India’s Export Controls: Current Status and Possible Changes on the Horizon
Recent developments in India’s nonproliferation policies could have significant implications for
companies that trade in goods and technologies with potential applications to weapons of mass
destruction (WMD), missiles, and conventional arms (known collectively as “strategic items”). In
an effort to facilitate greater access to advanced technology products (ATP), India is currently
seeking membership in the four main multilateral export control regimes (MECRs) – the Nuclear
Suppliers Group (NSG), Australia Group (AG), Missile Technology Control Regime (MTCR), and
Wassenaar Arrangement (WA). As part of this effort, the Government of India (GOI) has already
begun to take marked steps to align its trade control system with the guidelines and practices
of the regimes, including amending relevant laws, updating its national control list, and
modifying its licensing procedures. This brief will provide an overview of the Indian export
control system, summarize recent developments, highlight areas where India’s national control
list differs from the MECR lists, and identify potential changes to India’s strategic trade control
system that industry might expect in anticipation of India joining the MECRs.
Overview of India’s Export Control System
Legal Authorities
The Foreign Trade (Development and Regulation) Act No. 22 of 1992 or FTDR (as amended by
the FTDR Amendment Act 2010)1 is the principal legal basis for India’s strategic trade control
system. It empowers the GOI to “make provisions for prohibiting, restricting, or otherwise
regulating” all or specified classes of exports or imports upon public notification in the Official
Gazette.1 It further authorizes the Indian government to formulate and amend India’s foreign
trade policy, which the GOI issues in five-year increments and updates annually (Foreign Trade
Policy 2010-2011). The FTDR empowers the Directorate General of Foreign Trade (DGFT),
situated within the Department of Commerce and Industry (DCI), to license the export and
import of items on the Indian Tariff Classification (Harmonized System) or ITC (HS) list. The ITC
(HS) is an 8-digit commodity classification system based on Harmonized System Codes (HScodes) that is used by India to identify all trade-related transactions. The ITC (HS) is divided into
two schedules: Schedule 1 (imports) and Schedule 2 (exports). India’s national dual-use export
control list, the Special Chemicals, Organisms, Materials, Equipment, and Technologies
(SCOMET) list can be found in Appendix 3 of Schedule 2 of the ITC (HS).
1
Certain provisions of the FTDR were amended by the FTDR Amendment Act 2010. These revisions are discussed in
greater detail in the “Recent Developments” section.
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In 2005, the Indian government significantly expanded the scope of its trade controls with the
passage of the Weapons of Mass Destruction and Their Delivery Systems (Prohibition of
Unlawful Activities) Act No. 21 of 2005 (WMD Act). The WMD Act authorizes the GOI to regulate
the export, re-transfer, re-export, transit, and transshipment2 of any items related to the
development, production, handling, operation, maintenance, storage, or dissemination of a
WMD or missile delivery device.3 It also established a catch-all control that restricts exports of
non-listed items destined for a WMD end-use, and it provided a rudimentary legal basis to
regulate technology transfers.
Additional authorities establish controls on trade in other sensitive items such as firearms,
explosives, nuclear substances, and chemicals designated in the Chemical Weapons Convention
(CWC):
 The Atomic Energy Act, 1962 prohibits the export and import of designated substances,
equipment, plants designed for the production, development, and use of atomic energy or
related research, and radioactive substances, unless the transaction is licensed by GOI
authorities.4
 Notification on the Schedule of prescribed substances under the Atomic Energy Act, 1962
(20 January 2006) denotes those goods and technologies that are subject to licensing by
India’s Department of Atomic Energy (DAE) under the Atomic Energy Act.
