,
India imposes a 20% duty rate o n 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).725 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.726
7.4.3.3.2 Panel's assessment
7.283. We proceed with our assessment by examining the tariff treatment accorded to products
that, at the time of the Panel's establishment, fell under tariff item 8517.12 of India's First Schedule.
We then assess the effects of India's amendment of the First Schedule during these proceedings.
7.284. 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". 727 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. 728 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%

718 European Union's first written submission, para. 94 (referring to First Schedule as amended by
Finance Act 2019, (Exhibit EU-19)).
719 European Union's first written submission, para. 104 (referring to Notification No. 57/2017,
(Exhibit EU-12)). (emphasis original)
720 European Union's response to Panel question No. 107, para. 66.
721 European Union's first written submission, para. 106.
722 European Union's response to Panel question No. 111, para. 74.
723 European Union's communication (12 July 2022).
724 India's first written submission, para. 149.
725 India's response to Panel question No. 110, para. 64.
726 India's response to Panel question No. 108(a), para. 58 (referring to Notification No. 57/2017 as
amended by Notification No. 57/2021, (Exhibit IND-89)).
727 European Union's first written submission, para. 94; India's first written submission, para. 149. See
also First Schedule as of 2016/2017, (Exhibit EU-59), as amended by Finance Act 2019, (Exhibit EU-19).
728 Notification No. 57/2017, (Exhibit EU-12). See also European Union's first written submission,
para. 104; and India's response to Panel question No. 108(a), para. 58.

7.285. 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
amendments to the First Schedule include changes to tariff item 8517.12. The Finance Act 2021
provides that the words "including telephones" occurring against heading 8517 be substituted with
the words "including smartphones and other telephones". The Finance Act 2021 also amended the
First Schedule, as follows: "for sub-heading 8517 12, tariff items 8517 12 11 to 8517 12 90 and the
entries relating thereto" were substituted with tariff item 8517.13.00, relating to "smartphones",
and tariff item 8517.14.00, relating to "other telephones for other cellular networks or other wireless
networks".729 As amended, India's First Schedule imposed a standard duty rate of 20% on products
classified under tariff items 8517.13.00 and 8517.14.00.730
7.286. We also observe that pursuant to India's Notification No. 57/2017, as amended by
Notification No. 57/2021, India exempts certain products covered by tariff item 8517.14.00, namely
"telephones for other wireless networks, other than cellular networks", from customs duties.731 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%.732 Therefore, pursuant to Notification No. 57/2017 (as amended) as well as the First Schedule,
India's tariff treatment of products classified under tariff items 8517.13.00 and 8517.14.00 of its
First Schedule is presently as follows:
Tariff item Product description Applied duty rate
8517.13.00 -- Smartphones 20%
8517.14.00 -- Other telephones for cellular networks 20%
8517.14.00 -- Other telephones for other wireless networks 0%

7.4.3.4 Comparison of India's tariff treatment to its WTO tariff commitments
7.4.3.4.1 Preliminary issues
7.287. As indicated above, India argues that the measure as challenged by the European Union has
ceased to exist, as a consequence of the amendments to India's First Schedule to reflect the HS2022.
India also argues that the European Union has failed to demonstrate that smartphones are products
classified under tariff item 8517.12 of India's WTO Schedule. We proceed with our comparison of
India's tariff treatment to its WTO tariff commitments by first assessing these preliminary issues.
7.288. In our view, it is useful to first address India's arguments concerning the European Union's
alleged failure to demonstrate that smartphones are classified under tariff item 8517.12 of India's
WTO Schedule. This is because the measure at issue, as defined by the European Union, only extends
to the tariff treatment of products falling under that tariff item. To the extent that a product (such
as smartphones) falls outside the scope of that tariff commitment, it would also fall outside our
terms of reference. Since this assessment will define the scope of the measure as challenged by the
European Union, we consider it useful to first assess this issue, before turning to assess whether the
measure, as challenged, has ceased to exist.
7.4.3.4.1.1 Whether the measure at issue includes the tariff treatment of "smartphones"
Main arguments of the parties
7.289. The European Union 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. The
European Union notes that smartphones have additional functions other than "pure telephone calls",
but maintains that the main function remains telecommunication via a cellular network by a
SIM card.733 The European Union considers that because, in its view, t he principal function of

729 Finance Act 2021, (Exhibit IND-66), p. 176.
730 Finance Act 2021, (Exhibit IND-66), p. 176.
731 Notification No. 57/2017 as amended by Notification No. 57/2021, (Exhibit IND-89). See also India's
response to Panel question No. 108(a), para. 58 (referring to Notification No. 57/2017 as amended by
Notification No. 57/2021, (Exhibit IND-89)); and European Union's communication (12 July 2022).
732 European Union's response to Panel question No. 111, para. 74; India's response to Panel question
No. 110, para. 64.
733 European Union's response to Panel question No. 109, para. 67.

smartphones is telecommunication via a cellular network, tariff item 8517.12 is the appropriate
classification for such products. 734 The European Union submits that Note 3 to Section XVI of the
HS Nomenclature provides that "[u]nles s 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."735 The European Union argues that applying this Note, the WCO adopted a Classification
Opinion in 2018 confirming that smartphones are classified under tariff item 8517.12 of the
HS2007.736 The European Union also contends that the manner in which a specific tariff item for
smartphones was created in the HS2022 and adopted by India confirms that prior to the change,
smartphones were categorized under tariff item 8517.12 in the HS2007.737
7.290. India maintains that "the term 'smartphones' does not appear in the ITA [] or in the [HS]
2007 Schedule." 738 India submits that "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 ."739 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. 740 Relying on
Chapter Note 5 to Chapter 85 in the HS2022, India considers that "smartphones are multifunctional
devices, and the principal function of these devices is not that of telephones".741 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".742 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."743 India argues that "smartphones could have been classified under various tariff lines
under HS2007 (on the basis of the primary functionality of the machine) and not just under
sub-heading 8517.12."744
Panel's assessment
7.291. We recall that the product description of subheading 8517.12 of India's WTO Schedule is
"telephones for cellular networks or for other wireless networks". 745 The European Union submits
that "smartphones" are "telephones for cellular networks", and are therefore classified under this

734 European Union's response to Panel question No. 109, para. 70.
735 European Union's response to Panel question No. 109, para. 69 (quoting HS2007 Section Notes to
Section XVI, (Exhibit EU-56), Note 3). (underlining original)
736 European Union's response to Panel question No. 109, para. 68 (referring to WCO, Classification
Opinion on "smartphones" (2018), (Exhibit EU-55)).
737 European Union's response to Panel question No. 109, paras. 71-72 (referring to Finance Act 2021,
(Exhibit IND-66), pp. 173 and 176).
738 India's second written submission, para. 151.
739 India's response to Panel question No. 108, para. 60, and No. 109, para. 63.
740 India notes that tablets were defined in a WCO Classification Opinion as "machines which are
'designed to be primarily operated by using its touch screen. It can process data, execute programs, and
connect to the Internet via a wireless network in order to, for example, exchange and manage e-mails,
exchange or download files, download software applications, conduct video or VoIP ('Voice over Internet
Protocol') communications, etc." (India's comments on the European Union's response to Panel question No.
109, para. 31 (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-88))).
741 India's response to Panel question No. 108, para. 60 (referring to Chapter 85 of the HS2022, (Exhibit
IND-87), Note 5). Chapter Note 5 to Chapter 85 in the HS2022 reads: "[f]or the purposes of heading 85.17,
the term 'smartphones' means telephones for cellular networks, equipped with a mobile operating system
designed to perform the functions of an automatic data processing machine such as downloading and running
multiple applications simultaneously, including third-party applications, and whether or not integrating other
features such as digital cameras and navigational aid systems."
742 India's response to Panel question No. 108, paras. 60 and 62.
743 India's comments on the European Union's response to Panel question No. 109, para. 31.
744 India's comments on the European Union's response to Panel question No. 109, para. 31.
745 See para. 7.279 above.

subheading.746 India maintains that smartphones could have been classified under other
subheadings of its WTO Schedule depending on their primary functionali ty, and not just under
subheading 8517.12. 747 We note that, to the extent that smartphones are not classified under
subheading 8517.12, they would fall outside the scope of the measure as challenged by the European
Union. We therefore proceed to address whe ther "smartphones" are classified under subheading
8517.12 of India's WTO Schedule.
7.292. We recall India's argument that the term "smartphones" does not appear in the ITA or in
the HS2007 Schedule. 748 We have rejected India's arguments that the ITA limits the sc ope of its
tariff commitments in its WTO HS2007 Schedule.749 Therefore, we consider that the absence of the
term "smartphones" from the ITA is not determinative of the scope of India's WTO tariff
commitments. Further, the absence of the term "smartphones" i n 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. 750 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.
7.293. 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.
7.294. 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 .751 In this regard, we
observe that the HS2007 Explanatory Notes provide that the product description "[t]elephones for
cellular networks or for other wireless networks" covers "telephones for use on any wireless
networks", and indicate that "[s]uch telephones receive and emit radio waves which are received
and retransmitted, e.g. by base stations or satellites", including, inter alia ,"[c]ellular phones or
mobile phones" a nd "[s]atellite phones". 752 The key point of disagreement between the parties is
whether "smartphones" are "cellular phones or mobile phones".
7.295. The dictionary meaning of "smartphone" is "a mobile phone capable of running general -
purpose computer application s, now typically with a touch -screen interface, camera, and internet
access".753 Other dictionaries define "smartphone" as a "cell phone that includes additional software
functions (such as email or an Internet browser)"754 and "a mobile telephone with computer features
that may enable it to interact with computerized systems and access the web". 755 The foregoing
suggests that "smartphones" are indeed "telephones for cellular networks", to the extent that they
have the same functions as (and indeed are defined as) "mobile phones" and "cell phones".
7.296. However, t he dictionary definitions described above indicate that "smartphones" have
functions additional to those of "telephones", such as "computer features". Given that smartphones
have various functions, the parties disagree on whether such products would necessarily be classified
under subheading 8517.12.756 In this regard, we observe that, pursuant to the General Rules for the
Interpretation of the HS, classification shall be determined accordi ng to the terms of the headings
and any relative Section or Chapter Notes. These Rules further provide that classification of goods

746 European Union's response to Panel question No. 109, paras. 67-73.
747 India's comments on the European Union's response to Panel question No. 109, para. 31.
748 India's second written submission, para. 151.
749 See para. 7.81 above.
750 See para. 7.65 above.
751 Appellate Body Report, EC – Computer Equipment, para. 89.
752 HS2007 Explanatory Notes to Heading 8517, (Exhibit IND-8).
753 Oxford English Dictionary online, definition of "smartphone"
https://www.oed.com/view/Entry/381083?redirectedFrom=smartphones#eid (accessed 17 October 2022).
754 Merriam-Webster Dictionary online, definition of "smartphone" https://www.merriam-
webster.com/dictionary/smartphone (accessed 17 October 2022).
755 Collins Dictionary online, definition of "smartphone"
https://www.collinsdictionary.com/dictionary/english/smartphone (accessed 17 October 2022).
756 For India, because of these additional functions, "the principal function no longer appears to be that
of a telephone." Therefore, according to India, smartphones "were classifiable under different tariff items,
depending on the functionality of the smartphones." (India's response to Panel question No. 108(a), para. 60).

shall be determined according to the terms of those subheadings and any related Subheading
Notes.757
7.297. 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.758
7.298. 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 8 517.12 of India's
WTO Schedule.
7.299. 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
8517.12.759 Classification Opinions, which are issued by the Harmonized System Committee of the
WCO, are not binding upon parties to the WCO. However, pursuant to Article 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".760 We therefore consider
it relevant to our interpretative exercise that this WCO Classification Opinion indicates that
smartphones are "telephones for cellular networks", and are appropriately classified under
subheading 8517.12 of India's WTO Schedule.761
7.300. 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 t his regard, we
note that Chapter Note 5 to Chapter 85 of the HS2022 provides that for the purposes of heading
8517, the term "smartphones" means " telephones for cellular networks , equipped with a mobile
operating system designed to perform the functions of an automatic data processing machine such
as downloading and running multiple applications simultaneously, including third-party applications,
and whether or not integrating other features such as digital cameras and navigational aid
systems."762 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"763 are not core functions of smartphones.764

757 General Rules for the Interpretation of the Harmonized System, (Exhibit EU-54), paras. 1 and 6.
758 HS2007 Section Notes to Section XVI, (Exhibit EU-56), Note 3. (emphasis added)
759 WCO, Classification Opinion on "smartphones" (2018), (Exhibit EU-55).
760 Panel Reports, EC – Chicken Cuts, para. 7.298. See also Appellate Body Report, EC – Computer
Equipment, para. 90.
761 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 HS2007 and HS2017. Therefore, this
Classification Opinion is relevant to our interpretation of India's WTO Schedule, which is based on the HS2007.
762 Chapter 85 of the HS2022, (Exhibit IND-87), Note 5. (emphasis added)
763 India's response to Panel question No. 109(b), para. 63. See also India's response to Panel question
No. 108(a), para. 60.
764 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-87), Chapter Note 5).
(emphasis added)

7.301. The structure and content of the HS2022 further supports this interpretation. The relevant
sections of the HS2022 read as follows765:
 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

7.302. We observe that the product descriptions of heading 8517 of 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 ."766 Subheading 8517.14, in turn, refers to
"[o]ther telephones for cellular networks or for other wireless networks". The use of the word
"other"767 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 category, comprising "other telephones for cellular networks")
confirms this conclusion.
7.303. Finally, we note that the manner in which India amended its First Schedule indicates that,
in India's domestic customs regime, smartphones are telephones for cellular networks. We
understand that the product description attached to heading 8517 of India's First Schedule as of 1
January 2022 reads "including smartphones and other telephones for other cellular networks ".768
Moreover, the product description attached to tariff item 8517.14.00 of the First Schedule is "[o]ther
telephones for cellular networks". These product descriptions suggest that smartphones are a type
of telephone for cellular networks . We further note that the Finance Act 2021 itself clarifies that
"[f]or the purposes of heading 8517, the term 'smartphones' means telephones for cellular
networks."769
7.304. While India argues that " smartphones could have been classified under various tariff lines
under HS2007 (on the basis of the principal functionality of the machine)", India does not
demonstrate under which subheading of its WTO Schedule it considers such p roducts should have
been classified. We note that India suggests that tablet computers, which are defined as "machines
which are 'designed to be primarily operated by using its touch screen" because they "can process
data, execute programs, and connect to the Internet via a wireless network in order to, for example,
exchange and manage e-mails, exchange or download files, download software applications, conduct
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."770 India also submits that it "does not take a definitive position on the issue". 771 We do
not consider it necessary to discuss whether tablet comp uters 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

765 Emphasis added.
766 Chapter 85 of the HS2022, (Exhibit IND-87). (emphasis added)
767 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)).
768 Emphasis added. We recall that the description of heading 8517 in the First Schedule at the time of
Panel 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, p. 176).
769 Finance Act 2021, (Exhibit IND-66), p. 44. (emphasis added)
770 India's comments on the European Union's response to Panel question No. 109(a), para. 31.
771 India's comments on the European Union's response to Panel question No. 109(a), para. 31.

