COMMONWEALTH WHOLESALE CORP.
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appeal Nos. AP-2011-010 and AP-2011-019
Decision and reasons issued
Monday, February 13, 2012
TABLE OF CONTENTS
IN THE MATTER OF appeals heard on November 17, 2011, pursuant to
subsection 67(1) of the Customs Act, R.S.C. 1985 (2d
Supp.), c. 1;
AND IN THE MATTER OF 59 decisions of the President of the Canada
Border Services Agency, dated March 28, April 26, May 16 and May
24, 2011, with respect to requests for re-determination pursuant to
subsection 60(4) of the Customs Act.
COMMONWEALTH WHOLESALE CORP. Appellant
THE PRESIDENT OF THE CANADA BORDER SERVICES
The appeals are allowed.
Place of Hearing: Ottawa, Ontario
Date of Hearing: November 17, 2011
Tribunal Member: Serge Fréchette, Presiding Member
Counsel for the Tribunal: Eric Wildhaber
Manager, Registrar Programs and Services: Michel Parent
Registrar Officer: Julie Lescom
|Commonwealth Wholesale Corp.
|President of the Canada Border Services Agency
Executive Vice-President, Secretary and Treasurer
Commonwealth Wholesale Corp.
Please address all communications to:
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
1. These are appeals filed by Commonwealth Wholesale Corp.
(Commonwealth Wholesale) with the Canadian International Trade
Tribunal (the Tribunal) on May 19 and June 21, 2011, pursuant to
subsection 67(1) of the Customs Act1 from 59
decisions of the President of the Canada Border Services Agency
(CBSA), dated March 28, April 26, May 16 and May 24, 2011, made
pursuant to subsection 60(4).
2. The issue in these appeals is whether certain razor blade
cartridges (the goods in issue) are properly classified under
tariff item No. 8212.20.00 of the schedule to the Customs
Tariff2 as safety razor blades, including razor
blade blanks in strips, as determined by the CBSA, or should be
classified under tariff item No. 8212.90.00 as other parts of
razors, as claimed by Commonwealth Wholesale.
3. Between March 28 and May 24, 2011, the CBSA issued 59
decisions pursuant to subsection 60(4) of the Act in which
it classified the goods in issue under tariff item No.
4. Appeal No. AP-2011-010 was filed on May 19, 2011. Appeal No.
AP-2011-019 was filed on June 21, 2011. On July 13, 2011,
pursuant to rule 6.1 of the Canadian International Trade
Tribunal Rules,3 the Tribunal decided to combine both
5. On November 17, 2011, the Tribunal held a public hearing in
6. Commonwealth Wholesale called as a witness Mr. Brad Young,
Executive Vice-President, Secretary and Treasurer, Commonwealth
Wholesale. No witnesses were called by the CBSA.
GOODS IN ISSUE
7. The goods in issue are packages of five Gillette®
Mach3® razor blade cartridges for retail sale, designed
to be used with Gillette® Mach3® razor
handles. The goods in issue were imported without razor
8. Commonwealth Wholesale filed the following nine physical
A-01—GEM® by Personna® package of 10
single edge super stainless steel blades with used blade vault
A-02—Walgreens package of 10 Comfort* Coated®
stainless steel double edge blades with blade holder or dispenser
(old-fashioned double-edged blades)
A-03—Gillette® SensorExcel® razor and 3
cartridges packaged together
A-04—Gillette® Mach3® package of 3
A-05—Gillette® Mach3® package of 5
cartridges only (goods in issue)
A-06—Schick® Hydro 3 package of 4 cartridges
A-07—BIC® package of 12 Sensitive shavers
A-08—Hoffritz NY steel razor with safety razor blade (original
ProGlide™ package with razor handle, cartridge and
9. The tariff nomenclature is set out in detail in the schedule
to the Customs Tariff, which is designed to conform to the
Harmonized Commodity Description and Coding System (the Harmonized
System) developed by the World Customs Organization.4 The schedule
is divided into sections and chapters, with each chapter containing
a list of goods categorized in a number of headings and subheadings
and under tariff items.
