Introduction
1. This appeal arises from the Judgment of the Tax Appeals Tribunal (“the Tribunal”) delivered on 1st August 2024, whereby the Tribunal allowed the Respondent’s appeal and held that the product “ Garnier Pure Active 3-in-1 Charcoal” was properly classifiable under HS Code 3401.30.00 and not HS Code 3304.99.00 as had been reclassified by the Appellant.
2. The background of the dispute is that L’Oréal East Africa Limited (the Respondent) imported the subject product under import entry number 23EMKIM400677831, declaring it under HS Code 3401.30.00.
3. On 19th July 2023, the Appellant issued a Tariff Ruling reclassifying the product to HS Code 3304.99.00. This reclassification attracted an Excise Duty of 15%, amounting to KES 416,565, which the Respondent paid under protest. The Respondent’s objection of 24th July 2023 to the Appellant’s (Commissioner’s) decision was rejected by the Appellant on 1st August 2023.
4. Dissatisfied with the Commissioner’s decision, the Respondent vide a Notice of Appeal dated 14 September 2023 appealed to the Tribunal. On 1st August 2024, the Tribunal delivered its judgment and allowed the Respondent’s appeal, holding that the product “Garnier Pure Active 3-in-1 Charcoal” was properly classifiable under HS Code 3401.30.00 and not HS Code 3304.99.00 as had been reclassified by the Appellant.
The Appeal
5. Aggrieved with the decision of the Tribunal, the Appellant lodged the present appeal raising the following grounds that:
i. The Tribunal erred in law and fact in finding that Garnier Skin Active Pure Active 3-in-1 Charcoal is classifiable under HS Code 3401.30.00 instead of HS Code 3304.99.00.
ii. The Tribunal erred in law and fact in failing to find that the product, Garnier Skin Active Pure Active 3-in-1 Charcoal, is essentially a dermatological product introduced in the market for the sole purpose of unclogging pores, removing excess oil, while exfoliating to visibly reduce the appearance of blackheads and help to protect against their re-appearance.
iii. The Tribunal erred in law and fact in failing to observe and/or find that surfactants are just chemical compounds known for their ability to lower the surface tension in water, which are normally found in all forms of soaps and detergents, thus their composition in the subject product is inconsequential insofar as what the product is designed to achieve.
iv. The Tribunal erred in law and fact by finding that Charcoal powder, polyglyceryl-10 stearate, polyglyceryl-10 myristate, polyglyceryl, and Zinc Gluconate are also surfactants.
v. The Tribunal failed to appreciate the product catalogue which indicated the presence of 3 surfactants (Decyl Glocoside, Sodium and PEG-7 Glyceryl Cocoate) against the presence of 5 active compounds (Salicyclic Acid, Tetrasodium EDTA, Charcoal Powder, Sodium Hydroxide and Zinc Gluconate) and therefore, the active compounds determine the purpose which the manufacturer of the product intended the product to be used for.
vi. The Tribunal erred in law and fact in holding that the mere fact that the product contains surfactants, even if in small quantities, ousts the product from heading 33.04.
vii. The Tribunal erred in law and fact in holding that the Appellant herein did not provide any evidence showing the reasoning behind its Review Decision other than the fact that it considered the product as a facial and skin cleansing cream provided under the explanatory notes to heading 33.04.
viii. The Tribunal erred in law by failing to take into consideration the contents of the witness statement of Stella Wangechi Mwangi.
ix. The Tribunal erred in law and fact in holding that the product is a normal soap.”
6. Based on the foregoing grounds, the Appellant prayed to have this appeal allowed with costs, and the Tribunal’s decision set aside. The Appellant further prayed for its review decision dated 1 August 023 to be upheld.
Respondent’s Case
7. The Respondent opposed the appeal through a Statement of Facts dated 28 November 2024.
8. The Respondent raised a Preliminary Objection that the present appeal is time-barred. According to the Respondent, although the Notice of Appeal was filed within time on 30 August 2024, the Memorandum of Appeal was filed on 29 October 2024, some twenty-nine (29) days outside the statutory timeline under Rule 3 of the Tax Appeal Tribunal (Appeals to the High Court) Rules, 2015.
9. The Respondent’s further objection was that the memorandum was not accompanied by the documents required under Rule 5, and that no application for leave to file out of time was made under Rule 4. The Respondent contended that the signed Tribunal judgment had been available on the case tracking system by early September 2024 and that the appeal was therefore fatally defective.
10. On the merits, the Respondent contended that the product (Garnier Skin Active Pure Active 3-in-1 Charcoal) was properly classified under HS Code 3401.30.00, as affirmed by the Tribunal Judgment. The Respondent stated that it demonstrated that the product contained organic surface-active agents (surfactants), which gave it its cleansing efficacy, a fact admitted by the Appellant.
11. Relying on Heading 34.01 of the East African Community Common External Tariff (EAC-CET), the World Customs Organization (WCO) Explanatory Notes (ENs), and the General Interpretative Rules (GIRs), the Respondent maintained that products containing surfactants as active ingredients fall within Heading 34.01 and could not be classified under Heading 33.04.
12. The Respondent asserted that its evidence established that surfactants were present in significantly higher concentrations than the other compounds and that ingredients such as sodium hydroxide and tetrasodium EDTA merely served formulation and stabilization functions.
13. In the premises, the Respondent was adamant that in this case, the Tribunal correctly found that the presence of surfactants ousted the application of Heading 33.04 and upheld classification under HS Code 3401.30.00.
14. The Respondent therefore prayed that the appeal be dismissed with costs and the Tribunal’s judgment of 1 August 4 be upheld.
15. The Appeal proceeded by way of written submissions. The Appellant filed its submissions dated 16 June 2025 (though erroneously titled as “Respondent’s Submissions). The Respondent filed its submissions dated 24 June 2025. The Court will, in this judgment, extensively refer to the submissions.
