CLA-2 OT:RR:CTF:TCM H060975 CKG/ARU
Port Director
U.S. Customs and Border Protection
Port of Chicago
9915 Bryn Mawr Rosemont, IL 60018
RE: Application for Further Review of Protest No. 3901-09-100035; classification of
Capol® 110C, 120C, 125W, 127C, 155C, 160C, 217P, 485C, 510C, and 530C.
Dear Port Director,
This is in response to the Application for Further Review of Protest No. 3901-09-100035 filed on behalf of Centerchem, Inc. (‘Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification, valuation and liquidation of Capol® 110C, 120C, 125W, 127C, 155C, 160C, 217P, 485C, 510C, and 530C in heading 2106, HTSUS, as food preparations not elsewhere specified or included. The subject merchandise was entered on October 12, 2007, at the Port of Chicago. CBP liquidated the entries on October 3, 2008, in heading 2106, HTSUS.
Protestant also challenges the customs valuation of Entries [***-****0858, ***-****8729, and ***-****4539]. Protestant objects to CBP’s treatment of a “financing surcharge” listed on the corresponding invoices. Protestant claims that the values assigned by CBP do not reflect the price actually paid or payable for the goods.
Finally, Protestant claims that CBP improperly reliquidated entry no. [***-****733-4] more than 90 days after the original liquidation.
The classification, valuation and liquidation arguments will be addressed separately.
FACTS:
Classification:
The products at issue are identified as Capol® 110C, 120C, 125W, 127C, 155C, 160C, 217P, 485C, 510C, and 530C. Centerchem provided the following ingredient breakdown for each of the products at issue:
Capol® 110C (claimed classification 3505.10.00)
Modified starch: 30-40%
Sucrose: 10-20%
Vegetable oil (coconut origin): 5-10%
Citric acid: <.2%
Sorbic acid: <.2%
Water
Capol® 120C (claimed classification 3505.10.00):
Gum Arabic: 10-30%
Sucrose: 10-30%
Corn syrup: 10-30%
Modified starch: 10-30%
Vegetable oil (coconut origin): 5-10%
Citric acid: <.2%
Sorbic acid: <.2%
Water
Capol® 125W (claimed classification 3505.10.00):
Corn syrup: 10-30%
Gum Arabic: 10-30%
Modified starch: 10-30%
Vegetable oil (coconut origin): 3-10%
Citric acid: <.2%
Sorbic acid: <.2%
Water
Capol® 127C (claimed classification 3505.10.00):
Modified starch: 30-40%
Sucrose: 10-20%
Citric acid: <.2%
Sorbic acid: <.2%
Water
Capol® 155C (claimed classification 1513.19):
Shellac: 30-40%
Vegetable oil: 3-10%
Ethanol: 50-60%
Capol® 160C (claimed classification 3504.00.10):
Ethanol: 60-70%
Vegetable protein: 20-40%
Propylene glycol: 2-10%
Water: 2-10%
Ethyl acetate: 2-10%
Capol® 217P (claimed classification 1521.90.40):
Carnauba wax 5-20%
Beeswax: 5-20%
Shellac: 5-20%
Ethanol (denatured): 60-70%
Capol® 485C (claimed classification 3302.10.10):
White mineral oil: 70-90%
Carnauba wax: 5-20%
Natural orange flavor: 3-10%
Capol® 510C (claimed classification 1521.10.40):
Vegetable oil (coconut origin): 80-95%
Carnauba wax: 5-20%
Capol® 530C (claimed classification 3302.10.10):
Vegetable oil (coconut origin): 70-90%
Carnauba wax: 5-20%
Natural orange flavor: 3-10%
Alpha Tocopherol: <.1%
Citric acid: <.1%
Samples of each of the ten products were sent to the CBP Laboratory in Chicago, Illinois. A description and ingredient breakdown was provided for each of the samples, as follows:
Capol® 110C
Suspension of white solids in water
16% starch, 12% sucrose, 52% water by weight (dry weight = 30% starch and 22% sucrose)
Capol® 120C
Suspension of dark brown solids in water
20% starch, 48% water and 9% sucrose (19% by dry weight)
No milk solids
Capol® 125W
Suspension of tan solids in water
20% starch, 4% glucose, 2% maltose, 48% water by weight.