 Resolution No. AEA/27(1)/2005-ER, Guidelines for Nuclear Transfers (Exports) supplements
the Atomic Energy Act by prohibiting the export of prescribed substances, equipment, or
related technology to any country for the development of or use in a nuclear explosive
device or in instances when there is an unacceptable risk of diversion for the development
or use of a nuclear explosive device or acts of nuclear terrorism.5 The guidelines also
impose restrictions on re-transfers of controlled nuclear items to anyone other than the
end-user of record.6
 The Chemical Weapons Convention (CWC) Act of 2000 prohibits the export and import of
designated toxic chemicals or precursor substances unless the activity is conducted in
accordance with relevant laws. It requires entities that wish to engage in activities involving
CWC-listed chemicals to register with the Indian government.7
 The Arms Act of 1959 requires entities seeking to possess, manufacture, sell, or transfer
firearms to obtain a license from the GOI,8 and it empowers Indian officials to restrict or
prohibit the transport of arms through the country. This includes transshipment activities9
(the offloading of cargo from one transport and loading of it onto another.)
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Scope of Control
Exports
The FTDR defines an export as “taking out of India any goods, technologies, or services by land,
sea or air.” Goods, technologies, and services subject to export licensing requirements are listed
in India’s national export product control list, known as the Special Chemicals, Organisms,
Materials, Equipment, and Technologies (SCOMET) list. The SCOMET list is located in Appendix
3 of Schedule 2 of the ITC (HS). The Indian government periodically amends the SCOMET list,10
and may designate controlled items in an order or notification published in the Official
Gazette.11 The DGFT last updated the SCOMET list on March 31, 2011 in Notification No. 38 (RE2010)/2009-2014.
The SCOMET list is divided into eight distinct categories (Categories 0 – 7). The DGFT is the
primary licensing agency for most items on the SCOMET list (Categories 1 through 7),12 while
the DAE issues licenses for all the nuclear and nuclear dual-use commodities found in SCOMET
Category 0.13
The SCOMET list does not fully correspond with the lists of the multilateral export control
regimes. Although India controls many of the commodities found on the regime lists, it does
not follow the regimes’ classification conventions or those of the United States or European
Union (EU). Instead, the Indian government employs its own system of classifying controlled
items. The SCOMET list utilizes a two- to -five digit classification scheme that bears some
resemblance to Export Control Classification Numbers (ECCNs), but the categories, specific
numbering of items, and technical descriptions tend to differ from those in the U.S. and EU lists.
In particular, the SCOMET list sometimes has broader, less detailed item descriptions than the
MECR and other control lists. The differences between the SCOMET list and U.S., EU, and
regime lists have resulted in some confusion concerning whether or not the SCOMET list
controls all of the items contained on the NSG, MTCR, AG, and WA lists.14
An analysis of the SCOMET list indicates that it is not yet fully consistent with the Australia
Group Common Control Lists. The SCOMET list contains CWC precursor chemicals (SCOMET
Category 1), biological agents, animal and plant pathogens (SCOMET Category 2), most AG
chemical dual-use items, and a few AG biological dual-use items (SCOMET Category 3).
Nonetheless, several items found on the AG Biological Dual-Use List and at least one item from
the AG Chemical Dual-Use List are notably absent from the SCOMET list and do not appear to
be subject to Indian strategic trade controls. The SCOMET list includes almost all chemical dualuse items with the exception of AG Chemical Dual Use List entry 2.0 (toxic gas monitoring
systems). More importantly, the SCOMET list is nearly devoid of items on the AG Biological Dual
Use List. The SCOMET list does not appear to contain AG Biological dual-use entries such as:
complete P3 or P4 containment facilities; fermenters; centrifugal separators; cross (tangential)
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flow filtration equipment; freeze-drying equipment; aerosol inhalation chambers; and spraying
or fogging systems and components thereof.15
The SCOMET list does not yet regulate the majority of conventional arms and conventional
dual-use goods, technologies, and services listed by the Wassenaar Arrangement. At present,
the SCOMET list contains only a handful of items that correspond with WA dual-use entries.
Among the WA dual-use entries on the SCOMET list are electronics (SCOMET Category 7A),
electronic test equipment (SCOMET Category 7B), and computers (SCOMET Category 7C). The
SCOMET list also contains several WA Munitions List (WAML) items that are scattered
throughout SCOMET Categories 3, 5, and 7.
