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HQ 950776


March 11, 1992

CLA-2 CO:R:C:F 950776 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 2008.19.9090

Mr. F.X. Heidl Jr.
John V. Carr & Son Corp.
133-33 Brookville Boulevard
Rosedale, NY 11422

RE: Lotus Nut Paste; Fruit, nuts and other edible parts of plants, otherwise prepared or preserved in heading 2008, HTSUSA

Dear Mr. Heidl:

This is in response to your letter of October 30, 1991, and your facsimile of January 9, 1992, submitted on behalf of your client, Tai Wing Hong, Importer Inc. of Brooklyn, NY. Your inquiry requests the proper classification of lotus nut paste under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted a sample with your request for a binding ruling.

FACTS:

The product, imported from China, contains lotus seeds, peanut oil, sugar and water. It is a dark brown, thick, firm, jelly-like substance, containing no visible plant particles. The product appears too firm to spread, but is easily sliced or scooped with a spoon. The inquirer does not state how the product is to be used.

The lotus paste is produced by first soaking the seeds in hot water, to remove the outer husks, and by splitting the seeds into halves and removing the centers of the seeds. Next, the seeds are boiled in water until softened and are transferred to a grinder where they are ground to a smooth paste. Finally, the paste is mixed with sugar and peanut oil and is packed and stored in metal drums.

ISSUE:

Whether the lotus paste is classifiable in heading 2104 as soups, broths and preparations therefor, or in heading 2008 as fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or sweetening matter, not elsewhere specified or included.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported 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. 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 HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

The inquirer contends that the lotus paste is classifiable in heading 2104 as soups and broths and preparations therefor. This heading may be regarded as a use provision. Accordingly, a product under 2104 is classifiable by its principal use. See Additional U.S. Rule of Interpretation 1(a).

In this regard, Customs recently received information from the Baltimore International Culinary Arts Institute which provided that lotus paste may be used as a soup or broth, or with desserts, entrees or appetizers. Since the lotus paste apparently has these divergent uses, the product may not be determined to be principally used, and thus is not classifiable, as a soup or broth.

Although the TSUS provided for lotus seeds as vegetables, this is not dispositive of the product's classification under the HTSUSA which now includes headings 2008 providing for fruit, nuts and other edible parts of plants and 2007 providing for jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes. The TSUS made no specific provision for such products.

The EN's to heading 2007 provide, inter alia, for cooked preparations, such as fruit or nut pastes and purees, which are prepared by boiling sieved fruit pulp or powdered nuts to a thickish consistency. On the other hand, the EN's to heading 2008 provide for products otherwise prepared, such as peanut butter, which is made by grinding roasted ground nuts.

From the information provided, the lotus nut paste is produced by boiling the lotus seeds in water until softened and then grinding them to a smooth paste. This method of production appears analogous to that described in the EN's to heading 2008, rather than 2007, since the lotus paste is merely softened, not cooked, by the boiling process and is subsequently ground to a paste.

HOLDING:

The lotus nut paste is classifiable in subheading 2008.19.9090, as "Fruits, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Nuts, peanuts (ground-nuts) and other seeds, whether or not mixed together: Other, including mixtures: Other, including mixtures: Other, Other." The general column one rate of duty is 28 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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