CLA-2 RR:CR:GC 952114 EAB
Port Director
U.S. Customs Service
2350 N. Sam Houston Parkway
Houston, Texas 77032
Re: Protest 5301-91-100229, Naphthas; Clarendon Marketing, Inc. v. US; HQ 958901; HQ 957772
Dear Port Director:
This is our decision on protest 5301-91-100229, timely filed May 21, 1991, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of merchandise entered January 16, 1990.
Our decision has been held in abeyance pending the opinion of the Court of Appeals for the Federal Circuit in the case of Clarendon Marketing, Inc. v. US, No. 97-1284, decided on May 22, 1998.
FACTS:
Merchandise described on Customs Form 7501 (Consumption Entry) as “Naphthas (Excpt Fuel/Motor)” was entered under subheading 2710.00.25, HTSUSA, the provision for: “Naphthas (except motor fuel or motor fuel blending stock),” bearing duty at the column 1 General rate of 10.5 cents/barrel (1990). Customs demanded certification from the importer, that the merchandise was not to be used as motor fuel blending stock. Receiving no such certification of none-use, the merchandise was reclassified in subheading 2710.00.18, HTSUSA, the provision for motor fuel blending stock, and the rate of duty was advanced to 52.5 cents/barrel (1990).
ISSUE:
Certification of non-use of naphthas; scope of heading 2710, HTSUSA.
LAW AND ANALYSIS:
It is undisputed that the merchandise is described by the term “naphthas.” There is no proof of actual use of the merchandise as a motor fuel blending stock, and there is no allegation that the principal use of the merchandise is as a motor fuel.
We find that the merchandise in this case is properly classified under subheading 2710.00.25, HTSUSA, the eo nomine provision for “naphthas.” See Clarendon Marketing, Inc. v. US, No. 97-1284 (Fed. Cir. 1998), HQ 958901 (June 30, 1998) and HQ 957772 (April 21, 1995).
HOLDING:
Certification of actual non-use of naphthas as motor fuel blending stock is prohibited by Additional U.S. Notes 3 and 4, Chapter 27, and Additional U.S. Rule of Interpretation 1(b), HTSUSA.
Naphthas not principally used as motor fuel or not to be used for direct blending in the manufacture of motor fuel are properly classified in subheading 2710.00.25, HTSUSA, the provision for naphthas (except motor fuel or motor fuel blending stock).
Merchandise entered in the foregoing subheading in 1990 was dutiable at the column 1 General rate of 10.5 cents/barrel.
This protest is GRANTED.
In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1992, Subject: Revised Protest Directive, a copy of this decision should be attached to the Customs Form 19 and provided 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 this decision by your office. 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 the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.
Sincerely,
Marvin M. Amernick, for
John A. Durant, Director
Commercial Rulings Division