Application for Grant of Export Licence/ Certificate / Permission

2.49

An application for grant of Export Authorisation in respect of items mentioned in Schedule 2 of ITC (HS) may be made in ANF 2D (2E for SCOMET items) to DGFT along with documents prescribed therein. EFC shall consider applications on merits for issue of export Authorisation.

An Inter-Ministerial Working Group in DGFT shall consider applications for export of Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) as specified in Appendix-3 to Schedule 2 of ITC (HS) based on guidelines given below.

Applications for licences to export items or technology on SCOMET List are considered case-by-case, based inter alia on the following general criteria:

I. Following factors, among others, are taken into account in the evaluation of applications for export of items on SCOMET List:

a. Credentials of end-user, credibility of declarations of end-use of the item or technology, integrity of chain of transmission of item from supplier to end-user, and on potential of item or technology, including 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 its obligations under treaties to which it is a State party.

b. Assessed risk that exported items will fall into hands of terrorists, terrorist groups, and non- State actors;

c. Export control measures instituted by recipient State;

d. The capabilities and objectives of programmes of recipient State relating to weapons and their delivery;

e. Assessment of end-uses of item(s);

f. Applicability to an export licence application of relevant bilateral or multilateral agreements to which India is a party.

II. A condition for consideration of an application for an export licence is submission of stipulated certifications to effect, inter alia, that:

a. The item will be used only for stated purpose and that such use will not be changed, nor items modified or replicated without consent of Government of India;

b. Neither the items nor replicas nor derivatives thereof will be re-transferred without consent of Government of India;

c. End-user shall facilitate such verifications as are required by Government of India.Government of India may also require additional formal assurances, as appropriate, including on end-use and non-retransfer, from State of recipient.

III. Licensing authority for items in Category 0 in Appendix 3 to Schedule 2 of ITC(HS) is Department of Atomic Energy. Applicable guidelines are notified by that Department under Atomic Energy Act, 1962. For certain items in Category 0, formal assurances from recipient State will include non-use in any nuclear explosive device. Licences for export of certain items in Category 0 will not be granted unless transfer is additionally under adequate physical protection and is covered by appropriate International Atomic Energy Agency (IAEA) safeguards, or any other mutually agreed controls on transferred items.

IV. Additional end-use conditions may be stipulated in licences for export of items or technology that bear possibility of diversion to or use in development or manufacture of, or use as, systems capable of delivery of weapons of mass destruction.

V. Applications for transfer of “Technology” for any item on the List will be considered as an application for export of item itself.

VI. Licences for export of items in this List (other than those under Category 0, 1 and 2) solely for purposes of display or exhibition shall not require any end-use or end-user certifications. No export licence for display or exhibition shall be issued for ‘Technology’ in any category or for items under Categories 0, 1, and 2.

VII. Export of items not on SCOMET List may also be regulated under provisions of the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005.

Note 1: Export or attempt to export in violation of any of conditions of licence shall invite civil and/or criminal prosecution.

Note 2: Licences for export of items in this List for display or exhibition abroad are subject to a condition of re-import within a period not exceeding six months. Exporters are entitled to apply for an export licence for such items exhibited abroad if exhibitor intends to offer that item for sale during exhibition abroad. Such sale shall not take place without a valid licence.

Note 3: Export of items in Category 2 of this list may also be controlled by other applicable guidelines issued from time-to-time. Exporters of items in this category are advised to seek guidance from DGFT.

Note 4: Exporters are entitled to apply for a ‘destination licence’ for countries and / or groupings of countries for export to which only re-transfer conditions need be imposed.

Note 5: Exporters are entitled to request that only such conditions need be imposed as are subject of government-to-government instruments of accord over export of items on SCOMET List.

Note 6: ‘Technology’ (see also entry ‘Technology’ in glossary in Appendix-3 to Schedule 2 of ITC (HS)): Approval of export of an item on the SCOMET List also authorizes the export to same end-user of minimum ‘technology’ required for installation, operation, maintenance and repair of the item.

DGFT in association with Administrative Ministries / Departments and Trade Associations will organize Industry Outreach Programme on regular basis for an effective awareness among the exporters /importers dealing with trade, in particular, in SCOMET items.

RAs may also issue, on application, Free Sale and Commerce Certificate for export of items not covered under Drugs & Cosmetics Act, 1940, which have usage in hospitals, nursing homes and clinics, for medical and surgical purposes and are not prohibited for export. Validity of such certificate shall be two years from date of issue unless otherwise specified.

