https://new.kenyalaw.org/akn/ke/judgment/ketat/2026/238

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: TAX APPEALS TRIBUNAL CASE NUMBER: TATC/E077/2026 CANON CHEMICALS LIMITED VS KENYA REVENUE AUTHORITY JUDGMENT # BACKGROUND 1. The Appellant is a company duly incorporated in Kenya under the Companies Act whose principal activity is manufacturing and distribution of cosmetic and personal care products to customers within Kenya and the wider East African market. 2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of Kenya’s Laws. Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5(2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 and 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws. 3. The Appellant imported a product described as Ginol EW (Neem), a non-ionic emulsifying wax, from Godrej Industries Limited, India, vide import entry number 25EMKIM400318629. The product is used by the Appellant as a raw material for the manufacture of cosmetic and personal care products. 4. Upon importation, the Appellant classified Ginol EW under Tariff Code 3404.90.00 of the East African Community Common External Tariff 2022 (EACCET), which covers "Other" artificial waxes and prepared waxes. 5. The Respondent, following a review of the import documents and customs verification, disputed the Appellant's tariff classification of the import and sought to classify the product under Tariff Code 3402.90.00, vide a letter referenced KRA/CBc/V&T/THQ/o385/10/2025-2026 dated 6th October 2025. 6. Dissatisfied with this determination, the Appellant applied for a review of the decision through an application for review dated 5th November 2025 pursuant to Section 229(1) of the East African Community Customs Management Act, 2004 (EACCMA). 7. Consequently, the Respondent issued a Review Decision dated 5 th December 2025, referenced KRA/C&BC/V&T/HQJAPPEAL/O95/11/2025-2026, upholding its decision to classify Ginol EW under Tariff Code 3402.90.00. 8. Aggrieved by the Review Decision, the Appellant filed its Notice of Appeal dated 21st January 2026. # THE APPEAL 1. The Appellant lodged its Memorandum of appeal dated and filed on 5 th February 2026 raising the following grounds of appeal: 1. That the Respondent erred in law and fact in classifying Ginol EW (Neem), a non-ionic emulsifying wax under Tariff Code 3402.90.00 instead of Tariff Code 3404.90.00 of the East African Community Common External Tariff. 2. That the Respondent incorrectly applied General Interpretative Rule 1 by concluding that Ginol EVW is classified under Tariff Heading 3402. 3. That without prejudice to Grounds 1 and 2, even if Ginol EW (Neem) could prima facie be classifiable under both Heading 3402 and Heading 3404, Ginol EW would be classified under Tariff Heading 3404 based on GIR 3. # THE APPLELLANTS CASE 1. In support if its case the Appellant lodged: 1. Statement of facts dated and filed on 5th February 2026, 2. Witness statement of Jacktone Oluoch dated 22nd April 2026 adopted as evidence-in-chief on 5th May 2026. * 1. Written submissions dated and filed on 5th February 2026. 1. In further support of its appeal the Appellant filed the following documents: 2. Single Administrative Document (SAD) 3. Tariff classification ruling dated 6th October 2025; 4. Application for review dated 5th November 2025; 5. Review decision dated 5th December 2025; 6. Technical data sheet dated May 2025; 7. Certificate of analysis. # Classification of Ginol EW (Neem) under Tariff Code 3404.90.00 as an artificial or prepared wax 1. The Appellant contended that Ginol EW is a chemically produced organic product of a waxy character classifiable under Tariff Code 3404.90.00 of the EACCET in accordance with GIR 1 and 6. 2. The Appellant asserted that as per the Technical Data Sheet ("TDS"), Ginol EW is a non-ionic, self-emulsifying wax used in the production of oil-in-water (O/W) creams and lotions. It stated that Ginol EW is a waxy solid blend comprising cetearyl alcohol (cetostearyl alcohol, a high molecular-weight fatty alcohol mixture of hexadecanol and octadecanol) and ceteareth-20 (a polyoxyethylene derivative of cetearyl alcohol). The Appellant averred that International Nomenclature of Cosmetic Ingredients (INCI) name for the product is "Cetearyl Alcohol (and) Ceteareth-20," and its CAS Numbers are 67762-27-0 and 68439-49-6, respectively. 3. According to the Appellant, Ginol EW is an emulsifying wax in which a fatty alcohol wax component is combined with a smaller fraction of non-ionic surfactant to facilitate emulsification. It stated that the product is electrically neutral (non- ionic), vegetable-derived, and formulated to meet the quality standards of the National Formulary (NF) for emulsifying waxes. It asserted that the Material Safety Data Sheet ("MSDS") and Certificate of Analysis ("COA") provide further technical reference confirming these specifications. 