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Baby Wipes

Declaration C12576 21.05.11

Sample #23; Line # 65

 

Baby Wipes are small sheets of wadding impregnated with solutions which are used for cleaning of the skin.   

Heading 3401 covers organic surface active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale whether or not containing soap; paper, wadding, felt and non-woven, impregnated, coated or covered with soap or detergent. 

The terms of tariff subheading 3401.11.90 covers preparations for washing the skin whether or not containing soap.

Holding:

Baby wipes are properly classifiable in HS 3401.19.90.10

 

Sugar based powdered Drink Mixes

The following is the Dominica Customs and Excise Division’s decision regarding the classification of flavored powdered drink mixes imported into Dominica on the 23rd December 2009.

Facts:

The merchandise at issue includes the following products:

  • Kent Boringer Trix Orange Flavoured Powder Drink 2.5Kg
  • Kent Boringer Trix Pineapple Flavoured Powder Drink 2.5Kg
  • Kent Boringer Trix Strawberry Flavoured Powder Drink 2.5Kg
  • Kent Boringer Trix Orange Flavoured Powder Drink 900gr
  • Kent Boringer Trix Pineapple Flavoured Powder Drink 900gr
  • Kent Boringer Trix Strawberry Flavoured Powder Drink 900gr
  • Kent Boringer Trix Mango Flavoured Powder Drink 900gr
  • Kent Boringer Trix Orange Flavoured Powder Drink 750gr
  • Kent Boringer Trix Pineapple Flavoured Powder Drink 750gr
  • Kent Boringer Trix Mixberry Flavoured Powder Drink 750gr
  • Kent Boringer Trix Watermelon Flavoured Powder Drink 750gr
  • Kent Boringer Trix Mango Flavoured Powder Drink 750gr
  • Kent Boringer Trix Lemon Flavoured Powder Drink 45gr
  • Kent Boringer Trix Orange Flavoured Powder Drink 45gr
  • Kent Boringer Trix Strawberry Flavoured Powder Drink 45gr
  • Kent Boringer Trix Grape Flavoured Powder Drink 45gr
  • Kent Boringer Trix Pineapple Flavoured Powder Drink 45gr
  • Kent Boringer Trix Sour Cherry Flavoured Powder Drink 45gr
  • Kent Boringer Trix Cocktail Flavoured Powder Drink 45gr
  • Kent Boringer Trix Mango Flavoured Powder Drink 45gr
  • Kent Boringer Trix Orange Flavoured Powder Drink 25gr
  • Kent Boringer Trix Mango Flavoured Powder Drink 25gr
  • Kent Boringer Trix Ananas Flavoured Powder Drink 25gr
  • Kent Boringer Trix Ice Orange Flavoured Powder Drink 10gr
  • Kent Boringer Trix Ice Strawberry Flavoured Powder Drink 10gr
  • Kent Boringer Trix Ice Lemon Flavoured Powder Drink 10gr
  • Kent Boringer Trix Ice Pineapple Flavoured Powder Drink 10gr

The labeling states that to prepare the drinks “pour out contents, add measured quantities of water and mix thoroughly. No need to add water”.

Issue:

Whether the flavoured powdered drink mixes as described above are classified in heading 2106 of the Harmonized Tariff as claimed, which provides for other food preparations not elsewhere specified, or under heading  1701 of the Harmonized Tariff, which provides for cane or beet sugar containing added flavouring matter , whether or not containing added coloring.

Law and Analysis:

The classification of imported merchandise into Dominica under the Harmonized System is governed by the principles set forth in the general rules of interpretation (GRI). GRI rule 1 requires that classification be determined first according to the terms of the heading of the HS tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI’s taken in their appropriate order. Accordingly, we first have to determine whether the products are classified under GRI 1.

Heading 1701 of the HS provides for “cane and beet sugar and chemically pure sucrose, in solid form”. At the six digit level, 1701.91, provides for cane or beet sugar and chemically pure sucrose, in solid form containing added flavoring or coloring matter.

Heading 2106 of the HS provides for “food preparations not elsewhere specified or included”.  At the eight digit level, 2106.90.30 provides for flavoring powders for making beverages.

The primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading of the tariff schedule and any relative legal directive of the HS.

Pursuant to GRI 1, the subject beverage mixes are to be classified according to their ingredients because neither heading 2106 nor heading 1701 specifically describes “powdered drink mixes”

 The labeling on the said products indicates sugar as being the main ingredient.

