Westlands Trading Limited v Commissioner of Customs and Border Control [2024] KETAT 1438 (KLR)

Westlands Trading Limited v Commissioner of Customs and Border Control (Tax Appeal E746 of 2023) [2024] KETAT 1438 (KLR) (4 October 2024) (Judgment)

Neutral citation: [2024] KETAT 1438 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E746 of 2023

RM Mutuma, Chair, M Makau, Jephthah Njagi, D.K Ngala & T Vikiru, Members

October 4, 2024

Between

Westlands Trading Limited

Appellant

and

Commissioner of Customs and Border Control

Respondent

Judgment

Background 1. The Appellant is a limited liability company in the business of sourcing, importation and supply of various goods from foreign sources into the country.

2. The Respondent is the principal officer appointed under the EACCMA and Kenya Revenue Authority Act and mandated with the responsibility for the administration of the Customs law and the assessment, collection and accounting for customs revenues as an agent of the Government of Kenya.

3. Sometime in 2023 the Appellant imported a consignment of 1250 kg of white crystalline material from Brazil under the brand name “aji-ni moto umami seasoning package” in bags with 25 and in cartons with 200 gm, 100 gm, and 451 gm.

4. The Appellant declared the product under the Tariff 2922. 42 of EACCMA, but when the Respondent conducted a verification exercise reclassified the imported consignment under Tariff 2103. 90. 00 and rendered its decision on 7th September 2023.

5. On 12th September 2023, the Appellant appealed for review of the Respondent’s decision of 7th September 2023 under Section 229 of EACCMA. The Respondent rendered its Review Decision on 6th October 2023 to the Appellant’s review application of 12th September 2023 and upheld its tariff classification of the consignment under Heading 2109. 90.

6. Aggrieved by the Respondent’s decision the Appellant lodged its Appeal on dated and filed on 31st October 2023

THE APPEAL 7. The Appellant filed its Memorandum of Appeal dated and filed on 10th November 2023 and raised the following grounds of Appeal;a.That the Respondent erred in law and fact by reclassifying the Appellant’s consignment from HS Code 2922. 42. 00 which is zero rated, to HS Code 2103. 90. 00, which attracts duty at the rate of 35 %.b.That the Respondent erred in law and fact by ignoring certified chemical analysis issued by the manufacturer of the product, Ajinimoto Do Brasil Industria E Commercio De Alimentos Ltda, and that of KRA laboratory in reclassifying the Appellant’s goods from the declared HS Code 2922. 42. 00 to HS Code 2103. 90. 00. c.That the Respondent erred in law and fact by classifying the Appellant’s goods under HS code 2103. 90. 00 of the EAC/CET on the basis of physical labelling on the goods instead of empirically establishing the nature and chemical composition of the goods by way of laboratory analysis of the samples taken.d.That the Respondent erred in law and fact by presuming that the Appellant’s goods as presented in its packages with intended use was, “other mixed condiments and mixed seasonings”, and therefore falling under HS Tariff classification 2103. 90. 00 but failing to empirically establish or prove the assumption by way of laboratory analysis.e.That the Respondent’s Review Decision of 6th October 2023 is arbitrary, unfair, unjust and devoid of due process thus illegal in so far as it ignored the results or findings of scientific chemical analysis of the samples of the goods under review by various agencies including KRA laboratory that confirmed that the goods were Monosodium Glutamate.f.That the Respondent erred in law and fact by failing to adhere to the General Interpretation Rules for the Classification of Goods of the EAC/CET by classifying the Appellant’s consignment under review under a generalized heading (HS Code 2103. 90. 00) and ignoring a more detailed, specific and descriptive heading (HS Code 2922. 42. 00).g.That the Respondent erred in law and fact by openly manifesting bias and unfairness by classifying the Appellant’s competitors’ imported goods as zero rated while imposing 35% import duty to the Appellant’s products.i.That the Respondent’s Review Decision of 6th October 2023 is unjust and in breach of Article 47 of the Constitution of Kenya, and of the Appellant’s right to legitimate expectation.