"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.
7.305. 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.
7.4.3.4.1.2 Whether the challenged measure has ceased to exist
Main arguments of the parties
7.306. India argues that, following the "amendments" to its First Schedule, "subheading 8517.12
has ceased to exist", and there fore the measure challenged by the European Union has ceased to
exist. India also 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 is to be classified under a tariff entry, then
the heading and description both would have to be seen toget her to determine the commitments
prescribed in the schedule." India maintains that "the term 'smartphones' does not appear in the
ITA[] or in the 2007 Schedule. Accordingly, no commitments exist with respect to such
smartphones." Further, according to Indi a, "there exists no certified schedule with respect to
sub-headings 8517.13 and 8517.14." Therefore, "India submits that the measure identified by the
European Union has ceased to exist, and the Panel cannot issue any rulings or recommendation on
the measures pertaining to sub-heading 8517.12."772
7.307. The European Union submits that the measure at issue is "the imposition of certain tariff
duties on certain products", which the European Union "identified by reference to India's schedule
of concessions (based on HS2007), and by their descriptions".773 The European Union asserts that,
subsequent to the amendments to India's First Schedule its measure has "not disappeared or … been
changed: India continues to impose customs duties on the same products (previously cla ssified
under a different tariff line number)".774
Panel's assessment
7.308. We observe that in its panel request, the European Union challenged "the duties applied by
India on imports of certain ICT products" in excess of the bindings set forth in India's WTO Schedule.
The panel request also states that "[t]he ICT products concerned fall within the scope of the bindings
included in India's WTO Schedule with respect to the following tariff lines (based on the HS 2007)":
inter alia, 8517.12.775 Therefore, the measure at issue is the imposition of customs duties by India
on products falling within the scope of tariff item 8517.12 of India's WTO Schedule.
7.309. We recall that the product description attached to tariff item 8517.12 of India's
WTO Schedule is "[t]elephones for cellular networks or for other wireless networks ".776 At the time
of the Panel's establishment, India classified these products under tariff items 8517.12.11,
8517.12.19 and 8517.12.90 of its First Schedule. 777 India's First Schedule as of 1 January 2022
substituted tariff items 8517.12.11, 8517.12.19 and 8517.12.90 with tariff items 8517.13.00 and
8517.14.00.778 Therefore, as India argues, tariff item 8517.12 does not exist in its First Schedule
subsequent to the amendments. We also observe that, as India argues, the product descriptions
attached to tariff items 8517.13.00 and 8517.14.00 differ from those attache d to tariff items
8517.12.11, 8517.12.19 and 8517.12.90 of the First Schedule at the time of the Panel's
establishment.
7.310. However, these facts are not dispositive of whether the measure challenged by the European
Union has ceased to exist. As we have observed above, the European Union challenges the imposition

772 India's second written submission, para. 151.
773 European Union's response to Panel question No. 106, para. 62.
774 European Union's response to Panel question No. 106, para. 64.
775 European Union's panel request, p. 1.
776 WT/Let/1072.
777 India's First Schedule as of 2016/2017, (Exhibit EU-59), as amended by Finance Act 2019,
(Exhibit EU-19), p. 139.
778 Finance Act 2021, (Exhibit IND-66), p. 176.

of customs duties on products falling under tariff item 8517.12 of India's WTO Schedule. India's
WTO Schedule has not been amended. 779 It is uncontested that products falling under tariff item
8517.12 of India's WTO Schedule were previously classified under tariff items 8517.12.11,
8517.12.19 and 8517.12.90 of India's First Schedule. We also recall India's submission that "'other
telephones for cellular networks' classified under sub-heading 8517.14 [of India's First Schedule as
of 1 January 2022] … would have been classified under 8517.12.11 or 8517.12.19 of the HS2007".780
Therefore, it is uncontested that "other telephones for cellular networks" classified under subheading
8517.14 of India's First Schedule as of 1 January 2022 fall within the scope of tariff item 8517.12 of
India's WTO Schedule. Moreover, given our finding above that "smartphones" are classified under
tariff item 8517.13 of India's First Schedule as of 1 January 2022 are telephones for ce llular
networks, such products also fall within the scope of tariff item 8517.12 of India's WTO Schedule.
7.311. We recall that the measure as challenged by the European Union is the tariff treatment
accorded to products classified under tariff item 8517.12 of I ndia's WTO Schedule, namely
"telephones for cellular networks or for other wireless networks". We have concluded above that
"smartphones" and "other telephones for cellular networks" constitute "telephones for cellular
networks or for other wireless networks", which fall within the scope of tariff item 8517.12 of India's
WTO Schedule.781 We also note that, since 1 January 2022, India continues to impose customs duties
on these products. We therefore conclude that the measure as challenged by the European Uni on
has not ceased to exist.
7.4.3.4.2 Comparison of applied and bound duty rates
7.312. We recall that pursuant to its WTO Schedule, India is obligated to accord unconditional
duty-free treatment to telephones for cellular networks or for other wireless networks. We also recall
that, effective 1 January 2022, such products are classified under tariff items 8517.13.00 and
8517.14.00 of India's First Schedule.
7.313. 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.
7.314. 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
accords to such products uncondi tional duty-free treatment, in accordance with the terms of its
WTO Schedule.
7.4.3.5 Conclusion
7.315. Based on the foregoing, we find that India's tariff treatment of certain products falling within
the scope of tariff item 8517.12 of India's WTO Schedule, is inconsistent with Article II:1(b), first
sentence, of the GATT 1994, because certain such products are subject to ordinary customs duties
in excess of those set forth and provided in India's WTO Schedule.
7.316. We recall that the application of ordinary customs duties in excess of those provided for in
a Member's Schedule, inconsistent with the first senten ce 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.

779 Indeed, India notes that "there exists no certified schedule with respect to sub-headings 8517.13
and 8517.14". (India's second written submission, para. 151).
780 India's response to Panel question No. 108(a), para. 59.
781 See para. 7.286 above.

7.4.4 Tariff item 8517.61 of India's WTO Schedule
7.4.4.1 India's WTO tariff commitments
7.4.4.1.1 Main arguments of the parties
7.317. The European Union asserts that India's bound duty rate for products falling under tariff item
8517.61 of India's WTO Schedule, base stations, is 0%.782
7.318. India contends that the tariff commitments under tariff item 8517.61 as reflected in its
WTO Schedule based on the HS2007 were certified in error.783 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 .784 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.785
7.4.4.1.2 Panel's assessment
7.319. We have addressed India's arguments that its WTO Sc hedule was certified in error above,
and held that India's tariff commitments are set forth in India's WTO Schedule. 786 We have also
rejected India's arguments that the ITA sets forth, or otherwise limits the scope of, its tariff
commitments in its WTO HS20 07 Schedule.787 Moreover, we have declined to make the findings
requested by India regarding its request to rectify its WTO Schedule pursuant to the
1980 Decision.788
7.320. Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's
WTO HS2007 Schedule provides, inter alia, the following789:
 Product description Bound
rate
8517.61 -- Base stations 0%

7.321. 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".790 We also note that India's
WTO Schedule does not indicate any terms, qualifications or conditions that must be met in order
for products under tariff item 8517.61 to receive the 0% bound duty rate.791 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.
7.4.4.2 India's tariff treatment
7.4.4.2.1 Main arguments of the parties
7.322. The European Union 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 of its First Schedule.792
The European Union 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

782 European Union's first written submission, para. 108.
783 India's first written submission, paras. 55-91.
784 India's first written submission, paras. 174-184.
785 India's first written submission, paras. 90-91.
786 See para. 7.213 above.
787 See para. 7.81 above.
788 See para. 7.245 above.
789 WT/Let/1072.
790 WT/Let/1072.
791 WT/Let/1072.
792 European Union's first written submission, paras. 110 and 117.

Telecommunications of India for the purpose of providing Public Mobile Trunked Service. 793 The
European Union maintains that this condition is "provided for in Notifications issued by the
Government of India on statutor y customs duties" and relates to "the payment of customs duties
and not the importation of such products as such".794
7.323. India does not dispute that the applied duty rate on base stations is 20%.795 India also does
not dispute that certain products are exempt from customs duties if they meet the condition set out
in Serial No. 425. However, India maintains that "the licensing requirement is applicable for the
possession of the specified wireless apparatus in the country – whether it is procured domestically
or i mported."796 According to India, there is no requirement to record such "procedural and
documentary formalities for the importation of goods" in its WTO Schedule. 797 India also submits
that Serial No. 425 was omitted from Notification No. 50/2017 through Notification No. 02/2022.798
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 of India's First Schedule.799
7.4.4.2.2 Panel's assessment
7.324. India's First Schedule imposes a standard duty rate of 20% on products falling under tariff
item 8517.61.800
7.325. At the time of the Panel's establishment, Serial No. 425 of Notification No. 50/2017
exempted from customs duties base station controllers , base transreceiver stations , and antenna
systems if imported by a person licenced by the Department of Telecommunications for the purpose
of providing Public Mobile Radio Trunked Service.801 Notification No. 02/2022 amended Notification
No. 50/2017 and omitted Serial No. 425 from that Notification with effect from 1 February 2022.802
Therefore, with effect from 1 February 2022, the three products at issue are not eligible for
exemption, even assuming that such products a re classified under tariff item 8517.61 of the First
Schedule.803
7.326. In sum, we find that India imposes a duty rate of 20% on products falling under tariff item
8517.61.
7.4.4.3 Comparison between India's WTO tariff commitments and its tariff treatment
7.327. 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.
7.328. We have found that India imposes a 20% customs duty on products falling under tariff item
8517.61 of its First Schedule. We consider that such products are covered by India's WTO tariff
commitments with respect to base stations, falling under tariff item 8517.61 of India's
WTO Schedule. A comparison between India's bound duty rate and India's tariff treatment indicates

793 European Union's response to Panel question No. 83, para. 126, No. 112, para. 75, and No. 113,
para. 76 (referring to Notification No. 50/2017, (Exhibit EU-34)). See also European Union's response to Panel
question No. 134, para. 4.
794 European Union's response to Panel question No. 104, para. 54.
795 India's first written submission, para. 173.
796 India's response to Panel question No. 103, para. 48 (referring to Circular No. 04/2022 (27 February
2022), (Exhibit IND-81); Indian Wireless Telegraphy Act 1933, (Exhibit IND-82); and Notification No. 71 (25
September 1953), (Exhibit IND-83)).
797 India's response to Panel question No. 103, para. 49.
798 India's response to Panel question No. 134.
799 India's response to Panel question No. 134.
800 First Schedule as of 2016/2017, (Exhibit EU-59).
801 Serial No. 425 of Notification No. 50/2017, (Exhibit IND-41).
802 Notification No. 02/2022, (Exhibit IND-90).
803 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. 134). 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.

that India is imposing ordinary customs duties on those products in excess of the bound duty rate
set forth in India's WTO Schedule.
7.4.4.4 Conclusion
7.329. Based on the foregoing, we find that India's tariff treatmen t of base stations, falling within
the scope of tariff item 8517.61 of India's WTO Schedule, is inconsistent with Article II:1(b), first
sentence, of the GATT 1994, because such products are subject to ordinary customs duties in excess
of those set forth and provided in India's WTO Schedule.
7.330. 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 f irst 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.
7.4.5 Tariff item 8517.62 of India's WTO Schedule
7.4.5.1 India's WTO tariff commitments
7.4.5.1.1 Main arguments of the parties
7.331. The European Union 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%.804
7.332. India contends that the tariff commitments un der tariff item 8517.62 as reflected in its
WTO Schedule based on the HS2007 were certified in error.805 India maintains that it did not make
commitments on machines for the reception, conversion and transmission or regeneration of voice,
images or other data, including switching and routing apparatus, which in its view were not covered
under the ITA or the HS1996.806 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.807
7.4.5.1.2 Panel's assessment
7.333. 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. 808 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.809 We have also considered that the fact that a product
is covered by the ITA Expansion does not necessarily imply that such product did not already fall
within the scope of tariff concessions set forth in relevant Members' WTO Schedules. 810 Moreover,
we have declined to make the findings requested by India regarding its request to rectify its
WTO Schedule pursuant to the 1980 Decision.811
7.334. Therefore, we turn to India's WTO Schedule to assess India's tariff commitments. India's
WTO HS2007 Schedule provides, inter alia, the following812:

804 European Union's first written submission, para. 119.
805 India's first written submission, paras. 57-91.
806 India's first written submission, paras. 196-201; second written submission, paras. 117-131.
807 India's first written submission, paras. 90-91.
808 See para. 7.213 above.
809 See para. 7.81 above.
810 See para. 7.77 above.
811 See para. 7.245 above.
812 WT/Let/1072.

 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%

7.335. 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".813 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.814 Therefore, in accordance with its WTO Schedule, India is obligated to provide
unconditional duty-free treatment to m achines for the reception, conversio n and transmission or
regeneration of voice, images or other data, including switching and routing apparatus falling under
tariff item 8517.62 of India's WTO Schedule.
7.4.5.2 India's tariff treatment
7.4.5.2.1 Main arguments of the parties
7.336. The European Union argues that India's First Schedule sets a standard duty rate of 20% on
imports of certain products which India classifies under tariff item 8517.62.90 of its First Schedule,
namely certain machines for the reception, conversion and transmission or regeneration of voic e,
images or other data, including switching and routing apparatus. 815 The European Union submits
that Notification No. 24/2005 initially exempted "all goods" under tariff item 8517 from tariff duties,
but Notification No. 58/2017 subsequently limited the s cope of the exemption to certain products
which did not include those covered by tariff item 8517.62.90.816 The European Union also submits
that Notification No. 57/2017, as amended by Notification No. 02/2019, reduced the duty rate
applicable to certain products falling under tariff item 8517.62.90 to 10%. 817 The European Union
further notes that Notification N o. 36/2019 exempts "routers" from customs duties. 818 Thus,
according to the European Union, India imposes a duty rate of 10% or 20% to products falling under
tariff item 8517.62.90819, except for routers which are exempted from customs duties.820
7.337. India submits that the applied duty rate on products classified under tariff item 8517.62.90
of the First Schedule is 10% or 20%.821 India notes that Notification No. 57/2017 which reduces the
applicable duty rate to 10% for certain products covered by tariff item 851 7.62.90 applies to
products covered by tariff items "8517.62.90 or 8517.69.90". 822 India submits that the products
described in that Notification "may not be classified under tariff item 8517.62.90". 823 India argues
that the European Union has failed to demo nstrate that th ese products listed in Notification No.
57/2017 fall within the scope of tariff item 8517.62.90 of India's First Schedule.824 Thus, according

813 WT/Let/1072.
814 WT/Let/1072.
815 European Union's first written submission, paras. 121-123 (referring to First Schedule as amended
by the Finance Act 2018, (Exhibit EU-15)).
816 European Union's first written submission, paras. 124-127 (referring to Notification No. 24/2005,
(Exhibit EU-9); Notification No. 58/2017, (Exhibit EU-9)).
817 European Union's first written submission, para. 129 (referring to Notification No. 57/2017 as
amended by Notification No. 02/2019, (Exhibit EU-16)). See also European Union's response to Panel question
No. 36, para. 86.
818 European Union's response to Panel question No. 84, para. 127 (referring to Notification
No. 36/2019, (Exhibit EU-49)).
819 European Union's first written submission, para. 131.
820 European Union's response to Panel question No. 84, para. 127 (referring to Notification
No. 36/2019, (Exhibit EU-49)).
822 India's first written submission, paras. 186-187; second written submission, paras. 112-113
(referring to Notification No. 57/2017), (Exhibit IND-42)).
823 India's first written submission, para. 188.
824 India's second written submission, para. 113; response to Panel question No. 105, para. 53.

to India, those goods "fall outside the scope of the dispute to the extent they are appropriately
classified under sub-heading 8517.69".825
7.4.5.2.2 Panel's assessment
7.338. We observe that India's First Schedule provides as follows with regard to tariff item
8517.62826:
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%

7.339. 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. The
European Union's claim and arguments relate exclusively to the tariff treatment accorded to products
classified under this residual category, i.e. tariff item 8517.62.90. The European Union does not
dispute that the First Schedule exempts all other products falling under tariff item 8517.62 of that
Schedule from customs duties.827
7.340. The applied duty rate for products classified under tariff item 8517.62.90 is subject to several
customs notifications. We observe that Notification No. 36/2019 presently exempts routers, falling
under tariff item 8517.62.90, from customs duties. Thus, India a ccords unconditional duty -free
treatment to such products.828
7.341. 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%.829 Thus, while smart
watches classified under tariff item 8517.62.90 remained subject to the standard duty rate of 20%,
as set forth in the First Schedule, all other products classified under tariff item 8517.62.90 (other
than routers830) became subject to a duty rate of 10%.
7.342. 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 follows831:
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)

825 India's second written submission, para. 114. See also India's response to Panel question No. 105,
para. 53.
826 First Schedule as of 2016/2017, (Exhibit EU-59), as amended by the Finance Act 2018, (Exhibit
EU-15).
827 European Union's first written submission, paras. 121-123.
828 Notification No. 36/2019, (Exhibit EU-49). The European Union agrees with this position. (European
Union's response to Panel question No. 84, para. 127).
829 Notification No. 57/2017 as amended by Notification No. 22/2018, (Exhibit IND-42).
830 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
831 Notification No. 57/2017 as amended by Notification No. 75/2018, (Exhibit IND-42).

