[2023] KETAT 511 (KLR)

Netsavvy Wireless Limited v Commissioner of Customs & Border Control (Tax Appeal 106 of 2022) [2023] KETAT 511 (KLR) (4 August 2023) (Judgment)

Neutral citation: [2023] KETAT 511 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal 106 of 2022

E.N Wafula, Chair, Cynthia B. Mayaka, Grace Mukuha, Jephthah Njagi & AK Kiprotich, Members

August 4, 2023

Between

Netsavvy Wireless Limited

Appellant

and

Commissioner of Customs & Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company incorporated in Kenya and a registered taxpayer and its principal business is disposing of liquid waste material (petroleum waste) from the job site(s).

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Act and Section 5 of the East African Community Customs Management Act. Under Section 5(1) of EACCMA, the Respondent is responsible for the management of customs for the administration of the EACCMA, the management and control of customs and for efficient working of Customs including the collection and accounting for all customs revenue.

3. The Respondent conducted a post clearance desk audit on two of the Appellant’s consignments for the year 2019 pursuant to Sections 235 and 236 of EACCMA.

4. On analysis of the consignments, the Respondent alleged that the same were incorrectly classified under HS Code 8705. 90. 00 instead of HS Code 8704. 22. 90. The Respondent consequently, determined that the consignments had been undervalued and that additional revenue was due.

5. The Appellant was required to pay additional taxes amounting to Kshs. 22,629,248. 00 inclusive of penalties and interest, vide a demand notice dated 15th September 2021.

6. The Appellant subsequently on 12th November 2021 lodged an objection against the demand of the Respondent, who on 9th December 2021 issued a review decision rejecting the objection on grounds that the consignment had been misclassified under tariff code 8705. 90. 00 which attracts 0% import duty, 0% Excise duty and 16% VAT instead of tariff code 8704. 22. 90 which attracts a 25% import duty, 20% Excise duty and 16% VAT rate.

7. Aggrieved by the decision, the Appellant lodged the Appeal.

The Appeal 8. The Appeal is premised on the Memorandum of Appeal dated and filed on 2nd February 2022 and lays down the grounds as hereunder.a.That the Respondent erred in fact and in law by confirming that the vacuum sewage truck tankers (hereinafter referred to as "the Appellant's product") imported by the Appellant are classifiable under tariff Code 8704. 22,90 of the EAC/CET, and therefore, inter alia, subject to import duty of 25°%, Excise duty of 20% and VAT of 16%.b.That the Respondent erred in law and in fact in finding that the Appellant's product fell under HS Code 8704. 22. 90, despite the fact that the product does not fit within the Heading, Sections and Explanatory notes of the aforesaid classification.c.That the vacuum sewage truck tankers imported by the Appellant do not meet the threshold envisaged by tariff code 8704. 22. 90 of the EAC/CET.In particular HS Code 8704. 22. 90 provides for " motor vehicles for the transport of goods. In particular HS Code 8704. 22. 90 provides for “other motor vehicles for the transport of goods with a weight above 5 tonnes but not exceeding 20 tonnes".d.The Respondent erred in law and in fact in failing to recognize and find that the vacuum sewage truck tankers imported by the Appellant should be classifiable under Heading 8705. 90. 00 of the EAC/CET, as the nature of the product aligns with the provisions of Heading 8705. 90. 00. HS Code 87. 05 caters for "Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, breakdown lorries, crane lorries, fire fighting vehicles, concrete-mixer lorries, road sweeper lorries, spraying lorries, mobile workshops, mobile radiological units)." In particular HS Code 8705. 90. 00 specifically provides for, "other".e.That the General Interpretation Rules GIR 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter notes. In the event that the goods cannot be classified solely on the basis of GIR 1, and if the headings and legal notes do not otherwise require, the remaining GIRs may then be applied. Applying GIR I, the term of the heading. «Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, breakdown lorries, Crane lorries, fire fighting vehicles, concrete-mixer lorries, road sweeper lorries, spraying lorries, mobile workshops, mobile radiological units)." Correctly classifies the vacuum sewage truck tankers under Heading 87. 05 of the EAC/CET.f.That the explanatory notes to Heading 87. 05 clearly states that, "This heading covers a range of motor vehicles, specially constructed or adapted, equipped with various devices that enable them to perform certain non-transport functions, i.e., the primary purpose of a vehicle of this heading is not the transport of persons or goods.”g.That the Respondent disregarded the technical information supplied by the importer from its German supplier, Lindner & Fischer confirming that the Appellant's product is classifiable under HS Code 8705. 90. 00 of the EAC/CET.h.That the tax demand is therefore unlawful and is based on questionable facts rather than the facts of the law and should therefore be annulled.