10. Subsection 10(1) of the Customs Tariff provides
that “. . . the classification of imported goods
under a tariff item shall, unless otherwise provided, be determined
in accordance with the General Rules for the Interpretation of the
Harmonized System and the Canadian Rules set out in
11. The General Rules comprise six rules structured in
sequence so that, if the classification of the goods cannot be
determined in accordance with Rule 1, then regard must be had to
Rule 2, and so on, until classification is completed.7
12. Rule 1 of the General Rules provides as
1. . . . 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.
13. Section 11 of the Customs Tariff provides that, in
interpreting headings and subheadings, regard shall be had to the
Explanatory Notes to the Harmonized Commodity Description and
Coding System.8 While the Explanatory Notes are
not binding on the Tribunal in its classification of imported
goods, the Tribunal will apply them, unless there is a sound reason
to do otherwise.9
14. Once this approach has been used to determine the heading in
which the goods in issue should be classified, the next step is to
determine the proper subheading by applying Rule 6 of the
General Rules.10 The final step is to determine the
tariff item by applying Rule 1 of the Canadian
15. The relevant provisions of the Customs Tariff
provide as follows:
BASE METALS AND ARTICLES OF BASE METAL
. . .
TOOLS, IMPLEMENTS, CUTLERY, SPOONS
AND FORKS, OF BASE METAL; PARTS THEREOF
OF BASE METAL
. . .
82.12 Razors and razor blades (including razor blade
blanks in strips).
8212.20.00 -Safety razor blades, including razor blade
blanks in strips
8212.90.00 -Other parts
16. The relevant Explanatory Notes to Section XV
provide as follows:
BASE METALS AND ARTICLES OF BASE METAL
. . .
(C) PARTS OF ARTICLES
In general, identifiable parts of articles are classified as
such parts in their appropriate headings in the Nomenclature.
17. The relevant Explanatory Notes to heading No. 82.12
provide as follows:
This heading covers:
(1) Open blade razors, including separately
presented blades (finished or not), and separately
presented base metal handles.
(2) Safety razors, and their base metal parts and
blades, finished or not.
(3) Plastic safety razors presented with their
The heading also covers non-electric dry
shavers and blades, cutting plates and heads for
Blanks of safety razor blades are also included
in the heading when in the form of lengths of strip steel, tempered
or not, provided they have been perforated ready
for the manufacture of safety razor blades, or the outline of the
blade has been incised allowing separation by slight pressure.
The heading excludes:
(a) Plastic safety razors presented without their blades
(b) Electric razors and heads, blades and cutting plates of such
razors (heading 85.10).
18. The sole issue in this appeal is whether the goods in issue
are properly classified as safety razor blades within the meaning
of that term as found in tariff item No. 8212.20.00, as argued by
the CBSA, or if they should be classified under tariff item No.
8212.90.00 as other parts of razors, as argued by Commonwealth
Wholesale. The parties submitted, and the Tribunal agrees, that
only Rule 1 of the General Rules and Rule 1 of the
Canadian Rules are applicable to this matter.
19. According to Commonwealth Wholesale, the term “safety razor
blades”, as used in tariff item No. 8212.20.00, designates
exclusively the old-fashioned double-edged blades, such as those
identified as exhibit A-02.12 According to Commonwealth
Wholesale, such old-fashioned double-edged blades are for use in an
original safety razor, such as the one identified as exhibit
A-08.13 Accordingly, Commonwealth Wholesale
argued that the goods in issue are different from the safety razor
blades described in tariff item No. 8212.20.00.14
Indeed, Commonwealth Wholesale submitted that the goods in issue
are an evolution of the cartridge-type product that began entering
the marketplace in the early 1970s.15
20. For its part, the CBSA submitted that the goods in issue are
sold as replacement razor blades for the Gillette®
Mach3® and are referred to in the industry as “safety
razor blade units” or generally known as “safety razor
blades”.16 The CBSA relied on dictionary definitions
of the terms “safety razor” and “blade”.17 The CBSA pointed to
patent applications filed by the Gillette Company where it used the
term “safety razor blade units” to describe the goods in
21. The Tribunal heard various representations as to what
constitutes a “safety razor” but notes that that term is not used
on its own in the schedule to the Customs Tariff, only
with the word “blades”. Accordingly, it is noteworthy that the
schedule to the Customs Tariff does not provide for the
classification of safety razors. In fact it only provides for the
classification of “razors”, on the one hand, and of
“[s]afety razor blades” [emphasis added]
on the other, and finally of “[o]ther parts”. Indeed, tariff item
No. 8212.10.00 makes no distinction between razors; accordingly,
all razors, including so-called safety razors, would be classified
under that tariff item.
