CLA-2 RR:CR:TE 958003 SK/PR
Port Director
U.S. Customs Service
610 South Canal Street
Chicago, IL 60607
RE: Decision on Application for Further Review of Protest
No. 3901-94-102722; denied; classification of suede effect
or linen effect mat board; 4811.90.2000; 4811.90.8000,
HTSUSA; Note 2 to Chapter 48, HTSUSA; mat board is coated
with adhesive; Note 6 to Ch. 48, HTSUSA; unsubstantiated
claim of an established and uniform practice; Heraeus-Amersil, Inc. v. United States, 795 F.2d 1575; 4 Fed.Cir.
(T) 95 (1986), citing Siemens America, Inc. et al. v.
United States, 692 F.2d 1382; 1 Fed. Cir. (T) 9 (1982);
valuation determination.
Dear Sir:
This is a decision on application for further review
of a protest timely filed on December 14, 1994, by the law
firm of Hodes & Pilon on behalf of their client, Crescent
Cardboard Company ("Crescent"), against your decision
regarding the classification of mat board under either
subheading 4811.90.2000 or 4811.90.8000, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). The
protest covers a single entry made at the port of Chicago
on June 7, 1994. This entry was liquidated on September
16, 1994. Samples of the subject merchandise were provided
to this office for examination.
In addition to counsel's submission accompanying the
protest, counsel has provided this office with four
additional written submissions dated June 23, 1994,
November 15, 1995, March 28, 1996, and June 27, 1996. The
last submission was accompanied by a videotape.
FACTS:
The subject mat board is described on the invoices
presented to this office as "paperboard in sheets." The
merchandise (hereinafter "mat board") is manufactured by
and purchased from Moorman Karton, B.V., Holland
("Moorman") and consists of composite paperboard imported
in rectangular sheets greater than 36 centimeters by 15
centimeters. The mat board is sold and used as picture
framing mat board. Protestant states that the mat board is
"covered on one surface with material other than paper."
The subject merchandise consists of a base layer of paper
which is coated on one exterior surface with an adhesive
and either flock or fabric is then affixed to this top
layer of base paper. The paper is then fed through a
machine which applies additional coatings of adhesive to
the core and lining papers and then presses these three
layers together. The mat board features four different
types of non-paper exteriors: suede effect (produced by
textile flocking), leather effect (produced by an
application of an acrylic-type plastic), linen, and moire
silk. Only two of the four types of mat board are at
issue: the suede effect and linen effect mat boards. In
neither sample can the adhesive be seen with the naked eye.
Four reports from the Chicago Customs laboratory were
submitted to this office. The reports provided lab
analysis for style 87109 (taupe suede), style 67303 (dark
green leather) and style 67306 (tan leather).
Counsel for the Protestant makes the following claims:
1) Certain elements of the appraised value for discounts
offered and taken should be excluded from the price
actually paid or payable;
2) Classification under subheading 4805.80.4090, HTSUSA,
is correct as a matter of interpretation of the
tariff schedule;
3) Classification under subheading 4805.80.4090, HTSUSA,
is correct inasmuch as Customs has an established and
uniform practice with regard to the classification of
this merchandise under this provision of the
nomenclature;
4) Classification under 4807.99.4000, HTSUSA, (now
provided for under 4807.90.4000, HTSUSA, under the
terms of the 1996 tariff schedule) is appropriate as
an alternative classification to subheading
4805.80.4090, HTSUSA;
5) Classification under subheading 4811.39.4040, HTSUSA,
is appropriate as an alternative classification to
4805.80.4090, HTSUSA, or 4807.90.4000, HTSUSA.
