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HQ 958999




April 23, 1996

CLA-2 RR:TC:MM 958999 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6913.10.50

Port Director
U.S. Customs Service
2nd & Chestnut Streets
Philadelphia, PA 19106

RE: Protest 1101-95-100484; Porcelain Spice Jars; Lenox v. U.S., Kraft, Inc, v.U.S, G. Heilman Brewing Co. v.U.S. and U.S. v. Carborundum Company

Dear Port Director:

The following is our decision regarding the request for further review of Protest 1101-95-100484, which concerns the classification of porcelain spice jars under the Harmonized Tariff Schedule of the United States (HTSUS). Our decision is based on protestant's original submission dated June 27, 1995, as well as an additional submission of March 15, 1996.

FACTS:

The subject articles are ceramic spice jars shaped like cottages. They are elaborately decorated and have the name of a spice painted on each. The articles were entered under subheading 6913.90.50, HTSUS, as other ornamental ceramic articles. Entries were liquidated on March 31, April 21, and June 6, 1995, under subheading 6911.10.80, HTSUS. A protest was timely received on June 27, 1995. The 1994 subheadings under consideration are as follows:

6911.10.80 Tableware, kitchenware, other household articles and toilet articles, of porcelain or china: Tableware and kitchenware: Other:
Other: Other:
Other....................................................................................................25%

6913.10.50 Statuettes and other ornamental ceramic article:
Of porcelain or china: Other:
Other..........................doz.pcs.
......9%

6913.90.50 Other:Other:Other........................................................................7%

U.S. Customs Laboratory Report No. 3-95-31123-001 dated March 22, 1995, indicates that the ceramic spice jars are composed of porcelain. They have a white, translucent body and a water absorption value of less than 0.5% by weight. It meets the requirements of Additional U.S. Notes 1 and 5(a)of Chapter 69, HTSUS, for a ceramic article of porcelain. Protestant's original submission contained laboratory reports, conducted by an independent lab, indicating that when the spice jars were tested without their glaze, their water absorption was higher than 0.5% by weight. Based on this evidence protestant argued that the subject spice jars were not porcelain. By letter of March 15, 1996, protestant withdrew their argument that the articles were not porcelain. Additionally, protestant asserted that pursuant to the finding of Lenox v. United States, No. 96-30 slip op. (CIT February 2, 1996) [Lenox], their articles are classifiable under subheading 6913.10.50, HTSUS.

ISSUE:

What is the proper classification for porcelain cottage-shaped spice jars?

LAW AND ANALYSIS:

In Lenox, the court ruled on the classification of a set of small porcelain containers called the "Spice Village". Each elaborately decorated container was shaped like a Victorian house and came with a wood rack in which the articles could be displayed. Customs had classified the articles in the class "kitchenware". The importer believed they were classifiable in the class "ornamental articles". Although, the set was advertised as functional spice jars, and each had a named spice on the outside and a fitted top to keep spices fresh, the court referred to Additional U.S. Rule of Interpretation 1(a), HTSUS, and the need to focus on the principal use of the class or kind of goods to which an import belonged, not the principal use of the specific import. To determine the class or kind of goods to which the import belonged, the court examined the factors set forth in Kraft, Inc, v. United States, USITR, 16 CIT 483, (June 24, 1992); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Although the subject containers were capable of holding spices, the court found that the physical characteristics suggested that they were principally used for decorative purposes. According to the court, the containers failed to hold spices as efficiently as their plainer counterparts which have a grip area and a shaker top Based on the significant difference in price between a plainer spice jar set and the Spice Village, the court stated purchasers pay more for the Spice Village because their ultimate expectation is to use them to adorn their homes. The court found that the channels of trade in which the merchandise moved failed to indicate whether the articles belonged to the class "kitchenware" or "ornamental articles". As to the environment of sale, although the court recognized that the ads describe the Spice Village as both decorative and functional, the court found that the ads stressed the decorative nature of the articles. Finally, the court found that because importer conducted surveys indicated that 70% of the containers were used entirely or primarily for decorative display, the Spice Village was used principally for decorative purposes. Accordingly, even though almost 30% of the Spice Village was used entirely or principally in the kitchen for cooking, the principal use of the class or kind of goods to which it belongs was "ornamental articles".

The present articles are virtually identical to the jars ruled upon in Lenox. Additionally, Customs sanctioned porcelain testing methodologies, the results of which appear in Customs Lab report No. 3-95-31123-001, clearly indicate that the subject spice jars are porcelain. Therefore, the cottage-shaped spice jars are classifiable under subheading 6913.10.50, HTSUS.

HOLDING:

The protest should be GRANTED. The porcelain cottage-shaped spice jars are classifiable under subheading 6913.10.50, HTSUS, with a 1994 column one duty rate of 9% ad valorem.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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