The European Court of Justice was recently faced with a case where an importer had made a Binding Tariff Information (BTI) ruling request that covered more than one product with slightly different characteristics and the tax authorities had rejected the application on the basis that it covered too many products.
The importer (“Schenker”) applied for a BTI ruling on LCD liquid crystal displays of different sizes (26, 29 and 32 inch respectively) used as components in the manufacture of electronic apparatus which it submitted should be classified under CN 9013.80.20.
The tax authority refused to issue a BTI on the basis that Schenker had not provided sufficient information to enable classification and also that it had not submitted separate applications according to the different characteristics of the goods at issue as required under Article 6(2) of the Customs Code Implementing Provisions (CCIP.) After proceeding through the Latvian courts, the Supreme Court referred the following question to the ECJ:
“‘Must Article 6(2) CCIP be interpreted as meaning that, with regard to an application for binding tariff information, binding information must be issued on identical goods, which share the same commercial denomination trade name, article number or any other criterion which distinguishes or identifies the goods concerned?’”
The ECJ understood the question as being whether an application for BTI must be confined to goods which are the same and cannot therefore relate to various different goods even if the differences between them are minimal.
The Court noted that an application for BTI may relate to various different goods provided that they are all of the same “type.” Only goods with similar characteristics are likely to constitute one “type” of goods.
The ECJ stated that goods cannot, even if they have similar characteristics, be regarded as belonging to one “type” of goods for the purposes of Article 6(2) CCIP if they are likely to be classified under different headings or subheadings of the customs nomenclature. In addition to complicating the work of the customs services, the inclusion in the same application for binding tariff information of several goods likely to fall under different headings or subheadings would entail a high risk of error in the assessment of the information provided in the application and, as a consequence, in the determination of the classification of the goods.
1 Article 6(2) CCIP “An application for binding tariff information shall…relate to only one type of goods and one set of circumstances conferring origin.”
In the present case, Schenker made an application for a BTI ruling for displays of three different sizes (26, 29 and 32 inch) in order to dispel any doubt as to the tariff classification of various LCD liquid crystal displays. However, even though the size of the LCD liquid crystal displays was the only feature that distinguished the displays the court found that this was relevant for the purposes of the tariff classification of those displays.
Even if the classification envisaged by Schenker fell within CN heading 9013 (which does not refer to the size of goods as one of the relevant factors for the purposes of their classification under one or other of the subheadings of that heading) ultimately it was for the Customs Authorities to determine the correct CN Code and an alternative code where size was important could apply.
To supplement its point the Court referred to Case C 16/08 Schenker  highlighting that there was uncertainty concerning the tariff classification of LCD liquid crystal displays between CN headings 8528, 8529 or 9013. Critically, under CN heading 8528, size can constitute a relevant factor for the purposes of their classification under one of the subheadings of that heading.
Therefore, the displays at present could not be regarded as belonging to one “type” of goods for the purposes of Article 6(2) CCIP and therefore the authorities in the present case were correct in refusing to make a BTI ruling.
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