Heading 4805 provides:
4805 Other uncoated paper and paperboard, in
rolls or sheets, not further worked or
processed than as specified in note 2 of
this chapter
Heading 4807 provides:
4807 Composite paper and paperboard (made by
sticking flat layers of paper or paperboard
together with an adhesive), not surface-coated or impregnated, whether or not
internally reinforced, in rolls or sheets
Heading 4811 provides, in pertinent part
4811 Paper, paperboard, cellulose wadding and webs of
cellulose fibers, coated, impregnated, covered,
surface-colored, surface-decorated or printed, in
rolls or sheets, other than goods of heading 4803,
4809, 4810 or 4818:
* * *
Paper and paperboard, coated, impregnated or
covered with plastics (excluding adhesives):
* * *
Bleached, weighing more than 150 g/mý:
* * *
Other:
* * *
4811.39.4040 Other..................................................................
* * *
4811.90 Other paper, paperboard, cellulose wadding
and webs of cellulose fibers:
4811.90.1000 Handmade
paper..........................................................
Other:
4811.90.2000 Wholly or partly covered with flock,
gelatin, metal or metal
solutions.........................
Other:
* * *
Other:
Other:
* * *
4811.90.8000 Weighing over 30
g/mý......
Counsel for the Protestant also contends that the
September 16, 1994, liquidation under subheadings
4811.90.2000 and 4811.90.8000, HTSUSA, violates Customs
established and uniform practice with regard to the
classification of this commodity under subheading
4805.80.4090, HTSUSA. In support of this claim, counsel
for the Protestant has provided this office with two sworn
affidavits from Gary Szmurlo, Director of Administrative
Services for Crescent. In the first affidavit, dated
November 14, 1995, Mr. Szmurlo attests that Crescent has
filed at least 73 entries for importations of Moorman
fabric mat board from January 1989, to June 1994, and that
during this time all of Crescent's importations occurred at
the port at Chicago. Mr. Szmurlo states that "[V]irtually
all of the entries reflected classification of all
varieties of Moorman fabric board under HTSUSA 4805.80.40."
Counsel for the Protestant also submitted a letter from the
President of Moorman which states that Crescent has been
the exclusive distributor of this product in the United
States since October 1, 1989. In the second affidavit,
dated March 28, 1996, Mr. Szmurlo attests that during the
period from January 1989 to June 1994, 26 of the 73 entries
which were the subject of the first affidavit were for
Moorman products "other than fabric mat board," and were
entered in the United States under a heading other than
4805, HTSUSA. Of these 26 entries, 23 consisted of
importations of corner sample sets, swatches and materials
used for marketing purposes. There were also three entries
of prototype and/or sample Moorman sheet products, totaling
165 sheets, but these did not include any Moorman fabric
mat board.
ISSUES:
1) Whether certain elements of the appraised value, for
discounts offered and taken, should be excluded from
the price actually paid or payable?
2) What is the proper classification of the subject
merchandise?
3) Whether an established and uniform practice exists
with regard to the classification of the subject
merchandise under subheading 4805.80.4090, HTSUSA?
LAW AND ANALYSIS:
- VALUE -
Crescent purchased the subject merchandise from
Moorman in the Netherlands. Crescent's position is that
Customs appraisement of the merchandise in the subject
entry was too high because it did not include the discounts
received from Moorman. It claims that prior to exportation
of the merchandise Moorman agreed to give it an additional
5 percent discount off the previously agreed upon price for
Suede Moorman board in order to allow it to run a
promotion. According to Crescent, the error in appraising
the merchandise apparently arose because, when entering
merchandise, their Customs broker presented an incorrect
invoice to Customs which did not reflect the 5 percent
discount it received. In addition, Crescent contends that
it received a further discount of 3 percent because it paid
for the goods within eight days.
In order to establish that it received the 5 percent
discount, Crescent has presented what it calls a
"corrected" invoice from Moorman dated May 19, 1994. On
the "corrected" invoice, there is a column labeled "Disc."
Under that column, a number "5" is printed along side
several of the rows showing which products were purchased.
