(i) all information and documentation necessary to release the goods has been submitted on or prior to arrival of the goods;
(ii) the goods are not subject to physical examination or inspection; and
(iii) the goods are otherwise admissible under the importing Party's laws and regulations;
(b) if applicable and to the extent possible, provide for electronic submission and processing of customs information relating to an import in advance of the arrival of the goods to expedite the release of goods from customs control upon arrival;
(c) endeavour to allow goods to be released without temporary transfer to warehouses or other facilities, to the extent possible, and where consistent with its laws and regulations and customs procedures;
(d) allow for the release of goods prior to the final determination of customs duties, taxes, fees, and charges not determined prior to or promptly upon arrival, provided that the goods are otherwise eligible for release and any security required by the importing Party has been provided. Before releasing the goods, a Party may require that an importer provides sufficient guarantee in the form of a surety, a deposit, or some other appropriate instrument; and
(e) if applicable and to the extent possible, provide for, in accordance with its laws and regulations, clearance of certain goods with a minimum of documentation.
3. If a Party allows for the release of goods conditioned on the provision of a security, that Party shall adopt or maintain procedures that:
(a) ensure that the amount of the security is no greater than that required to ensure that obligations arising from the importation of the goods will be fulfilled;
(b) ensure that the security shall be discharged after that Party's customs authority is satisfied that the obligations arising from the importation of the goods have been fulfilled; and
(c) allow importers to provide security usinga form other than cash, including, in appropriate cases where an importer frequently enters goods, instruments covering multiple entries.
4. Nothing in paragraph 2 or 3 shall:
(a) affect the right of a Party to examine, detain, seize, confiscate or refuse entry of goods, or to carry out post-clearance audits, including in connection with the use of risk management systems; or
(b) prevent a Party from requiring, as a condition for release, the submission of additional information and the fulfilment of non-automatic licensing requirements.
5. With a view to preventing avoidable loss or deterioration of perishable goods, and provided that all regulatory requirements have been met, each Party shall provide for the release of perishable goods from customs control:
(a) under normal circumstances, in the shortest possible time after the arrival of the goods and submission of the information required for release;
(b) in exceptional circumstances, where it would be appropriate to do so, outside the business hours of its customs authority.
6. Each Party shall give appropriate priority to perishable goods when scheduling any examinations that may be required.
7. Each Party shall either arrange or allow an importer to arrange for the proper storage of perishable goods pending their release. Each Party may require that any storage facilities arranged by the importer have been approved or designated by its relevant authorities. The movement of goods to such storage facilities, including authorisations for the operator moving the goods, may be subject to the approval, where required, of the relevant authorities. Each Party shall, where practicable and consistent with its laws and regulations, on the request of the importer, provide for any procedures necessary for release to take place at those storage facilities.
Article 5.6. Risk Management
1. Each Party shall, to the extent possible, adopt or maintain a risk management system for customs control that enables its customs authority to focus its inspection activities on high-risk consignments and expedite the release of low-risk consignments.
2. Each Party shall design and apply risk management in a manner so as to avoid arbitrary or unjustifiable discrimination, or disguised restrictions on international trade.
3. Each Party shall base risk management on the assessment of risk through appropriate selectivity criteria. Such selectivity criteria may include, inter alia, HS code, nature and description of the goods, country of origin, country from which the goods were shipped, value of the goods, compliance record of traders, and type of means of transport.
Article 5.7. Data, Documentation and Automation
Each Party shall endeavour to provide a facility that allows importers and exporters to electronically provide standardised information related to imported goods and export goods at a single-entry point or single window that:
(a) uses international standards with respect to procedures for the release of goods;
(b) makes electronic systems accessible to customs users; (c) allows a customs declaration to be submitted in electronic format;
(d) employs electronic or automated systems for risk analysis and targeting;
(e) implements common standards and elements for import and export data in accordance with the WCO Data Model; and
(f) takes into account, as appropriate, standards, recommendations, models and methods developed by various international organisations such as the WCO, United Nations Centre for Trade Facilitation and Electronic Business, and the WTO.
