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NY L82118




January 21, 2005

CLA-2-33:RR:NC:2:240 L82118

CATEGORY: CLASSIFICATION

TARIFF NO.: 3303.00.3000; 9801.00.10

Ms. Stacy Bauman
American Shipping Company Inc.
140 Sylvan Avenue
Englewood Cliffs, NJ 07632

RE: The tariff classification of USA origin cologne bottled in China

Dear Ms. Bauman :

In your letter dated January 7, 2005 you requested a tariff classification ruling on behalf of your client Topline Products Company, Inc.

Bulk cologne of USA origin is exported in drums to China. The cologne is emptied from the drums into a large pumping system for the filling of individual bottles. The filled bottles are labeled, packed into retail sales cartons and shipped to the USA.

The applicable subheading for the cologne will be 3303.00.3000, Harmonized Tariff Schedule of the United States (HTS), which provides for Perfumes and toilet waters. The rate of duty will be free.

Subheading 9801.00.10, HTSUS, provides for the free entry of products of the U.S. that are exported and returned without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1) are met. While some change in the condition of the product while it is abroad is permissible, operations, which either advance the value or improve the condition of the exported product render it ineligible for duty free entry upon return to the U.S. See Border Brokerage Co. v. United States, 65 Cust. Ct. 50, C.D. 4052, 314 F.Supp. 788 (1970), appeal dismissed, 58 CCPA 165 (1970).

In United States v. John V. Carr & Sons. Inc., 69 Cust. Ct. 78, C.D. 4377, 347 F.Supp. 1390 (1972, 61 CCPA 52, C.A.D. 1118, 496 F.2d 1225 (1974), the court stated that absent some alteration or change in the item itself, the mere repackaging of the item, even for the purpose of resale to the ultimate consumer, is not sufficient to preclude the merchandise from being classified in subheading 9801.00.10 HTSUS. The U.S. origin cologne, bottled, labeled and packaged in a retail sales carton in China and returned to the United States is not considered to have been advanced in value or improved in condition for the purposes of subheading 9801.00.1097, HTS. As a result, the bottled cologne, a product of the United States, may be eligible for entry as American Goods Returned. If the documentary requirements of 19 C.F.R. ยง10.1 are satisfied, the applicable subheading for the cologne will be 9801.00.1097, HTS, which provides for products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad. Products classified in subheading 9801.00.1097 are free of duty.

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304. Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin" as the country of manufacture, production or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of Part 134. A substantial transformation occurs when an article loses its identity and becomes a new article having a new name, character, or use. The mere repackaging of an article does not constitute a substantial transformation. The U.S. origin cologne is not substantially transformed by being repackaged in China; therefore, the country of origin of the finished cologne is the U.S. Section 134.32(m), Customs Regulations (19 CFR 134.32(m)), provides that products of the U.S. exported and returned are exempted from country of origin marking requirements. Accordingly, since the country of origin of the repackaged cologne is the U.S., the cologne is exempted from country of origin marking requirements under section 134.32(m).

Perfumery, cosmetic and toiletry products are subject to the requirements of the Federal Food, Drug and Cosmetic Act, which is administered by the U.S. Food and Drug Administration. You may contact them at U.S. Food and Drug Administration, Office of Cosmetics and Colors 5100 Paint Branch Parkway, College Park, MD 20740-3835, telephone (202) 418 3412.

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. If you have any questions regarding the ruling, contact National Import Specialist Stephanie Joseph at 646-733-3268.

Sincerely,

Robert B. Swierupski
Director,

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