Decision on Application for Further Review of Protest

HQ 958003 March 9, 1998 CLA-2 RR:CR:TE 958003 SK/PR CATEGORY: Classification TARIFF NO.: 4811.90.2000; 4811.90.8000 Port Director U.S. Customs Service 610 South Canal Street Chicago, IL 60607 RE: Decision on Application for Further Review of Protest No. 3901-94-102722; denied; classification of suede effect or linen effect mat board; 4811.90.2000; 4811.90.8000, HTSUSA; Note 2 to Chapter 48, HTSUSA; mat board is coated with adhesive; Note 6 to Ch. 48, HTSUSA; unsubstantiated claim of an established and uniform practice; Heraeus-Amersil, Inc. v. United States, 795 F.2d 1575; 4 Fed.Cir. (T) 95 (1986), citing Siemens America, Inc. et al. v. United States, 692 F.2d 1382; 1 Fed. Cir. (T) 9 (1982); valuation determination. Dear Sir: This is a decision on application for further review of a protest timely filed on December 14, 1994, by the law firm of Hodes & Pilon on behalf of their client, Crescent Cardboard Company ("Crescent"), against your decision regarding the classification of mat board under either subheading 4811.90.2000 or 4811.90.8000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The protest covers a single entry made at the port of Chicago on June 7, 1994. This entry was liquidated on September 16, 1994. Samples of the subject merchandise were provided to this office for examination. In addition to counsel's submission accompanying the protest, counsel has provided this office with four additional written submissions dated June 23, 1994, November 15, 1995, March 28, 1996, and June 27, 1996. The last submission was accompanied by a videotape. FACTS: The subject mat board is described on the invoices presented to this office as "paperboard in sheets." The merchandise (hereinafter "mat board") is manufactured by and purchased from Moorman Karton, B.V., Holland ("Moorman") and consists of composite paperboard imported in rectangular sheets greater than 36 centimeters by 15 centimeters. The mat board is sold and used as picture framing mat board. Protestant states that the mat board is "covered on one surface with material other than paper." The subject merchandise consists of a base layer of paper which is coated on one exterior surface with an adhesive and either flock or fabric is then affixed to this top layer of base paper. The paper is then fed through a machine which applies additional coatings of adhesive to the core and lining papers and then presses these three layers together. The mat board features four different types of non-paper exteriors: suede effect (produced by textile flocking), leather effect (produced by an application of an acrylic-type plastic), linen, and moire silk. Only two of the four types of mat board are at issue: the suede effect and linen effect mat boards. In neither sample can the adhesive be seen with the naked eye. Four reports from the Chicago Customs laboratory were submitted to this office. The reports provided lab analysis for style 87109 (taupe suede), style 67303 (dark green leather) and style 67306 (tan leather). Counsel for the Protestant makes the following claims: 1) Certain elements of the appraised value for discounts offered and taken should be excluded from the price actually paid or payable; 2) Classification under subheading 4805.80.4090, HTSUSA, is correct as a matter of interpretation of the tariff schedule; 3) Classification under subheading 4805.80.4090, HTSUSA, is correct inasmuch as Customs has an established and uniform practice with regard to the classification of this merchandise under this provision of the nomenclature; 4) Classification under 4807.99.4000, HTSUSA, (now provided for under 4807.90.4000, HTSUSA, under the terms of the 1996 tariff schedule) is appropriate as an alternative classification to subheading 4805.80.4090, HTSUSA; 5) Classification under subheading 4811.39.4040, HTSUSA, is appropriate as an alternative classification to 4805.80.4090, HTSUSA, or 4807.90.4000, HTSUSA. Heading 4805 provides: 4805 Other uncoated paper and paperboard, in rolls or sheets, not further worked or processed than as specified in note 2 of this chapter Heading 4807 provides: 4807 Composite paper and paperboard (made by sticking flat layers of paper or paperboard together with an adhesive), not surface-coated or impregnated, whether or not internally reinforced, in rolls or sheets Heading 4811 provides, in pertinent part 4811 Paper, paperboard, cellulose wadding and webs of cellulose fibers, coated, impregnated, covered, surface-colored, surface-decorated or printed, in rolls or sheets, other than goods of heading 4803, 4809, 4810 or 4818: * * * Paper and paperboard, coated, impregnated or covered with plastics (excluding adhesives): * * * Bleached, weighing more than 150 g/mý: * * * Other: * * * 4811.39.4040 Other.................................................................. * * * 4811.90 Other paper, paperboard, cellulose wadding and webs of cellulose fibers: 4811.90.1000 Handmade paper.......................................................... Other: 4811.90.2000 Wholly or partly covered with flock, gelatin, metal or metal solutions......................... Other: * * * Other: Other: * * * 4811.90.8000 Weighing over 30 g/mý...... Counsel for the Protestant also contends that the September 16, 1994, liquidation under subheadings 4811.90.2000 and 4811.90.8000, HTSUSA, violates Customs established and uniform practice with regard to the classification of this commodity under subheading 4805.80.4090, HTSUSA. In support of this claim, counsel for the Protestant has provided this office with two sworn affidavits from Gary Szmurlo, Director of Administrative Services for Crescent. In