TC09362 - [2024] UKFTT 001071 (TC)

We heard oral evidence from Ms Elizabeth Earwicker (HMRC Senior Policy Advisor) and Mr Mark Richard Rose (HMRC Tariff Classification Officer).

Ms Earwicker is a Senior Policy Advisor at HMRC. She has been employed by HMRC since August 1986 and has been working as a Senior Policy Advisor for eight years. She became involved in this matter when Senior Officer Joanne Goudie asked her to support Higher Officer Neil Dore with a trader meeting involving Appellant and its agent. In her oral evidence, Ms Earwicker adopted the contents of her witness statement, dated 12 October 2023, as being true and accurate. She was not asked any further questions in examination-in-chief by Mr Waldegrave, other than to identify various exhibits to her witness statement.

In her witness statement, Ms Earwicker states that the notes to the meeting that took place between the Appellant and HMRC in August 2022 show that there was a fundamental difference between how Mr Starr thought a wetsuit should be classified within Chapter 40, which covers rubber articles where the majority of panels that make up the wetsuit are made from neoprene covered on both faces with a knitted fabric. She states that, in her view, the Wetsuits should be treated as a “textile”, relevant to Chapter 61, which covers “articles of apparel and clothing accessories, knitted or crocheted fabrics”. This view, she states, is borne out by the Harmonized System. She adds that the Section and Chapter Notes of the UK Tariff are legally binding, and that the HSENs provide guidance on each Heading to ensure all WCO contracting parties that sign up to use the Harmonized System are consistent.

Ms Earwicker explained her approach to determining classification of the Wetsuits under the UK Tariff, stating that she first considers where a sheet of the material which makes up a wetsuit is classified. This is because most Chapters have the raw materials described at the beginning, semi-manufactured products in the middle and “made-up” articles of those materials at the end. Therefore, if a sheet of the material is classified within a certain Chapter, then a “garment” made up of that material will also be classified there. Using this logic, if a neoprene sheet covered on one face is classified within Chapter 40, specifically under Heading 4008 (which covers plates, sheets, strip rods and profile shapes, of vulcanised rubber other than hard rubber), so will a garment made up from these sheets be classified within the same Chapter; specifically under Heading 4015 (which covers articles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanised rubber other than hard rubber).

Equally, if a textile sheet made up of neoprene covered on both faces with a “knitted” fabric is classified within Heading 5906 (which covers rubberised textile fabrics other than those of Heading 5902), a “made up” article made into a garment from this fabric will be classified within Chapter 61, as Chapter 59 covers impregnated, coated, covered or laminated textile fabrics. She explains that Chapter 40, Note 2(a), states that goods of Section XI (textiles and textiles articles) are not covered in the Chapter. She adds that Section XI Note 1(ij) relates to “woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated or laminated with rubber, or articles thereof” of Chapter 40 are not covered in this Section.

She further adds that having identified the Heading for the neoprene and textile combination, she considers where a garment made from this is classified. She explains that Chapter 61, specifically Heading 6113, covers “garments made up of a knitted, or crocheted, fabrics of Headings 5903, 5906 or 5907”. Thus, in her view, one must first see where a sheet of the material is first classified to understand where the made up garment would be classified. Her view is that the European Regulation cited rule 3(b) when considering wetsuits as there is a mixture of neoprene panels that make up the wetsuit; some with textile covering on one face and others covered on both faces. Thus, there are two competing Headings: “4008” and “5906”. Because the majority of the panels are made up of materials of Heading 5906, the “essential character” is deemed to be that of a textile material and, therefore, such a made up garment would be relevant to Heading 6113. She adds that a wetsuit made up of all the same panels would not invoke rule 3 of the GIRs as it is only because of the two competing Headings that the rule requires to be invoked.

In conclusion, Ms Earwicker states that goods made up entirely of neoprene covered on both faces would be classified within Heading 6113, and goods made up entirely of neoprene covered on one face would be classified using the same GIRs within Heading 4015.

She was not cross-examined by Mr Starr.

In response to questions for the purposes of clarification, Ms Earwicker stated that the conclusion that the Wetsuits are laminated textile arises as a result of the fact that another layer is applied to the Wetsuits using glue to bond the neoprene with a layer of textile. She added that, in her view, there was no difference between laminated textile fabrics and lamination using rubber.

We then heard from Mr Rose.

Mr Rose has been employed by HMRC since 2002 and has been working as a Tariff Classification Officer for five years. In his current role, he works as part of a team responsible for classifying goods within the UK Tariff. He provides tariff rulings to importers and their representatives, as well as tariff classification advice to HMRC and the UK Border Agency to determine the duty liability of imported goods in cases where traders are unclear as to what tariff classification they should adopt.

In his oral evidence, Mr Rose adopted the contents of his witness statement, dated 20 October 2023, as being true and accurate. He was not asked any further questions in examination-in-chief by Mr Waldegrave. In response to questions for the purposes of clarification, Mr Rose stated that Heading 4008 was relevant to single-sided wetsuits and Heading 5906 was relevant to double-sided wetsuits. He added that the Wetsuits cannot be classified under rules 1 and 6 of the GIRs, without reference to rule 3(b). This was because the same fabric/materials had not been used throughout.

Under cross-examination from Mr Starr, Mr Rose re-iterated that he was of the view that it was necessary to consider rule 3(b) of the GIRs given the use of different types of material within the Wetsuits.

In his submissions, Mr Waldegrave took us through the background chronology and the relevant law, which we will not repeat here. Mr Waldegrave’s submissions can be summarised as follows:

In relation to “commodity code 6113 0010 00” (Heading 6113), Mr Waldegrave submits that:

In relation to “commodity code 4015 9000 00”, Mr Waldegrave submits that:

We are grateful to both representatives for their helpful and succinct submissions. At the conclusion of the hearing, we reserved our decision, which we now give with reasons.