Conversely, the SCOMET list contains most of the goods and technologies listed in the Annexes
to the MTCR, though the SCOMET technical descriptions are often vaguely worded and do not
meet the same technical specifications set forth by the regime. In fact, there are a number of
major technical discrepancies between the item descriptions on the SCOMET list and the
closest corresponding listings on the MTCR lists. In certain instances, the SCOMET list
consolidates numerous MTCR entries under one heading. In other cases, the SCOMET
description is so open-ended or broad that the item described could conceivably be found on
multiple regime lists.
Finally, the SCOMET list integrates all nuclear-related goods and technologies listed by the NSG.
Category 0 of the SCOMET list corresponds with the goods and technologies designated on the
NSG Trigger List. However, the SCOMET list differs slightly in that it does not specifically identify
certain sub-set items identified on the NSG Trigger List. For example, SCOMET list entry 0B005
(corresponding to NSG Trigger List entries 5.1 thru 5.9) fails to identify the sub-set items listed
according to the NSG. Notwithstanding these omissions or differences, the SCOMET list directly
corresponds with the goods and technologies contained on the NSG Trigger List. Likewise, the
SCOMET list includes all nuclear dual-use items (SCOMET Categories 0, 3 and 4), with technical
descriptions identical to those found on the NSG Dual-Use List
Indian officials evaluate export license applications for SCOMET items on a case-by-case basis.
According to India’s Handbook of Procedures (Vol. 1)16 licensing authorities take the following
factors into consideration when evaluating applications:



The credentials of the end-user, the credibility of declarations of end-use of the item or
technology, the integrity of chain of transmission of item from supplier to end-user, and
the potential of the item or technology, including the timing of its export, to contribute
to end-uses that are not in conformity with India’s national security or foreign policy
goals and objectives, objectives of global nonproliferation, or India’s obligations under
treaties to which it is a party;
The risk that items will fall into the hands of terrorists or non-state actors;
Export control measures instituted by the recipient country;
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


The recipient state’s capabilities and objectives visà-vis weapons and their delivery
systems;
The stated end-use of the item(s); and
The applicability of an export license to relevant bilateral or multilateral agreements to
which India is a party.17
Imports
India’s strategic import licensing system is substantially less developed than its controls on
exports. Presently the Indian government regulates imports of only selected sensitive products
primarily for environmental, health, and safety (EHS) reasons. The Indian government requires
a license for imports of the following sensitive items found on the ITC (HS): 1) nuclear and
radiological materials, including irradiated fuel elements of nuclear reactors, heavy water, other
nuclear fuels, inorganic and organic compounds of rare earth metals, uranium ores, and related
substances;18 2) selected hydrocarbons and derivative substances from countries that are not
parties to the Montreal Protocol; 3) CWC-listed chemicals,19 some organic chemicals, hazardous
chemicals, and pesticides; 4) explosives, including gunpowder and detonators; 5) aircraft and
spacecraft; 6) warships; 7) nickel and articles thereof; and 8) conventional arms and
ammunition.20
The DGFT and designated Regional Authorities (RAs) license imports of most restricted items
found on the ITC (HS),21 but there are some exceptions. The DAE issues licenses for imports of
nuclear materials.22 The CWC National Authority licenses imports of CWC Schedule I
chemicals.23 Multiple district-level and regional authorities are responsible for authorizing
imports of munitions, including small arms and light weapons (SALW).24
Any person importing goods from the United States into India must do so in accordance with
the terms of the Indo-U.S. Memorandum of Understanding on Technology Transfer.25 The
importation of specified capital goods, raw materials, and components from the U.S. is subject
to U.S. export control regulations. U.S. suppliers of such items are required to obtain an export
authorization based on an import certificate issued by the GOI. A trader that wishes to request
an import certificate for goods that are to be imported from the U.S. must complete and submit
an Aayaat Niryaat Form 2C (ANF 2C) also known as an “Import Certificate under Indo-US
Memorandum.” The import certificate is not a substitute for an import license for restricted
items designated in the ITC (HS).26
Technology Transfer
The DGFT is authorized to license and regulate electronic transmissions of strategic
technologies designated on the SCOMET list.27 The WMD Act and the FTDR (as amended) define
