CLA-2 CO:R:C:M 950597 KCC
District Director
U.S. Customs Service
511 N. W. Broadway Federal Building
Suite 198
Portland, Oregon 97209
RE: Protest No. 2904-91-000089; tantalum ingots; waste and
scrap; Note 6(a), Section XV
Dear Sir:
This is in response to the Application for Further Review of
Protest No. 2904-91-000089, dated May 24, 1991, which pertains to
the tariff classification of tantalum ingots under heading 8103,
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise under consideration is tantalum ingots.
Upon importation into the U.S., you liquidated the entry for the
tantalum ingots under subheading 8103.10.60, HTSUS, which
provides for "Tantalum and articles thereof, including waste and
scrap...Unwrought tantalum including bars and rods obtained
simply by sintering; waste and scrap; powders...Other." The
Transportation Entry and Manifest of Goods Subject to Customs
Inspection and Permit (Customs Form 7612) described the tantalum
ingots as "2 boxes metal bars".
The protestant, Teledyne Wah Chang Albany, contends that the
tantalum should be properly classified as waste and scrap under
subheading 8103.10.30, HTSUS. Protestant has submitted a letter
dated December 20, 1990, which it wrote to the Myers Group (U.S.)
Inc. stating that "[t]he material was waste and scrap and did not
become a useful product until after we converted it and returned
good material to them." Additionally, a letter dated December
21, 1990, to the protestant states "CEZUS (the shipper) certify
hereby that we shipped to you 1 144,5 kg of Tantalum scrap for
toll remelting into ingots."
ISSUE:
Are the tantalum ingots properly classified as waste and
scrap under subheading 8103.10.30, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by 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...."
The tantalum ingots are properly classified under heading
8103, HTSUS, which provides for "Tantalum and articles thereof,
including waste and scrap...." Heading 8103, HTSUS, falls within
Section XV making the Section XV Notes applicable to this
classification. Note 6(a), Section XV, HTSUS, states that "[i]n
this section, the following expressions have the meanings hereby
assigned to them:
(a) Waste and scrap
Metal waste and scrap from the manufacture or mechanical
working of metals, and metal goods definitely not usable as
such because of breakage, cutting-up, wear or other reasons.
Protestant contends that the tantalum ingots entered into
the U.S. are waste and scrap. However, they have not submitted
evidence substantiating that the tantalum ingots are waste and
scrap pursuant to Note 6(a), Section XV, HTSUS, except to say
that it is scrap. See, December 20, 1990 letter from protestant
to the Myers Group (U.S.) Inc. A letter sent by CEZUS, the
shipper, dated December 21, 1990, states that 1,144,5 kg of
tantalum scrap for toll remelting into ingots was shipped to the
protestant. However, no evidence has been submitted that the
tantalum ingots are metal waste and scrap from the manufacture or
mechanical working of metals. In the absence of such evidence we
must agree with the action taken in liquidating the entry under
subheading 8103.10.60, HTSUS.
HOLDING:
The tantalum ingots are classified under subheading
8103.10.60, HTSUS, "Tantalum and articles thereof, including
waste and scrap...Unwrought tantalum including bars and rods
obtained simply by sintering; waste and scrap; powders...Other."
This protest should be denied in full. A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division