An application for grant of Free Sale and Commerce Certificate may be made to RA concerned as per format in Appendix 39 of HBP Vol.I, along with Annexure A therein.

RA shall issue Free Sale and Commerce Certificate as per Annexure B of Appendix 39.

PROCEDURE/GUIDELINES FOR FILING/EVALUATION OF APPLICATIONS FOR ENTERING INTO AN ARRANGEMENT OR UNDERSTANDING FOR SITE VISITS, ON-SITE VERIFICATION AND ACCESS TO RECORDS/DOCUMENTATION

An application for entering into an arrangement or understanding involving site visit, on-site verification or access to records/documentation by a foreign government or a foreign third party either acting directly or through an Indian party as mentioned in Appendix 3 of Schedule 2 of ITC(HS) shall be made in ANF 2EE to DGFT(Hqrs.), New Delhi along with documents prescribed therein.

These applications shall be considered by an Inter-Ministerial Working Group (IMWG) in DGFT based on following guidelines/general criteria:

I. Following factors, among others, will be taken into account in the evaluation of applications for entering into an arrangement or understanding for site visits, on-site verification and access to records/documentation:

(a) Purpose for which arrangement / understanding is proposed under which site visit or on-site verification or access to records/documentation is to be undertaken.

(b) Credentials and details of the parties involved.

(c) Credentials of end-user, credibility of declarations of end-use of the items or technology, the integrity of chain of transmission of the item from the supplier to the end-user, and on 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, the objectives of global non-proliferation, or its obligations under treaties to which it is a State party.

(d) The assessed risk that the arrangement/understanding could lead to dual-use items and technology falling into the hands of terrorists, terrorist groups and non-State actors.

(e) In case site visit, on-site verification or access to records/documentation is to be carried out by a foreign government or its representative(s), the following shall be taken into consideration :-

i. Export control measures instituted by the foreign government;

ii. Capabilities and objectives of programs of the foreign government relating to weapons and their delivery.

(f) Applicability of relevant bilateral and multilateral agreements to which India is a party

(g) Assessment of any threat that such site visit, on-site verification or access to records/documentation may pose to India’s national security, and relations with any other country.

(h) Assessment of possible links of the foreign parties with terrorist organizations and non-state actors within their own country or in any other country.

II. Permission for arrangement or understanding involving site visit, on-site verification or access to records/documentation will be subject to the following conditions:-

(a) Site visit, on-site verification or access to records/documentation will be confined to the purpose, sites and activity for which permission given/which have been mentioned in the authorization.

(b) Site visit, on-site verification or access to records/documentation will be allowed only to individuals mentioned in the authorization.

(c) Site visit, on-site verification or access to records/documentation shall be concluded during the period mentioned in the authorization.

(d) Exporter/Importer will keep a record of site visit, on-site verification or access to records/documentation alongwith detail of individuals who visited the premises during this visit and produce the same as and when required to do so by the GOI.

(e) No exchange of goods, services and technologies and any documentation including drawings, specification sheets etc. will take place during the visit.

(f) Exporter/importer may be required to give any additional assurance that the Government of India may require.

(g) Any other condition that may be stipulated in the permission.

III. Provisions of Weapons of Mass Destruction Act, 2005 shall also apply to an arrangement or understanding that involves site visit, on-site verification or access to records/documentation.

IV. Any violation of any condition of the license shall invite civil/ criminal prosecution as per law.

(Above PROCEDURE/GUIDELINES FOR FILING/EVALUATION OF APPLICATIONS has been added vide PN. NO. 50/2009, DT. 29/03/2010)

RAs may also issue, on application, Free Sale and Commerce Certificate for export of any other item which is not restricted or prohibited for export. Validity of such certificate shall be two year from date of issue unless otherwise specified.

An application for grant of Free Sale and Commerce Certificate for these items may be made to RA concerned as per format in Appendix 39-A [OLD- Annexure 39-A ] of HBP Vol. I along with Annexure A therein.

(In above paragraph the word "Appendix 39-A" has been substituted vide PN. NO. 70/2009, DT. 31/05/2010)

RA shall issue Free Sale and Commerce Certificate as per Annexure B of Appendix 39-A

(Above 3 paragraph has been added vide PN. NO.64/2009, DT. 18/05/2010 at end)