“technology” as “any information (including information embodied in software), other than
information in the public domain, that is capable of being used in the development, production,
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or use of any goods or software; or the development of, or the carrying out of, an industrial or
commercial activity or the provision of a service of any kind.”28
Transfers of sensitive technologies – whether listed or restricted under India’s catch-all
provision – are subject to control in India under the following circumstances:
 A person located within India seeks to transfer restricted technologies to a person or a
place outside India;29
 A person who is an Indian citizen or resident located outside India wishes to transfer
restricted technologies to a person or a location which is also outside India,30 and
 An item is exhibited, sold, supplied, or transferred to a foreign entity or a foreigner who
is resident, operating, visiting, studying, or conducting research or business within
Indian territory, airspace, or an Exclusive Economic Zone (EEZ).31
“Catch-All” Control
India’s WMD Act and FTDR (as amended)32 impose restrictions on trade in non-listed items that
appear to be destined for a WMD-relevant end-use. A trader must apply for an export license
from the DGFT, even if the item does not appear on the national control list, if he or she
“knows” that the item is “intended to be used in the design or manufacture of a biological
weapon, chemical weapon, nuclear weapon or other nuclear explosive device, or in their
missile delivery systems.”33 The Indian catch-all control extends to individuals or entities
facilitating the execution of a transaction (brokers and intermediaries), if they are aware that
the transaction in question is related to a prohibited activity.34
End-User Controls
India prohibits transfers to non-state actors or terrorists of any material, equipment, or
technology that could contribute to the development of a WMD.35 India abides by UN Security
Council (UNSC) Resolutions and has enacted export prohibitions against several sanctioned
countries, entities, and terrorists. India prohibits the “direct or indirect” import or export of
designated arms and WMD-related goods and technologies to or from Iran, North Korea, and
Iraq.
India maintains an exporter black list known as the Denied Entities List (DEL), which consists of
parties to which the Indian government previously denied an export license. The DEL is not
publicly available. The Indian government denies licensing privileges to commercial entities that
appear on the DEL as well as the individuals or persons that control these entities.36 The DEL
reportedly contains entities that appear on many of the sanctions and denied parties lists
maintained by the United States Government (USG), the UN, and other countries, as well as
entities that are listed based on Indian inputs. If a company submits an inquiry to DGFT
concerning a particular end-user, DGFT will provide a “yes” or “no” answer regarding the
entity’s status on the DEL.
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When applying for a license, exporters must include, among other things, an End-User
Certificate (EUC) and assurances that the recipient will not re-export or re-transfer the item to
anyone other than the end-user of record.37 Pursuant to the terms and conditions of an export
license (ANF 2E), the Indian government requires an EUC indicating the end product and/or
end-purpose and details on the end-user for the export of SCOMET items.38
The DAE may require additional assurances in order to export certain nuclear-related goods and
technologies. For certain items in Category 0 of the SCOMET list, the DAE may request formal
assurances from the recipient State to certify adequate physical protection and International
Atomic Energy Agency (IAEA) safeguards,39 mitigate the risk of diversion, and ensure the items
will not be used in a nuclear explosive device.40 The assurances are in accordance with the
guidelines set forth by the NSG.
Recent Developments
Over the past several years, the Indian government has focused on strengthening bilateral
relationships and obtaining greater access to high technology goods and services. It has signed
a variety of nuclear agreements with a range of countries in order to expand its growing civil
nuclear capabilities and facilitate bilateral trade in controlled commodities. After receiving a
waiver from the NSG in 2008, India is now seeking full membership in the NSG and the other
multilateral export control regimes, and there appears to be a groundswell of international
support. Indeed, the United States, Germany, Russia, France, and the UK are all advocating
Indian admission and appear committed to ensuring increased strategic trade with India into
the future. India’s broader policy initiatives and bilateral arrangements have prompted
modifications to parts of its strategic trade control system.
