CLA-2 CO:R:C:M 956780 MMC
District Director
U.S. Customs Service
4430 E. Adamo Drive
Rm: STE 301
Tampa, Fl 33605
Re: Protest 1801-94-100016; glass bottles; perfume bottles; EN
70.13; NYRL 841833
Dear District Director:
The following is our response to protest 1801-94-100016
concerning your action in classifying and assessing duty on various
glass bottles under the Harmonized Tariff Schedule of the United
States (HTSUS). Samples and a catalog with pictures of
representative bottles were included.
FACTS:
The articles in question are described in the submitted
catalog as Egyptian perfume bottles. There are approximately 180
different styles varying in size, color and ornamentation, however
all are made of hand-blown, hand-painted glass and have ground
glass stoppers; most have dabbers. Some contain minimal amounts of
genuine gold applications. Others have intricate cut glass
patterns. The bottles range in height from approximately 4" to 18"
tall.
The merchandise was entered under subheading 7013.99.30,
HTSUS, as perfume bottles fitted with ground glass stoppers.
However, the entries were liquidated on February 25, 1994, under
subheading 7013.39.50, HTSUS, as glassware of a kind used for
indoor decoration. The protest was timely filed on April 28, 1994.
ISSUE:
Are the subject bottles classifiable as perfume bottles with
ground glass stoppers or as other glassware of a kind used for
table, kitchen, toilet, office, indoor decoration or similar
purposes?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's). GRI 1, HTSUS,
states in part that for legal purposes, classification shall be
determined according to the terms of the headings and any relative
section or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
Heading 7013, HTSUS, provides for glassware of a kind used for
table, kitchen, toilet, office, indoor decoration or similar
purposes. Customs considers it to be a "use" provision. There are
two principal types of classification by use:
(1) according to the use of the class or kind of goods to
which the imported article belongs; and
(2) according to the actual use of the imported article.
Use according to the class or kind of goods to which the
imported article belongs is more prevalent in the tariff schedule.
A few tariff provisions expressly state that classification is
based on the use of the class or kind of goods to which the
imported article belongs. Heading 7013, HTSUS, by expressly
providing for glassware of a kind used for table, kitchen, toilet,
office, indoor decoration or similar purposes", is one of them.
If an article is classifiable according to the use of the
class or kind of goods to which it belongs, Additional U.S. Rule of
Interpretation 1(a), HTSUS, provides that: [i]n the absence of
special language or context which otherwise requires-- (a) a tariff
classification controlled by use (other than actual use) is to be
determined in accordance with the use in the United States at, or
immediately prior to, the date of importation, of goods of that
class or kind to which the imported goods belong, and the
controlling use is the principal use. In other words, the
article's principal use at the time of importation determines
whether it is classifiable within a particular class or kind.
For purposes of this protest we must first determine whether
the bottles are of a kind of glassware principally used for table,
kitchen, toilet, office, indoor decoration or similar purposes. In
an effort to determine if the bottles are provided for under
heading 7013, HTSUS, the Harmonized Commodity Description and
Coding System Explanatory Notes (ENs) may be consulted. The ENs,
although not dispositive nor legally binding, provide a commentary
on the scope of each heading of the HTSUS and are generally
indicative of the proper interpretation of these headings. See
T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989).
EN 70.13, pg. 936-937, states, in pertinent part, that:
This heading covers the following types of articles, most of
which are obtained by pressing or blowing in moulds:...
(2) Toilet articles, such as soap-dishes, sponge-baskets,
liquid soap distributors, hooks and rails (for towels, etc.),
powder bowls, perfume bottles, parts of toilet sprays (other
than heads) and toothbrush holders...
(4) Glassware for indoor decoration and other glassware
(including that for churches and the like), such as vases,
ornamental fruit bowls, statuettes, fancy articles (animals,
flowers, foliage, fruit, etc.), table centres (other than
those of heading 70.09), aquaria, incense burners, etc., and
souvenirs, bearing views.
These articles may be e.g., of ordinary glass, lead crystal,
glass having a low coefficient of expansion (e.g.,
borosilicate glass) or of glass ceramics (the latter two in
particular, for kitchen glassware). They may also be
coulourless, coloured or of flashed glass, and may be cut,
frosted, etched or engraved, or otherwise decorated, or of
plated glass (for example, certain trays fitted with handles).
Table centres consisting of a simple mirror are, however,
excluded (see Explanatory Note to heading 70.09).
According to the Ens, both perfume bottles and glass decorative
fancy articles are provided for under heading 7013, HTSUS. We
believe that the subject bottles are either one or the other.
Therefore they are described by heading 7013, HTSUS.
Heading 7013, is further divided into many subheadings, two of
which prima facia describe the subject bottles. The subheadings
under consideration are as follows:
7013.99.30 Glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018): Other glassware: Other: Other: Smokers'
articles; perfume bottles fitted with ground
glass stoppers
7013.99.50 Glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018): Other glassware: Other: Other: Valued
over $0.30 but not over $3 each
GRI 6, HTSUS, provides in pertinent part, that the
classification of goods in subheadings of the same heading shall be
according to the terms of those subheadings and any related
subheading notes and, by appropriate substitution of terms,
according to GRIs 1 through 5, on the understanding that only
subheadings at the same level are comparable. Inasmuch as the
subject bottles are prima facie described in two different
subheadings, they cannot be classified according to GRI 1.
When goods cannot be classified by applying GRI 1, and if the
headings and legal notes do not otherwise require, the remaining
GRI's are applied.
GRI 3 states, in pertinent part, that when goods are, prima
facie, classifiable under two or more headings, classification
shall be effected as follows:
(a) The heading which provides the most specific description
shall be preferred to headings providing a more general
description.
The language of subheading 7013.99.30, HTSUS, clearly
indicates that all perfume bottles with ground glass stoppers are
described by the subheading. Neither the subheading or the
relevant EN provide any size limitations. Additionally, protestant
has submitted catalogs and affidavits from retailers which indicate
that all styles are principally used as perfume bottles. As
protestant's counsel notes, with regard to any size bottle, in most
cases the dabber extends all the way down near the bottom of the
bottle and therefore, only a small amount of fragrance is needed to
make the bottle useable. Alternatively, subheading 7013.99.50,
HTSUS, merely provides for all other articles, within a certain
value range, which do not meet the description provided by other
subheadings. See New York Ruling Letter 841883 dated June 22,
1989, in which other empty perfume bottles with ground glass
stoppers were classified under subheading 7013.99.30, HTSUS.
We are of the opinion that subheading 7013.99.30, HTSUS,
provides the most specific description of the bottles. Therefore,
they are classifiable under that subheading.
HOLDING:
The perfume bottles are classifiable under subheading
7013.99.30, HTSUS, as perfume bottles with ground glass stoppers,
with a column one rate of duty of 9 percent ad valorem.
The protest should be granted. In accordance with Section 3A
(11) (b) of Customs Directive 0993550-065, dated August 4, 1993,
Subject: Revised Protest Directive, this decision, together with
the Customs Form 19, should be mailed by your office to the
protestant no later than 60 days from the date of this letter. Any
reliquidation of the entry in accordance with the decision must be
accomplished prior to mailing the decision. Sixty days from the
date of the decision, the Office of Regulations and Rulings will
take steps to make the decision available to Customs personnel via
the Customs Ruling Module, ACS, and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division