the first affidavit, dated November 14, 1995, Mr. Szmurlo attests that Crescent has filed at least 73 entries for importations of Moorman fabric mat board from January 1989, to June 1994, and that during this time all of Crescent's importations occurred at the port at Chicago. Mr. Szmurlo states that "[V]irtually all of the entries reflected classification of all varieties of Moorman fabric board under HTSUSA 4805.80.40." Counsel for the Protestant also submitted a letter from the President of Moorman which states that Crescent has been the exclusive distributor of this product in the United States since October 1, 1989. In the second affidavit, dated March 28, 1996, Mr. Szmurlo attests that during the period from January 1989 to June 1994, 26 of the 73 entries which were the subject of the first affidavit were for Moorman products "other than fabric mat board," and were entered in the United States under a heading other than 4805, HTSUSA. Of these 26 entries, 23 consisted of importations of corner sample sets, swatches and materials used for marketing purposes. There were also three entries of prototype and/or sample Moorman sheet products, totaling 165 sheets, but these did not include any Moorman fabric mat board. ISSUES: 1) Whether certain elements of the appraised value, for discounts offered and taken, should be excluded from the price actually paid or payable? 2) What is the proper classification of the subject merchandise? 3) Whether an established and uniform practice exists with regard to the classification of the subject merchandise under subheading 4805.80.4090, HTSUSA? LAW AND ANALYSIS: - VALUE - Crescent purchased the subject merchandise from Moorman in the Netherlands. Crescent's position is that Customs appraisement of the merchandise in the subject entry was too high because it did not include the discounts received from Moorman. It claims that prior to exportation of the merchandise Moorman agreed to give it an additional 5 percent discount off the previously agreed upon price for Suede Moorman board in order to allow it to run a promotion. According to Crescent, the error in appraising the merchandise apparently arose because, when entering merchandise, their Customs broker presented an incorrect invoice to Customs which did not reflect the 5 percent discount it received. In addition, Crescent contends that it received a further discount of 3 percent because it paid for the goods within eight days. In order to establish that it received the 5 percent discount, Crescent has presented what it calls a "corrected" invoice from Moorman dated May 19, 1994. On the "corrected" invoice, there is a column labeled "Disc." Under that column, a number "5" is printed along side several of the rows showing which products were purchased. This presumably indicates that Moorman gave a 5 percent discount on these products. On the first invoice that the broker presented to Customs, the price per sheet is the same as shown on the "corrected" invoice but there are no number fives printed in the column for discounts. Where a "5" is printed in the discount column, the amount owed for the item on the "corrected" invoice is 5 percent less than the amount shown on the original invoice presented to Customs. The total amount owed for the imported merchandise shown on the "corrected" invoice is $100,314.46, while the total amount shown on the first invoice presented to Customs is $103,661.50. On the top of both invoices the words "payment 8 days 3 percent" are printed. Counsel has also submitted an international funds transfer drawn on Harris Bank which shows that Crescent's account was debited a total of $97,305.0400. The entry documents indicate that the merchandise was appraised at $103,662. As you know, the preferred method of appraisement is transaction value which is defined by 402(b)(1) of the Tariff Act of 1930, as amended by the Trade Agreements Act (TAA) of 1979 (19 U.S.C. 1401a(b)) as "the price actually paid or payable for the merchandise when sold for exportation to the United States..." plus certain additions specified in 402(b)(1)(A) through (E). The term "price actually paid or payable" is defined in TAA 402(b)(4)(A) as: ...the total payment (whether direct or indirect ...) made, or to be made, for the imported merchandise by the buyer to, or for the benefit of the seller." Section 152.103(a)(1) of the Customs Regulation (19 CFR 152.103(a)(1)) provides that the price actually paid or payable "...will be considered without regard to its method of derivation. It may be the result of discounts, or negotiations, or may be arrived at by the application of a formula ..." A discounted price must be agreed to and effected prior to exportation of the merchandise for it to constitute the price actually paid or payable. See Customs Headquarters Ruling Letter (HQ) 544907, April 13, 1992. In this case, the importer has presented two documents to show that the price actually paid or payable used to determine the transaction value of the imported merchandise should have been reduced because the seller gave the importer certain discounts. The first document is a "corrected" invoice from the seller, which shows that the importer received a 5 percent discount on certain items that it purchased. The "corrected" invoice also shows that the importer would receive an additional 3 percent discount if it paid for the merchandise within 8 days. The second document that the importer has presented is a bank transfer record, which indicates that the total amount Crescent paid Moorman for the imported merchandise was $97,305.0400. This means that total payment made to the seller for the imported merchandise included