This presumably indicates that Moorman gave a 5 percent
discount on these products. On the first invoice that the
broker presented to Customs, the price per sheet is the
same as shown on the "corrected" invoice but there are no
number fives printed in the column for discounts. Where a
"5" is printed in the discount column, the amount owed for
the item on the "corrected" invoice is 5 percent less than
the amount shown on the original invoice presented to
Customs. The total amount owed for the imported
merchandise shown on the "corrected" invoice is
$100,314.46, while the total amount shown on the first
invoice presented to Customs is $103,661.50. On the top of
both invoices the words "payment 8 days 3 percent" are
printed. Counsel has also submitted an international funds
transfer drawn on Harris Bank which shows that Crescent's
account was debited a total of $97,305.0400. The entry
documents indicate that the merchandise was appraised at
$103,662.
As you know, the preferred method of appraisement is
transaction value which is defined by 402(b)(1) of the
Tariff Act of 1930, as amended by the Trade Agreements Act
(TAA) of 1979 (19 U.S.C. 1401a(b)) as "the price actually
paid or payable for the merchandise when sold for
exportation to the United States..." plus certain additions
specified in 402(b)(1)(A) through (E).
The term "price actually paid or payable" is defined
in TAA 402(b)(4)(A) as: ...the total payment (whether
direct or indirect ...) made, or to be made, for the
imported merchandise by the buyer to, or for the benefit of
the seller." Section 152.103(a)(1) of the Customs
Regulation (19 CFR 152.103(a)(1)) provides that the price
actually paid or payable "...will be considered without
regard to its method of derivation. It may be the result
of discounts, or negotiations, or may be arrived at by the
application of a formula ..." A discounted price must be
agreed to and effected prior to exportation of the
merchandise for it to constitute the price actually paid or
payable. See Customs Headquarters Ruling Letter (HQ)
544907, April 13, 1992.
In this case, the importer has presented two documents
to show that the price actually paid or payable used to
determine the transaction value of the imported merchandise
should have been reduced because the seller gave the
importer certain discounts. The first document is a
"corrected" invoice from the seller, which shows that the
importer received a 5 percent discount on certain items
that it purchased. The "corrected" invoice also shows that
the importer would receive an additional 3 percent discount
if it paid for the merchandise within 8 days. The second
document that the importer has presented is a bank transfer
record, which indicates that the total amount Crescent paid
Moorman for the imported merchandise was $97,305.0400.
This means that total payment made to the seller for the
imported merchandise included the discounts shown on the
corrected invoice. The invoice is dated May 19, 1994. The
entry for the merchandise was made on May 26, 1994. This
demonstrates that the discounts were agreed to and effected
prior to the exportation of the merchandise.
Accordingly, based on the evidence in the record, we
are satisfied that the price actually paid or payable for
the imported merchandise included discounts of 5 percent
and 3 percent, and that these discounts were agreed to and
effected prior to the exportation of the merchandise.
Therefore, we find that the appraisement of the merchandise
was incorrect. The entry should be reliquidated so that
the transaction value of the imported merchandise includes
the 5 percent merchandise discount and 3 percent timely
payment discount as shown on the "corrected" invoice
presented by the importer.
-CLASSIFICATION -
Classification of merchandise 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. Merchandise that cannot be
classified in accordance with GRI 1 is to be classified in
accordance with subsequent GRI's, applied in numerical
order.
The threshold question is whether the subject mat
board is classifiable under heading 4805, HTSUSA, which
provides for other uncoated paper and paperboard, not
further worked or processed than as specified in note 2 to
this chapter." Legal Note 2 to Chapter 48, provides:
2. Subject to the provisions of note 6, headings
4801 to 4805 include paper and paperboard which
have been subjected to calendering, super-calendering, glazing or similar finishing, false
water-marking or surface sizing, and also paper,
paperboard, cellulose wadding and webs of
cellulose fibers, colored or marbled throughout
the mass by any method. Except where heading
4803 otherwise requires, these headings do not
apply to paper, paperboard, cellulose wadding or
webs of cellulose fibers which have been
otherwise processed, for example, by coating or
impregnation.
