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HQ 088319

May 24, 1991

CLA-2 CO:R:C:F 088319 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 5701.10.2090

District Director of Customs
111 West Huron St
Buffalo, New York 14202

RE: Decision on Application for Further Review of Protest No. 0901-89-675171, filed November 16, 1989, concerning the classification of a Chinese rug.

Dear Sir:

This is a decision on a protest filed November 16, 1989, against your decision in the classification and liquidation of entry no. 257-0142856-4, made April 12, 1989, and liquidated September 1, 1989.

FACTS:

You classified the subject rug under subheading 5701.10.2090, HTSUSA, the provision for carpets. Protestant claims that the rug should be classified under subheading 9706.00.0060, HTSUSA, as an antique. If the rug is classified as claimed by protestant, it will be entitled to duty free entry. Protestant is also protesting the imposition by your office of an additional duty of 6.6% ad valorem under Additional U.S. Note 2 of Chapter 97, and section 10.53 of the Customs Regulations.

The rug at issue is described as a hand knotted wool rug. According to the importer, the rug is of Chinese origin and is over 100 years old (circa 1850). The Customs carpet expert involved doubted the antiquity of the carpet and obtained an analysis from a qualified, independent expert. The independent expert determined that the carpet origin is circa 1900 - the expert interprets the word "circa" to mean "plus or minus 5 years." This determination supports the opinion of the Customs expert that the rug is not an antique. The carpet type was determined to be "Peking Chinese." This carpet was entered via the "Immediate Delivery" procedure.

ISSUES:

Whether the rug should be classified as an other carpet under subheading 5701.10.2090, HTSUSA, or as an antique under subheading 9706.00.0060, HTSUSA?

Whether protestant should have been assessed an additional duty of 6.6% ad valorem under Additional U.S. Note 2 of Chapter 97, HTSUSA?

DISCUSSION:

Antiquity Claim

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order. In this case, the subject merchandise can be classified by reference to GRI 1. It is our determination that this carpet was correctly classified under subheading 5701.10.2090, HTSUSA, as a carpet.

Subheading 9706.00.0060, HTSUSA, which protestant claims is the proper classification, applies to "Antiques of an age exceeding one hundred years." In this case, a Customs official who is an expert in the subject matter of carpets, as well as an independent expert, deemed by Customs to be qualified in this area, have carefully examined the subject carpet. They have arrived at the conclusion that this carpet does not possess an age that exceeds one hundred years.

Additional Duty

The additional duty of 6.6% ad valorem that was assessed in this instance is provided for in Additional U.S. Note 2, which states, in pertinent part, as follows:

Whenever an article is entered for sale under heading 9706, and thereafter determined to be not over 100 years of age, a duty of 6.6 percent ad valorem for articles subject to column 1-general treatment... shall be assessed thereon in addition to any other duty or penalty imposed on such article under the tariff schedule.

As indicated by the above language, Note 2 establishes a requirement that the article be "entered for sale" as an antique in order to be a possible candidate for the additional duty. In this case, the merchandise was imported utilizing the "immediate
delivery procedure." Section 141.68(c) of the Customs Regulations discusses this procedure as follows:

(c) When merchandise is released under the immediate delivery procedure. The time of entry of merchandise released under the immediate delivery procedure shall be the time the entry summary is filed in proper form with estimated duties attached.

It follows, then, that the carpet was "entered for sale" for the purposes of Additional U.S. Note 2 when the entry summary (Customs Form 7501) was filed. According to the evidence, i.e., the Customs Form 7501 in the file, the item was not entered as an antique, but as a carpet under 5701.10.2090, HTSUSA, and the importer paid a duty of 5.1% ad valorem. There is no way to prove that the carpet was "entered for sale" as an antique.

HOLDING:

The rug described as a hand knotted wool rug of Chinese origin is properly classifiable under subheading 5701.10.2090, HTSUSA, the provision for carpets and other textile floor coverings, knotted, whether or not made up, of wool or fine animal hair, other, other, dutiable at a rate of 5.1% ad valorem.

The additional duty of 6.6% ad valorem assessed under Additional U.S. Note 2 of Chapter 97, HTSUSA, is not authorized in this instance; protestant is entitled to the appropriate refund.

The protest should be denied in part and allowed in part. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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