S. No. Tariff item Description
(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

7.343. 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).
7.344. Finally, Notification No. 57/2017 was amended by Notification No. 02/2019, which merged
Serial Nos. 20 and 21 as follows832:
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 gateway s, 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

7.345. Thus, taking into account all evidence before us, we understand that:
a. Pursuant to Notification No. 36/2019, routers, classified under tariff item 8517.62.90 of
India's First Schedule, are unconditionally exempted from all customs duties; and
b. All other goods falling under tariff item 8517.62.90 are subject to a reduced duty 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%.
7.346. 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 item
8517.62.90 or 8517.69.90 of India's First Schedule. The European Union submits that they are
covered by tariff item 8517.62.90 833, while India maintains that the European Union has failed to
demonstrate that they are classi fied under that tariff item. For India, to the extent that these
products are appropriately classified under tariff item 8517.69, "such products are … outside the
scope of the present [p]anel request".834
7.347. At this stage of our analysis, we do not consider i t necessary to address whether the tariff
treatment of certain products falls outside the scope of the European Union's claim. We simply note,
as a factual matter, the tariff treatment described above. We address below, in the context of our
comparison of that tariff treatment to India's WTO legal obligations, the question of whether certain
tariff treatment falls outside the scope of the European Union's claim.

832 Notification No. 57/2017 as amended by Notification No. 02/2019, (Exhibit IND-42).
833 European Union's response to Panel question No. 114, paras. 79-88.
834 India's response to Panel question No. 105, para. 53.

7.4.5.3 Comparison between India's WTO tariff commitments and its tariff treatment
7.4.5.3.1 Main arguments of the parties
7.348. The European Union 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.835 In response to India's argument that the products
listed in Notification No. 02/2019 and subject to a 20% duty rate may be classified under tariff item
8517.62.90 or 8517.69.90, the European Union submits that such products are "properly to be
categorized under tariff line 8517.62" and are therefore within the scope of the European Union's
claim.836
7.349. India argues that the European Union is required 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. 837 According to India, the European Union 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 8517.69.90.838 India further argues that , because the
European Union's claim is limited to products classified under tariff item 8517.62, "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."839
7.4.5.3.2 Panel's assessment
7.350. We recall our finding above that pursuant to its WTO Schedule India is obligated to provide
unconditional duty-free treatment to machines for the reception, conversion and transmission or
regeneration of voice, images or other data, including switching and routing apparatus, classified
under tariff item 8517.62 of that Schedule. We note that tariff item 8517.62 of India's First Schedule
covers machines for the reception, conversion and transmission or regeneration of voice, images or
other data, including switching and routing apparatus. It is uncontested 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.
7.351. 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 WT O tariff commitments. We further recall that all other products
classified under tariff item 8517.62.90 of India's First Schedule are either subject to a duty rate of
10% or, if they fall within the scope of Serial No. 20 of Notification No. 57/2017, as am ended by
Notification No. 02/2019, the standard duty rate of 20%.
7.352. 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 the European
Union's claim. In this respect, we recall that the European Union's claim concerns products falling
within the scope of tariff item 8517.62 of India's WTO Schedule.840 In order for the European Union
to prevail in its claim, it needs to demonstrate that at le ast some products falling under tariff item
8517.62 of India's WTO Schedule are subject to tariff treatment that is inconsistent with India's WTO
obligations.841
7.353. The European Union claims and has demonstrated that products falling under tariff item
8517.62.90 (which necessarily fall under tariff item 8517.62) of India's First Schedule are classified
under tariff item 8517.62 of India's WTO Schedule. 842 The European Union is not claiming that

835 European Union's first written submission, paras. 119-121.
836 European Union's response to Panel question No. 114, para. 79.
837 India's response to Panel question No. 105, para. 52.
838 India's second written submission, para. 113; response to Panel question No. 105, para. 53.
839 India's first written submission, para. 188. See also India's second written submission, para. 114;
response to Panel question No. 105, para. 53.
840 European Union's first written submission, para. 13; panel request, p. 1.
841 See also fn 175 to para. 7.7 above; and Panel Reports, EC – IT Products, para. 7.116.
842 See para. 7.350 above.

products classified under other tariff items of India's First Schedule (such as 8517.69.90) fall under
the scope of India's WTO tariff commitments inscribed at tariff item 8517.62 of its WTO Schedule.843
7.354. The European Union has also established that India's First Schedule imposes a 20% duty rate
on products classified under tariff item 8517.62.90. 844 Moreover, it is uncontested that India's
customs notifications modify the tariff treatment accorded to certain products classified under tariff
item 8517.62.90 (namely routers) by exempting them from customs duties in whole, or by
exempting certain other products from customs duties in part (subjecting such products to a reduced
duty rate of 10%).845 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 8517.62.90846) and that those products are subject to the
20% duty rate set forth in India's First Schedule. We therefore consider that the European Union
has established that some of the products classified under tariff item 8517.62 of India's WTO
Schedule are subject to a duty rate of 10% or 20%, and are therefore taxed in excess of the bound
duty rate. In light of the foregoing, we do not consider it necessary to identify which of the products
listed under Serial No. 20 of Notification No. 57/2017, as amended by Notification No. 02/2019, are
classified under tariff item 8517.62.90.847 This, in our view, suffices for the purposes of assessing
whether India is acting inconsistently with Articles II:1(a) and (b) of the GATT 1994.

843 Moreover, since the product description of tariff item 8517.62 of India's First Schedule perfectly
matches the product description of tariff item 8517.62 of India's WTO Schedule, it follows that products not
classified under tariff item 8517.62 of India's First Schedule are also not covered by tariff item 8517.62 of
India's WTO Schedule. Since the European Union's claim specifically concerns the tariff treatment of products
covered by tariff item 8517.62 of India's WTO Schedule, it follows that products not classified under tariff item
8517.62 of India's First Schedule are not within the scope of the European Union's claim and fall outside our
terms of reference.
844 See para. 7.338 above.
845 See para. 7.351 above.
846 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.
847 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. 7.341 above).
Similarly, Notification No. 75/2018 amended the duty rate applied to optical transport equipment, combination
of one or more of Packet Optical Transport Product or Switch, Optical Transport Network products, and IP
radios falling under tariff item 8517.62.90. (See para. 7.342 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. We also note
that the European Union considers that all the products listed in Serial No. 20 of Notification No. 57/2017, as
amended by Notification No. 02/2019, are classified under tariff item 8517.62. The European Union submits
that the core function of smartwatches is to "allow the connection and transmission of data to and from a
device worn around a person's wrist", and therefore such products fall within the scope of tariff item 8517.62.
(European Union's response to Panel question No. 114, para. 81). The European Union also relies on WCO
Classification Opinions on smart watches to support this assertion. (European Union's response to Panel
question No. 114, para. 81 (referring to World Customs Organization, Classification Opinions on subheading
8517.62 (2015), (Exhibit EU-60), Nos. 21-24). We note that India has not adduced any arguments or evidence
to rebut the European Union's assertion in this regard. Regarding the products listed under (b-h) in paragraph
7.344 above, the European Union submits that the HS2007 Explanatory Notes "to tariff line 8517.62" refer to
the "functions and working methods of the products concerned" and that the contested products are classified
under tariff item 8517.62 on that basis. (European Union's response to Panel question No. 114, paras. 82-83
(referring to HS2017 Explanatory Notes to Heading 8517, (Exhibit IND-59), p. 6)). For its part, India argues
that the section of the Explanatory Note relied upon pertains to "Other Communication Apparatus" whereas the
description of tariff item 8517.69 is "Other", suggesting that this Explanatory Note does not necessarily relate
to tariff item 8517.62. (India's comments on the European Union's response to Panel question No. 114, para.
38). India is correct that this Explanatory Note does not distinguish between tariff items 8517.62 and 8517.69,
but relates to a residual category of "other communication apparatus" which, based on the structure of that
Note, could apply to tariff item 8517.62 or 8517.69. Thus, this Explanatory Note would appear to only indicate
that the listed products, and those with characteristics such as those stipulated therein, are classified under
heading 8517, without definitively identifying the relevant tariff item. In any case, as we have stated above,
we do not consider it necessary to determine 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.

7.4.5.4 Conclusion
7.355. Based on the foregoing, we find that India's tariff treatment of machines for the reception,
conversion and transmission or regeneration of voice, images or other data, including switching and
routing apparatus , falling within the scope of tariff item 8517.62 of India's WTO Schedule, i s
inconsistent with Article II:1(b), first sentence, of the GATT 1994, because certain such products
are subject to ordinary customs duties in excess of those set forth and provided in India's
WTO Schedule.
7.356. We recall that the application of ordinary custo ms 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 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.
7.4.6 Tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule
7.4.6.1 General issues
7.4.6.1.1 Main arguments of the parties
7.357. The European Union challenges the tariff treatment accorded by India to products falling
under tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule, covering parts and
accessories of the machines of heading 84.71.848 In order to identify the tariff treatment applied by
India to such products, the European Union initially referred to the tariff treatment accorded to
products classified under tariff items 8517.70.10 and 8517.70.90 of India's First Schedule. 849 In
response to a question from the Panel following the second substantive meeting, the European Union
clarified that, following certain amendments to India's First Schedule, pursuant to the Finance Act
2021, the relevant products are presently covered by tariff items 8517.71.00, 8517.79.10, and
8517.79.90.850 The European Union argues that the " alteration of India's domestic customs
legislation … does not change the fact that India does impose customs duties on the products covered
by its bindings, namely on those products which are within the scope of its certified schedule of
concessions under tariff lines 8517.70.10 and 8517.70.90 ".851 According to the European Union,
"this change in India's domestic customs legislation, which does not alter the inconsistency of this
legislation with India's international legal obligations, cannot prevent a finding of inconsistency and
an indication that India should bring its domestic legislation into compliance with its international
obligations".852 In response to an argument by India that the European Union had failed to meet its
burden of proof by being unable to identify the exact products at issue and the duty applicable on
such products, the Europ ean Union argues that "India' s argument is based on an incorrect
understanding of the requirement to identify specific products falling into the scope of a tariff line ".
The European Union elaborates that since the European Union explained " the particulars of the
exemptions available for certain products … it has identified with sufficient clarity the measure at
issue".853
7.358. 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 tariff
lines 8517.79.10 and 8517.79.90 ".854 India nevertheless argues that " all submissions made by it
with regard to sub -heading 8517.70, including that the complainant has failed to identify the
products at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90, extend to sub-heading

848 European Union's first written submission, para. 13.
849 See e.g. European Union's first written submission, paras. 133-154.
850 European Union's response to Panel question No. 117, paras. 91-94.
851 European Union's response to Panel question No. 117, para. 93. (emphasis original)
852 European Union's response to Panel question No. 117, para. 94.
853 European Union's response to Panel question No. 37, para. 93.
854 India's response to Panel question No. 117, para. 71. India also states that "the change in domestic
customs legislation pursuant to the introduction of HS2022 has not resulted in any substantial change in the
applied duty of products covered under HS2007 tariff lines 8517.70.10 and 8517.70.90." (India's comments on
the European Union's response to Panel question No. 117, para. 40).

8517.79.10 and 8517.79.90, respectively ".855 In this respect, India argues, inter alia , that the
burden is on the complainant to "identify the specific products at issue and their correct classification
in order to demonstrate that there has be en a violation of Article s II:1(a) and (b) of the
GATT 1994."856 With respect to tariff item 8517.70.10 of the First Schedule (as it existed at the time
of the Panel's establishment), India argues that the European Union "has been unable to identify the
exact products at issue and the duty applicable on such products".857 As to tariff item 8517.70.90 of
the First Schedule (as it existed at the time of the Panel's establishment), India considers that the
European Union failed to demonstrate that any products mentioned in the European Union's panel
request and first written submission, other than parts of cellular mobiles and inputs for such parts,
were classified under tariff item 8517.70.90 of India's First Schedule. 858 India submits that such
products "must be held to be outside the scope of the present dispute" 859 and that the European
Union's "failure to explicitly confirm the classification of the products at issue must lead to the
rejection of its claim."860
7.4.6.1.2 Panel's assessment
7.359. Before turning to assess the mer its of the parties' arguments with respect to the
European Union's claims concerning products classified under tariff item 8517.70 ex01, ex02, and
ex03 of India's WTO Schedule, we consider it useful to address two general issues. First, we address
the impa ct, 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.
7.360. First, regarding India's amendments to the First Schedule during these proceedings, we
recall that India's Finance Act 2021 came into effect on 1 January 2022 , resulting in certain
amendments to India's First Schedule. 861 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 8517.79.90.862 India has clarified 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"863
and that these changes have "not resulted in any substantial change in the applied duty of products
covered under HS2007 tariff lines 8517.70.10 and 8517.70.90".864
7.361. We note that the European Union does not request us to make distinct assessments of India's
WTO-consistency with respect to the situation before and after India's amendment of its First
Schedule.865 We also note that India does not consider that its amendments to the First Schedule
have changed the product descriptions or the tariff treatment accorded by India to the products at
issue.866 We therefore proceed with our analysis by observing the evolution of India's tariff treatment
during these proceedings, and assessing the WTO-consistency of the measure at issue based on the
most up-to-date information available to the Panel (i.e. based on the situation as it stands following
India's amendment of the First Schedule on 1 January 2022).
7.362. Turning to the se cond issue, we note India's argument that the Panel should reject the
European Union's claim on the grounds that the burden is on the European Union to demonstrate
India's domestic classification of the products at issue, that the European Union has failed to confirm
the domestic classification of those products, and that they consequently fall " outside the scope of
the present dispute".867 We agree with India that the burden of demonstrating India's inconsistency
with Articles II:1(a) and (b) of the GATT 19 94 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

855 India's response to Panel question No. 117, para. 71.
856 India's response to Panel question No. 105, para. 52.
857 India's first written submission, para. 205.
858 India's first written submission, para. 212.
859 India's first written submission, para. 212.
860 India's response to Panel question No. 105, para. 55.
861 See para. 7.285 above.
862 European Union's response to Panel question No. 117, paras. 91-94; India's response to Panel
question No. 117, para. 71.
863 India's response to Panel question No. 117, para. 71.
864 India's comments on the European Union's response to Panel question No. 117, para. 40.
865 See European Union's responses to Panel question Nos. 102 and 106.
866 India's comments on the European Union's response to Panel question No. 117, para. 40.
867 India's first written submission, para. 212.

burden of demonstrating a particular factual assertion. 868 In this respect, "the party who asserts a
fact, whether the claimant or the respondent, is responsible for providing proof thereof".869
7.363. We recall that the European Union's claim concerns products falling within the scope of tariff
items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule.870 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 such products. We will then turn to assess the parties' respective factual assertions
regarding the tariff trea tment applied by India to certain products under its domestic customs
regime. In that context, we will assess whether the European Union'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 treatment concerns products
falling within the scope of India's WTO tariff commitments concerning tariff items 8517.70 ex01,
ex02, and ex03 of its WTO Schedule.
7.4.6.2 India's WTO tariff commitments
7.4.6.2.1 Main arguments of the parties
7.364. The European Union argues that the bound duty rate for tariff items 8517.70 ex01, ex02,
and ex03 of India's WTO Schedule, covering parts and accessories of the machines of heading 84.71,
is 0%.871
7.365. 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.872 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. 873 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.874
7.4.6.2.2 Panel's assessment
7.366. 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. 875 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. 876 Moreover, we have declined to make the findings
requested by India regarding its request to rectify its WTO Schedule pursuant to the
1980 Decision.877
7.367. 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

868 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)
869 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.).
870 European Union's first written submission, para. 13; panel request, p. 1.
871 European Union's first written submission, paras. 133-134.
872 India's first written submission, paras. 55-91.
873 India's first written submission, paras. 204-221.
874 India's first written submission, para. 91.
875 See para. 7.213 above.
876 See para. 7.81 above.
877 See para. 7.245 above.

falling under tariff items 8517.70 ex01, ex02, and ex03.878 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")879:
 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%

7.368. 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.
7.4.6.3 India's tariff treatment
7.4.6.3.1 Main arguments of the parties
7.369. The European Union'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.880 With respect to the tariff treatment of products falling under
tariff item 8517.70.10 of the First Schedule, the European Union 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 notification.881 The European Union submits that
Notification No. 24/2005 initially exempted "all goods" of tariff item 8517.70.10 from tariff duties,
but Notification No. 38/2018 subsequently limited the scope of the exemption to "all goods other
than Printed Circuit Board Assembly (PCBA) for cellular phones".882 The European Union argues that
"Notification 76/2018 further limits the exemption an d makes it subject to certain conditions". 883
The European Union notes that Notification No. 50/2017 set the applicable duty rate to 0% for
certain products, if those products are "used in the manufacture of static converters for automatic
data processing m achines and units thereof" and if "the importer follows procedures set out in
specific customs rules".884 The European Union also argues that, although Notification No. 57/2017,