In counsel's submission to this office, subheading
4805.80.4090, HTSUSA, is offered as the correct
classification for the subject mat board. Counsel states
that the subject merchandise is described by the heading
language. Counsel submits that the subject mat board is
uncoated because "the outermost surface which distinguishes
the suede, leather, linen and silk products is not a
coating' but rather a covering.'" We do not agree. First
The American Heritage Dictionary, Second College Edition
(1982), at page 285, defines "coating" as "A layer of a
substance spread over a surface for protection or
decoration; a covering layer," and Webster's Encyclopedic
Unabridged Dictionary of the English Language (1996)
defines "coating" as, "a layer of any substance spread over
a surface." (at page 394).
Furthermore, in looking for guidance from the
Harmonized Commodity Description and Coding System,
Explanatory Notes (EN), which is the official
interpretation of the HTSUSA at the international level
(for the 4 digit headings and the 6 digit subheadings), we
note that for heading 5907, HTSUSA, the heading under which
fabrics coated with substances other than plastics or
rubber are classifiable:
Fabric, the surface of which is coated with glue
. . . plastics, rubber or other materials and
sprinkled with a fine layer of other material
such as:
(1) Textile flock or dust to produce imitation
suedes . . . Fabrics covered with textile
flock or dust to produce imitation pile (for
example, corduroy) remain classified in this
heading.
(at page 898)
The EN to chapter 48, HTSUSA, at pages 735-736, define
"coated paper and paperboard" in the following manner:
This term applies to paper or paperboard which
has been given a coating on one or both sides
either to produce a specially glossy finish or to
render the surface suitable for particular
requirements.
* * *
Subject to the exceptions mentioned in the
heading, paper and paperboard with a coating of .
. . textile dust . . . fall in heading 4811 .
. . Such coated papers and paperboards include
gummed or adhesive paper, flock papers (coated
with textile dust . . . ). [emphasis added]
In addition, we note that under the Tariff Schedules
of the United States (TSUS), the predecessor of the HTSUS,
the term "coated or filled" in Schedule 3, subpart C, note
2(a), was defined for the purpose of the entire tariff
schedules, as meaning that a textile fabric "has been
coated or filled (whether or not impregnated) with . . .
flock . . ." See also T.D. 68-77(6).
The determinative criterion for classification within
headings 4805 and 4507, HTSUSA, is that the paper or
paperboard is not coated. In view of the preceding, we
conclude that the flock application is a "coating" within
the purview of heading 4811 and that the imported suede
effect mat boards are, therefore, precluded from
classification under headings 4805 and 4807. Accordingly,
they are properly classifiable under heading 4811.
We recognize that headings 4805 and 4807 may describe
the imported linen effect mat board because the mat board
has been laminated to the linen fabric and a lamination is
not a coating. C.J. Tower & Sons of Buffalo, Inc. v.
United States, 62 Cust. Ct. 643 (1969). However, a
lamination does constitute a "covering." Customs
Headquarters Ruling Letter (HQ) 083129, dated November 14,
1989. Accordingly, while the linen effect mat board is not
coated, it is "covered" and, therefore, it is described by
heading 4811. Note 6 to chapter 48 provides:
6. Paper, paperboard, cellulose wadding and
webs of cellulose fibers answering to a
description in two or more of the headings
4801 to 4811 are to be classified under that
one of such headings which occurs last in
numerical order in the tariff schedule.
Pursuant to note 6, the linen effect mat board is
precluded from classification under either heading 4805 or
heading 4807 and is properly classifiable under heading
4811, the heading which last in numerical order of the
three headings in consideration.
The subject merchandise was liquidated by Customs
under subheadings 4811.90.2000 and 4811.90.8000, HTSUSA.
The subject "suede effect" and "linen effect" mat boards
are prima facie classifiable within these respective
subheadings; the merchandise consists of paperboard of
cellulose fibers that have either been coated with flock or
covered with a linen fabric.
The linen effect mat board has a linen fabric
laminated to the paperboard. Since lamination and coating
are two different methods of covering a surface area, the
paperboard has not been "coated" for tariff purposes.
