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Cite as: [2003] UKVAT(Customs) C179, [2003] UKVAT(Customs) C00179

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Optoplast Manufacturing Company Ltd v Customs & Excise [2003] UKVAT(Customs) C00179 (20 June 2003)

CUSTOMS DUTY - tariff classification - spectacle cases covered in leather cloth - whether outer surface of plastic sheeting and so classified under subheading 4202 32 00 - whether outer layer visible to naked eye had same visual appearance as an applied layer of manufactured plastic sheeting - no - whether outer surface not of plastic sheeting and so classified under subheading 4202 39 00 - whether outer layer visible to naked eye did not have the same visual appearance as an applied layer of manufactured plastic sheeting - yes - appeal allowed - Council Regulation (EEC) No 2658/87 Annex 1

LONDON TRIBUNAL CENTRE

OPTOPLAST MANUFACTURING COMPANY LIMITED

Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE

Respondents

Tribunal: DR NUALA BRICE (Chairman)

MR R K BATTERSBY

MR K S GODDARD MBE

Sitting in London on 7-9 April 2003

Philippa Whipple of Counsel, instructed by Messrs Dechert Solicitors, for the Appellant

Hugo Keith of Counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2003

DECISION

The appeals

Optoplast Manufacturing Company Limited (the Appellant) appeals against three review decisions of Customs and Excise all relating to the tariff classification of spectacle cases. The first review decision was dated 2 June 2000 and related to entries between 20 July 1999 and 27 January 2000 which led to a post-clearance demand note issued on 21 March 2000 for duty of £34,686.01 with value added tax of £6,070.05 making a total of ££40,756.06. The second review decision was dated 27 November 2000 and related to entries between 22 October 1997 and 23 December 1997 which led to a post-clearance demand note issued on 19 October 2000 for duty of £19,434.05 and value added tax of £3,400.96 making a total of £22,835.01. The third review decision was dated 26 March 2001 and related to entries between 3 February 1998 and 30 May 2000 which led to a post clearance demand note issued on 26 January 2001 for duty of £77,786.35 and value added tax of £13,612.61 making a total of £91,398.96. Thus the total amount of duty and tax at issue in the appeal is £154,990.03.

The review decisions were that the spectacle cases imported by the Appellant were to be classified under subheading 4202 32 10 on the ground that the outer surface was of plastic sheeting.

The legislation

The Community Customs Code was established by Council Regulation (EEC) No. 2913/92. Article 20 provides that customs duty is based on the common customs tariff. Article 1 of Council Regulation (EEC) No. 2658/87 provides that the combined nomenclature, meeting the requirements of the common customs tariff is as set out in Annex I to the Regulation, together with the rates of the common customs tariff. Annex I is amended annually and the amended version is published in the Official Journal. Chapter 42 classifies, among other things, handbags and similar containers. Heading 4202 includes spectacle cases and, at the relevant time, after subheading 4202 29 00 the following text appeared:

" - Articles of a kind normally carried in the pocket or in the handbag

4202 31 00 - - With outer surface of leather of composition leather or of patent leather 3

4202 32 - - With outer surface of plastic sheeting or of textile materials

4202 32 10 - - - Of plastic sheeting 9.7

4202 32 90 - - - Of textile materials 3.7

4202 39 00 - - Other 3.7

Chapter 42 has an additional note 1 which reads:

"For the purposes of the subheadings of heading No 4202, the term "outer surface" shall refer to the material of the outer surface of the container being visible to the naked eye even where this material is the outer layer of a combination of materials which makes up the outer material of the container."