The Exporter also communicated via e-mail the sugar content of the products.

  • 2.5Kg Trix – 79.95% Sugar
  • 900gr Trix – 79.95% Sugar
  • 750gr Trix – 79.65% Sugar
  • 450gr Trix – 79.65% Sugar
  • 250gr Trix – 79.65% Sugar
  • 45gr Trix – 19.78% Sugar
  • 10gr Ice – 19.93% Sugar

A sample each of the 45gr Trix and the 10gr Ice was sent to the Produce Chemist Laboratory, Division of Agriculture for analysis and the result are as follows:

  • Kent Boringer Trix Pineapple flavoured  Powder Drink -  92.3% Brix
  • Kent Boringer Ice Lemon flavoured  Powder Drink -  92.8% Brix

(Brix measures the soluble dry substance in a product and thus provide an approximate measure of sugar content) copy of the analytical report attached for reference.

Besides sugar, other ingredients of the products in question include:

  • Acidifier, Sugar Acid Regulator, Citric Acid (preservatives)
  • Silicon Dioxide (anti-caking agent)
  • Trisodium Citrate, Tricalcium Phosphate (acid regulator/stabilizer)
  • Aspartame, Acesulfane-K (Sweeteners)
  • Titanium Dioxide, Tartrazine, Beta Carotene (Colorants)
  • Thickeners
  • Flavoring Agents
  • Vitamins
  • Clouding Agents

The merchandise under consideration are sugar based drink mixes containing added flavoring and coloring matter.  The dominant ingredient in the powdered beverage mixes at issue is sugar. Subheading 1701.91 is the appropriate classification of the powdered drink mixes.

Classification of these products in subheading 1701.91 of the HS is confirmed by the Explanatory Notes to the HS, which constitute the Customs Cooperation Council’s official interpretation of the tariff at the international level. They provide a commentary on the scope of each heading of the tariff schedule, and are thus useful in ascertaining the classification of merchandise under the system…[and] are generally indicative of the proper interpretation of the various provisions of the convention.

Although the EN’s are not dispositive or binding on the court, they facilitate classification under the HS by offering direction in interpreting HS subheadings. The Courts have consistently followed the EN’s for guidance in interpreting the HS when the EN’s are persuasive and specifically include or exclude an item from a tariff heading as it does in this specific case.

The EN’s for heading 2106, state that “powders which have the character of flavoured or coloured sugars used in the preparation of lemonade and the like are not classifiable in HS heading 2106 but are classifiable in heading 1701 or 1702 as the case may be depending on their composition”.

The evidence on record indicates that these drink mixes contain in excess of 79% of sugar with other ingredients consisting of colourants, flavouring and preservatives. These types of products are specifically dealt with in Chapter 17 and excluded from heading 2106.

Holding:

In view of the following facts, the flavoured powdered drink mixes at issue are properly classifiable under subheading 1701.91.00. Items classified under subheading 1701.91 are dutiable at the import duty rate of 40% ad valorem.

 

CLASSIFICATION OF JUICE AND JUICE CONCENTRATES IN HEADING 20.09 

This Memorandum outlines Dominica’s Customs and Excise Divisions administrative policy for the classification of juice and juice concentrates of heading 20.09 of the Harmonized Commodity Description and Coding System.

CLASSIFICATION OF JUICE AND JUICE

CONCENTRATES IN HEADING 20.09:

GUIDELINES AND GENERAL INFORMATION

 

Definition

  1. For the purposes of this Memorandum, the following definition applies:

         “Juice is a liquid naturally contained in fruit or vegetable tissue, and prepared by mechanically

          squeezing or macerating the fresh fruits or vegetables without the application of heat or solvents”

                       “Juices, unfermented and not containing added spirit” of heading 20.09 are those that have an

                         alcoholic strength  not exceeding 0.5% by volume. (Note 6 to Chapter 20)

 

                       “Beverage means beverages of an alcoholic strength by volume not exceeding 0.5% .