No sugar or milk solids
Capol® 127C
Light brown suspension
20% starch, 8% fructose, 9% glucose, 5% sucrose (9% by dry weight) and 49% water by weight
Capol® 155C
Amber liquid w/ alcoholic odor
Shellac, vegetable oil derived from coconut oil and ethanol, denatured with ethyl acetate
Capol® 160C
Light brown paste
73% alcohol, some gluten (including 18% protein)
No sugar or milk solids
Capol® 217P
Cream colored liquid
Contains carnauba wax, beeswax, shellac and ethanol (denatured with ethyl acetate)
Capol® 485C
Cream colored liquid
Containing mineral oil, carnauba wax, and orange flavor
Capol® 510C
Cream colored paste
Containing vegetable oil derived from coconut oil, and carnauba wax
Capol® 530C
Cream colored paste
Containing vegetable oil derived from coconut oil, carnauba wax, orange flavor, alpha-tocopherol, and citric acid.
Valuation:
The invoice values for all Cenerchem entries are in Euros. No currency conversion is indicated on the invoices, therefore, all currency conversions must be taken from Customs Form 7501. The invoices list a currency discount (16.87 percent (%) for entry number ***-****0858 and 16.41 percent (%) for entry number ***-****8729) which is subtracted from the total invoice value.
In addition, Protestant claims that each invoice includes a “financing surcharge,” which Protestant explains as “separately stated amounts of 1% which are to be added to the invoice price for the goods unless the invoices are paid within 45 days.” An invoice from seller to Protestant, dated February 13, 2008, states “Payment: 45 days 1,00 % discount or 60 days net cash.” No such language appears on the invoice from seller to Protestant, dated February 4, 2008.
With regard to entry number [***-****4539], Protestant claims broker error in entering the customs value. Protestant claims that the entered value of [$****] is incorrect and that the correct entered value should be [$****].
Liquidation:
Entry [***-****9733-4] was entered on September 17, 2007, and liquidated on August 1, 2008. Notice of liquidation was provided on the date of liquidation, i.e., August 1, 2008. A courtesy Notice of Liquidation was provided to the Protestant indicating that the entry had been reliquidated on November 14, 2008. However, this date was incorrect. CBP voluntarily reliquidated the entry, under the authority of 19 CFR 173.3 and 19 U.S.C. 1520(c), on October 27, 2008. An offline “Bulletin of Entries Liquidated” was posted on October 27, 2008, and an internal “Special Handling Expedite” memorandum was issued by the Chicago Port Director on October 28, 2008, informing port officials of the voluntary reliquidation and instructing them to reliquidate accordingly.
ISSUES:
Whether the Capol preparations are classified in heading 2106, HTSUS, as food preparations not elsewhere specified or included, or classified in various provisions based on the primary ingredient in each preparation.
Whether the early payment discount should be considered in determining the price actually paid or payable of the imported merchandise.
Whether the entered value for entry no. [***-****4539] should be amended as proposed by Protestant.
Whether the reliquidation of entry no. [***-****7334] was untimely.
LAW AND ANALYSIS:
Classification:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 3901-09-100035 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
1513: Coconut (copra), palm kernel or babassu oil, and fractions thereof, whether or not refined, but not chemically modified:
Coconut (copra) oil and its fractions:
1513.19.00: Other
* * * * *
1521: Vegetable waxes (other than triglycerides), beeswax, other insect waxes and spermaceti, whether or not refined or colored:
1521.10: Vegetable waxes . . .
1521.10.40: Carnauba . . .
1521.90: Other:
1521.90.40: Other…
* * * * *
2106: Food preparations not elsewhere specified or included:
2106.90: Other
Other:
Other:
Other:
Other:
Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17:
2106.90.95: Described in additional U.S. note
8 to chapter 17 and entered pursuant to its provisions
2106.90.97: Other…
2106.90.99: Other . . .
* * * * *
3302: 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; other preparations based on odoriferous substances, of a kind used for the manufacture of beverages:
3302.10: Of a kind used in the food or drink industries:
3302.10.10: Not containing alcohol . . .
