World Trade Organization Organisation Mondiale du Commerce Organización Mundial del Comercio

Reply: Yes. This can be renewed indefinitely.

Chile 7:

Additionally in the same paragraph, India mentions that wine and spirits are the only class of goods that receive higher protection in India. Could India please clarify what is understood by higher protection?

Reply: Higher protection is as defined by Article 23.1 of TRIPS.

Chile 8:

Finally, on the issue of enforcement, paragraph 299 establishes that Customs may seize and hold goods for a reasonable period and then refers to six months, could this mean that a right holder could impede the circulation of so called infracting goods for competitive reasons up to six months, and if so what measures are in place so as to impede unfair competition or abuses on behalf of right holders, also who must burden the cost of storage of the seized goods.

Reply: Primarily, the determination of infringement and suspension of clearance of goods, if any, is effected on the basis of information provided by the right holders at the time of registration of notice filed under the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. The goods are seized under the provisions of the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 if there are reasons to believe that the goods are liable to confiscation in terms of section 111 of the Customs Act, 1962. Thus, the goods suspected to be infringing goods are seized, if the Customs officer has a reasonable belief of the infringement, which in turn would be based on the facts of the specific case.

The matter is finally decided after giving an opportunity to the right holder and the importer to represent their case.

The Right Holder is required to furnish a Bond under Rule 5(a) of the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 undertaking to protect the importer, consignee and the owner of the goods and the competent authorities against all liabilities that are incidental and ancillary to the act of suspension of clearance of allegedly infringing goods, in case it is established that the suspension is vexatious.

The costs toward destruction, demurrage and detention charges incurred till the time of destruction or disposal of the goods, as the case may be, is borne by the right holder.

For trade defense measures:

Chile 9:

In paragraph 84, Section III) Trade policies by measure – 2) Measures directly affecting imports –viii) Contingency measures, a) Antidumping and countervailing measures, the Report of the Secretariat gives background on the Court of Appeal concerning Customs Duties, Excise and Tax Services (CESTAT). It is noted that between 2006 and October 2010 seven (7) of the forty (40) appeals before the CESTAT regarding applied antidumping and countervailing duties were solved.

Can India point out the reasons for this apparently low rate of resolution in the indicated period. Can India indicate if the CESTAT has set time limits within which it should solve these issues, and what are these timelines?

Reply: Section 129B (2A) of the Customs Act, 1962 (CA 62) provides that the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) shall dispose off the appeals, as far as possible, within a period of three years from the date of filing of appeal. The procedures for filing and handling of appeals are prescribed in the CESTAT Procedure Rules, 1982. The CESTAT is settling a large number of cases every year inclusive of cases relating to antidumping and countervailing measures.

Chile 10:

In paragraph 71, section IV) Trade Policy, paragraph 4) trade policy issues facing India, the Government report, noted that India's participation in world trade is small (1.3% of exports in 2009). In addition, it mentions that notwithstanding this, India has been affected by a disproportionate number of trade defense measures (90 anti dumping measures were imposed against India in the period from January 1995 to June 2010).

In paragraphs 85, 86 and 87, section III) Trade policies by measure – 2) measures directly affecting imports – viii) Contingency measures, a) Antidumping and Countervailing Measures; the Report of the Secretariat, gives background on anti dumping measures taken by India. Inter alia it mentions that (1) India is one of the main users of antidumping measures, (2) the application of such measures has increased in recent years (207 in force until December 2010) and (3) their average length is greater to 4.5 years. Moreover it states that India's share in world imports of goods amounted to 2% (in 2009).

Considering that the government report itself acknowledges the prejudicial effects of such excessive use of anti dumping measures on trade competitiveness of India, could India explain if it expects to review or thinks it is necessary to revise its internal laws on anti dumping in the light of statistics derived from its implementation/report.

Reply: The purpose of anti dumping duties, in general, is to address the injury caused to the domestic industry by the unfair trade practices of dumping. Anti dumping investigations are carried out strictly as per India's Customs Tariff (identification, Assessment and collection of anti dumping duty on dumped articles and for determination of injury) Rules, 1995 as amended and in conformity with the provisions of the WTO Agreement on Implementation of Article VI of the GATT 1994.