                         (Note 3 to Chapter 22)

 

                       “Character of beverages of heading 22.02” (See Note 3 to Chapter 22)

 

  1. Juices having a Brix Value of over 20 are generally considered concentrates. This threshold is set at 30 in the case of grape juice. These thresholds have been set by the HS in order to establish a reasonable cutoff point between single strength and concentrated juices. The above thresholds are not necessarily prescribed by the beverage industry (Sub-Heading note 3 to Chapter 20)

 [Brix Value approximates the percentage of water soluble solids which in most cases reflects the amount of sugar present in the juice]

  1. In addition to being in the form of natural juice or a concentrate, products of heading 20.09 can also be

               dehydrated crystals or powder, provided the crystals or powders are almost entirely soluble in water.

               (Explanatory Notes)

  1. Products of heading 20.09 may contain sugar and other sweetening substances, anti-fermentation and standardizing agents, salt and spices (in the case of vegetable juices), and/or other substances to restore the original balance of ingredients. However, to be classified in heading 20.09, fruit and vegetable juices must approximate the composition and essential character of extracts of fresh, healthy, and ripe

              fruits and vegetables. (Explanatory Notes)

  1. The addition of vitamins and orange-flavoured sachets to an orange juice, for example, does not

  exclude the latter from classification in heading 20.09, provided such additions are only in the amount  

  that may reasonably be lost in the manufacturing processes, and do not disturb the natural balance of

  various elements in the juice. (Explanatory Notes Chapter 20)

  1. Extracted juices may undergo numerous processes that include clarification, filtration, de-aeration,

   homogenization and sterilization. Juices undergoing these and/or other processes remain classified in

   heading 20.09, provided these juices retain their natural balance of constituents.

  (Explanatory Notes Chapter 20)

  1. The addition of water to a fruit or vegetable juice, or addition to the concentrates of such juices of more water than is needed to reconstitute the original natural juice, excludes these products from consideration in heading 20.09. Once diluted, such products usually have the character of beverages of heading 22.02. Addition of excessive amounts of carbon dioxide to fruit and vegetable juices transforms these juices into aerated juices that too, are classified in heading 22.02.

 (Explanatory Notes Chapter 20)

  1. In order to qualify for classification in heading 20.09, juices must be obtained from fruit and vegetables that contain juice when fresh. Therefore, prune juice, when otherwise meeting specifications as in the preceding paragraphs, is classified in this heading. However, liquid products that are obtained by heating, in water, of fresh or dried fruits that do not contain juice in the natural form are excluded  from heading 20.09. Liquids obtained from these fruits, such as juniper berries, are usually classified  in heading 21.06 as food preparations not elsewhere specified or included.

(Explanatory Notes Chapter 20)

  1. The addition of minerals, vitamins, iron compounds, acids, and products generally known in the industry as food supplements, or health-promoting preservatives to fruit or vegetable juices, to an extent that clearly changes the natural balance of constituent elements within these juices, excludes the product from heading 20.09. Such products are classified in heading 22.02, or heading 21.06 in the

concentrate form. (Explanatory Note 12 & 16 to Chapter 20, Explanatory Note to Chapter 30))

  1. Addition to a juice of medicinal products or constituents in amounts that clearly have therapeutic and/or prophylactic uses excludes the juice from consideration under heading 20.09. Such products are generally classified in headings 30.03 and 30.04 as medicaments. (Explanatory Note to Chapter 30)
  1. Attention must be paid to the difference between the addition to a juice of what are considered health-promoting ingredients as opposed to medicinal constituents that have clear therapeutic and/or prophylactic uses. In the first instance, reference is made to ingredients that, in a general sense, promote good health. In the latter case, medicinal constituents must be of a kind that clearly demonstrate they cure, treat, or prevent specific ailments. (Explanatory Note to Chapter 30)
  1. Flavouring components of juice concentrates are usually reduced by a natural evaporation process. Such reduction does not exclude juice concentrates from consideration in heading 20.09.

(Explanatory Note to Chapter 20)

 

 

 

  1. Liquid products obtained by the addition of water and sugar syrup to crushed whole fruits (whether or not peeled, or stones and pips removed), or the addition of water and sugar to fruit purées, to the extent that render these products suitable for direct human consumption, are considered as fruit nectars and are classified in heading 22.02. Products that are produced in a similar manner but are made for

purposes other than human consumption as a beverage are classified in heading 20.08.

(Explanatory Note 5 to Heading 20.08

 

CLASSIFICATION OF JUICE AND JUICE

CONCENTRATES IN HEADING 20.09:

 

ISSUE: what products are classified in “HS 20.09?”