878 WT/Let/1072.
879 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.).
880 European Union's first written submission, paras. 135-154.
881 European Union's first written submission, para. 138 (referring to Finance Act 2020, (Exhibit EU-28),
pp. 69 and 100). The European Union also notes that Notification No. 36/2018 had previously set the duty rate
applied to such products at 10%. (Ibid. (referring to Notification No. 36/2018, (Exhibit EU-35)).
882 European Union's first written submission, para. 142 (referring to Notification No. 24/2005, (Exhibit
EU-9), and Notification No. 38/2018, (Exhibit EU-29)).
883 European Union's first written submission, para. 143 (referring to Notification No. 76/2018,
(Exhibit EU-30)).
884 European Union's first written submission, paras. 145-146 (referring to Notification No. 50/2017,
(Exhibit EU-34), p. 30).

as amended by Notification No. 02/2020, set the duty rate for certain goods falling under tariff item
8517.70.10 at 10%, that reduced rate was only available until 31 March 2020.885
7.370. With respect to products falling under tariff item 8517.70.90 of India's First Schedule , the
European Union submits that "the Finance Act 2018 fixed the applicable tariff rate for tariff line
8517.70.90 at 15%."886 The European Union acknowledges that Notification No. 57/2017 exempts
certain products from that duty rate but submits that those exemptions " do not cover all products
of that [tariff line], and are subject to conditions" not set forth in India's WTO Schedule.887
7.371. The European Union acknowledges that, as of 1 January 2022, tariff items 8517.70.10 and
8517.70.90 of India's First Schedule were replaced wi th tariff items 8517.71, 8517.79.10, and
8517.79.90.888 The European Union highlights, however, that the " products covered by these tariff
lines are currently subject to the following tariff duties, namely 20 % (8517.71.00), 20 %
(8517.79.[1]0) and 15 % (85 17.79.90)."889 The European Union submits that the " alteration of
India's domestic customs legislation therefore does not change the fact that India does impose
customs duties on the products covered by its bindings".890
7.372. With respect to tariff item 8517.70.1 0 of the First Schedule at the time of the Panel's
establishment, India argues that the European Union "has been unable to identify the exact products
at issue and the duty applicable on such products". According to India, the European Union "has
merely stated that the basic customs duty on imports of products under tariff item 8517.70.10 is
20% and that 'all goods other than Printed Circuit Board Assembly for cellular phones' are exempt
from such duty." India further submits that, although the European Uni on argued that certain duty
exemptions are "limited", the European Union was "unable to demonstrate the manner in which the
scope of these exemptions [was] limited". 891 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.892
7.373. With respect to the tariff treatment accorded after 1 January 2022, India states that "the
change in domestic customs legislation pursuant to the introduction of HS2022 has not resulted in
any substantial change in the applied duty of products covered under HS2007 tariff lines 8517.70.10
and 8517.70.90."893
7.4.6.3.2 Panel's assessment
7.374. 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 turn to assess the effects of India's amendment of the First Schedule
during these proceedings.
7.4.6.3.2.1 Tariff treatment at the time of the Panel's establishment
7.375. 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

885 European Union's first written submission, para. 148 (referring to Notification No. 57/2017, (Exhibit
EU-12), and Notification No. 02/2020, (Exhibit EU-31)). See also European Union's response to Panel question
No. 119, para. 106.
886 European Union's first written submission, para. 135.
887 European Union's first written submission, para. 150. See also European Union's response to Panel
question No. 118, paras. 95-105.
888 European Union's response to Panel question No. 117, para. 91.
889 European Union's response to Panel question No. 117, para. 92. In its response to the Panel's
question, the European Union referred to tariff item 8517.79.90 twice. We understand that this was a
typographical error and that the first reference to this tariff item was intended to refer to tariff item
8517.79.10.
890 European Union's response to Panel question No. 117, para. 93. (emphasis omitted)
891 India's first written submission, para. 205.
892 India's first written submission, para. 212.
893 India's comments on the European Union's response to Panel question No. 117, para. 40.

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 data894:
Tariff
item
Product description Standard
duty rate
8517 Telephone sets, including telephones for cellular networks or for
other wireless networks: other apparatus for the transmission or
reception of v oice, images or other data, including apparatus for
communication in a wired or wireless network (such as a local or
wide area network), other than transmission or reception apparatus
of heading 8443, 8525, 8527 or 8528

 - Parts
8517.70.10 -- Populated, loaded or stuffed printed circuit boards 20%
8517.70.90 -- Other 15%

7.376. 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 parties895 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. 896 Based on our examination of the evidence,
we consider the following factual findings to be adequately supported by the evidence on the record.
7.377. 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 consti tuting
parts of telephone sets or other certain apparatus for transmission or reception of voice, images, or
data.897 As indicated above, the standard duty rate applicable to such products under the First
Schedule was 20%.898 However, the applied duty rate is subject to customs notifications, as follows:
a. Pursuant to Serial No. 22 of Notification No. 57/2017 , as amended by Notification
No. 02/2020, PCBAs for certain specified products899, falling under this tariff item, became
unconditionally subject to a 10% duty rate.900
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 899 above were eligible for duty-free treatment if
they satisfied certain conditions.901 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 902 and in the event of failure to comply with that

894 First Schedule as of 2016/2017, (Exhibit EU-59), pp. 788; Finance Act 2020 (Exhibit EU-28), pp. 69
and 100.
895 Specifically, Japan and Chinese Taipei.
896 We recall that the burden of demonstrating a factual assertion falls on the party making that factual
assertion. (See para. 7.362 above).
897 See para. 7.375 above.
898 See para. 7.375 above.
899 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 900 to para. 7.377 below).
900 Serial No. 22 of Notification No. 57/2017 as amended by Notification No. 02/2020, (Exhibit IND-42).
901 Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017,
38/2018, and 76/2018, (Exhibit IND-39).
902 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.

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.903
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 con verters for automatic data
processing machines and units thereof of tariff item s 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.904
7.378. Any products falling under tariff item 8517.70.10 that di d not benefit from the tariff
treatment available under these customs notifications (for instance PCBAs for cellular mobile
phones905) remained subject to the 20% standard duty rate set forth in the First Schedule.
7.379. We recall that Article II:1(b) does not re quire Members to inscribe general conditions for
importation in their WTO Schedules. However, where conditions are tied to tariff treatment, such
that a product must satisfy those conditions in order to be eligible for the tariff treatment set forth
in a Member's WTO Schedule, Article II:1(b) requires that such conditions must be inscribed in the
Member's WTO Schedule.
7.380. In our view, the conditions attached to the duty -free treatment available under Serial No.
13S of Notification No. 57/2012 and Serial No. 4 02 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 condition "merely requires the
intimation of intent to avail concessional rates of duties and registration of bills of entry" and that
"[t]hese processes have been automated, where all details can be uploaded on a common portal."906
In support of its assertion, India submits Circular No. 04/2022 as an exhibit.907 We note that Circular
No. 04/2022 makes certain amendments to the Customs Rules 2017. 908 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".909 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 ."910 On the basis of the procedures set out in Circular No. 04/2022, the
"Deputy Commissioner or Assistant Commissioner of Customs at the port of importation shall allow
the benefit of exemption notification ."911 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 th e products. We therefore do not see
anything on the record to suggest that these are general conditions for importation of goods.
7.381. 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". 912 This, on its face, is a

(Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 38/2018, and
76/2018, (Exhibit IND-39)).
903 Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017,
38/2018, and 76/2018, (Exhibit IND-39).
904 Serial No. 402 of Notification No. 50/2017, (Exhibit IND-41).
905 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-42)).
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.
906 India's response to Panel question No. 103, para. 48 (referring to Circular No. 04/2022
(27 February 2022), (Exhibit IND-81)).
907 Circular No. 04/2022 (27 February 2022), (Exhibit IND-81), p. 1.
908 Circular No. 04/2022 (27 February 2022), (Exhibit IND-81), p. 1.
909 Circular No. 04/2022 (27 February 2022), (Exhibit IND-81), p. 1.
910 Circular No. 04/2022 (27 February 2022), (Exhibit IND-81), para. 4.1. (emphasis added)
911 Circular No. 04/2022 (27 February 2022), (Exhibit IND-81), para. 4.8. (emphasis added)
912 Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017,
38/2018, and 76/2018, (Exhibit IND-39).

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 from being imported – rather, they would be imported subject to
the 20% standard duty rate. Indeed, with respect to all re levant 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.
7.382. 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).913 The standard duty rate applicable to such products under
the First Schedule was 15%.914 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
treatment915; or (ii) were eligible for duty-free treatment subject to the condition that the
importer followed the procedures set out in the Customs Rules 2017.916

913 See para. 7.375 above.
914 See para. 7.375 above.
915 Pursuant to Serial No. 468 of Notification No. 50/2017, the following products falling under Chapter
84 or 85 of the First Schedule (i.e. including products falling under tariff item 8517.70.90) of the First Schedule
were unconditionally eligible for duty-free treatment: (i) micro ATMs as per standards version 1.5.1; (ii)
fingerprint readers/scanners other than fingerprint readers/scanners for use in manufacturing of cellular mobile
phones; (iii) iris scanners; (iv) miniaturized POS card readers for mPOS (other than mobile phones or tablet
computers). (Notification No. 50/2017 as amended by Notification No. 01/2020, (Exhibit IND-41)).
916 The following products falling under tariff item 8517.70.90 of the First Schedule, subject to the
condition that the importer follow the procedures set out in the Customs Rules 2017, were eligible for duty-free
treatment under Notification No. 50/2017: (1) pursuant to Serial No. 468, parts and components for use in the
manufacture of: (i) micro ATMs as per standards version 1.5.1; (ii) fingerprint readers/scanners other than
fingerprint readers/scanners for use in manufacturing of cellular mobile phones; (iii) iris scanners; and (iv)
miniaturized POS card readers for mPOS (other than mobile phones or tablet computers); (2) pursuant to
Serial Nos. 506, 507, and 508: (i) parts, components and accessories for use in manufacture of broadband
modem falling under tariff item 8517.62.30 of the First Schedule, other than populated printed circuit boards,
chargers and power adapters; (ii) parts, components and accessories for use in the manufacture of routers
falling under tariff item 8517.62.90 of the First Schedule, other than populated printed circuit boards, chargers,
and power adapters; (iii) parts, components and accessories for use in the manufacture of set-top boxes for
gaining access to internet falling under tariff item 8517.69.60 of the First Schedule, other than populated
printed circuit boards, chargers, and power adapters; and (iv) sub-parts for use in the manufacture of items
covered in (i) through (iii) above; and (3) pursuant to Serial No. 513: (i) parts or components for use in the
manufacture of populated printed circuit boards of; (a) broadband modems falling under tariff item 8517.62.30
of the First Schedule; (b) routers falling under tariff item 8517.62.90 of the First Schedule; and (c) set-top
boxes for gaining access to internet falling under tariff item 8517.69.60 of the First Schedule; and (ii) sub-
parts for use in the manufacture of the parts or components in item (i) above. (Notification No. 50/2017 as
amended by Notification Nos. 37/2019 and 01/2020, (Exhibit IND-41)). 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 the European Union's claims concerning products
falling under tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule, we consider it uncontested
that the exemptions for those products are not relevant. We also note that pursuant to Serial No. 425 of
Notification No. 50/2017, parts for manufacture of base station controllers, base transreceiver stations, and
antenna system equipment, required for the manufacture of Public Radio Mobile Trunked Service, were eligible
for exemptions from customs duties subject to the condition that the importer followed the procedures set out
in the Customs Rules 2017. We further note that India contends that such products were not "always classified
under tariff item 8517.70.90 of India's First Schedule" and that they must be examined individually to
ascertain their correct classification. (India's response to Panel question No. 134). The European Union submits
that it cannot "conclude with certainty" that such products were classified under tariff item 8517.70.90 of
India's First Schedule. (European Union's response to Panel question No. 134). As noted in paragraph 7.325
above, Serial No. 425 was repealed by Notification No. 02/2022 and is no longer in effect, as from 1 February
2022. (Notification No. 02/2022, (Exhibit IND-90)). 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.

b. Similarly, pursuant to Serial Nos. 5 to 8 of Notification No. 5 7/2017, as amended by
Notification Nos. 22/2018, 37/2018, 02/2019, 24/2019, 01/2020, and 02/2020, certain
products falling under tariff item 8517.70.90 of the First Schedule: (i) were unconditionally
eligible for duty-free treatment917; (ii) were eligible for duty-free treatment subject to the
condition that the importer followed the procedures set out in the Customs Rules 2017918;
or (iii) became eligible for a 10% duty rate (rather than the 15% standard duty rate set
forth in the First Schedu le) subject to the condition that the importer follow ed the
procedures set out in the Customs Rules 2017.919
7.383. Regarding the conditional nature of the tariff treatment accorded to certain products falling
under tariff item 8517.70.90, we recall our finding t hat 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. 920 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.
7.4.6.3.2.2 Tariff treatment as of 1 January 2022
7.384. Having addressed the tariff treatment applicable to products falling under tariff items
8517.70.10 and 8517.70.90 at the time of the Panel's establishment, we recall that on 1 January

917 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-42)).
918 The following products falling under tariff item 8517.70.90 of the First Schedule, subject to the
condition that the importer follow the procedures set out in the Customs Rules 2017, were eligible for duty-free
treatment under Notification No. 57/2017: (1) pursuant to Serial Nos. 5C, 5D, and 5E: (i) inputs or sub-parts
for use in the manufacture of vibrator motors/ringers for use in the manufacture of cellular mobile phones,
display assemblies for use in the manufacture of cellular mobile phones, or touch panels/cover glass
assemblies for use in manufacture of cellular mobile phones; and (ii) inputs or sub-parts for use in the
manufacture of parts mentioned at (i) above; (2) pursuant to Serial Nos. 6A, 6B, and 6C: i. (a) inputs or parts
for use in manufacture of PCBA of cellular mobile phones and (b) inputs or sub-parts for use in manufacture of
PCBAs of cellular mobile phones, provided that both of these categories exclude the following goods; (i)
connectors; (ii) microphones; (iii) receivers; (iv) speakers; and (v) SIM sockets; ii. (a) inputs or parts for use
in manufacture of camera modules of cellular mobile phones and (b) inputs or sub-parts for use in manufacture
of camera modules of cellular mobile phones; and iii. (a) inputs or parts for use in manufacture of connectors
of cellular mobile phones and (b) inputs or sub-parts for use in manufacture of connectors of cellular mobile
phones; (3) pursuant to Serial No. 7: (i) wired headsets; (ii) battery covers; (iii) front covers; (iv) front covers
(with zinc casting); (v) middle covers; (vi) GSM antennae/antennae of any technology; (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 tariff item 8504.90.90 of the First
Schedule) and moulded plastics (falling under tariff items 3926.90.99 or 8504.90.90 of the First Schedule) for
use in the manufacture of chargers or adapters for cellular mobile phones; and (5) pursuant to Serial No. 8:
inputs or raw material for use in manufacture of the following goods: (i) base stations; (ii) all goods falling
under tariff item 8517.62.90 of the First Schedule; and (iii) all goods falling under tariff item 8517.69.90 of the
First Schedule. (Notification No. 57/2017 as amended by Notification Nos. 22/2018, 37/2018, 02/2019,
24/2019, and 02/2020, (Exhibit IND-42)).
919 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-42)).
920See para. 7.332 above.

