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HQ 961415




July 9, 1998

CLA-2 RR:CR:GC 961415ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 7113.19.50

Port Director
U.S. Customs Service
1624 E. 7th Avenue
Suite 101
Tampa, FL 33605-3706

RE: Protest 1801-94-100033; Jewelry.

Dear Port Director:

The following is our decision on Protest 1801-94-100033, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an assortment of jewelry.

FACTS:

The goods under protest were entered on February 3, 1994, and invoiced as "other antiques >100 years old". The goods consist of 3234 pieces of jewelry contained in several lots which had been acquired at auction in Switzerland. The entry covering the goods was liquidated on June 17, 1994, under the provision for articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal, of precious metal whether or not plated or clad with precious metal, other in subheading 7113.19.5000, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the general rate of 6.5%. A timely protest under 19 U.S.C. 1514 was received on July, 26, 1994. The protestant requested reliquidation of the entry under the provision for antiques, over 100 years old, in subheading 9706.00.0060 HTSUS, with free general duty rate.

ISSUE:

What is the proper classification of an assortment of imported jewelry?

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). The systematic detail of the HTSUS is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

The headings under consideration are as follows:

7113 Articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal:

7113.19 Of other precious metal, whether or not plated or clad with precious metal:

Other:

7113.19.50 Other.

9706.00.00 Antiques of an age exceeding one hundred years

9706.00.0060 Other

The protestant is claiming that all but 358 rings of the 3234 pieces of jewelry which comprised the lots acquired at a Christie's Geneva Free Port auction qualify as antiques. For merchandise to be eligible for classification as antiques in heading 9706, HTSUS, the language of the tariff is specific. All goods being considered for such classification must be "of an age exceeding one hundred years."

Invoices submitted by the protestant for auction Lots 191, 194, 196 and 202 show that Christie's identified the merchandise simply as "Lot de 553 bijoux" (Lot of 553 pieces of jewelry), "Lot de 760 bijoux" (Lot of 760 pieces of jewelry), "Lot de 772 bijoux" (Lot of 772 pieces of jewelry), and "Lot de 1149 bijoux" (Lot of 1149 pieces of jewelry), respectively. A handwritten note on the invoice indicates that all the goods on the invoice were to be considered antique jewelry except for 358 rings. Thus, the entry was prepared showing 2876 pieces of antique jewelry and 358 non-antique rings. There is no provenance, certification or authentication from Christie's regarding the age of any of the merchandise covered by the invoices. Pages from the auction catalogue show that Christie's did not even provide a "circa" date as guidance to the true age of the jewelry.

Customs had the assortment of jewelry examined and appraised by an independent certified appraiser-gemologist prior to liquidation of the entry. Because of the number of pieces of jewelry, and the fact that they were packed in bags, Customs appraisement was conducted in two phases. In each, a representative sample of the lots was randomly selected. On December 18, 1993, 389 pieces were randomly selected. Of those, 32 were found to be antiques. On January 23, 1994, another 151 pieces were randomly chosen. Of this latter group, 18 were found to be antique. The result of these examinations indicated that the lots consisted of a commingled mixture of jewelry, of which approximately 9% (50 pieces out of 540) were actually over one hundred years old. The actual antiques were randomly interspersed throughout the lot and could not easily be segregated by Customs. The Customs appraiser estimated that the average fair market value of each item in the lot was between $276.51 and $299.05 per item, while the cost averages from $138.26 to $194.38 per item. Were these articles actually antiques, they would command a much higher estimated value. This relatively low value is consistent with the auction house's sale of the articles by lot. These factors do not support the claim that the articles are antiques.

The protestant has provided Customs with the results of an appraisal conducted by its own expert. Protestant's appraiser examined and provided opinions on more articles than those which are the subject of this protest and did not appraise all the items that were imported since many of them were already sold. Upon reading the results of that appraisal, which determined, after "individual examination," that all the articles were antiques over 100 years old, one also sees that the appraisal of 693 pieces of jewelry was accomplished in one day. Even if the protestant's appraiser worked diligently, without stopping, the numbers indicate each "individual examination" was conducted quickly. In a different appraisal of 234 additional pieces, the protestant's appraiser determined that 96% of those lots were antiques. Such speed causes Customs to view the results of the appraisal with skepticism.

General Note 17 to the HTSUS provides, in general, that when goods subject to different rates have been commingled in such a way that the quantity or value of each class cannot be readily ascertained without physical segregation of the goods, the commingled goods shall be subject to the highest rate. Customs Regulations provide in 19 CFR 152.13 that when Customs discovers commingled goods, the importer shall be notified and allowed the opportunity to perform the segregation necessary to ascertain the quantity of each class of goods. However, in the instant situation, the protestant had already performed a segregation of the lots of jewelry into goods he claimed to be antiques and those for which no such claim was being made. Customs appraisal was conducted to verify protestant's classification, not to ascertain whether the goods were commingled. Pursuant to General Note 17, the articles which are the subject of this protest are properly subject to the higher rate of duty applicable to articles of jewelry.

Based upon the above considerations, and in view of the express language of the tariff, Customs does not believe that protestant has shown that all of the articles claimed to be antiques were actually over one hundred years old. Accordingly, they are properly classified in subheading 7113.19.50, HTSUS, as articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal, of other precious metal, whether or not plated or clad with precious metal, other.

HOLDING:

For the reasons stated above, the protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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