Analysis and Determination
16. Having analysed the pleadings, submissions, and the applicable law, the Court finds the following to be requiring determination: -
i. Whether the Appeal is Time-Barred;
ii. Whether the Appeal is inadmissible for being on questions of fact; and
iii. Whether the Tribunal erred in law in classifying “Garnier Pure Active 3-in-1 Charcoal” under HS Code 3401.30.00
Whether the Appeal is Time-Barred
17. The Respondent raised a preliminary objection, arguing that the present appeal is time-barred. According to the Respondent, while the Notice of Appeal was filed within the 30-day statutory period on 30th August 2024, the Memorandum of Appeal was filed on 29th October 2024, some 29 days late, contrary to the provisions of Section 32 of the Tax Appeals Tribunal Act, which requires that a memorandum of appeal is to be filed within 30 days from the date of filing the Notice of appeal.
18. The Appellant did not file any submissions in response to the Respondent’s arguments that the appeal was time-barred.
19. The Court notes, from the record, that the Tribunal delivered its Judgment on 1st August 2024, and that the Appellant filed its Notice of Appeal on 30th August 2024, which was within the thirty-day period stipulated under Section 32(1) of the Tax Appeals Tribunal Act, 2013. The controversy in this case concerns the filing of the Memorandum of Appeal.
20. Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015 provides in mandatory terms that:
“The appellant shall, within thirty days after the date of service of a notice of appeal under section 32(1), file a memorandum of appeal with the Registrar and serve a copy on the respondent.”
21. In this case, the Memorandum of Appeal was filed on 29th October 2024, which was obviously outside the statutory period, and without a formal application for extension of time under Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015, which permits extension of time for filing a memorandum of appeal. On a strict application of the law, the appeal is time-barred.
22. Ordinarily, an appeal filed outside the prescribed timelines without leave would be incompetent. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR underscored the centrality of timelines, observing that courts cannot be invited to sanitise illegality occasioned by non-compliance with statutory time limits.
23. However, tax litigation occupies a distinct space in public law. Unlike private disputes, tax appeals often raise issues of statutory interpretation, uniform application of tax law, and significant public revenue implications, the resolution of which transcends the interests of the immediate parties.
24. Article 159(2)(d) of the Constitution commands courts to administer justice without undue regard to procedural technicalities. While it is settled that the provision is not a panacea for all ills, it is equally settled that the courts’ exercise of the jurisdiction under Article 159 of the Constitution is unfettered, especially where procedural technicalities pose an impediment to the administration of justice. In Muyonga v Public Service Commission & another [2021] KECA 216 (KLR), the Court observed that:
“The principles that guide the Court in the exercise of its mandate under the above provision have also been crystallized by case law. We take it from the cases of Jaldesa Tuke Dabelo vs. IEBC & Another [2015] eKLR; Raila Odinga and 5 Others vs. IEBC & 3 Others [2013] eKLR; Lemanken Arata vs. Harum Meita Mei Lempaka & 2 Others [2014]eKLR; Patricia Cherotich Sawe vs. IEBC & 4 Others [2015]eKLR that the exercise of the jurisdiction under Article 159 of the Constitution is unfettered especially where procedural technicalities pose an impediment to the administration of justice save that Article 159(2)(d) of the Constitution is not a panacea for all procedural ills.” [emphasis added].
25. In the realm of tax law, the Court in Magenta (K) Limited v Commissioner of Domestic Taxes (High Court Income Tax Appeal No. E244 of 2024), this Court, upholding the need for substantive justice, held that:
“The proper approach… is that before dismissing, striking out, or even allowing a tax appeal on the basis of a procedural technicality, it is prudent … to first consider whether, on the merits, the taxes assessed are lawfully payable. The outcome of this initial inquiry should then inform the subsequent determination as to whether the procedural lapse affects the……… jurisdiction or causes material prejudice to the opposing party.
Substantive tax statutes (statutes imposing taxes) must be strictly interpreted. A taxpayer should not be subjected to tax unless it is clearly and unequivocally mandated by the language of the statute. Conversely, no tax should be waived or foregone where the clear provisions of the taxing statute impose such a liability. This reflects the spirit of Article 210 of the Constitution, which requires that no tax may be imposed, waived, or varied except as provided by law.
Applying the foregoing principles to the present case, I am hesitant to adopt an interpretation that elevates the procedural tax laws (the Tax Procedures Act and the Tax Appeals Tribunal Act) above the substantive tax statutes, in this case, the Income Tax Act and the Value Added Tax Act, the Excise Duty Act, and the [East African Community Customs Management Act]. It is these substantive tax statutes that impose or waive tax liability. A construction of procedural law that results in the imposition of tax where none is authorized by substantive law would amount to substantive injustice and cannot be sustained.
Conversely, an interpretation of a procedural tax law that allows a taxpayer to avoid liability where tax is legally due under a substantive tax law would likewise be unjust and contrary to public policy. Both extremes undermine the coherence and integrity of the tax system and ought not to be upheld.”
26. Similarly In Acorp Gifts Kenya Limited v Commissioner of Domestic Taxes [2024] KEHC 15334 (KLR), this Court stated that:
“It is settled law that rules of procedure are intended to serve as the handmaidens of justice and not to defeat it. I fully associate with the decision in Henry N Gichuru vs. the Minister for Health the Kenyatta National Hospital Board (supra), where the court stated a complaint or objection based on procedural transgressions would only be upheld where such a transgression would result in injustice, hardship, or prejudice to a party objecting.”
27. The Court further stated that:
“In the instant case, I am of the view that no prejudice or injustice will be suffered by the Respondent in having the Commissioner’s Objection Decision/Invalidation Notice of 20th January 2022 placed before the Tribunal for consideration on merits. In fact, none was raised by the Respondent, either at the Tribunal or in this appeal. On the contrary, the failure by the Tribunal to consider whether or not the Commissioner’s invalidation notice was properly issued is likely to occasion significant injustice to the Appellant, particularly, if the Tribunal were to make a finding that the documents supplied by the taxpayer (Appellant) could to some degree (even if not fully), explain the Appellant’s position in respect of the Commissioner’s tax Assessment.”
28. In the present case, the question for determination – the correct customs tariff classification of imported products (“Garnier Skin Active Pure Active 3-in-1 Charcoal”), transcends beyond the narrow interests of the parties in the present appeal, and affects the other traders, since such a classification establishes a normative standard that applies uniformly to all importers dealing in similar goods.