* * * * *
3504: Peptones and their derivatives; other protein substances and their derivatives, not elsewhere specified or included; hide powder, whether or not chromed:
3504.00.10: Protein isolates…
* * * * *
3505: Dextrins and other modified starches (for example, pregelatinized or esterified starches); glues based on starches, or on dextrins or other modified starches:
3505.10.00: Dextrins and other modified starches . . .
* * * * *
Note 1(b) to Chapter 38 provides as follows:
This chapter does not cover:
Mixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs (generally, heading 2106);
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or
dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these headings at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 21.06 provides, in pertinent part, as follows:
Provided that they are not covered by any other heading of the
Nomenclature, this heading covers:
…
(B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.).”
* * * * *
EN 33.02 provides as follows:
This heading covers the following mixtures provided they are of a kind used as raw materials in the perfumery, food or drink industries (e.g., in confectionery, food or drink flavourings) or in other industries (e.g., soap-making) :
(1) Mixtures of essential oils.
(2) Mixtures of resinoids.
(3) Mixtures of extracted oleoresins.
(4) Mixtures of synthetic aromatics.
(5) Mixtures consisting of two or more odoriferous substances (essential oils, resinoids, extracted oleoresins or synthetic aromatics).
(6) Mixtures of one or more odoriferous substances (essential oils, resinoids, extracted oleoresins or synthetic aromatics) combined with added diluents or carriers such as vegetable oil, dextrose or starch.
(7) Mixtures, whether or not combined with a diluent or carrier or containing alcohol, of products of other Chapters (e.g., spices) with one or more odoriferous substances (essential oils, resinoids, extracted oleoresins or synthetic aromatics), provided these substances form the basis of the mixture.
* * * * *
Protestant claims classification (by application of GRI 3(b)) in heading 3505, HTSUS, for Capol® 110C, 120C, 125W and 127C; heading 3504, HTSUS, for Capol® 160C; heading 1513 for Capol® 155C; heading 1521 for Capol® 217P and 510C; and heading 3302 for Capol® 485C. While Protestant applies GRI 3 to classify the merchandise according to that component which imparts the essential character to each product, we must first apply GRI 1.
Capol® 110C, 120C, 125W and 127C contain principally starch, water and sucrose, glucose, maltose, or fructose. Sucrose, maltose, glucose and fructose are classified in Chapter 17, which provides for sugars and sugar confectionary. Starches may be classified in a number of headings, including 3505. Capol® 110C, 120C, 125W and 127C are thus mixtures of products of various headings in Chapters 17 and 35. Heading 3505, HTSUS, which provides for dextrins and other modified starches, does not describe Capol® 110C, 120C, 125W and 127C in their entirety; these products are therefore not classifiable in heading 3505, HTSUS, at GRI 1.
Capol® 510C and 530C contain principally vegetable oil derived from coconut oil, and carnauba wax. Vegetable oil and carnauba wax are both classified in Chapter 15, in headings 1513 and 1521, HTSUS. Neither heading, therefore, fully describes either Capol® 510C or 530C.
Capol® 160C contains primarily alcohol (normally classified in Chapter 22). Gluten protein comprises only 18% of the mixture according to the CBP laboratory. The Protestant asserts that the ethanol content should be disregarded in the classification of Capol® 160C because it plays a carrier or solvent role only, and is “flashed off” at application (i.e., it evaporates when the product is used). However, while some tariff provisions disregard the presence of carriers and additives for classification purposes (e.g., headings 1901, 2936, HTSUS, Chapter 15, HTSUS), heading 3504, HTSUS, is not one of them. There is no indication in the text or ENs that protein isolates of heading 3504, HTSUS, are classified therein even when accompanied by a carrier or solvent. Correspondingly, the ethanol content of Capol® 160C must be taken into consideration when considering classification in heading 3504, HTSUS. Capol® 160C is thus a mixture of products of Chapter 22 and 35, and is not classifiable at GRI 1 in heading 3504, HTSUS.
Capol® 217P contains carnauba wax, beeswax, shellac and denatured ethanol. Heading 1521, HTSUS, provides for, inter alia, vegetable and insect waxes. Capol® 217P contains both, but also ethanol (Chapter 22) and shellac, which is a resin classified in heading 1301, HTSUS. See New York Ruling Letter (NY) R02997, dated January 10, 2006. Accordingly, Capol® 217P is not classifiable in heading 1521, HTSUS, at GRI 1.
