CLA-2 RR:CR:GC 961498K; 960884K
Port Director
U.S. Customs Service
Los Angeles-Long Beach Seaport
300 South Ferry Street
Terminal Island, California 90731
RE: Protests 2704-97-101426 and 2704-97-100897; Sunrider Manufacturing LP;
Instant Tea; Camellia Leaf Extract
Dear Port Director:
The following is our response to the referrals by your office, dated August 7, 1997, and March 10, 1998, of the requests for further review of the above-referenced protests.
FACTS:
The consumption entries covering the imported merchandise for Protest 2704-97-101426, were reported as being liquidated on January 24 and February 7, 1997, under the provision for other food preparations not elsewhere provided for, containing sugar, in subheading 2106.90.65, Harmonized Tariff Schedule of the United States (HTSUS), with a 1993 duty at the general rate of 10 percent ad valorem, and (subheading 2106.90.65 was redesignated as 2106.90.99) under subheading 2106.90.99, HTSUS, for a 1996 entry, with duty at 8.8 percent ad valorem. A timely protest under 19 U.S.C. 1514 was received on April 24, 1997. The protestant requested reliquidation of the entries under the provision for other vegetable saps and extracts, in subheading 1302.19.9040, HTSUS, with a general free rate of duty.
The consumption entries covering the imported merchandise for Protest 2704-97-100897, were reported as being liquidated on December 6, 1996, under subheading 2106.90.99, HTSUS, with a 1995 general rate of duty of 9.4 percent ad valorem. A timely protest was filed on March 5, 1997. As in the prior protest, the protestant requested reliquidation of the entries under subheading 1302.19.9040, HTSUS, with a free rate of duty.
In a supplemental submission dated February 17, 1998, for protest 2704-97-100897, the protestant requested reliquidation of the entries in subheading 2101.20.20, HTSUS, as extracts, essences and concentrates, of tea or maté, with a free general rate of duty. Both protests involve the same importer and we believe that the merchandise in both protests is either identical or similar.
Foreign invoices refer to the product as “Instant Tea A” in plastic bags containing 40 kgs and “Instant Tea E” in plastic bags containing 25 kgs, with a single bag packaged in a cardboard box. The invoices describe the products as containing the ingredient “Camellia Leaf”, in powdered form. The correct botanical name for the product is indicated by the protestant as “Camellia Sinensis O. Kitze”. The protestant refers to Customs laboratory reports indicating that the product contains 1.1 percent sucrose and 1 percent maltose and refers to samples stated to be tested by independent laboratories that found sucrose contents of 0.8 percent and 0.3 percent. The protestant opines that all of these findings are consistent with the normal analyses of modified starches containing a reducing sugar content, and that sucrose is not added to the product, in its condition as imported. The starch carrier is Malto-dextrins. Also, it is claimed that the sugar content is de minimis and not of sufficient content to justify classification in a provision for other food preparations not elsewhere specified or included. After importation, flavorings are added to render the product as a food preparation for making beverages.
ISSUE:
The issue is whether the product as described above is specified or included in a provision of the HTSUS, so that it is not classified in heading 2106, HTSUS, as food preparation not elsewhere specified or included.
LAW AND ANALYSIS:
The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be
determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI, taken in their appropriate order.
Heading 2106, HTSUS, provides for other food preparations not elsewhere specified or included. A product may be classified in this heading provided that the product is not specified or included in other provisions of the HTSUS.
The classification claimed by the protestant in the original protests was subheading 1302.19.9040, HTSUS, as other vegetable saps and extracts. In a supplemental submission, the classification claimed by the protestant was in subheading 2101.20. 20, HTSUS, as extracts, essences and concentrates of tea or maté.
The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The protestant states that the Camellia leaf extract is not related to any of the excluded preparations listed in the EN’s (page 99) for heading 1302. However, the same list states that the heading further excludes the following vegetable products, classified under more specific headings of the Nomenclature, “(c) Extracts of coffee, tea, or maté” of heading 2101. The EN’s indicate that extracts of coffee, tea, or mate, are excluded from heading 1302, and are classified in heading 2101.
Heading 2101, HTSUS, provides for extracts, essences and concentrates, of coffee, tea or maté and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof. The EN’s for heading 2101 state that the heading covers:
(1) Coffee extracts, essences and concentrates. These may be made from real coffee (whether or not caffeine has been removed) or from a mixture of real coffee and coffee substitutes in any proportion. They may be in liquid or powder form, usually highly concentrated. This group includes products known as instant coffee. This is coffee which has been brewed and dehydrated or brewed and then frozen and dried by vacuum.
(2) Tea or maté extracts, essences and concentrates. These products correspond, mutatis mutandis, to those referred to in paragraph (1).
(3) Preparations with a basis of the coffee, tea or maté extracts, essences or concentrates of paragraphs (1) and (2) above. These are preparations based on extracts, essences or concentrates of coffee, tea or maté (and not on coffee, tea or maté themselves), and include extracts, etc., with added starches or other carbohydrates. (Emphasis added.)
The product is a tea extract, and it contains added starches (Malto-dextrins) and less than 10 percent (1.1. percent) by dry weight of sugar. We are satisfied that the product is classified by virtue of GRI 1, in heading 2101, HTSUS. However, we disagreed with the protestant’s view that the product is classified in subheading 2101.20. 20, HTSUS, as other extracts, essences and concentrates, of tea, because the extract of tea also contains added starches (Malto-dextrins) and falls within the description in number (3) of the EN’s for preparations based on extracts, essences or concentrates of tea.
Accordingly, the tea extract is classified by virtue of GRI 1, as other tea extracts, essences or concentrates and preparations with a basis of these extracts, essences or concentrates, in subheading 2101.20.40, HTSUS, (1993 entries) and in subheading 2101.20.90 (formerly subheading 2101.20.40, HTSUS) (1995 and 1996 entries).
HOLDING:
An extract of instant tea containing the ingredient “Camellia Leaf” in powdered form, and with the addition of Malto-dextrins, as described above, is classified in subheading 2101.20.90, HTSUS (1999) and the predecessor provisions of the subheading for the years 1993, 1995, and 1996.
You are instructed to deny the protests in full concerning the requests to reliquidate the entries under the provision for other vegetable saps and extracts, in subheading 1320.19.9040, HTSUS.
The rates of duty under the original liquidations in subheading 2106 90.65 and redesignated as subheading 2106.90.99, HTSUS, are lower than the rates of duty under our holding for classification in subheading 2101.20.90, HTSUS (1999), and the predecessor provisions of the subheading for the years 1993, 1995, and 1996. Accordingly, the protestant should have the benefit of the original liquidations which should represent the final liquidations of the entries covered by the protests.
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, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other public access channels.
.
Sincerely,
John Durant, Director
Commercial Rulings Division
Office of Regulations and Rulings