GASPAROTTO/PANONTIN CONSTRUCTION LIMITED
Decisions
v.
THE DEPUTY MINISTER OF NATIONAL REVENUE FOR CUSTOMS AND EXCISE
Appeal No. AP-91-152
TABLE OF CONTENTS
Ottawa, Thursday, May 20, 1993
Appeal No. AP-91-152
IN THE MATTER OF an appeal heard on February 19, 1993, under section 67 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.);
AND IN THE MATTER OF a decision of the Deputy Minister of National Revenue for Customs and Excise dated July 4, 1991, with respect to a request for re-determination under section 63 of the Customs Act.
BETWEEN
GASPAROTTO/PANONTIN CONSTRUCTION LIMITED Appellant
AND
THE DEPUTY MINISTER OF NATIONAL REVENUE
FOR CUSTOMS AND EXCISE Respondent
The appeal is dismissed.
Michèle Blouin ______ Michèle Blouin Member
Lise Bergeron ______ Lise Bergeron Member
Michel P. Granger ______ Michel P. Granger Secretary
The appellant carries on business as a construction company in Thunder Bay, Ontario. It imports some of its construction materials from the United States. In particular, it imports certain corrosion - resistant, heavy-duty tiles known as "fire clay tiles," which are the subject of this appeal. The issue in this appeal is whether the fire clay tiles imported by the appellant are more properly classified under tariff item No. 6901.00.00 as "[b]ricks, blocks, tiles and other ceramic goods of siliceous fossil meals ... or of similar siliceous earths," as contended by the appellant, or under tariff item No. 6908.90.10 as glazed ceramic wall tiles, as contended by the respondent. At the hearing, the appellant abandoned heading No. 69.01 and, instead, requested that the Tribunal declare that goods fired at temperatures of 1500 o C or more are more properly classified under heading No. 69.02 or 69.03 and that an annex code or tariff item be created to cover all other goods qualifying for entry under former tariff item 28100-1.
HELD: The appeal is dismissed. The Tribunal is of the opinion that it does not have the jurisdiction to make the declaration sought by the appellant.
Tribunal Members: Desmond Hallissey, Presiding Member Michèle Blouin, Member Lise Bergeron, Member
Counsel for the Tribunal: Hugh J. Cheetham
Clerk of the Tribunal: Janet Rumball
Appearances: George Carroll, for the appellant Rick Woyiwada, for the respondent
This is an appeal under section 67 of the Customs Act [1] (the Act) from a decision of the Deputy Minister of National Revenue for Customs and Excise (the Deputy Minister) dated July 4, 1991.
The appellant carries on business as a construction company in Thunder Bay, Ontario. It imports some of its construction materials from the United States. In particular, it imports certain corrosion-resistant, heavy-duty tiles known as "fire clay tiles," which are the subject of this appeal.
The tiles in issue were imported on May 22 and 30, 1990. On both occasions, they were initially classified under tariff item No. 6902.90.90 as other "[r]efractory ... tiles ... other than those of siliceous fossil meals or similar siliceous earths." On June 19 and 28, 1990, respectively, the Deputy Minister re-determined the classification of the tiles in issue and classified them under tariff item No. 6908.90.10 as glazed ceramic wall tiles. On September 20, 1990, the appellant requested a re-determination. By decision dated November 22, 1990, the respondent maintained the classification of the tiles. On December 6, 1990, the appellant requested a further re-determination. By decision dated July 4, 1991, the respondent maintained the classification of the tiles under tariff item No. 6908.90.10. In its notice of appeal to the Tribunal, the appellant contended that the tiles were more properly classified under tariff item No. 6901.00.00 as "[b]ricks, blocks, tiles and other ceramic goods of siliceous fossil meals ... or of similar siliceous earths" and not under tariff item No. 6902.90.90, as previously contended.
The issue in this appeal is whether the fire clay tiles imported by the appellant are more properly classified under tariff item No. 6901.00.00 as "[b]ricks, blocks, tiles and other ceramic goods of siliceous fossil meals ... or of similar siliceous earths," as contended by the appellant, or under tariff item No. 6908.90.10 as glazed ceramic wall tiles, as contended by the respondent.
Prior to the hearing, the Tribunal received notice from the representative of Canadian Stebbins Engineering & Mfg. Co. Limited (Canadian Stebbins) of Ottawa, Ontario, that Canadian Stebbins wished to intervene in this appeal by means of written submissions. These submissions accompanied the notice. The materials received from Canadian Stebbins indicated that it imports different types of bricks which have different uses than those of the appellant's tiles. These bricks, however, do apparently share certain characteristics with the appellant's tiles.
During discussion of preliminary matters at the beginning of the hearing, the appellant's representative, Mr. George Carroll, indicated that he was prepared to accept the experts' reports filed by the respondent in respect of the technical conclusions made therein. The Tribunal specifically asked Mr. Carroll if he accepted these reports since, in the Tribunal's view, they concluded that the goods in issue were not made of siliceous fossil meals or of similar siliceous earths and, therefore, as the appellant had already acknowledged that the goods in issue were not refractory ceramic goods, there would be no evidentiary basis upon which to classify the goods under heading No. 69.01. Mr. Carroll confirmed that he accepted the technical conclusions in the reports, although he did have two questions for the experts, which in the Tribunal's view, did not bear on the technical or scientific conclusions reached in these reports. Following further discussion, it became clear that the appellant was abandoning heading No. 69.01 and was now seeking different relief from the Tribunal. More specifically, Mr. Carroll stated that the relief that the appellant was seeking was not to have the goods in issue classified under tariff item No. 6901.00.00, but rather for the Tribunal to declare that goods fired at temperatures of 1500oC or more are more properly classified under heading No. 69.02 or 69.03 and that an annex code or tariff item be created to cover all other goods qualifying for entry under former tariff item 28100-1.
The Tribunal notes that, since the goods in issue are fired at a temperature less than that identified in the appellant's request, only the second part of the appellant's request pertains to the goods in issue. [2] The appellant explained that the request that it was making was meant to cure the defect in the Act that the appellant claimed occurred when the duty-free status of the goods in issue was not maintained following the introduction of the Harmonized Commodity Description and Coding System into Canadian law. In effect, the appellant asked that the Tribunal direct that the legislation be amended in accordance with its request. The Tribunal is of the opinion that it does not have the jurisdiction to do so, and, accordingly, the appeal is dismissed.
Finally, with respect to the intervention by Canadian Stebbins, the Tribunal notes that, under subsection 67(2) of the Act, an intervenor may only intervene in respect of the actual case before the Tribunal. In this case, the Tribunal has been asked to consider the classification of the appellant's tiles, not Canadian Stebbin's bricks. The Tribunal is of the view that, unfortunately, Canadian Stebbins has misconstrued its role in these proceedings, as the Tribunal has no jurisdiction to consider the facts of a case that it may have against the Deputy Minister.
[ Table of Contents]
1. R.S.C. 1985, c. 1 (2nd Supp.).
2. Based on Mr. Carroll's comments, the Tribunal notes that information in the brief of Canadian Stebbins indicates that its bricks would fall under the first part of the request.
Initial publication: June 30, 1997