22. The Tribunal is of the view that the submissions made by the
CBSA with respect to various patent applications are not
determinative of what the goods in issue are, for the purposes of
tariff classification. At best, the Tribunal understands from those
documents that the term “safety razor blade units” refers to blade
units for safety razors. Nowhere in those documents is it stated
that the goods in issue would be units made up of safety razor
blades. Rather, the term “safety razor blade” used on its own (i.e.
without the words “units” or “cartridges”) seems never to appear in
those documents. Instead, those documents, on occasion, refer
simply to “blade units” (i.e. without the term “safety razor”
preceding them). The foregoing supports the view that the goods in
issue are blade units that are distinct goods from those that are
known as “safety razor blades”.
23. The Tribunal is of the view that too great a focus on the
word “safety” in classifying the goods in issue can be
unnecessarily confusing. To begin with, it is undeniable that there
is a safety element built into the goods in issue. It is also true
that the Gillette® Mach3® shaver (which is
composed of (i) the goods in issue and (ii) a handle) may very well
form a safety razor when examined as a whole. However, the Tribunal
cannot simply infer that the cartridge component is a safety razor
blade simply because it contributes (with the handle) to forming a
safety razor, nor for that matter that all blades used with safety
razors are necessarily safe.
24. In fact, the Tribunal notes that the old-fashioned
double-edged blades (exhibit A-02), which are uncontestably known
in the industry as “safety razor blades”, have no inherent safety
properties. Rather, they are bare pieces of metal with two sharp
edges that, if manipulated or used incorrectly, are actually
dangerous and arguably much more threatening than the goods in
issue. As such, the term “safety razor blade” is a misnomer.
However, neither party challenged the fact that such goods are
undeniably safety razor blades. In fact, the Tribunal gathers that
the only reason why the old-fashioned double-edged blades, such as
those of exhibit A-02, are known as such is because they are used
with a handle that comprises a screw mechanism that allows for the
loading of an otherwise unsafe blade in such a manner that the
razor, as a whole, can become as safe as possible and still remain
functional, such as exhibit A-08.
25. The Tribunal is of the view that the focus must remain
squarely on the goods in issue, which are not mere exposed razor
blades, such as is the case with the safety razor blades of exhibit
A-02, but rather blade units, cartridge units or shaving
cartridges19 composed of various parts, such as a
casing of plastic with strips of metal that each have a single
sharp-blade edge.20 The Tribunal notes as well that there are
no safety razor blades in the goods in issue, but, again, only a
number of single-edged sharp blades. As such, the Tribunal finds
that the goods in issue are more than just blades and do not
resemble the old-fashioned double-edged blades, such as those of
26. The Tribunal is of the view that tariff item No. 8212.20.00
is limited to (1) the old-fashioned double-edged blades, such as
those of exhibit A-02, which are the (potentially dangerous) razor
blades of the type to be used in the original safety razor typified
by exhibit A-08, and (2) razor blade blanks in strips. The
Explanatory Notes to heading No. 82.12 provide that “razor
blade blanks in strips” are nothing more than sheets of
old-fashioned double-edged blades, such as those of exhibit A-02,
that have yet to be separated from one another; in other words,
their outline is there, and they may be broken off from the strip.
In essence, they have yet to undergo final transformation, but they
are already identifiable as double-edged safety razor blades.
27. The Tribunal notes that under tariff item No. 8212.20.00,
Parliament has identified the very precise type of razor blade
known as the “safety razor blade”, and refers only to the very
precise upstream products to the safety razor blade known as “razor
blade blanks in strips”. The Tribunal is of the view that had
Parliament intended to include the goods in issue under that tariff
item it would have included much more general and clear language to
that effect. Ultimately, the schedule to the Customs
Tariff does not provide a tariff item for safety razor
“cartridges” or “blade units”, only for “safety razor blades”.