29. To dispose of such a dispute on technical grounds would therefore leave unresolved questions of statutory and international tariff interpretation, risk entrenching inconsistent or erroneous classifications, and undermine the harmonised trading system that the EAC-CET and the HS are designed to uphold.
30. In light of the foregoing, the Court is of the considered view that the delay in filing the Memorandum of Appeal, though unexplained by a formal application, was not inordinate. Further, the Court notes that the Respondent did not demonstrate any specific prejudice occasioned by the delay. More importantly, as pointed out hereinabove, the appeal raises questions concerning tariff classification and the interpretation of the Common External Tariff, matters with potential systemic revenue implications that extend beyond the parties before the Court.
31. Accordingly, while the Court finds that the appeal was filed out of time and therefore is technically time-barred, it shall nonetheless, in the exercise of its judicial discretion, admit the same and proceed to determine it substantively.
Whether the Appeal is inadmissible for being on questions of fact
32. The Respondent contended that the present appeal is inadmissible for raising questions of fact contrary to Section 56(2) of the Tax Procedures Act.
33. Again, no submissions were made by the Appellant in response to this contention.
34. Notwithstanding the absence of submissions by the Appellant, the Court has nonetheless considered the issue and finds no merit in the Respondent’s objection.
35. In the first place, the Tax Procedures Act does not apply to customs matters. Appeals arising from decisions of the Commissioner in customs matters are exclusively governed by the East African Community Customs Management Act, 2004 (EACCMA), particularly Sections 229 to 231, as read together with the Tax Appeals Tribunal Act and the Rules made thereunder.
36. The long title to the Tax Procedures Act states that it is:
“[A]n Act of Parliament to harmonise and consolidate the procedural rules for the administration of tax laws in Kenya, and for connected purposes.” [emphasis added].
37. Section 3 of the Tax Procedures Act defines “tax law” as: -
(a) this Act;
(b) the Income Tax Act (Cap. 470), Value Added Tax Act (Cap. 476), Excise Duty Act (Cap. 472) and Miscellaneous Fees and Levies Act (Cap. 469C); and
(c) any Regulations or other subsidiary legislation made under this Act or the Income Tax Act (Cap. 470), Value Added Tax Act (Cap. 476), Excise Duty Act (Cap. 472), and Miscellaneous Fees and Levies Act (Cap. 469C);
38. From the foregoing definition, it is evident that the Tax Procedures Act harmonises procedural rules only in respect of the statutes expressly listed therein, namely the Income Tax Act, the Value Added Tax Act, the Excise Duty Act, and the Miscellaneous Fees and Levies Act, together with subsidiary legislation made under those Acts.
39. The East African Community Customs Management Act (EACCMA) is conspicuously absent from this definition. The reason is self-evident: the EACCMA is a regional statute enacted pursuant to the Treaty for the Establishment of the East African Community, and customs procedures are governed under a distinct and harmonised legal framework applicable across Partner States, including the East African Community Customs Management Regulations, 2010.
40. Section 230(1) and (2) of the EACCMA grants a person dissatisfied with a decision of the Commissioner made under Section 229 a right of appeal to the Tax Appeals Tribunal within forty-five (45) days of receipt of the decision.
41. Section 231 of the EACCMA further obligates Partner States to enact legislation establishing a tribunal to hear appeals lodged pursuant to Section 230. In compliance with this obligation, Kenya enacted the Tax Appeals Tribunal Act.
42. Section 32 of that Tax Appeals Tribunal Act provides for appeals from the Tribunal to the High Court, but does not restrict such appeals to questions of law only. It provides:
“32. Appeals to the High Court on decisions of the Tribunal
(1) A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party…...
(2) The High Court shall hear appeals made under this section in accordance with rules set out by the Chief Justice.”
43. From the foregoing, there is therefore no provision in the EACCMA, the Tax Appeals Tribunal Act, or the Tax Appeals Tribunal (Appeals to the High Court) Rules that limits appeals from the Tribunal to questions of law only. Had the legislature intended to impose such a limitation, it would have done so expressly, as it has in other statutory contexts. Consequently, the Court cannot read into those statutes a restriction that the legislature deliberately omitted.
44. It follows that Section 56(2) of the Tax Procedures Act does not apply to customs appeals, and the Respondent’s objection on that basis fails.
45. Secondly, even assuming, purely for argument’s sake, that Section 56(2) of the Tax Procedures Act were applicable, the question would still arise whether the issues raised in the present appeal amount to questions of law.
46. The Court takes the view that the classification of goods for customs purposes is not a purely factual exercise. It entails the interpretation and application of statutory and treaty-based instruments, including the EACCMA, the East African Community Common External Tariff (CET), and the General Rules for the Interpretation of the Harmonized System (GIRs).
47. The CET is a binding legal instrument adopted pursuant to the Treaty for the Establishment of the East African Community and has the force of law within Kenya by virtue of the EACCMA. Its interpretation and application, therefore, raise questions of law.
48. In the present appeal, the Appellant does not merely challenge the Tribunal’s factual findings regarding the composition of the product. Rather, the appeal raises substantive legal questions concerning: -
i. the interpretation of Heading 34.01 vis-à-vis Heading 33.04 of the CET;
ii. the application of the General Rules for Interpretation, particularly Rules 1 and 3; and
iii. the legal significance and tariff consequences of the presence of surfactants/active compounds under the CET framework.
49. These are questions directed at the correct construction of the CET and the GIRs and at whether the Tribunal applied the governing legal instruments in accordance with the law. They are, by their nature, questions of law or, at the very least, mixed questions in which the legal element is dominant.
50. The Court accordingly finds that the appeal raises bona fide questions of law and is therefore admissible.
Whether the Tribunal erred in law in classifying Garnier Pure Active 3-in-1 Charcoal under HS Code 3401.30.00
51. This question forms the substratum of the appeal. The Court will first set out the parties' submissions on the issue before proceeding to its analysis.