There is a Combined Nomenclature Explanatory Note (CNEN) which applies to code 4202 32 10 and which reads:

"In the form of plastic sheeting

If a container has an outer material that is a combination of materials where the outer layer being visible to the naked eye is plastic sheeting (e.g., woven fabric of textile fibres in combination with plastic sheeting) it is irrelevant for classification purposes whether the sheet was manufactured separately before creating the combined material or whether the plastic layer is the result of applying a coating or covering of plastics to the material (e.g., woven fabric of textile fibres), provided that the resultant outer layer being visible to the naked eye has the same visual appearance as an applied layer of manufactured plastic sheeting. "

The issue

Customs and Excise accepted that the spectacle cases did not in fact have an outer surface of plastic sheeting as mentioned in subheading 4202 32 10. However, they relied upon the CNEN and argued that the outer layer visible to the naked eye had the same visual appearance as an applied layer of manufactured plastic sheeting and so the spectacle cases should be classified under subheading 4202 32 10. The Appellant argued that the outer layer visible to the naked eye did not have the same visual appearance as an applied layer of manufactured plastic sheeting and so the spectacle cases should be classified under subheading 4202 39 00. Thus the only issue for determination in the appeal was whether the outer layer of the spectacle cases visible to the naked eye had the same visual appearance as an applied layer of manufactured plastic sheeting.

The evidence

An agreed bundle of documents was produced. Oral evidence on behalf of the Appellant was given by Mr Daniel Thorn the Appellant's Chief Executive Officer. Mr Thorn exhibited a number of documents as fourteen appendices to his witness statement and also exhibited a large number of spectacle cases. We found Mr Thorn to be a reliable witness and we accept his evidence. A witness statement by Mrs H I Watts dated 25 January 2002, and containing evidence on behalf of Customs and Excise, was originally objected to by the Appellant but during the hearing it was stated on behalf of the Appellant that there was no objection to Customs and Excise referring to it as it could not be determinative of the issue in these appeals. It was therefore admitted in evidence.

Expert evidence on behalf of the Appellant was given by Professor S F Bush MA PhD MSc, Professor of Polymer Engineering in the University of Manchester Institute of Science and Technology (UMIST) and Director of the Centre for Manufacture at UMIST. Expert evidence was given on behalf of the Respondents by Mr Ivor Carl Cohen BSc, now retired but previously the Head of the Tarriff and Chemical Nomenclature Section at the Laboratory of the Government Chemist.

The facts

From the evidence before us we find the following facts.

The Appellant is a company which imports, among other things, spectacle cases and sells them to retailers of prescription spectacles and sunglasses. We saw one of the Appellant's catalogues which illustrated more than one hundred different styles of spectacle case each of which was available in different colours. The Appellant has always accepted that some of its spectacle cases have an outer surface of plastic sheeting and those spectacle cases are not at issue in these appeals. The manufacturing process of all the spectacle cases at issue in these appeals begins with a hinged metal case. This is lined internally with a neutral fabric fixed by adhesive. The exterior covering (which is also fixed by adhesive) is leather cloth.

Leather cloth is a manufactured product which aims to look as much like leather as possible. The manufacturing process begins with a woven or knitted textile base which is impregnated with a mixture of polymers, stabilisers, plasticizers, colourants, and light fastness additives (the polymer mixture). The textile base gives the characteristic of "stretchiness" to the finished product and the polymer mixture gives the look of leather. The impregnation of the textile base by the polymer mixture is effected by first spraying the mixture on to the textile base and then removing the excess with a steel blade. This whole process is called "wetting". During wetting the gaps in the textile are filled with the polymer mixture. The amount of polymer mixture used depends upon the style and material required but, as the mixture is expensive, the minimum amount needed to achieve the desired result is normally used. When the excess has been removed with the steel blade the amount of the polymer mixture left on the surface is extremely thin indeed.