Accordingly, the Tribunal finds that the terms of tariff item No.
8212.20.00 are not broad enough to comprise the same type of blade
units or cartridge units as the goods in issue because they are
goods altogether different from the simple safety razor blade.
28. The evidence on file indicates that the goods in issue are
especially committed for use with Gillette®
Mach3® shavers and are essential to their function. As
such, the Tribunal finds that the goods in issue should be
classified under tariff item No. 8212.90.00 as other parts of
29. The appeals are allowed.
1 . R.S.C. 1985 (2d Supp.), c. 1
2 . S.C. 1997, c. 36.
3 . S.O.R./91-499.
4 . Canada is a signatory to the
International Convention on the Harmonized Commodity
Description and Coding System, which governs the Harmonized
5 . S.C. 1997, c. 36, schedule [General
6 . S.C. 1997, c. 36, schedule.
7 . Rules 1 through 5 of the General
Rules apply to classification at the heading level (i.e. to
four digits). Pursuant to Rule 6 of the General Rules,
Rules 1 through 5 apply to classification at the subheading level
(i.e. to six digits). Similarly, the Canadian Rules make
Rules 1 through 5 of the General Rules applicable to
classification at the tariff item level (i.e. to eight digits).
8 . World Customs Organization, 4th ed.,
Brussels, 2007 [Explanatory Notes]. Section 11 of the
Customs Tariff also specifies that regard shall be had to
the Compendium of Classification Opinions to the Harmonized
Commodity Description and Coding System, World Customs
Organization, 2d ed., Brussels, 2003.
9 . Canada (Attorney General) v. Suzuki
Canada Inc., 2004 FCA 131 (CanLII) at paras. 13, 17.
10 . Rule 6 of the General Rules
provides as follows: “For legal purposes, the classification of
goods in the subheadings of a heading shall be determined according
to the terms of those subheadings and any related Subheading Notes
and, mutatis mutandis, to the above Rules, on the
understanding that only subheadings at the same level are
comparable. For the purpose of this Rule the relative Section and
Chapter Notes also apply, unless the context otherwise
11 . Rule 1 of the Canadian Rules
provides that the tariff item shall be identified according to the
terms of the tariff item and any related supplementary notes and,
mutatis mutandis, to the General Rules, for
example, by reading the word “heading” in Rule 1 of the General
Rules as “tariff item”.
12 . Transcript of Public Hearing,
17 November 2011, at 11, 12.
13 . Transcript of Public Hearing,
17 November 2011, at 11-13.
14 . Tribunal Exhibit AP-2011-010-04A at
para. 7. See also Tribunal Exhibit AP-2011-010-09A, tabs 16,
15 . Transcript of Public Hearing,
17 November 2011, at 15.
16 . Tribunal Exhibit AP-2011-010-06A at
17 . The Merriam-Webster’s Collegiate
Dictionary, 11th ed., defines “safety razor” as
“. . . a razor provided with a guard for the blade
to prevent deep cuts in the skin”. The Oxford English
Dictionary, 2d ed., defines “safety razor” as “a razor in
which the blade is prevented by a guard from cutting the skin
during shaving . . . .” The term “blade” is
defined in the Merriam-Webster’s Collegiate Dictionary as
“. . . the cutting part of an
implement . . . .” The Oxford
English Dictionary defines “blade” as “[t]he thin cutting part
of an edged tool or weapon, as distinguished from the handle.”
Tribunal Exhibit AP-2011-010-06A at paras. 11-15.
18 . Tribunal Exhibit AP-2011-010-06A at
paras. 17, 18, tabs 6, 7, 8, 9, 10.
19 . Transcript of Public Hearing,
17 November 2011, at 21; Tribunal Exhibit AP-2011-010-06A, tab 6 at
20 . The goods in issue are composed of (i)
blades, (ii) end caps, (iii) plastic devices to hold the blade in
place, (iv) a plastic frame, (v) a plastic device which allows the
head to pivot, (vi) a lubricating strip, etc. See Tribunal Exhibit
AP-2011-06A at para. 21, tab A. Transcript of Public
Hearing, 17 November 2011, at 51.