CLA-2 RR:CR:GC 959587 RC
Port Director of Customs
c/o Chief, Residual Liquidation and Protest Branch
9901 Pacific Highway
Blaine, Washington 98230
RE: Protest 3004-96-100468, Peppermint and Peach Flavors
Dear Port Director:
This is our decision on protest 3004-96-100468, timely filed
June 27, 1996, against your decision in the classification of
peppermint and peach flavors under the Harmonized Tariff Schedule
of the United States (HTSUS).
FACTS:
The merchandise consists of Peppermint Flavour, #942104100,
and Peach Flavour, #X90391075. The flavors serve as raw material
ingredients, used to produce finished drink beverages and
finished foods.
You classified the peppermint flavor in heading 2106, HTSUS,
the provision for other food preparations not elsewhere specified
or included, syrups derived from cane or beet sugar, containing
added coloring but not added flavoring matter; and the peach
flavor in heading 2208, HTSUS, the provision for other
undenatured ethyl alcohol of an alcoholic strength by volume of
less than 80 percent vol.; spirits, liqueurs and other spirituous
beverages; compound alcoholic preparations of a kind used for the
manufacture of beverages. Pursuant to a CF 28 request for
additional information, you classified both flavors in subheading
2106.90.9999, HTSUS.
The protestant claims that both the peppermint and the peach
flavors should be classified in subheading 3302, HTSUS, the
provision for mixtures of odoriferous substances and mixtures
(including alcoholic solutions) with a basis of one or more of
these substances, of a kind used as raw materials in industry.
In a supplemental submission, the protestant provided, inter
alia, the following breakdown of ingredients for each flavor:
The peppermint flavor consists of water, modified food
starch, peppermint essential oil, citric acid, and
sodium benzoate. The peach flavor consists of
propylene glycol, ethyl alcohol, fruit essences, ethyl
acetate and other organic esters, acetic acid and other
organic acids, acetyl aldehyde and other organic
aldehydes, essential oils, and miscellaneous organic
flavor compounds.
The peppermint flavor is described as a water based
emulsion of essential oils, utilizing the modified food
starch as the emulsion stabilizer. The organic flavor
compounds in the peach flavor are derived from natural
sources.
The HTSUS provisions discussed herein are those which were
in effect at the time the merchandise covered by the referenced
protest was entered (1995).
ISSUE:
Whether the peppermint and peach flavors are properly
classified in headings 2106 and 2208, HTSUS, respectively, or
both in heading 2106 or 3302, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI's). The systematic
detail of the HTSUS is such that virtually all goods are
classified by application of GRI 1, that is, 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 peppermint flavor is described as a water-based emulsion
of essential oils, utilizing modified food starch as the emulsion
stabilizer. The organic flavor compounds in the peach flavor are
derived from natural sources. The products are raw materials
typically used in the beverage and food industries. Both flavors
are based on odoriferous substances. The peppermint flavor is
based on peppermint essential oil, and the peach flavor has its
basis in the fruit essences -- essential oils, esters, acids and
aldehydes.
In each case, the essential oils and the synthetic
aromatics, which are products of chapters 33 and 29, form the
basis of the flavor, therefore placing the merchandise in heading
3302, HTSUS, the provision for mixtures of odoriferous substances
and mixtures (including alcoholic solutions) with a basis of one
or more of the listed substances, of a kind used as raw materials
in industry.
HOLDING:
The Peppermint Flavour, #942104100, is properly classified
in subheading 3302.10.10, HTSUS, the provision for "[m]ixtures of
odoriferous substances and mixtures (including alcoholic
solutions) with a basis of one or more of these substances, of a
kind used as raw materials in industry: Of a kind used in the
food or drink industries: Not containing alcohol," dutiable at
4.8 percent ad valorem (1995). The Peach Flavour, #X90391075, is
properly classified in subheading 3302.10.30, HTSUS, the
provision for "[m]ixtures of odoriferous substances and mixtures
(including alcoholic solutions) with a basis of one or more of
these substances, of a kind used as raw materials in industry:
Of a kind used in the food or drink industries: Containing over
20 percent of alcohol by weight," dutiable at 5 percent ad
valorem (1995).
You are instructed to allow the protest in full. A copy of
this decision should be attached to the Customs Form 19 to be
returned to the protestant.
In accordance with Section 3A(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 the entries 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 take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division