(iv) the coverage of the proposed verification visit, including reference to the good subject to the verification; and
(v) the names and designation of the officials performing the verification visit;
(c) an importing Party shall obtain the written consent of the producer or exporter whose premises are to be visited;
(d) when a written consent from the producer or exporter is not obtained within 30 days from the date of receipt of the notification pursuant to subparagraph (a), the notifying Party may deny preferential tariff treatment to the good referred to in the Certificate of Origin that would have been subject to the verification visit; and
(e) the Issuing Authorities receiving the notification may postpone the proposed verification visit and notify in writing the customs authority of the importing Party of such intention within 15 days from the date of receipt of the notification. Notwithstanding any postponement, any verification visit shall be carried out within 60 days from the date of such receipt, or for such longer period as the Parties may agree.
6. For the purposes of paragraph 1(c), an exporter or producer of a good will identify any observers to be present during such verification visit by the customs authority of the importing Party.
7. The importing Party conducting the verification visit shall provide the producer or exporter and importer whose goods are subject to the verification and the relevant issuing authority with a written determination of whether or not the subject good qualifies as an originating good. Any suspended preferential tariff treatment shall be reinstated upon the determination that goods qualify as originating goods.
8. The producer or exporter shall be allowed 30 days from the date of receipt of the written determination pursuant to paragraphs 4 and 7 to provide written comments or additional information regarding the eligibility of the good for preferential tariff treatment. If the good is still found to be non-originating, the final written determination shall be communicated to the Issuing Authorities within 30 days from the date of receipt of the comments or additional information from the producer or exporter.
9. The verification visit process, including the actual visit, the determination and its notification of whether the subject good is originating or not shall be carried out and its results shall be communicated to the Issuing Authorities within a maximum period of six months from the first day when the verification visit was conducted. While the process of verification is undertaken, Article 4.11.1(c) shall be applied.
10. The customs authority of a Party may, prior to the verification visit, request the importer of the good to voluntarily obtain and supply written information provided by the exporter or producer of the good in the territory of the other Party. The failure of the importer to obtain and supply such information will not be considered as a failure of the exporter or producer to supply the information, or as a ground for denying preferential tariff treatment.
Article 4.13. VERIFICATION OF MATERIALS THAT ARE USED IN THE PRODUCTION OF THE GOOD
1, Where the customs authority of a Party, in conducting a verification of origin of a good imported into its territory under Articles 4.11 and 4.12, conducts a verification of the origin of a material that is used in the production of the good, the verification of the material may be conducted in accordance with the procedures set out in Article 4.12.1.
2. The customs authority of a Party may consider the material to be non-originating in determining whether the good is an originating good where the producer or supplier of that material does not allow the customs authority access to information required to make a determination of whether the material is an originating material by the following or other means:
(a) denial of access to its records;
(b) failure to respond to a verification questionnaire; or
(c) refusal to consent to a verification visit within 30 days of receipt of notification under Article 4.12.5(d) as made applicable by Article 4.12.1.
3. A Party will not consider a material that is used in the production of a good to be a non-originating material solely on the basis of postponement of a verification visit under Article 4.12.5(e) as made applicable by paragraph 1.
4. Communications under Articles 4.11 through 4.13 between the Parties shall be in the English language.
Article 4.14. DENIAL OF PREFERENTIAL TARIFF TREATMENT
1. Except as otherwise provided for in this Chapter, the importing Party may deny claim for preferential tariff treatment or recover unpaid duties in accordance with its laws and regulations, where:
(a) the good does not meet the requirements of Chapter Three (Rules of Origin);
(b) the exporter, producer or importer of the good that is required to maintain records or documentation under Article 4.10 fails to maintain records or documentation relevant to determining the origin of the good or denies access to the records or documentation;
(c) the importer, exporter or producer fails to provide information that the Party requested pursuant to Articles 4.12.1(a) and 4.12.1(b) demonstrating that the good is an originating good;
(d) after receipt of a written notification for a verification visit pursuant to Article 4.12.5, the exporter or producer in the territory of the other Party prevents such verification visit; or
(e) the Party finds a pattern of conduct indicating that an importer, exporter or producer has provided false or unsupported information or declarations that a good imported into its territory is an originating good.
2. For the purposes of paragraph 1(e), "pattern of conduct" means at least two instances of false or unsupported representations by an exporter or producer of a good resulting in at least two written determinations being sent to that exporter or producer pursuant to Articles 4.12.4 and 4.12.7, that conclude, as a finding of fact, that Certificates of Origin applied by that exporter or producer with respect to identical goods contain false or unsupported representations.