Article 5.8. Temporary Admission of Goods
1. Each Party shall allow, as provided for in its laws and regulations, goods to be brought into its territory conditionally relieved, totally or partially, from payment of import duties and taxes, if such goods:
(a) are brought into its customs territory for a specific purpose;
(b) have not undergone any change except normal depreciation and wastage due to the use made of them; and
(c) are intended for re-exportation within a specific period.
2. Each Party shall continue to facilitate procedures for the temporary admission of goods traded between the Parties in accordance with its laws and regulations, and international obligations.
Article 5.9. Pre-Arrival Processing
1. Each Party shall adopt or maintain procedures allowing for the submission of documents and other information required for the importation of goods, in order to begin processing prior to the arrival of goods with a view to expediting the release of goods upon arrival.
2. Each Party shall provide, as appropriate, for advance lodging of documents and the other information referred to in paragraph 1 in electronic format for pre-arrival processing of such documents.
Article 5.10. Customs Cooperation
1. The Parties shall, in accordance with their laws, regulations and customs procedures and subject to the availability of resources, encourage cooperation and exchange of information with each other on customs matters.
2. The customs administration of each Party shall assist each other, in accordance with its laws, regulations and customs procedures and subject to the availability of resources, in relation to:
(a) the implementation and operation of this Chapter;
(b) developing and implementing customs best practice and risk management techniques;
(c) simplifying and harmonising customs procedures;
(d) application of the Customs Valuation Agreement;
(e) exchanging information, including information on best practices, relating to customs matters. Such exchanges of information shall be without prejudice to exchanges of information that may take place between the Parties pursuant to the Memorandum of Understanding between the Central Board of Excise and Customs of the Republic of India and the Australian Customs Service on Customs Cooperation and Mutual Administrative Assistance in Customs Matters signed at New Delhi on 06 March 2006, as amended on 18 November 2013; and
(f) such other customs issues as may be mutually determined by the Parties.
Article 5.11. Review and Appeal
1. Each Party shall ensure that any person to whom it issues an administrative decision (1) on a customs matter has the right to:
(a) an administrative appeal to or review by an administrative authority higher than or independent of the official or office that issued the decision; or
(b) ajudicial appeal or review of the decision.
2. Each Party shall ensure that, in a case where the decision on appeal or review under subparagraph 1(a) is not given within the period of time provided for in its laws and regulations or without undue delay, the person has the right to further administrative or judicial appeal or review or any other recourse to a judicial authority in accordance with that Party's laws and regulations.
3. Each Party shall provide a person to whom it issues an administrative decision on the basis of a review or appeal referred to in paragraph 1 with the reasons for the administrative decision, so as to enable such a person to have recourse to appeal procedures where necessary.
Article 5.12. Advance Rulings
1. Each Party shall issue, prior to the importation of a good of the other Party into its territory,a writtenadvance ruling at thewritten requestof an importer in its territory, or an exporter or any person with a justifiable cause to the satisfaction of the respective Party, or a representative thereof, who has submitted a written request containing all necessary information, in the territory of the other Party (each an "applicant") with regard to:
(a) tariff classification;
(b) whether a good is originating in accordance with Chapter 4 (Rules of Origin);
(c) the appropriate method or criteria, and the application thereof, to be used for determining the customs value under a particular set of facts, in accordance with the Customs Valuation Agreement; and
(d) any other mattersas the Party may specify under its domestic advance ruling system.
2. Each Party shall issue an advance ruling as expeditiously as possible and in no case later than 3 months after it receives a request, provided that the applicant has submitted all the information that the receiving Party requires to make the advance ruling. This includes a sample of the good for which the applicantis seeking an advance ruling if requested by the receiving Party. In issuing an advance ruling, the Party shall take into accountthe facts and circumstances that the applicant has provided. For greater certainty, a Party may decline to issue an advance ruling if the facts and circumstances forming the basis of the advance ruling are the subject of administrative or judicial review or where the application is not based on factual information, or does not relate to an intention to import or export. A Party that declines to issue an advance ruling shall promptly notify the applicantin writing, setting out the relevant facts and circumstances, and the basis for its decision to decline to issue the advance ruling.
3. Each Party shall provide that its advance rulings shall take effect on the date that they are issued or on another date specified in the ruling, and remain in effect for at least 3 years provided that the law, facts and circumstances on which the ruling is based remain unchanged.
