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	United Kingdom VAT & Duties Tribunals (Customs) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Customs) Decisions >> NG K Spark Plugs UK Ltd v Revenue & Customs [2009] UKVAT(Customs) C00269 (09 February 2009) URL: http://www.bailii.org/uk/cases/UKVAT/Customs/2009/C00269.html Cite as: [2009] UKVAT(Customs) C269, [2009] UKVAT(Customs) C00269

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C00269

Customs Duty – Tariff Heading – Tariff Classification of Thermistor –Classification in the Combined Nomenclature – whether heading No 9025, No 8533 or No 9027 – whether thermometer – No – Heading 8533 – Yes – Appeal allowed with costs

LONDON TRIBUNAL CENTRE

N G K SPARK PLUGS UK LTD Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: DR K KHAN (Chairman)

MRS C E FARQUHARSON

Sitting in London on 8-9 December 2008

Miss Valentina Sloane, Counsel, for the Appellant

Mr S Charles, Counsel, for the Respondents

© CROWN COPYRIGHT 2009


 


DECISION

Introduction

1. The Appellant ("NGK") is a company which imports and sells spark plugs and related products. It appeals against a decision of the Respondents ("the Commissioners") contained in a letter dated 14 March 2008 ("the Decision") ruling on the classification for the purposes of Customs Duties of an Exhaust Gas Temperature Sensor ("the Product") imported for the use in car engines.
2. On 5 November 2007, the Appellant submitted an application to the Commissioners' Tariff Classification Service for a Binding Tariff Information ("BTI") in respect of the Product. The Product was described as an:

"exhaust gas temperature sensor which uses a perovskite type ceramic thermistor device, enabling it to detect temperatures over a wide range from low temperatures to 900ºC. It has high resistance to heat and also shape design flexibility, so it can be installed on the exhaust pipe or the catalyst case. In addition to protection of the turbo charger, catalyst, and so on, by monitoring the exhaust temperature, this sensor is also used for control of the DPF and the NOX catalyst, and helps to reduce fuel consumption and clean the exhaust gas". (Marketing information on the Product).

3. On 17 December 2007, the Respondents issued BTI reference GB116927363 classifying the Product to heading 9025 1920 90, with the additional comment that the item was:

"excluded from 9027 under the terms of GIR1. The item is an exhaust gas temperature sensor with a thermistor device, enabling it to detect temperature. It is designed to indicate the highest and lowest temperatures it has recorded. The item merely checks temperature and is not considered to be an apparatus for physical or chemical analysis or for measuring or checking quantities of heat, sound, light. The trader confirmed it is electronic."

4. On 28 January 2008 the Appellant requested a review of the Respondents' decision. In that letter, the Appellant stated their belief that the Product should not be classified to 9025 but to 9027. It was pointed out that in a separate BTI (GB 1094 12005) issued on 23 July 2002 by the UK, a thermistor temperature sensor had been classified within that heading.
5. The Appellant stated that the Product was neither a thermometer nor a pyrometer by virtue of the fact that it was unable to measure temperature and offer a temperature reading. The Appellant said that the resistance changes in the Product were reported back to the Engine Management System ("EMS") of the vehicle and it was the EMS that converted these resistance changes into a temperature output or reading for the user.
6. The Appellant stated that the Product could not be classified to 9025 because it was not a complete unit with the capability of producing a temperature reading. The Appellant advised that, as the Product only operated as part of the EMS, it could be considered a part of the EMS. (Letter of 28 January 2008, Nigel Groom to HMRC).
7. The Appellant wrote to HMRC on 29 February 2008highlighting the Tribunal case of Flir Systems AB (LON/07/7025) to support their arguments. The central argument was that the temperature sensor could not be classified as a thermometer if it did not have the ability to provide a temperature reading and that only instruments which measure and display a temperature reading can be considered a thermometer. They quoted Counsel for HMRC in Flir Systems who said:

"(1) Each of the Products can measure temperature. An annual calibration is recommended by the Appellant to ensure accuracy. A thermometer is an instrument which measures temperature. An electronic thermometer is an instrument that measures temperature electronically."