The Appellant’s Case 9. The Appellant’s case is premised on the documents set out hereunder:a.The Appellant’s Statement of Facts dated 2nd February 2022 and filed on the same date.b.The Appellant’s written submissions dated 8th February 2023 and filed on the same date.

10. The Appellant stated that the Respondent conducted a desk audit on two of its consignments for the year 2019 comprising of vacuum sewage truck tankers for the suction and clean-up of petroleum spillages. That thereafter the Respondent issued a demand notice of Kshs. 22,629,249. 00 on 15th September 2021 relating to additional import duty, excise duty and VAT.

11. That in the demand notice, the Respondent submitted that the proper classification for the Appellant's product- vacuum sewage truck tankers, is under HS Code 8704. 22. 90 which attracts import duty of 25%, Excise duty of 20% and VAT of l6%, instead of HS Code 8705. 90. 00 as declared by the Appellant which attracts 0% import duty, 0% Excise duty and 16% VAT.

12. The Appellant averred that it wrote to the Respondent on 12th November 2021 objecting to the classification under HS code 8704. 22. 90 and also requested the Respondent to re-evaluate the classification of the vacuum sewage truck tankers on the basis of the following grounds:a.That the vacuum sewage truck tankers imported by the Appellant are not designed for transport of goods or people.b.That the Respondent's emphasis on the wording "tankers whether or not fitted with pumps “implies that the items imported by the Appellant are not specially designed for a specific purpose. That the vacuum suction tanks are incorporated in the vehicle through a highly specialized process that takes up to nine (9) months to complete and thus not accurately captured within KRA's proposed HS Code reclassification.c.That the items imported by the Appellant are specifically designed for the suction and clean-up of petroleum spillages. That petroleum waste is highly flammable and thus requires specialized handling and disposal. That the Respondent's proposed HS Code of 8704. 22. 90 refers to "ordinary trucks, lorries, vans" and would therefore not apply to the unique specifications required to handle and dispose of petroleum waste.

13. The Appellant submitted that HS Code Heading of 87. 05 relates to “special purpose motor vehicles, other than those principally designed for the transport of persons or goods.

14. That the HS Code Explanatory Notes to Heading 8705 provide the following:a.That this heading covers a range of motor vehicles, specially constructed or adapted, equipped with various devices that enable them to perform certain non-transport functions, i.e., the primary purpose of a vehicle of this heading is not the transport of persons or goods.b.That the vehicles of Heading 87. 05 must possess equipment designed to perform a specialized service or services at the job sites with any transport function being clearly subsidiary. That special purpose vehicles of the type classifiable in Heading 87. 05 are those in addition to having a tank and a vacuum pump to suction and dispose sludge and liquid wastes, also double up to perform services at the site such as flushing out and sewer openings, spraying industrial spills sites and which are specialized functions.

15. That the Respondent's demand notice stated that the trucks in question do not include any special equipment for performing a clean-up function and lacked additional specialized equipment and that the collection and transport function of the trucks are more akin to garbage trucks of Heading 8704.

16. That in the Appellant's view, the trucks qualify as special purpose vehicles due to their specialized nature as above stated and that the truck consists, in relevant part, of a truck cab and chassis equipped with a tank, rotary vane pump and several suction hoses.