The Appellant’s Case 8. The Appellant’s case is set out in its;a.Statement of Facts dated and filed on the 10th November 2023 together with the documents attached thereto; and,b.Written submissions dated and filed on 24th April 2024.

9. The Appellant stated that it imported 1250 kgs of regular crystals of monosodium glutamate from Brazil under the brand name “AJI-NOMOTO UMAMI SEASONING” consignment packaged in bags with 25 kgs and in cartons with 200 gms, 100 gms and 454 gms.

10. It was further stated that upon importation of the consignment, the Appellant declared the consignment under HS Code Tariff No.2922. 42. 00 of EACCMA EAC/CET attracting duty at zero rate and VAT at 16 %.

11. Subsequently the Respondent carried out verification findings and tariff classification on the Appellant’s import entry and issued a ruling to the Appellant vide a letter dated 7th September 2023.

12. The Respondent in its ruling considered the Appellant’s products to be MSG used to enhance flavour in food items but nonetheless proceeded to reclassify it under HS Code 2103. 90. 00. By dint of the same ruling, the Respondent also found that the Appellant’s declared tariff classification under HS Code 2922. 42. 00 in its import entry was at variance the provisions of 2022 EAC/CET.

13. The Appellant sought a review of the Respondent’s tariff classification vide a letter dated 12th September 2023 appealing the entire ruling pursuant to Section 229 of EACCMA.

14. The Respondent upheld its Tariff classification of the consignment vide a letter dated 6th October 2023 on the basis that;a.That the tariff classification was arrived at based on the indication that the product is a ready to use seasoning which enhances the natural flavour of foods providing UMAMI taste and packaged in 50 kg, 200 gm, 100 gm and 454 gm packages.b.The product as presented with the intended use in meat, soups, salads, vegetables and any salted fish is classified in 2022 EAC/CET HS Code 2103. 90. 00 which provides for other mixed condiments and mixed seasonings.

15. On the 13th October 2023, the Respondent issued to the Appellant a demand notice requiring it to pay the recomputed taxes within 14 days failing which it would commence enforcement action. Consequently, the Appellant appealed the Respondent’s Review Decision.

16. The Appellant contended that in order to ascertain the tariff classification of the Appellant’s consignment, it is key to ascertain its nature and essential character.

17. Regarding the use and nature of AJI-NOMOTO/MSG, the Appellant stated that it is used to add or enhance umami flavour in foods, making them taste savorer and more delicious. It further stated that umami is one of the basic tastes alongside sweet, sour, salty and bitter, and that people taste umami through receptors that typically respond to glutamates and nucleotides which are widely present in meats, cheese, mushrooms and fermented products.

18. It was also stated that AJI-MOTO intensifies the umami taste without adding its own distinct taste. When its added to meals, the sensation of umami which is characterized by a savory and satisfying flavour is enhanced making the overall taste experience of the food pronounced. It has unique characteristic, and is a white crystalline like solid substance, highly soluble in organic solvents.

19. The Appellant further stated that according to the GIRs under the EAC/CET, the essential characteristic of a product is crucial in determining the correct tariff classification to be accorded to the product.

20. The Appellant stated that the chemical formula of AI-NOMOTO is C5H8NO4a made up of sodium atoms and glutamic acid, and that glutamic acid is a naturally occurring amino acid used by living organisms to synthesize proteins, and has various uses such as in cellular metabolism, neurotransmission and as a flavour enhancer.

21. The Appellant further stated that the integration of sodium and glutamic acid to form monosodium glutamate does not in any way take the essential character of AJI-NOMOTO being a cyclic hydrocarbon.

22. The Appellant contended that when it comes to classification, based on GIR, reliance is placed only on the terms of the headings and any relative section or Chapter Notes. Further, customs classification of goods dictate that goods are fully described within the custom declaration with all important features. Thus, goods are classified by material condition and by function and usage.