52. The Appellant contended that the Tribunal erred in classifying Garnier Pure Active 3-in-1 Charcoal under HS Code 3401.30.00, and that the correct tariff classification is HS Code 3304.99.00 as a preparation for the care of the skin (other than medicaments). It was urged that, on the face of the product catalogue, labelling, and formulation, the product is positioned and functions as a dermatological preparation intended to unclog pores, exfoliate, reduce blackheads, and prevent their recurrence, thereby situating it within heading 33.04 when read with GIR 1 and the relevant Chapter Notes.
53. Relying on GIR 1, the Appellant submitted that classification must be determined by the terms of the headings and any relevant section or chapter notes, and that the objective characteristics (active compounds including salicylic acid, zinc gluconate, and charcoal) together with the product’s intended dermatological use anchor the product under heading 33.04.
54. Relying on GIR 1, the Appellant submitted that classification must be determined by the terms of the headings and any relevant Section or Chapter Notes, and that the product’s objective characteristics—particularly the presence of active compounds such as salicylic acid, zinc gluconate, and charcoal—together with its dermatological function, anchor it under heading 33.04.
55. Citing, inter alia, Commissioner of Her Majesty’s Revenue & Customs v Flir AB (2009) and VTech Electronics (UK) PLC v Commissioner of Customs and Excise (2003), the Appellant argued that customs classification must be based on the objective characteristics of the goods at the time of importation.
56. The Appellant challenged the Tribunal’s reliance on the presence of surfactants, contending that surfactants are universal in cosmetic and skin-care products and that their mere presence does not metamorphose a skin-care preparation into a washing preparation under heading 34.01. It argued that, even if GIR 3 were reached, the product’s essential character is imparted by the dermatological actives rather than the surfactants.
57. The Appellant further argued that the Tribunal misdirected itself by treating the presence of surfactants, irrespective of their role in the formulation, as dispositive, thereby excluding heading 33.04 contrary to the hierarchical structure of the GIRs, which begins, and ordinarily ends, with GIR 1.
58. The Respondent, on its part, supported the Tribunal’s conclusion that the product falls under HS Code 3401.30.00, as it contains organic surface active agents (surfactants) which provide the cleansing efficacy, thus placing it squarely within the scope of heading 34.01 and the relevant WCO Explanatory Notes.
59. The Respondent emphasised that heading 34.01 covers preparations for washing the skin in liquid or cream form, where the active component consists wholly or partly of synthetic organic surface active agents. They submitted that expert evidence was produced before the Tribunal showing that the product contains three surfactants (Decyl Glucoside, Sodium Laureth Sulfate, and PEG 7 Glyceryl Cocoate) present in concentrations far exceeding the dermatological ingredients relied upon by the Appellant.
60. The Respondent further submitted that the Appellant tendered no laboratory analysis, technical evidence, or expert testimony to rebut this evidence, and that the Tribunal was therefore entitled, under section 23(2) of the Tax Appeals Tribunal Act, to prefer the Respondent’s expert evidence.
61. The Respondent also contended that the Tribunal correctly applied GIR 1, the Explanatory Notes, and international classification principles, and that reliance on marketing claims or product positioning by the Appellant was misplaced, since classification turns on objective characteristics at the time of importation.
62. The Respondent relied on Kenyan tariff classification jurisprudence, such as the case of Sollatek Electronics Kenya Limited v Commissioner of Customs & Border Control, Appeal No. 142 of 2022, which affirms that the HS, GIRs, and Explanatory Notes constitute the controlling legal framework.
63. First, it is critical to point out that classification of goods for customs purposes in the East African Community is governed by the EAC Common External Tariff (CET), which adopts the Harmonized System (HS) developed under the auspices of the World Customs Organization. Pursuant to the Protocol establishing the EAC Customs Union, classification must strictly follow the General Rules for the Interpretation (GIRs).
64. The Court of Appeal Commissioner of Customs and Excise v Export Trading Company Limited [2019] KECA 1039 (KLR), citing among others, the High Court decision in the case of Republic vs. Commissioner General & Another Ex-Parte Awal Ltd [2008] eKLR, recognized the application within the Kenyan legal system of the Harmonised Commodity Description and Coding System provided under WCO and adopted the EAC CET, stating that:
“We have considered the persuasive dicta of the High Court in Republic vs. Commissioner General & Another Ex-Parte Awal Ltd [2008] eKLR, where the court faced, with a dispute on product classification expressed itself as follows:
“… the Respondents had the statutory duty to impose duty according to the tariff classification provided by law under the Customs and Excise Act and under the Harmonised Commodity Description and Coding System provided by the World Customs Organization explanatory notes in which Kenya is a signatory.”
In this matter, we note the emerging jurisprudence on the role of the World Customs Organization in product classification insofar as enforcement of the EAC Customs Management Act is concerned. We have also considered the persuasive decision of the High Court in Beta Healthcare International Ltd vs. Commissioner of Customs Services [2010] eKLR and Republic vs. Commissioner General & Another Ex-Parte Awal Ltd [2008] eKLR.”
65. Similarly, in Commissioner of Customs and Border Control v Kenya Breweries Limited [2022] KEHC 14570 (KLR), the Court (Majanja J), recognised that the EAC Partner States adopted the Harmonized System to ensure uniform and predictable classification of goods in international trade. The learned judge stated that:
“I do not think it is in dispute that the world community, in an effort to facilitate international trade, have over the years developed a common and harmonized classification system as a means for a systematic naming or enumerating of all goods found in international trade along with international rules and interpretations. The classification system currently in use is called the Harmonized Commodity Description and Coding System (“the Harmonized System”) and the EAC partner States agreed to adopt it when they signed the Treaty for the establishment of the EAC on November 30, 1999.”
66. In the present appeal, the central question is whether the Tribunal correctly classified Garnier Pure Active 3-in-1 Charcoal under HS Code 3401.30.00, or whether the product properly falls under HS Code 3304.99.00.
