World Trade Organization Organisation Mondiale du Commerce Organización Mundial del Comercio

US FQ 10:

(on US 30)

Report by the Secretariat (WT/TPR/S/249):III. TRADE POLICIES AND PRACTICES BY MEASURE: (2) Measures Directly Affecting Imports: (i) Customs procedures: Page 38, Paragraph 14:

For imports of non-insecticidal boric acid, India requires that import license applications specify the precise end-use and end-user of the boric acid. The report further states that if these requirements are not fulfilled, imports are to be confiscated and the importer may be fined and/or imprisoned. We have noted our longstanding concerns about the negative impact that such a requirement has on the ability of intermediaries to import non-insecticidal boric acid into India. In what other circumstances can an importer be imprisoned in connection with an importation? Are there process rights which are afforded to an importer facing imprisonment in connection with an importation? Please provide the complete citation to India's legislation on such matters.

Furthermore, please explain why end-user information is necessary for this particular product? Are domestic producers of boric acid required to specify the end-user prior to selling boric acid domestically?

How does this requirement ensure that the good is not being misused once imported into India? An instruction published by the Central Board of Excise and Customs on 22 June 2011 (F.No.401/101/2011-Cus.lll) appears to indicate that the clearance of products for household or non-insecticidal purposes should not be subject to the requirement of an import permit from CIB&RC. How then, does India justify the continued documentary requirements for non-insecticidal boric acid, which appears contrary to the Government's own interpretation of the Insecticides Act and appears intended to restrict legitimate trade of the product?

Reply: Boric acid can be used for multiple purposes. The restriction is for regulating it when used as insecticide. Information about end-use for import of boric acid is necessary to ensure that boric acid imported for non-insecticidal purposes does not get diverted to improper/un regulated use. There is a corresponding requirement for domestic producers of boric acid requiring declaration of particulars regarding quantum of boric acid manufactured and sold by them to ascertain/verify its end-use. There is no special stipulation for boric acid only as the requirements relating to such permit and reporting apply to all dual or multi use insecticides. Section 29 of the insecticides act 1968 enumerates the offences for which punishment of imprisonment (or fine or both) has been provided for. There are several Government enforcement/intelligence agencies which keep a vigil on misuse whether it is imported or diverted from local market. The customs circular dated 22.6.2011 only clarifies the provisions of section 38 (exemption) of the insecticides act, 1968 and is not contrary.

U.S. Follow-Up Question: For imports of non-insecticidal boric acid, India requires that import license applications specify the precise end-use and end-user of the boric acid. The report states that if these requirements are not fulfilled, imports are to be confiscated and the importer may be fined and/or imprisoned. As asked in our initial question, are there other circumstances in which an importer could be imprisoned in connection with an importation? Are there process rights which are afforded to an importer facing imprisonment in connection with an importation? Please provide the complete citation to India's legislation on such matters.