The impregnated textile is placed on a "release paper" which contains a pattern. There are many patterns including lizard, ostrich, crocodile, buffalo hide, flat leather, nappa leather (which has a suede effect), patent leather and many more. The impregnated textile and the release paper are then passed through an oven at a temperature of 190 degrees Celsius to be "cured". After that the release paper is separated from the impregnated textile and the release paper can be re-used. The remaining cured impregnated textile is called "leather cloth" and can be used in ways very similar to leather. It looks just like leather and not like plastic; in other words it looks expensive and can command a high price. It also drapes well, especially when used to cover a three-dimensional object like a spectacle case, because it gives a very smooth finish which does not wrinkle even when wrapped around corners and edges. We saw a large number of spectacle cases covered in leather cloth with a very wide range of different finishes and styles. They looked expensive and well made and the surface had a soft sheen or lustre which made them visually attractive and comfortable to handle. The intensity of the sheen may differ from case to case; for example, the sheen on a patent leather look finish will be greater than on a leather look finish, but in all cases the sheen is distinguishable from the sheen on a case covered with plastic sheeting. The leather cloth looks like leather and Mr Thorn gave evidence, which we accept, that even an expert could not tell the difference between leather cloth and real leather without an analysis which would involve cutting the material open. In the whole process of the manufacture of the leather cloth, plastic never exists in the form of a sheet which is subsequently laminated to the textile base.

Plastic sheeting, on the other hand, differs from leather cloth. It is (and looks) cheaper; it is less versatile; it does not have the same flexibility (stretchiness); nor can it take the wide range of different finishes which are available in leather cloth. Some embossed finishes can be achieved if the plastic sheeting is put through a mangle-like machine, where the bottom roller impresses a pattern on the sheeting, but the range of finishes available is much more restricted than the range available using leather cloth. We saw a spectacle case which would normally be covered in leather cloth but which had been covered in blue plastic. (The material had been taken from a binder of the type normally used by the Appellant's solicitors to hold documents but Mr Thorn told us that this was a typical example of plastic sheeting as used in the stationery trade.) The spectacle case looked cheaper; it did not look well made because of the wrinkling where the plastic was wrapped round the corners; there was a white line where the sheeting was stretched over the edges of the metal frame where the plastic was stressed; the surface did not have the softer lustre of leather cloth; and the "feel" of the finished product was harder and less attractive. It did not look like leather.

Kelly's Directory lists manufacturers and wholesalers of leather cloth under the classification heading "leather cloth merchants/agents/ factors" and there is a separate heading for "plastic sheet manufacturers". Companies in the section relating to plastic sheet manufacturers do not sell leather cloth. For the purposes of this appeal Mr Thorn wrote to the Packaging and Industrial Films Association who replied in March 2000 to say that some of the Appellant's (unidentified) spectacle cases were treated as coated textiles for certification and duty purposes. Mr Thorn also sought the views of SGS United Kingdom Limited (SGS), a company used by industry and government departments in testing, inspection, certification and customs tariff verification. SGS tested fifteen different spectacle cases provided by the Appellant of the type at issue in the appeal. Each was analysed and a report sent on 14 March 2000 stated that each consisted of a woven or knitted base fabric with a coating of a PVC type or of polyurethane. The conclusion of the SGS report stated that the goods were covered in a coated textile product and not a sheeting plastic.

The Appellant has imported spectacle cases covered with leather cloth under classification 4202 39 00 since 1985 and had no differences of opinion with Customs and Excise in Manchester. However, in 1999 the Appellant instructed a new freight forwarder and the Customs Officers in Southampton took a different view. In January 2000 the Appellant was asked to supply some samples to Customs and Excise and supplied forty samples. Thereafter the post-clearance demand notes and the review decisions were issued which are the subject of these appeals.

