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HQ 089552


November 4, 1991

CLA-2 CO:R:C:F 089552 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 1905.90.1060

John M. Peterson, Esq.
Neville, Peterson & Williams
39 Broadway
New York, NY 10006

RE: Reconsideration of HRL 087385 of January 2, 1991; Meat and Cheese Filled Pastry Products from Canada.

Dear Mr. Peterson:

On January 2, 1991, this office, in Headquarters Ruling Letter (HRL) 087385, classified certain meat and cheese filled pastry products in subheading 1905.90.9090, HTSUSA. We have found that determination to be in error.

FACTS:

The facts are as stated in HRL 087385.

ISSUE:

Whether Renkin & Yates Smith Corp. v. United States, 1 Cust. Ct. 309, C.D. 73 (1938) and HRL 076065 of June 17, 1985, are determinative of the classification of meat and cheese filled pastries under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

LAW AND ANALYSIS:

Cases previously decided under the Tariff Act of 1930 and the Tariff Schedules of the United States are instructive in interpreting the Harmonized Tariff Schedule (HTS), particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS.

Renkin and HRL 076065 cannot be followed under the HTS. For one, the nomenclature has changed. Unlike the previous tariff schedules, the HTS provides eo nomine for pastries. Secondly, the Explanatory Notes to heading 1905, HTSUSA, indicate that the heading includes pastries filled with meat or cheese.

Application of the Customs Court's narrow interpretation of the phrase "whether or not including chocolate, fruits, nuts, or confectionery" in Renkin to pastry cases under the HTS would produce an outcome dissimilar to that which is required by the present tariff schedule.

HOLDING:

The meat and cheese pastries at issue are classifiable in subheading 1905.90.1060, HTSUSA, which provides for bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa; communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products: other: bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionery, other. Articles classifiable under this subheading enter the U.S. free of duty.

HRL 087385 of January 2, 1991, is modified.

Sincerely,

John Durant, Director
Commercial Rulings Division

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