[2023] KETAT 173 (KLR)

Emergency Relief Supplies Limited v Commissioner of Customs & Border Control (Appeal 108 of 2021) [2023] KETAT 173 (KLR) (10 February 2023) (Judgment)

Neutral citation: [2023] KETAT 173 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Appeal 108 of 2021

E.N Wafula, Chair, RM Mutuma, RO Oluoch & EK Cheluget, Members

February 10, 2023

Between

Emergency Relief Supplies Limited

Appellant

and

Commissioner Of Customs & Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company incorporated in Kenya and is an appointed local agent of Solarsack Aps, a Danish company that manufactures and distributes the solarsack, a plastic water treatment, disinfection and purification equipment for the safe and reliable treatment and purification of water intended for drinking.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, Cap 469 Laws of Kenya. The Kenya Revenue Authority is an agency of Government for the collection and receipt of all tax revenue. The Authority is mandated to administer and enforce all provisions of tax laws as set out in Part 1 and 2 of the Schedule to the Act for the purpose of assessing, collecting and accounting for all tax revenue in accordance with those laws.

3. The Appellant on 8th August 2020 wrote to the Respondent seeking an advance classification of the solarsack. The Appellant requested the Respondent to consider the solarsack as a water purifying devise, which is classifiable under EAC/CET HS Code 8421:21:00.

4. The Respondent wrote back to the Appellant on 14th September 2020, communicating his decision to classify the solarsack under EAC/CET HS Code 3926:90:90 . The basis of the decision, as communicated by the Respondent, was that the solarsack is made of polyethylene and is therefore considered under, “other articles of plastics” under the East African Community External Tariff HS code.

5. The Appellant being aggrieved by the decision of the Respondent and in a letter dated 18th September 2020, it appealed to the Respondent to reconsider his decision. To that end the Appellant availed to the Respondent a persuasive tariff classification ruling from the Danish Customs Agency which classified solarsack under HS code 84:21:00 and laboratory test results from the Kenya Bureau of Standards and Makerere University confirming the Solarsack’s efficiency as a water purifying apparatus.

6. The Respondent responded to the Appellant’s appeal for review dated 18th September 2020 on the 25th November 2020. The Respondent reaffirmed his earlier decision, and to that effect, placed heavy reliance on the fact the solarsasck is made of a plastic bag which purifies water without any chemical or mechanical input.

7. On that basis, the Respondent upheld its earlier decision classifying the solarsack as “ other articles of plastic” under EAC/CET HS code 3926:90:90.

8. The Appellant further stated that in the intervening period on 24th September. 2020 the Appellant had imported a small consignment of solarsack devises. At the point of importation, the Respondent had classified the imported consignment of solarsack devices as water purification units under EAC/CET HS code 8421:21;00.

9. The Appellant being dissatisfied with the Respondent ‘s decision of 25th November 2020 applied to the Respondent seeking to be heard by the Respondent’s Technical Review Committee on why the Solarsack is classifiable under EAC/CET HS code 8421:21:00 and not EAC/CET HS Code 3926:90:90.

10. The Appellant specifically referred to the essential character of the Solarsack, which is its architecture and design that allows it to breakdown ultra-violet light into UV-A and UV-B , and uses it for purification of water .

11. The Respondent on 28th January 2021, in a decision titled “Review of Tariff Classification of Solarsack”, informed the Appellant that its Departmental Technical Committee had met on 25th January 2021. The Appellant had not been invited to make representations before the Committee. The Respondent informed the Appellant that its Departmental Technical Committee had met on 25th January 2021 and upheld the earlier decision classifying the solarsack under EAC/CET HS code 3926:90:90.

12. The Respondent explained that its decision to classify the solarsack under HS Code 3926;90:90 and not HS code 8421:21:00 was based on the General Interpretation Rules [GIR] 1 and 6 and which state as follows:GIR 1 provides that the classification of goods is determined according to the terms of the headings and any relative section or chapter .GIR 6 directs the classification of goods in the subheadings of a heading to be according to the terms of those subheadings and any related subheading notes.

