India Afghanistan Free Trade Agreement

PREFERENTIAL TRADE AGREEMENT

BETWEEN

THE REPUBLIC OF INDIA

AND

THE TRANSITIONAL ISLAMIC STATE OF AFGHANISTAN

PREAMBLE

The Government of the Republic of India and The Transitional Islamic State of Afghanistan, (hereinafter referred to as the "Contracting Parties"),

CONSIDERING that the expansion of their domestic markets, through economic integration, is a vital prerequisite for accelerating their processes of economic development.

BEARING in mind the desire to promote mutually beneficial bilateral trade.

CONVINCED of the need to establish and promote free trade for strengthening intra-regional economic cooperation and the development of national economies.

FURTHER RECOGNISING that progressive reductions and elimination of obstacles to bilateral trade through a bilateral preferential trading arrangement (hereinafter referred to as "The Agreement") would contribute to the expansion of world trade.

HAVE agreed as follows:

Article I

Objectives

1. The Contracting Parties shall establish a Preferential Trading Arrangement in accordance with the provisions of this Agreement.
    
2. The objectives of this Agreement are:
   1. To promote through the expansion of trade the harmonious development of the economic relations between India and Afghanistan.
       
   2. To provide fair conditions of competition for trade between India and Afghanistan.
       
   3. In the implementation of this Agreement the Contracting Parties shall pay due regard to the principle of reciprocity.
       
   4. To contribute in this way, by the removal of barriers to trade, to the harmonious development and expansion of world trade.

Article II

Definitions

For the purpose of this agreement:

1. "Tariffs" means basic customs duties included in the national schedules of the Contracting Parties;
    
2. "Products" means all products including manufactures and commodities in their raw, semi-processed and processed forms.
    
3. "Preferential Treatment" means any concession or privilege granted under this Agreement by a Contracting Party through the progressive reduction and/or elimination of tariffs on the movement of goods.
    
4. "The Committee" means the Joint committee referred to in Article XI.
    
5. "Serious injury" means significant damage to domestic producers, of like or similar products resulting from a substantial increase of preferential imports in situations which cause substantial losses in terms of earnings, production or employment unsustainable in the short term. The examination of the impact on the domestic industry concerned shall also include an evaluation of other relevant economic factors and indices having a bearing on the state of the domestic industry of that product.
    
6. "Threat of serious injury" means a situation in which a substantial increase of preferential imports is of a nature so as to cause "Serious injury" to domestic producers, and that such injury, although not yet existing is clearly imminent. A determination of threat of serious injury shall be based on facts and not on mere allegation, conjecture, or remote or hypothetical possibility.
    
7. "Critical circumstances" means the emergence of an exceptional situation where massive preferential imports are causing or threatening to cause "serious injury" difficult to repair and which calls for immediate action.

Article III

Elimination of Tariffs

The Contracting Parties hereby agree to establish a Preferential Trading Arrangement for the purpose of free movement of goods between their countries through reduction of tariffs on the movement of goods in accordance with the provisions of Annexures A & B which shall form an integral part of this Agreement.

Article IV

General Exceptions

Nothing in this Agreement shall prevent any Contracting Party from taking action and adopting measures, which it considers necessary for the protection of its national security, the protection of public morals, the protection of human, animal or plant life and health, those relating to importation or exportation of gold and silver, the conservation of exhaustible natural resources and the protection of national treasures of artistic, historic and archaeological value.

Article V

National Treatment

Both Contracting Parties agree to accord to each others products imported into their territory, treatment no less favorable than that accorded to like domestic products in respect of internal taxation and in respect of all other domestic laws and regulations affecting their sale, purchase, transportation, distribution or use.

Article VI

State Trading Enterprisess

1. Nothing in this Agreement shall be construed to prevent a Contracting Party from maintaining or establishing a state trading enterprise.
    
2. Each Contracting Party shall ensure that any state enterprise that it maintains or establishes acts in a manner that is not inconsistent with the obligations of the Contracting Parties, under this Agreement and accords non-discriminatory treatment in the import from and export to the other Contracting Party.

Article VII

Rules of Origin

1. Products covered by the provisions of this Agreement shall be eligible for preferential treatment provided they satisfy the Rules of Origin as set out in Annexure C to this Agreement which shall form an integral part of this Agreement.
    
2. For the development of specific sectors of the industry of either Contracting Party, lower value addition norms for the products manufactured or produced by those sectors may be considered through mutual negotiations.