4. The Appellant stated that the formulation of Ginol EW shows that cetearyl alcohol forms the dominant wax matrix of the product, into which a smaller proportion of ceteareth-20 has been incorporated to confer self-emulsifying properties. 1. The Appellant contended that the substantial cetearyl alcohol content (on the order of 60% or more of the product) gives Ginol EW its characteristic waxy solid form, higher melting point, and polishable texture - properties typical of waxes. That the ceteareth-20 component, being a derivative of the same fatty alcohol, is chemically and functionally integrated to provide emulsification capability, but it does not fundamentally alter the waxy nature of the mixture. It opined that the formulation thus represents a prepared wax that has been specifically modified for particular cosmetic applications, distinguishing it from a simple fatty alcohol on one hand and from a pure surfactant preparation on the other. 2. The Appellant averred that Ginol EW is specifically designed as a wax-based preparation that provides both waxy structuring and emulsifying functionality in cosmetic formulations. That depending on concentration used, it can yield either viscous creams or lighter lotions. It asserted that at higher inclusion levels it produces thick, stable emulsions with a smooth texture, while at lower levels it can stabilize more fluid emulsions. It noted that emulsions made with this product exhibit excellent stability across a broad pH range (approximately pH 3 to pH 12) and are compatible with various types of cosmetic ingredients, including anionic, cationic, and other non-ionic substances, reflecting the non-ionic, mild nature of the emulsifier component. Ginol EW is also described as non-comedogenic and hypoallergenic, making it suitable for sensitive personal care applications. It enhances viscosity and helps prevent phase separation in creams and lotions, eliminating the need to add a separate thickening wax and a separate emulsifier – a single ingredient serves both functions. 3. The Appellant contended that as detailed in the TDS, Ginol EW appears as white to off-white solid flakes with a characteristic waxy odour. It is solid at ambient temperature (20°C) and has a melting point range of approximately 47C - 55°C, indicative of a waxy character. The Appellant stated that it is insoluble in water at room temperature -when added to water it does not dissolve but can form an emulsion only upon heating and mixing with oil phases, consistent with its function as an emulsifying wax. Other key chemical parameters of the product are typical of waxes and include: * pH: 4.50-7.50 (in a 5% aqueous solution) * Acid value: 1.0 Max (mg KOH/g) * Saponification value: 2.0 Max (mg KOH/g) * lodine value: 2.0 Max (g I2/100g) * Hydroxyl value: 166-178 (mg KOH/g) 1. According to the Appellant, these values confirm that the product has very low free fatty acid or saponifiable content, unlike soaps or free surfactants, and a high content of long-chain alcohol groups, aligning with the profile of a chemically prepared wax. 2. The Appellant averred that in use, Ginol EW is incorporated as an ingredient - typically at 2% to 8% by weight - within the oil phase of creams, lotions, and other emulsified cosmetic products. It stated that within this concentration range, which is customary for waxes in such formulations, it functions primarily as a structural wax and viscosity-building base, imparting body, texture, and stability to the final product. Its waxy matrix provides the necessary structuring by thickening and solidifying the formulation as it cools, while its mild self-dispersing (emulsifying) property - derived from the ethoxylated component - serves only to maintain uniform binding of the oil and water phases. 3. The Appellant contended that Ginol EW is not intended to perform as a cleaning, foaming, or surface-active preparation in the manner typical of surfactants and detergents of Heading 3402. Its emulsifying function is a designed enhancement of a wax base, not a transformation of its essential nature. From both a commercial and functional standpoint, the product remains fundamentally a prepared wax -a chemically produced organic material of waxy character formulated to achieve specific textural and stabilizing properties in cosmetic preparations. 4. The Appellant stated that GIR 1 and GIR 6 are applicable to this case. It stated that applying these principles, the Ginol EW is properly classified under Tariff Heading 3404 of the EACCET. 5. The Appellant cited Note 5 to Chapter 34 which prescribes that the expression "artificial waxes and prepared waxes" applies only to: 6. *Chemically produced organic products of a waxy character, whether or not water soluble;* 7. *Products obtained by mixing different waxes;* 8. *Products of a waxy character with a basis of one or more waxes and containing fats, resins, mineral substances or other materials*. 