4. The importing Party may:
(a) modify an advance ruling in such respects as it considers appropriate and as per its laws and regulations or system on advanced ruling, if the ruling was based on incorrect facts or mistake of law;
(b) revoke or find the advance ruling non-binding if there is a change in the material facts or circumstances or law on which the ruling was based; or
(c) revoke the advance ruling from when it was issued if the advance ruling has been obtained by fraud or misrepresentation of facts.
5. Where a Party revokes or modifies an advance ruling, it shall provide written notice to the applicant setting out the relevant facts and the basis for its decision.
6. Neither Party shall apply a revocation, modification, or invalidation retroactively to the detriment of the applicant unless the ruling was based onincomplete, incorrect, inaccurate, false,or misleading information provided by the applicant.
7. Each Party shall endeavour to make publicly available any information on advance rulings which it considers to be of significant interest to other interested parties, taking into account the need to protect commercially confidential information.
8. Each Party shall publish online, at least:
(a) the requirements for the application for an advance ruling, including the information to be provided and the format;
(b) the time period by which it will issue an advance ruling; and
(c) the length of time for which the advance ruling is valid.
9. An advance ruling issued by a Party shall be binding on that Party in respect of the applicant that sought it and on the applicant.
10. Each Party shall provide, upon written request of an applicant, an opportunity to review an advanced ruling, or the decision to revoke, modify or invalidate it (2)
Article 5.13. Joint Technical Subcommittee on Rules of Origin and Customs Procedures and Trade Facilitation
The Joint Technical Subcommittee on Rules of Origin and Customs Procedures and Trade Facilitation established pursuant to Article 4.32 (Joint Technical Subcommittee on Rules of Origin and Customs Procedures and Trade Facilitation â Rules of Origin) shall consider any matters arising under this Chapter.
Chapter 6. SANITARY AND PHYTOSANITARY MEASURES
Article 6.1. Definitions
1. For the purposes of this Chapter:
(a) the definitions set out in Annex A to the SPS Agreement shall apply;
(b) competent authorities mean those authorities within each Party recognised by the national government as responsible for developing and administering sanitary and phytosanitary ("SPS") measures within that Party;
(c) an emergency measure means a sanitary or phytosanitary measure that is applied by the importing Party to the products of the exporting Party to address an urgent problem of human, animal or plant life or health protection that arises or threatens to arise in the Party applying the measure; and
(d) SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures, set out in Annex 1A to the WTO Agreement.
2. The Parties shall take into consideration the terms and definitions of relevant international organisations, such as the Codex Alimentarius Commission ("Codex"), the World Organisation for Animal Health ("OIE") and the International Plant Protection Convention ("IPPC"). In the event of an inconsistency between these terms and definitions and the definitions set out in the SPS Agreement, the definitions set out in the SPS Agreement shall prevail.
Article 6.2. Objectives
The objectives of this Chapter are to:
(a) reaffirm the rights and obligations of both Parties under the SPS Agreement, while supporting its enhanced implementation;
(b) provide a framework to facilitate bilateral trade between the Parties, while protecting human, animal or plant life or health;
(c) enhance transparency and deepen mutual understanding of each Party's regulations and procedures relating to SPS measures, and ensure that such measures do not create unjustified barriers to trade; and
(d) strengthen cooperation, communication and consultation between the Parties.
Article 6.3. Scope
This Chapter applies to all SPS measures of a Party that may, directly or indirectly, affect trade between the Parties.
Article 6.4. Affirmation of the SPS Agreement
1. The Parties affirm their rights and obligations with respect to each other under the SPS Agreement.
2. Nothing in this Chapter shall affect the rights and obligations of each Party under the SPS Agreement.
Article 6.5. Adaptation to Regional Conditions
1. The Parties recognise the concepts of regional conditions, including pest- or disease-free areas and areas of low pest or disease prevalence, as set out in Article 6 of the SPS Agreement, and that the adaptation of SPS measures to recognise regional conditions is an important means of facilitating trade. In developing SPS measures based on regionalisation, the Parties shall take into account the relevant decisions of the WTO SPS Committee and relevant international standards, guidelines and recommendations.