Article 4.15. CONFIDENTIALITY
1. Each Party shall maintain, in accordance with its laws and regulations, confidentiality of the information collected pursuant to this Chapter and shall protect that information from disclosure that could prejudice the competitive position of the persons providing the information. Where the Party receiving the information is required by its laws and regulations to disclose information, that Party shall ensure to notify the Party or persons who provided that information.
2. The confidential information collected pursuant to this Chapter shall not be used for purposes other than the administration and enforcement of determinations of origin, and of customs matters except with the permission of the Party or persons who provided the confidential information.
3. Notwithstanding paragraph 2, information that is obtained pursuant to this Chapter may be used in any administrative, judicial or quasi-judicial proceedings instituted for failure to comply with customs-related laws and regulations implementing Chapter Three (Rules of Origin) and this Chapter. The Party or persons who provided the information will be notified in advance of such use.
Article 4.16. PENALTIES
1. Each Party shall maintain measures imposing criminal, civil or administrative sanctions for violations of its laws and regulations relating to this Chapter.
2. When it is suspected that fraudulent acts in connection with the Certificate of Origin have been committed, the Issuing Authorities concerned shall cooperate in the action to be taken in the territory of the respective Party against the persons involved.
Article 4.17. REVIEW
After five years from the date of entry into force of this Agreement, the Parties shall examine and revise, if deemed necessary, the system of the Certificate of Origin including certification completed and signed by the exporter or producer and other procedures under this Chapter.
Article 4.18. UNIFORM REGULATIONS/RULES
1. The Parties shall establish and implement, through their respective laws, regulations or administrative policies, by the date of entry into force of this Agreement, Uniform Regulations/Rules regarding the interpretation, application and administration of Chapter Three (Rules of Origin) and this Chapter.
2. Each Party shall implement any modification of or addition to the Uniform Regulations/Rules within such period as the Parties may agree.
Chapter FIVE. TRADE FACILITATION AND CUSTOMS COOPERATION
Article 5.1. OBJECTIVES AND PRINCIPLES
With the objectives of facilitating trade under this Agreement and cooperating in pursuing trade facilitation initiatives on a bilateral basis between Korea and India, both Parties agree to administer their import and export processes for goods traded under this Agreement on principles that:
(a) procedures be simplified and harmonised on the basis of international standards while recognising the importance of balance between compliance and facilitation to ensure the free flow of trade and to meet the needs of governments for revenue and the protection of society;
(b) entry procedures be consistent and transparent to ensure predictability for importers and exporters;
(c) a Party includes consultations with the representatives of its trading community before adopting significant modifications to procedures;
(d) procedures be based on risk assessment principles to focus compliance efforts by promoting effective use of resources; and
(e) the Parties encourage mutual cooperation, technical assistance and the exchange of information, including information on best practices, for the purposes of promoting the application of and compliance with the trade facilitation measures agreed upon under this Agreement.
Article 5.2. RELEASE OF GOODS
1. Each Party shall adopt or maintain simplified customs procedures for the efficient release of goods in order to facilitate trade between the Parties.
2. Pursuant to paragraph 1, each Party shall ensure that its customs authority shall adopt or maintain procedures that:
(a) provide for the release of goods on completion of all formalities in compliance with its laws and regulations;
(b) to the extent possible, provide for advance electronic submission and processing of information before physical arrival of goods to enable the telease of goods on arrival;
(c) provide option to importers to obtain release of imported goods, other than prohibited, controlled or regulated goods, at the place of importation, without transfer to bonded warehouses or other similar facilities; and
(d) in accordance with its laws and regulations, allow importers to temporarily release goods by providing sufficient guarantee in the form of a surety, a deposit, or any other appropriate instrument, covering the ultimate payment of the customs duties, taxes and fees in connection with the importation of the goods.
3. Each Party shall endeavour to adopt and maintain a system under which goods in need of emergency can go through the customs procedures for 24 hours a day including holidays.
4. The Parties recognise that, for certain goods or under certain circumstances, such as goods subject to quota or to health-related or public safety requirements, releasing the goods may require the submission of more extensive information, before or at the time of arrival of the goods so that the customs authority can examine the goods for release.