They also quoted the Tribunal Chairman who said (at para 11(2)):

"9025. We consider that each of the products is a thermometer. It can measure temperature on the scale at the right hand side of the image and at the spot reading".

The Commissioners' review decision

8. The Commissioners, through Officer Adrian Woodley, undertook a formal departmental case review which was communicated to the Appellant by letter dated 14 March 2005. The review upheld the original decision which classified the Product to heading 9025. The Officer said that the Product could not be classified under heading 9027, as suggested by the Appellant, since that heading did not apply to the Product. In particular, the Officer found that the expression "measuring or checking quantities of heat" in heading 9027 did not accurately describe the Product. The Officer commented in his letter as follows (paragraph 14):

"For the CTAS sensor to be measuring "heat" it would need to be capable of measuring the heat energy flowing between objects of differing temperatures (an example of the equipment that is capable of measuring heat in this way is a calorimeter). From the description given for the CTAS sensor it does not appear to be capable of measuring heat in this way. The CTAS sensor is as a thermistor to determine the temperature of the gas in the exhaust system of vehicles".

9. The Review Officer drew a distinction between the measurement of heat and the measurement of temperature. He said that temperature is a physical property of a system rather than the energy being transferred between two objects. He explained, from the description of the Product, that it appeared to be reacting to the physical properties of the gas itself (i.e. the temperature) rather than to the heat.
10. The Review Officer (paragraph 17) said there is no exclusion within heading 9025 (or within the Explanatory Notes ("HSEN")) for articles that are not able to express the temperature being measured within the unit itself. The purpose of the sensor in question, is to measure gas temperatures in the exhaust system of the vehicle. The fact that a second unit (the EMS) is required to convert the resistance fluctuations into a temperature output did not alter the purpose of the sensor which was to determine the temperature of the gas in the exhaust. He was firmly of the view that the purpose of the Product was to act as a sensor to determine the temperature of the gas in the exhaust.
11. The Officer gave particular consideration to the fact that the Product was represented to be a "perovskite type ceramic thermistor" and a thermistor was an instrument for measuring temperature and therefore a type of thermometer. He said that the thermistor was the principal element of the Product and its essential character. His reason for making this analogy was stated to be as follows (paragraph 18):

"In an independent expert report that was commissioned by our team in relation to a separate appeal case, we were advised that a thermistor is an instrument for measuring temperature and that it was a type of thermometer. As the principal element of the CTAS is the thermistor and it is this that provides the CTAS with its essential character, I believe that this article should be classified in accordance with the thermistor".

12. The Appellant was of the view that only instruments which measure and display a temperature reading can be considered a thermometer. The Review Officer said that the Product does provide a measure of the temperature through the changes in resistance in a similar way to a thermometer providing a temperature measurement through the reaction of the mercury. He said that the thermistor could not be used to identify anything other than the temperature in the exhaust system and that the classification to 9025 was correct and that decision did not contradict the decision in the Flir Systems case.
13. The Review Officer considered the Appellant's argument that the Product should be considered a part of the EMS and be classified accordingly. He said that while parts and accessories for machines, apparatus or instruments can be classified under the same heading as the machines, apparatus or instruments that they were used with, it was not appropriate to so classify the Product since it was included in the heading 9025. The Product was excluded from being classified in any other way since it had its own categorisation.
14. The Review Officer addressed the concerns of the Appellant that the BTI was issued purely to be consistent with a German BTI (DEB/887/06-01) which had previously been issued for the Product. The Review Officer stated that, as a contracting party of the European Union ("EU"), the EU Commission guidelines require that all Member States are consistent in interpreting the legislation and guidelines and acknowledged the measures to be taken in the event of inconsistency or divergences. He explained that the German BTI was a correct classification for the Product.
15. Finally, the Review Officer was asked to comment on BTI GB 1094 12005, cited by the Appellant as an example of a classification under heading 9027 for a similar product. The Officer said that he would instruct the Tariff Classification to review this BTI to determine if it was similar to the Product. If the review found the products to be similar, the proper action would be to recommend that the classification of that product be revoked.
16. The Appellant raised further arguments that the Product was alternatively capable of classification under heading 8533. The Respondents say that this is not correct because the Product is more than a simple component, it is a completely assembled product intended to be used as part of the EMS.