23. The Appellant asserted that AJI-NOMOTO constitutes Cyclic hydrocarbons and specifically it is a Glutamic acid.

24. The Appellant also stated that classification of mixtures or composite goods are also governed by GIR 3 (b). Adding that, the essential character of an article is determined from the proportions of the components or material that make it.

25. The Appellant reiterated that AJI-MOTO being a composite good with two different components ought to be classified based on the product that performs the principal function, as it is this product that gives the article its essential character.

26. The Appellant therefore contended that the correct tariff classification AJI-NAMOTO UMAMI SEASONING is HS code 2922. 42. 00 which covers and bears the description of “Glutamic acids and its salts” with an import rate of 0 %.

27. The Appellant also stated that contrary to the Respondent’s position, the tariff heading 2103. 90. covers “other articles” under “sauces and preparations therefore; mixed condiments and mixed seasoning; mustard flour, and meal prepared mustards “and does not apply to AJI-MOTO.

28. The Appellant contended that in classifying AJI-NOMOTO under HS Code 2922. 42. 00, it placed sole reliance on the explanatory notes to Chapter 29 of the EAC/CET.

29. It contended that the Explanatory Notes to Chapter 29 of the EAC/CET applies to separate chemically defined organic compounds; compounds which can dissolve in water or in other solvents and products with added stabilizers necessary for their preservation or transport.

30. The Appellant asserted that AJI-NOMOTO satisfies the description under EN to chapter 29 and is thus classifiable under HS Code 2922. 42. 00.

31. The Appellant further contended that the Respondent erred in in reclassifying the Appellant’s consignment of AJI-NOMOTO under Heading 2103. 90. 00 on the basis that the product packaging as indication that is ready to use seasoning which enhances the natural flavour of foods, which interpretation was misguided and lacked legal merit.

32. It asserted that the Explanatory Notes to chapter 21 of the EAC/CET categorically states that the chapter does not cover,“food preparations, other than product described in heading 21. 03 or 21. 04, containing more than 20% by weight of sausage, meat, meat offal, blood, insects, fish or crustaceans, molluscs or other aquatic invertebrates or any combination thereof.”

33. It stated that although AJI-NOMOTO is sued in food preparations, it does not satisfy the foregoing description thus cannot be classified under Tariff Heading 2103. 90. 00.

34. The Appellant further contended that the Respondent erred in law and fact by ignoring certified laboratory analysis issued by the manufacturer of the product, Ajinomoto Do Brasil Industria E Comercio De Alimentos Ltda, and that of KRA Laboratory, and instead relied on physical description and labelling to classify the Appellant’s consignments as HS Code 2103. 90. 00 rather than HS Code 2922. 42. 00 of the EAC/CET.

35. It averred that the Respondent’s own laboratory’s findings confirmed that the Appellant correctly classified and declared its consignment in accordance with the EAC/CET.

36. The Appellant further contended that the Respondent’s classification of its product under HS Code 2103. 90. 00 was based on the product labelling, which such labelling has no bearing on its product classification.

37. It stated that the words “AJI-NOMOTO UMAMI SEASONING” is a registered trademark that serves as brand identification and marketing. Being a distinctive trademark, it is used in food labelling to help customers recognize and identify with the quality and safety measures associated with it.

38. The Respondent therefore erred by relying on the word “seasoning” in the product labelling to reclassify the Appellant’s products as condiments and mixed seasoning.

39. The Appellant also contended that the Respondent’s decision of 6th October 2023 is unjust and in breach of Article 47 of the Constitution of Kenya and the Appellant’s right to legitimate expectation by purporting to renege on a binding Tariff Classification Ruling it had previously issued on the same products.

40. The Appellant submitted that the Appellant imports monosodium glutamate (MSG) under the brand name “AJI NOMOTO UMAMI SEASONING” from Brazil, which is mainly used to enhance the umami flavour in foods, which intensifies the savoury taste, and the product use as highlighted in the packaging, aligns with the general use of MSG, which is to act as a flavour enhancer.

41. The Appellant further submitted that the Kenya Bureau of Standards (KEBS) inspection Certificate of analysis by the manufacturer and the KRA laboratory analysis confirmed that the consignment of Aji Nomoto is monosodium glutamate (MSG).