2022 the First Schedule was amended, such that "tariff item s 8517 70 10 and 8517 70 90 and the
entries relating thereto" were substituted with the following entries921:
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%

7.385. 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. The European Union confirmed that this understanding was correct and
stated that the products covered by those tariff items are currently subject to duty rates of 20%,
20%, and 15%, respectively. 922 India did not dispute the Panel's understanding. 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" and that "the change in domestic customs legislation pursuan t
to the introduction of HS2022 has not resulted in any substantial change in the applied duty of
products covered under HS2007 tariff lines 8517.70.10 and 8517.70.90."923
7.386. Subsequently, India submitted onto the Panel record Notification No. 02/2022. 924 We note
that through Notification No. 02/2022, Notification No. 50/2017 was amended to "omit"
Serial No. 402.925 Thus, based on the most up -to-date evidence submitted to us, the conditional
duty-free treatment that was available for products falling under tariff item 8517.70.10 of the First
Schedule, as it existed at the time of the Panel's establishment, pursuant to Serial No. 402 of
Notification No. 50/2017 926, is not presently available for products falling under tariff item
8517.79.10 of India's First Schedule.
7.387. We note that, in the context of responding to certain questions from the Panel regarding the
European Union's claim pertaining to products falling under tariff item 8517.12 of India's
WTO Schedule, India refers to Notification No. 57/2021.927 Notwithstanding that neither party refers
to this Notification in the context of the European Union's claim concerning products falling under
tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule, our review of this exhibit
suggests that it is indeed relev ant for products 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 presently classified
under those tariff items.
7.388. 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

921 Finance Act 2021, (Exhibit IND-66), p. 176.
922 European Union's response to Panel question No. 117, paras. 91-92. See also fn 889 to para. 7.370
above.
923 India's comments on the European Union's response to Panel question No. 117, para. 40. 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-heading 8517.79.10 and 8517.79.90, respectively". (See India's response to Panel question
No. 117, para. 71).
924 India's response to Panel question No. 135.
925 Notification No. 02/2022, (Exhibit IND-90).
926 See para. 7.377c above.
927 India's responses to Panel question No. 108, para. 58, and No. 110, para. 64. At the request of the
Panel, India subsequently submitted Notification No. 57/2021 as Exhibit IND-89 on 5 July 2022.

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 treatment928;
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 899 above are eligible
for duty-free treatment if they satisfy certain conditions – specifically, in order for the
product to receive such duty -free treatment: (i) the importer must follow the
procedures set out in the Customs Rules 2017; and (ii) at the time of importation, the
importer must furnish an undertaking to the Deputy Commissioner of Customs or the
Assistant Commissioner of the Customs , as the case may be, to the effect that
imported goods would not be used in the manufacture of certain specified goods 929
and in the event of failure to compl y 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
importation930;
ii. Pursuant to Serial No. 2 2 of Notification No. 57/2017, PCBAs for certain specified
products931 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 treatment932;
ii. Pursuant to Serial Nos. 5 A 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
2017.933
7.389. We recognize that India may amend its customs notifications such that other exemptions
applying to products falling under tariff items 8517.70.10 and 8517.70.90 of India's First Schedule
at the time of the Panel's establishment may continue to apply to products presently falling under
tariff items 8517.71.00, 8517.79.10, and 8517.79.90 of the First Schedule. In such a case, our
analysis of the tariff treatment accorded by India to products falling under tariff items 8517.70.10
and 8517.70.90 of India's First Schedule at the time of the Panel's establishment would be equally

928 See Notification No. 57/2017, (Exhibit IND-42), as amended by Notification No. 57/2021, (Exhibit
IND-89).
929 Specifically, the imported goods are not to be used in the manufacture of: cellular mobile phones;
base stations; optical transport equipment; combination of one or more of Packet Optical Transport Product or
Switch; Optical Transport Network products; IP radios; soft switches and Voice over Internet Protocol
equipment, namely, Voice over Internet Protocol phones, media gateways, gateway controllers and session
border controllers; carrier ethernet switches, Packet Transport Node products, and Multiprotocol Label
Switching-Transport Profile products; and Multiple Input/Multiple Output and Long Term Evolution products.
(Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017, 38/2018, and
76/2018, (Exhibit IND-39)).
930 Serial No. 13S of Notification No. 24/2005 as amended by Notification Nos. 132/2006, 58/2017,
38/2018, 76/2018, (Exhibit IND-39), and No. 57/2021, (Exhibit IND-89). We note that these conditions are
attached to the tariff treatment and are not general conditions for importation. (See para. 7.379 above).
931 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. (Serial No. 22 of Notification No. 57/2017 as amended by Notification No. 02/2020,
(Exhibit IND-42), and Notification No. 57/2021, (Exhibit IND-89)).
932 See Notification No. 57/2017 (Exhibit IND-42), as amended by Notification No. 57/2021, (Exhibit
IND-89).
933 Notification No. 57/2017 as amended by Notification Nos. 37/2018 and 02/2020, (Exhibit IND-42),
and Notification No. 57/2021, (Exhibit IND-89).

applicable to the tariff treatment accorded by India to products presently falling under tariff items
8517.71.00, 8517.7 9.10, and 8517.79.90 of the First Schedule. We note in this regard India's
argument that its "submissions" with regard to tariff items 8517.70.10 and 8517.70.90 continue to
apply to tariff item s 8517.79.10 and 8517.79.90 934 and that "the change in domestic customs
legislation pursuant to the introduction of HS2022 has not resulted in any substantial change in the
applied duty of products covered under HS2007 tariff items 8517.70.10 and 8517.70.90." 935 We
therefore do not preclude the possibility that such Notifications may continue to apply to the products
presently classified under tariff items 8517.71.00, 8517.79.10, and 8517.79.90. However, nothing
on the record of this dispute allows us to make a determination in this regard.
7.390. To summarize, at the time of t he Panel's establishment certain specified products falling
under tariff item 8517.70.10 of India's First Schedule were unconditionally subject to a 10% duty
rate.936 Certain other products falling under this tariff item were eligible for duty -free treatment if
they satisfied certain conditions. 937 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.938 Subject
to certain conditions, certain other products were eligible for either duty -free treatment or a 10%
duty rate.939 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.
7.391. 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 940; (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 sa tisfy 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 Schedule941; 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% duty rate set forth in the First Schedule.942
7.4.6.4 Comparison of India's tariff treatment to its WTO tariff commitments
7.4.6.4.1 Main arguments of the parties
7.392. The European Union argues that, at the time of the Panel's establishment, the products
classified under tariff items 851 7.70.10 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.943 The European Union 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. 944 The European Union further considers that the various customs
notifications pertaining to products falling under these tarif f items did not provide " for an
unconditional freedom from any tariffs" for products classified under tariff items 8517.70 ex01, ex02,
and ex03, and consequently India acted inconsistently with Articles II:1(a) and (b) of the
GATT 1994.945 Regarding India's amendment of the First Schedule, the European Union considers
that the "alteration of India's domestic customs legislation… does not change the fact that India does

934 India's response to Panel question No. 117, para. 71.
935 India's comments on the European Union's response to Panel question No. 117, para. 40.
936 See para. 7.377a above.
937 See paras. 7.377b-7.377c above.
938 See paras. 7.382a-7.382b above.
939 See paras. 7.382a-7.382b above.
940 See para. 7.388a above.
941 See para. 7.388b above.
942 See para. 7.388c above.
943 European Union's first written submission, paras. 133-140.
944 European Union's first written submission, para. 140.
945 European Union's first written submission, paras. 153-154. See also European Union's response to
Panel question No. 115, paras. 89-90.

impose customs duties on the products covered by its bindings".946 According to the European Union,
"this change in India's domestic customs legislation, which does not alter the inconsistency of this
legislation with India's international legal obligations, cannot prevent a finding of inconsistency and
an indication that India should bring its domestic legislation into compliance with its international
obligations."947
7.393. 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".948 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."949 Specifically with
respect to tariff item 8517.70.10 of the First Schedule (as it existed at the time of the Panel's
establishment), India argues that the European Union "has been unable to identify the exact
products at issue and the duty applicable on such products". 950 As 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 the EU's Panel Request and
first written submissions", the European Union has failed to demonstrate that such products are
classified under this tariff item.951 According to India, such products "must be held to be outside the
scope of the present dispute". 952 India also notes "the replacement of tariff lines 8517.70.10 and
8517.70.90 has only resulted in a change in headings, and not the descriptions" and therefore "India
has not raised any defense 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".953 India nevertheless argues that
"all submissions made by it with regard to sub-heading 8517.70, including that the complainant has
failed to identify the products at issue under HS2007 tariff lines 8517.70.10 and 8517.70.90, extend
to sub-heading 8517.79.10 and 8517.79.90, respectively".954
7.4.6.4.2 Panel's assessment
7.394. 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.955
7.395. 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.

946 European Union's response to Panel question No. 117, para. 93. (emphasis omitted)
947 European Union's response to Panel question No. 117, para. 94.
948 India's response to Panel question No. 105, para. 54 and No. 116, para. 69; second written
submission, para. 134 (quoting HS2007 Section Notes to Section XVI, (Exhibit IND-9)).
949 India's response to Panel question No. 105, para. 55 and No. 116, para. 70; second written
submission, para. 135.
950 India's first written submission, para. 205.
951 India's first written submission, para. 212.
952 India's first written submission, para. 212.
953 India's response to Panel question No. 117, para. 71.
954 India's response to Panel question No. 117, para. 71.
955 See para. 7.368 above.

7.396. Following India's amendment of its First Schedule, the products previously covered by tariff
items 8517.70.10 and 8517.70.90 became classified under tariff items 8517.71.00 956,
8517.79.10957, and 8517.79.90 958 of the First Schedule. S ince 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 present ly classified under tariff items 8517.71.00, 8517.79.10, and
8517.79.90 also fall within the scope of those WTO tariff commitments. We understand that India
does not dispute this.959 We find therefore that, as of 1 January 2022, these tariff items of India' s
First Schedule cover parts of telephone sets and "other" certain apparatus for transmission or
reception of voice, images, or data, which are products covered by India's WTO tariff commitments
under tariff items 8517.70 ex01, ex02, and ex03 of its WTO Schedule.960
7.397. Regarding India's argument that aspects of the European Union's claims must fail because
the European Union allegedly failed to "identify the specific products at issue and their correct
classification"961, we recall that the European Union's c laim under Article s II:1(a) and (b) of the
GATT 1994 concerns the tariff treatment accorded by India to products falling within the scope of
tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule. 962 We have concluded above
that India's WTO tariff commitments with respect to these tariff items extend to products that: (i)
at the time of the Panel's establishment were classified under tariff items 8517.70.10 and
8517.70.90 of the First Schedule; and (ii) which, as of 1 January 2022, are classified under tariff
items 8517.71.00, 8517.79.10 and 8517.79.90 of the First Schedule. Based on the arguments and
evidence adduced by the parties, we have made factual findings regarding the tariff treatment
accorded by India to such products. In our view, this tariff treatment concerns products that properly
fall within the scope of the European Union's claim. We proceed therefore to compare such 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 are classified under tariff items
8517.70 ex01, ex02, and ex03 of India's WTO Schedule, and which therefore fall within the scope
of the European Union's claim.963
7.398. 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

956 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.
7.384 above).
957 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. 7.384 above).
958 Other parts of telephone sets and other certain apparatus for transmission or reception of voice,
images, or data. (See para. 7.384 above).
959 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. 117, para. 71).
960 See fns 956, 957, and 958 to para. 7.396 above.
961 India's response to Panel question No. 105, para. 52.
962 Specifically, the European Union challenges the tariff treatment applied by India to products
classified under tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule. (European Union's first
written submission, para. 13; panel request, p. 1).
963 We note that certain of the tariff treatment described in section 7.4.6.3.2 above, in addition to being
available for some specified products that fall within the scope of the European Union'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 the European Union's claim and
others which do not. We wish therefore to clarify that our factual and legal findings in section 7.4.6 of this
Report do not concern products which do not fall within the scope of tariff items 8517.70 ex01, ex02, and ex03
of India's WTO Schedule. In our view, the tariff treatment, in India's domestic customs regime, of the products
challenged by the European Union 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. 7.393 above). The tariff treatment identified by
the European Union 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 the European Union) 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.

treatment, while all other products are subject to the 20% duty rate set forth in the First Schedule964;
(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 Schedule965; 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 t o 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.966
We understand that the unconditional duty-free treatment accorded to certain products is consistent
with India's WTO Schedule. The 10%, 15%, and 20% duty rates applied to certain products falling
under these tariff items is in excess of the bound duty of 0% set forth in India's WTO Schedule.
Finally, the requirement that certain products must satisfy conditions 967 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.
7.399. We also reca ll 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.
7.400. We do not preclude the p ossibility that other exemptions may also, through relevant
amendments, continue to apply to the products presently classified under tariff items 8517.71.00,
8517.79.10, and 8517.79.90. However, nothing on the record of this dispute allows us to make a
determination in this regard. Nevertheless, for the sake of facilitating the resolution of this dispute,
we proceed to compare the duty rate that may be applicable pursuant to customs notifications on
the assumption that customs notifications that applied prior to 1 January 2022 may, through relevant
amendments, continue to apply to the products at issue.968
7.401. 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.969 Other products falling under this tariff item were eligible for duty -free treatment if they
satisfied certain conditions.970 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.971 Subject to
certain conditions, other products were eligible for either duty-free treatment or a 10% duty rate.972
All other products classified under t his 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.
7.402. In comparing the tariff treatment applied pursuant to these Notifications to India's WTO tariff
commitments, we note at the outset that only certain products classified under tariff items
8517.70.10 and 8517.70.90 were eligible for the beneficial tariff treatment set forth in those
Notifications. Thus, at least some pr oducts falling under those tariff items remained subject to the

964 See para. 7.388a above.
965 See para. 7.388b above.
966 See para. 7.388c above.
967 See para. 7.388b.i above.
968 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).
969 See para. 7.377a above.
970 See paras. 7.377b-7.377c above.
971 See paras. 7.382a-7.382b above.
972 See paras. 7.382a-7.382b above.

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%. If the relevant customs notifications are
amended to refer to products presently falling under tariff items 8517.71.00, 8517.79.10, and
8517.79.90 of the First Schedule, those exemptions would continue to apply to a specific subset of
products falling under those tariff items. All other produc ts 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%.
7.403. With respect to those specified products that were eligible for unconditional duty -free
treatment, we consider that the tariff treatment accorded to these products was consistent with
India's WTO tariff commitments. However, with respect to those specified products that were eligible
for duty-free treatment subject to satisfying certain conditions, we note that those conditions for
duty-free treatment973 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 t he 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 conditi ons
that are not set forth in India's WTO Schedule.
7.404. 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 im porter 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 of the bound duty r ate and subject to a condition that is not set forth in
India's WTO Schedule.
7.4.6.5 Conclusion
7.405. 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, o r data, falling within the
scope of tariff items 8517.70 ex01, ex02, and ex03 of India's WTO Schedule, is inconsistent with
Article II:1(b), first sentence, of the GATT 1994, because (i) certain such products are subject to
ordinary customs duties in excess of 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 and provided
in India's WTO Schedule unless they satisfy certain conditions not set forth in that WTO Schedule.
7.406. 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 Articl e II:1(b), also constitutes "less favourable" treatment
within the meaning of Article II:1(a). Consequently, w e find that India's tariff treatment of such
products is less favourable than that provided in its WTO Schedule, and India is therefore acting
inconsistently with Article II:1(a) of the GATT 1994.

973 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. 7.377-7.383 above).

7.4.7 Tariff item 8518.30 ex01 of India's WTO Schedule
7.4.7.1 India's WTO tariff commitments
7.4.7.1.1 Main arguments of the parties
7.407. The European Union asserts that India's WTO tariff binding for line telephone handsets, set
forth at tariff item 8518.30 ex01 of India's WTO Schedule, is 0%.974
7.408. India does not contest that the relevant bound duty rate for imports falling under tariff item
8518.30 ex01 of its WTO Schedule is 0%.975
7.4.7.1.2 Panel's assessment
7.409. We understand that India does not contest that its WTO tariff commitments with respect to
line telephone handsets are set forth in its WTO Schedule, under tariff item 8518.30 ex01. In
particular, India does not argue that the ITA limits the scope of its co mmitment under this tariff
item, or that this commitment was undertaken in error and is invalid pursuant to Article 48 of the
Vienna Convention.976
7.410. It is therefore uncontested that, pursuant to Articles II:1(a) and (b) of the GATT 1994, India
is obligated to provide the tariff treatment set forth in its WTO Schedule for line telephone handsets.
In this respect, India's WTO HS2007 Schedule provides that977:
 Product description Bound
rate
8518 Microphones and stands therefor; loudspeakers, whether or not mounted
in their enclosures; headphones, earphones and combined
microphone/speaker sets; audio -frequency electric amplifiers; electric
sound amplifier sets.