9. The Appellant averred that the ENs to Chapter 34 stipulate that the Chapter does not cover separate chemically defined compounds or natural products not mixed or prepared. This exclusion is material to the proper understanding of what constitutes artificial or prepared waxes versus separate chemical entities. It asserted that the ENs to Tariff Heading 3404 provide that this heading covers artificial waxes (also referred to as synthetic waxes) and prepared waxes which consist of or contain relatively high molecular weight organic substances, and which are not separate chemically defined compounds. 1. Further the Appellant stated that ENs require that waxes must have the following properties: 2. a dropping point above 40°C; and 3. a viscosity, when measured by rotational viscometry, not exceeding 10 Pa.s (or 10,000CP) at a temperature of 10°C above their dropping point. 4. The Appellant also noted that the products generally display the following properties: 5. they take a polish when gently rubbed; 6. *their consistency and solubility depend largely on temperature;* 7. *at 20 °C:* 1. *some are soft and kneadable (but not sticky or liquid) (soft waxes), others are brittle (hard waxes);* 2. *they are not transparent but may be translucent;* 8. *at temperatures above 40 °C, they melt without decomposing;* 9. *just above their melting point they cannot easily be drawn into threads;* 10. *they are poor conductors of heat and electricity.* 11. The Appellant maintained that Ginol EW satisfies the legal and technical conditions in their entirety. It reiterated that it is a chemically produced organic product of a waxy character, obtained by blending cetearyl alcohol -a high- molecular-weight fatty alcohol exhibiting the solid, polishable, non-conductive characteristics of a wax - with ceteareth-20, an ethoxylated derivative of the same alcohol which merely enhances its ability to self-disperse. The resulting mixture therefore is not a single chemically defined compound but rather a prepared wax, whose composition and behaviour remain fundamentally wax-like. 12. The Appellant stated that the product exhibits the following properties that conform to the EN requirements for Heading 3404: 13. Melting range of 47 -55°C, comfortably exceeding the 40°C threshold required by the ENs; 14. Viscosity of approximately 25 cP, measured at a temperature 10°C above the dropping point, which is well below the prescribed limit of 10 Pa-s (10,000 cP); 15. At 20°C, it is solid, opaque, and non-sticky; 16. Takes a polish when gently rubbed; 17. Consistency and solubility depend on temperature; 18. At 20°C, it is in solid form (neither sticky nor liquid); 19. Not transparent but may be translucent; 20. When heated above 40°C, it melts smoothly without decomposition; 21. Just above melting point, it cannot easily be drawn into threads; and 22. It is a poor conductor of heat and electricity. 23. According to the Appellant, Ginol EW fully conforms to the definition of artificial waxes and prepared waxes under Note 5(a) to Chapter 34. It also contended that applying GIR 1 and GIR 6, Ginol EW is properly classifiable under Tariff Heading 3404, and more specifically under Subheading 3404.90.00, which covers "Other" artificial waxes and prepared waxes. # Whether Ginol EW(Neem) constitute a "surface-active preparation" within the meaning of Heading 3402 1. The Appellant maintained that Ginol EW(Neem) does not constitute a "surface-active preparation" within the meaning of Heading 3402. 2. It stated that the Respondent concluded that Ginol EW is a "a surface-active preparation used as an emulsifier for cosmetic products" covered under Tariff Heading 3402 in accordance with GIR 1 and GIR 6. On the other hand, the Appellant contended that the Respondent fundamentally misapplied GIR 1 by failing to correctly interpret the scope and legal requirements of Heading 3402 as defined by the Chapter Notes. 3. The Appellant contended that to properly apply this heading, one must first understand what constitutes a "surface-active preparation" within its legal meaning under the Harmonized System. The Appellant pleaded that the Explanatory Notes (EN) to Heading 3402 provide authoritative guidance on this question. 1. The Appellant asserted that the ENs to Heading 3402 explain that surface- active preparations under this heading are products based on surface-active agents, used primarily for their surface-active properties such as cleansing, wetting, emulsifying, or dispersing. It argued that Note 3 to Chapter 34 provides the definitive legal test for what constitutes an "organic surface-active agent" for the purposes of Heading 3402. 