CLA-2 RR:CR:GC 964848 GOB
Port Director
U.S. Customs Service
511 NW Broadway
Portland, OR 97209
RE: Protest 2904-00-100113; VN-3820-VA VideoBanner
Dear Madam:
This is our decision regarding Protest 2904-00-100113, filed by Clarity Visual Systems, Inc. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the VN-3820-VA VideoBanner, which is a 38-inch rear-projection display (hereinafter referred to as “VN-3820-VA VideoBanner” or “display”).
FACTS:
The protest was filed on October 30, 2000. The file indicates that of the 42 entries at issue, 41 were liquidated on July 28, 2000, and one was liquidated on August 4, 2000.
The displays were entered under subheading, 8473.30.50, HTSUS, as: “Parts and accessories ... suitable for use solely or principally with machines of headings 8469 to 8472: ... Parts and accessories of the machines of Heading 8471: Not incorporating a cathode ray tube: ... Other.” The entries were liquidated under subheading 8543.89.96, HTSUS, as: “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter ... : ... Other machines and apparatus: ... Other: ... Other: ... Other: ... Other.”
The displays include the following components: a flat panel thin film technology liquid crystal display; an optical engine; and a mechanical housing. The optical engine consists of a lamp, four mirrors to fold the light path, a series of lenses to focus the light, polarizers to polarize the light, and a liquid crystal display to control the light. They are equipped with data input/output connectors. The displays do not contain video input/output connectors; they have no input ability and cannot accept or receive video; they can only receive digital signals from the central processing unit. The displays are used in various applications such as digital point-of-purchase displays, electronic menu boards, and electronic banners. When combined with a computer and software, the displays form a rear projection LCD system for point of purchase applications.
ISSUE:
What is the tariff classification of the VN-3820-VA VideoBanner?
LAW AND ANALYSIS:
We first address the timeliness of the protest.
Under 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1), a protest shall be filed with the Customs Service within 90 days after the notice of liquidation. 41 of the subject 42 entries were liquidated on July 28, 2000; the 42nd entry was liquidated on August 4, 2000. The protest, Customs Form 19, reflects that it was received by your office on October 30, 2000, which is 94 days after the date of liquidation of the 41 entries liquidated on July 28, 2000.
Pursuant to 19 CFR 174(f): “The date on which a protest is received by the Customs officer with whom it is required to be filed shall be deemed the date on which it is filed.” Thus, the protest was filed on October 30, 2000.
Accordingly, the protest was not timely filed with respect to the 41 entries liquidated on July 28, 2000. Therefore, the protest should be denied with respect to those 41 entries. The protest was timely filed with respect to the entry liquidated on August 4, 2000.
For an example of the judicial treatment of a protest filed one day after the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 23d 406 (1991).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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.
The protestant now claims that the goods are classified under subheading 8471.60.30, HTSUS. Your office asserts that classification under subheading 9013.80.90, HTSUS, is appropriate.
The HTSUS provisions under consideration are as follows:
8471 Automatic data processing machines and units thereof ... :
8471.60 Input or output units, whether or not containing storage units in the same housing:
Other:
Display units:
8471.60.30 Without cathode ray tube (CRT), having a visual display diagonal not exceeding 30.5 cm
* * * * * *
9013 Liquid crystal devices not constituting articles provided for more specifically in other headings ... :
9013.80 Other devices, appliances and instruments:
9013.80.90 Other.
We note initially that the displays are excluded from consideration for classification in heading 8528, HTSUS, as reception apparatus for television, because they do not have a video function.
They are also not described in heading 8531, HTSUS, as visual signalling apparatus. EN 85.31 provides that heading 8531 does not cover electric advertising signs and that static signs are not regarded as signalling apparatus.
Heading 8471, HTSUS, is governed by the terms of Legal Note 5 to Chapter 84, HTSUS, which provides, in relevant part:
(B) Automatic data processing machines may be in the form of systems consisting of a variable number of separate units. Subject to paragraph (E) below, a unit is to be regarded as being a part of a complete system if it meets all the following conditions:
(a) It is of a kind solely or principally used in an automatic data processing system;
(b) It is connectable to the central processing unit either directly or through one or more other units; and
(c) It is able to accept or deliver data in a form (codes or signals) which can be used by the system.
(D) Printers, keyboards, X Y coordinate input devices and disk storage units which satisfy the conditions of paragraphs (B)(b) and (B)(c) above, are in all cases to be classified as units of heading 8471.
(E) Machines performing a specific function other than data processing and incorporating or working in conjunction with an automatic data processing machine are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings.
We find that the displays are not described in heading 8471, HTSUS, for the following reasons. They are not solely or principally used in an automatic data processing system. See Note 5 (B) (a), above. Further, they perform a specific function other than data processing, i.e., the display of retail advertising. See Note 5 (E), above.
We find that the displays are described in heading 9013, HTSUS, as: “Liquid crystal devices not constituting articles provided for more specifically in other headings ... “ and are classified in subheading 9013.80.90, HTSUS, as: “Liquid crystal devices not constituting articles provided for more specifically in other headings ... : ... Other devices, appliances, and instruments: ... Other.”
HOLDING:
As detailed above, the protest was not timely with respect to the 41 entries liquidated on July 28, 2000.
The displays are classified in subheading 9013.80.90, HTSUS, as: “Liquid crystal devices not constituting articles provided for more specifically in other headings ... : ... Other devices, appliances, and instruments: ... Other.”
Since the rate of duty for the classification which we have determined is more than the rate for the liquidated classification, you are instructed to DENY the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division