In recent months, the GOI has amended and updated the statutory basis for India’s strategic
trade controls and released a new version of its national control list and licensing procedures. In
August 2010, the Indian parliament passed the Foreign Trade (Development and Regulation)
Amendment Act of 20 August 2010 (FTDR Amendment Act 2010). The act incorporated the
provisions of the WMD Act (2005) into the FTDR (1992), which expanded the scope of control
on strategic trade in India. The FTDR Amendment Act 2010 extended the definition of exports
and imports within the FTDR to include “services” and “technologies,” which were previously
identified only in the WMD Act.
India subsequently issued an updated control list and a streamlined application for the export
of SCOMET items. In March 2011, under the authority of the FTDR Amendment Act 2010, the
DGFT released a new version of the SCOMET list in the annexure to DGFT Notification No. 38
(RE-2010)/2009-2014. The DGFT also issued a revised and simplified export license application
form (Aayaat Niryaat Form 2E - ANF 2E) with the release of the “new” control list.
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India’s Multilateral Export Control Regime Membership: Potential Implications for Industry
India’s quest to join the multilateral export control regimes likely will involve further revisions
to its trade controls, and industry should prepare for these possible changes in upcoming
months. If India intends to join the regimes, then it will be necessary for the GOI to implement
all of the regime guidelines into its domestic controls and fully harmonize its national control
list with those of the regimes.
In order to make a more compelling argument to the Wassenaar Arrangement, the Indian
government may expand the scope of its technology transfer and brokering controls to apply to
conventional arms-related as well as dual-use activities.
Because the WA Guidelines call upon Member States to develop “national laws and regulations
with clear definitions of ITT, via both oral and electronic means of transmission,” 41 the GOI may
seek to clarify ambiguities in its technology and information transfer controls. While both the
FTDR and the WMD Act address transfers of “technology,” India’s existing legal authorities do
not explicitly define the term “intangible transfer of technology.” Likewise, Indian legislation
does not expressly mention “deemed” technology exports or address oral communications or
other specific forms of intangible transfer.42
Indian legislation does not explicitly define the term “brokering”, and the GOI does not require
brokers to obtain a license before mediating transactions involving strategic commodities.
Further, Indian brokering controls do not appear to extend to arms brokering activities, and
dual-use brokering activities appear to be regulated only under India’s catch-all control.43 As
the WA Guidelines and Procedures mandate that member states “introduce appropriate
provisions to control arms brokering activities,”44 the GOI may choose to institute more
stringent licensing requirements for brokering transactions.
As previously discussed, India has yet to fully harmonize its SCOMET list with the most up-todate lists of the WA, AG and MTCR, and there are numerous commodities controlled by the U.S.
and other MECR states that are noticeably missing from the SCOMET list. To facilitate regime
admission, India may seek to modify the SCOMET list so that it more closely mirrors the regime
lists.45 SCOMET revisions may also include alterations to the technical descriptions associated
with some entries. It likely will be necessary for the Indian government to reconcile any
discrepancies between the SCOMET control list and those of the regimes prior to entry. Fullyharmonized technical descriptions, consistent with those provided by the MECRs, should make
it easier for companies conducting business in India to classify their commodities and
determine when a license is required, thereby lessening the likelihood for violations.
