
    Wilsey Foods, Inc., plaintiff v. United States, defendant Wilsey Foods, Inc., plaintiff v. United States, defendant
    Court No. 92-11-00754
    Court No. 93-12-00818
    (Decided March 16, 1994)
    
      deKieffer Dibble & Horgan, (J. Kevin Horgan) for plaintiff.
    
      Frank W. Hunger, Assistant Attorney General, Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice (Edith Sanchez Shea) for defendant.
   Opinion

Musgrave, Judge:

Upon reviewing the facts contained in the parties’ papers as substantiated at trial by expert testimony, this Court holds that the Customs Service improperly classified the merchandise in question, Wilsey’s White Truffel and Non-Temp White Chips, as food preparations of milk or cream under Item 1901.90.3030 HTSUS, dutiable at the rate of 17.5% ad valorem and subject to a quota described in HTSUS Item 9904.10.60. Plaintiff has overcome the presumption of correctness attached to Customs’ classification and has demonstrated that the correct classification is Item 2106.90.6097 HTSUS. The Court finds as a matter of fact that milk or cream is not the essential ingredient, not the ingredient of chief value, nor is it the preponderent ingredient in Wilsey’s products. All four expert witnesses, including the government’s witnesses testified that Wilsey’s products were comprised chiefly of vegetable fat and sugar and in any event were not considered milk or cream products in the industry. Finding that the government’s classification is incorrect this Court adopts the plaintiffs classification under Item 2106.90.6097 HTSUS as food preparations not elsewhere specified or included * * * other * * * other * * * containing sugar derived from sugar cane and/or sugar beets, dutiable at 10% ad valorem and not subject to a quota. The subsequent question of exclusion need not be reached and the Customs Service is directed not to exclude these products based on the 2106.90.6097 HTSUS classification.  