Capol® 485C contains mineral oil, carnauba wax, and orange flavor. Heading 3302, HTSUS, provides for mixtures of odiferous substances or preparations based on such substances. The ingredient breakdown provided by Centerchem indicates that Capol® 485C contains 3-10% orange flavor, although it is not clear that it forms the basis of the mixture. If the orange flavor in Capol® 485C is an odiferous substance forming the basis of the mixture, then Capol® 485C is correctly described as a preparation based on odoriferous substances, of a kind used for the manufacture of beverages, provided for in heading 3302, HTSUS. Because it is provided for in heading 3302, HTSUS, Capol® 485C is not classified in heading 2106, HTSUS.
Capol® 110C, 120C, 125W, 127C, 155C, 160C, 217P, 510C, and 530C are thus all mixtures of products of various headings. The claimed classifications do not describe the entirety of these products; they refer only to part of the materials or substances contained in the instant mixtures. Hence, Capol® 110C, 120C, 125W, 127C, 155C, 160C, 217P, 510C, and 530C are not classifiable at GRI 1 in the claimed headings.
Applying GRI 1, heading 2106, HTSUS, provides for food preparations not
elsewhere specified or included. EN 21.06 (B) notes that this heading includes both preparations for use, either directly or after processing for human consumption, and preparations consisting of a mixture of chemicals with foodstuffs for incorporation in food preparations, either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc). Note 1(b) to Chapter 38 further directs that “Mixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs” are classified in heading 2106, HTSUS. The Capol preparations thus do not need to be intended directly for human consumption in order to be classified in heading 2106, HTSUS, if they consist of mixtures of chemicals with foodstuffs or other substances of nutritive value, for incorporation into food preparations.
Neither the text of heading 2106 nor the accompanying ENs, Section or Chapter
Notes define the term “foodstuffs”. However, the Explanatory Notes for heading 2106 identify flour, sugar, and milk powders as examples of what is included in the term "foodstuffs". The EN to Chapter 38 further notes that “the expression “foodstuffs or other substances with nutritive value” principally includes edible products of Sections I to IV,” as well as certain other products, for example “products of Chapter 28 used as mineral supplements in food preparations, sugar alcohols of heading 29.05, essential amino acids of heading 29.22, lecithin of heading 29.23, provitamins and vitamins of heading 29.36, sugars of heading 29.40, animal blood fractions of heading 30.02 for use in food preparations, casein and caseinates of heading 35.01, albumins of heading 35.02, edible gelatin of heading 35.03, edible protein substances of heading 35.04, dextrins and other edible modified starches of heading 35.05, sorbitol of heading 38.24, edible products of Chapter 39 (such as amylopectin and amylose of heading 39.13).” Headquarters Ruling Letter (HQ) 084421, dated May 31, 1989, also stated that only "recognized food ingredients" fall within that term.
Capol® 110C, 120C, 125W and 127C contain principally starch, water and sucrose, glucose, maltose, or fructose. Sucrose, maltose, glucose and fructose are classified in Chapter 17 (Section IV), which provides for sugars and sugar confectionary. Sugars are noted in EN 21.06 as an example of foodstuffs. Starches of heading 3505, HTSUS, are also specifically mentioned in the EN to Chapter 38 as an example of a foodstuff. All of these substances are edible and recognized food ingredients. Capol® 110C, 120C, 125W and 127C are thus composed of a mixture of foodstuffs and chemicals. Centerchem claims that these products are principally used as nonsticking or polishing agents for baked goods. Whether they are intended directly for human consumption is not the most important consideration for classification in heading 2106, HTSUS, if they are intended for incorporation into food preparations, either as ingredients or to improve some of their characteristics. Nonsticking and polishing or glazing agents fall within the scope of heading 2106, HTSUS. Indeed, CBP has consistently classified similar products designed for incorporation into food preparations in heading 2106, HTSUS. See e.g., Headquarters Ruling Letter (HQ) 962766, dated January 23, 2001; HQ 960017, dated July 23, 1998; HQ 088824, dated July 30, 1991; NY R03733, dated May 8, 2006; NY R01564, dated March 14, 2005; and NY J89075, October 27, 2003.
