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NY I83121

July 17, 2002

CLA-2-95:RR:NC:SP:222 I83121


TARIFF NO.: 9505.10.2500

Mr. Joe Lin
Apex Enterprises International, Ltd.
Unit A, 2/F, Capital Trade Centre
62 Tsun Yip Street, Kwun Tong
Kowloon, Hong Kong

RE: The tariff classification of Christmas candles from China.

Dear Mr. Lin:

In your letter dated June 5, 2002, you requested a classification ruling.

You have submitted two samples of candles. Item #S547-129-G is a round 3-wick green colored pillar candle. It measures 5 inches in height and 6 inches in diameter and it is decorated with 4 large snowflake motifs and many smaller snowflakes that have been molded on the sides. The molded motifs are gold colored. The decorations cannot be removed without damage to the candle. Your letter of inquiry states that this candle will be available in various colors and sizes.

Item # V0350-3 is a window gift box containing 4 cream-colored pillar candles of different sizes. Each candle is decorated with holly leaves and berries that have been molded on the sides. The molded motifs and part of the surface of the candle are heavily sponged with gold color. The window gift box is adorned with a textile ribbon bow.

The applicable subheading for item #V0350-3, the window gift box with 4 candles will be 9505.10.2500, Harmonized Tariff Schedule of the United States (HTS), which provides for articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other. The rate of duty will be free.

The issue of the scope of the term “festive articles” under 9505 is currently pending before the United States Court of Appeals for the Federal Circuit in the matter of Park B. Smith Ltd. V. United States, Court of Appeals No. 01-1578 (cross appeal # 01-1586). Section 177.7, Customs Regulations (19 CFR 177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(b) states, in pertinent part, the following:

No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit, or any court of appeal therefrom.

In light of the prohibition set out in 19 CFR 177.7(b), and as the instant classification ruling request is closely related to the issue presently pending in the Court of Appeals, we are unable to issue a classification ruling letter to you with respect to item #S547-129G, the round 3-wick pillar candle. We are administratively closing our file.

When all litigation has been concluded on the case referenced above, you may resubmit your request for a ruling. If you decide to resubmit your request, please include all materials that we have returned to you and mail your request to Director, National Commodity Specialist Division, U.S. Customs Service, Attn: CIE/Ruling Request, One Penn Plaza, 10th Floor, New York, NY 10119.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alice Wong at 646-733-3026.


Robert B. Swierupski

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