13. The Appellant being dissatisfied with the Respondent’s decision dated 28th January 2021 filed this Appeal on 11th march 2021.

The Appeal 14. The Appellant filed its Memorandum of Appeal on 11th of March 2021 and set out the following grounds of appeal: -i.The Commissioner erred in law and in fact by failing to appreciate that the solarsack cannot be sufficiently classified under General Interpretation Rule 1 alone as it can be classified under both headings 3926 and 8421. ii.The Commissioner erred in law and in fact by holding that the Solarsack could properly and sufficiently be classified under heading 3926 alone when it was evident that the essential character of the solarsack is that of a water purifying apparatus under the heading 8421. iii.The Commissioner erred in law and fact by failing to appreciate that General Interpretative Rule 3[a] provides for classification of goods in situations where they are for any reason they may appear, classifiable under two or more headings.iv.The Commissioner erred in law and in fact failing to appreciate that by applying General Interpretation Rule 3(a), the heading which provides the most specific description for the Solarsack is 8421. v.The Commissioner erred in law and in fact by holding that the solarsack is classifiable under EAC/CET HS code 3926:90:90 as “ other articles of plastic” when it was evident that the most specific and appropriate classification for the solarsack was EAC/ CET HS code 8421:21;00 as ‘’water purifying apparatus”.vi.The Commissioner erred in law and in fact by ignoring General Interpretative Rule 4 which provides for the classification of goods under the heading appropriate to other goods to which they are most akin; and thereby reaching the erroneous finding that the solarsack was more specifically classifiable as “other articles of plastic” instead of as a “water purifying apparatus’’.vii.The Commissioner erred in fact by ignoring comparative persuasive jurisprudence from other East African Community member states and partner states in the European Union all of which have classified the Solarsack under HS code 8421:21;00 as a “water purifying apparatus”.viii.The Commissioner erred in fact by failing to appreciate that the essential character of the Solarsack derives not from its constitutive material but from the architecture and design that enables it to purify water when exposed to ultra violet rays , as opposed to other ordinary articles of plastic.

The Appellant’s Case 15. The Appellant’s case is premised on the following documents filed before the Tribunal and oral testimony:-i.The Appellant‘s Statement of Facts dated 11th March 2021and filed on the same date, together with the annexures thereto.ii.The Appellant’s witness statements of Stephen Ouma Otieno, Alexander Locke, Dr Elijah Juma ( Expert Witness) all filed on 4th August 2021 . The supplementary expert report of Dr Elijah Juma dated 21st April 2021, the certificate of computer output dated 4th August 2021, the video on the science of Solarsack. The witness statements were adopted in evidence by the Tribunal and the witnesses cross-examined and re-examined on the 20th September, 2022. iii.The Appellant‘s submissions dated 13th September 2022 and filed on the 18th October 2022.

16. This is an appeal from the decision of the Commissioner of Customs and Exercise to classify the Appellant’s product, the Solarsack, under HS Code 3926:90:90 instead of the HS Code 8421:21:00.

17. The Appellant stated that it had requested the Respondent for an advance tariff classification of the water purification equipment Solarsack, and by his decision dated 28th January 2021, the Respondent fell into three fundamental errors in the application of the General Interpretation Rules of the International Convention on the Harmonized Commodity Description and Coding System (HS Convention) and the East African Community Common External Tariff (EAC/CET).

18. The Appellant asserted that the Respondent erred in the following hereunder three ways;a.The Appellant contended that while the empirical data availed to the Respondent from the Kenya Bureau of Standards, and other expert institutions, and without their own expert data, the Respondent decided that the Solarsack does not purify water.b.The Respondent also erroneously decided that the only means by which products are to be classified is with regard to products composition and not the products’ description, function , or design.c.The Respondent erred by classifying the Solarsack under a generally descriptive HS classification as opposed to the most specifically descriptive classification as required by the HS convention and EAC/CET .