Chile 11:

WT/TPR/S/249: (ix) Standards and technical regulations: (b) Technical regulations: Para 104:

Responsibility for the formulation of technical regulations is with the agency in charge of the respective area. The formulation of a technical regulation follows a similar process to the formulation of a standard. A draft technical regulation is sent out for comments prior to its adoption by the concerned ministry/department/organization and publication in the Official Gazette. Comments must be provided within 60 days of the publication of the notice. The draft technical regulations are also notified to WTO Members for comments. Comments received on the draft are examined by the ministry concerned. If divergent comments are received, an expert group examines and considers the comments and their incorporation in the final version. The process of finalization of draft regulations takes 6 to 12 months, including approval of the competent authority, vetting, and translation into Hindi. The final regulation (via a notification) is published in the Official Gazette giving its date of implementation; it is simultaneously notified to the WTO. Amendments to technical regulations are made through a similar process, from time to time, based on industry needs or due to new scientific developments, new sanitary and environmental circumstances, and harmonization with international standards.

Question:

1. 
   In India is the formulation of technical regulations only the responsibility of the Central Government? In case local governments also formulate technical regulations, are these also notified to the WTO?
   
2. 
   Is there a level of coordination among agencies responsible for formulating technical regulations?
   

Reply (a): As of now the technical regulations have been formulated by Central Government.

Reply (b): There is complete co ordination among agencies responsible for formulating technical regulations.

Import VI Prohibitions, restrictions, and licensing

(A) Import Prohibitions

Chile 12:

Paragraph 53 states that "Imports of beef and beef products in containing beef in any form remain prohibited." The footnote number 4 explains that "Under the current Import Policy Schedule (Foreign Trade Policy 2009 14), Imports of beef and beef products in Containing Any form are listed as prohibitive (under the General Notes Regarding Import Policy)".

Question: According to this policy is it possible to assume that in 2014 this restriction will be lifted on bovine meat products in particular?

Reply: The import of beef and beef products has been prohibited under the flexibilities provided by Article XX of GATT.

Chile 13:

Paragraph 55 states that "It is not clear to the Secretariat which products require an automatic license and which require a non automatic license"

Question: Chile would appreciate more information about the Import Policy Schedule.

Reply: Import Policy Schedule will be notified shortly.

Sanitary and Phytosanitary Measures X (SPS)

Chile 14:

Paragraph 119 states that "However, the Rules and Regulations to operationalize this Act have not been notified yet."

Question: Chile would appreciate if India clarifies when this information will be available.

Reply: Food Safety and Standard Regulations, 2011 were notified vide Gazette Notification dated 01.08.2011 by the Government of India and are available on FSSAI website http://fssai.gov.in. The Regulations came into force with effect from 5.08.2011.

Chile 15:

120 states that "The Mandate of the FSSAI is to ensure the availability of safe and wholesome food for human Consumption, through establishing and enforcing science based food safety standards for domestically produced and imported foods, licensing and registering businesses selling food for human consumption, and regulating food manufacturing practices and labelling".

Question: Chile would be grateful for further clarification as to when this process would be completed?  Chile would also appreciate further clarification on whether it will be regulated under some FSSAI guideline.?

Reply: Food Safety and Standards Act, Rules and Regulations have been fully implemented with effect from 5 August 2011. The details are available on www.fssai.gov.in.

Chile 16:

Paragraph 121 states that "Permits are valid for six months and may be used for multiple consignments."

Question: Does this mean that the permits must be renewed constantly? Is the renewal automatic?

Reply: The Sanitary Import Permit is valid for six months and it expires after six months. Renewal is not automatic. Fresh application for issue of permit has to be applied for.

Chile 17:

In the same paragraph 121 it adds that "Imports of animal products are only allowed through designated ports where animal quarantine and certification services are available (Amritsar, Bangalore, Chennai, Delhi, Hyderabad, Kolkata and Mumbai). Imports of fish products are allowed through the port of Vishakhapatnam (in the State of Andhra Pradesh) and the land custom station at Petrapole (for Imports from Bangladesh only) ".

Question: Chile would appreciate clarification as to whether all the ports mentioned above and which are used to receiving animals have the same facilities for quarantine, whenever it is necessary.

Reply: Quarantine facilities are available at the quarantine stations in Delhi, Kolkata, Chennai and Mumbai ports. However a few activities are also undertaken in Hyderabad, Bangalore and Amritsar as these stations do not have the facility to quarantine live animals.

Chile 18:

In paragraph 122 it is stated that "As in the case of Imports of animal products, imports of plant and plant products may only enter the Indian Territory through designated ports."

Question: Chile would appreciate more information on the criteria used the designation of these ports.

Reply: For import of plant and plant products, entry points are notified keeping in view the demand from traders (exporters/importers), expected trade volume and availability of trained manpower.