42. It was submitted that despite the above overwhelming evidence and confirmation, the Respondent ignored, refused and neglected such findings without any colour of right and reclassified the company’s consignment of Aji Nomoto as mixed seasoning under HS Code 2103. 90. 00, yet being an MSG, it is classifiable under HS Code 2922. 42. 00.

43. It was submitted that failing to consider the undisputed material facts, such as the fact that the consignment imported b y the Appellant is an MSG and not mixed seasoning, constitutes irrationality which ought not to be condoned.

44. The Appellant cited the case of Republic vs. Public Procurement Administrative Review Board & 2 others Ex parte Pelt Security Services Ltd [2018] eKLR, where failure to take into account relevant considerations was highlighted.

45. The Appellant submitted that the first principle of the GIR to the EAC/CET provides;“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.”

46. It was further submitted that Note 1 (a) to Chapter 29 of EAC/CET provides;“Except where the context otherwise requires, the headings of this chapter apply only to;a.Separate chemically defined organic compounds, whether or not containing impurities “

47. It was therefore noted that goods are classified into HS Codes based on their objective properties and characteristics as defined by the wordings of the relevant tariff headings.

48. It was further submitted that as confirmed by various chemical and scientific laboratory analysis, including one by the Respondent, the consignments of Aji Nomoto imported by the Appellant are essentially MSG, thus classifiable as an organic chemical, as MSG is a type of glutamic acid, which is an organic compound produced from bacterial fermentation of sugarcane and ammonium salts in the presence of Corynebacterium bacteria.

49. Heading 29. 22 provides for the Oxygen Function amino compounds;“29. 22Oxygen -function amino compounds;Amino alcohols, others than those containing more than one kind of oxygen function, their ethers, and esters, salts thereof.”

50. It was therefore submitted that the correct tariff classification of MSG is HS Code 2922. 42. 00 which covers and bears the description of “glutamic acids and its salts.”

51. The Respondent in reclassifying AJI-NOMOTO under HS Code 21. 03: “sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour, and meal and prepared mustard “asserted the product packaging indicates that it is a ready to use seasoning that enhances the natural flavour of foods.

52. The Appellant submitted that AJI-NOMOTO is not a sauce, mixed condiments or mixed seasoning. However, the chemical composition of Aji- Nomoto, its manufacturing process, and the results of the test samples confirm that it is MSG.

53. The Appellant submitted that the law must be construed strictly in accordance with the express statutory provisions, and there is no room for intendment or implication. The Appellant to buttress this submission cited the case of Cape Brandy Syndicate vs. I.R Commissioners (1921) 1KB.

54. The Appellant submitted based on the foregoing, Heading 2103 applies to “sauces, mixed condiments, and mixed seasoning “and it does not extend to chemically defined organic compounds such MSG, which are expressly covered under Heading 29. 22.

55. The Appellant further submitted that the Respondent issued a Tariff Ruling No. 2016/CUS/V&T/TAR/RUL/645 which provided that MSG is classifiable under HS code 2922. 42. 00. Consequently, by dint of the said ruling, the Respondent committed itself to classify MSG under HS Code 2922. 42. 00.

56. The Appellant submitted that the ruling is still valid and binding as it has not been revoked, nor have any legislative changes been made in the EAC Common External Tariff ‘s Harmonized Commodity Description and coding system.

57. The Appellant cited the cases of;i.Republic vs. Kenya Revenue Authority Exparte Mkopa Ltd (2018) eKLR; and,ii.Keroche Breweries Ltd -vs- Kenya Revenue Authority & 5 others (2007) KLR 240.

58. The Appellant submitted that the Respondent’s ruling that MSG is classifiable under HS Code 2922. 42. 00 created a legitimate expectation for the Appellant. In the words of the Mkopa case, the sudden arbitrary and unexplained about turn made by the Respondent with respect to the importation of Aji Nomoto would amount to thwarting the Appellant’s legitimate expectation that the consignment is classifiable under HS Code 2922. 42. 00.