Article VIII

Safeguard Measures

1. If any product, which is the subject of preferential treatment under this Agreement, is imported into the territory of a Contracting Party in such a manner or in such quantities as to cause or threaten to cause, serious injury in the importing Contracting Party, the importing Contracting Party may, with prior consultations except in critical circumstances, suspend provisionally without discrimination the preferential treatment accorded under the Agreement.
    
2. When action has been taken by either Contracting Party in terms of paragraph 1 of this Article, it shall simultaneously notify the other Contracting Party and the Joint Committee established in terms of Article XI. The Committee shall enter into consultations with the concerned Contracting Party and endeavor to reach mutually acceptable agreement to remedy the situation. Should the consultations in the Committee fail to resolve the issue within sixty days, the party affected by such action shall have the right to withdraw the preferential treatment.

Article IX

Domestic Legislation

1. The Contracting Parties shall be free to apply their domestic legislation to restrict imports, in cases where prices are influenced by unfair trade practices including subsidies or dumping.
    
2. The contracting parties undertake to notify at the earliest opportunity, through the competent bodies, of the opening of investigations and preliminary and final conclusions regarding such unfair trade practices that affect reciprocal trade.

Article X

Balance of Payment Measures

1. Notwithstanding the provisions of this Agreement, any Contracting Party facing balance of payments difficulties may suspend provisionally the preferential treatment as to the quantity and value of merchandise permitted to be imported under the Agreement. When such action has taken place, the Contracting Party, which initiates such action shall simultaneously notify the other Contracting Party. 
    
2. Any Contracting Party, which takes action according to paragraph 1 of this Article, shall afford, upon request from the other Contracting Party, adequate opportunities for consultations with a view to preserving the stability of the preferential treatment provided under this Agreement.

Article XI

Joint Committee

1. A Joint Committee shall be established at Ministerial level. The Committee shall meet at least once a year to review the progress made in the implementation of this Agreement and to ensure that benefits of trade expansion emanating from this Agreement accrue to both Contracting Parties equitably. The Committee may set up Sub-Committees and/or Working Groups as considered necessary.
    
2. In order to facilitate cooperation in customs matters, the Contracting Parties agree to establish a Working Group on Customs related issues including harmonisation of tariff headings. The Working Group shall meet as often as required and shall report to the Committee on its deliberations.
    
3. The Committee shall accord adequate opportunities for consultation on representations made by any Contracting Party with respect to any matter affecting the Implementation of the Agreement. The Committee shall adopt appropriate measures for settling any matter arising from such representations within 6 months of the representation being made. Each Contracting Party shall implement such measures immediately.
    
4. The Committee shall nominate one apex chamber of trade and industry in each country as the nodal chamber to represent the views of the trade and industry on matters relating to this Agreement.

Article XII

Consultations

1. Each Contracting Party shall accord sympathetic consideration to and shall afford adequate opportunity for, consultations regarding such representations as may be made by the other Contracting Party with respect to any matter affecting the operation of this Agreement.
    
2. The Committee may meet at the request of a Contracting Party to consider any matter for which it has not been possible to find a satisfactory solution through consultations under paragraph 1 above.

Article XIII

Settlement of Disputes

1. Any dispute that may arise between commercial entities of the Contracting Parties shall be referred for amicable settlement to the nodal apex chambers. Such references shall, as far as possible, be settled through mutual consultations by the Chambers. In the event of an amicable solution not being found, the matter shall be referred to an Arbitral Tribunal for a binding decision. The Tribunal shall be constituted by the Joint Committee in consultation with the relevant Arbitration Bodies in the two countries.
    
2. Any dispute between the Contracting Parties regarding the interpretation and application of the provisions of this Agreement or any instrument adopted within its framework shall be amicably settled through negotiations failing which a notification may be made to the Committee by any one of the Contracting Parties.

Article XIV

Duration and Termination of Agreement

This Agreement shall remain in force until either Contracting Party terminates this Agreement by giving six months written notice to the other of its intention to terminate the Agreement.

Article XV

Amendments

1. The Agreement may be modified or amended through mutual agreement of the Contracting Parties. Proposals for such modifications or amendments shall be submitted to the Joint Committee and upon acceptance by the Joint Committee, shall be approved in accordance with the applicable legal procedures of each Contracting Party. Such modifications or amendments shall become effective when confirmed through an exchange of diplomatic notes and shall constitute an integral part of the Agreement.
    
2. Provided however that in emergency situations, proposals for modifications may be considered by the Contracting parties and if agreed, given effect to through an exchange of diplomatic notes.