In sum, the Indian government’s recent nonproliferation policy decisions likely will result in
stricter and more expansive trade controls, and companies should prepare to adapt their
internal compliance programs to address these heightened restrictions. At the same time,
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however, India’s prospective membership in the regimes arguably brings with it new
opportunities for companies. Indian admission to the multilateral export control regimes could
enable foreign suppliers to boost exports of ATP to India and develop better relationships with
strategic industries on the ground. Moreover, the alignment of India’s strategic trade controls
with those of other major supplier states and with the guidelines of the multilateral regimes
likely will help to facilitate high technology trade between Indian and foreign suppliers. In the
near term, Indian and foreign firms may face greater challenges in ensuring compliance with
India’s new trade controls, but in the longer term these changes may lead to new opportunities
for companies to establish lucrative trading relationships.
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1
Foreign Trade (Development and Regulation) Act No. 22 of 1992 (FTDR), Chapter II, Section 3(2), available at
Director General of Foreign Trade (DGFT) website, <http://dgft.delhi.nic.in/>.
2
Section 4(k) of the WMD Act subsumes re-transfers and extra-territorial re-exports under the omnibus term “retransfer”. Re-transfer is defined as “transfer of any item notified under this Act from any country or entity to which
it has been exported from India, to yet another country or entity;” Section 4(b) of the WMD Act defines “brought
in transit” as “to bring goods from any country into India by land, air, or amphibious transportation, where the
goods are to be taken out from India on the same conveyance on which they are brought into India without any
landing in India, but does not include a conveyance in innocent passage through Indian territory, Indian territorial
waters, or Indian airspace of a foreign conveyance carrying goods;” Section 4(n) of the WMD Act defines
“transshipment” as “removal of goods from the conveyance on which they were brought into India and to place
the goods on the same or another conveyance for the purpose of taking them out of India, where these acts are
carried out on a through bill of lading, through airway bill, or through manifest.
3
WMD Act, Section 13(1).
4
Atomic Energy Act, Sections 14 and 16. Text available at Indian Atomic Energy Regulation Board website, <http://
www.aerb.gov.in/t/actsrules/atomicenergyact_1962.htm>.
5
Resolution No. AEA/27(1)/2005-ER, Section A(1)(a) and (b).
6
Resolution No. AEA/27(1)/2005-ER, Section A(8).
7
CWC Act, Chapter III, Section 18, Government of India, Ministry of Chemicals and Fertilizers, Department of
Chemicals and Petrochemicals website, <http://chemicals.gov.in/policy.htm>.
8
Arms Act, Chapter II, Articles 3(1) and 5, Government of India, Ministry of Home Affairs website,
<http://mha.gov.in/pdfs/arms%20act-1959.pdf>.
9
Arms Act, Chapter II, Article 12.
10
FTDR, Section 5, and Foreign Trade Policy (2009-2014), Paragraph 2.1.
11
WMD Act, Sections 5(1) and 5(2). These provisions refer in particular to items relevant to WMD activities.
Section 13(4) further states that the GOI may subject any item to the Act’s provisions.
12
Note: The export of items in Category 2 of the SCOMET list (micro-organisms, toxins, pathogens, etc) may also be
controlled by other applicable guidelines and exporters of items in this category are advised to seek guidance from
the DGFT. Foreign Trade Handbook of Procedures, Vol. 1 (2010-2011 supplement), Paragraph 2.48, Note 3,
<http://www.infodriveindia.com/exim/dgft/exim-procedures/20102011/chapter_2_general_provisions_regarding_exports_imports.aspx#2.50>.
13
“India’s System of Controls over Exports of Strategic Goods and Technologies,” Ministry of External Affairs
website, <http://mea.gov.in/disarmament/01da02.htm> and, “Defence Production,” MOD website,
<http://mod.nic.in/product&supp/welcome.html>.
14
For more information on the SCOMET list, please consult Appendix 2 of this document.
15
The SCOMET list fails to regulate all AG biological, dual-use software and technologies.AG Biological Dual Use
entries 2.0 (technology) and 3.0 (software) are not found on the SCOMET list, nor subject to Indian export controls.
16
To assist companies and individuals in navigating the Indian trade control system, the DGFT publishes a
Handbook of Procedures (Vol. 1) (also in five-year increments with annual updates) that outlines the rules related
to applying for, obtaining, and using an import or export license, as well as information on special re-export rules
related to the incorporation of U.S. materials and technology.