CHINA

China 1:

REPORT BY THE SECRETARIAT

SECTION I: ECONOMIC ENVIRONMENT: (2) RECENT ECONOMIC DEVELOPMENTS: Paragraph 5

"The IMF estimates India's GDP growth potential to be some 8.5% per year; the authorities consider the post global crisis growth potential to be of some 8%. Achieving this in a context of a lesser reliance on public consumption and investment will imply boosting private investment, which, over the medium run will require a simplification of the business and regulatory environment, as well as facing the challenges of improving infrastructure to overcome the current shortcomings."

Does India agree with the conclusion contained in the latter part of this paragraph? If yes, how does India plan to boost private investment and to improve infrastructure?

Reply: The Indian economy was among the first economies to recover from the 2008 09 global economic and financial crisis. After recovering to a growth rate of 8.0% in 2009 10, it has registered a growth of 8.5% in 2010 11. Prior to the global crisis the Indian economy had averaged growth in real GDP close to 9.0%. The OECD's Second Economic Survey of India (June 2011) places India's growth potential close to 9%. Long run GDP growth would be around that and accordingly, the Twelfth Five Year Plan is likely to target 9% plus growth.

The Government is in the process of implementing several real and financial sector reforms and this will further improve the economic environment in the country. The regulatory architecture is being made more amenable for sustainable growth. The policy environment has been made more conducive for the spread of public private partnership in the infrastructure sector.

China 2:

REPORT BY THE SECRETARIAT

SECTION II: TRADE POLICY REGIME: FRAMEWORK AND OBJECTIVES: (2) TRADE POLICY FORMULATION AND IMPLEMENTATION: Paragraph 14

"India considers trade policy as an instrument to attain its overall economic policy objectives of growth, industrialization, development, and self sufficiency. In its 2004 09 Foreign Trade Policy (FTP), India highlighted the need to expand trade, setting two objectives: (i) to double India's share of global merchandise trade within five years; and (ii) to use trade expansion as a policy to promote economic growth and employment generation. In the context and aftermath of the global economic and financial crisis, India has sought to arrest and reverse the declining trend of exports, and to provide additional support especially to sectors hit badly by the global recession, as asserted in the 2009 14 FTP. India's short term objective, in accordance with the latest FTP, is to achieve annual export growth of 15%; the long term objective is to accelerate the export growth rate to 25% per annum and double India's share in global trade by 2020. In order to meet these objectives, India implements a mix of policies including tax incentives, export promotion (Chapter III(3)(vii), (viii), and (ix)), and credit facilitation (Chapter IV(3)(ii)). The Government is attempting to improve the infrastructure to enhance exports, bringing down transaction costs, and providing full refunds of all indirect taxes and levies. In the latest Budget, the authorities have further expressed the need for supporting wider export market and product diversification."

Has India done any assessment regarding how it has achieved the two objectives set in the 2004 2009 FTP? In order to further achieve the 2009 2014 FTP objectives, are there any useful experiences to draw from the implementation of the 2004 2009 FTP?

Reply: Despite being hit by the global economic recession, India's exports witnessed robust growth to reach a level of US$168 billion in 2008 09 from US$63 billion in 2003 04. India's share of global merchandise trade was 0.83% in 2003; it rose to 1.45% in 2008 as per WTO estimates. The share of global commercial services export was 1.4% in 2003 which rose to 2.8% in 2008. On the employment front, studies have suggested that nearly 14 million jobs were created directly or indirectly as a result of augmented exports in the last five years. It is on the basis of these experiences that India has decided that for the FTP (2009 2014), the Government would provide a policy environment through a mix of policy measures including fiscal incentives, institutional changes, procedural rationalization, enhanced market access across the world and diversification of export markets.

China 3:

REPORT BY THE SECRETARIAT

SECTION II: TRADE POLICY REGIME: FRAMEWORK AND OBJECTIVES: (4) BUSINESS ENVIRONMENT: Paragraph 26

"At least 12 procedures are required to set up a business in India (Table II.6). These apply in most of India but may vary due to differences in rules at the state level. The World Bank estimates that it takes 29 days at a cost of some 56.54% of GNI per capita to start a business in India. In 2010, India ranked 165 out of 183 economies for ease of starting a business, up from 168 in 2009."

Will the Indian government further simplify the procedure for setting up a business in India? If yes, what kind of specific measures are under consideration?

Reply: The report of the World Bank is not representative of the business environment across the country. The sample size and the statistical universe are very limited in size. Government is reviewing the FDI policy and regulations, on a continuing basis, with a view to their further liberalisation and increasing their investor friendliness.