Article XVI

(Annexures)

The list of items covered under preferential tariff by the Government of Afghanistan is at Annexure - A and the list of items covered under preferential tariff by the Government of India is at Annexure-B which are integral parts of this Agreement.

Article XVII

Entry into Force

1. The Agreement shall enter into force on the thirtieth day after the Contracting Parties hereto have notified each other that their respective constitutional requirements and procedures have been completed.
    
2. In witness whereof the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
    

Signed at New Delhi on the 6th day of March 2003 in two originals each in Hindi, Dari and English languages, all of them being equally authentic. In case of any divergence in interpretation, the English Text shall prevail.

ANNEXURE - A

THE LIST OF ITEMS WHERE PREFERNTIAL TARIFF IS GRANTED BY THE GOVERNMENT OF AFGHANISTAN

(* Margin of Preference)

ANNEXURE - B

THE LIST OF ITEMS WHERE PREFERNTIAL TARIFF IS GRANTED BY THE GOVERNMENT OF INDIA

(* Margin of Preference)

ANNEXURE - C

RULES OF ORIGIN

1. Short title/commencement:-
These rules may be called the rules of Determination of Origin of Goods under the PTA between Afghanistan and the Republic of India.

2. Application:-
These rules shall apply to products consigned from the territory of either of the Contracting Parties.

3. Determination of Origin :-
No product shall be deemed to be the produce or manufacture of either country unless the conditions specified in these rules are complied with in relation to such products, to the satisfaction of the appropriate Authority.

4. Declaration at the time of importation:-
The importer of the product shall, at the time of importation:

1. make a declaration that the products are the produce or manufacture of the country from which they are imported and such products are eligible for preferential treatment under the Agreement, and
    
2. produce the evidence specified in these rules.

5. Originating products:-

Products covered by the Agreement imported into the territory of a Contracting Party from another Contracting Party which are consigned directly within the meaning of rule 9 hereof, shall be eligible for preferential treatment if they conform to the origin requirement under any one of the following conditions:

1. Products wholly produced or obtained in the territory of the exporting Contracting Party as defined in rule 6; or
    
2. Products not wholly produced or obtained in the territory of the exporting Contracting Party, provided that the said products are eligible under rule 7 or rule 8 read with rule 7. 

6. Wholly produced or obtained:-

Within the meaning of rule 5(a), the following shall be considered as wholly produced or obtained in the territory of the exporting Contracting Party:

1. raw or mineral products extracted from its soil, its water or its seabed;
    
2. vegetable products harvested there;
    
3. animals born and raised there;
    
4. products obtained from animals referred to in clause (c) above;
    
5. products obtained by hunting or fishing conducted there;
    
6. products of sea fishing and other marine products from the high seas by its vessels;
    
7. products processed and/or made on board its factory ships exclusively from products referred to in clause (f) above;
    
8. used articles collected there, fit only for the recovery of raw materials;
    
9. waste and scrap resulting from manufacturing operations conducted there;
    
10. products extracted from the seabed or below seabed which is situated outside its territorial waters, provided that it has exclusive exploitation rights;
     
11. goods produced there exclusively from the products referred to in clauses (a) to (j) above.

7. Not wholly produced or obtained:-

1. Within the meaning of rule 5(b), products worked on or processed as a result of which the total value of the materials, parts or produce originating from countries other than the Contracting Parties or of undetermined origin used does not exceed 50% of the f.o.b. value of the products produced or obtained and the final process of manufacture is performed within the territory of the exporting Contracting Party shall be eligible for preferential treatment, subject to the provisions of clauses (b), (c), (d) and (e) of rule 7 and rule 8.
    
2. Non-originating materials shall be considered to be sufficiently worked or processed when the product obtained is classified in a heading, at the four digit level, of the Harmonised Commodity Description and Coding System different from those in which all the non-originating materials used in its manufacture are classified.
    
3. In order to determine whether a product originates in the territory of a Contracting Party, it shall not be necessary to establish whether the power and fuel, plant and equipment, and machines and tools used to obtain such products originate in third countries or not.
    
4. The following shall in any event be considered as insufficient working or processing to confer the status of originating products, whether or not there is a change of heading:
   1. Operations to ensure the preservation of products in good condition during transport and storage (ventilation, spreading out, drying, chilling, placing in salt, sulphur dioxide or other aqueous solutions, removal of damaged parts, and like operations).
       
   2. Simple operations consisting of removal of dust, sifting or screening, sorting, classifying, matching (including the making-up of sets of articles), washing, painting, cutting up;
       
   3. (i) changes of packing and breaking up and assembly of consignments,

      (ii) simple slicing, cutting and repacking or placing in bottles, flasks, bags, boxes, fixing on cards or boards, etc., and all other simple packing operations. 
       