Capol® 160C (claimed classification 3504.00.10), in turn, consists primarily of alcohol and gluten, also edible and common food ingredients classifiable in Sections I-IV (Chapter 22 and Chapter 11, respectively). Edible protein substances of heading 35.04 are also specifically mentioned in the EN to Chapter 38 as an example of a foodstuff or other substance of nutritive value. Thus, as a mixture of food ingredients designed for incorporation into food preparations, Capol® 160C falls within the scope of heading 2106, HTSUS.
Capol® 217P contains carnauba wax, beeswax, shellac and denatured ethanol. Carnauba wax is derived from palm leaves and is commonly used in a wide variety of applications, including as a formulation aid, lubricant, release agent, anticaking agent, and surface finishing agent in baked foods and mixes. Beeswax is also used as a food glazing agent. As a food additive, beeswax is known as E901. Shellac is an insect resin also used as a glazing agent. Insect and vegetable waxes are edible food ingredients classified in Chapters 13 and 15, HTSUS. Alcohol also provides, at the very least, caloric energy usable by the body. Capol® 217P thus remains a mixture of chemicals and foodstuffs designed for incorporation into a food preparation to improve its appearance, and is thus classified as a food preparation in heading 2106, HTSUS.
Capol® 510C and 530C contain principally vegetable oil derived from coconut oil, and carnauba wax. Vegetable oil is also a foodstuff classified in Chapter 15, HTSUS. Capol® 510C and 530C are mixtures of chemicals and foodstuffs for incorporation into a food preparation and are classified in heading 2106, HTSUS.
Capol® 110C, 120C, 125W, 127C, 155C, 160C, 217P, 510C, and 530C are all edible preparations containing foodstuffs for incorporation into/application onto baked goods to improve their appearance or to ensure the mixability/flowability of their ingredients. They are thus prima facie classifiable in heading 2106, HTSUS.
Valuation:
Merchandise imported into the United States is appraised in accordance with section 402 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C. § 1401a). The preferred method of appraisement is transaction value, which is defined as the "price actually paid or payable for the merchandise when sold for exportation to the United States," plus certain enumerated additions. 19 U.S.C. § 1401a(b)(1)(C). For the purpose of this decision, we assume that transaction value is the proper basis of appraisement. As provided in 19 U.S.C. § 1401a(b)(4):
The term “price actually paid or payable” means the total payment (whether direct or indirect, and exclusive of any costs, charges, or expenses incurred for transportation, insurance, and related services incident to the international shipment of the merchandise from the country of exportation to the place of importation in the United States) made, or to be made, for imported merchandise by the buyer to, or for the benefit of, the seller.
Any rebate of, or other decrease in, the price actually paid or payable that is made or otherwise effected between the buyer and seller after the date of the importation of the merchandise into the United States shall be disregarded in determining the transaction value under paragraph (1).
CBP Regulations further provide 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 ….” 19 CFR § 152.103(a)(1). Thus, where a seller discounts its price for certain merchandise to a buyer, and the discount is agreed to and effected prior to importation of the merchandise, the discounted price constitutes the “price actually paid or payable” for the merchandise. See Allied International v. United States, 16 C.I.T. 545, 795 F. Supp. 449 (1992); HQ 547019, dated March 31, 2000; and HQ 545659, dated October 25, 1995.
In HQ 544791, dated March 11, 1992, CBP considered a purchase order agreement which included the following language:
In the event Buyer makes payment to Seller or Buying Agent for any payments due pursuant to this Purchase Order prior to the date payment is required under this Purchase Order, Buyer shall be entitled to anticipation interest. Such payment shall be made in the form of a discount to present value of the amount of such early payment.
In that case, CBP held that: “[w]here it can be established … that such a discount is agreed to prior to exportation, and since the price actually paid or payable reflects the discount, then the discount should be taken into account in determining the transaction value of the imported merchandise.”