17. The Appellant added that during operation(s), the rotary vane pump is used to generate vacuum pressure inside the vehicle tank thus creating strong vacuum pressure that is suitable for lifting liquid waste material off the ground and into the tank via connected suction hoses. That due to the extra vacuum pressure produced by the rotary pump, the vacuum truck tank is specially constructed of a thick and heavier steel than the tanks that are used on common tanker trucks.

18. The Appellant added that the vacuum truck tanks are also constructed with internal baffles that enable the separation of various waste material, which allows for the separate disposing due to the sometimes inflammable and sensitive nature of the petroleum waste.

19. That the trucks take about 6-8 months to build, equip, customize to completely integrate the chassis, vacuum chambers, and pumps. That the presence of rotary pumps on the vacuum trucks, when combined with the vehicles' other specialized design features, contribute to the not for transport function of the trucks.

20. That the above features enable the vacuum trucks to perform the specialized functions of industrial waste clean-up, general flushing and sanitizing of the waste sites. The Appellant added that it had attached drawings, technical specifications and photos that highlight the specialized nature of the items imported.

21. The Appellant further relied on other legislative authorities in particular the United States of America Customs Bulletin & Decisions. That Volume 51 of the US Customs Bulletin & Decisions detailed revocation of prior HS Code Classification by US Customs of certain vacuum trucks designed for liquid and semi-liquid waste removal. The ruling further reclassified the vacuum trucks to Heading 87. 05 based on physical characteristics of the vacuum trucks, which render the vehicles suitable for special purposes beyond the transport of goods.

22. The Appellant additionally corroborated its position by providing technical information from its German supplier, Lindner & Fischer confirming that the Appellant's product is classifiable under HS Code 8705. 90. 00 of the EAC/CET. That Lindner & Fischer is a renowned tanker manufacturer with a proven track record that has been in existence for over thirty (30) years. That due to their extensive experience in this specialized sector, the Appellant had the reasonable expectation that the HS Code used for the items to be imported was the correct classification.

23. That on 9th December 2021 the Respondent issued its review decision classifying the product under Heading 8704. 22. 90 of the EAC/CET based on the following grounds:a.That the trucks are specifically designed to transport wet or dry hazardous and non-hazardous materials.b.That the vacuum tankers imported by the Appellants are principally designed to perform as industrial vacuum loaders that collect petroleum waste through suction lines so that it may be transported from the job site(s) and properly disposed of. That from the photos and drawings submitted, the vacuum and storage equipment make up the bulk of the truck.c.That the Appellant had not demonstrated how the vacuum tankers double up to perform services such as spraying, cleaning or decontamination operations akin to motor vehicles of Heading 8705. d.That the Appellant's tankers do not have sweepers or brush attachments, rather they have industrial vacuum loaders that collect, remove and transport petroleum waste through suction lines and vacuum hoses so that it may be transported from the job site(s) and properly disposed of.e.That the Appellant failed to demonstrate the additional tanker physical characteristics used for cleaning up, flushing and sanitizing waste sites (apart from the pump and the suction lines).f.That while the Respondent acknowledged that indeed the Appellant's German supplier is renown and experienced, the Respondent averred that the World Customs Organisation (WCO) in conjunction with other customs jurisdictions are the only bodies authorised to guide on tariff matters.

24. The Appellant being dissatisfied with the review ruling decided to appeal against the same.

25. The Appellant in support of its matter relied on the cases ofa.R v Commissioner of Domestic Taxes Large Tax Payer’s Office Ex- parte Barclays Bank of Kenya [2012] eKLR.b.Commissioner of Income Tax vs. Westpont Power (K) Ltd Nairobi High Court Income Tax Appeal No. 626 of 2002; andc.R v KRA Ex-Parte Universal Corporation Ltd [2016] eKLR.The Appellant’s Prayers

26. The Appellant prayed that:a.The Appeal be allowed.b.The Respondent’s demand notice dated 15th September 2021 and the subsequent review decision dated 9th December 2021 be set aside.c.The Appellant be allowed to import the vacuum sewage truck tankers under HS Code 8705. 90. 00. d.The Respondent be restrained from taking any enforcement mechanisms with respect to the demand for taxes in the years in contention pending the determination of the matter.