The expert evidence

Professor Bush, who gave expert evidence for the Appellant, stated that in his view the outer layer of the spectacle cases which was visible to the naked eye did not have the same visual appearance as an applied layer of manufactured plastic sheeting. A covering of an applied layer of manufactured plastic sheeting would look like a piece of sheeting which had previously had an independent existence and was then applied to a surface. The coating on the spectacle cases did not have any independent existence and was not finally formed until the release paper imparted its texture to the material. Plastic sheeting was only one form that a plastic covering could take; other forms could be simply plastic, or moulded plastic material, or plastic film. Plastics could be in the outer surface as part of a moulding, or as a discontinuous dispersion on a substrate, or as synthetic fibres, or as a film. In other words, an outer surface of plastic was not the same as an outer surface of an applied layer of manufactured plastic sheeting. Also, plastic sheeting was not the same as plastic coating. Sheeting was normally of a particular thickness and had an independent existence; plastic film had an independent existence but was thinner than plastic sheeting; coating did not have an independent existence. Plastic film could be crumpled and then returned to its original state; plastic sheeting was thicker and could not be crumpled. Also plastic film was transparent whereas plastic sheeting was translucent and could be made opaque and coloured. Professor Bush was of the opinion that appearances could be deceptive but plastic sheeting did not drape well (he preferred the word "conform") whereas composite plastics textile materials did drape well and so had an outer surface which was not like plastic sheeting. Another clue was the intricacy of the pattern possible on leather cloth which was not possible on plastic sheeting. Plastic sheeting was the last appearance which any one in the upmarket sector served by the Appellant's product would strive to achieve. Professor Bush also told us that plastic sheeting was almost always made by extrusion from a liquid polymer which would produce a smooth sheet with no holes, knobs, dents or protrusions. A leather cloth product could not look like a plastic sheet.

Mr Cohen, who gave expert evidence on behalf of Customs and Excise, had been supplied with the three of the sample spectacle cases supplied by the Appellant to Customs and Excise and also a photocopy of the SGS report of 14 March 2000. He accepted that the plastic in the material used to cover the spectacle cases had never existed in the form of a sheet which was subsequently laminated to the textile base. He had begun with the report from SGS which stated that the goods had coatings of PVC or polyurethane and that influenced the way in which he approached the matter. He saw that the outer surface was plastic and he concluded that, as the material was not leather or textile, it was plastic sheeting. The layer of plastic was thin, flat and continuous with no holes penetrating the layer that were visible to the naked eye. He accepted that that description could also be true of leather and of plastic coatings which were not manufactured plastic sheeting, for example film, but said that he would then do an analysis to see if the coating was of plastic. He agreed that it was difficult to conclude from a visual examination alone whether the spectacle cases were made of leather or leather cloth and that is why he would do an analysis. He concluded that visual examination of the spectacle case allowed only the plastic layer to be seen and thus the application of additional note 1 determined that the outer surface was considered to be of plastic sheeting. The visual impression was of a surface which could possibly be a repeating pattern of surface embossing of manufactured plastic sheeting. Also, the CNEN applied to textile coated material so long as it looked like plastic sheeting; the test was whether the outer layer had the same visual appearance as an applied layer of plastic sheeting and in his opinion it did. As far as the reference to plastic sheeting was concerned he referred to a number of sources which supported his opinion that there was no minimum thickness for plastic sheeting and that it could include products of less than 0.25mm. Mr Cohen had not come across the wrinkle test before. He applied the principle that unless he was sure that it was not plastic sheeting then it was plastic sheeting.

Where the evidence of the expert witnesses conflicted we preferred the evidence of Professor Bush because of his independence, his extensive knowledge of polymers and plastics and also because of his experience in industry. Also, it appeared to us that Mr Cohen had not applied the right test.