In reaching that decision, CBP referred to HQ 543189, dated October 19, 1983:
To the extent that such early payment discount is not considered to be agreed and effected prior to importation, but contingent on a methodology or formula that exists prior to importation so that a final sales price can be subsequently determined, it is necessary to view the subject transaction as one in which the price is determined pursuant to a formula. In HRL 543189, dated October 19, 1983, Customs held that even though it may not be possible at the time of exportation to ascertain an exact amount owed for the goods, a price actually paid or payable has been set if the price is to be determined pursuant to a formula which is in existence prior to the exportation of the goods.
Conversely, in HQ 546037, dated January 31, 1996, CBP considered an invoice from the foreign manufacturer to the importer which read:
Payment in our possession within 45 days after date of invoice by T.T. less 2% or 60 days net after date of invoice
In that case, the imported submitted wire transfers showing that they had taken advantage of the early payment discount in the past, but failed to provide evidence of early payment with regard to the entry at issue. As a result, CBP held that the early payment discount was not to be excluded from the price paid or payable for the imported merchandise.
In the instant case, there is reference to the early payment discount on an invoice dated February 13, 2008. However, there is no reference to the early payment discount on the invoice dated February 4, 2008. In addition, there is no separate written evidence of an early payment discount agreement between the seller and the Protestant or evidence, such as proof of payment, that Protestant took advantage of the early payment discount on either entry. Consequently, the one (1) percent (%) 45 day early payment discount is not excluded from the price actually paid or payable.
As to the second issue, Protestant claims that “there was an inadvertent error in the fact that the entered value as noted in the CF7501 did not tally with the price actually paid or payable.” According to Protestant, the broker erroneously entered [$****] as the value for entry number [***-****4539]. Protestant provides a calculation claiming that the correct value should be [$****]. Protestant did not, however, provide a copy of the entry summary or sales invoice corresponding to the entry. As a result, there is no evidence upon which to evaluate Protestant’s proposed amendment. Consequently, the liquidated value stands.
Liquidation:
Section 501 of the Tariff Act of 1930, as amended (19 U.S.C. 1501) and section 173.3 of the Customs Regulations (19 CFR 173.3) authorize the district directors to reliquidate entries voluntarily within 90 days from the date on which notice of the original liquidation was given to the importer, his consignee or agent. The purpose of voluntary reliquidation is to enable Customs officers to correct errors in the appraisement, classification, liquidation or reliquidation of the merchandise within the specified time period. More than one voluntary reliquidation is permitted under this section, however, no adjustments may be made more than 90 days after notice of the original liquidation has been given.
CBP voluntarily reliquidated entry [***-****9733-4], under the authority of 19 CFR 173.3 and 19 U.S.C. 1520(c), on October 27, 2008, within the 90 day time frame. The reliquidation was thus timely and proper.
HOLDING:
Classification:
Capol® 110C, 120C, 125W, 127C, 155C, 160C, 217P, 510C, and 530C are
classified in heading 2106, HTSUS.
Capol® 110C and 120C are specifically provided for in subheading 2106.90.97,
which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Other.” The 2007 column one, general rate of duty is 28.8¢/kg + 8.5% ad valorem.
Capol® 125W, 127C, 155C, 160C, Capol® 217P, 510C, and 530C are classified
in subheading 2106.90.99, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” The 2007 column one, general rate of duty is 6.4% ad valorem.
Capol® 485 is classified in heading 3302, HTSUS, and is specifically provided for in subheading 3302.10.10, HTSUS, which provides 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; other preparations based on odoriferous substances, of a kind used for the manufacture of beverages: Of a kind
used in the food or drink industries: Not containing alcohol.” The 2007 column one,
general rate of duty is Free.
Since reclassification of the merchandise as indicated above will result in a lower rate of duty for entries of Capol® 485, you are instructed to allow the protest as to those entries. You are instructed to deny the protest with respect to the entries of Capol® 110C, 120C, 125W, 127C, 155C, 160C, 217P, 510C, and 530C.
Valuation:
Based on the evidence available, Protestant has proffered insufficient evidence to establish that an early payment discount was agreed to prior to exportation of the goods at issue or that Protestant took advantage of an early payment discount. As a result, the one (1) percent (%) early payment discount is not excluded from the price actually paid of payable for the imported merchandise. In addition, there is insufficient evidence to amend the entered value for entry number [***-****4539].
Liquidation:
The reliquidation of entry [***-****9733-4] on October 27, 2008, was timely.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, 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. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division