2. The Parties may cooperate on the recognition of regional conditions with the objective of acquiring confidence in the procedures followed by each other for such recognition.
3. When the importing Party establishes or maintains an SPS measure applicable to the exporting Party, the exporting Party may request the importing Party recognise its regional conditions for any relevant pest or disease.
4. When the importing Party has received such a request for recognition of regional conditions from the exporting Party, and has determined that the information provided by the exporting Party is sufficient, it shall initiate an assessment within a reasonable period of time. If the exporting Party so requests, the importing Party shall also explain the process it undertakes for recognising regional conditions.
5. Reasonable access shall be given, upon request, to the importing Party for inspection, testing and other relevant procedures for the assessment.
6. On request of the exporting Party, the importing Party shall inform the exporting Party of the status of the assessment.
7. When the importing Party adopts a measure that recognises specific regional conditions of the exporting Party, the importing Party shall communicate that decision to the exporting Party in writing and implement the measures within a reasonable period of time.
8. If the evaluation of the evidence provided by the exporting Party does not result in a decision by the importing Party to recognise the regional conditions of the exporting Party the importing Party shall provide the exporting Party the rationale for its decision in writing within a reasonable period of time.
9. If there are circumstances that result in a Party modifying or revoking a determination recognising regional conditions of the other Party, and if the other Party requests, the Parties shall cooperate to assess whether the determination can be reinstated.
Article 6.6. Equivalence
1. The Parties shall strengthen cooperation on equivalence, in accordance with the SPS Agreement taking into account relevant decisions of the WTO SPS Committee and relevant international standards, guidelines and recommendations, in order to facilitate trade between them.
2. Where a Party has concluded an equivalence determination of the other Partyâs measures, that Party shall notify the other Party in writing. If it does not recognise the other Party's measures as equivalent, it shall provide reasons for that determination.
3. The importing Party shall recognise the equivalence of an individual SPS measure, group of measures or systems if the exporting Party objectively demonstrates to the importing Party that its measure achieves the same level of protection as the importing Party's measure or that its measure has the same effect in achieving the objective as the importing Party's measure.
4. In determining equivalence, the importing Party shall take into account available knowledge, information and experience as well as the regulatory competence of the exporting Party.
5. A Party shall, upon request, enter into consultation with the aim of achieving bilateral recognition arrangements of equivalence on the specified SPS measures.
6. As part of consultations on request by the exporting Party, the importing Party shall explain and provide:
(a) the rationale and objective of its measures; and
(b) the specific risks its measures are intended to address.
7. The exporting Party shall provide necessary information in order for the importing Party to commence an equivalence assessment. Once the assessment commences, the importing Party shall upon request without undue delay explain the process and plan for making an equivalence determination.
8. The consideration by a Party of a request from the other Party for recognition of equivalence of its measures with regard to a specific product, or group of products, shall not be in itself a reason to disrupt or suspend ongoing imports from the Party of the product or products in question.
9. When the importing Party has concluded its assessment, it shall notify the equivalence determination to the exporting Party in writing. If an equivalence determination does not result in recognition by the exporting Party, the importing Party shall provide the exporting Party with the rationale for its decision.
10. If a Party proposes to adopt, modify, amend, repeal or remove an SPS measure which it considers may have a significant impact on trade in goods that are the subject of an equivalence arrangement between the Parties, it shall notify the other Party and indicate its likely effect on recognition of equivalence.
11. Following such a notification from the exporting Party, the importing Party shall continue to apply its determination of equivalence unless it considers that the equivalence arrangement is no longer sufficient to meet its appropriate level of protection. If the importing Party considers that equivalence can be maintained under new or revised conditions it shall consult with the exporting Party on their development.
12. If the importing Party considers that equivalence cannot be maintained and it can no longer apply its determination of equivalence, the exporting Party may request consultations with the aim of once again achieving a bilateral recognition arrangement of equivalence, consistent with the provisions of this Article.
13. The final determination of equivalence rests with the importing Party which shall adhere to international guidelines, standards and recommendations.
