CLA-2 RR:CR:GC 960022 JRS
Port Director of Customs
c/o Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, New York 10048-0945
RE: Protest 1001-96-107111; Glass votive-candle holders;
principal use; Yahrzeit light, Jewish memorial candle
holder; HQ 957982; HQ 950426; HQ 088742; HQ 950245; HQ
956108; 7010.90.50; 9405.50.40
Dear Port Director:
The following is our decision on the referral by your
office, dated November 26, 1996, of the above-referenced protest
filed, on behalf of Prayer Candle Co., by Harold I. Pepper Co.,
Inc. on September 11, 1996.
FACTS:
The imported merchandise made in Portugal was entered in the
Port of New York on November 15, 1995, under subheading
7010.90.50, Harmonized Tariff Schedule of the United States
(HTSUS), as glass containers. The entry was liquidated on July
5, 1996, as general purpose candle holders under subheading
9405.50.40, HTSUS, the provision for non-electrical lamps and
lighting fittings. A timely protest under 19 U.S.C. 1514 against
the liquidation was filed on September 11, 1996.
The protestant claims that the merchandise is properly
classified as glass containers under subheading 7010.90.50,
HTSUS, because they are imported into the United States empty and
then filled with candle wax and a wick. The merchandise is
described on the commercial invoice as "empty glass bottles (Star
Candle 200ml)." On the Customs Form 19, the protestant states
that after its use is fulfilled, the glass container is discarded
and not re-used. The protestant requests that the entry be
reliquidated with a free rate of duty.
Two samples were submitted for our review, one in its
condition as imported and one in its condition as sold, that is,
one filled with wax and a wick and affixed with a label
containing symbols for the "Star of David" and the following
words, written in English: "Yahrzeit Memorial Lamp, Standard
Tumbler." Under these words, Hebrew letters appear, which
translate in English as follows: "For Yahrzeit and Day of
Atonement." The samples, which resemble small drinking glasses,
are made of clear low quality glass with a smooth top-half and an
exterior, beveled square-pattern on the bottom-half. The samples
measure approximately 4 inches tall and possess an exterior mouth
diameter of approximately 2 and 5/16 inches. The lip of the
glass is irregular. It has molded seams and manufacturing
information is embedded on the bottom. The filled-glass sample
contained 2« inches of white paraffin wax and a 2-inch exposed
wick.
According to additional information submitted by the
importer on January 27, 1997, all the merchandise at issue is
marketed only as candles for religious purposes, specifically 75%
are Memorial Lamps for Jewish trade and 25% are for Catholic
trade and churches.
ISSUE:
Whether the empty glassware is properly classified as other
containers used for the conveyance or packing of goods under
subheading 7010.90.50, HTSUS, as non-electrical lamps and
lighting fittings under subheading 9405.50.40, HTSUS, or as
votive-candle holders for devotional (i.e., religious or
memorial) purposes under subheading 7013.99.35, HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRIs). GRI
1 provides that classification is determined according to the
terms of the headings of the tariff schedule and any relevant
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 GRIs may then
be applied.
The subheadings under consideration are as follows:
7010.90.50 [c]arboys, bottles, flasks, jars, pots, vials,
ampoules and other containers, of glass, of a kind
used for the conveyance or packing of goods;
preserving jars of glass; stoppers, lids and other
closures, of glass: [o]ther: [o]ther containers
(with or without their closures). The general column
one is a free rate of duty.
9405.50.40 [l]amps and lighting fittings including
searchlights
and spotlights and parts thereof, not elsewhere
specified or included; illuminated signs,
illuminated nameplates and the like, having a
permanently fixed light source, and parts thereof
not elsewhere specified or included: [n]on-electrical
lamps and lighting fittings: [o]ther: [o]ther. The general
column one rate of duty is 7.3 percent ad valorem.
7013.99.35 [g]lassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018): [o]ther glassware: [o]ther: [o]ther:
[v]otive-candle holders. The general column one
rate of
duty is
6.6
percent ad
valorem
Headings 7010 and 7013, HTSUS, are both considered "use"
provisions. Additional U.S. Rule of Interpretation 1(a), HTSUS,
states that:
[A] tariff classification controlled by use
(other than actual use) is to be determined
in accordance with the use in the United
States at, or immediately prior to, the date
of importation, of goods of that class or
kind to which the imported goods belong, and
the controlling use is the principal use.
Heading 7010, HTSUS, provides for bottles, vials and other
containers of glass which are of a kind used for the conveyance
or packing of goods. Explanatory Note (EN) 70.10 of the
Harmonized Commodity Description and Coding System (HCDCS),
states that heading 7010 "covers all glass containers of the
kinds commonly used commercially for the conveyance or packing of
liquids or of solid products (powders, granules, etc.)."
Generally, the types of containers covered by this heading
include bottles, jars, pots, and similar containers that are used
for chemical products (acids), beverages, certain foodstuffs
(condiments, sauces, fruit, preserves, honey, etc.), cosmetic or
toilet preparations (face creams, hair lotions, etc.),
pharmaceutical products (ointments, etc.), polishes, cleaning
preparations, oils, meat extracts, perfumery preparations,
pharmaceutical products, inks, glues, etc. The ENS, although not
dispositive, are to be looked to for the proper interpretation of
the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989).