Accordingly, it appears that headings 4805, 4807 and 4811
all describe the linen effect mat board. By application of
chapter 48 note 6, the goods are precluded from
classification under either heading 4805 or heading 4807
and are classifiable under heading 4811, the heading which
appears last in numerical order.
In support of the argument for classification under
subheading 4807.90.4000, HTSUSA, counsel submits that as
heading 4807, HTSUSA, is the only provision for "composite"
paper and paperboard in Chapter 48, an article described by
this heading is not described by any other heading within
Chapter 48 and therefore Note 6 to Chapter 48 is
inapplicable in this instance. In essence, it is contended
that merchandise classifiable in heading 4807, HTSUSA, is
excluded from operation of Note 6 to Chapter 48. We
disagree. The manner in which the Legal Notes to Chapter
48 were drafted make it eminently clear that they create
limited and specific exclusions. For example, Note 2
states that heading 4803 is, to some extent, exempt from
this Note's effect. Note 7 states that headings 4803, and
4809 are exempt. Note 6 applies to headings 4801 through
4811, HTSUSA. The terms of heading 4807 do not restrict
the application of note 6 to that heading. Counsel's
positions is negated by the clear wording of note 6 and the
fact that, if that note were not intended to apply to
uncoated composite paper and paperboard, note 6 would not
have been drafted to specifically include heading 4807.
Counsel offers subheading 4811.39.4040, HTSUSA, as the
final alternative classification for the subject
merchandise. Subheading 4811.39.4040, provides for other
paper and paperboard, coated, impregnated or covered with
plastics (excluding adhesives). The specific inclusion of
the language "excluding adhesives" prevents any
consideration of the plastics adhesive being considered a
coating.
Counsel argues that the covering of the subject mat
board consists of "viscose fibers, a plastic," or
"flax/cellulose fibers or cellulose fibers," and that these
are "plastic." Counsel further posits that as these
articles are "coated or covered with plastic," they must be
classified in the subheadings which provide for paper or
paperboard so coated or covered, and therefore Customs'
presumed classification of subheading 4811.90, HTSUSA, is
not reached. Again, we disagree. Flax and cellulose are
not deemed "plastics" in a tariff sense. See Note 1(b) to
Chapter 54, HTSUSA, which reads:
Throughout the tariff schedule, the term man-made fibers'
means staple fibers and filaments or organic
polymers
produced by manufacturing processes, either:
* * *
(b) By chemical transformation of natural organic
polymers (for
example, cellulose, casein, proteins or algae),
such as viscose
rayon, cellulose acetate, cupro or alginates.
Moreover, according to Webster's New Collegiate Dictionary,
(1977), at page 438, "flax" is defined as:
1. Any of a genus(Linum of the family Linaceae, the
flax family) of herbs;
esp: a slender erect annual (L. Usitatissimum) with
blue flowers commonly cultivated for its bast fiber and
seed 2: the fiber of the flax plant esp. When prepared
for spinning 3: any of several plants resembling flax.
The subject merchandise is paper or paperboard, coated or
covered with textile fibers or fabrics. As such, and as
set forth supra, the mat board is described by subheading
4811.90, HTSUSA, and the subject merchandise was properly
classified at liquidation.
- ESTABLISHED AND UNIFORM PRACTICE -
Counsel for the Protestant contends that an established and
uniform practice exists with regard to Customs'
classification of the subject mat board under subheadings
4805.80.4090, HTSUSA. See Section 315(d), Tariff Act of
1930, as amended, 19 U.S.C. Section 1315(d).