The law

17. There is no dispute between the parties as to the law governing the appropriate classification of products within the Combined Nomenclature ("CN").
18. The principal rules relating to European Community customs law are set out in the Regulation of 12 October 1992 establishing the Customs Code ("the Code"). Article 20 of the Code provides that duties legally owed where a customs debt is incurred shall be based on the Customs Tariff of the European Communities. Article 20(c) provides that the Customs Tariff shall comprise seven elements, of which the first is the CN. The other elements are immaterial for the present purposes.
19. The CN is based on the International Convention on the Harmonised Commodity Description and Coding System of 14 June 1983, as amended, which established the "harmonised system" and which required that the customs' tariff and nomenclatures of contracting parties conformed to that harmonised system. The European Community and Member States are contracting parties to that Convention. The harmonised system is administered by the Customs Co-operation Council, known as the World Customs Organisation ("WCO").
20. The CN contain general rules of interpretation ("GIRS") for nomenclature which are mandatory.
21. GIR 1 provides:

"The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the heading and any relevant section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions".

22. The reference to the headings of the CN is the primary method of determining classification. The other general rules of interpretation apply only if the application of GIR 1 does not enable classification to be made and only insofar as they are not inconsistent with the headings. GIR 2 is not relevant.
23. GIR 3 sets out three sub-rules which are to be applied sequentially where goods are prima facie classifiable under two or more headings.
24. GIR 3 states:

"When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effective as follows;

(a) the heading which provides the most specific description shall be preferred to the headings of providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in a mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them is a more complete or precise description of the goods;

(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable;

(c) when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order amongst those which equally merit consideration".

25. The European Court of Justice (ECJ) has held that classification must be determined in accordance with the principle of objectivity.
26. The Court said (Case C-379/02 Imexpo Trading [2004] ECR I-9273 at paragraph 16):

"The decisive criterion for the classification of goods in the Combined Nomenclature must be sought generally in their objective characteristics and qualities, as defined in the wording of the heading and in the notes to the sections or chapters, and in accordance with the general rules on interpretation of the Combined Nomenclature insofar as they are not inconsistent with the headings and notes. In addition, the Harmonised System Explanatory Notes are, as such, useful aids to the interpretation of the Combined Nomenclature".

27. The ECJ has said that the intended principle use of a product is relevant in determining its objective characteristics. (Neckermann [1982] ECR 2493 at paragraphs 11 and 12). The ECJ has also said that the way in which the products are used, marketed and presented is relevant to classification (Case C-467/03 Ikegami at paragraph 20-23). We shall look at the Product in the light of these guidelines.
28. The WCO Harmonised System Committee, which is comprised of representatives from each of the contracting parties, prepares Explanatory Notes ("HSENs") and Classification Opinions. The ECJ has held that HSENs and opinions ensure the uniform application of the Tariff and may be regarded as useful aids to its interpretation. They are not legally binding and are to be disregarded if contrary to the wording of the headings in the GIR.

The Product

29. The Product is described in the Appellant's marketing literature as an Exhaust Gas Temperature Sensor which is used in an Engine Management System ("EMS"). Its features are listed as follows:

"

Can measure the exhaust gas temperature over a wide range from 100ºC to 900ºC.

Quick response is realised by the use of a small device and the slim design of the temperature sensing section.

Reduced weight due to miniaturisation of parts.

Long-term reliability due to the use of an integrated pressed metal tube.

Realisation of high vibration resistance due to packing of powder near the thermistor device."