2. According to the Appellant, the ENs state that these surface-active preparations "are used for their cleansing, wetting, emulsifying or dispersing properties in many industrial applications" and provide specific examples including: 3. Detergents for the textile industry, to eliminate fats and soiling matter on textiles during manufacture and finishing. 4. Wetting agents, emulsifying agents, fulling assistants and brightening agents, for the textile industry. 5. Soaking agents (for raw hides), de-greasing agents, wetting agents (for use in dyeing), levelling agents or toners for the leather or fur industries. 6. Basic materials for the manufacture of washing preparations of Part (B) below (e.g., anionic surface-active preparations which may contain, either as a residue or as a result of deliberate additions, a considerable quantity of sodium sulphate or other inorganic salts of the type arising during the manufacture of the surface-active agent). 1. Dispersing agents for the paper or synthetic rubber industries. 2. Flotation aids for the mining industry. 3. Emulsifying agents used in the preparation of pharmaceutical or cosmetic products. 4. The Appellant stated that ENs to Heading 3402 contain an express exclusion that, "the heading excludes preparations containing surface-active agents where the surface-active function is either not required or is only subsidiary to the main function of the preparation." 5. It stated that the exclusion recognizes that many products across various chapters of the nomenclature may contain surface-active components but should not be classified in Heading 3402 where the surface-active function is subsidiary to another primary function. The Appellant asserted that the controlling legal test is not whether a product contains a surface-active agent, but whether the surface- active function is the main function of the preparation or merely subsidiary. 1. The Appellant did not dispute that Ginol EW contains ceteareth-20, which is a non-ionic surfactant component that may, in isolation, qualify as a surface-active agent. However, the presence of a surface-active component within a product does not automatically render the entire product classifiable as a "surface-active preparation" under Heading 3402. It argued that the determinative question is whether the product as a whole is properly characterized as a surface-active preparation, or whether it falls within one of the express exclusions from that heading. 2. The Appellant averred that in applying this test to Ginol EW, the surface- active function (emulsification) derived from the ceteareth-20 component is subsidiary to the main function of the product, which is to provide waxy structure, body, texture, and viscosity to cosmetic formulations. The evidence supporting this conclusion is compelling: 3. Compositional evidence: The product is composed of 60-90% cetearyl alcohol (a waxy fatty alcohol) and only 10-40% (typically less than 30%) ceteareth-20. The dominant component by weight is the wax, not the surfactant. 4. Physical properties evidence: All the physical properties of Ginol EW are characteristic of waxes, not surfactants: solid waxy flakes at 20°C, melting point of 47-55°C, polishable when rubbed, poor conductor of heat and electricity, insoluble in water without heating. These are the properties imparted by the cetearyl alcohol wax matrix, not by the surfactant component. 5. Functional evidence: The Appellant asserted that the Respondent itself acknowledged that Ginol EW "enhances viscosity and prevents phase separation" and provides "excellent stability, a smooth texture, and a shiny, white appearance to emulsions." These are the characteristic functions of a structural wax providing body and texture, not the characteristic functions of a surfactant which primarily reduce surface tension, facilitate cleansing, or promote wetting. 6. Usage evidence: It averred that Ginol EW is used at 2-8% concentration in formulations and that is the typical usage rate for waxes that provide structure and texture. 7. Commercial characterization: The Appellant averred that the product is marketed and sold as an "emulsifying wax" -a term that itself denotes a wax- based product with auxiliary emulsifying capability, not a surfactant with incidental waxy properties. 1. Based on the foregoing, the Appellant asserted that Ginol EW falls squarely within the express exclusion stated in the ENs to Heading 3402. # Where Ginol EW is prima facie classified under Tariff Heading 3404 and 3402 1. The Appellant contended that if Ginol EW is prima facie classified under Tariff Heading 3404 and 3402, GIR 3 compels classification under Heading 3404. 2. That GIR 3(a) requires preference to the heading that provides the most specific description. It noted that Heading 3404, which expressly covers "artificial waxes and prepared waxes," describes Ginol EW with greater precision than Heading 3402, which refers more generally to "surface-active preparations" without addressing products whose primary identity is wax based. 