67. It is common ground that customs tariff classification is governed by the GIRs. For completeness, and to place the analysis in its proper legal context, the Court reproduces the relevant Rules below:
“GENERAL RULES FOR THE INTERPRETATION OF THE HARMONIZED SYSTEM
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
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1. This appeal arises from the Judgment of the Tax Appeals Tribunal (“the Tribunal”) delivered on 1st August 2024, whereby the Tribunal allowed the Respondent’s appeal and held that the product “ Garnier Pure Active 3-in-1 Charcoal” was properly classifiable under HS Code 3401.30.00 and not HS Code 3304.99.00 as had been reclassified by the Appellant.
2. The background of the dispute is that L’Oréal East Africa Limited (the Respondent) imported the subject product under import entry number 23EMKIM400677831, declaring it under HS Code 3401.30.00.
3. On 19th July 2023, the Appellant issued a Tariff Ruling reclassifying the product to HS Code 3304.99.00. This reclassification attracted an Excise Duty of 15%, amounting to KES 416,565, which the Respondent paid under protest. The Respondent’s objection of 24th July 2023 to the Appellant’s (Commissioner’s) decision was rejected by the Appellant on 1st August 2023.
4. Dissatisfied with the Commissioner’s decision, the Respondent vide a Notice of Appeal dated 14 September 2023 appealed to the Tribunal. On 1st August 2024, the Tribunal delivered its judgment and allowed the Respondent’s appeal, holding that the product “Garnier Pure Active 3-in-1 Charcoal” was properly classifiable under HS Code 3401.30.00 and not HS Code 3304.99.00 as had been reclassified by the Appellant.
The Appeal
5. Aggrieved with the decision of the Tribunal, the Appellant lodged the present appeal raising the following grounds that:
i. The Tribunal erred in law and fact in finding that Garnier Skin Active Pure Active 3-in-1 Charcoal is classifiable under HS Code 3401.30.00 instead of HS Code 3304.99.00.
ii. The Tribunal erred in law and fact in failing to find that the product, Garnier Skin Active Pure Active 3-in-1 Charcoal, is essentially a dermatological product introduced in the market for the sole purpose of unclogging pores, removing excess oil, while exfoliating to visibly reduce the appearance of blackheads and help to protect against their re-appearance.
iii. The Tribunal erred in law and fact in failing to observe and/or find that surfactants are just chemical compounds known for their ability to lower the surface tension in water, which are normally found in all forms of soaps and detergents, thus their composition in the subject product is inconsequential insofar as what the product is designed to achieve.
iv. The Tribunal erred in law and fact by finding that Charcoal powder, polyglyceryl-10 stearate, polyglyceryl-10 myristate, polyglyceryl, and Zinc Gluconate are also surfactants.
v. The Tribunal failed to appreciate the product catalogue which indicated the presence of 3 surfactants (Decyl Glocoside, Sodium and PEG-7 Glyceryl Cocoate) against the presence of 5 active compounds (Salicyclic Acid, Tetrasodium EDTA, Charcoal Powder, Sodium Hydroxide and Zinc Gluconate) and therefore, the active compounds determine the purpose which the manufacturer of the product intended the product to be used for.
vi. The Tribunal erred in law and fact in holding that the mere fact that the product contains surfactants, even if in small quantities, ousts the product from heading 33.04.
vii. The Tribunal erred in law and fact in holding that the Appellant herein did not provide any evidence showing the reasoning behind its Review Decision other than the fact that it considered the product as a facial and skin cleansing cream provided under the explanatory notes to heading 33.04.
viii. The Tribunal erred in law by failing to take into consideration the contents of the witness statement of Stella Wangechi Mwangi.
ix. The Tribunal erred in law and fact in holding that the product is a normal soap.”
6. Based on the foregoing grounds, the Appellant prayed to have this appeal allowed with costs, and the Tribunal’s decision set aside. The Appellant further prayed for its review decision dated 1 August 023 to be upheld.
Respondent’s Case
7. The Respondent opposed the appeal through a Statement of Facts dated 28 November 2024.
8. The Respondent raised a Preliminary Objection that the present appeal is time-barred. According to the Respondent, although the Notice of Appeal was filed within time on 30 August 2024, the Memorandum of Appeal was filed on 29 October 2024, some twenty-nine (29) days outside the statutory timeline under Rule 3 of the Tax Appeal Tribunal (Appeals to the High Court) Rules, 2015.
9. The Respondent’s further objection was that the memorandum was not accompanied by the documents required under Rule 5, and that no application for leave to file out of time was made under Rule 4. The Respondent contended that the signed Tribunal judgment had been available on the case tracking system by early September 2024 and that the appeal was therefore fatally defective.
10. On the merits, the Respondent contended that the product (Garnier Skin Active Pure Active 3-in-1 Charcoal) was properly classified under HS Code 3401.30.00, as affirmed by the Tribunal Judgment. The Respondent stated that it demonstrated that the product contained organic surface-active agents (surfactants), which gave it its cleansing efficacy, a fact admitted by the Appellant.
11. Relying on Heading 34.01 of the East African Community Common External Tariff (EAC-CET), the World Customs Organization (WCO) Explanatory Notes (ENs), and the General Interpretative Rules (GIRs), the Respondent maintained that products containing surfactants as active ingredients fall within Heading 34.01 and could not be classified under Heading 33.04.
12. The Respondent asserted that its evidence established that surfactants were present in significantly higher concentrations than the other compounds and that ingredients such as sodium hydroxide and tetrasodium EDTA merely served formulation and stabilization functions.
13. In the premises, the Respondent was adamant that in this case, the Tribunal correctly found that the presence of surfactants ousted the application of Heading 33.04 and upheld classification under HS Code 3401.30.00.
14. The Respondent therefore prayed that the appeal be dismissed with costs and the Tribunal’s judgment of 1 August 4 be upheld.
15. The Appeal proceeded by way of written submissions. The Appellant filed its submissions dated 16 June 2025 (though erroneously titled as “Respondent’s Submissions). The Respondent filed its submissions dated 24 June 2025. The Court will, in this judgment, extensively refer to the submissions.