19. The parties’ contentions therefore boil down to whether the Solarsack is a water purifier, and what its most appropriate classification ought to be.

20. On whether the Appellant‘s product, Solarsack, is a water purifier, the Appellant’s expert evidence was adduced by Dr Elijah Juma and Alexander Locke , the inventor of Solarsack. The two relied on the test reports from the Ministry of Water of the Republic of Uganda, Kenya Bureau of Standards , and Makerere University.

21. The witnesses testified that the common thread in those reports was that the Solarsack was shown to eliminate up to 99. 99% of bacteria and viruses in water. The Solarsack was shown to be solely and deliberately designed to do this through pasteurization of water and the use of ultra violet A and B to denature the bacteria and viruses. In addition, the Solarsack was demonstrated to have a mesh filter to remove large particles of impurities from water, further purifying the water for drinking.

22. The Appellant stated that the Expert reports and testimony they relied on confirmed the effectiveness of the Solarsack in the removal of water impurities and their effect from water. The reports showed that the Solarsack is impregnated with hindered amine light stabilizers to allow maximum penetration of ultra violet rays through water. The reports further showed that walls of the Solarsack are also designed to allow a high rate of retention for pasteurization as well as a high surface area for ultra violet rays. The Appellant contended that it is these characteristics of the product which allow it to eliminate up to 99. 99% of the bacteria and viruses.

23. The Appellant stated that the Oxford Advanced Learners Dictionary defines purification as the process of making something pure by removing substances that are dirty, harmful or not wanted.

24. The Appellant contended that the definition is in line with the descriptive characteristics of its product as outlined in the foregoing paragraph.

25. In light of this, the Appellant invited this Tribunal to find that the Solarsack purifies water and consequently its correct description is a water purifier.

26. The Appellant stated that the Respondent did not produce any documents or expert report on the issue, and relied only on the testimony of a witness who is not a scientist and has no expert appreciation of the Solarsack by which to offer any guidance to the Tribunal.

27. The Appellant cited the cases of John G. Kamuyu & Anor -vs- Safari ‘M’ Park Motors [2013] eKLR , and , Ali Mohamed Sunkar -vs- Diamond Trust Bank Ltd [2011] eKLR , in which the courts held;“An expert report can only be challenged by a counter expert report”.

28. The Appellant submitted that in this Appeal , the Respondent did not avail any counter expert report to counter the expert evidence adduced confirming the apparatus as a water purifier, and consequently requested the Tribunal to find that the Solarsack purifies water.

29. On what is the most appropriate HS classification for the Solarsack, the Appellant stated that the common ground that tariff classification is based on is the EAC/CET, the HS Convention and the General Interpretative Rules under the HS Convention [GIRs].

30. The Appellant stated that GIR 1 provides that the titles of sections, chapters and sub-chapters are for ease of reference only. It also provides that classification of products is to be determined according to the terms of the headlines and any other relative section, or Chapter Notes.

31. The Appellant submitted that Chapter 84 of the EAC/ CET is titled “Nuclear reactors ,boilers , machinery and mechanical appliances ; parts thereof.” The Appellant stated that applying GIR 1 , this quoted Chapter title is for ease of reference only. Classification of any product falling within the chapter should be based only on the relevant chapter or chapter notes.

32. The Appellant stated that the sole function of the Solarsack is the purification of water. It is not designed for any other function. They asserted that this function is covered under heading 8421 which provides for,” Centrifuges , including centrifugal dryers; filtering or purifying machinery ,and apparatus for liquids or gases.”

33. The Appellant further stated that the semi-colon between the “centrifuges …” and “… filtering or purifying machinery….” Means the two grouping are separate and independent. The machinery and the centrifuge are not related in any way.

