Invicta Foods Ltd v The Commissioners for HMRC

For imports before 8 January 2014, Additional Note 6(a) to the Combined Nomenclature did not prescribe an exclusive method for establishing whether seasoning was clearly distinguishable by taste. A comparative test using an untreated control sample was legally permissible, provided it complied with proper testing standards and established an objective difference greater than a merely minimal variation. Difficulties concerning the suitability or verification of a control sample affected the reliability of a particular test, not the legal admissibility of comparative testing generally. The Commission Implementing Regulation (EU) 1362/2013, which prescribed a stand-alone method for later imports, did not retrospectively invalidate comparative testing conducted before its commencement.

Invicta imported frozen boneless chicken breasts treated with an absorbed brine solution. HMRC issued binding tariff information under article 12(1) of Regulation 2913/92, classifying the product under Chapter 16, but later revoked it and classified the product under Chapter 2.

The First-tier Tribunal allowed Invicta’s appeal, finding the revocation unlawful and the product properly classified under Chapter 16. The Upper Tribunal allowed HMRC’s appeal on both issues: [2016] UKUT 1 (TCC). Invicta appealed to the Court of Appeal on classification alone. The central issue was whether, before the 2014 implementing regulation, the requirement that seasoning be clearly distinguishable by taste could be established by comparing treated and untreated samples.

1. Disposition. Patten LJ delivered the leading judgment, with Kitchin and Floyd LJJ agreeing. The appeal was allowed and the First-tier Tribunal’s decision was restored.
2. Construction of Additional Note 6(a). The requirement that seasoning be clearly distinguishable by taste imposed an objective minimum standard. A merely minimal but appreciable difference would not suffice. The provision did not, however, prescribe a particular testing method.
3. Comparative testing. A comparative test against an untreated sample was not legally impermissible. Difficulties concerning the identification, comparability or verification of a control sample went to the acceptability of the particular test, rather than to the categorical legality of comparative testing. This was especially important where seasoning was intended to enhance the natural flavour of the meat. The decision in Gijs van de Kolk-Douane Expéditeur BV v Inspecteur der Invoerrechten en Accijnzen, Amersfoot [1990] ECR I-265 supported that approach by recognising objective sensory analysis as compatible with tariff classification based on objective characteristics.
4. Effect of the later regulation. The Commission Implementing Regulation (EU) 1362/2013 prescribed a stand-alone method for imports after 8 January 2014. Its requirement for a uniform future method indicated that customs authorities had previously been free to use different methods, provided that the testing process complied with proper standards. The regulation did not establish that comparative testing had previously been incompatible with Additional Note 6(a).
5. Application. The Leatherhead testing demonstrated substantial objective differences between treated and untreated samples in texture, flavour and aftertaste. The First-tier Tribunal was entitled to rely on that evidence and to find that the seasoning was clearly distinguishable by taste.

1. Court of Appeal (Civil Division): allowed Invicta’s appeal on classification and restored the First-tier Tribunal’s decision.
2. Upper Tribunal (Tax and Chancery Chamber): allowed HMRC’s appeal on revocation and classification: [2016] UKUT 1 (TCC).
3. First-tier Tribunal (Tax Chamber): allowed Invicta’s appeal, finding the revocation unlawful and the product classifiable under Chapter 16.