UT/2023/000023 - [2024] UKUT 00096 (TCC)

To the extent the FTT erred in regarding the products as the same rather than similar, then we would agree with Ms Brown, that an application of the correct legal approach of reasoning by analogy, as applied to the facts as found by the FTT, would lead to the same outcome in terms of ultimate classification which the FTT reached. Having found that the plush material was present to a greater degree on the covering of the cat tree and the double column cat scratcher, even if we were to remake the decision, we would reach the same classification and in essence for the same reasons the FTT did when it gave its reasoning in the alternative. The products were sufficiently similar to those in the classification regulation (350/2014) to classify them, reasoning by analogy into the categories the FTT found on the basis the material covering the product which was present to the greatest degree was the plush (albeit that as the plush was knitted rather than woven the eight-digit classification would be different to that in the classification regulation). No appeal is brought against the single column scratcher so there is no basis to disturb the FTT’s finding on that product.

Accordingly, while we agree with the parties that the FTT erred in law in finding the products under appeal were the same as those covered by the classification regulation, this is not a situation where we consider that the error of law might have made a difference to the decision. We exercise our discretion not to set the decision aside on the basis the error would not ultimately be material to the outcome.