| Paul Diamond, Trade compliance specialist | The process of determining the HS classification of goods for importing can be a subjective exercise, especially when assessing the characteristics of any given item against the provisions of the Canada Customs Tariff. When faced with ambiguous section, chapter and/or explanatory notes, an importer or the agent can find themselves in a dilemma. Thankfully, certain CITT decisions can provide guidance when determining which factors and attributes to be taken into consideration in arriving at the correct and supportable HS classification.
This is certainly the case when looking at CITT’s recent Unitool Inc. vs. President CBSA decision. The issue in this appeal is the classification of roller cabinets for tool storage. The appellant contended that these are tool boxes classifiable under chapter 73 while the CBSA had determined that these cabinets are classifiable as metal furniture under chapter 94. All things considered in this appeal, in order to determine that the goods in question are classifiable as metal furniture under heading 94.03, preclusion from chapter 73 would be the first task at hand. In order to be considered to be tool boxes under heading 73.26, they must be “portable tool boxes”. The definition of portable found in a dictionary is “…capable of being carried or moved about…” The appellant’s contention was that these cabinets that can hold 1,000 lbs. of tools, are indeed portable by the fact that they rest on castors and are designed to be moved which is one of the marketing features of the cabinet. Reference was then made to the French version of the explanatory notes with emphasis on the portable (portatif) which expands on the English definition by including the requirement that the item is easy to carry. Bilingual statutory interpretation stipulates that differences between two official enactments of the same provision must usually be reconciled by deriving a common or shared meaning. With this in mind, this and any other ambiguity can be resolved by adapting the more restrictive definition. In this case, the French definition has a requirement that the item be easy to carry and by virtue of its size and weight, the cabinet in question does not meet this definition. When faced with ambiguous classifications for an item, one can look to certain factors such as appearance, design, best use, marketing and distribution of the item in question. The appellant relied on the fact that the cabinets in questions are manufactured, imported, marketed and sold as tool boxes. The CITT referred to the Regal Confections decision in which it was determined that none of these factors are decisive; they can provide context and clarification of the goods in issue but cannot be the determinative factors in the classification decision. The actual physical characteristics of the goods are the determinative factors when arriving at the appropriate HS classification. The decision in this case was that the roller cabinets are classifiable as other metal furniture under heading 94.03. This decision was based on the fact that the item in question did not meet the definition of portable which is a requirement under heading 73.26. The important takeaway in this decision is the bilingual statutory interpretation and the weight assigned to the importance of the appearance, design, best use, marketing and distribution of the item in question – which was superseded by the item’s physical characteristics. This is just one example of how examining CITT decisions can help you when determining classification for your goods. Look for example cases where importers were importing goods similar to your own as a starting point! |