Analysis and Determination
16. Having analysed the pleadings, submissions, and the applicable law, the Court finds the following to be requiring determination: -
i. Whether the Appeal is Time-Barred;
ii. Whether the Appeal is inadmissible for being on questions of fact; and
iii. Whether the Tribunal erred in law in classifying “Garnier Pure Active 3-in-1 Charcoal” under HS Code 3401.30.00
Whether the Appeal is Time-Barred
17. The Respondent raised a preliminary objection, arguing that the present appeal is time-barred. According to the Respondent, while the Notice of Appeal was filed within the 30-day statutory period on 30th August 2024, the Memorandum of Appeal was filed on 29th October 2024, some 29 days late, contrary to the provisions of Section 32 of the Tax Appeals Tribunal Act, which requires that a memorandum of appeal is to be filed within 30 days from the date of filing the Notice of appeal.
18. The Appellant did not file any submissions in response to the Respondent’s arguments that the appeal was time-barred.
19. The Court notes, from the record, that the Tribunal delivered its Judgment on 1st August 2024, and that the Appellant filed its Notice of Appeal on 30th August 2024, which was within the thirty-day period stipulated under Section 32(1) of the Tax Appeals Tribunal Act, 2013. The controversy in this case concerns the filing of the Memorandum of Appeal.
20. Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015 provides in mandatory terms that:
“The appellant shall, within thirty days after the date of service of a notice of appeal under section 32(1), file a memorandum of appeal with the Registrar and serve a copy on the respondent.”
21. In this case, the Memorandum of Appeal was filed on 29th October 2024, which was obviously outside the statutory period, and without a formal application for extension of time under Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015, which permits extension of time for filing a memorandum of appeal. On a strict application of the law, the appeal is time-barred.
22. Ordinarily, an appeal filed outside the prescribed timelines without leave would be incompetent. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR underscored the centrality of timelines, observing that courts cannot be invited to sanitise illegality occasioned by non-compliance with statutory time limits.
23. However, tax litigation occupies a distinct space in public law. Unlike private disputes, tax appeals often raise issues of statutory interpretation, uniform application of tax law, and significant public revenue implications, the resolution of which transcends the interests of the immediate parties.
24. Article 159(2)(d) of the Constitution commands courts to administer justice without undue regard to procedural technicalities. While it is settled that the provision is not a panacea for all ills, it is equally settled that the courts’ exercise of the jurisdiction under Article 159 of the Constitution is unfettered, especially where procedural technicalities pose an impediment to the administration of justice. In Muyonga v Public Service Commission & another [2021] KECA 216 (KLR), the Court observed that:
“The principles that guide the Court in the exercise of its mandate under the above provision have also been crystallized by case law. We take it from the cases of Jaldesa Tuke Dabelo vs. IEBC & Another [2015] eKLR; Raila Odinga and 5 Others vs. IEBC & 3 Others [2013] eKLR; Lemanken Arata vs. Harum Meita Mei Lempaka & 2 Others [2014]eKLR; Patricia Cherotich Sawe vs. IEBC & 4 Others [2015]eKLR that the exercise of the jurisdiction under Article 159 of the Constitution is unfettered especially where procedural technicalities pose an impediment to the administration of justice save that Article 159(2)(d) of the Constitution is not a panacea for all procedural ills.” [emphasis added].
25. In the realm of tax law, the Court in Magenta (K) Limited v Commissioner of Domestic Taxes (High Court Income Tax Appeal No. E244 of 2024), this Court, upholding the need for substantive justice, held that:
“The proper approach… is that before dismissing, striking out, or even allowing a tax appeal on the basis of a procedural technicality, it is prudent … to first consider whether, on the merits, the taxes assessed are lawfully payable. The outcome of this initial inquiry should then inform the subsequent determination as to whether the procedural lapse affects the……… jurisdiction or causes material prejudice to the opposing party.
Substantive tax statutes (statutes imposing taxes) must be strictly interpreted. A taxpayer should not be subjected to tax unless it is clearly and unequivocally mandated by the language of the statute. Conversely, no tax should be waived or foregone where the clear provisions of the taxing statute impose such a liability. This reflects the spirit of Article 210 of the Constitution, which requires that no tax may be imposed, waived, or varied except as provided by law.
Applying the foregoing principles to the present case, I am hesitant to adopt an interpretation that elevates the procedural tax laws (the Tax Procedures Act and the Tax Appeals Tribunal Act) above the substantive tax statutes, in this case, the Income Tax Act and the Value Added Tax Act, the Excise Duty Act, and the [East African Community Customs Management Act]. It is these substantive tax statutes that impose or waive tax liability. A construction of procedural law that results in the imposition of tax where none is authorized by substantive law would amount to substantive injustice and cannot be sustained.
Conversely, an interpretation of a procedural tax law that allows a taxpayer to avoid liability where tax is legally due under a substantive tax law would likewise be unjust and contrary to public policy. Both extremes undermine the coherence and integrity of the tax system and ought not to be upheld.”
26. Similarly In Acorp Gifts Kenya Limited v Commissioner of Domestic Taxes [2024] KEHC 15334 (KLR), this Court stated that:
“It is settled law that rules of procedure are intended to serve as the handmaidens of justice and not to defeat it. I fully associate with the decision in Henry N Gichuru vs. the Minister for Health the Kenyatta National Hospital Board (supra), where the court stated a complaint or objection based on procedural transgressions would only be upheld where such a transgression would result in injustice, hardship, or prejudice to a party objecting.”
27. The Court further stated that:
“In the instant case, I am of the view that no prejudice or injustice will be suffered by the Respondent in having the Commissioner’s Objection Decision/Invalidation Notice of 20th January 2022 placed before the Tribunal for consideration on merits. In fact, none was raised by the Respondent, either at the Tribunal or in this appeal. On the contrary, the failure by the Tribunal to consider whether or not the Commissioner’s invalidation notice was properly issued is likely to occasion significant injustice to the Appellant, particularly, if the Tribunal were to make a finding that the documents supplied by the taxpayer (Appellant) could to some degree (even if not fully), explain the Appellant’s position in respect of the Commissioner’s tax Assessment.”
28. In the present case, the question for determination – the correct customs tariff classification of imported products (“Garnier Skin Active Pure Active 3-in-1 Charcoal”), transcends beyond the narrow interests of the parties in the present appeal, and affects the other traders, since such a classification establishes a normative standard that applies uniformly to all importers dealing in similar goods.