34. The Appellant submitted that the Heading Note relevant to heading 8421 is provided under “ Heading Note (II)Filtering or Purifying machinery and apparatus , for liquids and gases “. The Note states that“much of the filtration of purification plant of this heading is purely static equipment with no moving parts . The heading covers filters and purifiers of all types ( physical or mechanical , chemical , magnetic, electromagnetic , electrostatic etc.…)”.

35. The specific wording of the heading notes covers filters and purifiers of all types. The notes the give the examples of various types of filters and purifiers, closing with “etc.”. For this reason, the Appellant submitted that the above list of filters and purifiers is not intended to be exhaustive. It also included photochemical purifiers such as the Solarsack.

36. The notes also state that most of these devises are static with no moving parts just like the Solarsack. The Appellant in that regard asserted that the lack of moving parts did not disqualify the Solarsack from classification under heading 8421.

37. The Appellant further stated and submitted that Heading Note (ii)A -Filtering or Purifying machinery , etc., for liquids including water softeners provides that:“the liquid filters of this group separate solid , fatty , colloidal, etc. articles from a liquid, for example, by passing it through a sheet , membrane or mass of porous material ( e.g. Cloth, felt, wire-cloth , skin, stoneware ,porcelain ,kieselguhr , sintered metallic powders, asbestos, paper pulp , cellulose, charcoal ,animal black , sand…) filters using these materials are sometimes called water purifiers”.

38. It was further the submission of the Appellant that during the hearing of the appeal , the Solarsack was shown to have a mesh filter for removal of large particles of impurities from water, thereby meeting the technical criteria. They further submitted that Heading 8421 concerns purifying apparatus of all types . The fact that purification is achieved without physical separation of impurities does not deny an otherwise qualifying product its purification status.

39. The Appellant stated that General Interpretation Rule 3a states that:“The Heading which provides the most specific description shall be preferred to headings providing a more general description.”

40. Given the sole function of water purification of the Solarsack , the Appellant invited the Tribunal to classify it as a “water purifying apparatus” under the Heading 8421 , as opposed to the preferred classification of the Respondent under Heading 3926 as “ other articles of plastic”.

41. The Appellant also submitted the Danish Tariff classification [BTI] of the Solarsack under the HS code 8421 :21:00, on the basis that;“the primary function of the product is purifying water. This function is performed on the basis on the transparent side front side , the pigmented back , the design of the product, and the plastic composition. These characteristics and properties are essential for the SODIS purification , which is covered by heading 8421 in section xvi. According to note 2(s) to chapter 39, articles ‘`belonging to chapter 84 and 85 are not classified in chapter 39”.

42. In their closing submissions, the Appellant referred the Tribunal to the article by Carsten Weerth, titled “ Basic Principles of Customs classification under the Harmonized System “ at page 27 of their bundle of documents. In the article , an example is given on the interpretation of GIR 3a as follows : -“A wooden fork should be classified into heading 4419 as “ tableware and kitchenware, of wood” since this exact term of heading is preferable to the general term of heading 4421 “other articles of wood’’.

43. The Appellant submitted that the above example by the writer Mr. Weerth mirrors almost exactly the current dispute before the Tribunal.

44. The Appellant prefers a classification that aligns exactly with the Solarsack’s purification function, while the Respondent prefers a more general classification that is dependent on the material composition of the Solarsack.

45. In view of the foregoing, the Appellant submitted that “ other articles of plastic “ is quite general and could describe billions of other plastic products, and invited the Tribunal to apply GIR 3a for a finding that the heading that most specifically describes Solarsack is Heading 8421, and is the heading that most specifically describes water purifying equipment such as the Solarsack.

Appellant’s Prayers 46. The Appellant by reason of the foregoing prays the Tribunal to allow the appeal, and set aside the Respondent‘s decision dated 28th January 2021, and substitute the decision with an order classifying the Solarsack under EAC/CET HS code 8421:21:00.