59. In light of the foregoing the Appellant submitted that the Respondent’s Review Decision reclassifying the Appellant’s consignment of Aji Nomoto from HS Code 2922. 42. 00 to HS Code 2103. 90. 00 manifestly unjust and devoid of merit.

The Appellant’s Prayers 60. By reason of the foregoing the Appellant prayed for orders;a.That the Appeal be and is hereby allowed;b.That the Respondent’s decision under review dated 6th October 2023 be set aside in entirety and the Appellant’s consignment under review, import entry NO. 23MBAIM404564986 be classified as HS Code No. 2922. 42. 00 of EAC/CET;c.That the costs of this Appeal be awarded to the Appellant; and,d.That any other or further remedies that the Tribunal deems just and reasonable.

The Respondent’s Case 61. The Respondent’s case is set out on its;a.Statement of Facts dated 8th December 2023 and filed on 11th December 2023 together with the documents attached thereto, andb.Written submissions dated 8th May 2024 and filed on 9th May 2024.

62. The Respondent stated that sometime in 2023 the Appellant imported a consignment of 1250 Kg of white crystalline material from Brazil under brand name “aji-nomoto umami seasoning package” in bags with 25 kg, and in cartons with 200 gm, 100 gm and 454 gm.

63. The Appellant on entry declared the product under Tariff 2922. 42 of the EAC/CET, and the Respondent conducted a verification exercise and reclassified the imported consignment under 2103. 90. 00, and communicated the findings on 7th September 2023.

64. The Appellant appealed the said ruling on 12th September 2023 under Section 229 of EACCMA, and on 6th October 2023 the Respondent in its ruling to the Appeal of 12th September 2023, upheld its tariff classification of the consignment under the Heading 2109. 90.

65. The Respondent stated that the legal regime guiding HS classification of goods in Eat Africa is the East Africa Community Common External Tariff as read with the World Customs Organization Explanatory Notes.

66. It further stated that Chapter 21 covers edible preparations, while subheading 2103 covers; sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meals, and prepared mustard.

67. Heading 2103 covers preparations generally of highly spiced character used to flavour certain dishes (meat, fish, salads) and made from various ingredients (eggs, vegetables, meat, fruit, flours, starches, oil, vinegar, sugar, spices, mustard, flavouring) that are also included in preparations for sauces, usually in the form of powders to which milk, water etc. need to be added to obtain the sauce.

68. The Respondent also stated that the imported consignment is used to add or enhance the umami flavour in foods making food taste savory and more delicious as demonstrated by the Appellant in its statement.

69. The imported consignment was described as a ready to use seasoning which enhances the natural flavour of foods providing umami taste. Further the product is obtained through bacterial fermentation of sugarcane and ammonium salts in the presence of Corynebacterium bacteria and it is indicated to be used in meat, soups, salads, vegetables and any salted fish.

70. The Respondent contended that monosodium glutamate is not a cyclic hydrocarbon but rather based on its chemical structure and composition, monosodium glutamate does not meet the definition of a cyclic hydrocarbon.

71. The Respondent further stated that it relied on rules 1 and 6 of GIRs to ascertain that the appropriate heading for the imported consignment and interpretation of the appropriateness of Heading 2922 and the provisions therein.

72. The Respondent submitted that it is settled law that tax statutes must be interpreted strictly and cited the case of Cape Brandy Syndicate vs. Inland Revenue Commissioners (1920) 1 KB 64.

73. It was also submitted that the legal regime guiding the HS classification of in East Africa is the EAC/CET as read with the World Customs Organization Explanatory Notes.

74. The Respondent submitted that in the case of AjiNomoto India Private Ltd vs. Commissioner of Central Excise, Chennai- II, the court noted,“it is an accepted principle of classification that the goods should be classified according to their popular meaning or as they understood in their commercial sense and not as per the scientific or technical meaning.” that is …” how is the product identified by the class or section of people dealing with or the product is also a test…”.