29. To dispose of such a dispute on technical grounds would therefore leave unresolved questions of statutory and international tariff interpretation, risk entrenching inconsistent or erroneous classifications, and undermine the harmonised trading system that the EAC-CET and the HS are designed to uphold.
30. In light of the foregoing, the Court is of the considered view that the delay in filing the Memorandum of Appeal, though unexplained by a formal application, was not inordinate. Further, the Court notes that the Respondent did not demonstrate any specific prejudice occasioned by the delay. More importantly, as pointed out hereinabove, the appeal raises questions concerning tariff classification and the interpretation of the Common External Tariff, matters with potential systemic revenue implications that extend beyond the parties before the Court.
31. Accordingly, while the Court finds that the appeal was filed out of time and therefore is technically time-barred, it shall nonetheless, in the exercise of its judicial discretion, admit the same and proceed to determine it substantively.
Whether the Appeal is inadmissible for being on questions of fact
32. The Respondent contended that the present appeal is inadmissible for raising questions of fact contrary to Section 56(2) of the Tax Procedures Act.
33. Again, no submissions were made by the Appellant in response to this contention.
34. Notwithstanding the absence of submissions by the Appellant, the Court has nonetheless considered the issue and finds no merit in the Respondent’s objection.
35. In the first place, the Tax Procedures Act does not apply to customs matters. Appeals arising from decisions of the Commissioner in customs matters are exclusively governed by the East African Community Customs Management Act, 2004 (EACCMA), particularly Sections 229 to 231, as read together with the Tax Appeals Tribunal Act and the Rules made thereunder.
36. The long title to the Tax Procedures Act states that it is:
“[A]n Act of Parliament to harmonise and consolidate the procedural rules for the administration of tax laws in Kenya, and for connected purposes.” [emphasis added].
37. Section 3 of the Tax Procedures Act defines “tax law” as: -
(a) this Act;
(b) the Income Tax Act (Cap. 470), Value Added Tax Act (Cap. 476), Excise Duty Act (Cap. 472) and Miscellaneous Fees and Levies Act (Cap. 469C); and
(c) any Regulations or other subsidiary legislation made under this Act or the Income Tax Act (Cap. 470), Value Added Tax Act (Cap. 476), Excise Duty Act (Cap. 472), and Miscellaneous Fees and Levies Act (Cap. 469C);
38. From the foregoing definition, it is evident that the Tax Procedures Act harmonises procedural rules only in respect of the statutes expressly listed therein, namely the Income Tax Act, the Value Added Tax Act, the Excise Duty Act, and the Miscellaneous Fees and Levies Act, together with subsidiary legislation made under those Acts.
39. The East African Community Customs Management Act (EACCMA) is conspicuously absent from this definition. The reason is self-evident: the EACCMA is a regional statute enacted pursuant to the Treaty for the Establishment of the East African Community, and customs procedures are governed under a distinct and harmonised legal framework applicable across Partner States, including the East African Community Customs Management Regulations, 2010.
40. Section 230(1) and (2) of the EACCMA grants a person dissatisfied with a decision of the Commissioner made under Section 229 a right of appeal to the Tax Appeals Tribunal within forty-five (45) days of receipt of the decision.
41. Section 231 of the EACCMA further obligates Partner States to enact legislation establishing a tribunal to hear appeals lodged pursuant to Section 230. In compliance with this obligation, Kenya enacted the Tax Appeals Tribunal Act.
42. Section 32 of that Tax Appeals Tribunal Act provides for appeals from the Tribunal to the High Court, but does not restrict such appeals to questions of law only. It provides:
“32. Appeals to the High Court on decisions of the Tribunal
(1) A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party…...
(2) The High Court shall hear appeals made under this section in accordance with rules set out by the Chief Justice.”
43. From the foregoing, there is therefore no provision in the EACCMA, the Tax Appeals Tribunal Act, or the Tax Appeals Tribunal (Appeals to the High Court) Rules that limits appeals from the Tribunal to questions of law only. Had the legislature intended to impose such a limitation, it would have done so expressly, as it has in other statutory contexts. Consequently, the Court cannot read into those statutes a restriction that the legislature deliberately omitted.
44. It follows that Section 56(2) of the Tax Procedures Act does not apply to customs appeals, and the Respondent’s objection on that basis fails.
45. Secondly, even assuming, purely for argument’s sake, that Section 56(2) of the Tax Procedures Act were applicable, the question would still arise whether the issues raised in the present appeal amount to questions of law.
46. The Court takes the view that the classification of goods for customs purposes is not a purely factual exercise. It entails the interpretation and application of statutory and treaty-based instruments, including the EACCMA, the East African Community Common External Tariff (CET), and the General Rules for the Interpretation of the Harmonized System (GIRs).
47. The CET is a binding legal instrument adopted pursuant to the Treaty for the Establishment of the East African Community and has the force of law within Kenya by virtue of the EACCMA. Its interpretation and application, therefore, raise questions of law.
48. In the present appeal, the Appellant does not merely challenge the Tribunal’s factual findings regarding the composition of the product. Rather, the appeal raises substantive legal questions concerning: -
i. the interpretation of Heading 34.01 vis-à-vis Heading 33.04 of the CET;
ii. the application of the General Rules for Interpretation, particularly Rules 1 and 3; and
iii. the legal significance and tariff consequences of the presence of surfactants/active compounds under the CET framework.
49. These are questions directed at the correct construction of the CET and the GIRs and at whether the Tribunal applied the governing legal instruments in accordance with the law. They are, by their nature, questions of law or, at the very least, mixed questions in which the legal element is dominant.
50. The Court accordingly finds that the appeal raises bona fide questions of law and is therefore admissible.
Whether the Tribunal erred in law in classifying Garnier Pure Active 3-in-1 Charcoal under HS Code 3401.30.00
51. This question forms the substratum of the appeal. The Court will first set out the parties' submissions on the issue before proceeding to its analysis.