30. A sample of the Product was presented at the hearing. It comprises a thermistor, wiring, casing and a plug which is plugged into the engine. The EMS ensures that the exhaust system does not become clogged with particles by changing the constitution of the fuel mix. It achieves this by increasing the temperature which burns the particles. The EMS uses the resistance output from the Product to monitor the temperature of the exhaust gases and determine whether the constituents of the fuel mix needs to be altered. The Product itself cannot convert the resistance output into a temperature measurement and there is no display of a temperature reading.
31. The Product was described in oral evidence given by two experts, Bevan Clues (C. Eng, MIEE, MAE, ACI Arb, Electrical Engineer), the Respondents' expert, and Graham Bangs (experienced engineer in automotive industry) the Appellant's expert, (who also submitted a combined witness statement with Masaki Iwaya).

The Appellant's argument

32. The Appellant's main submission is that the Product is properly classifiable under heading 8533 or alternatively 9027 and the Commissioners have erred by classifying it under heading 9025.
33. The thermistor is the determining component of the product for classification purposes and therefore:

(a) in accordance with GIR 3(b), the product must be classified as if they consisted of the components which gives it its essential character

(b) the HSEN to the rule provides that "the factor which determines essential character will vary between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods."

(c) according to the ECJ "it is necessary, in carrying out the tariff classification of a product, to identify, from among the materials of which it is composed, the one which gives it its essential character. This may be done by determining whether the product would retain its characteristic properties if one or other of its constituents were removed from it." (Case 253/87, Sportex [1988] ECJ 3351, paragraph 8)

(d) the role of the thermistor is manifestly key to the Product. Were the thermistor to be removed, the Product would lose its characteristic property.

34. An ordinary and commonsense application of the CN heading would place the product under 8533 which refers to "resistors" and a thermistor is a thermal resistor. The HSEN, while not binding, includes a thermistor in 8533.
35. A large number of European BTIs for thermistors issued by Member States classify the thermistor as a sensor to heading 8533.
36. The refusal by the Commissioners to classify the Product under 8533 on the basis that the heading is confined to components is wrong since the scope of the CN is determined by the heading and notes to the section neither of which restricts 8533 to components.
37. The Appellant says the Product is not a thermometer, since it cannot measure heat in any meaningful sense and cannot display temperature measurement. It enables the EMS to monitor the temperature of exhaust gas by providing it with a resistance output. Their view is that HMRC's argument that a thermistor is a thermometer classified under 9025 is simplistic and wrong and is contradicted by many BTIs of other Member States which classify thermistors not as thermometers but as resistors.
38. In the alternative, the Appellant says that if the Product is not classified under 8533, the only proper alternative is heading 9027, which covers the broader category of instruments or apparatus which measure or check qualities of heat.
39. During the hearing, the Commissioners accepted that the Product is not a thermometer but part of the thermometer for the purposes of the BTI classification. Therefore the Reviewing Officer's classification of the Product as a thermometer is different from that of the Commissioners' expert who considered it part of a thermometer since the EMS provides the temperature measurement. The Appellant say that since the EMS is not a thermometer then the Product cannot be part of a thermometer and therefore the argument of the Commissioners cannot be correct.

The Respondents' argument

40. The Respondents say that the proper classification for the Product would be under the CN heading 9025 (i.e. a thermometer or as part of a thermometer 9025 9000). At the hearing the Respondents agreed that it would be more accurate to have a classification as part of a thermometer.
41. They say that the classification of the 9025 is correct for the following reasons:

(a) The Product's objective characteristics is to measure temperature.

(b) The Product is marked as "an exhaust gas temperature sensor" under the Appellant's own marketing literature.

(c) The Product is made up of a thermistor, a heat resistant casing, a fixing bolt and shaft, a cable support, a plug, an integrated pressed metal tube and "packing powder". This is significant as it demonstrates that, at the moment of importation, the Product is an assembled product made up of various different items all of which are essential to give its "objective characteristic". The Product produces an output which allows the EMS to monitor temperature. The only use the EMS has for the Product is to determine temperature.