The arguments

For the Appellant Miss Whipple first argued that the decisive criterion for the classification of goods had to be sought in their characteristics and objective properties and that manufacturing processes as a criterion for classification were only relevant when the subheading so provided; she cited Paul F Weber v Milchwerke Paderborn-Rimbeck eG [1989] ECR 1395. Secondly, Miss Whipple argued that the naked eye test had only one step. The phrase had a well established meaning and it excluded any technical analysis. The purpose of the test was to allow speedy checking on customs clearance in normal daylight conditions and using normal vision. It was not a test to be conducted by an expert nor could the product be cut apart for scientific analysis of the material. She cited Howe & Bainbridge BV v Oberfinanzdirektion Framkfurt Am Main [1982] ECR 3257 and she referred to Lows of Dundee Ltd v The Commissioners of Customs and Excise (1996) Decision No. C00013; Tarpaflex Limited v The Commissioners of Customs and Excise (1998) Decision No. C00084 at pages 18-20; and NDC (UK) Limited v The Commissioners of Customs and Excise (2000) Decision No. C00120). Thirdly, Miss Whipple argued that the words used in subheading 4202 32 10 and in the CNEN were "plastic sheeting". These words did not cover all types of plastic covering. For example, the first part of heading 4202 referred to trunks, suit-cases, etc and subheading 4202 12 referred to "an outer surface of plastics". That subheading was further divided between an outer surface "in the form of plastic sheeting" and, at 4202 12 50, an outer surface "of moulded plastic material". The term plastic sheeting was not defined in the Combined Nomenclature and so should be given its ordinary meaning. In the plastics and textile industries the phrase plastic sheeting did not include leather cloth and they were listed separately in trade directories. Finally, Miss Whipple argued that the CNEN made it clear that the product could only be classified under subheading 4202 32 10 if the outer surface visible to the naked eye had the same visual appearance as an applied layer of manufactured plastic sheeting; she argued that it did not; the leather cloth looked more expensive and there were no wrinkles as there would be with plastic sheeting.

For Customs and Excise Mr Keith accepted that the spectacle cases at issue in the appeal did not have an outer surface of plastic sheeting. First, he agreed that classification was to be sought in the characteristics and objective properties of the goods as defined in the wording of the relevant headings of the Common Customs Tariff. Secondly, he agreed that classification had to be undertaken at the point of entry and the visual test did not allow for any knowledge of the manufacturing process. However, he argued that classification was a three stage process. First, the identification by the naked eye of an outer surface or layer; next an analysis of the outer surface or layer which, in these appeals, would lead to the conclusion that it was a combination of materials (textile and plastics); and thirdly, the application of Note 1 to Chapter 42 by examination with the naked eye to see what was directly visible. Thirdly, he accepted that an independent existence was necessary for a sheet or sheeting but argued that it could be very thin indeed. Finally, he accepted that the CNEN appeared to contain a circular definition but argued that the crucial test was whether the outer layer visible to the naked eye had the same visual appearance as an applied layer of manufactured plastic sheeting. The outer layer of the spectacle cases visible to the naked eye had the same visual appearance as an applied layer of manufactured plastic sheeting because of their flat profile, the continuous nature of the surface layer, the lack of holes and the sheen.

Reasons for decision

In considering the arguments of the parties we start by identifying the legal principles we should apply. Paul F Weber is authority for the principle that the decisive criterion for the classification of goods for customs purposes is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading of the common customs tariff and of the notes to the sections or chapters. Manufacturing processes are decisive only when the relevant subheading expressly so provides The objective properties of the spectacle cases in these appeals are that they do not in fact have an outer surface of plastic sheeting. However, both note 1 to chapter 39 and the CNEN refer to the naked eye test.

Howe & Bainbridge is authority for the principle that that the phrase "can be seen with the naked eye" means that which is directly visible upon simple visual examination. The reason for the test is to allow speedy checking on customs clearance. The phrase does not allow any inferences to be drawn from any other properties, for example, the feel of a fabric. Paragraph 17 of the judgment of the Court of Justice indicates that it is for the member states to decide the training of the persons required to undertake the tariff classification of products in order to enable them properly to fulfil their tasks.

With those principles in mind we turn to consider the legislation. The two possible subheadings are either 4202 32 10 "with outer surface of plastic sheeting" or 4202 39 00 "other". Customs and Excise accept that the outer surface is not of plastic sheeting and so, looking at the words of the subheading alone, and bearing in mind the characteristics and objective properties of the goods, the classification would be under subheading 4202 39 00.

