Britton International Ltd v Customs & Excise [2003] UKVAT(Customs) C00184 (21 November 2003)

CUSTOMS DUTY - tariff classification — whether interfacings used in trouser waistbands textile fabrics impregnated, coated, covered or laminated (CN 59.03) or excluded to Chapter 39 as being products in which textile fabric either embedded in plastics or entirely coated or covered on both sides with such material — held that whilst individual fibres entirely coated or covered fabric itself not so dealt with —appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	 BRITTON INTERNATIONAL LTD	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal: 	Mr J D Demack	 (Chairman)
						Mrs M P Kostick FCA	

Sitting in public in Manchester on 14 October 2003 

Mr D M Whittaker sales manager for the Appellant

Mr K Beal of counsel instructed by the Solicitors office of HM Customs and Excise for the Respondents

	© CROWN COPYRIGHT 2003

DECISION
1.	This is an appeal by Britton International Ltd (Britton) against Customs formal departmental review by letter of 15 January 2003 to classify its two Banrol products used as interfacings i.e. stiffeners in trouser waistbands, under CN 5903 90 99 90 for customs duty purposes. Heading 59.03 applies to:
“(a) Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square metre and whatever the nature of the plastic material (compact or cellular), other than;
. . .
(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour (Chapter 39).”
2.	We were presented with a sample of each product.  As we mentioned above, they are used as interfacings in trouser waistbands, and are imported before coating with plastic in reels or rolls 34¼ inches or 32-37mm wide.  They have the appearance of semi-stiff white gauze the fibres whereof are entirely coated on both sides with plastic giving an acrylic ultra white finish with plastic.  (It is common ground that the plastic coating can be seen with the naked eye).  300 denier Banrol consists of 45 per cent polyester (warp) and 55 per cent nylon (weft).  750 denier Banrol consists of 100 per cent polyester.
3.	We placed both products under a running tap and found that water was able to pass through gaps in the weave.  
4.	Initially the products were classified by Customs under CN 5407 (Woven fabrics of synthetic filament yarn).  But Britton’s representative appealed that classification , saying:
“The acrylic coating is a liquid acrylic polymer which lends added stiffening and durability to the product as acrylic is noted or its strength and resistance properties (as a trouser waistband the product has to maintain its stiffness despite being subjected  to regular washing in detergents and dry cleaning) .”
“As the product is completely coated with this acrylic polymer there may be a case for excluding it altogether as a textile article under note 3 of the Explanatory Notes to tariff heading 5903 and classifying it under Chapter 39.”
5.	(Chapter 39 deals, inter alia, with “Plastics and articles thereof.)
6.	Britton then provided the Commissioners with an uncoated version of the basic product obtained from the manufacturer in the United States, and continued to contend that the products were entirely coated with plastic.
7.	At that stage, Customs instructed Campden & Chorleywood Food Research (CCFRA) to provide expert advice as to:
(1)	whether the coating could be seen with and without the aid of magnification;
(2)	whether the fabric was coated on each side and, if so, to what extent; and
(3)	whether it could be determined that he fabric had been dipped, sprayed or painted with a coating on both sides. 
8.	Dr M  Edwards, microscopy section manager at CCFRA, reported to Customs  on 17 December 2002, and attached to his report a series of photographs showing a magnified view of the Banrol.  He concluded:
(1)	that the coated samples had been coated with a liquid acrylic polymer, and that the coating was on both sides of the product;
(2)	that many of the gaps in the weave of the fabric appeared to be” filled in” when observed  with the naked eye and under magnification;
(3)	that the acrylic coating was visible to the naked eye as a “white sheen”; and
(4)	that the acrylic coating had most likely been applied by a dipping process.
9.	Ms Chamberlain, the review officer, submitted her preliminary conclusions based on Dr Edwards’ report to Customs’ Tariff Classification Department on 3 January 2003.  She agreed that the fabric was not entirely coated or covered with plastic on both sides, but that there were indications that a plastic coating had been applied to both sides.  Ms Chamberlain sought the department’s comments on a proposed classification of CN 5903 90 10 00 as a textile fabric impregnated, coated, covered or laminated with poly vinyl chloride. Ms Watts of the Tariff Classification Department agreed that the coating was visible, but considered that it was not completely covered or covered on both faces; nor was it embedded in a plastic coating.  Her preference was for the CN to be based on the fact that the coating appeared to have been sprayed on to the fabric, as it could not conclusively be said that it was “impregnated”.
10.	In the event, in her decision on review against which Britton now appeals, Ms Chamberlain ascribed classification to the Banrol of 5903 90 99 90 essentially because the plastic coating on both sides of the fabric could not be said “entirely” to coat or cover the fabric; while some of the weave and some gaps between the weave were filled in, not at all were.
11.	The difference between the parties is well illustrated in the following passage taken from the decision on review:
	“I [Ms Chamberlain] note that the photographic evidence [of CCFRA] shows the warp and weft strands in the weave to be clearly visible in all samples, but in the gaps of the coated samples there are strands of substance which appear to be the acrylic type polymer.  This is present on both sides of the fabric ... However, the fact that this coating can be seen does not mean the fabrics are excluded from heading 59.03 to Chapter 39.  The photographs show that although the strands of yarn may be coated, the woven fabric itself is not completely coated or covered with the acrylic.  This is apparent both with and without the aid of magnification.”  
12.	Mr Beal, counsel for the Commissioners, submitted that, as a matter of the correct interpretation of Notice 2(a)(3), it could not be said that the product was one “in which  the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material”, even though the coating or covering could be seen with the naked eye.  As we understood him, Mr Whittaker, who appeared for Britton, simply maintained that, notwithstanding that the fabric was not entirely coated with plastic, the  requirement was simply that all its individual fibres were.
13.	We are unable to accept Mr Whittaker’s contentions.  It is plain from Note 2(a)(3) that it is the woven fabric which must be completely coated with acrylic if the product is to be taken outside CN 59.03.  It follows that we decide the appeal in favour of the Commissioners.

David Demack
Chairman
Release Date:
MAN/03/7004