HQ 958999

April 23, 1996

CLA-2 RR:TC:MM 958999 MMC

CATEGORY: Classification

TARIFF NO.: 6913.10.50

Port Director

U.S. Customs Service

2nd & Chestnut Streets

Philadelphia, PA 19106

RE: Protest 1101-95-100484; Porcelain Spice Jars; Lenox v. U.S.,

Kraft, Inc, v.U.S, G. Heilman Brewing Co. v.U.S. and U.S. v.

Carborundum Company

Dear Port Director:

The following is our decision regarding the request for

further review of Protest 1101-95-100484, which concerns the

classification of porcelain spice jars under the Harmonized Tariff

Schedule of the United States (HTSUS). Our decision is based on

protestant\'s original submission dated June 27, 1995, as well as an

additional submission of March 15, 1996.

FACTS:

The subject articles are ceramic spice jars shaped like

cottages. They are elaborately decorated and have the name of a

spice painted on each. The articles were entered under subheading

6913.90.50, HTSUS, as other ornamental ceramic articles. Entries

were liquidated on March 31, April 21, and June 6, 1995, under

subheading 6911.10.80, HTSUS. A protest was timely received on

June 27, 1995. The 1994 subheadings under consideration are as

follows:

6911.10.80 Tableware, kitchenware, other household

articles and toilet articles, of porcelain or

china: Tableware and kitchenware: Other:

Other: Other:

Other\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....25%

6913.10.50 Statuettes and other ornamental ceramic

article:

Of porcelain or china: Other:

Other\...\...\...\...\...\...\...\.....doz.pcs.

\...\...9%

6913.90.50
Other:Other:Other\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...7%

U.S. Customs Laboratory Report No. 3-95-31123-001 dated March

22, 1995, indicates that the ceramic spice jars are composed of

porcelain. They have a white, translucent body and a water

absorption value of less than 0.5% by weight. It meets the

requirements of Additional U.S. Notes 1 and 5(a)of Chapter 69,

HTSUS, for a ceramic article of porcelain. Protestant\'s original

submission contained laboratory reports, conducted by an

independent lab, indicating that when the spice jars were tested

without their glaze, their water absorption was higher than 0.5% by

weight. Based on this evidence protestant argued that the subject

spice jars were not porcelain. By letter of March 15, 1996,

protestant withdrew their argument that the articles were not

porcelain. Additionally, protestant asserted that pursuant to the

finding of Lenox v. United States, No. 96-30 slip op. (CIT

February 2, 1996) \[Lenox\], their articles are classifiable under

subheading 6913.10.50, HTSUS.

ISSUE:

What is the proper classification for porcelain cottage-shaped

spice jars?

LAW AND ANALYSIS:

In Lenox, the court ruled on the classification of a set of

small porcelain containers called the \"Spice Village\". Each

elaborately decorated container was shaped like a Victorian house

and came with a wood rack in which the articles could be displayed.

Customs had classified the articles in the class \"kitchenware\".

The importer believed they were classifiable in the class

\"ornamental articles\". Although, the set was advertised as

functional spice jars, and each had a named spice on the outside

and a fitted top to keep spices fresh, the court referred to

Additional U.S. Rule of Interpretation 1(a), HTSUS, and the need to

focus on the principal use of the class or kind of goods to which

an import belonged, not the principal use of the specific import.

To determine the class or kind of goods to which the import

belonged, the court examined the factors set forth in Kraft, Inc,

v\. United States, USITR, 16 CIT 483, (June 24, 1992); G. Heilman

Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990);

and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172,

536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Although the subject containers were capable of holding

spices, the court found that the physical characteristics suggested

that they were principally used for decorative purposes.

According to the court, the containers failed to hold spices as

efficiently as their plainer counterparts which have a grip area

and a shaker top Based on the significant difference in price

between a plainer spice jar set and the Spice Village, the court

stated purchasers pay more for the Spice Village because their

ultimate expectation is to use them to adorn their homes. The

court found that the channels of trade in which the merchandise

moved failed to indicate whether the articles belonged to the class

\"kitchenware\" or \"ornamental articles\". As to the environment of

sale, although the court recognized that the ads describe the Spice

Village as both decorative and functional, the court found that the

ads stressed the decorative nature of the articles. Finally, the

court found that because importer conducted surveys indicated that

70% of the containers were used entirely or primarily for

decorative display, the Spice Village was used principally for

decorative purposes. Accordingly, even though almost 30% of the

Spice Village was used entirely or principally in the kitchen for

cooking, the principal use of the class or kind of goods to which

it belongs was \"ornamental articles\".

The present articles are virtually identical to the jars ruled

upon in Lenox. Additionally, Customs sanctioned porcelain testing

methodologies, the results of which appear in Customs Lab report

No. 3-95-31123-001, clearly indicate that the subject spice jars

are porcelain. Therefore, the cottage-shaped spice jars are

classifiable under subheading 6913.10.50, HTSUS.

HOLDING:

The protest should be GRANTED. The porcelain cottage-shaped

spice jars are classifiable under subheading 6913.10.50, HTSUS,

with a 1994 column one duty rate of 9% ad valorem.

In accordance with section 3A(11)(b) of Customs Directive 099

3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office to the

protestant no later than 60 days from the date of this letter. Any

reliquidation of the entry in accordance with this decision must be

accomplished prior to the mailing of the decision. Sixty days from

the date of this decision, the Office of Regulations and Rulings

will take steps to make the decision available to Customs personnel

via the Customs Rulings Module in ACS and to the public via the

Diskette Subscription Service, Freedom of Information Act and other

public access channels.

Sincerely,

John Durant, Director

Tariff Classification Appeals

Division