The Respondent’s Case 27. The Respondent’s case is set out on the here below stated documents.a.The Respondent’s Statement of Facts dated 2nd March 2022 and filed on 3rd March 2022. b.The Respondent’s witness statement of one Stephen Wafullah dated 3rd October 2022 and admitted into evidence on oath by the Tribunal on 26th January 2023. c.The Respondent’s written submissions dated 12th January 2023 and filed on 13th January 2023.

28. The Respondent states that the vacuum tankers imported by the Appellant are principally designed to perform as industrial vacuum loaders that collect petroleum waste through suction lines so that it may be transported from the job site and properly disposed of.

29. The vacuum trucks are truck mounted, heavy duty industrial vacuum suction tankers designed to pneumatically convey liquids/petroleum waste (goods) etc. through suction lines. The rotary vane vacuum pump is a typical pump used in the environmental clean-up industry. It is a positive displacement pump that consists of vanes mounted to a rotor that rotates inside a cavity. The vacuum pump is mounted directly on the truck with a “power take off” drive. They are used for clean-up of petroleum spillages which are highly flammable (hazardous) and require proper handling and disposal. The vacuum tanks are mounted onto the chassis as well. These trucks are specifically designed to transport wet and dry hazardous and non-hazardous materials.

30. The tariff classification of goods is governed by the Common External Tariff (CET) read together with the explanatory notes and guided by General Interpretation Rules.

31. The General Interpretation Rule (GIR) 1 states that 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 otherwise, according to GRI’s 1 through 6.

32. Heading 8704 covers motor vehicles for the transport of goods. The Respondent states that in line with the provisions of the WCO Harmonized Commodity Description and Coding System Explanatory Notes for tariff heading 8704, the imported trucks are covered here. The explanatory notes for tariff heading 8704 provide that the heading covers in particular:Ordinary lorries (trucks) and vans (flat, tarpaulin-covered, closed, etc.); delivery trucks and vans of all kinds, removal vans; trucks with automatic discharging devices (tipping lorries (trucks) etc); tankers (whether or not fitted with pumps)….lifting excavating machinery."

33. The Respondent reiterates that tariff Heading 8704 is for motor vehicles for the transportation of goods. The goods in this case may be wet- e.g. automotive motor spirit, kerosene, petroleum, spillages or dry e.g. Soil and sand. Their main function is to perform transport functions.

34. The Appellant sought to classify the consignment under tariff Heading 8705. The Tariff heading is for special purpose motor vehicles, other than those principally designed for the transport of persons or goods (e.g. Crane lorries, spraying lorries). Their main function is to perform non-transport functions.

35. The Explanatory Notes for tariff Heading 8705 provide as follows:This heading covers a range of motor vehicles, specially constructed or adapted, equipped with various devices that enable them perform certain non-transport functions, i.e., the primary purpose of a vehicle of this heading is not the transport persons or goods.

36. Similarly, this heading excludes self-propelled wheeled machines in which the chassis and the working machine form an integral mechanical unit e.g. self-propelled road rollers and motor graders. In this case, the machine is not simply mounted on a motor vehicle chassis, but is completely integrated with a chassis that cannot be used for any other purpose and may incorporate the essential automobile features above.

37. The Respondent states that from the description of the consignment the Appellant failed to demonstrate how the vacuum tankers double up to perform functions such as spraying, cleaning or decontamination operations akin to motor vehicles of 8705.

38. The tankers do not have sweepers or brush attachments rather they have industrial vacuum loaders that collect remove and transport petroleum through suction lines and vacuum hoses so that it may be transported from the jobsite and properly dispose of.

39. The Respondent states that the functional attributes of the rotary pump, the heavy steel tank and the period it took to build the tankers do not make them special purpose vehicles as claimed by the Appellant. Further, the Appellant failed to demonstrate the additional tanker physical characteristics used for cleaning-up, flushing and sanitizing waste sites apart from the pump and the suction lines.

