CLA 2 CO:R:C:G 082955 DFC
John B. Pellegrini, Esq.
Law Offices
Ross & Hardies
529 Fifth Avenue
New York, New York 10017 4608
RE: Tariff classification of a ceramic flagon and a cloth bag
Dear Mr. Pelligrini:
In a letter dated October 18, 1988, you inquired as to the tariff classification of Scotch whiskey imported in a ceramic flagon which is in a cloth bag. All of these items are packaged inside a cardboard box. You have also submitted further arguments supporting your position in a letter dated September 22, 1989.
FACTS:
The ceramic flagon is dark blue, oval shaped, and has a capacity of 750 milliliters. It is embossed on the front with a man on horseback holding a sword, and with other embossed
decorations. A label appears in an oval in the front of the jug which reads "Royal Salute, 21 Years Old Blended Scotch Whisky." Other labels are affixed to the jug with information
on the manufacturer, capacity, proof, and country of origin. All of the labels can be removed. The container has a tight fitting cork stopper. The flagon is said to have a value of
2.58 English pounds.
The cloth bag consists of velvet material with a drawstring at the top. The words "Royal Salute" and "Chivas" are embroided in gold lettering on opposite sides of the bag. The bag's fabric is not identified, but the value is stated to be approximately 25 pence.
It is your opinion that the merchandise is classifiable under subheading 2208.30.30, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as Irish and Scotch whiskies.
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ISSUE:
Whether the flagon and the cloth bag are separately classifiable, or are classifiable in the same manner as their contents.
LAW AND ANALYSIS:
In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation
(GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to /the remaining GRI's taken in order/." In other words, classification is governed first by the terms of the headings of the tariff and
any relative section or chapter notes.
GRI 5, HTSUSA, which is relevant in determining whether the flagon and cloth bag are classifiable in the same manner as the whiskey reads as follows:
5. In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred therein:
(a) Camera cases, musical instrument cases,
gun cases, drawing instrument cases, necklace
cases and similar containers, specially shaped
or fitted to contain a specific article or set
of articles, suitable for long term use and
entered with the articles for which they are
intended, shall be classified with such articles
when of a kind normally sold therewith. This
rule does not, however, apply to containers
which give the whole its essential character;
(b) Subject to the provisions of rule 5(a) above,
packing materials and packing containers entered
with the goods therein shall be classified with
the goods if they are of a kind normally used for
packing such goods. However, this provision does
not apply when such packing materials or packing
containers are clearly suitable for repetitive use.
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Rule 5(a) does not apply here because neither the flagon nor the cloth bag are specially fitted or shaped to contain a specific article.
With regard to the cardboard box and the cloth bag, Rule 5(b) is not applicable if the packing materials and packing container are clearly suitable for repetitive use.
For the purposes of GRI 5(b), the term "repetitive use" is interpreted to mean use with goods of the kind presented in the packing container. It is Customs position that the subject
cloth bag is not designed for repetitive use. Although capable of further use with various small articles, such uses are considered fugitive and, therefore, not within the meaning of
GRI 5(b).
Information before this office is that the flagon is a container "of a kind normally used for packing" premium whiskies. Further, it is not suitable for repetitive use noting that reuse of the flagon as a liquor bottle is expressly prohibited by federal law and regulation. Thus, the flagon is classifiable in the same manner as its contents within the purview of Rule 5(b).
The cardboard box and the cloth bag are not suitable for repetitive use and therefore are considered packing containers within the purview of Rule 5(b) and are classifiable with their contents.
HOLDING:
The merchandise at issue is classifiable under subheading 2208.30.3030, HTSUSA, with duty at the rate of 5.3 cents/pf liter. Imports under this subheading may be subject to a
Federal Excise Tax (26 U.S.C. 5001) of $12.50 per proof gallon and a proportionate tax at the like rate on all fractional parts of a proof gallon.
Sincerely,
John Durant, Director
Commercial Rulings Division