42. The Respondents say that some thermometers which do not provide a numerical output measurement fall under 9025. These include minimum and maximum thermometers; thermometers for use in motor vehicles with no numerical output; liquid crystal thermometers which give readings by colour; electrical thermometers operated by electrical resistance and disappearing filament pyrometers, where temperatures are measured by reference to the brightness of light.
43. While the Product does contain a thermistor it would be inappropriate to classify the Product under heading 8533 for the following reason:

(a) The thermistor is only one part of the Product. To classify the Product only by reference to that one part would be akin to classifying a traditional glass thermometer by reference only to the mercury contained within it.

(b) The HSENs to heading 8533 states that resistors are "conductors whose function is to provide a given electrical resistance …" The Respondents submit that this is not the role of the Product as it is designed to measure/monitor temperature.

(c) The Product does not fall within any of the "sub-headings" of 8533.

44. Regarding classification 9027, the Respondents say it is inappropriate as the Product is neither an instrument nor piece of apparatus for "checking quantities of heat". A scientific distinction was presented between heat and temperature.
45. In terms of the various heads use in classifying the Product, 9025 "provides the more scientific description" of the Product and classification 8533 provides the least specific description.
46. The primary task of the Tribunal is to determine the proper classification of the Product, under heading 8533 or alternatively 9027 or as the Commissioners have argued under the heading 9025.
47. The general rules of interpretation are clear. GIR 1 provides that classification shall be determined according to the terms of the headings of relevant sections or chapter notes. The reference to the heading of the CN is therefore the first matter for determining classification. Other rules of interpretation only apply if it is not possible to classify the Product using GIR 1. The criteria for the classification must be established by means of the objective characteristics and qualities of the Product.
48. If the Product is able to be classified under two or more headings, then one goes to GIR 3. Under this rule, the heading which provides a most specific description shall be preferred to a heading which provides the more general description. Where goods are made of different materials or components and so cannot be classified as above, then they shall be classified according to the material or components which give them their essential characteristics. Lastly, where the goods cannot be classified under either of the two rules above, then they should be classified under the heading which occurs last in numerical order amongst those which equally merit consideration.
49. The jurisdiction of the Tribunal is a full appellate jurisdiction with respect to the review decision.
50. There is no dispute on the law governing the classification of products within the CN heading. The matter can be disposed of by reference to the wording of headings 8533, 9025 and 9027. We must also consider the GIR and HSENs. The latter is non-binding.
51. Classification of the Product must be determined by reference to its subjective characteristics established from a variety of factors including its use, marketing, presentation and its component parts.
52. The main characteristics of the Product are as follows:

(a) a thermistor with other component parts including raised heat resistant casing, fixing bolt, cable support, plug, integrated pressed metal tube and "packing powder";

(b) temperature and heat sensor; and

(c) "an exhaust gas temperature sensor".