8518.30 - Headphones, earphones and combined microphone/speaker sets
ex 8518.30 -- Line telephone handsets 0%

7.411. Given that the tariff binding for line telephone handsets set forth in India's WTO Schedule is
0%, and given that the WTO Schedule indicates no terms, conditions, or qualifications attached to
that bound duty rate, we observe that India is obligated to provide unconditional duty-free treatment
to line telephone handsets falling under tariff item 8518.30 ex01 of its WTO Schedule.
7.4.7.2 India's tariff treatment
7.4.7.2.1 Main arguments of the parties
7.412. In its first written submission, the European Union argued that India's First Schedule imposes
a standard duty rate of 15% on imports classified under tariff item 8518.30.00 of that Schedule,
namely "[h]eadphones and earphones, whether or not combined with a microphone, and sets
consisting of a microphone and one or more loudspeakers."978 The European Union considered that
line telephone handsets imported into India are classified under that tariff item of the First Schedule.
The European Union subsequently submitted that India itself had acknowledged that tariff item
8518.30 may cover "certain types of handsets".979 According to the European Union, Notification No.
25/2005 initially exempted line telephone handsets from the standard 15% duty rate set forth in

974 European Union's first written submission, paras. 155-156.
975 India's response to Panel question No. 66, paras. 28-29. According to India, it is "already providing
concessions to the products in accordance with its commitments." (Ibid. para. 29).
976 We also note that India did not attempt to modify this tariff item in its draft rectification under the
1980 Decision. According to India, line telephone handsets "are covered by the scope of India's commitments"
under the ITA. (India's response to Panel question No. 39, para. 92).
977 WT/Let/1072 and WT/Let/181.
978 European Union's first written submission, para. 157 (referring to First Schedule of the Customs
Tariff Act as amended by Finance Act 2018, (Exhibit EU-15)).
979 European Union's response to Panel question No. 86, para. 131 (referring to India's response to
Panel question No. 41). See also European Union's second written submission, para. 75.

the First Schedule.980 However, Notification No. 23/2019, which amended Notification No. 25/2005,
changed the product description relevant to that exemption from "line telephone handsets" to "parts
of line telephone handsets". Thus, according to the European Union, complete line telephone
handsets are excluded from the exemption available under Notification No. 25/2005.981
7.413. In its first written submission, India argued that "'Line Telephone Handsets' form a part of
'Line Telephone Sets'" and consequently are classified under tariff item 8517.11 of India's First
Schedule, thereby receiving duty-free treatment.982 India also argued that "India has never intended
on imposing a duty on 'Line Telephone Handsets.'" 983 Subsequently, in response to questions from
the Panel, India provided text from the HS2017 Explanatory Notes to headings 8517 and 8518 and
stated that "[a] combined reading of the two explanatory notes gives an impression to India that
sub-heading 8518.30 intends to cover only certain types of handsets, i.e., which are combined
microphone/speaker sets for telephony and which are generally used by telephone operators ."984
India argued, however, that, even "if the Panel finds that Line Telephone Handsets are parts and,
accordingly, classifiable under tariff heading 8518.30, they would still be exempt from customs duty
under Serial No. 39 of the Notification No. 24/2005 dated March 1, 2005".985
7.414. Following India's initial arguments, the European Union indicated that it would withdraw its
claim regarding this tariff item if India confirmed t hat all imported line telephone handsets are
accorded duty-free treatment under headings 8517.11 and 8517.18.986 Subsequently, however, the
European Union considered that India had clarified that certain types of line telephone handsets do
fall within the s cope of tariff item 8518.30 and consequently the European Union maintained its
claim.987 The European Union also argued that, even if line telephone handsets receive duty -free
treatment pursuant to Serial No. 39 of Notification No. 24/2005, India is neverth eless acting
inconsistently with Articles II:1(a) and (b) because the conditions for such treatment are not in its
WTO Schedule.988
7.415. At the second substantive meeting of the Panel, India clarified that, pursuant to Notification
No. 15/2022, issued on 1 February 2022, "line telephone handsets are subject to duty free treatment
under sub-heading 8518.30 as well as sub -heading 8517.11".989 India also argued that, since the
measure has been withdrawn, the Panel may not make any recommendations concerning tariff item
8518.30.990

980 European Union's first written submission, para. 159 (referring to Notification No. 25/2005,
(Exhibit EU-10)).
981 European Union's first written submission, paras. 160-161 (referring to Notification No. 23/2019,
(Exhibit EU-14)). (underlining added)
982 India's first written submission, para. 223. (underlining added)
983 India's first written submission, para. 223. Following the first substantive meeting, India elaborated
that it "has not imposed any duty on 'Line Telephone Handsets'", that it "never intended on imposing a duty on
'Line Telephone Handsets'", and that "the amendments introduced by India should not be construed as an
imposition of duty on 'Line Telephone Handsets.'" (India's response to Panel question No. 85, para. 73
(emphasis omitted)).
984 India's response to Panel question No. 41, para. 98. (emphasis and underlining original)
985 India's response to Panel question No. 41, para. 98.
986 European Union's response to Panel question No. 38, para. 97.
987 Specifically, the European Union pointed to India's statement that:
A combined reading of the two explanatory notes gives an impression to India that sub -heading
8518.30 intends to cover on ly certain types of handsets, i.e., which are combined
microphone/speaker sets for telephony and which are generally used by telephone operators .
Therefore, the exclusion contained in the explanatory note to sub -heading 8517.11 may have a
limited effect due to the added condition contained in explanatory notes to sub -heading 8518.30
relating to the usage of line telephone handsets covered therein.
(European Union's response to Panel question No. 86, para. 131 (quoting India's response to Panel
question No. 41, para. 98))
988 European Union's response to Panel question No. 86, paras. 134-135.
989 India's response to Panel question No. 120, para. 72. In its second written submission, India stated
that "no duties are being imposed on products at issue classified under sub-headings 8518.30 and
8544.42/8544.49". (India's second written submission, para 4 (referring to Notification No. 15/2022, (Exhibit
IND-73)).
990 India's response to Panel question No. 120, para. 72; comments on the European Union's response
to Panel question No. 124, paras. 44-47 (referring to Appellate Body Report, US – Certain EC Products,
para. 81; and Panel Reports, US – Large Civil Aircraft (2nd Complaint), para 8.6 and fn 4266 thereto; EC –
Approval and Marketing of Biotech Products, para. 7.1316).

7.416. Following India's clarification regarding Notification No. 15/2022, the European Union agreed
that, as a result of the amendment introduced by this Notification, India "accords duty free treatment
for all the products covered by the concession included in its GATT schedule with regard to tariff line
8518.30 ex01".991 The European Union nevertheless requests the Panel to find that prior to the entry
into force of that amendment, "India was in breach of its obligations pursuant to Article II:1 (a) and
(b) of the GATT 1994", and "following the entry into force of the above mentioned amendment, India
ceased to be in breach of those obligations."992
7.4.7.2.2 Panel's assessment
7.417. The European Union and India agree that pursuant to Notification No. 15/2022, which was
introduced by India while these dispute settlement proceedings were ongoing, India presently
accords duty-free treatment to line telephone handsets, and is therefore acting in accordance with
Articles II:1(a) and (b) of the GATT 1994. 993 Nevertheless, the European Union requests us to find
that India was acting inconsistently with Articles II:1(a) and (b) prior to the introduction of
Notification No. 15/2022, and that this Notification brought India into consistency with its
obligations. India, for its part, argues that the Panel may not make any recommendations regarding
the tariff treatment accorded by India to line telephone handsets.
7.418. In our view, the European Union's request for findings and India's argument that we may
not make recommendations are not in tension with each other. To the extent that India was acting
inconsistently with its WTO obligations at the time of the Panel's establishment, and India resolved
that inconsistency during these proceedings, we can both: (i) make legal and factual findings to that
effect; and (ii) refrain from making any recommendations that India bring itself into consistency
with its WTO obligations. Given the parties' disagreement as to whether India was, at the time of
the Panel's establishment, acting inconsi stently with its WTO obligations, we consider it useful for
the purposes of resolving the parties' dispute to address this issue.994 We therefore proceed to assess
the tariff treatment accorded by India to line telephone handsets both at the time of the Pan el's
establishment and following India's amendments that took place during these proceedings.
7.419. We start our analysis by considering India's classification of line telephone handsets in its
domestic customs regime. The European Union considers that line telephone handsets are classified
under tariff item 8518.30.00 of India's First Schedule, which covers "[h]eadphones and earphones,
whether or not combined with a microphone, and sets consisting of a microphone and one or more
loudspeakers".995 India argues that Notification No. 25/2005, as amended by Notification No.
26/2007, indicates that line telephone handsets falling under tariff items "8517.11 or 8517.18" can
receive duty-free treatment.996 India considers that "'Line Telephone Handsets' form a part of 'Line
Telephone Sets '" and therefore India " classifies them under sub -heading 8517.11 " of the
First Schedule.997 India also notes that Notification No. 25/2005, as amended by Notification No.
23/2019, accorded duty-free treatment to parts of line telephone handsets falling under tariff item
8518.30.00, and, in India's view, this indicates that tariff item 8518.30.00 covers "parts of" line
telephone handsets and not complete line telephone handsets.998
7.420. We note that the product descriptions attac hed to tariff items 8517.11, 8517.18, and
8518.30.00 in India's First Schedule are as follows999:

991 European Union's response to Panel question No. 124, para. 120.
992 European Union's response to Panel question No. 124, para. 121.
993 We note that the parties share the same understanding with respect to the European Union's claim
concerning electric conductors for a voltage not exceeding 1,000 V, fitted with connectors, of a kind used for
telecommunications. (See section 7.4.8.2 below).
994 We also note that, unlike its claims regarding products falling under tariff items 8517.12 and 8517.70
of India's WTO Schedule, the European Union considers that the tariff treatment accorded by India to products
falling under tariff item 8518.30 ex01 of India's WTO Schedule has changed during these proceedings.
995 European Union's first written submission, paras. 157-158.
996 India's first written submission, para. 225 (referring to Notification No. 25/2005 as amended by
Notification No. 26/2007, (Exhibit IND-40)).
997 India's first written submission, para. 223.
998 India's first written submission, para. 227.
999 First Schedule as of 2016/2017, (Exhibit EU-59), pp. 755-756.

Tariff item Product description Standard
duty rate
8517 Telephone sets, including telephones for cellular networks or for
other wireless networks: other apparatus for the transmission or
reception of voice, images or other data, including apparatus for
communication in a wired or wireless network (such as a local or
wide area network), other than transmission or reception
apparatus of heading 8443, 8525, 8527 or 8528

 - Telephone sets, including telephones for cellular networks or
for other wireless networks:

8517 11 -- Line telephone sets with cordless handsets:
8517 11 10 --- Push button type 0%
8517 11 90 --- Other 0%

8517 18 -- Other:
8517 18 10 --- Push button type 0%
8517 18 90 --- Other 0%

8518 Microphones and stands therefor: loudspeakers, whether or not
mounted in their enclosures: headphones and earphones,
whether or not combined with a microphone, and sets consisting
of a microphone and one or more loudspeakers: audio-frequency
electric amplifiers: electric sound amplifier sets

 - Loudspeakers, whether or not mounted in their enclosures:
8518 30 00 - Headphones and earphones, whether or not combined with a
microphone, and sets consisting of a microphone and one or
more loudspeakers
15%

7.421. The product descriptions contained in India's First Schedule with respect to heading 8518
and tariff item 8518.30.00 are substantially identical to heading 8518 and tariff item 8518.30 of
India's WTO Schedule.1000 Specifically, tariff items 8518.30.00 of the First Schedule, and 8518.30 of
India's WTO Schedule, both cover " [h]eadphones and earphones, whether or not combined with a
microphone, and sets consisting of a microphone and one or more loudspeakers" , which are a
sub-category of products falling under heading 8518 (which, again, is identical in both Schedules).
We further note that India's WTO Schedule specifically indicates that "line telephone handsets",
classified under tariff item 8518.30 ex01, are a subcategory of products falling under the broader
category of "[h]eadphones and earphones, whether or not combined with a microphone, and sets
consisting of a microphone and one or more loudspeakers" covered by tariff item 8518.30.1001 Thus,
India's WTO Schedule strongly suggests that "line telephone handsets" are products falling within
the broader category of "[h]eadphones and earphones, whether or not combined with a microphone,
and sets consisting of a microphone and one or more loudspeakers". We also note that, under India's
First Schedule, these products are classified under tariff item 8518.30.00.
7.422. This interpretation of India's First Schedule is supported by the Explanatory Notes to the
HS2017.1002 The Explanatory Note to tariff item 8517.11 of the HS2017 defines "Line telephone sets"
as "communication apparatus that convert voice into signals for transmission to another device",
and which consist of various components.1003 The Explanatory Notes indicate that "[w]hen separately
presented, microphones and receivers (whether or not combined as hand -sets), and loudspeakers

1000 See WT/Let/181; and para. 7.410 above.
1001 Indeed, India's WTO Schedule indicates that other than line telephone handsets, India has
undertaken no tariff commitment with respect to other "[h]eadphones and earphones, whether or not
combined with a microphone, and sets consisting of a microphone and one or more loudspeakers" falling under
tariff item 8518.30. (See WT/Let/181; and para. 7.410 above). Thus, India's tariff commitment with respect to
such products, other than line telephone handsets, is unbound.
1002 The parties agree that the Explanatory Notes to the HS may constitute a relevant aid in interpreting
India's First Schedule. (See India's response to Panel question No. 99, paras. 37-39; and European Union's
response to Panel question No. 99, para. 34). India explains, however, that its domestic legal framework is
dualist, such that "Parliament must legislate a specific enabling law to give effect to India's commitments under
a treaty …[and] there is no domestic legislation which mirrors the HS Convention and the HS Explanatory
Notes". (Ibid. para. 39). Thus, in India's view, "the HS Convention and the HS Explanatory Notes remain
relevant aids but have no binding legal force under the Indian legal order." (Ibid.).
1003 HS2017 Explanatory Notes to Heading 8517, (Exhibit IND-59), p. 1. (emphasis added)

are classified in heading 85.18". 1004 The Explanatory Note to tariff item 8518 further explains that
this heading "covers microphones, loudspeake rs, headphones, earphones and audio -frequency
electric amplifiers of all kinds presented separately, regardless of the particular purpose for which
such apparatus may be designed (e.g., telephone microphones, headphones and earphones, and
radio receiver lo udspeakers)".1005 Specifically regarding tariff item 8518.30, the Explanatory Note
elaborates that this heading covers, inter alia , "line telephone handsets which are combined
microphone/speaker sets for telephony and which are generally used by telephone op erators".1006
The HS Explanatory Notes therefore indicate that "line telephone handsets" are distinct from "line
telephone sets", in that the former are a component product that may (or may not) be included in
the latter. As to where they should be classified, the Explanatory Notes indicate that line telephone
handsets fall within tariff item 8518.30, at least to the extent that they "are combined
microphone/speaker sets for telephony and which are generally used by telephone operators". In its
responses to questions from the Panel, India acknowledges that this language "gives an impression"
that such line telephone handsets are intended to be covered by tariff item 8518.30.1007
7.423. We therefore understand that line telephone handsets should, in principle, be classified
under tariff item 8518.30 of India's First Schedule . We recall, however, India's argument that
Notification No. 25/2005, as amended by Notification Nos. 26/2007 and 23/2019, suggests that line
telephone handsets are classified under tariff item 8517.11, and tariff item 8518.30.00 covers only
"parts" of line telephone handsets. We note that entry 9 of Notification No. 25/2005 exempts certain
products from customs duties. When Notification No. 25/2005 was initially published in 2005, the
exemption was available for "[l]ine telephone handsets" falling under tar iff item 8518.30.00 of the
First Schedule.1008 In 2007, the exemption was amended to cover "[l]ine telephone handsets" falling
under tariff items "8517.11 or 8517.17". In 2019, the exemption was further amended to cover
"[p]arts of line telephone handsets" falling under tariff item 8518.30.00.1009 In 2022, the exemption
was amended back to the way it existed in 2005, by covering "[l]ine telephone handsets" falling
under tariff item 8518.30.00.1010
7.424. Notification No. 25/2005 and its subsequent amendments do not chan ge our view that, in
principle, line telephone handsets should be classified under tariff item 8518.30.00 of India's First
Schedule. We note that the most recent amendment to Notification No. 25/2005 supports that
interpretation. In any event, India has no t explained why and how this Notification and its
amendments indicate (or have modified) India's classification practice with respect to line telephone
handsets. We also note that neither this Notification, nor any other evidence adduced by India,
indicates that India's customs authorities are legally required to classify line telephone handsets
under a different tariff item to tariff item 8518.30.00 of India's First Schedule. For the reasons
described above, we understand that tariff item 8518.30.00 is the correct classification for these
products.
7.425. Having concluded that line telephone handsets should be classified under tariff item
8518.30.00 of India's First Schedule, we turn to assess the precise tariff treatment accorded to
products falling under this tariff item. We first observe that India's First Schedule imposes a standard
duty rate of 15% on products falling under tariff item 8518.30.00 of the First Schedule. As published
in 2005, Notification No. 25/2005 provided an exemption from that duty rate for line telephone
handsets falling under that tariff item. That exemption, however, was amended several times and,
as of the date of the Panel's establishment, Notification No. 25/2005 exempted only "parts" of line
telephone handsets falling under that tarif f item.1011 Thus, complete line telephone handsets were
not covered by the exemption available under Notification No. 25/2005. Subsequently, however,
Notification No. 25/2005 was further amended by Notification No. 15/2022 and, as of February 2022,
the exemption was available for line telephone handsets falling under tariff item 8518.30.00 of the
First Schedule.1012

1004 HS2017 Explanatory Notes to Heading 8517, (Exhibit IND-59), p. 2.
1005 HS2017 Explanatory Notes to Heading 8518, (Exhibit IND-57), p. 1.
1006 HS2017 Explanatory Notes to Heading 8518, (Exhibit IND-57), p. 3. (emphasis added)
1007 India's response to Panel question No. 41, para. 98.
1008 Notification No. 25/2005, (Exhibit IND-40), p. 1.
1009 Notification No. 25/2005 as amended by Notification Nos. 26/2007 and 23/2019, (Exhibit IND-40).
1010 Notification No. 25/2005, (Exhibit IND-40), as amended by Notification No. 15/2022, (Exhibit
IND-73).
1011 Notification No. 25/2005 as amended by Notification Nos. 26/2007 and 23/2019, (Exhibit IND-40).
1012 Notification No. 15/2022, (Exhibit IND-73).