5. The Parties shall endeavour to ensure that the requirements of their respective agencies related to the import and export of goods are coordinated to facilitate trade, regardless of whether these requirements are administered by an agency or the customs authority on behalf of that agency. In furtherance of this objective, each Party shall endeavour to take steps to harmonise the document filing requirements of its respective agencies with the objective of allowing importers and exporters to present all required documents to one agency.
6. The Parties, through their customs authorities, shall establish means of consultation with their trade and business communities to promote greater cooperation and the exchange of information.
Article 5.3. AUTOMATION
Each Party shall endeavour to use information technology that expedites procedures for the release of goods and shall endeavour to:
(a) make electronic systems accessible to customs users; and
(b) use international standards, including the development of a set of common data elements and processes in accordance with World Customs Organization (hereinafter referred to as "WCO") Customs Data Model and related WCO recommendations and guidelines.
Article 5.4. RISK MANAGEMENT
Each Party shall endeavour to adopt or maintain electronic or automated risk management systems for risk analysis and targeting that enable its customs authority to focus its inspection activities on high-risk goods and that simplify the clearance and movement of low-risk goods.
Article 5.5. EXPRESS SHIPMENTS
Each Party shall endeavour to adopt or maintain expedited customs procedures for express shipments while maintaining appropriate customs control and selection. These procedures shall, to the extent possible:
(a) provide a separate and expedited customs procedures for express shipments, and where applicable, use the World Customs Organization Guidelines for the Immediate Release of Consignments by Customs;
(b) provide for advance electronic submission and processing of information before physical arrival of express shipments to enable their release upon arrival; and
(c) consistent with its laws and regulations, provide simplified documentary requirements for express shipments.
Article 5.6. TRANSPARENCY
1. Each Party shall publish, including on the Internet, its customs laws, regulations and general administrative procedures.
2. Each Party shall designate or maintain one or more inquiry points to address inquiries by interested persons concerning customs matters and shall make available on the Internet information concerning the procedures for making such inquiries.
3. To the extent possible, each Party shall publish in advance any regulations of general application governing customs matters that it proposes to adopt and provide interested persons with the opportunity to comment prior to their adoption.
Article 5.7. REVIEW AND APPEAL
1. Each Party shall provide an easily accessible process for administrative and judicial review or appeal of the decisions taken by its customs authority.
2. Subject to each Party's laws and regulations, any affected person shall have the right to appeal against the decisions taken by its customs authority. In case it is required for reasons of confidentiality, each Party shall provide for submission of the information by the producer or exporter on behalf of the importer directly to the Party conducting the administrative review. Without prejudice to the use of such information in the process of review as per each Party's laws and regulations, the exporter or producer providing the information may ask the Party conducting the administrative review to treat that information as confidential in accordance with Article 4.15 (Confidentiality).
3. Application for review or appeal of the decisions taken by the customs authority of
a Party shall be made in writing and shall be accompanied by all relevant documents.
Article 5.8. ADVANCE RULINGS
1. In accordance with its laws and regulations, each Party shall endeavour to provide, through its customs or other competent authorities, for the expeditious issuance of written advance rulings, prior to the importation of a good into its territory, to an importer in its territory or an exporter or a producer in the territory of the other Party, concerning:
(a) classification of goods;
(b) principles to be adopted for the purpose of determination of value of goods;
(c) determination of origin of goods; or
(d) such other matters as the Parties may agree.
2. Each Party shall adopt or maintain procedures for the issuance of such advance rulings, including the details of the information required to process an application for a tuling.
3. Subject to any confidentiality requirements in its laws and regulations, each Party shall make available to the public, for example, on the Internet, its advance rulings on tariff classification and any other matter as the Parties may agree.
4. To facilitate trade, the Parties shall include in their bilateral dialogue regular updates on changes in their respective laws and regulations on the matters listed in paragraph 1.
Article 5.9. CUSTOMS COOPERATION
1. The Parties undertake to adopt international best practices for trade facilitation, which may include the adoption of advanced customs procedures.
2. The Parties affirm their commitments to the facilitation of the legitimate movement of goods and shall exchange expertise on measures to improve customs techniques, automation and procedures in accordance with this Agreement.