3. In any event, GIR 3(b) mandates classification according to the component that imparts the essential character of the product. In the case of Ginol EW, that essential character is provided by the dominant cetearyl alcohol wax matrix, which constitutes the majority of the product by weight and determines its physical form, melting behaviour, viscosity-building capacity, and structural stabilisation function. The emulsifying role of the ceteareth-20 component is subsidiary and facilitative in nature and does not alter the fundamentally waxy character of the product. 4. The Appellant emphasized that classification must be based on the essential character and principal function of the goods as presented. It noted that the principal function is to provide waxy structure, body, and texture to cosmetic formulations and that the emulsifying property is a subsidiary enhancement that allows the wax to perform more effectively in emulsion systems, but it does not transform the product into a surface-active agent within the meaning of Heading 3402. 5. The Appellant averred that the Respondent's own factual findings reinforce this conclusion. It stated that the stated usage rate of 2- 8%, the emphasis on viscosity enhancement, texture development, physical stability, and prevention of phase separation are hallmark functions of waxes used as structuring agents. According to the Appellant, surface-active agents of Heading 3402 are characterised by their primary role in surface tension reduction wetting, cleansing, or dispersing at different concentration. 6. The Appellant argued that GIR3(a) and GIR3(b) compels classification under Code 3404.90.00. 7. The Appellant also relied on **United States Customs and Border Protection ("CBP") in ruling 849970** dated 26 March which according to the Appellant, addressed the classification of Empiwax SK, an emulsifying wax in white flake form intended for use in pharmaceutical ointments and cream bases. It stated that the U.S. CBP classified Empiwax SK under HTS 3404.90.5000, which corresponds to EACCET Subheading 3404.90.00. 1. The Appellant averred that following analysis by the U.S. Customs Laboratory, the product was found not to meet the HTS Chapter 34, Note 3 definition for organic surface-active agents. Instead, it was determined to constitute "alchemically produced organic product of a waxy character." *"The prospective import 'Empiwax SK was tested in the United States Customs Laboratory. The report states that the sample, white thin flakes, does not meet the HTS Chapter 34, note 3 definition for organic surface-active agents. It is a chemically produced organic products of a waxy character.’’* 1. The Appellant averred that Empiwax SK and Ginol EW are functionally and compositionally analogous products and that both are emulsifying waxes in white flake form; intended for use in pharmaceutical and cosmetic cream/ointment formulations; composed of fatty alcohol wax matrices with emulsifying components, solid at room temperature with characteristic waxy properties; and designed to provide structure and emulsification in cream bases. 2. According to the Appellant, the Respondent's classification of Ginol EW under Heading 3402 departs from the established international practice. The Respondent averred that it recognized that the Respondent retains authority to make independent classification determinations, such discretion must be exercised consistently with the facts of the case, the legal requirements of the relevant chapter notes, and the established international interpretative framework. It asserted that the composition, function, technical properties, and intended use of Ginol EW clearly correspond to those items classified internationally under Heading 3404 as prepared waxes. 3. The Appellant was of the view that divergent classification undermines the fundamental objective of the Harmonized System Convention to achieve uniformity in customs classification globally and that where the same product, governed by the same legal notes and technical criteria, is classified differently in different jurisdictions applying the same HS framework, the Convention's purpose is frustrated, and international trade is impeded rather than facilitated. 1. The Appellant faulted the Respondent's decision and contended that it is vitiated by cumulative legal errors as follows: 2. Failing to apply the express exclusion in the ENs to Heading 3402 for preparations where the surface-active function is subsidiary to the main function; 3. Failing to conduct a proper analysis of whether the surface-active function is main or subsidiary, despite this being the controlling legal test; 4. Failing to consider and apply Note 5 to Chapter 34 and the technical criteria in the ENs for Heading 3404, all of which Ginol EW satisfies; 5. Misapplying GIR 1 by not giving primacy to the chapter notes and by failing to conduct the required sequential analysis; 6. Failing to apply GIR 3(a) (most specific description) and GIR 3(b) (essential character), both of which support classification under Heading 3404. 