7.426. We also note that Serial No. 39 of Notification No. 24/2005 provides a possible exemption
for a considerable number of products. Specifically, Serial No. 39 exempts from all duties all goods
except " solar tempered glass or solar tempered (anti -reflective coated) glass ", falling under all
Chapters except Chapter 74 of the First Schedule, if the product is used for the manufacture of goods
covered by Serial Nos. 1 to 38 of Notification No. 24/2005, provided that the importer follows the
procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of
Excisable Goods) Rules, 1996 (Customs Rules 1996).1013 The European Union does not contest that
line telephone handsets can be used in the production of certain of the products identified in Serial
Nos. 1 to 38 of Notification No. 24/2005. 1014 We therefore understand that line telephone handsets
imported into India are eligible for duty -free treatment under Serial No. 39 of Notification No.
24/2005 if: (i) they are used in the production of certain specified products; and (ii) the importer
follows the procedures set out in the Customs Rules 1996.
7.427. We recall that Article II:1(b) d oes 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 fo rth
in a Member's WTO Schedule, Article II:1(b) requires that such conditions must be inscribed in the
Member's WTO Schedule. In our view, the conditions attached to the exemption under Serial No. 39
of Notification No. 24/2005 are, on their face, conditions for tariff treatment and not general
conditions for importation. Regarding the requirement that such products be used in the production
of other products, we understand that line telephone handsets not used in the production of those
products could still be imported into India, but subject to the standard duty rate of 15% instead of
the duty-free treatment available under the exemption. India has provided no evidence to indicate
otherwise. Similarly, we understand that failure to comply with the procedural requirements
stipulated in the Customs Rules 1996 would not preclude the importation of line telephone handsets
into India. There is no indication in the evidence on the record that compliance with such procedural
requirements is a general condition for importation – to the contrary, Notification No. 24/2005
explicitly ties both conditions to eligibility for exemption from cu stoms duties. Indeed, we consider
that Notification No. 25/2005 clearly indicates that these conditions are attached to the exemption
from customs duties, not entry into India.
7.428. To summarize, we consider that line telephone handsets should be classified und er tariff
item 8518.30.00 of India's First Schedule, and there is no evidence suggesting that India classifies
such products differently. At the time of the Panel's establishment, line telephone handsets were
subject to a 15% duty rate under the First Sche dule, but were also eligible to receive duty -free
treatment, pursuant to Notification No. 24/2005, if they satisfied certain conditions. Specifically,
such products were eligible for duty-free treatment under Serial No. 39 of Notification No. 24/2005
if: (i) they were used in the production of certain specified products; and (ii) the importer follow ed
the procedures set out in the Customs Rules 1996. Those conditions are not general conditions for
importation, but rather conditions to receive duty -free trea tment. During the course of these
proceedings, however, line telephone handsets became eligible for unconditional duty -free
treatment, pursuant to Notification No. 25/2005, as amended by Notification No. 15/2022.
7.4.7.3 Comparison of India's tariff treatment to its WTO tariff commitments
7.4.7.3.1 Main arguments of the parties
7.429. The European Union considers that line telephone handsets falling within the scope of tariff
item 8518.30.00 of India's First Schedule are covered by India's tariff commitments inscribed under
tariff item 8518.30 ex01 of India's WTO Schedule. 1015 The European Union agrees that India is
presently acting consistently with Articles II:1(a) and (b) of the GATT 1994. However, the
European Union considers that at the time of the Panel's establishment India wa s acting
inconsistently with its WTO obligations because the duty-free treatment available under Serial No. 39
of Notification No. 24/2005 was subject to conditions that are not inscribed in India's
WTO Schedule.1016

1013 Notification No. 24/2005 as amended by Notification Nos. 132/2006, 32/2016, 19/2016, and
06/2020, (Exhibit IND-39).
1014 European Union's response to Panel question No. 86, para. 134.
1015 European Union's first written submission, para. 158.
1016 European Union's responses to Panel question No. 120, para. 110, and No. 124, para. 120.

7.430. India argues that, at the time of the Pan el's establishment, Serial No. 39 of
Notification No. 24/2005 ensured duty-free treatment for all line telephone handsets, in accordance
with Articles II:1(a) and (b) of the GATT 1994.1017
7.4.7.3.2 Panel's assessment
7.431. We recall that, pursuant to its WTO Schedule, Ind ia is obligated to accord unconditional
duty-free treatment to line telephone handsets falling under tariff item 8518.30 ex01 of that
Schedule. In our view, these tariff commitments apply to line telephone handsets imported into India
and classified under tariff item 8518.30.00 of India's First Schedule. We also recall that, at the time
of the Panel's establishment, such line telephone handsets imported into India were subject to a
15% duty rate, pursuant to India's First Schedule, but were eligible for duty-free treatment pursuant
to Serial No. 39 of Notification No. 24/2005, subject to two conditions: (i) the line telephone handsets
had to be used in the production of certain specified products; and (ii) the importer was required to
comply with certain pro cedural requirements specified in the Customs Rules 1996. Both of these
conditions are conditions that must be satisfied in order for the line telephone handset to receive
duty-free treatment.
7.432. At the time of the Panel's establishment, although line telephone handsets were eligible for
duty-free treatment subject to conditions, neither of those conditions was inscribed in India's
WTO Schedule. If an imported line telephone handset failed to satisfy one of those conditions, it
would have been subject to a 15% duty rate. We consider, therefore, that at the time of the Panel's
establishment, India's tariff treatment of line telephone handsets was inconsistent with its WTO tariff
commitments as contained in its WTO Schedule.
7.433. As of 1 February 2022 , India amended Notification No. 25/2005, such that line telephone
handsets became subject to unconditional duty -free treatment. We therefore consider that, as of
1 February 2022, India brought its tariff treatment of line telephone handsets into consistency with
its WTO tariff commitments concerning those products.
7.4.7.4 Conclusion
7.434. Based on the foregoing, we find that, at the time of the Panel's establishment, India's tariff
treatment of line telephone handsets, falling within the scope of tariff item 8518.30 ex01 of India' s
WTO Schedule, was inconsistent with Article II:1(b), first sentence, of the GATT 1994, because such
products were subject to ordinary customs duties in excess of those set forth and provided in India's
WTO Schedule, unless they satisfied certain conditions not set forth in that WTO Schedule.
7.435. We recall that the application of ordinary customs duties in excess of those provided for in
a Member's WTO Schedule, or subject to terms, conditions or qualifications not set forth in that
Schedule, inconsistent wit h 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, at the time of the Panel's
establishment, India's tariff treatment of such products was less favourable than that provided in its
WTO Schedule, and India was therefore acting inconsistently with Article II:1(a) of the GATT 1994.
7.436. We also find that, as of 1 February 2022, India accords unconditional duty-free treatment to
line telephone handsets, in accordance with the terms of its WTO Schedule, and is therefore acting
consistently with Article II:1(b), first sentence, of the GATT 1994. Furthermore, by according to the
commerce of the European Union treatment no less favourable than that provided for in its
WTO Schedule, India's tariff treatment of such products is consistent with Article II:1(a) of the
GATT 1994.

1017 India's first written submission, para. 228; response to Panel question No. 40, para. 94.

7.4.8 Tariff item 8544.42.00 ex01 of India's WTO Schedule
7.4.8.1 India's WTO tariff commitments
7.4.8.1.1 Main arguments of the parties
7.437. The European Union argues that the bound duty rate for tariff item 8544.42.00 ex01 of
India's WTO Schedule, covering electric conductors "for a voltage not exceeding 1,000 V", "[f]itted
with connectors", "of a kind used for telecommunications", is 0%.1018
7.438. India does not contest that the relevant bound duty rate for such products falling under tariff
item 8544.42.00 ex01 of its WTO Schedule is 0%.1019
7.4.8.1.2 Panel's assessment
7.439. We understand that India does not contest that its WTO tariff commitments with respect to
electric conductors, for a voltage not exceeding 1,000 V that are fitted with connectors and of a kind
used for telecommunications are set forth in its WTO Schedule. In particular, India does not a rgue
that the ITA limits the scope of its commitment under this tariff item, or that this commitment was
undertaken in error and is invalid pursuant to Article 48 of the Vienna Convention.1020
7.440. It is therefore uncontested that, pursuant to Articles II:1(a) and (b) of the GATT 1994, India
is obligated to provide the tariff treatment set forth in its WTO HS2007 Schedule for products falling
under tariff item 8544.42.00 ex01 of that Schedule. In this respect, India's WTO Schedule provides
as follows1021:
 Ex Product description Bound
rate
8544 Insulated (including enamelled or anodised) wire, cable (including
co-axial cable) and other insulated electric conductors, whether
or not fitted with connectors; optical fibre cables, made up of
individually sheathed fibres, whether or not assembled with
electric conductors or fitted with connectors.

8544.4 - Other electric conductors, for a voltage not exceeding 1,000 V:
8544.42.00 00 -- Fitted with connectors
8544.42.00 01 -- Of a kind used for telecommunications 0%
8544.42.00 02 -- Other 40%

7.441. We note that, electric conductors for a voltage no t exceeding 1,000 V that are fitted with
connectors and of a kind used for telecommunications are classified under tariff item 8544.42.00
ex01 of India's WTO Schedule, which indicates a bound duty rate of 0%, with no terms, conditions,
or qualifications att ached thereto. Thus, India is obligated to provide unconditional duty -free
treatment to such products falling under tariff item 8544.42.00 ex01 of its WTO Schedule.
7.4.8.2 India's tariff treatment
7.4.8.2.1 Main arguments of the parties
7.442. In its first written submission, the European Union argued that India's First Schedule imposes
a 15% standard duty rate on products falling under tariff item s 8544.42.91, 8544.42.92, and
8544.42.93.1022 The European Union submit ted that Notification No. 25/2005 initially exempte d
imports of products falling under tariff items 8544.41, 8544.49 and 8544.51 of India's First Schedule
from that 15% standard duty rate, and considers that this exemption "ensured compliance with the

1018 European Union's first written submission, para. 165.
1019 India's response to Panel question No. 66, para. 29.
1020 We also note that India did not attempt to modify this tariff item in its draft rectification under the
1980 Decision. According to India, it is "already providing concessions to these products in accordance with its
commitments." (India's response to Panel question No. 66, para. 29).
1021 WT/Let/181.
1022 European Union's first written submission, para. 166 (referring to First Schedule of the Customs
Tariff Act as amended by Finance Act 2018 (Exhibit EU-15)).

tariff binding under consideration".1023 The European Union submitted that Notification No. 25/2005
was amended by Notification No. 133/2006, such that electric conductors for a voltage not exceeding
80 V, fitted with connectors, of a kind used for telecommunications, fell outside the scope of the
exemption.1024 The European Union further submitted that Notification No. 50/2017, as amended by
Notification No. 6/2018, imposed a duty of 7.5% on "Insulated electric conductors; for a voltage not
exceeding 1000 V, fitted with connectors, of a kind used for telecommunica tions", except for "USB
Cable for cellular mobile phone". 1025 The European Union therefore consider ed that "electric
conductors, for a voltage not exceeding 80 Volts, fitted with connector, of the kind used for
telecommunications" were subject to a duty rate of either 7.5% or 15%. 1026 Following the second
substantive meeting, however, the European Union noted that India had issued Notification No.
15/2022, which amends Notification No. 25/2005 such that the exemption once again covers all
relevant electric conductors. Thus, according to the European Union, India presently accords duty -
free treatment for all products covered by its concessions in its WTO Schedule concerning tariff item
8544.42.00 ex01.1027 The European Union nevertheless requests the Panel to find that prior to the
entry into force of that amendment, India was acting inconsistently with Articles II:1(a) and (b) of
the GATT 1994.
7.443. India argues that, pursuant to Notification No. 15/2022, electric conductors for a voltage not
exceeding 80 V, of a kind u sed for telecommunications, other than USB cables for cellular mobile
phones, whether or not they are fitted with connectors, are subject to duty-free treatment.1028 India
considers that the Panel "is not empowered to make any recommendations on measures which have
been withdrawn by the Respondent." 1029 Prior to the introduction of this amendment, India had
argued that Serial No. 39 of Notification No. 24/2005 in any case exempted all relevant products
from duties.1030
7.4.8.2.2 Panel's assessment
7.444. The European Union and India agree that pursuant to Notification No. 15/2022, which was
introduced by India while these dispute settlement proceedings were ongoing, India presently
accords duty -free treatment to all relevant products covered by tariff item 8544.42.00 ex01 of
India's WTO Schedule , and is therefore acting in accordance with Article s II:1(a) and (b) of the
GATT 1994.1031 Nevertheless, the European Union requests us to find that India was acting
inconsistently with Articles II:1(a) and (b) prior to the introduction of Notification No. 15/2022, and
that this Notification brought India into consistency with its obligations. India considers that the
Panel may not make any recommendations regarding the measure at issue since it has been
withdrawn.
7.445. For the reasons articulated above 1032, we see no tension between the European Union's
request for findings regarding the measure as it existed prior to the introduction of Notification No.
15/2022, and India's argument that the Panel may not make recommendations if the measure has
been brought into consistency with its WTO obligations. Moreover, g iven the parties' disagreement
as to whether India was, at the time of the Panel's establishment, acting inconsistently with its WTO
obligations, we consider it useful for the purposes of resolving the parties' dispute to address this
issue.1033 We therefore proceed to assess the tariff treatment accorded by India to electric
conductors for a voltage no t exceeding 1,000 V , fitted with connectors , of a kind used for

1023 European Union's first written submission, para. 169.
1024 European Union's first written submission, para. 170 (referring to Notification No. 25/2005,
(Exhibit EU-10); Notification No. 50/2017, (Exhibit EU-34)).
1025 European Union's first written submission, para. 172.
1026 European Union's first written submission, para. 173.
1027 European Union's response to Panel question No. 130, paras. 127-128.
1028 India's response to Panel question No. 132, para. 92.
1029 India's comments on the European Union's responses to Panel question Nos. 129-131, para. 55.
1030 India's first written submission, para. 237.
1031 We note that the parties share the same understanding with respect to the European Union's claim
concerning line telephone handsets. (See para. 7.417 above).
1032 See para. 7.418 above.
1033 We also note that, unlike its claims regarding products falling under tariff items 8517.12 and
8517.70 of India's WTO Schedule, the European Union considers that the tariff treatment accorded by India to
products falling under tariff item 844.42.00 ex01 of India's WTO Schedule has changed during these
proceedings.