China 4:

REPORT BY THE SECRETARIAT

SECTION II: TRADE POLICY REGIME: FRAMEWORK AND OBJECTIVES: (4) BUSINESS ENVIRONMENT: Paragraph 39

"Most sectors are at least partially open to FDI, subject to a cap and specific conditions (Table AII.4). However, the number of sectors/activities in which FDI is prohibited increased during the review period (Table II.8)…"

Could the Indian delegation please explain the rationale behind this increased prohibition on the number of sectors/activities open to FDI?

Reply: The list of sectors prohibited under both the Foreign Exchange Management Act and FDI Policy as extant at the time of the earlier review, was subsequently consolidated under the FDI policy, which is available in the public domain. Only one additional sector i.e. "manufacturing of cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes" has since been added. This has aligned the policy with Government's earlier decision of not granting industrial licenses for fresh capacity in the sector.

China 5:

REPORT BY THE SECRETARIAT

SECTION II: TRADE POLICY REGIME: FRAMEWORK AND OBJECTIVES: (4) BUSINESS ENVIRONMENT: Paragraph 41

"Despite its generally open policy thrust, India restricts investment from companies or nationals of certain countries. …"

Could the Indian delegation please explain the rationale behind the restrictions imposed on companies or nationals of certain countries? How are these countries identified?

Reply: The policy on FDI has been steadily liberalised and is reviewed from time to time, with a view to increasing its investor friendliness. In keeping with this thrust towards an increasingly open policy environment, country specific restrictions on investment, which had earlier found a place under the policy on FDI, have also been gradually reduced over time.

China 6:

REPORT BY THE SECRETARIAT

SECTION III: TRADE POLICIES AND PRACTICES BY MEASURE: (2) MEASURES DIRECTLY AFFECTING IMPORTS: Paragraph 86

"…Between January 2006 and 31 December 2010, India initiated 209 anti dumping investigations against 34 trading partners, compared with 176 reported in its last Review (Chart III.4). The products involved included chemicals and products thereof, plastics and rubber and products thereof, base metals, and textiles and clothing…"

Could the Indian delegation please comment on the factors for the surge of anti dumping investigations initiated during this review period?

Reply: Anti dumping investigations are carried out strictly as per India's Customs Tariff (identification, assessment and collection of anti dumping duty on dumped articles and for determination of injury) Rules, 1995 as amended and in conformity with the provisions of the WTO Agreement on implementation of Article VI of the GATT 1994.

China 7:

REPORT BY THE SECRETARIAT

SECTION III: TRADE POLICIES AND PRACTICES BY MEASURE: (2) MEASURES DIRECTLY AFFECTING IMPORTS: Paragraph 119

"In August 2006, the Central Government passed the Food Safety and Standards (FSS) Act of 2006 to consolidate separate laws, and to establish the Food Safety and Standards Authority of India (FSSAI). According to the authorities, this law has been notified (Chapter II(2)(i)). However, the rules and regulations to operationalize this Act have not been notified yet. Once the Food Safety and Standards Regulations, 2010 and Rules 2011 are notified, the Food Safety and Standards Act 2006 will be fully implemented and will repeal some of the separate laws."

When are the rules and regulations to operationalize the FSS Act expected to be notified?

Reply: Food Safety and Standards Rules 2011 and Food Safety and Standards Regulation, 2011 were notified vide Gazette Notification dated on 5 May 2011 and 1 August 2011 respectively by Government of India and are available on FSSAI website: fssai.gov.in. The FSS Act came into effect from 5 August 2011.

China 8:

REPORT BY THE SECRETARIAT

SECTION III: TRADE POLICIES AND PRACTICES BY MEASURE: (4) MEASURES AFFECTING PRODUCTION AND TRADE: Paragraph 219

"India became an observer to the WTO Agreement on Government Procurement in February 2010. According to the authorities, reforms to date have moved India towards a more transparent and competitive procurement framework. …"

Does India have a timetable with regard to formally starting the process of becoming a Party to the GPA?

Reply: Issue of India's accession to GPA is under examination. At present, a firm commitment on this issue is not feasible.

China 9:

Report by the Secretariat (WT/TPR/S/249): II. TRADE POLICY REGIME: FRAMEWORK AND OBJECTIVES: (4) Investment Regime: Paragraph 35:

"Since 1 April 2010, foreign direct investment (FDI) has been regulated by the Consolidated FDI Policy issued by the Department of Industrial Policy and Promotion (DIPP)."

"Sectors not listed in the Policy are 100% open to FDI under the automatic route subject to applicable laws, rules, and security conditions."

Question: Please explain whether this policy is a simple alternative or a major policy adjustment. Please explain what the automatic route is.