Next we look at Note 1 to Chapter 42 which defines the term "outer surface" as "the material of the outer surface being visible to the naked eye" even where this is the outer layer of a combination of materials. Again, Customs and Excise accept that the material of the outer surface being visible to the naked eye is not plastic sheeting. Accordingly, and again bearing in mind the characteristics and objective properties of the goods, at this stage, the conclusion would be that the classification would be under subheading 4202 39 00.

Finally we consider the CNEN which applies to subheading 4202 32 10. We begin with the opening words of the CNEN which are:

"If a container has an outer material that is a combination of materials where the outer layer being visible to the naked eye is plastic sheeting (e.g., woven fabric of textile fibres in combination with plastic sheeting) …".

Because it is agreed that the outer layer visible to the naked eye is not plastic sheeting it seems to us at least arguable that the whole of the CNEN does not apply in this appeal as it does not meet the opening condition. However, in case it does we go on to consider the next part of the CNEN which is:

"it is irrelevant for classification purposes whether the sheet was manufactured separately before creating the combined material or whether the plastic layer is the result of applying a coating or covering of plastics to the material (e.g., woven fabric of textile fibres), …".

Here we accept the evidence of Professor Bush that a sheet of plastic is something that has an independent existence and that, in these appeals, there never was a sheet of plastic which was manufactured separately before creating the combined material. However, after wetting, there remained an extremely thin coating of plastic and so it could be said that there was a plastic layer which was the result of applying a coating of plastics to the textile material. (We note that, to this extent, the CNEN appears to alter the meaning of the subheading by extending the meaning of the words "of plastic sheeting".)

Finally we consider the proviso to the CNEN which is:

"provided that the resultant outer layer being visible to the naked eye has the same visual appearance as an applied layer of manufactured plastic sheeting. "

Before deciding whether the outer layer has the same visual appearance as an applied layer of manufactured plastic sheeting we consider the meaning of the phrase "manufactured plastic sheeting". Mr Cohen was of the opinion that that phrase in the CNEN referred to sheeting which would be classified in headings 3920 or 3921. Chapter 39 classifies "plastics and articles thereof". Heading 3920 refers to "other plates, sheets, film, foil and strip of plastics, non-cellular and not reinforced, laminated, supported or similarly combined with other materials" and heading 3921 refers to "other plates, sheets, film, foil and strip, of plastics". Mr Cohen also referred to Note 10 to Chapter 39 which states that "in heading 3920 and 3921, the expression "plates, sheets, film, foil and strip" applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares), but not further worked (even if when so cut they become articles ready for use)". Mr Cohen relied upon this provision to support his opinion that plastic sheeting could also be an embossed material.

We have not found these references to be very helpful because note 2(ij) to Chapter 39 states that that Chapter specifically does not cover containers of heading 4202. Further, Chapter 39 does not define plastic sheeting. It seems to us, however, that headings 3920 and 3921, and Note 10 to Chapter 39, support the conclusion that there is a difference between plastic sheet and plastic film and that each of "plates, sheets, film, foil and strips" would be of a different thickness. These references also support the conclusion that the combined nomenclature differentiates between plastic sheet and plastic film.

Mr Cohen also referred us to Council Regulation (EC) 20/2000 about the suspension of tariff duties on certain industrial products. This referred to heading 3920 and in particular to embossed polyester sheeting, polyvinyl chloride sheeting of a thickness of less than 1mm; polythene sheet of a thickness of 0.025mm or more in rolls. Mr Cohen also referred to the US standards for defining sheets and film and they read:

"film- in plastics, an optional term for sheeting having a nominal thickness not greater than 0.25mm.

sheet - an individual piece of sheeting

sheeting - form of plastic in which the thickness is very small in proportion to length and width and in which the plastic is present as a continuous phase throughout with or without filler."