7. Conflating the presence of a surface-active component with classification as a surface-active preparation, without proper analysis of essential character and main versus subsidiary function; and 8. Mischaracterizing the essential character and principal function of the product as surface-active rather than waxy-structural, contrary to the compositional, physical, and functional evidence. 9. Overlooking essential character analysis as required under GIR 3. 10. Based on the foregoing, the Appellant maintained that the Respondent erred in classifying the import in issue under HS Code 3402.90.00. 11. The Appellant submitted that the Respondent erred in law and fact by classifying Ginol EW under Tariff Code 3402.90.00 instead of Tariff Code 3404.90.00; and that the Respondent erred in law and fact by misapplying GIR 1 by classifying Ginol EW under Tariff 3402; and that where Ginol EW is prima facie classifiable under both Heading 3402 and Heading 3404, the product is properly classifiable under Tariff Heading 3404 in accordance with GIR 3. 12. The Appellant relied on the following authorities: # European Court of Justice (ECJ) Case C-486/06 BVBA Van Landeghem [2007] ECR I- 10661; 1. **Harneel Singh Saghoo v Commissioner of Customs and Border Patrol, Tax Appeal No 187 of 2022;** 2. **United States Customs and Border Protection ("CBP") NY Ruling 849970.** 3. **Unity Homes Limited v Commissioner of Customs & Border Control, Appeal 404 of 2022, [2023] KETAT 266 (KLR); and** 4. **United States Customs and Border Protection(“CBP”) Ruling H311149** **Appellant’s prayers** 1. The Appellant prayed for the following reliefs: 2. The Appeal be allowed; and 3. The Review decision dated 5th December 2025 be set aside in its entirety # THE RESPONDENT’S CASE 1. The Respondent filed its Statement of facts dated 11th March 2026 and filed on 18th March 2026. The Respondent did not file written submissions. 2. The Respondent stated that the product description and use of the product as a non-ionic emulsifying wax that is specified to be a versatile, and pharmaceuticals as a self-emulsifying agent to create stable oil-in-water vegetable-derived ingredient widely used in cosmetics emulsions for products like lotions, creams, and ointments. It stated that the product is electrically neutral (non-ionic), mild, non-irritating, and compatible with a broad pH range, making it suitable for sensitive skin formulations and various active ingredients. 3. The Respondent averred that the key characteristics of the product includes: 1. Composition: Primarily a blend of cetearyl alcohol (a fatty alcohol) and a non-ionic surfactant ceteareth-20. 2. HLB Value: Around 14-15, ideal for oil-in-water emulsions. 3. Usage Rate: 2-8% of the total formulation (e.g., 3-5% for lotions, 5-10% for thicker creams). Recommended ratio is about 1:4 (emulsifier to oil phase). 4. Properties: Provides excellent stability, a smooth texture, and a shiny, white appearance to emulsions. It is RSPO-certified in many grades for sustainability and meets National Formulary (NF) standards for quality. * 1. Benefits: Non-comedogenic, hypoallergenic, and easy to incorporate without additional stiffeners. It enhances viscosity and prevents phase separation. 1. The Respondent stated that the products Common Applications include; 1. Skin care (Facial care, Facial cleansing, Body care, Baby care) Moisturizing products (creams & lotions) 2. Make-up products like Foundations, Mousse 3. Men grooming Products like Shaving Preparations, Beard Softener Creams etc 4. Hair care Products like Hair Creams, Hair Conditioners 5. Any Emulsion tsme apodurt 2. The Respondent averred that Heading 34.02 covers classification of organic surface-active agents (other than soap); surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap, other than those of heading 34.01. It averred that this heading includes classification of surface-active preparations used for their cleansing wetting, emulsifying or dispersing properties in many industrial applications. They include emulsifying agents used in the preparation of pharmaceutical or cosmetic products. 3. Based on the above information, the Respondent asserted that the product emulsifying wax Genol EW (Neem) imported is therefore considered to be a surface-active preparation used as an emulsifier for cosmetic products, classified in 2022 EAC/CET Code 3402.90.00 as guided by GIR 1 and 6. 