The Respondent’s Case 47. The Respondent’s case is premised on the following filed documents and proceedings before the Tribunal :-i.The Respondent’s Statement of Facts filed on 7th October 2022. ii.The Respondent’s witness statement by Judy Wewa filed on 23rd July, 2022. The witness statement was adopted in evidence during the hearing and the witness cross-examined and re-examined on 20th September, 2022. iii.The Respondent’s Supplementary list of documents and video filed on 7th October 2022. iv.The Respondent’s written submissions filed on 6th October 2022.

48. According to the Respondent, the Appellant made an application for advance ruling on Solarsack on 8th September 2020. The Respondent delivered an advance ruling on 14th September 2020 classifying Solarsack under EAC/CET HS code 3926:90:90.

49. The Respondent stated that the reason for his decision of 14th September 2020 was based on the following :a.Solarsack is primarily made of polyethylene;b.There is no chemical or machinery that purifies water other than the heat from the sun.c.Solarsack primarily being made of polyethylene is classifiable under “ other articles of plastic”.

50. The Respondent stated that tariff classification of goods is based on the East African Community Common External Tariff 2017 [EAC/CET] as read together with the Explanatory Notes to the Harmonized System [HS] guided by the General Interpretation Rules [GIR].

51. The Respondent further stated that its position is that Solarsack is classifiable under EAC/CET HS Code 3926:90:90 based on the following reasons ;a.The salient feature of classification of products is that a product is classified as presented. Solarsack is specified to be a refillable water container made of plastic material intended for use in domestic water sterilization and storage.b.The plastic material component of Solarsack is made from low density polyethylene.c.Solarsack is a container that can be used to fill up water and is placed under the sun. The heat from the sun is what kills bacteria in water , and not any chemical or material present in solarsack.d.The Respondent further reiterates the reasons provided in its rulings.

52. The Respondent stated that GIR 1 states that 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 other relative section or chapter notes.

53. It was the Respondent’s submission that Section xvi of the EAC/CET deals with machinery and mechanical appliances; electrical equipment; parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers; and parts and accessories of such articles.Chapter 84 of EAC/CET covers Nuclear reactors, boilers, machinery and mechanical appliances; parts thereof.Sub-heading 84;21 of EAC/CET covers centrifuges , including centrifugal dryers; filtering or purifying machinery and apparatus for liquids and gases.

54. The Respondent averred that in tariff classification , the items under the Chapter stem from the section’s title , and the sub-heading from the chapter They state that for Solarsack to be classifiable under sub-heading 84:21, it must be machinery or mechanical appliance. The filtering and purifying apparatus must meet the threshold of “Machinery or mechanical appliances.’’

55. The Respondent further states that in the explanatory notes on sub; heading 84;21 it is stated that in treatment of drinking water, some of these materials [e.g. Porcelain and charcoal] remove bacteria etc in the process of filtration.Note A , under filtering or purifying machinery and apparatus for liquids and gases state, inter alia, that ; liquid filters of this group separate solid , fatty ,Colloidal etc particles from liquid for example by passing it through a sheet, membrane , or mass porous material eg. Cloth, felt wire cloth, skin, stoneware, porcelain, kieselguhr, sintered metallic powders, asbestos, paper pulp, cellulose, charcoal, animal black, sand in the treatment of drinking water, some of these materials eg porcelain and charcoal remove bacteria etc in the process of filtration; filters using these materials are therefore sometimes called “water purifiers”.

56. The Respondent stated that there is a difference between water sterilization and water filteration, and contended that Solarsack is a water sterilization appliance and not a water filtration appliance.

57. The Respondent contended that sterilization occurs when water is placed in Solarsack and exposed to the sunlight for at least four hours and heat from the sun kills the germs in the water and makes the water safe for drinking. The Respondent equates this process to boiling water to kill germs to make it safe for drinking.