40. The Appellant has in its Statement of Facts referred to legislative authorities of the US in revocation of certain vacuum trucks designed for liquid and semi-liquid waste removal. The Respondent states in response that the imported vacuum tankers do not double up to perform services such as spraying, cleaning, separation of solid from liquid waste or decontamination operations akin to motor vehicles of 8705. Whereas the US Customs Bulletin and decisions entail revocation of certain vacuum tankers specifically designed for the liquid and semi-liquid waste removal,the Appellant failed to demonstrate how the vacuum tanker trucks could separate the two forms of waste.

41. The Respondent avers that from the foregoing it has demonstrated that its decision was within the Law and justified.

42. The Appellant’s grounds for appeal are not sufficient. From the facts of the case, the Appellant did not provide any evidence contrary to the basis of the Respondent’s decision.

Respondent’s Prayers 43. The Respondent prayed for:a.The upholding of its decision as proper in law and in conformity with the provisions of the lawb.The Appeal to be dismissed with costs as the same is devoid of any merit

Issue for Determination 44. The Tribunal upon considering the pleadings of the parties, the facts of the matter, the evidence adduced, and the submissions herein is of the considered view that only one issue falls for its determination and which is:Whether the Respondent erred in classifying the Appellant’s imports under HS Code 8704. 22. 90.

Analysis And Findings 45. Having identified the issue falling for its determination, the Tribunal wishes to analyse the same as hereunder.

46. The dispute is centred around the classification of vacuum sewage truck tankers imported by the Appellant. The Appellant contends that the items are classifiable under HS 8705. 90. 00 which attracts duty at 0% import duty, 0% Excise duty and 16% VAT while the Respondent has classified it under HS 8704. 22. 00 which attracts duty at 25% import duty, 20% Excise duty and 16% VAT.

47. In determining the applicable HS Code, the Tribunal was guided by the General Rules of Interpretation of the Harmonized Code reproduced hereunder:“General Interpretation Rules for The Classification Of Goods Classification of goods in the Nomenclature shall be governed by the following principles:1. 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, according to the following provisions :2. (a)Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this Rule), presented unassembled or disassembled.(b)Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3. 3.When by application of Rule 2 (b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:a.The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.b.Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3 (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.c.When goods cannot be classified by reference to 3 (a) or 3 (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.4. Goods which cannot be classified in accordance with the above Rules shall be classified under the heading appropriate to the goods to which they are most akin.5. In addition to the foregoing provisions, the following Rules shall apply in respect of the goods referred to therein:a.Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This Rule does not, however, apply to containers which give the whole its essential character.b.Subject to the provisions of Rule 5 (a) above, packing materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.6. 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.”

48. The impugned product was described as vacuum sewage truck tankers which the Appellant averred were to be used in suction and clean-up of petroleum spillages, that the trucks also double up as to perform services at the site such as flushing out and sewer openings or spraying industrial spills sites which are specialised functions.

49. The Appellant explained that the trucks in issue are categorized as special purpose vehicles designed for the suction and clean-up of petroleum spillages. That they are equipped with a tank, rotary vane pump and several suction hoses. That during operations the rotary vane pump is used to generate vacuum pressure inside the vehicle tank thus creating a strong vacuum pressure suitable for lifting liquid waste material off the ground and into the tank via connected suction hoses.

50. The Appellant also added that HS Code 8705 provides for a range of motor vehicles, specially constructed or adapted, equipped with various devices that enable them to perform certain non-transport functions. That the primary purpose of the vehicle is not the transport of persons or goods.

51. That HS Code 8704 covers in particular “ordinary lorries (trucks), vans, delivery trucks, trucks of all kinds, removal vans….”

52. The Respondent on its part averred that the Appellant imported the trucks and declared them under HS Code 8705. 90. 00 and that upon the Respondent conducting a desk audit it classified them under HS Code 8704. 22. 90.

