K-MART CANADA LIMITED
Decisions
v.
THE DEPUTY MINISTER OF NATIONAL REVENUE FOR CUSTOMS AND EXCISE
Appeal No. 2509
Ottawa, Tuesday, January 30, 1990
Appeal No. 2509
IN THE MATTER OF an application heard September 12, 1989, pursuant to section 67 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) as amended;
AND IN THE MATTER OF a decision of the Deputy Minister of National Revenue for Customs and Excise dated January 24, 1986, with respect to an application filed pursuant to section 63 of the Customs Act.
BETWEEN
K-MART CANADA LIMITEDAppellant
AND
THE DEPUTY MINISTER OF NATIONAL REVENUE
FOR CUSTOMS AND EXCISERespondent
The appeal is allowed. The Tribunal declares that plastic levels imported under entry no. L136488, which were the subject of a duty paid on September 10, 1985, should be classified under tariff item 46200-1 as instruments for observation in respect of natural phenomena, n.o.p., rather than under tariff item 93907-1 as articles of plastic.
Robert J. Bertrand, Q.C. ______ Robert J. Bertrand, Q.C. Presiding Member
Sidney A. Fraleigh ______ Sidney A. Fraleigh Member
W. Roy Hines ______ W. Roy Hines Member
Robert J. Martin ______ Robert J. Martin Secretary
Customs Act - Whether plastic levels imported from Kishin Sanki Co. Ltd. of Seoul, Korea, should be classified under tariff item 93907-1 as articles of plastic, or, as claimed by the appellant, under tariff item 46200-1 as instruments for observation in respect of natural phenomena, n.o.p.
DECISION: The appeal is allowed. The issue before this Tribunal is the same as that considered by the Tariff Board in the case Beaver Lumber Company Limited v. The Deputy Minister of National Revenue for Customs and Excise. The Tariff Board concluded that the goods should be classified under tariff item 46200-1. Both parties now ask the Tribunal to classify the plastic levels before the Tribunal under tariff item 46200-1. As the issue before this Tribunal and the Tariff Board is the same, the Tribunal, concurring with both parties, accepts the reasoning adopted by the Tariff Board and concludes that the plastic levels come within tariff item 46200-1 as instruments for observation in respect of natural phenomena, n.o.p.
Place of Hearing: Ottawa, Ontario Date of Hearing: September 12, 1989 Date of Decision: January 30, 1990
Panel Members: Robert J. Bertrand, Q.C., Presiding Member Sidney A. Fraleigh, Member W. Roy Hines, Member
Counsel for the Tribunal: Danielle Bouvet Clerk of the Tribunal: Janet Rumball
Case Cited: Beaver Lumber Company Limited v. The Deputy Minister of National Revenue for Customs and Excise (1988), 13 T.B.R. 203.
Statutes Cited: Customs Act, R.S.C. 1985, c. 1 (2nd Supp.); Customs Tariff, R.S.C. 1985, c. C-54; Canadian International Trade Tribunal Act, S.C. 1988, c. 56.
THE LEGISLATION
The relevant items of the Customs Tariff are as follows:
46200-1Instruments for observation, measurement, experimentation or demonstration in respect of natural phenomena, n.o.p.; photographic, mathematical and optical instruments, n.o.p; speedometers, cyclometers and pedometers, n.o.p.; parts of all the foregoing
93907- Articles of materials of the kinds described in headings 93901 to 93906 inclusive, n.o.p.:
(manufactures of plastic, n.o.p.)
93907-1Other than the following
Although the appeal was originally commenced before the Tariff Board, it is taken up and continued by the Canadian International Trade Tribunal (the Tribunal) in accordance with subsection 54(2) and section 60 of the Canadian International Trade Tribunal Act. [1]
THE FACTS
This is an appeal, pursuant to section 67 of the Customs Act (the Act), from a decision of the respondent dated January 24, 1986, classifying plastic levels imported under entry no. L136488 on September 10, 1985, under tariff item 93907-1 as articles of plastic. The appellant contends that those goods should be classified under tariff item 46200-1 as instruments for observation in respect of natural phenomena, n.o.p., and filed an appeal with the Tariff Board on February 13, 1986.
The goods in issue are plastic levels imported from Kishin Sanki Co. Ltd. of Seoul, Korea.
The facts in this appeal are relatively straightforward and are drawn substantially from the Agreed Statement of Fact and Law signed by both parties on May 15, 1989, and are reported as follows:
The appellant is a body corporate duly incorporated under the laws of Canada, with its head office in the city of Brampton, in the province of Ontario, and carries on business as an importer and seller of various retail merchandise.
On September 10, 1985, the appellant imported into Canada a shipment of plastic levels from Seoul, Korea, bearing entry no. L136488.
On October 29, 1985, a re-determination was issued on Form B32 No. 803358 by the Pacific Regions Customs Office, classifying the plastic levels under tariff item 93907-1.
On December 20, 1985, the appellant's broker filed Form K14D No. KV2517, requesting that the respondent re-determine the tariff classification of the plastic levels.
On January 24, 1986, the respondent issued a decision under subsection 46(4) of the former Customs Act, classifying the plastic levels under tariff item 93907-1.
On April 7, 1986, the appellant appealed this decision to the Tariff Board.
For the purposes of the present appeal, the appellant and the respondent agree that as a matter of fact and law, the goods in issue are most specifically described in tariff item 46200-1 as instruments for observation in respect of natural phenomena, n.o.p., and that the appeal be dealt with on the basis of the Agreed Statement of Fact and Law without the necessity of a formal hearing.
THE ISSUE
The issue in this appeal is whether plastic levels imported from Kishin Sanki Co. Ltd. of Seoul, Korea, should be classified under tariff item 93907-1 as articles of plastic, or, as claimed by the appellant, under tariff item 46200-1 as instruments for observation in respect of natural phenomena, n.o.p.
Through an Agreed Statement of Fact and Law signed by both parties on May 15, 1989, the respondent indicated that, for the purposes of this appeal, he accepts the facts contained in the document to the effect that the plastic levels fall within tariff item 46200-1.
DECISION
The issue before this Tribunal is the same as that considered by the Tariff Board in the case Beaver Lumber Company Limited v. The Deputy Minister of National Revenue for Customs and Excise. [2] Mr. Yeomans, speaking for the majority, stated (pages 215-16) that the levels in issue should be classified under tariff item 46200-1 for the following reasons:
For levels to be classified under the first branch of t. i. 46200-1, they must meet the three following conditions:
1.they have to be instruments;
2.they must be used, in this case, for observation or measurement; and
3.the observation or measurement has to be in respect of natural phenomena.
In my opinion the levels in issue meet these three conditions.
...
As t. i. 46200-1 defines the levels in issue more specifically than would tariff items classifying goods according to material, t. i. 46200-1 is to be preferred over respondent's classifications.
As the issue and the goods before this Tribunal and the Tariff Board are the same, the Tribunal, concurring with both parties, accepts the reasoning adopted by the Tariff Board and concludes that the plastic levels come within tariff item 46200-1 as instruments for observation in respect of natural phenomena, n.o.p.
CONCLUSION
In view of the foregoing, the Tribunal considers that plastic levels imported under entry no. L136488 come within tariff item 46200-1 as instruments for observation in respect of natural phenomena, n.o.p.
Accordingly, the appeal is allowed.
1. S.C. 1988, c. 56.
2. (1988), 13 T.B.R. 203.
Initial publication: July 30, 1997