Mr Cohen also referred us to the British Standard Plastics Vocabulary which defined sheet, sheeting and film as:

"film - a thin plane product of arbitrarily limited maximum thickness in which the thickness is very small in proportion to length and width , generally supplied in roll form.

sheet, sheeting, a thin, generally plane product in which the thickness is small in proportion to length and width

sheeting - sheet made in continuous lengths and generally supplied in roll form; a synonym for sheet."

Again, these definitions support the view that plastic film is a thinner version of plastic sheet. The extremely thin nature of the remaining plastic coating which remains on the surface of the spectacle cases in these appeals leads us to conclude that such layer would be more correctly classified as plastic film (or even something thinner) and not as plastic sheet. Subheading 4202 32 10 uses the words "of plastic sheeting" and could have used the words "of plastic" but did not do so. In any event, the proviso to the CNEN uses the words "applied layer of manufactured plastic sheeting" when it could have used more general words. Also, the words "applied" and "manufactured" support the view that the visual appearance must be of plastic sheet which was manufactured first, had an independent existence, and was then applied to another layer.

With those conclusions about the meaning of the words "manufactured plastic sheeting" in mind we turn to decide whether the outer layer of the spectacle cases visible to the naked eye has the same visual appearance as an applied layer of manufactured plastic sheeting. We do not think it has. It drapes well; it has a soft sheen or lustre; and there is no white line where the outer layer is stretched over the frame. (Following Howe & Bainbridge we do not draw any inferences from the "feel" of the product.) In our view the outer layer of the spectacle cases visible to the naked eye does not look as if it was manufactured first, had an independent existence, and was then applied to another layer. It looks as if it were leather (although we know that it is not leather but leather cloth). The outer layer does not look as if it is applied to anything but looks as if it were the natural outer surface of leather.

We therefore conclude that the outer layer of the spectacle cases visible to the naked eye does not have the same visual appearance as an applied layer of manufactured plastic sheeting.

Before concluding we refer briefly to the evidence of Mrs Watts and to a Binding Tarriff Classification referred to by Customs and Excise. Mrs Watts is a Customs Officer and in December 2001 she attended a meeting of the Statistical Nomenclature Section of the Customs Code Committee in Brussels. She was asked to take an unidentified spectacle case and to ask the delegates there to indicate where they considered it should be classified. (The question was put as a "tour de table", that is not on the official agenda.) Each member state has a number of votes according to its population. 67.8% of all potential votes were for subheading 4202 32 10. The remaining votes belonged to members who did not vote or who did not attend the meeting. The record of the meeting stated that the outer surface was "made from" plastic sheeting. We have not found this evidence to be helpful because we do not know which spectacle case Mrs Watts took to the meeting and because the issue in this appeal is not what it was "made from" but whether the outer surface had the same visual appearance as an applied layer of manufactured plastic sheeting. We were shown a Binding Tariff Information in Spanish which appeared to classify a spectacle case under subheading 4202 39 00 but which was cancelled on 12 March 2002. Again we do not find this helpful because we do not know which spectacle case was the subject of the BTI, nor the reasons for its original classification, nor the reasons for the cancellation.

Since the date of the review decisions the Appellant has paid duty at the rate appropriate to subheading 4202 32 10. He claims that his business has suffered as a result. However that is not a matter for this Tribunal.

Decision

Our decision on the issue for determination in the appeal is that the outer layer of the spectacle cases visible to the naked eye did not have the same visual appearance as an applied layer of manufactured plastic sheeting. Accordingly the Appellant was correct in classifying the spectacle cases under heading 4202 39 00.

The appeal is, therefore, allowed.

Costs

WE DIRECT that the Respondents should pay the costs of the Appellant of and incidental to and consequent upon these appeals, the amount of such costs to be agreed between the parties but failing agreement to be determined by the Tribunal.

DR NUALA BRICE

CHAIRMAN

RELEASE DATE:

LON/2000/7035

LON/2000/7087

LON/2001/7034

.06.03