53. That the Appellant objected to the classification and also requested for a re-evaluation of the classification of its imports on 12th November 2021 and on 9th December 2021 the Respondent issued its Review decision upholding classification of the items under dispute under HS Code 8704. 22. 90.

54. The rules of interpretation are found in Annex 1 to the Protocol for the Establishment of the East African Customs Union and therefore form part of the customs law of this country. The EAC CET nomenclature groups goods in Sections, Chapters and Sub-Chapters which have been given titles indicating as concisely as possible the categories or types of goods they cover.

55. Under Heading 87. 05 it provides for the following:“Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, breakdown lorries, crane lorries, fire fighting vehicles, concrete- mixture lorries, road sweeper lorries, spraying lorries, mobile workshops, mobile radiological units) 8705. 10 – Crane lorries 8705. 20-mobile drilling derricks 8705. 30-Fire fighting vehicles 8705. 40-Concrete mixture lorries 8705. 90. 00-Other"

56. Under Heading 87. 04 covers the following:

87. 04 Motor vehicles for the transport of goods-Dumpers designed for off-highway use:8704. 1010-Unassembled 8704. 10. 90-Other-Other, with compression -ignition internal combustion piston engine (diesel or semi-diesel)-g.v.w. not exceeding 5 tonnes 8704. 21. 10 -Unassembled 8704. 21. 90-Other-g.v.w. exceeding 5 tonnes but not exceeding 20 tonnes 8704. 22. 10-Unassembled8704. 22. 90-Other

57. It was not in dispute that the Appellant had imported vacuum sewage truck tankers. The issue was therefore the HS Code that correctly classify the same under the EAC CET. The Tribunal noted that the Appellant had provided the description with the pictures, drawings and technical specifications and details of the usage of the imports.

58. From the descriptions provided, the Tribunal was of the view that the trucks could only be classified under Heading 87. 05 and not 87. 04. This is because even the headings for the two classifications clearly spell out the covered items. Heading 87. 04 covers motor vehicles for the transport of goods whereas Heading 87. 05 covers special purpose motor vehicles.

59. The Tribunal further considered the holding in Proctor & Allan (E.A) Limited vs. Commissioner of Income Tax [2014] where the Court stated that the purpose of the import in question is always a paramount issue in classifying the same and stated:“It is the conclusion of this court that in light of the Certificate of Analysis that were submitted by both the Appellant and the Respondent, the court had little choice but to look at the intended purpose of the vitamin premix with a view to establishing whether it had been classified under the correct Heading. The court finds that the purpose of the vitamin premix was to fortify or improve the vitaminic characteristics of the unimix. There was no justification or basis which would have required the Respondent to have re-classified the vitamin premix as had been contended by the Appellant. It was irrespective whether or not KRA could analyse and identify vitamins.”

60. It was the view of the Tribunal that since the product description was clear, the same is covered under Heading 87. 05 and not 87. 04.

61. The Tribunal was further of the view that looking at GIR 4 in relations to the descriptions of the products imported by the Appellant the same were of similar nature or character with those described under Heading 87. 05 and specifically under 8705. 89. 00.

62. In the circumstances, and after considering the Chapter Notes, product description, the intended purpose of the product and the case law, the Tribunal determined that the product imported by the Appellant is classifiable under HS Code 8705. 89. 00 and the Respondent therefore erred in classifying the same under HS Code 8704,22,90.

Final Decision 63. Based on its analysis of the issue in dispute the Tribunal found that the Appeal is merited and accordingly the Orders that recommend themselves are as follows:a.Appeal be and is hereby allowedb.The review decision dated 9th December 2021 be and is hereby set asidec.Each party to bear its own cost.SUBPARA 1.

64. It is so ordered

DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF AUGUST, 2023. ERIC NYONGESA WAFULA - CHAIRMANCYNTHIA B. MAYAKA - MEMBERGRACE MUKUHA - MEMBERJEPHTHAH NJAGI - MEMBERABRAHAM K. KIPROTICH - MEMBER