75. It was further submitted that in AjiNomoto India Private Ltd, the issue in contention was whether Ajitide was classifiable as a food additive or as a food preparation and therefore, whether intended use was an appropriate and objective parameter to informing the classification exercise.

76. The Respondent also submitted that locally, the application of intended use in classification was highlighted in Tax Appeal No.1 of 2012 Proctor & Allan (EA) Ltd vs. Commissioner of Income Tax [2014] eKLR (1), where the court in evaluating the appropriate heading where there is a conflict between use of a product and the objective characteristics and properties noted,“It is the conclusion of this court that in the 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.”

77. In TAT 1317 OF 2022 Coffee Management Services Ltd vs. Commissioner of Domestic Taxes, the Tribunal stated;“It is the Tribunal’s view that the inclusion of boron and zinc in Biofol Triple Max and Biofol Boron Max as part of the fortification for the fertilizer does not change the use of the products …based on the foregoing, the Tribunal finds that the Respondent was not justified in reclassifying both Biofol Triple Max and Biofol Boron Max.”

78. It was submitted that in the present case, the Appellant admits that Aji Nomoto is used to enhance umami flavour in foods making them taste savorer and more delicious …intensifying umami test without adding its own distinct taste, and also admitted to the intended use of Aji Nomoto as a food flavoring.

79. The Respondent contended that the uncontroverted evidence before the Tribunal is that the intended use of Aji Nomoto is the use of the product to enhance umami flavour in food. Consequently, from a commercial lens, the purposes of Aji Nomoto for both the importer and its local users is categorically and unequivocally to intensify umami taste in food without adding its own distinctive taste.

80. The Respondent also submitted that in the Indian case of Aji Nomoto India Private Ltd (supra), Ajitide a product that also enhanced and intensified umami flavour was classified based on the intended purpose of the commercial purpose of the imported name. In so doing, the court therein took note of the intended use of wherein inherent in the product, and if that inherent character can be assessed on the basis of the product’s objective characteristics by taking advantage of Ajitide specific activation of umami receptors as opposed to any other tastes.

81. It was submitted that the court in AjiNomoto India Private Ltd reasoned that, umami, one of the five fundamental taste sensations is known to have specific receptors for its taste, that is produced by several amino acids and nucleotides (such as glutamate and aspartate) and has a rich meaty flavour characteristic of cheese, cooked meat, mushrooms, soy, and ripe tomatoes while Ajitide inter alia conferred the umami taste and enhances flavours. Accordingly, the court determined that based on commercial usage of Avicide, the intended use of the product was the most appropriate objective characteristic classifying the product therein.

82. The Respondent submitted that Heading 21. 03 covers: Sauces, and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal, and prepared mustard. The Respondent stated that it based its classification by applying GR 1 and using the Heading 21. 03 as a guide, specifically the phrase “preparations thereof.”

83. The Respondent also submitted that the intended applicability of AjiNomoto is inherent in the product. That is umami characteristic of AjiNomoto is an inherent characteristic of the product.

84. The Respondent stated that its analysis informing its classification seeks to pursue classification parameters that are deployed and utilized the principles of fit for purpose is does materialize through the intended use of AjiNomoto. Based on the foregoing, it is evident that the intended purpose of AjiNomoto is used as an edible for purposes of intensifying umami flavour in food.

85. The Respondent submitted that to find in favour of the 2Respondent is to promote consistency in customs and furtherance of the public interest as espoused in Coffee Management (supra) that common and commercial sense shall prevail in classification disputes under the harmonized system.

The Respondent Prayer 86. By reason whereof the Respondent prayed that the Honourable Tribunal finds;a.The Appeal Ruling of 6th October 2023 be upheld; and,b.This Appeal be dismissed with costs.

Issues For Determination 87. The Tribunal having carefully considered the filings and submissions made by the parties is of the considered view that the Appeal herein distils into one issue for determination to wit;Whether the Respondent was justified in reclassifying the Appellant’s imports of AjiNomoto sodium Glutamate from HS Code 2922. 42. 00 to Hs code 2103. 90. 00.