 

Law and Analysis

Classification of merchandise is in accordance with the general rules of interpretation taken in order. Rule #1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes

 

Heading 20.09 provides for fruit juices (including grape must) and vegetable juices, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter.

Heading 21.06 provides for food preparations not elsewhere specified or included.

Heading 22.02 provides for Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 20.09.

 

Facts

Fruit juice consumption internationally has increased, due to an increased public interest in health issues and that juices are perceived to be a healthy natural source of nutrients.

 Popular juices include Citrus, Apple, Pineapple, Tomato, Passion fruit, Cranberry, Mango, Carrot, Grape, Cherry, Guava and Pomegranate.

It has become increasingly popular to combine a variety of fruit/vegetable juice into single packaged juices, and also to blend juices with other ingredients such as water and sweeteners. The terms “Juice Drinks”, “Juice Cocktail” and “Nectar” are used to describe any beverage which includes juice even if the juice content is 99% or 1% of the overall volume.

The explanatory notes for heading 20.09 state “ the addition of water to a normal fruit or vegetable juice, or the addition to a concentrated juice of a greater quantity of water than is necessary to reconstitute the original natural juice , results in a diluted product which has the character of a beverage of heading 22.02

It should be noted however that according to interpretive rule 2(b ) which is legally binding, any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other material or substances.

It should also be noted that rule # 3(b) which is legally binding, further states when by application of rule 2(b) or for any other reason, mixed goods are classifiable under two or more headings, mixtures shall be classified as if they consisted the material which gives them their essential character, insofar as this criterion is applicable.

The question thus arises “at what percentage of combination with other substances would establish a reasonable cut off point for fruit or vegetable juices of HS 20.09 losing their essential character”?

The present position of the customs and excise division in Dominica is that a beverage which contains 30% or more of fruit or vegetable juice retains the essential character of the fruit or vegetable juice, and is therefore classifiable in HS 20.09, and any beverage which has less than 30% of fruit or vegetable juice loses the essential character of the fruit or vegetable juice, and shall be classified elsewhere.

This policy has been adopted for some time with direction given by the Ministry of Trade. Fruit and vegetable juices were included on the Negative List, which is a listing of items requiring a licence for importation. It was the Ministry of Trades policy that any drink which contained 30% or more of fruit or vegetable juice required a licence to be imported, while drinks containing less than 30% of fruit or vegetable juice would not require a licence, hence the rational.

However, since the removal of fruit or vegetable juices from the negative list, the trading community raised immediate justifiable concerns since the import duty of the said products had increased immensely as a result, from 20% to 135% of the CIF values, and in the case of orange juice from 20% to 150% of the CIF value. This represented an average increase of 712.5% overall.

One of the objectives of the Harmonized System is to have a uniform classification in its application of the nomenclature of goods throughout, but in the case of HS 20.09, the provisions of the interpretive rules proves challenging.

 It has been recommended that each individual territory may use their national legislation to indicate to their Customs Organisations as to what vegetable/fruit juices are classifiable in HS 20.09. Through researching the policies in some of our neighbouring Caribbean islands re the goods category of juices of 20.09, there appears to be inconsistency.

80% juice-20% other, 70% juice-30% other and 50% juice-50% other are the most common examples.

Research has also shown that extra-regionally, most nations define a standard purity for a beverage to be considered a fruit juice. This name “Fruit Juice” as referred in HS20.09 are commonly reserved for beverages that are 100% pure fruit juice.

In the UK, as required by the Fruit Juices and Fruit Nectars Regulations of both England and Scotland, the term fruit juice can only legally be used to describe a product which is 100% fruit juice. Comparable rules apply in all EU member states in their respective languages.

In the USA, fruit juice can only legally be used to describe a product which is 100% fruit juice. According to the “Food and Drug Administration”, the term “juice cocktail, “juice drink” and  “nectar” is generally accepted in the U.S. and in international trade for a diluted juice to denote a beverage that contains fruit juice or puree, water and which may contain sweeteners. These diluted juices are generally classifiable in heading 22.02.

The Trade Policy and Interpretation Directorate of the Canada Customs and Revenue Agency has taken into consideration the guidelines as provided in the Explanatory Notes for heading 20.09 which gives direction that diluted juices usually have the character of the beverages specified in heading 22.02.

