CLA-2 RR:CR:GC 961414ptl
Port Director
U.S. Customs Service
1624 E. 7th Avenue
Suite 101
Tampa, FL 33605-3706
RE: Protest 1801-94-100032; Jewelry.
Dear Port Director:
The following is our decision on Protest 1801-94-100032,
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS) of an assortment of jewelry.
FACTS:
The goods under protest were entered on February 3, 1994,
and invoiced as "other antiques >100 years old". The goods
comprise a lot of 859 pieces of jewelry which had been acquired
at auction in Europe. The entry covering the goods was
liquidated on June 17, 1994, under the provision for articles of
jewelry and parts thereof, of precious metal or of metal clad
with precious metal, of precious metal whether or not plated or
clad with precious metal, other, in subheading 7113.19.50,
Harmonized Tariff Schedule of the United States (HTSUS), with
duty at the general rate of 6.5%. A timely protest under 19
U.S.C. 1514 was received on July 26, 1994. The protestant
requested reliquidation of the entry under the provision for
antiques, over 100 years old, in subheading 9706.00.0060, HTSUS,
with free general duty rate.
ISSUE:
What is the proper classification of an assorted lot of
imported jewelry?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). 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 GRIs may then be applied
in order.
The headings under consideration are as follows:
7113 Articles of jewelry and parts thereof, of precious
metal
or of metal clad with precious metal:
7113.19 Of other precious metal, whether or not
plated
or clad with precious metal:
* * *
Other:
* * *
7113.19.50 Other.
9706.00.00 Antiques of an age exceeding one hundred
years
* * *
9706.00.0060 Other
The protestant is claiming that all of the 859 pieces of
jewelry which comprised the lot acquired at a Christie's Geneva
Free Port auction qualify as antiques. For merchandise to be
eligible for classification as antiques in heading 9706, HTSUS,
the language of the tariff is specific. All goods being
considered for such classification must be "of an age exceeding
one hundred years."
Invoices submitted by the protestant for auction Lot 197
shows that Christie's identified the merchandise simply as "Lot
de 949 bijoux" (Lot of 949 pieces of jewelry). A handwritten
note on the invoice indicates that the goods on the invoice were
to be considered antique jewelry except for 90 rings. There is
no provenance, certification or authentication from Christie's
regarding the age of any of the merchandise covered by the
invoices. Pages from the auction catalogue show that Christie's
did not even provide a "circa" date as guidance to the true age
of the jewelry.
Customs had the assortment of jewelry examined and appraised
by an independent certified appraiser-gemologist prior to
liquidation of the entry. Because of the number of pieces of
jewelry, and the fact that they were packed in bags, Customs
appraisement was conducted on a representative sample of the lot
consisting of 91 pieces randomly selected. The result of that
examination indicated that the lot consisted of a commingled
mixture of jewelry, of which approximately 11% (10 pieces) were
actually over one hundred years old. The actual antiques were
randomly interspersed throughout the lot and could not easily be
segregated by Customs. The Customs appraiser estimated that the
average fair market value of each item in the lot was between
$276.51 and $299.05 per item. Were these articles actually
antiques, they would command a much higher estimated value. This
relatively low value is consistent with the auction house's sale
of the articles by lot. These factors do not support the claim
that the articles are antiques.
The protestant has provided Customs with the results of an
appraisal conducted by its own expert. Protestant's appraiser
examined and provided opinions on more articles than those which
are the subject of this protest and did not appraise all of the
items that were imported since many of them were already sold.
Upon reading the results of that appraisal, which determined,
after "individual examination," that all the articles were
antiques over 100 years old, one also sees that the appraisal of
693 pieces of jewelry was accomplished in one day. Even if the
protestant's appraiser worked diligently, without stopping, the
numbers indicate each "individual examination" was conducted
quickly. In a different appraisal of 234 additional pieces, the
protestant's appraiser determined that 96% of those lots were
antiques. Such speed causes Customs to view the results of the
appraisal with skepticism due to the fact that the appraiser used
by Customs spent over 40 hours on his examination of far fewer
pieces.
General Note 17 to the HTSUS provides, in general, that when
goods subject to different rates have been commingled in such a
way that the quantity or value of each class cannot be readily
ascertained without physical segregation of the goods, the
commingled goods shall be subject to the highest rate. Customs
Regulations provide in 19 CFR 152.13 that when Customs discovers
commingled goods, the importer shall be notified and allowed the
opportunity to perform the segregation necessary to ascertain the
quantity of each class of goods. However, in the instant
situation, the protestant had already performed a segregation of
the lots of jewelry into goods he claimed to be antiques and
those for which no such claim was being made. Customs appraisal
was conducted to verify protestant's classification, not to
ascertain whether the goods were commingled. Pursuant to General
Note 17, the articles which are the subject of this protest are
properly subject to the higher rate of duty applicable to
articles of jewelry.
Based upon the above considerations, and in view of the
express language of the tariff, Customs does not believe that
protestant has shown that all of the articles claimed to be
antiques were actually over one hundred years old. Accordingly,
they are properly classified in subheading 7113.19.50, HTSUS, as
articles of jewelry and parts thereof, of precious metal or of
metal clad with precious metal, of other precious metal, whether
or not plated or clad with precious metal, other.
HOLDING:
For the reasons stated above, the protest should be DENIED.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
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 the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division