Article 6.7. Contact Points and Competent Authorities
1. By the date of entry into force of this Agreement, each Party shall:
(a) designate a contact point to facilitate communication and the exchange of information between the Parties on matters arising under this Chapter; and
(b) provide the other Party with a list of its competent authorities responsible for developing and administering SPS measures within its territory, including a description of their structure, organisation and division of functions and responsibilities.
2. Each Party shall notify the other Party of any changes to its contact point and significant changes in the structure, organisation and division of responsibility within its competent authorities.
Article 6.8. Transparency and Exchange of Information
1. Each Party shall, in accordance with the transparency obligations contained in the SPS Agreement, notify the contact point of the other Party of any new or revised SPS measures that may affect trade between the Parties, including emergency measures imposed to protect human, animal or plant life or health.
2. When the information referred to in paragraph 1 has been made available via notification to the WTO's Central Registry of Notifications, or to the relevant international organisation, the requirements in paragraph 1 shall be deemed to have been fulfilled.
3. A Party shall respond within a reasonable period of time to any request for information or clarification from the other Party regarding its SPS measures, including with respect to model certificates or attestations.
4. In implementing this Chapter, both Parties shall take into account relevant decisions of the WTO SPS Committee and international standards, guidelines and recommendations.
5. A Party may request information from the other Party on any matter arising under this Chapter, or any other SPS measure of the other Party affecting trade between the Parties, where such information has not already been included in a notification to the SPS Committee or has not otherwise been made publicly available. A Party that receives a reasonable request for information shall provide available information to the requesting Party within a reasonable period of time.
6. If the importing Party determines that there is a significant and sustained or recurring pattern of non-conformity with a sanitary or phytosanitary measure, the importing Party shall notify the exporting Party of the non-conformity.
7. Unless urgent problems of human, animal or plant life or health protection arise, threaten to arise, or the measure is of trade facilitating nature, the Party proposing an SPS measure shall normally allow at least 60 days for the other Party to provide written comments on the proposed measure after it makes a notification to the WTO. If feasible and appropriate, the Party proposing the measure may allow more than 60 days. The Party proposing the measure shall consider any reasonable request from the other Party to extend the comment period.
Article 6.9. Certification
1. The Parties shall work cooperatively to promote the implementation of paperless trade through electronic SPS certification.
2. Where certification is required for trade in a product, the importing Party shall ensure that such certification is applied, in meeting its SPS objectives, only to the extent necessary to protect human, animal or plant life or health.
3. Each Party shall apply certification requirements in accordance with relevant provisions of Annex C of the SPS Agreement and take into account the relevant decisions of the WTO SPS Committee, and international standards, guidelines, or recommendations.
4. The importing Party shall accept certificates issued by the competent authorities of the exporting Party that are in compliance with the regulatory requirements of the importing Party.
Article 6.10. Audits
1. Each Party shall undertake audits in accordance with relevant provisions of Annex C of the SPS Agreement and take into account the relevant decisions of the WTO SPS Committee, and international standards, guidelines, or recommendations.
2. An audit shall be systems-based and conducted to assess the effectiveness of the regulatory controls of the competent authorities of the exporting Party to provide the required assurances and meet the SPS measures of the importing Party.
3. Prior to the commencement of an audit, the importing Party and the exporting Party shall exchange information and endeavour to agree on the objectives and scope of the audit and other matters related specifically to the commencement of an audit.
4. The importing Party shall provide the exporting Party with an opportunity to comment on the findings of an audit and take any such comments into account before making its conclusions and taking any action. The importing Party shall provide a report or its summary, setting out its conclusions in writing, to the exporting Party within a reasonable period of time. The importing Party shall inform the exporting Party if a request is required to provide such report or summary.
5. Measures taken by the importing Party as a consequence of its audit shall be supported by objective evidence and data, take into account the importing Party's knowledge of, relevant experience with, and confidence in, the exporting Party, and shall not be more trade restrictive than necessary to achieve the importing Party's appropriate level of protection. Any such objective evidence and data shall be provided to the audited Party, on request.
6. Any costs incurred by the auditing Party shall be borne by the auditing Party, unless the Parties agree otherwise.
7. The auditing Party and the audited Party shall each ensure that procedures are in place to prevent the disclosure of confidential information acquired during the auditing process.