58. The Respondent contended that filtration on the other hand involves the process of removing impurities from the water through for example filters. In filtration , solid particles in a liquid are removed by use of a filter medium that permits the fluid to pass through but retains the solid particles. In cross- examination , the Respondent ‘s witness stated that the sample which was presented to them for in section did not incorporate a mesh for filtration.

59. The Respondent further contended that the Appellant’s product Solarsack does not have any machinery or mechanical features in it, hence did not meet the criteria to be classified under purifying apparatus of sub-heading 84:21.

60. The Respondent states that from product specifications of Solarsack, it is an article made of plastic classifiable under EAC/CET HS code 3926:90:90 , which covers plastics and other articles of plastics of heading 39:01 to 39:14. The Respondent therefore states that the classification which suits Solarsack is EAC/CET HS code 3926 since it is made of plastic and is not a machinery or mechanical appliance.

61. The Respondent asserted that it is not bound by the decisions from other jurisdictions apart from the WCO to which Kenya is a signatory to the Treaty on the Harmonized System. The Respondent therefore submitted that they did not err as contended by the Appellant since there is no decision of the WCO on the matter, and the purported “ comparatives“ are not binding on the Respondent.

62. The Respondent further contended that it was not privy to the facts presented to the other “ comparative- jurisprudence “ which led to their decisions and therefor the same is not binding and applicable in the present context and that the Tribunal ought to interrogate the facts under the EAC/CET HS codes.

63. The Respondent stated that it had provided the analysis and basis upon which Solarsack was classified under HS code 3929;90:90, and the decision was guided by the provisions of the EAC/CET Harmonized System, and the Explanatory Notes to the Harmonized system.

Respondent’s Prayers 64. Based on the foregoing submissions, the Respondent urges the Tribunal to find that the Appeal herein is devoid of any merit, and dismiss the same with costs, and uphold the Respondent’s decision made on 28th January 2021 classifying Solarsack under EAC/CET HS code 3926:90;90.

Isssues For Determination 65. The Tribunal having considered the evidence and submissions made by the parties is of the considered view that the Appeal crystalizes into two issues for determination;i.Whether the Appellant ‘s product ”Solarsack” meets the criteria to be classified as a purifying apparatus of subheading 84;21. ii.Whether the Respondent erred in classifying the Appellant ‘s product “solasack” under HS code 3926:90:90 instead of HS Code 8421:21:00.

Analysis And Findings i. Whether the Appellant’s product , “ Solarsack’ meets the criteria to be classified as a purifying apparatus of subheading 84:21. 66. The sub-stratum of the dispute in this Appeal is whether the Appellant‘s product the Solarsack, which the Appellant has sought to have classified as a water purification apparatus under HS Code 84:21 meets the set threshold to be classified as such, with the Respondent maintaining that it is not a water purification apparatus, and is thus classifiable under HS code 3926:90:90 which applies to “other articles of plastic “ as it is made of plastic material.

67. The Respondent in disputing that Solarsack is not a water purifier asserted that, the same is primarily made of polyethylene, there is no chemical or machinery that purifies water other than the heat from the sun, and because it is made of polyethylene, it is classifiable under “other articles of plastic”. The Respondent stated that for Solarsack to be classifiable under heading 84:21, it must be machinery or mechanical appliance, and the filtering and purifying apparatus must meet the threshold of machinery or mechanical appliances.

68. The Respondent stated that there is a difference between water sterilization and water filtration, and contended that Solarsack is a water sterilization appliance and not a water filtration appliance.

69. The Respondent contended that sterilization occurs when water is placed in Solarsack and exposed to sunlight for at least four hours, and heat from the sun kills the germs in the water and makes the water safe for drinking. On the other hand, they stated that filtration involves the process of removing impurities from the water through for example filters.

70. In filtration, solid particles in a liquid are removed by use of a filter medium that permits the fluid to pass through but retains the solid particles. The Tribunal however takes note that the Respondent has not defined the process of purification which is subject of this contention. However, it is noteworthy that both the process of filtration, and sterilization go hand in hand towards the wholesome process of purification.