telecommunications, both at the time of the Panel's establishment and following India's amendments
that took place during these proceedings.
7.446. It is uncontested, and the evidence demonstrates, that India's First Schedule establishes a
standard duty rate of 15% for tariff items 8544.42.91, 8544.42.92, and 8544.42.93.1034 These tariff
items cover insulated electric conductors (other than "winding wire" and "co -axial cable and other
co-axial electric conductors"), for a voltage not exceeding 1,000 V, of a kind used in
telecommunications, fitted with connectors: tariff item 8544.42.91 covers such electric conductors
that are paper insulated; tariff item 8544.42.92 covers such electric conductors that are plastic
insulated; and tariff item 8544.42.93 covers such electric conductors that are rubber insulated.1035
7.447. It is also uncontested, and the evidence demonstrates, that Serial Nos. 28 and 29 of
Notification No. 25/2005, as originally published in 2005, unconditionally exempted all such products
from customs duties.1036 Specifically, pursuant to Serial No. 28, "[e]lectric conductors, for a voltage
not exceeding 80 V, of a kind used for telecommunications", (whether or not fitted with connectors),
falling under tariff items 8544.41 and 8544.49 of the First Schedule, were exempted from all customs
duties. Pursuant to Serial No. 29, "[e]lectric conductors, for a voltage exceeding 80 V, but not
exceeding 1000 V, fitted with connectors, of a kind used for telecommunications "1037, falling under
tariff item 8544.51 of the First Schedule, were exempted from all customs duties. Together, the
exemptions available under Serial Nos. 28 and 29 applied unconditional duty -free treatment to all
electric conductors, for a voltage not exceedi ng 1,000 V, of a kind used for telecommunications,
fitted with connectors.
7.448. Notification No. 25/2005 was subsequently amended by Notification No. 133/2006 . While
the product descriptions attached to Serial Nos. 28 and 29 remained the same, the tariff items
attached to those exemptions were amended, such that: (i) Serial No. 28 referred exclusively to
electric conductors, for a voltage not exceeding 80 V, of a kind used for telecommunications, falling
under tariff item 8544.49 of the First Schedule; and (ii) Serial No. 29 referred to electric conductors,
for a voltage exceeding 80 V but not exceeding 1,000 V, fitted with connectors, of a kind used for
telecommunications, falling under tariff item 8544.42 of the First Schedule.1038 It is uncontested that
tariff item 8544.42 of India's First Schedule covers electric conductors, for a voltage not exceeding
1,000 V, of a kind used for telecommunications, fitted with connectors , while tariff item 8544.49
covers such products that are not fitted with connectors .1039 Thus, Notification No. 25/2005 as
amended by Notification No. 133/2006 no longer applied duty-free treatment to electric conductors,
for a voltage not exceeding 80 V, of a kind used for telecommunications, that were fitted with
connectors.1040 This understanding is confirmed by India.1041
7.449. Thus, in the absence of any other Notifications, such products (electric conductors, for a
voltage not exceeding 80 V, of a kind used for telecommunications, fitted with connectors) would
have been subject to the 15% duty rate set forth in India's First Sc hedule. We note, however, that

1034 Finance Act 2018, (Exhibit EU-15).
1035 First Schedule 2016/2017, (Exhibit EU-59), pp. 771-772.
1036 Serial Nos. 28-29 of Notification No. 25/2005, (Exhibit IND-40).
1037 Underlining added.
1038 European Union's first written submission, para. 169; Notification No. 25/2005 as amended by
1039 See European Union's response to Panel question No. 44(b), paras. 102-103; and India's response
to Panel question No. 132, paras. 89-90.
1040 Underlining added. We understand that prior to the amendments introduced by Notification No.
133/2006, such products were eligible for the exemption under Serial No. 28 of Notification No. 25/2005. By
excluding products falling under tariff item 8544.42 from the scope of that exemption, Notification No.
133/2006 limited the exemption to products falling under tariff item 8544.49 (i.e. products not fitted with
connectors). Thus, following the amendment, the only exemption available for electric conductors of a kind
used for telecommunications when fitted with connectors, was set forth in Serial No. 29, which was specifically
limited to such products for a voltage exceeding 80 V and not exceeding 1,000 V. Such products for a voltage
not exceeding 80 V were essentially carved out from the scope of the exemptions available under Notification
No. 25/2005. (See Notification No. 25/2005 as amended by Notification No. 133/2006, (Exhibit IND-40); and
India's response to Panel question No. 132).
1041 India explains that Notification No. 25/2005, as amended by Notification No. 133/2006, "granted
concession to electric conductors for a voltage between 80V-1000V of a kind used for telecommunications
fitted with connectors. The Notification did not grant concession to electric conductors for a voltage <80V fitted
with connectors." (See India's response to Panel question No. 132, para. 89). We note that India's arguments
on this point evolved over the course of the proceedings. (See e.g. India's first written submission, para. 235).

Serial No. 491 of Notification No. 50/2017, as amended by Notification No. 6/2018, provide s for a
7.5% duty rate to be applied to all goods falling under heading 8544 of the First Schedule, except
for USB cables for cellular mobile phones.1042 It is uncontested that in India's customs regime, two
or more customs notifications may apply simultaneously, such that an "importer can claim the most
beneficial notification".1043 Thus, in light of Notification No. 50/2017, products falling outside the
scope of the exemption under Notification No. 25/2005 (such as electric conductors for a voltage
not exceeding 80 V, of a kind used for telecommunications, fitted with connectors) became subject
to a 7.5% duty rate instead of the 15% duty rate set out in India's First Schedule. With respect to
the carve-out for USB cables for cellular mobile phones, we note the European Union's explanation
that "'USB Cable for cellular mobile phone' i s not covered by [its] claim because it is not a product
'of a kind used in telecommunications'".1044
7.450. We also recall that Serial No. 39 of Notification No. 24/2005 exempts from all duties all
goods except "solar tempered glass or solar tempered (anti -reflective coated) glass", falling under
all Chapters except Chapter 74 of India's First Schedule, if the product is used for the manufacture
of goods covered by S erial Nos. 1 to 38 of Notification No. 24/2005, provided that the importer
follows the procedure set out in the Customs Rules 1996.1045 The European Union does not contest
that electric conductors , for a voltage not exceeding 80 V, of a kind used in telecommunication,
fitted with connectors, can be used in the production of certain of the products identifi ed in
Serial Nos. 1 to 38 of Notification No. 24/2005.1046 We recall that such products are eligible for duty-
free treatment under Serial No. 39 of Notification No. 24/2005 if: (i) they are used in the production
of certain specified products; and (ii) the i mporter follows the procedures set out in the
Customs Rules 1996. In this respect, we also 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. As we have found above, neither of
the conditions for the duty-free treatment available under Serial No. 39 of Notification No. 24/2005
constitutes a general condition for importation, and both conditions are tied to eligibility for
exemption from customs duties.1047
7.451. Finally, Notification No. 15/2022 (which was introduced during these dispute settlement
proceedings) amended the exemption under Serial No. 28 of Notification No. 25/2005 to refer to
electric conductors, for a voltage not exceeding 80 V, of a kind used for telecommunications (whether
or not fitted with connectors), other than USB cables for cellular mobile phones or wrist wearable
devices (commonly known as smart watches)1048, falling under tariff items 8544.42 and 8544.49 of
the First Schedule.1049 Thus, Serial Nos. 28 and 29 of Notification No. 25/2005, together, presently
unconditionally exempt from all customs duties all electric conductors (other than the USB cables
described above), for a voltage not exceeding 1,000 V, of a kind used in telecommu nication, fitted
with connectors.
7.452. To summarize, we find that, pursuant to Notification Nos. 24/2005, 25/2005, and 50/2017,
at the time of the Panel's establishment electric conductors, for a voltage not exceeding 80 V, of a
kind used in telecommunication, fitted with connectors, classified under tariff item 8544.42 of India's
First Schedule, were subject to a 7.5% duty rate, unless they satisfied the conditions for duty -free
treatment available under Serial No. 39 of Notification No. 24/2005. Specifically, such products were
eligible for duty-free treatment under Serial No. 39 of Notification No. 24/2005 if: (i) they were used

1042 Serial No. 491 of Notification No. 50/2017, (Exhibit EU-34), as amended by Notification No. 6/2018,
(Exhibit EU-42).
1043 European Union's first written submission, para. 52 (referring to Hon'ble Supreme Court in the case
of Share Medical Care v. Union of India and ORS, 2007 (209) ELT 321 (S.C.), (Exhibit EU-5)); India's first
written submission, para. 235.
1044 European Union's response to Panel question No. 87, para. 138. We note that the European Union's
arguments on this point evolved over the course of the proceedings. (See e.g. European Union's response to
Panel question No. 108, para. 108; and European Union's first written submission, para. 172).
1045 Notification No. 24/2005 as amended by Notification Nos. 132/2006, 32/2016, 19/2016, and
06/2020, (Exhibit IND-39).
1046 See e.g. European Union's response to Panel question No. 49, para. 109; and second written
submission, paras. 76-77.
1047 See para. 7.427 above.
1048 Between 1 February and 1 April 2022, the exception was limited to "mobile phones". (See Serial
No. 3 of Notification No. 15/2022, item (iii), (Exhibit IND-73)).
1049 Notification No. 15/2022, (Exhibit IND-73).

in the production of certain specified products; and (ii) the importer followed the procedures set out
in the Customs Rules 1996. Those conditions are not general conditions for importation, but rather
conditions to receive duty -free treatment. During the course of these proceedings, however, such
products became eligible for unconditional duty -free treatment, pursuant to Notification
No. 25/2005, as amended by Notification No. 15/2022.
7.4.8.3 Comparison of India's tariff treatment to its WTO tariff commitments
7.4.8.3.1 Main arguments of the parties
7.453. The European Union considers that t he products covered by tariff items 8544.42.91,
85.44.42.92 and 85.4 4.42.93 of India's First Schedule fall within the scope of India's WTO tariff
commitment for tariff item 8544.42 of India's WTO Schedule. 1050 While the European Union agrees
that India is presently acting consistently with Articles II:1(a) and (b), the European Union considers
that at the time of the Panel's establishment India was acting inconsistently with its WTO
commitments.1051 In the context of its arguments concerning India's tariff treatment of line
telephone handsets, the Eur opean Union submits that the conditions for duty -free treatment
available under Serial No. 39 of Notification No. 24/2005, which also apply to the products at issue
here (namely, electric conductors, for a voltage not exceeding 80 V, of a kind used in
telecommunication, fitted with connectors), are not set forth in India's WTO Schedule.1052
7.454. India argues that, at the time of the Panel's establishment, Serial No. 39 of Notification
No. 24/2005 brought it into consistency with its obligations under Articles II:1(a) and (b).1053
7.4.8.3.2 Panel's assessment
7.455. We recall that tariff item 8544.42.00 ex01 of India's WTO Schedule indicates that India is
obligated to accord unconditional duty -free treatment to electric conductors, for a voltage not
exceeding 1,000 V, of a kind used for telecommunications, fitted with connectors.1054 Such products
are classified in India's First Schedule under tariff items 8544.42. 91, 8544.42.92, and
8544.42.93.1055 At the time of the Panel's establishment, a subset of such products (namely electric
conductors, for a voltage not exceeding 80 V, of a kind used in telecommunication, fitted with
connectors) were subject to a duty rate of 7.5% unless they satisfied the conditions for duty -free
treatment established in Serial No. 39 of Notification No. 24/2005.1056 Specifically, in order to receive
such duty-free treatment: (i) the products had to be used in the production of certain specified
products; and (ii) the importer had to follow the procedures set out in the Customs Rules 1996.1057
Both of these conditions are conditions that must be satisfied in order for electric conductors, for a
voltage not exceeding 80 V, of a kind used in telecommunication, fitted with connectors, to receive
duty-free treatment.
7.456. At the time of the Panel's establishment, although such products were eligible for duty-free
treatment subject to conditions, neither of those conditions was inscribed in India's WTO Schedule.
If an imported electric conductor, for a voltage not exceeding 80 V, of a kind used for
telecommunications, fitted with connectors, failed to satisfy one of those conditions, it would have
been subject to a 7.5% duty rate. In our view, therefore, India's tariff treatment of such products
was inconsistent with its WTO tariff commitments as contained in its WTO Schedule.
7.457. We further understand that, as of 1 February 2022, India amended Notification No. 25/2005,
such that these products became subject to unconditional duty -free treatment. We therefore
consider that, as of 1 February 2022, India brought its tariff treatment o f such products into
consistency with its WTO tariff commitments concerning those products.

1050 European Union's first written submission, para. 167.
1051 European Union's response to Panel question No. 130, para. 130.
1052 European Union's responses to Panel question No. 86, paras. 134-136; responses to Panel question
1053 India's first written submission, para. 237; response to Panel question No. 48(b), para. 103.
1054 See para. 7.441 above.
1055 See para. 7.446 above.
1056 See para. 7.374 above.
1057 See para. 7.374 above.

7.4.8.4 Conclusion
7.458. Based on the foregoing, we find that, at the time of the Panel's establishment, India's tariff
treatment of electric conductors, for a voltage not exc eeding 80 V, of a kind used for
telecommunications, fitted with connectors, falling within the scope of tariff item 8544.42.00 ex01
of India's WTO Schedule, was inconsistent with Article II:1(b), first sentence, of the GATT 1994,
because such products were subject to ordinary customs duties in excess of those set forth and
provided in India's WTO Schedule, unless they satisfied certain conditions not set forth in that
WTO Schedule.
7.459. We recall that the application of ordinary customs duties in excess of thos e 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, at the time of the Panel's
establishment, India's tariff treatment of such products was less favourable than that provided in its
WTO Schedule, and India was therefore acting inconsistently with Article II:1(a) of the GATT 1994.
7.460. We also find that, as of 1 February 2022, India accords unconditional duty-free treatment to
such products, in accordance with the terms of its WTO Schedule, and is therefore acting consistently
with Article II:1(b), first sentence, of th e GATT 1994. Furthermore, by according to the commerce
of the European Union treatment no less favourable than that provided for in its WTO Schedule,
India's tariff treatment of such products is consistent with Article II:1(a) of the GATT 1994.
8 CONCLUSIONS AND RECOMMENDATIONS
8.1. For the reasons set forth in this Report, we conclude as follows:
a. With respect to India's assertions concerning its WTO tariff commitments, we find that:
i. The ITA is not a 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 requirement s 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 the European Union acted inconsistently with the 1980
Decision is not within our terms of referenc e, and we consequently do not have the
legal mandate to make such findings.
b. With respect to the European Union's claims that India's tariff treatment of certain
products is inconsistent with Articles II:1(a) and (b) of the GATT 1994, we find that:
i. India's tariff treatment of certain products classified under tariff items 8504.40 ex02,
8517.12, 8517.61, 8517.62 and 8517.70 ex01, ex02, and ex03 of India's WTO
Schedule is inconsistent with Articles II:1(a) and (b) of the GATT 1994;
ii. At the time of the Panel's establishment, India's tariff treatment of certain products
classified under tariff item s 8518.30 ex01 and 8544.42 .00 ex01 of India's WTO
Schedule was inconsistent with Articles II:1(a) and (b) of the GATT 1994; and
iii. As of 1 February 2022, India's tariff treatment of certain products classified under tariff
items 8518.30 ex01 and 8544.42.00 ex01 of India's WTO Schedule is consistent with
Articles II:1(a) and (b) of the GATT 1994.
8.2. Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. We conclude that, to the extent that the measures at issue are

inconsistent with Articles II:1(a) and (b) of the GATT 1994, they have nullified or impaired benefits
accruing to the European Union under that agreement.
8.3. Pursuant to Article 19.1 of the DSU, to the extent that India's tariff treatment of certain
products classified under tariff items 8504.40 ex02, 8517.12, 851 7.61, 8517.62, 8517.70 ex01,
ex02, and ex03 of India's WTO Schedule continues to be inconsistent with Articles II:1(a) and (b)
of the GATT 1994, we recommend that India bring such measures into conformity with its obligations
under the GATT 1994.