IS SAID TO BE INAPPROPRIATE TO APPLY THE PROCEDURE OF CLASSIFICATION BY ANALOGY ADOPTED BY THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE IN ITS OPINION OF 20 OCTOBER 1970 SINCE IT IS A CONDITION OF THAT PROCEDURE THAT THE GOODS IN QUESTION DO NOT COME UNDER ANY OF THE HEADINGS OR SUBHEADINGS OF THE CUSTOMS TARIFF .
IN ORDER TO SETTLE THIS PROBLEM OF INTERPRETATION THE FINANZGERICHT SUBMITTED THE FOLLOWING QUESTION :
' IS THE COMMON CUSTOMS TARIFF TO BE INTERPRETED TO THE EFFECT THAT THE EXPRESSION ' ' FERRO-ALLOYS ' ' WITHIN THE MEANING OF HEADING 73.02 READ TOGETHER WITH NOTE 1 ( C ) TO CHAPTER 73 ONLY MEANS THOSE PRODUCTS WHICH WERE MANUFACTURED AS SUCH FROM NEW METALS OR ORES AND WHICH ARE DISTINGUISHED BY REASON OF THEIR INTENDED USE IN THE MAKING OF STEEL BY AN ACCURATELY PREDETERMINED , CONSTANT COMPOSITION OF SPECIFIC ALLOY ELEMENTS?
OR
DOES HEADING 73.02 ALSO INCLUDE MELTED DOWN SCRAP ( MATERIAL FOR RE-MELTING ) WHICH SATISFIES THE REQUIREMENTS AS TO COMPOSITION LAID DOWN IN NOTE 1 ( C ) TO CHAPTER 73?
'
5 HEADING 73.02 MERELY BEARS THE TITLE ' FERRO-ALLOYS ' , FOLLOWED BY SIX SUBHEADINGS ( A TO F ) REFERRING TO ALLOYS WITH A SPECIFIC CONTENT , AND A SUBHEADING G , ENTITLED ' OTHERS ' .
IN THE NOTES TO CHAPTER 73 , WHICH HAVE THE SAME LEGAL WEIGHT AS THE HEADINGS OF THE TARIFF , THE CONCEPT OF ' FERRO-ALLOYS ' IS DEFINED IN NOTE 1 ( C ) AS FOLLOWS :
' ALLOYS OF IRON . . . WHICH ARE NOT USEFULLY MALLEABLE AND ARE COMMONLY USED AS RAW MATERIAL IN THE MANUFACTURE OF FERROUS METALS AND WHICH CONTAIN , BY WEIGHT , SEPARATELY OR TOGETHER :
MORE THAN 8 % OF SILICON , OR
MORE THAN 30 % OF MANGANESE , OR
MORE THAN 30 % OF CHROMIUN , OR
MORE THAN 40 % OF TUNGSTEN , OR
A TOTAL OF MORE THAN 10 % OF OTHER ALLOY ELEMENTS . . . '
IN THE ' NOTES EXPLICATIVES DU TARIF DOUANIER COMMUN DES COMMUNAUTES EUROPEENNES ' , PUBLISHED BY THE COMMISSION , IT IS STATED WITH REGARD TO HEADING 73.02 THAT ' IRON AND STEEL WASTE , RE-MELTED AND ROUGHLY CAST INTO INGOTS ( WASTE OR SCRAP IN INGOT FORM ) HAVING THE COMPOSITION OF A FERRO-ALLOY AND USED AS ADDITION MATERIALS IN THE MANUFACTURE OF SPECIAL STEELS SHALL BE CLASSIFIED AS APPROPRIATE UNDER THE VARIOUS SUBHEADINGS OF HEADING 73.02 . '
IN THE EXPLANATIONS TO HEADING 73.03 , RELATING TO WASTE AND SCRAP METAL OF IRON OR STEEL , THE NOTES STATE THAT WASTE AND SCRAP METAL , RE-MELTED AND SIMPLY CAST INTO INGOTS AND KNOWN AS ' WASTE OR SCRAP IN INGOT FORM ' , SHALL BE CONSIDERED FOR THE PURPOSES OF THE TARIFF AS FERRO-ALLOYS OR AS INGOTS AND THUS CLASSIFIED ' ACCORDING TO ITS COMPOSITION ' UNDER THE VARIOUS SUBHEADINGS OF HEADING 73.02 OR OF HEADINGS 73.06 OR 73.15