71. As it was stated by the Respondent that the sample they examined did not incorporate a mesh for filtration, as the sample presented at the hearing. Nonetheless, that position does not change the Tribunal‘s view on the Solarsack‘s characteristic as a water purifier, given that pasteurization in itself is a purification process.

72. The Respondent went to state that the Solarsack does not have any machinery or mechanical features in it therefore did not meet the criteria to be classified under purifying apparatus of subheading 84:21.

73. On the part of the Appellant, its witnesses testified that the common thread in their expert reports was that Solarsack was shown to eliminate up to 99. 99% of bacteria and viruses making it safe for drinking.

74. The Solarsack was demonstrated to be solely designed to achieve the foregoing through pasteurization of water, and the use of the ultra violet A and B to denature the bacteria and viruses through a photochemical process

75. The Solarsack was also demonstrated to have a mesh filter to remove large particles of impurities from the water, further purifying the water , for drinking and that it was not as simple as merely having the sunrays heating up water.

76. The expert reports and testimony further showed that the Solarsack is impregnated with hindered amine light stabilizers to allow maximum penetration of ultra violet rays exposure.

77. The Appellant contended that it is those product design characteristics of the apparatus which made it effective in the removal of impurities and their effect from water, and allow it to eliminate up to 99. 99% of the bacteria and viruses.

78. The Appellant submitted that the Oxford Advanced Learners Dictionary defines purification as process of making something pure by removing substances that are dirty, harmful or not wanted.

79. Both filtration and sterilization referred to by the Respondent, are processes which purification can be achieved, either through individual process or in combination.

80. This Tribunal is satisfied that the Appellant’s product, the Solarsack is not a simple “refillable water container made of plastic material- used to fill up with water and place under the sun to kill bacteria in water , without any chemical or material present in the solarsack”, as submitted by the Respondent. Expert evidence has indeed shown that the solarsack is an innovative design deliberately designed to eliminate bacteria and viruses in water through heat pasteurization of water, from ultra violet A and B. The plastic walls of the Solarsack was also shown to be impregnated with hindered amine light stabilizers to allow maximum penetration of light through water . The walls of the product have been designed to allow a high rate of heat retention for pasteurization as well as a high surface area for ultra violet heat ray exposure.

81. The product was also demonstrated to have a mesh filter which is used for filtration of solid particles from the water thus making it clean for drinking.

82. The above design characteristics are contrary to the Respondent’s contention that the product did not constitute a filtration process, and there were no chemical processes involved in its processes.

83. In view of the foregoing the Tribunal makes a finding that the Appellant’s product, Solarsack, meets the criteria to be classified as a water purifying apparatus , and is not merely a general article of plastic.

ii. Whether the Respondent erred in classifying the Appellant’s product “Solarsack”, under HS Code 3926:90;90 instead of the HS code 8421;21:00. 84. In determining the correct classification of the water purification product, Solarsack , the Tribunal has relied on the General Rules of Interpretation of the EAC/CET and the Explanatory Notes thereto.

85. The Appellant has urged this Tribunal to find that its product is classifiable under the EAC/CET HS code 8421:21;00 ostensibly on account that it is a water purifying Apparatus classified under Heading 8421.

86. The Respondent on the other hand has asserted that the Appellant’s product is classifiable under EAC/CET HS Code 3926:90:90 on the basis of the reasoning that it is made of plastic material and therefore falls under Heading 3926 which covers generally, “other articles of plastic”.

