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NY J88587




September 5, 2003

CLA-2-34:RR:NC:SP:237 J88587

CATEGORY: CLASSIFICATION

TARIFF NO.: 3406.00.0000; 9405.50.4000

Mr. Benson Lau / Mr. Darren Lai
Prejecting 2500 Ltd.
8/F, Unit 39-40 Pacific Trade Center
2 Kai Hing Road
Kowloon Bay, Kowloon, Hong Kong 180

RE: The tariff classification of pillar-shaped candle sets and candleholders from China.

Dear Mr. Lau / Mr. Lai:

In your letter dated August 26, 2003 you requested a tariff classification ruling on five candle items. Your samples are being returned.

Item # KM03-171 Ceramic Candle Jug with shade consists of a white wax candle poured in a blue and white ceramic jar with lamp-shade decorated with a snowman, snow flakes and stars (5.75”D x 7.125”H) and packed in a clear acetate box. The wax is said to contain 58% palm oil and 42% paraffin. The wax candle imparts the essential character of the set.

Item # KM03-189 Red Cylinder Candle with Jingle Bell Iron Plate consists of a red pillar-shaped candle (2.8”D x 6”H) and gold plate-shaped iron candleholder decorated with metal jingle-bells (5”D x 1.5”H) and wrapped in clear cellophane tied with ribbon. The wax is said to contain 58% palm oil and 42% paraffin. The candleholder imparts the essential character of the set.

Item # KM03-192 Gold Pillar with Glitter Finish and ceramic plate consists of a gold pillar-shaped candle (2.8”D x 4”H) and a gold ceramic plate (4.5”D x 0.75”H) wrapped in clear cellophane tied with a ribbon. The wax is said to contain 58% palm oil and 42% paraffin. The wax candle imparts the essential character of the set.

Item # KM03-199 Three Piece Glass Candle Garden set consists of 3 ruby-tinted long-stemmed glass candleholders of varying heights (3.6”D x 8”H or 10”H or 11”H) and three ball-shaped candles (1.5”D) packed in a printed folding paper-board carton. The wax is said to contain 58% palm oil and 42% paraffin. The candleholders impart the essential character of the set.

Item # KM03-208 Autumn Fest 10 Piece Pumpkin Spice Scented Candles set consists of 1 large orange spice-scented pillar-shaped candle (2.8”D x 6”H), 1 orange spice-scented wax candle poured in a clear-glass container (4”D x 4.75”H) and 8 small pillar-shaped votive candles (1.5”D x 2”H) packed in a printed folding paper-board carton. The wax is said to contain 58% palm oil and 42% paraffin. The wax candles impart the essential character of the set.

The applicable subheading for Item Item # KM03-192 Gold Pillar candle with plate and Item # KM03-208 Autumn Fest 10 Piece candle set will be 3406.00.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for candles, tapers and the like. The rate of duty is free.

The applicable subheading for Item # KM03-189 Red Cylinder Candle with Jingle Bell Iron Plate candleholder and Item # KM03-199 Three Piece Glass Candle Garden with 3 long-stemmed glass candleholders and will be 9405.50.4000, HTSUS, which provides for other non-electrical lamps and lighting fittings. The rate of duty is 6 percent ad valorem.

Item # KM03-171 Ceramic Candle Jug with snowman and snowflakes is seasonal merchandise and not necessarily associated with a particular holiday. However, the issue of the scope of the term “festive articles” under heading 9505, HTSUS, is currently pending before the United States Court of Appeals for the Federal Circuit in the matter of Park B. Smith Ltd. V. United States, Court of Appeals No. 01-1578 (cross appeal # 01-1586). Section 177.7, Customs Regulations (19 CFR 177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(b) states, in pertinent part, the following:

No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit, or any court of appeal therefrom.

In light of the prohibition set out in 19 CFR 177.7(b), and as the instant classification ruling request is closely related to the issue presently pending in the Court of Appeals, we are unable to issue a classification ruling letter to you with respect to Item # KM03-171 Ceramic Candle Jug with snowman and snowflakes.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling on Item # KM03-171 Ceramic Candle Jug with snow-man and snowflakes. If you decide to resubmit your request, please include all materials that we have returned to you and mail your request to Director, National Commodity Specialist Division, U.S. Customs and Border Protection, One Penn Plaza, 10th Floor, New York, New York 10119, attn: CIE Binding Rulings Section. If you have any questions regarding this issue, contact National Import Specialist Alice Wong at (646) 733-3026.

Candles from China may be subject to anti-dumping duties administered by the U.S. Department of Commerce, Import Administration. You may contact them at 14th Street and Constitution Avenue, N.W., Washington, DC 20230, telephone (202) 482-4106.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. For any questions regarding the ruling, contact National Import Specialist Frank Cantone at (646) 733-3038.

Sincerely,

Robert B. Swierupski
Director,

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