17
Note: Exporters wishing to export Category 1 chemicals must go through the provisions very carefully. The
export of Category 1A chemicals is prohibited in India. See Foreign Trade Handbook of Procedures, Vol. I (20092014), Paragraph 2.49(I) a-f.
18
ITC (HS) Classifications of Export and Import Items, 2009-2014, Chapter 28, Inorganic Chemicals; Organic or
Inorganic Compounds of Precious Metals, of Rare Earth Metals, of Radioactive Elements or of Isotopes,
<http://www.infodriveindia.com/exim/dgft/itc-hs-export-schedule2/2009-14/table-b-ch-28-inorganic-chemicalsorganic-inorganic-compounds-of-precious-metals.aspx>; ITC (HS) Classifications of Export and Import Items, 20092014, Chapter 84, Nuclear Reactors, Boilers, Machinery and Mechanical Appliances; Parts Thereof;
<http://www.infodriveindia.com/exim/dgft/itc-hs-export-schedule2/2009-14/table-b-ch-84-nuclear-reactors-
10
boilers-machinery-and-mechanical-appliances-parts-thereof.aspx> and, DGFT Notification No. 90 (RE-2007)/20042009, 28 March 2008, DGFT website.
19
DGFT Notification No. 57 (RE-2007)/2004-2009, 30 November 2007, DGFT website,
<http://www.eximguru.com/notifications/Amendments-in-Schedule-1-Imports-of-19635.aspx>.
20
See ITC (HS) Classifications of Export and Import Items, 2009-2014, Chapter 29, Organic Chemicals,
<http://www.infodriveindia.com/exim/dgft/itc-hs-export-schedule2/2009-14/table-b-ch-29-organicchemicals.aspx> and, ITC (HS) Classifications of Export and Import Items, 2009-2014, Chapter 38, Miscellaneous
Chemical Products, <http://www.infodriveindia.com/exim/dgft/itc-hs-export-schedule2/2009-14/table-b-ch-38miscellaneous-chemical-products.aspx>.; ITC (HS) Classifications of Export and Import Items, 2009-2014, Chapter
36, Explosives; Pyrotechnic Products; Matches; Pyrophoric Alloys; Certain Combustible Preparations,
<http://www.infodriveindia.com/hs-codes/36-chapter-36-explosives-pyrotechnic-products.aspx>;
ITC
(HS)
Classifications of Export and Import Items, 2009-2014, Chapter 88, Aircraft, Spacecraft and Parts Thereof,
<http://www.infodriveindia.com/hs-codes/88-chapter-88-aircraft-spacecraft-and.aspx>; ITC (HS) Classifications of
Export and Import Items, 2009-2014, Chapter 89, Ships, Boats and Floating Structures,
<http://www.infodriveindia.com/hs-codes/89-chapter-89-ships-boats-and.aspx>; ITC (HS) Classifications of Export
and Import Items, 2009-2014, Chapter 93, Arms and Ammunition; Parts and Accessories Thereof,
<http://www.infodriveindia.com/exim/dgft/itc-hs-export-schedule2/2009-14/table-b-ch-93-arms-andammunition-parts-and-accessories-thereof.aspx>.
21
Foreign Trade Handbook of Procedures, Vol. I (2009-2014), Paragraph 2.37.
22
Notification No. 90 (RE-2007)/2004-2009, 28 March 2008, Government of India, DGFT website,
<http://dgft.gov.in/exim/2000/not/not07/not9007.htm> and, ITC (HS) Classifications of Export and Import Items,
Section VI, Section XVI, Chapter 84, Nuclear Reactors, Boilers, Machinery and Mechanical Appliances; Parts
Thereof, <http://www.infodriveindia.com/content/Exim/DGFT/ITC-HS-Codes-Import-Schedule-1/ch%2084.doc>.
