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HQ 959217




AUGUST 15, 1996

CLA-2 RR:TC:MM 959217 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8417.80.00

Port Director of Customs
110 S. 4th. St.
Minneapolis, MN 55401

RE: PRD 3501-95-100086; Hot Air Smoking and Baking Machine for Meats, Walk-In, Steam Heated Industrial Oven for Cooking Poultry and Other Meats; Oven, Common Meaning, C.D. 3141; Heading 8419, Industrial Machinery for Heating and Cooking

Dear Port Director:

This is our decision on Protest 3501-95-100086, filed against your classification of an industrial-type combination smoker/cooker from Germany. The entry was liquidated on January 13, 1995, and this protest was timely filed on March 9, 1995.

FACTS:

The merchandise under protest is the VEMAG Aeromat, a combined hot smoker/cooker used in the industrial preparation of turkey and other poultry meats. Submitted literature describes a walk-in chamber with sides, roof and door of polyurethane insulated base metal, and a chromium-nickel steel sheet floor. Utilizing a humidifier and air circulating fan with a range of between 10 degrees Celcius above ambient temperature and 95 degrees C, the apparatus heats the meat by means of steam passing through a heat exchanger. Apparatus of this type can also be equipped with a resistance heater powered by an electric current, but this type is not the subject of this protest. The VEMAG Aeromat is advertized for use in redding (browning), drying, smoking, boiling, spraying or hot air cooking, all in one operation. An optional heating system, that does not appear to be a part of this importation, permits baking at temperatures up to 140 degrees Celcius.

The machinery was entered under a provision in heading 8419, Harmonized Tariff Schedule of the United States (HTSUS), for machinery, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating, cooking, etc. Your office determined that this apparatus utilizes heat generated by steam and, therefore, is nonelectric. The entry was liquidated under a provision in HTS heading 8417 for nonelectric industrial furnaces and ovens. The importer/protestant maintains the merchandise is precluded from heading 8417 as it is electrically operated. However, no claim is made under HTS heading 8514, a provision for industrial or laboratory electric furnaces and ovens. The literature does not support protestant's claim and refers only to the fact that the Vemag Aeromat utilizes steam to generate heat.

The provisions under consideration are as follows:

8417 Industrial or laboratory furnaces and ovens, including incinerators, nonelectric, and parts thereof:

8417.80.00 Other...the 1994 rate of duty

8419 Machinery...whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting...other than of a kind used for domestic purposes...:

8419.81 Other machinery, plant or equipment:

8419.81.50 Other cooking stoves, ranges and ovens...Free

ISSUE:

Whether the VEMAG Aeromat is a nonelectric industrial oven of heading 8417.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined - 3 -
according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The ENs at p. 1173 exclude the following from heading 84.17: (g) Industrial or laboratory furnaces and ovens, including those for the separation of irradiated nuclear fuel by pyrometallurgical processes (heading 84.17 or 85.14, as the case may be). ENs at p. 1168 state only that heading 84.17 covers non-electrical industrial or laboratory furnaces and ovens, designed for the production of heat in chambers at high or fairly high temperatures by the combustion of fuel. The heading includes steam heated ovens. These notes are not helpful in clarifying the scope of heading 8417.

For heading 8417 purposes, the terms "furnace" and "oven" are not defined in the text of the HTSUS or in the ENs. In such cases tariff terms are to be determined in accordance with their common and commercial meanings, which are presumed to be the same. Circumscribed only by the requirements that they be industry or laboratory types and nonelectric, an oven is a heated chamber or other enclosure used for baking, heating, drying or hardening. See F. L. Smidth & Company v. United States, 59 Cust. Ct. 276, C.D. 3141 (1967), in which the Customs Court established the common meaning of the term "oven" and determined that a kiln was within this common meaning.

HOLDING:

Under the authority of GRI 1, the VEMAG Aeromat is provided for in heading 8417. It is classifiable in subheading 8417.80.00, HTSUS.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any - 4 -
reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the 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, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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