3. The Parties shall commit:
(a) for the purposes of facilitating the flow of trade between them, in customs-related matters regarding the importation, exportation and transit of goods, to pursuing the harmonisation of documentation used in trade and data elements according to international standards;
(b) to intensifying cooperation between their customs laboratories and scientific departments;
(c) to the exchange of customs' personnel between the Parties;
(d) to jointly organising training programmes on customs-related issues;
(e) to the development of effective mechanisms for communicating with the trade and business communities;
(f) to developing verification standards and a framework to ensure that both Parties act in a consistent manner in determining that goods imported into their territories meet the requirements set out in Chapter Three (Rules of Origin);
(g) to the extent practicable, to assisting each other in the tariff classification, valuation and determination of origin of goods, for the purposes of preferential tariff treatment; and
(h) to promoting a strong and efficient regime of intellectual property rights in accordance with their laws and regulations.
4. Each Party, on request, shall notify the other Party, in writing, the classification of a good of the other Party, determined by it. The Parties shall consult to address the discrepancies regarding classification between the Parties.
Article 5.10. CUSTOMS COMMITTEE
1. The Parties agree to establish a Customs Committee to address any customs-related issues for:
(a) the uniform interpretation, application and administration of Chapter Three (Rules of Origin), Chapter Four (Origin Procedures), this Chapter and Uniform Regulations/Rules;
(b) addressing issues on tariff classification and valuation relating to determinations of origin;
(c) reviewing of rules of origin;
(d) developing detailed guidelines for origin verification procedures to ensure uniform interpretation, application and administration of Articles 4.11 through 4.13 ; and
(e) considering any other customs-related matter referred to it by the customs authority of the Parties or the Parties or Joint Committee.
2. The Customs Committee will meet within one year from the date of entry into force of this Agreement and shall meet thereafter as required and at least once a year, alternately between Korea and India.
3. The Customs Committee shall comprise representatives of customs and other competent authorities from each Party and shall draw up its own rules of procedure at its first meeting.
4. The Customs Committee may formulate resolutions, recommendations or opinions which it considers necessary and report to the Parties or to the Joint Committee.
Article 5.11. CUSTOMS CONTACT POINTS
Each Party shall designate official contact points and provide details thereof to the other Party, with a view to facilitating the effective implementation of this Chapter and other related Chapters. If the matter cannot be resolved through the contact points, the matter shall be referred to the Customs Committee set out in Article 5.10.
Chapter SIX. TRADE IN SERVICES
Article 6.1. DEFINITIONS
For the purposes of this Chapter:
a juridical person Is:
owned by persons of a Party if more than 50 percent of the equity interest in it is beneficially owned by persons of that Party;
controlled by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions; or
affiliated with another person when it controls, or is controlled by, that other person, or when it and the other person are both controlled by the same person;
a service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
aircraft repair and maintenance services means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
commercial presence means any type of business or professional establishment, including through:
(a) the constitution, acquisition or maintenance of a juridical person; or
(b) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
computer reservation system (CRS) services means services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare tules, through which reservations can be made or tickets may be issued;
direct taxes comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation;
financial services means "financial service" as defined in Annex 6-C;
juridical person means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association, cooperative or society ; (1)
juridical person of the other Party means a juridical person which is either:
(a) constituted or otherwise organised under the law of the other Party, and is engaged in substantive business operations in the territory of the other Party, or a non-Party; or
(b) in the case of the supply of a service through commercial presence, owned or controlled by natural or juridical person of the other Party;
measures by Parties affecting trade in services include measures in respect of:
(a) the purchase, payment or use of a service;
(b) the access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally; or
(c) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
monopoly supplier of a service means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
natural person of a Party means a natural person who resides in the territory of the Party or elsewhere and who under its laws:
(a) is a national of that Party; or
(b) has the right of permanent residence in that Party; person means either a natural person or a juridical person; selling and marketing of air transport services mean opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services nor the applicable conditions;
services means all services except services supplied in the exercise of governmental authority;
service consumer means any person that receives or uses a service; service of the other Party means a service which is supplied:
(a) from or in the territory of the other Party, or in the case of maritime transport, by a vessel registered under the laws of the other Party, or by a person of the other Party which supplies the service through the operation of a vessel or its use in whole or in part; or
(b) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of the other Party;
service supplier means any person that supplies or seeks to supply a service (2);
supply of a service includes the production, distribution, marketing, sale and delivery of a service; and
trade in services is defined as the supply of a service:
(a) from the territory of a Party into the territory of the other Party (cross- border);
(b) in the territory of a Party by a person of that Party to a person of the other Party (consumption abroad);
(c) by a service supplier of a Party, through commercial presence in the territory of the other Party (commercial presence); or
(d) by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party (presence of natural persons).