chutney and pickle; NY 870053 revoked

HQ 962421 March 3, 1999 CLA-2 RR:CR:GC 962421 EAB CATEGORY: Classification TARIFF NO.: 2103.90.9060 Ms. Sulana D’Souza Himalayan Gourmet Sauces Inc. 3690 Bombardier Street Brossard, Quebec Canada J4Z 2N1 Re: chutney and pickle; NY 870053 revoked Dear Ms. D’Souza: In response to your letter of December 18, 1991, Customs issued to you NY 870053 dated January 30, 1992, in which certain food preparations were classified under the Harmonized Tariff Schedule of the United States (HTSUS) in heading 2001, the provision for vegetables, fruit, nuts and other edible parts of plants, prepared or preserved by vinegar or acetic acid, heading 2005, the provision for other vegetables prepared or preserved otherwise than by vinegar or acetic acid, not frozen, and heading 2008, the provision for fruit, nuts and other edible parts of plants, otherwise prepared or preserved. Based upon the recent decision of the Court of Appeals for the Federal Circuit in the case of Orlando Food Corporation v. United States, as noted hereinafter, Customs determined that chutney is more properly classifiable in subheading 2103.90.9060, HTSUS, the residual provision for sauces. Therefore, NY 870053 should be revoked. Pursuant to § 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by § 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed revocation was published on January 20, 1999 in the Customs Bulletin. FACTS: The product is identified as Carrot Pickle, Mango chutney, Apple chutney, Eggplant Pickle and Lime Pickle, each of which is a highly spiced fruit- or vegetable-based condiment, put up for retail sale in 8-ounce glass jars. The Carrot Pickle contains shredded carrots, vinegar, honey, garlic, spices and canola oil with an acetic acid contend of 0.54 %. The Mango chutney is a thick mass containing chunks of mango and apple, whole raisins, onions, honey, vinegar, ginger, garlic and spices with an acetic acid content of 0.52 %. The Apple chutney contains apple chunks, crushed tomatoes, whole raisins, honey, vinegar, mint leaves, ginger, garlic and spices with an acetic acid content of 0.52 %. The Eggplant Pickle contains chopped pieces of eggplant, vinegar, honey, garlic, spices and canola oil with an acetic acid content of 0.44 %. The Lime Pickle consists of slices of lime in a thick, brown medium composed of honey and spices, with no measurable acetic acid content. ISSUE: Whether the merchandise is classifiable as vegetables, fruits, nuts and other edible plants, prepared or preserved, or as sauces. LAW AND ANALYSIS: Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes, and, unless otherwise required, according to the remaining GRIs taken in order. The Explanatory Notes to the Harmonized Commodity Description and Coding System (Explanatory Notes or ENs), including the Subheading Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading and certain subheadings of the HTSUS, and are generally indicative of the proper interpretation of such headings and subheadings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). Heading 2001, HTSUS, describes in part preparations based on vegetables and/or fruit. Heading 2103, HTSUS, covers in part sauces. The terms of these headings are mutually exclusive. EN 20.01 provides as follows: The goods covered by this heading [2001] differ from sauces of heading 21.03 in that the latter are generally liquids, emulsions or suspensions containing practically no pieces of fruit, vegetables or other edible parts of plants. Similarly, EN 21.03 provides as follows: The heading [21.03] includes certain products based on vegetables or fruit, but these differ from the preserved products in chapter 20 (and more especially those under heading 20.01) in that they are mainly liquids, emulsions or suspensions containing very little solid matter, - see the Explanatory Note to heading 20.01 regarding these preparations. Based upon the express terms of heading 2001 and 2103, HTSUS, and the scope of each as put forth in the corresponding ENs, Customs has classified as prepared or preserved vegetables preparations containing much solid matter in the form of pieces of fruit or vegetables, and classified homogenous blended preparations based on fruit or vegetables as sauces. In Orlando Food Products v. United States, 140 F.3d 1437, 20 Int’l Trade Rep. (BNA) 1001 (Fed. Cir. 1998), the CAFC found that a canned tomato product consisting of approximately 60 % whole, peeled tomatoes and 40 % tomato puree, by weight, together with salt, citric acid and a basil leaf, used as a preparation for a sauce, was described by the terms of both heading 2002, HTSUS (tomatoes prepared or preserved otherwise than by vinegar or acetic acid), and heading 2103, HTSUS (sauces and preparations therefor). The court further found that heading 2103 more specifically describes the merchandise than does heading 2002, notwithstanding the clearly visible large pieces and quantities of tomato present, so that proper classification is in heading 2103, HTSUS. The presence of large pieces and quantities of vegetable and fruit in the preparations at issue here makes the product classifiable in an appropriate heading of chapter 20, HTSUS. Used as a sauce, however, each product is more specifically described by the terms of heading 2103, HTSUS, and is classifiable thereunder. HOLDING: Carrot Pickle, Mango chutney, Apple chutney, Eggplant Pickle and Lime Pickle, each of which is a highly spiced fruit- or vegetable-based condiment, put up for retail sale in 8-ounce glass jars and as further described hereinabove, are classifiable in subheading 2103.90.9060, HTSUS, the residual provision for sauces. NY 870053 is revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Marvin Amernick, for John A. Durant, Director Commercial Rulings Division