2 March 2000

Appeal Nos. AP-99-015 to AP-99-025

These are appeals pursuant to section 67 of the Customs Act from decisions of the Deputy Minister of National Revenue (now the Commissioner of the Canada Customs and Revenue Agency) made on March 8, 1999, with respect to 11 shipments of two products, known as GlasPly IV and GlasPly Premier, imported from the United States between April 1996 and February 1997. The issues in the appeals relate both to jurisdiction and to classification.

The Tribunal was asked to decide, first, if the respondent and, hence, the Tribunal have jurisdiction with respect to the classification issue: (1) given that the respondent may have failed to address the designated officer's jurisdiction to classify the goods in issue within the 90-day statutory time period, as prescribed in paragraph 61(a) of the Customs Act, when the respondent made his decisions pursuant to subsection 63(3) of the Customs Act; and (2) given that the respondent may not have acted "with all
due dispatch" .

The classification issue in these appeals is whether the goods in issue are properly classified under tariff item No. 7019.32.10 as thin sheets (voiles), coated or impregnated with asphalt, of a kind used as roofing, as determined by the respondent, or should be classified under tariff item No. 6807.10.00 as articles of asphalt or of similar material (for example, petroleum bitumen or coal tar pitch) in rolls, as claimed by the appellant.

HELD:

The appeals are allowed. The Tribunal can only be legally seized of an appeal if the respondent has properly exercised his jurisdiction. In the present case, the evidence indicates that the jurisdictional authority of the designated officer was addressed in correspondence from the respondent. By rendering a decision on the tariff classification as he did, the respondent implicitly recognized that the designated officer had properly exercised his jurisdiction. The fact that the respondent did not specifically address the issue of the designated officer's jurisdiction in his re-determination of the tariff classification made pursuant to section 63 of the Customs Act, is not, in the Tribunal's view, fatal to the respondent's jurisdiction to render a decision.

With respect to whether the respondent acted "with all due dispatch", the issue is whether the respondent, in making a decision 19 months after the requests for re-determination, acted "with all due dispatch". The appellant has not convinced the Tribunal that a 19-month wait for a re-determination by the respondent is, in this case, unreasonable, particularly given that it is economic rights of a company that are at stake and that the parties corresponded on this matter some 5 months after the appeals were launched. The Tribunal, thus legally seized of the appeals, moved to the classification issue.

The Tribunal held that the goods in issue should be classified under tariff item No. 6807.10.00 as articles of asphalt or of similar material (for example, petroleum bitumen or coal tar pitch) in rolls. The Tribunal relied on Rule 1 of the General Rules for the Interpretation of the Harmonized System, which provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. The evidence shows that the goods in issue are coated with asphalt on both
sides and with a liquid parting agent and are painted with lines, which is more than just a light coating. The two primary components within the fibreglass roof mat are fibreglass and asphalt, the latter accounting for
approximately 70 percent of the overall weight of the product. They are roofing boards within the meaning of Note (2) of the Explanatory Notes to the Harmonized Commodity Description and Coding System to heading No. 68.07, as the roofing felts are flat thin pieces of fabric of raw fibreglass used as part of a roofing system. Exclusion (d) for "thin sheets (voiles)" as per subheading No. 7019.32 does not apply, as the goods do not meet the description for voiles found in the Explanatory