87. The Tribunal has taken note of the extensive submissions by the parties on the EAC/CET GIR and Explanatory Notes as they relate to the contested classification. The Tribunal does not intend to rehash those details again here. However, in its attempt to clear the gray areas in the two disputed classifications and come up with a concise interpretation, the Tribunal has narrowed down to the respective headings and perused the same carefully as hereunder;a.The Heading 3926:90:90 applies to other articles of plastics. According to the Explanatory Note thereto , indicating that the heading covers articles not elsewhere specified or included, of plastics and include …( lists various items capable of being classified thereunder). The Tribunal has strained to discern any item of close resemblance with the Appellant’s product without success.b.The Heading 8421:21:00 applies to filtering or purifying machinery and apparatus for filtering or purifying water.

88. The Explanatory Note (II) thereto, indicating that the heading covers filtering or purifying machinery and apparatus for liquids or gases.

89. The Appellant has classified its product as an apparatus for purifying water, for which this heading would be appropriately applied for “purifying apparatus for liquids’’, without doubt water being a liquid to be purified.

90. The Tribunal has had occasion to read the Article submitted by the Appellant, ie. The Basic Principles of Customs Classifications under the Harmonized System” by Weerth Carsten [published in the Global Trade and Customs Journal], wherein the author has confirmed that for the customs classification of goods into a customs tariff, basically, goods can be classified by their material condition or by their function and usage [with combinations being possible]. The author further wrote, “under GIR 3a; The heading which provides the most specific description shall be preferred to headings providing a more general description.”

91. The Author gave the example of “ A wooden fork should be to classify into heading 4419 as “ Tableware and kitchenware, of wood” since this exact term of heading is preferable to the general term of heading 4421 “ other articles of wood”.

92. It is the Tribunal‘s considered view that the position highlighted in this article aptly reflects the situation the Tribunal faces in this Appeal , and the Tribunal is persuaded to be inclined to the same position of interpretation. In this regard, the Tribunal finds that the design characteristics and function of the Appellant’s water purification product specifically determines the tariff classification more precisely than its material condition, which is more of a generality.

93. The Respondent has submitted to this Tribunal that the Appellant‘s product cannot be classified as a water purification appliance because it is not machinery or mechanical. The Tribunal has perused the relevant headings and subheadings, and finds the scope is very wide and not limited to straight jacket for the product to fit the product that the Respondent desires. It is not in doubt that the product employs the purification processes of sterilization and filtration, with an element of photochemical process from ultra violet energy, which process is driven by the physical, structural and chemical design of the product, to achieve its purification process.

94. The Respondent’s contention is therefore not tenable in the foregoing circumstances.

95. The Tribunal has also taken judicial notice that, some comparative jurisdictions have classified the said product under HS code 8421, this include the Danish Customs Authority (original country of invention), and closer home, Uganda (which is also part of the same EAC/CET regime) has arrived at the same classification. Though the Respondent has asserted, and rightly so, that those jurisdictions’ decisions are not binding on them, it would have been prudent to delve more into the reasoning behind their classification with an aim of distinguishing their preferred classification instead of merely asserting that their preferred classification was the right one.

96. Therefore, based on the facts and evidence before us the submissions of the parties, and pursuant to the EAC/CET General Interpretation Rules and Explanatory Notes, the Tribunal finds that the Respondent erred in classifying the Appellant’s product “Solarsack” under HS code 3926;90:90 , and hold that the said product is more appropriately classifiable under HS code 8421;21:00.

Final Decision 97. The upshot of the foregoing analysis is that the Appeal is merited, and the Tribunal accordingly proceeds to make the following Orders:-a.The Appeal be and is hereby allowed.b.The Respondent’s decision dated 28th January, 2021 classifying the Appellant’s product “ Solarsack” under HS Code 3926:90:90 is hereby set aside and substituted with the tariff classification HS code 8421:21:00. c.Each party to bear its own costs.

70. It is so ordered.

DATED AND DELIVERED IN NAIROBI THIS 10TH DAY OF FEBRUARY, 2023. ERIC N. WAFULACHAIRMAN..............ROBERT M. MUTUMA.................MEMBERRODNEY O. OLUOCH.................MEMBEREDWIN K. CHELUGETMEMBER