Meat and meat offal cooked in any way (boiled, steamed, grilled, fried or roasted), or otherwise prepared or preserved by any process
not provided for in this Chapter, including those merely covered with batter or bread crumbs, truffled or seasoned (e.g., with pepper
and salt), as well as liver pastes and pates (heading 16.02).
It should be noted that meat and meat offal of this Chapter remain classified here even if put up in airtight packings (e.g., dried
meat in cans). In most cases, however, products put up in these packings have been prepared or preserved otherwise than as provided
for in the headings of this Chapter and, accordingly, are classified in Chapter 16." (My italics)
The chapter notes to chapter 16 state:
"This Chapter does not cover meat, meat offal, fish, crustaceans, molluscs or other aquatic invertebrates, prepared or preserved
by the processes specified in Chapter 2 or 3."
The note to heading 16.02 contains a partial counterpart to sub-paragraph (b) in the chapter 2 note already quoted. In listing what
does fall under heading 16.02 the following is included:
"(3) Meat and meat offal prepared or preserved by other processes not
8
provided for in Chapter 2, including those merely covered with batter or bread crumbs, truffled, seasoned (e.g., with both pepper
and salt) or finely homogenised . ... (My italics)
"Truffled", according to the Shorter OED means "cooked, garnished, or stuffed with truffles". The notes contain
a special definition of "homogenised preparations" which need not be quoted.
Referring only to the headings and sub-headings I would say that the goods are clearly "other meat of sheep frozen. . . other
cuts with bone in" (i e item 0204-42) rather than "other prepared or preserved meat. .. other" (i e item 1602.90.90).
Mr Joubert, who appears for the Commissioner argues, in the first instance, that this is already the end of the matter, that once
meat has been preserved by freezing it falls under chapter 2. I find it unnecessary to decide the merits of this submission. The
respondents, to the contrary, contend that there can be uncertainty whether the meat in question is frozen (in which case chapter
2 applies) or prepared (in which case chapter 16 applies) so that it is legitimate to
9 have regards to the phrase in the notes to chapters 2 and 16 "including those
merely covered with bread crumbs." Stress is placed on the words "merely" and
"including." The effect of the words, so it is contended, is to make the goods
subject to chapter 16. The Commissioner, on the other hand, contends that the
phrase does not have this effect when it is read in its context. He relies
particularly on the words in the explanatory notes to chapter 2 "otherwise prepared
or preserved by any process not provided for in this Chapter." This is his
alternative argument, which I now address.
The word "otherwise" relates to the cooking of meat. The processes that are
provided for in chapter 2 (and which consequently do not fall within the ambit of
chapter 16) are salting for temporary preservation, chilling, freezing, salting,
brining, drying, smoking, sugaring, tenderizing, cutting, chopping, mincing and
mixing. Any other process for preparing or preserving meat falls under chapter
16. The words "prepared" and "preserved" read together with the word "process"
10 are, in my opinion, defining words which also govern what follows. Those
qualities of the first two of these words is emphasized by their use in heading
16.02 ("prepared or preserved meat").
The respondents argue that the effect of the word "including" is, as it were,
to elevate the phrase "merely covered" etc out of the sentence and give it
substantive existence independent of the preceding words. In other words, the
contention is that once meat is covered with bread crumbs the enquiry is already
concluded, and there is no question of the subject matter of the phrase being part
of a wider class. I do not agree. In the words of the judgment in Puerto Rico
Maritime Shipping Authority v ICC 645 F 2d 1102,1112 n 26 (DC Cir 1981): "It
is hornbook law that the use of the word including indicates that the specified list
... is illustrative, not exclusive" (quoted in Gamer A Dictionary of Modern Legal
Usage 2 ed 431). The effect of reading the passage in the notes in accordance with
this statement is that the included words are subject to the requirements of
11 preparation, preservation and process. One may speculate as to why they were
mentioned and why they were qualified by the word "merely." The officers in the
customs sheds are not normally equipped with treatises on the principles of
statutory interpretation, and it may well have been considered that the cases
mentioned might otherwise give rise to doubt. Truffling, in the sense of stuffing
with truffles, or seasoning, with salt and pepper or some other seasoning, might
be such marginal cases, deserving of clarification.
The important governing word is "prepared". Crumbing by the manual
application of crumbs may be a process, particularly as salting is implicitly
recognized as a process. Preservation is not, I think, relevant to this case, as a
dusting with crumbs could hardly have a preservative purpose. The contrary was
not argued. So that for the respondents to succeed such a process would have to
amount to preparation. In relation to food the word "prepare", according to the
Shorter OED, bears the meaning "To make ready for eating". In the context I
12 consider that this is the appropriate meaning, not the more general one preferred
by the court a quo "To put beforehand into a suitable condition for some action
. . ." etc. A crumbed pork chop or a wiener schnitzel made ready for cooking
would have been prepared in the culinary sense. If the carcasses had been cut into
serving portions and then crumbed the case might just have been arguable. But
the scattering of crumbs on large hunks of meat would not be accepted as
preparation by any cook worthy of the name and there is no word of evidence to
lead us to a different view. However, the judge a quo opined that even if such
crumbing might not prepare mutton for cooking, it might prepare it for the retail
or wholesale trade. How this could be has not been demonstrated on the evidence
and I cannot perceive any worthwhile preparation for this purpose, unless it be to
reduce the trade price by reducing the duty. I would add that the conjoining of
covering with bread crumbs and covering with batter fortifies the conclusion that
what is contemplated is preparation for cooking and not something else.
13 My conclusion is that item 0204.42 is clearly the appropriate item.
Prior to the hearing of the appeal the first respondent was liquidated and a liquidator has been appointed. Mr Puckrin appeared for
both the liquidator and the second respondent.
The appeal succeeds with costs, such costs to include the costs of employing two counsel.
The judgment of the court a quo is set aside and substituted with the following:
"The application is dismissed with costs, including the costs of the interlocutory application; all such costs to include the
costs of employing two counsel."
W P SCHUTZ
JUDGE OF APPEAL CONCUR VIVIER JA HOWIE JA STREICHER JA MELUNSKY AJA
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