The original basis for this claim rests on a series of 73
entries, made between January, 1989 and June, 1994, at the
port of Chicago. A sworn written statement by Crescent's
Director of Administrative Services, Mr. Gary Szmurlo,
attests that "[V]irtually all of the entries reflected
classification of all varieties of Moorman fabric board
under HTSUS
4805.80.40... ." As noted supra, Mr. Szmurlo's second
affidavit stated that 26 of the 73 entries upon which the
established and uniform practice claim is based were for
entries of Moorman products entered under a heading other
than 4805, HTSUSA. Twenty-three of the 26 non-mat board
Moorman products consisted of corner sample sets; the
subheading under which these goods were entered was not
provided. The other three entries were for "sample
sheets." Presumably "sample sheets" consist of "sheets of
non-fabric mat board," as that is how counsel describes
this merchandise on page 5 of his March 28, 1996,
submission. The sample sheets would later be combined by
means of adhesives and mechanical pressing to additional
layers of paperboard. Based on the above, it appears that
counsel's original submission should be amended to state
that Protestant's established and uniform practice claim is
based on a series of 47 entries made between January, 1989
and June, 1994, at the port of Chicago.
We further note that although documentation was submitted
to this office which establishes that Crescent is the only
importer of Moorman mat board in the United States, no
definitive documentation was submitted which establishes
that Crescent is the only importer in the U.S. of this type
of product or substantially similar products, other than
Mr. Szmurlo's second affidavit which states that "Crescent
is unaware" of any other such importer.
The Court of International Trade has spoken to the issue of
which types of importing scenarios serve to create an
established and uniform practice. Essentially, the
judicial search for a uniform practice is "concentrated
largely on evidence of uniform classification and
liquidation of merchandise at various ports over an
extended period of time." See Heraeus-Amersil, Inc. v.
United States, 600 F.Supp. 221, at 223, 8 CIT. 329 (1984).
In Siemens America, Inc. v. United States, 692 F.2d 1382; 1
Fed. Cir. (T) 9 (1982), the U.S. Court of Appeals for the
Federal Circuit rejected the plaintiff's argument that the
liquidation of approximately 100 entries under one item
over a two-year period at one port created an established
and uniform practice. Of particular import to the case at
issue is the fact that in Siemens America, 692 F.2d at
1383, the Court of Appeals upheld the CIT.'s earlier
holding and determined that the appellant had failed to
meet its burden of establishing the existence of an
established and uniform practice, in part, because "it did
not establish that it was the sole importer of the
merchandise or that the merchandise was imported solely at
the port of New York." Similarly, in this case, Customs
is not able to determine whether an established and uniform
practice exists with regard to the subject mat board
without evidence that this commodity, and all other
substantially similar merchandise, is only being entered
through the port of Chicago. If entries of this
merchandise, or substantially similar merchandise, is being
entered at other ports in the U.S. under subheadings other
than 4805.80.4090, HTSUSA, an established and uniform
practice does not exist with regard to the subject
merchandise. See Siemens, at 1383. See also A Manual of
Customs
Law, by Ruth F. Sturm, (1974), at page 201, citing, inter
alia, United States v. H. Reeve Angel & Co., Inc. 33 CCPA
114, C.A.D. 324 (1946), cert. den. 328 U.S. 835 (1946),
which reads:
Long-continued administrative practice must be
shown by
positive evidence. It is not established by the
rulings of one
or two collectors (ports) as to a few shipments .
It appears that two issues require resolution in the
instant scenario: the first is whether identical or
substantially similar merchandise was classified in a
subheading other than 4805.80.4090, HTSUSA, at other ports
in the U.S.; the second is whether Crescent's mat board was
"uniformly" classified at the port of Chicago during the
time period in question.
