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HQ 950907




May 1, 1992
CLA-2 CO:R:C:F 950907 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 0910.50

District Director of Customs
300 South Ferry Terminal
San Pedro, California 90731

RE: Decision on Application for Further Review of Protest 2704-0-004748, on the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain curry pastes from England.

Dear Sir:

The protest involves the classification of certain curry pastes entered in 1990.

FACTS:

The products - Curry Paste, Tandori Spice Paste, Tikka Spice Paste, Kebab Spice Paste, and Biryana Spice Paste - all contain coriander, turmeric, chili pepper, ginger, cumin, salt, spices and acetic acid. Additional ingredients found in some but not all of the products are low erucic acid rapeseed oil, garlic, and lentils.

In use, the Tikka, Tandori,and Kebab pastes are said to be used to coat meat products prior to cooking. Biryani is said to be used to make a rice dish. The addition of the oil is said to be as a carrier and preservative, and the lentil powder is described as filler.

ISSUE:

Whether the pastes are forms of curry classifiable as such in subheading 0910.50.00, HTSUS, or whether only the curry paste is curry for classification purposes and the others are classifiable as sauces or condiments in subheading 2103.90.6063, HTSUS.

LAW AND ANALYSIS:

U.S. note 1, Chapter 9, HTSUS, states that unless otherwise indicated, the preparations in this chapter cover the named products whether whole or in crushed or in powdered form.

The importer maintains that all of the products are forms of curry powder containing oil and vinegar. It is his position that that they are all essentially curry, and the addition of other ingredients to the basic product does not alter the identity as curry. He believes that as the essential character of the pastes is basically a curry powder, the fact that the products are packaged in the form of pastes should not prohibit classification in Chapter 9, HTSUS.

The Explanatory Notes to heading to 0910 states that curry powder consists of a mixture of variable proportions of turmeric (curcuma), of various other substances (e.g. garlic powder), other spices (e.g. coriander, black pepper, cumin, ginger, cloves,) all of which, it adds, while not falling into this chapter, are none the less often used as spices.

It is your position that the imported paste listed as curry, even though in paste form, would be classifiable as curry powder, based on the essential character of the product, in subheading 0910.50.000, HTSUS, while the other products because of differences in name, composition, and use would be classifiable as sauces. However, it is apparent that all of the products meet the ingredient definition of curry as found in the explanatory notes. They all contain the basic ingredients recognized in curry, and the variation caused by the added ingredients in each of the different types reflects not so much on how they differ from a curry, as it does the different flavor curry desired.

Although it said that three of the pastes are designed to coat meat, it is apparent that all the products could be so used. While biryani may be a rice dish, the biryani spice paste listed might be used with rice or it could be used to flavor any of the other dishes that curry is used for. By definition curry is said to consist of such spices as turmeric, allspice, fenugreek, ginger, coriander, pepper, cumin, nutmeg, cloves, cinnamon, cardamom, garlic, mustard and asafetida. It is not only used to season meat and rice, but is also used to flavor shrimp, fish and chicken dishes. Since all of these pastes contain the essential ingredients of a curry, they are regarded as curries, and the particular use of any of the pastes depends on individual taste.

HOLDING:

Since all of the pastes are forms of curry, their essential character is curry, so that they are all classifiable under subheading 0910.50.000, HTSUS.

You are directed to allow the protest in full.

A copy of this decision should be provided the protestant with the Form 19 Notice of Action.

Sincerely,

John Durant, Director

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