The types of containers found in heading 7010, HTSUS, are
principally used to convey a product to the consumer who uses the
product in the container and then discards the container. Since
the glasses at issue are principally used to hold the wax while
it is being burned, the glasses are not properly classified under
heading 7010, HTSUS. The form of the merchandise at issue
resembles the form of a drinking glass or "tumbler;" however, the
beveled design on the lower portion of the glass, the molded
seams, the manufacturing information embedded in the bottom, and
the slightly irregular shape of the lip indicate that it is not
an ordinary drinking glass. These design factors are strong
indicators that the glass will function as a candle holder. We
are of the opinion that the glasses at issue are not principally
used as the class or kind of merchandise contemplated by heading
7010, HTSUS, are used. In prior rulings, Customs has held that
similar glasses were not principally used as the class or kind of
merchandise to commercially convey candle wax as contemplated by
heading 7010, HTSUS. See HQ 957982, dated August 3, 1995; HQ
954308, dated June 6, 1994; and HQ 950426, dated June 19, 1992,
which held that glass containers imported into the U.S. empty and
then filled with candle wax and a wick were classifiable under
subheading 7013.99.35, HTSUS, rather than under subheading
7010.90.50, HTSUS. The importer's argument for classification in
heading 7010, HTSUS, is incorrect since this merchandise is
principally used as a candle holder.
The three rulings cited by the Port Director, namely, HQ
954308, dated June 6, 1994, HQ 955935, dated March 14, 1994, and
HQ 955281, dated July 29, 1995, classified similar candle holders
which were imported empty and then filled with candle wax and a
wick, as non-electrical lamps and light fittings under subheading
9405.50.40, HTSUS. In all three rulings, the importers had not
submitted sufficient evidence to show, at the time of
importation, that these glasses were to be principally used for
burning candle wax for devotional purposes. As such, Customs
found that the candle holders were properly classified as general
purpose candle holders under Heading 9504. If a product is
imported in a form which is principally used to hold any type of
candle (i.e., a general purpose candle holder) and no evidence is
presented to show that the candle holder is principally used to
hold candles dedicated for religious or memorial purposes,
subheading 9405.50.40, HTSUS, will apply. When candle holders
are imported without religious pictures or motifs, they will not
be simply regarded as votive candle holders even though some or
all of these items imported on a particular shipment may later be
decorated with religious symbols or pictures. For example, in HQ
955281, approximately half the candle holders were sold to be
used for "religious purposes," while the remainder was to be used
for restaurant or patio purposes.
Tariff classification under subheading 7013.99.35, HTSUS, is
determined by the use of the class or kind of articles to which
the imported merchandise belongs. As such, it is considered a
provision controlled by Additional U.S. Rule of Interpretation
1(a), HTSUS. Subheading 7013.99.35, HTSUS, provides for glass
votive-candle holders. Customs has held in prior rulings that a
glass votive-candle holder is a glass candle holder principally
used in churches where the candles are burned for devotional
purposes, or used in the home for commemorative or religious
purposes. See HQ 956108, dated May 16, 1994; HQ 957982, dated
August 3, 1995; and HQ 950245, dated December 10, 1991.
Additionally, we have held that votive-candle holders are
generally of two types, large glasses or "sanctuary lamps" which
are uniquely suited for devotional purposes as they contain
candles that burn for about a week and small glasses which hold
candles that burn for a few hours. See HQ 950426, dated June 19,
1992. The Yahrzeit lamp is used in the home to hold a candle lit
in memory of a deceased relative. The unique form of this
product is indicative of a religious/memorial candle holder.
We are of the opinion that, based upon the evidence
submitted, the subject glasses are principally used as
votive-candle holders even though they are imported empty. The
evidence provided, such as the Yahrzeit Memorial Lamp label that
is affixed to the glass after importation, and the fact that the
glass items are marketed only as candles for religious purposes,
with 75% of the candles being Memorial lamps for the Jewish trade
and 25% for the Catholic trade and churches, demonstrates that
the protested merchandise is of the class or kind principally
used to hold candles dedicated for religious or memorial
purposes. Also, the size and the "form" of the glasses, i.e.,
four inches tall and a little over two inches in diameter, is
indicative of the common votive-candle holder used in churches
and homes for devotional purposes. Therefore, the glasses are
properly classified under subheading 7013.99.35, HTSUS.
HOLDING:
The four-inch glass containers are properly classified under
subheading, 7013.99.35, HTSUS, as votive-candle holders which has
a column one rate of duty of 6.6% ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in
a partial allowance and refund of duty.
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, with the Customs Form
19, by your office 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. The Office of Regulations and Rulings
will take steps to make this decision available to Customs
personnel via the Customs Rulings Module in ACS and to the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels within the 60 days from the date
of this decision.
Sincerely,
John Durant, Director
Commercial Rulings Division