In an effort to determine whether this type of
merchandise was only brought into the United States by
Crescent through the port of Chicago and, in effect,
whether an established and uniform practice exists with
regard to this merchandise, this office conducted a
computer search of entries made at various ports. A
preliminary search revealed that over 83 entries of flock
covered paper, identical to the subject mat board except
that it had not yet been laminated to additional layers of
paperboard, were entered at the airport and seaport at
Boston. The entries span a period of approximately four
years and all were liquidated under subheading
4811.90.2000, HTSUSA, which provides for paper and
paperboard of cellulose fibers that have been covered with
flock. In the March 28, 1996, submission to this office,
counsel for the Protestant argues that "flocked paper
cannot be compared to liquidations of the Moorman board
because they are simply different articles." This
sentiment was further argued in counsel's June 27, 1996,
submission to this office and in that submission's
accompanying video presentation. Essentially, you argue
that flock paper imported through the port of Boston under
subheading 4811.90.2000, HTSUSA, is not substantially
similar to Moorman mat board in that the flock paper: 1) is
imported in rolls; 2) is not commercially interchangeable
(fungible) with mat board; 3) is a mere component of mat
board; and 4) may have other applications than for use in
mat boards. These assertions notwithstanding, the fact
remains that the flock-covered paper the subject of the 83
entries is identical to the flock-covered paper used in the
Crescent mat board. The only difference, and we do not
find it significant in this instance, is the degree of
thickness between the flock-covered paper and Crescent's
mat board; the latter has been fused with additional layers
of paperboard to render it approximately 2 millimeters
thicker. The flock-covered paper which was classified
under subheading 4811.90.2000, HTSUSA, will be similarly
fused with additional layers of paperboard and used for
identical purposes (i.e., for use in framing pictures)
after importation. As flock covered paper and paperboard
was being treated inconsistently at different ports for
classification purposes, this office concludes that
Protestant's claim that an established and uniform practice
exists with regard to Moorman mat board is unsubstantiated.
With regard to the issue of whether Customs' classification
of the subject merchandise was "uniform" at the port of
Chicago for the time period at issue, there remains some
question as to whether Customs' classification of the
corner sample sets and the mat board "sample sheet" under a
subheading other than 4805.80.4090, HTSUSA, destroys the
requisite uniformity necessary to uphold the Protestant's
established and uniform practice claim. Samples of these
articles, as well as information regarding how they were
classified, would be helpful in this determination. In any
event, the resolution of this issue is rendered moot
inasmuch as proof exists, as set forth in the preceding
paragraph, which establishes that merchandise substantially
similar to the subject mat board was not classified in a
manner uniform with the 47 entries made by Crescent at the
port of Chicago. This fact effectively invalidates
Protestant's claim that Customs had an established and
uniform practice with regard to the classification of this
merchandise.
HOLDING:
No established and uniform practice exists with regard to
the classification of this merchandise.
The subject mat board, if covered with the "flock effect,"
is classifiable under subheading 4811.90.2000, HTSUSA,
which provides for "Paper, paperboard, cellulose wadding
and webs of cellulose fibers, coated, impregnated, covered,
surface-
colored, surface-decorated or printed, in rolls or sheets,
other than goods of heading 4803, 4809 or 4810: other
paper, paperboard, cellulose wadding and webs of cellulose
fibers: other: wholly or partly covered with flock,
gelatin, metal or metal solutions... ." The rate of duty
applicable in 1994 was 3.3 percent ad valorem.
The subject mat board, if covered with the "linen effect,"
is classifiable under subheading 4811.90.8000, HTSUSA,
which provides for "Paper, paperboard, cellulose wadding
and webs of cellulose fibers, coated, impregnated, covered,
surface-colored, surface-decorated or printed, in rolls or
sheets, other than goods of heading 4803, 4809 or 4810:
other paper, paperboard, cellulose wadding and webs of
cellulose fibers: other: other: other: weighing over 30
grams per square meter... ." The rate of duty applicable
in 1994 was 2 percent ad valorem.
As the rate of duty under the classification indicated
above is the same as the rate under which the subject
merchandise was liquidated, you should deny the protest in
full. A copy of this decision should be furnished to the
Protestant with the CF 19 Notice of Action to satisfy the
notice requirement of Section 174.30(a), Customs
Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, this decision should be mailed by your
office to the Protestant no later than 60 days from the
date of this letter. Any reliquidation of these entries in
accordance with this 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 take
steps to make the decision available to Customs personnel
via the Customs Rulings Module in ACS and the public via
the Diskette Subscription Service, Freedom of Information
Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division