the discounts shown on the corrected invoice. The invoice is dated May 19, 1994. The entry for the merchandise was made on May 26, 1994. This demonstrates that the discounts were agreed to and effected prior to the exportation of the merchandise. Accordingly, based on the evidence in the record, we are satisfied that the price actually paid or payable for the imported merchandise included discounts of 5 percent and 3 percent, and that these discounts were agreed to and effected prior to the exportation of the merchandise. Therefore, we find that the appraisement of the merchandise was incorrect. The entry should be reliquidated so that the transaction value of the imported merchandise includes the 5 percent merchandise discount and 3 percent timely payment discount as shown on the "corrected" invoice presented by the importer. -CLASSIFICATION - Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's, applied in numerical order. The threshold question is whether the subject mat board is classifiable under heading 4805, HTSUSA, which provides for other uncoated paper and paperboard, not further worked or processed than as specified in note 2 to this chapter." Legal Note 2 to Chapter 48, provides: 2. Subject to the provisions of note 6, headings 4801 to 4805 include paper and paperboard which have been subjected to calendering, super-calendering, glazing or similar finishing, false water-marking or surface sizing, and also paper, paperboard, cellulose wadding and webs of cellulose fibers, colored or marbled throughout the mass by any method. Except where heading 4803 otherwise requires, these headings do not apply to paper, paperboard, cellulose wadding or webs of cellulose fibers which have been otherwise processed, for example, by coating or impregnation. In counsel's submission to this office, subheading 4805.80.4090, HTSUSA, is offered as the correct classification for the subject mat board. Counsel states that the subject merchandise is described by the heading language. Counsel submits that the subject mat board is uncoated because "the outermost surface which distinguishes the suede, leather, linen and silk products is not a coating' but rather a covering.'" We do not agree. First The American Heritage Dictionary, Second College Edition (1982), at page 285, defines "coating" as "A layer of a substance spread over a surface for protection or decoration; a covering layer," and Webster's Encyclopedic Unabridged Dictionary of the English Language (1996) defines "coating" as, "a layer of any substance spread over a surface." (at page 394). Furthermore, in looking for guidance from the Harmonized Commodity Description and Coding System, Explanatory Notes (EN), which is the official interpretation of the HTSUSA at the international level (for the 4 digit headings and the 6 digit subheadings), we note that for heading 5907, HTSUSA, the heading under which fabrics coated with substances other than plastics or rubber are classifiable: Fabric, the surface of which is coated with glue . . . plastics, rubber or other materials and sprinkled with a fine layer of other material such as: (1) Textile flock or dust to produce imitation suedes . . . Fabrics covered with textile flock or dust to produce imitation pile (for example, corduroy) remain classified in this heading. (at page 898) The EN to chapter 48, HTSUSA, at pages 735-736, define "coated paper and paperboard" in the following manner: This term applies to paper or paperboard which has been given a coating on one or both sides either to produce a specially glossy finish or to render the surface suitable for particular requirements. * * * Subject to the exceptions mentioned in the heading, paper and paperboard with a coating of . . . textile dust . . . fall in heading 4811 . . . Such coated papers and paperboards include gummed or adhesive paper, flock papers (coated with textile dust . . . ). [emphasis added] In addition, we note that under the Tariff Schedules of the United States (TSUS), the predecessor of the HTSUS, the term "coated or filled" in Schedule 3, subpart C, note 2(a), was defined for the purpose of the entire tariff schedules, as meaning that a textile fabric "has been coated or filled (whether or not impregnated) with . . . flock . . ." See also T.D. 68-77(6). The determinative criterion for classification within headings 4805 and 4507, HTSUSA, is that the paper or paperboard is not coated. In view of the preceding, we conclude that the flock application is a "coating" within the purview of heading 4811 and that the imported suede effect mat boards are, therefore, precluded from classification under headings 4805 and 4807. Accordingly, they are properly classifiable under heading 4811. We recognize that headings 4805 and 4807 may describe the imported linen effect mat board because the mat board has been laminated to the linen fabric and a lamination is not a coating. C.J. Tower & Sons of Buffalo, Inc. v. United States, 62 Cust. Ct. 643 (1969). However, a lamination does constitute a "covering." Customs Headquarters Ruling Letter (HQ) 083129, dated November 14, 1989. Accordingly, while the linen effect mat board is not coated, it is "covered" and, therefore, it is described by heading 4811. Note 6 to chapter 48 provides: 6. Paper, paperboard, cellulose wadding and webs of cellulose fibers answering to a description in two or more of the headings 4801 to 4811 are to be classified under that one of such headings which occurs last in numerical order in the tariff schedule. Pursuant to note 6, the linen effect mat board is precluded from classification under either heading 4805 or heading 4807 and is properly classifiable under heading