Analysis And Determination 88. The dispute herein arose out of the reclassification undertaken by the Respondent on the Appellant’s imported products known as AjiNomoto umami sodium glutamate, used in flavouring food preparations.

89. The Appellant entered and classified its products under the EAC/CET Hs code 2922. 42. 00, while the Respondent reclassified the same imports under the tariff HS Code 2103. 90. 00.

90. The contention in contention in the determination of the Appellant’s goods was that, while the Respondent asserted that classification of the product should be based on the intended use, the Appellant maintained that the imports ought to be classified in accordance with their composition and characteristics as determined by the laboratory analysis.

91. The Respondent submitted that based on the imported product labelling, the intended use of AjiNomoto is to enhance umami flavour in food. It asserted that the purpose of AjiNomoto for both the importer and its local users is categorically and unequivocally to intensify umami taste in food without adding its own distinct taste.

92. The Appellant submitted that the imported consignment was properly classified under Tariff 2922. 42. 00 given that the chemical analysis issued by the manufacturer AjiNomoto Do Brasil Industria Ltd, the certificate of conformity issued by the KEBS and the laboratory test results from the KRA laboratory, confirmed that the imported product was Monosodium Glutamate MSG, and that MSG is classifiable under HS Code 2922. 42. 00.

93. The Appellant further submitted that the Respondent had through its Manager Inspection and Testing Centre conducted an analysis of the Appellant’s import and issued a report advising that the imported was found to be a crystalline white powder with typical characteristics of a pure monosodium glutamate covered under Heading 29. 22 which covers Oxygen – function amino compounds. The Respondent’s laboratory analysis stated;“Based on the above information, the samples tested are therefore considered to be monosodium glutamate, used to enhance flavour in some food items, classified in EAC/CET HS code 2922. 42. 00. In this regard, the declared EAC/CET HS CODE 2922. 42. 00 is in agreement with Laboratory findings.”

94. The Respondent’s laboratory findings confirmed that the Appellant’s consignment is MSG and the Appellant had correctly classified the same under HS Code 2922. 42. 00.

95. The Tribunal applying the GIRs takes the view that the most appropriate rule to be considered applicable for this product is 3 (a);“the Heading which provides the most specific description shall be preferred to headings providing a more general description.”

96. It is noteworthy that the Respondent’s preferred HS Code 2103. 90. 00 provides a generalized description of the Appellant’s product, placing the product under “other” within heading 2103 which states;“Sauces and preparations therefore; mixed condiments and mixed seasonings; mustard flour and meal, and prepared mustard.”

97. The Tribunal further takes the view that the Appellant’s imports having been ascertained to be monosodium glutamate by the manufacturer, the Kenya Bureau of standards and the Respondent’s own laboratory, which is covered under HS Code 2922. 42. 00, there is no doubt whatsoever that the Tariff Code 2922. 42. 00 provides a more specific description of the Appellant’s import based on its established composition, which is covered under glutamic acid and its salts.

98. In light of the foregoing, the Tribunal is satisfied that the Appellant correctly classified its imported AjiNomoto umami sodium glutamate under HS Code 2922. 42. 00.

99. Consequently, the Tribunal finds and holds that the Respondent erred and was not justified in reclassifying the Appellant’s imported product from Hs Code 2922. 42. 00 to HS code 2103. 90. 00.

100. The upshot of the foregoing is that the Appellant’s Appeal is merited and hereby succeeds.

Final Determination 101. The Appellant’s Appeal having succeeded, the Tribunal makes the following orders;a.The Appellant’s Appeal be and is hereby allowed;b.The Respondent’s Review Decision dated 6th October 2023 be and is hereby be set aside; and,c.Each party to bear its own costs.

102. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF OCTOBER 2024ROBERT M. MUTUMACHAIRPERSONMUTISO MAKAUMEMBERJEPHTHAH NJAGIMEMBERDELILAH K. NGALAMEMBERDR TIMOTHY B. VIKIRUMEMBER