53. The Product is fully assembled comprising various components which allow it to operate in providing data resistance output for the proper functioning of the engine.
54. Sample products were presented at the hearing, underneath the cabling, casing and protective membrane, the actual core product is a delicate set of wires with black dots at the top of those wires which is the thermistor. It looks rather like a thin matchstick with the sulphur heads being the black top of the wires.
55. The Tribunal must consider GIRs 1 and 3. GIR 1 seeks to make classifications under "the terms of the headings and any relevant section or chapter notes". The reference to the headings of the CN is the first step in determining the classification. The other general rules of interpretation come into play if the application of GIR 1 does not allow a classification to be made and then only to the extent that they are inconsistent with the headings.
56. The heading in 9025 refers to a thermometer. The Product does not only fall under this heading. The Respondents agree that it is not a free-standing thermometer nor is it a resistors thermometer. They say it is only part of a thermometer therefore not covered by the specific provisions of 9025. The instruments referred to under that CN are all thermometers which display measurement. There is no obvious heading classification for a product which measures resistance.
57. Heading 8533 relates to electrical resistors. While the Product does contain a thermistor which is a type of electrical resistor, it is but one part of the Product. The Product cannot be classified with regard to that part only. The HSEN does provide guidance as to the products which fall within 8533 and there is a reference to a thermistor. The HSENs are non-binding.
58. The heading 9027 is not appropriate as the Product is neither an instrument nor piece of apparatus "for checking quantities of heat". There is a scientific distinction between heat and temperature, which is recognised in this case and in the expert evidence given.
59. The Tribunal is therefore unable to classify the Product under the relevant headings using GIR 1 nor the Guidance Notes and therefore must now consider GIR 3 which has three subsections GIR 3(a), (b) and (c).
60. GIR 3(a) permits a classification under the heading which provides the "most specific description" to the heading which provides a "more general description". Again, there is no obvious fit for the whole product under a specific category. The descriptions given under the CN categories are more general descriptions of a class of product such as "electrical resistors" (8533) or thermometers (9025) but nothing which specifically fits the products as a whole. The Product does not convert the resistance output into a temperature measurement. The classification as part of a thermometer does not naturally find a fit under this CN. Even if the Product did fit within 9025, that heading is subordinate to heading 8533 pursuant to GIR 3(a) since the Product falls under more than one heading. Where this occurs, the more specific heading categorisation is preferred and the categorisation of the Product as a thermal resistor would be preferable to that of a thermometer. In any event, the Respondents agree that the Product is not a thermometer but rather part of a thermometer.
61. The Tribunal must now consider GIR 3(b) which classifies goods "as if they consisted of the material or component which gives them their essential character". The parties agree that the component which gives the Product its essential characteristic is the thermistor. Indeed Mr Clues, in his expert oral testimony, states that without the thermistor the Product would be "a lot of spare parts which would be useless". The Appellant's expert, Mr Bangs, says that the thermistor provides 50% of the value of the Product.
62. If we accept that, from among the materials of which it is composed, the thermistor is the one which gives it its essential character, then categorisation under this CN 8533 would provide a natural fit. The Respondents argued that it is not possible to categorise the Product under 8533 since categorisation is restricted to "components". This does not appear to be a correct reading of the headings since it allows classification on the basis of one of the Product's essential components. CN 8533A and (5) make clear references to thermistors. Further, there are approximately 78 European BTIs classifications of thermistors under 8533 which is good supportive precedent for the classification.
63. The Respondents refer to the German classification of the Product under 9025. They support the German Customs' statement that temperature sensors with additional parts means that the product "no longer has the character of a component such as would be the case of a resistor of heading 8533 and must therefore be assigned to heading 9025 as a temperature sensor." The underlying argument is that the housing changes the essential character of the Product. The view of the Tribunal, is that the housing facilitates the using of Product and does not change its essential character. To this extent the German classification is not helpful. In any event, the Tribunal is not bound by another EU classification of the Product since it is the view of a domestic Customs authority. The restrictive interpretation of 8533 to components rather than fully assembled products is not, in our view correct. The Tribunal agrees that the Product properly falls within 8533 since this is the determining component of the Product which gives it its essential character.
64. The Respondents and their expert say that the Product is part of a thermometer but we are unable to point to the thermometer of which the Product is part. It may be more accurate to say that is part of the EMS, a software programme for regulating the engine but the Tribunal is not being asked to categorise the EMS. The caselaw (Turbon International [2002] ECJ 1-1389, Advocate General paragraph 30) states that the word "part" implies that there is a whole of which the part is essential. It is difficult to see how the Product is part of a thermometer when the EMS is not a thermometer. There is no identifiable "machine instrument or apparatus" (HSEN to 9025) of which it is part and indeed the EMS is more akin to a function than a part.

The EMS, if treated as the whole product, is not itself a thermometer and therefore the thermistor cannot be part of a thermometer. While the EMS does measure temperature, it is not a thermometer itself.

A more general view can be taken to classify thermistors as thermometers but the CN does provide a specific heading for thermistors as resistors. Therefore, the classification of the product under the specific heading would allow it to fall within 8533.

65. The Product is therefore properly classified under heading 8533. The appeal is allowed.
66. The Respondents' case has not been enhanced by the fact that classification of the Product by their expert and in their review letter is different. The expert believes it is part of a thermometer but the review letter says that it is a thermometer.
67. Costs will be awarded to the Appellant in this appeal.

DR K KHAN

CHAIRMAN

RELEASED: 9 February 2009

LON 2008/7046