23
CWC Act, Chapter III, Section 15 and, DGFT Notification No. 59 (RE-2007)/2004-2009, 30 November 2007, Section
1A, DGFT website.
24
Arms
Rules
of
1962,
Section
5,
available
at,
<http://www.abhijeetsingh.com/arms/india/laws/rules/rule_1_5.html>.
25
Foreign Trade (Regulations) Rules 1993. Section 6(4), Government of India, DGFT website,
<http://www.eximguru.com/content/exim/appendices-forms/dgft-appendices-2009-14/appnd-38c.doc>.
26
Foreign Trade Handbook of Procedures, Vol. 1 (2009-2014), Paragraph 2.11.
27
In sum, there are 16 entries containing “dual-use” technologies and 23 “software” entries that appear on the
SCOMET list.
28
When technology is described wholly or partly by reference to the uses to which it (or the goods to which it
relates) may be put, it shall include services which are provided or used, or which are capable of being used, in the
development, production or use of such technology or goods.
FTDR Amendment Act 2010, Section 2(m). Also see, WMD Act, Section 4(l).
29
WMD Act, Section 13(3)(a).
30
WMD Act, Section 13(3)(b).
31
WMD Act, Section 13(4).
32
FTDR Amendment Act 2010, Article 14C.
33
WMD Act, Section 11 and, FTDR Amendment Act 2010, Article 14C.
34
The WMD Act, Sections 11 and 12, and The Foreign Trade (Development and Regulation) Amendment Act 2010,
(hereafter the FTDR Amendment Act), Article 14C, Government of India, DGFT website,
<http://www.infodriveindia.com/exim/dgft/acts-and-rules/foreign-trade-development-and-regulation-act2010.aspx>.
35
WMD Act, Section 9.
36
DGFT Circular F. No. 18/24//HQ/99-2000/ECA II, Guidelines for Maintaining the Denied Entities List (DEL),
Government of India, DGFT website, <http://dgft.gov.in/exim/2000/cir/Enfor.htm>.
11
37
Chapter 2 of the Handbook of Procedures (Vol. 1), ), available on the Government of India, Ministry of
Commerce & Industry, Department of Commerce website: http://dgftcom.nic.in/exim/2000/procedures/ftphbcontents0910.pdf
38
Beginning in 2009, India has made a number of changes to its strategic trade control system. Amendment No.
122 of August 19, 2009, the GOI requires all businesses registered or operating in India that manufacture, process,
or use dual-use items on the SCOMET list to obtain the permission of the GOI before entering into any agreements
that include a requirement that a foreign third-party or government make a site visit This approval process will be
handled in the same manner as a license application.
39
Foreign Trade Handbook of Procedures, Vol. I (2009-2014), Paragraph 2.49(III), and Resolution No.
AEA/27(1)/2005-ER, Guidelines for Nuclear Transfers (Exports), Section A(3)(a) and (b).
40
Foreign Trade Handbook of Procedures, Vol. I (2009-2014), Paragraph 2.49(III) - (IV).
41
“Best Practices for Implementing Intangible Transfer of Technology Controls,” The Wassenaar Arrangement
website, <http://www.wassenaar.org/guidelines/docs/ITT_Best_Practices_for_public_statement.pdf>.
42
There is no evidence to suggest that controls on intangible and deemed transfers have been implemented by
Indian authorities.
43
Note: The mere carriage, without knowledge, of persons, goods or technology, or provision of services, including
by a public or private carrier of goods, courier, telecommunication, postal service provider, or financial service
provider, shall not be an offence under the WMD Act.
44
“Elements for Effective Legislation on Arms Brokering,” The Wassenaar Arrangement website,
<http://www.wassenaar.org/guidelines/docs/Elts_for_effective_legislation_on_arms_brokering.pdf>.
45
Revisions to the SCOMET list are an administrative function and do not require parliamentary approval or
amendments to existing Indian legal authorities. To update the SCOMET list, the DGFT would simply have to issue a
Notification in the Official Gazette.
12