   4. the affixing of marks, labels or other like distinguishing signs on products or their packaging;
       

   5. simple mixing of products, whether or not of different kinds, where one or more components of the mixture do not meet the conditions laid down in these Rules to enable them to be considered as originating products;
       

   6. simple assembly of parts of products to constitute a complete product;
       

   7. a combination of two or more operations specified in (a) to (f);
       

   8. slaughter of animals.

5. The value of the non-originating materials, parts or produce shall be:

   1. The c.i.f. value at the time of importation of the materials, parts or produce where this can be proven; or
       

   2. The earliest ascertainable price paid for the materials, parts or produce of undetermined origin in the territory of the Contracting Parties where the working or processing takes place.

8. Cumulative rules of origin:-

In respect of a product, which complies with the origin requirements provided in rule 5(b) and is exported by any Contracting Party and which has used material, parts or products originating in the territory of the other Contracting Party, the value addition in the territory of the exporting Contracting Party shall be not less than 30 per cent of the f.o.b. value of the product under export subject to the condition that the aggregate value addition in the territories of the Contracting Parties is not less than 40 per cent of the f.o.b. value of the product under export.

9. Direct consignment:-

The following shall be considered to be directly consigned from the exporting country to the importing country:

1. if the products are transported without passing through the territory of any country other than the countries of the Contracting Parties.
    
2. The products whose transport involves transit through one or more intermediate countries with or without transhipment or temporary storage in such countries; provided that
    
   1. the transit entry is justified for geographical reason or by considerations related exclusively to transport requirements;
       
   2. the products have not entered into trade or consumption there; and
       
   3. the products have not undergone any operation there other than unloading and reloading or any operation required to keep them in good condition.

10. Treatment of packing :-

When determining the origin of products, packing should be considered as forming a whole with the product it contains. However, packing may be treated separately if the national legislation so requires.

11. Certificate of origin:-

Products eligible for a Certificate of origin in the form annexed shall support preferential treatment issued by an authority designated by the Government of the exporting country and notified to the other country in accordance with the certification procedures to be devised and approved by both the Contracting Parties.

12. Prohibitions:-

Either country may prohibit importation of products containing any inputs originating from States with which it does not have economic and commercial relations;

13. Co-operation between contracting parties:-

1. The Contracting Parties will do their best to co-operate in order to specify origin of inputs in the Certificate of origin.
    
2. The Contracting Parties will take measures necessary to address, to investigate and, where appropriate, to take legal and/or administrative action to prevent circumvention of this Agreement through false declaration concerning country of origin or falsification of original documents.
    
3. Both the Contracting Parties will co-operate fully, consistent with their domestic laws and procedures, in instances of circumvention or alleged circumvention of the Agreement to address problems arising from circumvention including facilitation of joint plant visits and contacts by representatives of both Contracting Parties upon request and on a case – by – case basis.
    
4. If either Party believes that the rules of origin are being circumvented, it may request consultation to address the matter or matters concerned with a view to seeking a mutually satisfactory solution. Each party will hold such consultations promptly.

14. Review:-

These rules may be reviewed as and when necessary upon request of either Contracting Party and may be open to such modifications as may be agreed upon.

Notes:

1. Includes mineral fuels, lubricants and related materials as well as mineral or metal ores
    
2. Includes agricultural and forestry products
    
3. "Vessels" shall refer to fishing vessels engaged in commercial fishing, registered in the country of the Contracting Party and operated by a citizen or citizens of the Contracting Party or partnership, corporation or association, duly registered in such country, at least 60 per cent of equity of which is owned by a citizen or citizens and/or Government of such Contracting Party or 75 per cent by citizens and/or Governments of the Contracting Parties. However, the products taken from vessels, engaged in commercial fishing under Bilateral Agreements which provide for chartering/leasing of such vessels and/or sharing of catch between Contracting Party will also be eligible or preferential treatment.
    
4. In respect of vessels or factory ships operated by Government agencies, the requirements of flying the flag of the Contracting Party does not apply.
    
5. For the purpose of this Agreement, the term "factory ship" means any vessel, as defined, used for processing and/or making on board products exclusively from those products referred to in clause (f) of Rule 6.
    
6. Cumulation as implied by Rule 8 means that only products which have acquired originating status in the territory of one Contracting Party may be taken into account when used as inputs for a finished product eligible for preferential treatment in the territory of the other Contracting Party.