By Cabinet Decision No. 0986 dated November 8, 2011, states that the term Juice shall be applied to only drinks with with a 100% Fruit or Vegetable Juice and that it shall be applied as per Harmonised System and the CARICOM Regional Standards Specification for fruit and vegetable juices and fruit nectars; and that all drinks with less than a 100% fruit or vegetable juice shall be classified under Heading 22.02 as a beverage

Holding

The fruit and vegetable juices of Heading 20.09 are those that are 100% fruit or vegetable juice, and that diluted juices are generally classified in headings 22.02, 21.06, 20.08, 17.02, 30.03 and 30.04 respectively dependant on their composition.

Classification of a 1999 Mack Dump Truck model RD-688

The following is our decision regarding the classification and assessing of customs duties on a 1999 Mack vehicle Model RD-688 VIN# 1M2P324C3XM045129 imported into Dominica on the 6th January 2010.

Facts:

The commercial invoice bears the following description

    “1999 Mack RD-688, VIN# 1M2P324C3XM045129”

The Bill of lading describes the unit as a “1999 Mack Tractor Red”, while the ‘Certificate of Title” from the State of Florida issued 9th of December 2009 indicates that the unit is a truck.

The evidence on record indicates that this particular model is manufactured as a tandem axel steel dump truck. These units function primarily to move or transport goods under the provision in heading 8704 as a motor vehicle for the transport of goods.

The protestant maintains that the “1999 Mack RD-688” is a tractor of heading 8701, with evidence that a fifth wheel is apparently attached to the rear of the unit.

Issue:

Is the subject unit classifiable as a tractor of HS 8701 or a dump truck of HS 8704?

Law and Analysis:

Classification of merchandise under the Harmonized System is in accordance with the general rules of interpretation. General rule 1(GR1), states in part that for legal purposes, classification shall be determined according to the heading and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to general rules 2 through 6.

Note 2 to chapter 87 of the HS states that the term “Tractor” is defined as a vehicle constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not it contains subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilizers  or other goods.

Design characteristics common to tractors includes the following:

  • Power take off (PTO) – A splined driveshaft usually on a tractor or truck used to provide power

                                          to an attachment or separate machine . It allows implements to draw

                                          energy from the engine.

  • Fifth Wheel Coupling – The fifth wheel provides the link between a trailer or semi-trailer and the

                                          towing truck or tractor unit. The coupling consists of a coupling pin (or

                                          king pin) on the front of the trailer and a horseshoe shaped coupling

                                          device called a fifth wheel on the rear of the towing vehicle.

  • Braking System -  A breaking system dedicated to supply air to the trailer brakes
  • Electrical System - An electrical system to provide power to the trailer.

The “1999 Mack RD-688” gives no indication that it can be used for the intended purpose as a tractor.

  • There is no evidence of the needed apparatus normally located at the outside rear of tractor cabs with the essential connectors linking the tractors to the trailers.( this is vital in order to connect the trailers foot and hand brakes to the tractor and also to provide current to the trailers for the brake lights and signal lights among others).
  • There is no evidence of an electrical system intended to provide power to the trailer
  • Though there is a fifth wheel attached on the rear of the vehicle, on examination it appeared odd that it was feebly attached and doesn’t appear to have the capacity to handle the weight associated with road trailers.
  • There are four steel pivots at the extreme end of the vehicle extending vertically approximately 5 inches in order to hook the dump box unto the truck. Because of this it would be very difficult or even impossible to allow a trailer to back-up to the tow truck enabling the coupling pin to attach to the fifth wheel.
  • There is a visible hydraulic tank located at the outside rear of the cab. A device for raising and lowering a dump box
  • There is a PTO up down device in the cab  in-between the passenger and driver’s seat to lift and lower the dump box
  • There are no buttons on the dash board to control and provide air to the trailers braking system. The driver should have full control of the trailer at all times avoiding dangerous situations such as “ jack knifes” (the only button noticeable is for the handbrake of the actual truck)

Holding:

The 1999 Mack RD-688, VIN# 1M2P324C3XM045129 is classified as a motor vehicle for the transport of goods in heading 8704, and dutiable at the rate of 5% Import Duty, 4% Customs Service Charge, 28% Excise Tax and 15% VAT ad valorem (CIF), and $3000.00 Environmental Surcharge.

 

Coconut Water

Declaration C30851 23.11.11                      

Sample #22; Line # 53                                 

 

Coconut Water is classified in HS 2017 Tariff subheading 2202.99.91 as Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 20.09.

   

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