52. The Appellant contended that the Tribunal erred in classifying Garnier Pure Active 3-in-1 Charcoal under HS Code 3401.30.00, and that the correct tariff classification is HS Code 3304.99.00 as a preparation for the care of the skin (other than medicaments). It was urged that, on the face of the product catalogue, labelling, and formulation, the product is positioned and functions as a dermatological preparation intended to unclog pores, exfoliate, reduce blackheads, and prevent their recurrence, thereby situating it within heading 33.04 when read with GIR 1 and the relevant Chapter Notes.
53. Relying on GIR 1, the Appellant submitted that classification must be determined by the terms of the headings and any relevant section or chapter notes, and that the objective characteristics (active compounds including salicylic acid, zinc gluconate, and charcoal) together with the product’s intended dermatological use anchor the product under heading 33.04.
54. Relying on GIR 1, the Appellant submitted that classification must be determined by the terms of the headings and any relevant Section or Chapter Notes, and that the product’s objective characteristics—particularly the presence of active compounds such as salicylic acid, zinc gluconate, and charcoal—together with its dermatological function, anchor it under heading 33.04.
55. Citing, inter alia, Commissioner of Her Majesty’s Revenue & Customs v Flir AB (2009) and VTech Electronics (UK) PLC v Commissioner of Customs and Excise (2003), the Appellant argued that customs classification must be based on the objective characteristics of the goods at the time of importation.
56. The Appellant challenged the Tribunal’s reliance on the presence of surfactants, contending that surfactants are universal in cosmetic and skin-care products and that their mere presence does not metamorphose a skin-care preparation into a washing preparation under heading 34.01. It argued that, even if GIR 3 were reached, the product’s essential character is imparted by the dermatological actives rather than the surfactants.
57. The Appellant further argued that the Tribunal misdirected itself by treating the presence of surfactants, irrespective of their role in the formulation, as dispositive, thereby excluding heading 33.04 contrary to the hierarchical structure of the GIRs, which begins, and ordinarily ends, with GIR 1.
58. The Respondent, on its part, supported the Tribunal’s conclusion that the product falls under HS Code 3401.30.00, as it contains organic surface active agents (surfactants) which provide the cleansing efficacy, thus placing it squarely within the scope of heading 34.01 and the relevant WCO Explanatory Notes.
59. The Respondent emphasised that heading 34.01 covers preparations for washing the skin in liquid or cream form, where the active component consists wholly or partly of synthetic organic surface active agents. They submitted that expert evidence was produced before the Tribunal showing that the product contains three surfactants (Decyl Glucoside, Sodium Laureth Sulfate, and PEG 7 Glyceryl Cocoate) present in concentrations far exceeding the dermatological ingredients relied upon by the Appellant.
60. The Respondent further submitted that the Appellant tendered no laboratory analysis, technical evidence, or expert testimony to rebut this evidence, and that the Tribunal was therefore entitled, under section 23(2) of the Tax Appeals Tribunal Act, to prefer the Respondent’s expert evidence.
61. The Respondent also contended that the Tribunal correctly applied GIR 1, the Explanatory Notes, and international classification principles, and that reliance on marketing claims or product positioning by the Appellant was misplaced, since classification turns on objective characteristics at the time of importation.
62. The Respondent relied on Kenyan tariff classification jurisprudence, such as the case of Sollatek Electronics Kenya Limited v Commissioner of Customs & Border Control, Appeal No. 142 of 2022, which affirms that the HS, GIRs, and Explanatory Notes constitute the controlling legal framework.
63. First, it is critical to point out that classification of goods for customs purposes in the East African Community is governed by the EAC Common External Tariff (CET), which adopts the Harmonized System (HS) developed under the auspices of the World Customs Organization. Pursuant to the Protocol establishing the EAC Customs Union, classification must strictly follow the General Rules for the Interpretation (GIRs).
64. The Court of Appeal Commissioner of Customs and Excise v Export Trading Company Limited [2019] KECA 1039 (KLR), citing among others, the High Court decision in the case of Republic vs. Commissioner General & Another Ex-Parte Awal Ltd [2008] eKLR, recognized the application within the Kenyan legal system of the Harmonised Commodity Description and Coding System provided under WCO and adopted the EAC CET, stating that:
“We have considered the persuasive dicta of the High Court in Republic vs. Commissioner General & Another Ex-Parte Awal Ltd [2008] eKLR, where the court faced, with a dispute on product classification expressed itself as follows:
“… the Respondents had the statutory duty to impose duty according to the tariff classification provided by law under the Customs and Excise Act and under the Harmonised Commodity Description and Coding System provided by the World Customs Organization explanatory notes in which Kenya is a signatory.”
In this matter, we note the emerging jurisprudence on the role of the World Customs Organization in product classification insofar as enforcement of the EAC Customs Management Act is concerned. We have also considered the persuasive decision of the High Court in Beta Healthcare International Ltd vs. Commissioner of Customs Services [2010] eKLR and Republic vs. Commissioner General & Another Ex-Parte Awal Ltd [2008] eKLR.”
65. Similarly, in Commissioner of Customs and Border Control v Kenya Breweries Limited [2022] KEHC 14570 (KLR), the Court (Majanja J), recognised that the EAC Partner States adopted the Harmonized System to ensure uniform and predictable classification of goods in international trade. The learned judge stated that:
“I do not think it is in dispute that the world community, in an effort to facilitate international trade, have over the years developed a common and harmonized classification system as a means for a systematic naming or enumerating of all goods found in international trade along with international rules and interpretations. The classification system currently in use is called the Harmonized Commodity Description and Coding System (“the Harmonized System”) and the EAC partner States agreed to adopt it when they signed the Treaty for the establishment of the EAC on November 30, 1999.”
66. In the present appeal, the central question is whether the Tribunal correctly classified Garnier Pure Active 3-in-1 Charcoal under HS Code 3401.30.00, or whether the product properly falls under HS Code 3304.99.00.
67. It is common ground that customs tariff classification is governed by the GIRs. For completeness, and to place the analysis in its proper legal context, the Court reproduces the relevant Rules below:
“GENERAL RULES FOR THE INTERPRETATION OF THE HARMONIZED SYSTEM
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
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