4. The Respondent maintained that it acted within the confines and provision of the law in issuing the tax and objection decisions. # Respondent’s prayers 1. The Respondent prayed: 1. That the Review decision be upheld, and 2. That the Appeal be dismissed with costs. # ISSUE FOR DETERMINATION 1. The Tribunal has considered the parties’ pleadings and Appellants submissions, and has identified the following issue for determination: **Whether the Respondent was justified in classifying the imports under HS Code** # 3402.90.00 instead of HS Code 3404.90.00 **ANALYSIS AND FINDINGS** 1. Having identified the issue for determination, the Tribunal proceeds to analyse the same as hereunder: - # Whether the Respondent was justified in classifying the imports under HS Code 3402.90.00 instead of HS Code 3404.90.00 1. Whereas the Appellant asserted that the imports in issue are classifiable under HS Code 3404.90.00, the Respondent issued a Review decision wherein it maintained that the imports in issue were classifiable under HS Code 3402.90.00. 2. The General Interpretation Rules (GIR) as cited in the EAC-CET provide for principles that govern classification of goods in the nomenclature. GRI 1 provides *as inter alia*: *‘‘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 headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require****…’’* 1. GIR 6 is instructive. It provides that;- *‘‘For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related Subheading Notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires.’’* 1. HS Code 3402.90.00 which the Respondent settled on provides as follows: *34.02 Organic surface-active agents (other than soap); surface active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap, other than those of heading 34.01.* *- Other* 1. Note 3 to Chapter 34 provides as follows: *For the purposes of heading 34.02, "organic surface-active agents" are products which when mixed with water at a concentration of 0.5% at 20°C and left to stand for one hour at the same temperature:* 1. *give a transparent or translucent liquid or stable emulsion without separation of insoluble matter; and* 2. *reduce the surface tension of water to 4.5 x10-2 N/m (45 dyne/cm) or less.* 3. On the other hand, the Appellant’s preferred HS Code 3404.90.00 which provides that; ***34.04 Artificial waxes and prepared waxes.*** *- Other* 1. Note 5 to Chapter 34 provides as follows: *5.- In heading 34.04, subject to the exclusions provided below, the expression "artificial waxes and prepared waxes" applies only to:* 1. *Chemically produced organic products of a waxy character, whether or not water-soluble;* 2. *Products obtained by mixing different waxes;* 3. *Products of a waxy character with a basis of one or more waxes and containing fats, resins, mineral substances or other materials.* *The heading does not apply to:* 1. *Products of heading 15.16, 34.02 or 38.23, even if having a waxy character;* 2. *Unmixed animal waxes or unmixed vegetable waxes, whether or not refined or coloured, of heading 15.21;* 3. *Mineral waxes or similar products of heading 27.12, whether or not intermixed or merely coloured; or* 4. *Waxes mixed with, dispersed in or dissolved in a liquid medium (headings. 34.05, 38.09, etc.).* 5. The Tribunal has carefully considered the competing tariff headings together with the General Interpretative Rules (“GIR”), the relevant Chapter Notes and the evidence placed before it. Pursuant to GIR 1, classification must first be determined according to the wording of the headings and any relevant Section or Chapter Notes. Accordingly, the Tribunal’s task is not to determine whether the product is merely an emulsifier or merely a wax, but rather to ascertain, from its objective characteristics and properties as presented at the time of importation, whether it falls within Heading 3402 as a surface-active preparation or within Heading 3404 as an artificial or prepared wax. Only where classification cannot be resolved under GIR 1 would recourse to the subsequent Interpretative Rules become necessary. 1. The evidence before the Tribunal demonstrates that Ginol EW (Neem) is a non-ionic self-emulsifying wax composed principally of cetearyl alcohol together with ceteareth-20. The Technical Data Sheet, Certificate of Analysis and product specifications consistently describe the product as a wax-based preparation supplied in solid flake form, possessing a melting range of approximately 47°C to 55°C and intended principally for use in the manufacture of cosmetic creams and lotions. These characteristics are objective physical properties of the goods and constitute the primary evidence upon which tariff classification must be determined. 