EASTERN DIVISION HENRY SCHEIN ASH ARCONA INC. Appellant v. PRESIDENT OF, 2015 FCA 220

Date: 20151020 Docket: A-368-14 Citation: 2015 FCA 220 CORAM: NADON J.A. TRUDEL J.A. RENNIE J.A. Docket: A-368-14 BETWEEN: EASTERN DIVISION HENRY SCHEIN ASH ARCONA INC. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent Heard at Ottawa, Ontario, on October 20, 2015. Judgment delivered from the Bench at Ottawa, Ontario, on October 20, 2015. REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. Date: 20151020 Docket: A-368-14 Citation: 2015 FCA 220 CORAM: NADON J.A. TRUDEL J.A. RENNIE J.A. Docket: A-368-14 BETWEEN: EASTERN DIVISION HENRY SCHEIN ASH ARCONA INC.

Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on October 20, 2015).

NADON J.A. [ 1 ] This is an appeal from a decision of the Canadian International Trade Tribunal (CITT) dated May 20, 2014 wherein it held that the goods at issue were properly classified in heading No. 40.15 specifically under tariff item No. 4015.19.90, as other articles of apparel and clothing accessories (including gloves, mittens and mitts), for all purposes, of vulcanized rubber other than hard rubber. [ 2 ] We are all of the view that the appeal must succeed. First, the CITT did not, in our view, consider Note 2.(

e) to

Chapter 40 of the Customs Tariff which provides that

Chapter 40 does not cover the articles of

Chapter 90. Second, it is unclear to us whether the CITT concluded that the goods at issue did not fall under

Chapter 90.

[ 3 ] For these reasons, the appeal will be allowed with costs and the matter will be returned to the same chairperson of the CITT for redetermination based on the existing record. "M Nadon" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-368-14 STYLE OF CAUSE: EASTERN DIVISION HENRY SCHEIN ASH ARCONA INC. v. PRESIDENT OF THE CANADA BORDER SERVICES AGENCY PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: October 20, 2015 REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. TRUDEL J.A. RENNIE J.A. DELIVERED FROM THE BENCH BY: NADON J.A.

APPEARANCES : Michael Kaylor For The Appellant Kirk G. Shannon For The Respondent SOLICITORS OF RECORD : Lapointe Rosenstein Marchand Melançon Montreal, QC For The Appellant William F. Pentney Deputy Attorney General of Canada For The Respondent