Protest No. 1001-91-105866; X-Ray Image Intensifier Tube; Apparatus For Medical Or Surgical Use; Convert X-Ray Into Visible Light; Thermionic; Cathode; Photocathode; 8540.20.40

HQ 951063 June 25, 1992 CLA-2 CO:R:C:M 951063 CMS CATEGORY: Classification TARIFF NO.: 9022.11.00 Area Director of Customs J.F.K. Airport Building 178 Jamaica, NY 11430 RE: Protest No. 1001-91-105866; X-Ray Image Intensifier Tube; Apparatus For Medical Or Surgical Use; Convert X-Ray Into Visible Light; Thermionic; Cathode; Photocathode; 8540.20.40 Dear Area Director: The following is our decision regarding the Protest and Request for Further Review No. 1001-91-105866, dated August 2, 1991. The protest was filed against your liquidation of the entry of certain products which were classified in subheading 8540.20.40, Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The merchandise consists of certain X-ray image intensifier tubes. The tubes amplify X-rays into visible light in medical and surgical uses such as fluoroscopy, fluorography, cardiography and angiography. ISSUE: Is the merchandise classified as apparatus based on the use of X-rays for medical or surgical uses in Heading 9022, HTSUS, or as thermionic, cold cathode or photocathode tubes in Heading 8540, HTSUS? LAW AND ANALYSIS: The HTSUS provides that the classification of articles is governed by the General Rules of Interpretation (GRI's). GRI 1 states in pertinent part that "...classification shall be determined according to the terms of the headings and any relative section or chapter notes...".  -2- Heading 9022 in part describes apparatus based on the use of X-rays for medical or surgical uses. Heading 8540 in part describes thermionic, cold cathode and photocathode tubes. In HQ 088755 (June 2, 1992), a copy of which is attached, we held that similar tubes were classified in Heading 9022, HTSUS. We found that the tubes were described as Heading 9022 apparatus, and were thus excluded from Heading 8540 pursuant to Section XVI Note 1(m), which excludes articles of Chapter 90 from Section XVI. Because the tubes were found to be Heading 9022 "apparatus", they were not excluded from Chapter 90 pursuant to Chapter 90 Note 2(a), which relates to "parts and accessories for...apparatus..." (emphasis added). The protestant claims that the tubes should be classified in subheading 9022.90.60, as other parts and accessories of Heading 9022 apparatus. The protestant alternatively claims that the tubes should be classified in subheading 9022.30.00, as X-ray tubes. However, as we explained in HQ 088755, the products are described by and are properly classified in subheading 9022.11.00 as apparatus based on the use of X-rays for medical, surgical, dental or veterinary uses. HOLDING: The X-ray image intensifier tubes under consideration are classified in subheading 9022.11.00, HTSUS. Because the reclassification of the merchandise would result in the same or a lower rate of duty than that claimed by the protestant, the protest should be allowed in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest. Sincerely, John Durant, Director Commercial Rulings Division Encl.