2. The Tribunal further notes that Note 5 to Chapter 34 defines “artificial waxes and prepared waxes” to include chemically produced organic products of a waxy character as well as products obtained by mixing different waxes or products of a waxy character containing other materials. The Explanatory Notes similarly recognise that Heading 3404 covers chemically produced products possessing the recognised characteristics of waxes, provided they are not excluded by the legal notes. 3. The evidence adduced by the Appellant demonstrates that Ginol EW exhibits the physical and technical characteristics ordinarily associated with prepared waxes, including its waxy solid form, melting behaviour, viscosity characteristics and intended use as a structural ingredient in cosmetic formulations. 4. The Respondent, on the other hand, maintained that the product falls under Heading 3402 because it functions as an emulsifier in cosmetic preparations. While the Tribunal accepts that the product possesses emulsifying properties by virtue of the ceteareth-20 component, the mere existence of a surface-active component does not automatically render an imported product classifiable under Heading 3402. Classification under that heading must be supported by the legal requirements contained in the tariff nomenclature, including the relevant Chapter Notes and the objective characteristics of the imported goods. 5. In particular, Note 3 to Chapter 34 prescribes the legal criteria applicable to organic surface-active agents for purposes of Heading 3402. Although the Respondent concluded that the imported product constituted a surface-active preparation, it did not place before the Tribunal any laboratory analysis, technical testing or expert evidence demonstrating that the imported product satisfies the statutory requirements contemplated under Note 3 or otherwise establishing that its principal character is that of a surface-active preparation rather than that of a prepared wax. Instead, the Respondent relied primarily on the product’s intended emulsifying function without addressing the objective physical characteristics of the goods. 1. Conversely, the Appellant produced detailed technical documentation from the manufacturer, including the Technical Data Sheet and Certificate of Analysis, demonstrating the composition, physical properties, melting characteristics and commercial identity of the imported product. Those documents consistently describe the product as a self-emulsifying wax whose dominant component is cetearyl alcohol and whose principal characteristics are those of a wax-based preparation. 2. It is the Tribunal’s considered view that the Respondent neither challenged the authenticity of those documents nor produced contrary technical evidence capable of displacing the Appellant’s evidence. In the absence of competing evidence, the Tribunal finds no basis upon which to disregard the objective technical documentation produced by the Appellant. 3. The Tribunal also finds persuasive the that the surface-active function of the imported product is ancillary to its principal wax-based characteristics. The evidence demonstrates that the product derives its physical form, structural properties, viscosity-building capacity and commercial identity from its wax matrix, while the emulsifying capability merely facilitates its use in cosmetic formulations. The Explanatory Notes to Heading 3402 expressly exclude preparations containing surface-active agents where the surface-active function is not the principal function of the preparation but is merely subsidiary thereto. With regard to the evidence before the Tribunal, Ginol EW falls within that exclusion. 4. The Tribunal is satisfied that in applying GIR 1 together with Chapter Note 5 to Chapter 34, the imported product possesses the objective characteristics of a prepared wax falling within Heading 3404. In any event, were it to be accepted that the product is prima facie classifiable under both Headings 3402 and 3404, the Tribunal would arrive at the same conclusion upon application of GIR 3. The essential character of the product is imparted by its wax component, which predominates in composition and determines its physical nature, commercial identity and principal function. 5. Accordingly, the Tribunal therefore finds and holds that the Respondent erred in classifying Ginol EW (Neem) under HS Code 3402.90.00 instead of HS Code 3404.90.00. # FINAL DECISION 1. The upshot to the foregoing is that the Appeal is meritorious and the Tribunal proceeds to make the following Orders: 1. The Appeal be and is hereby allowed; 2. The Review decision dated 5 th December 2025 be and is hereby set aside; 3. Each party to bear its own cost. 2. It is so ordered. # DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2026 SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. EUNICE NJERI NGANGA HON. SANKALE SPENCER OLOLCHIKE** **HON. BERNADETTE MUTHIRA GITARI** **HON. BILLY GRAHAM OKUMU MIJUNGU** Tax Appeals Tribunal Tribunal Date: 2026-07-17 14:10:08