Star-Images Enterprises Ltd v The Commissioners for HMRC

The Appellant appeals against the Respondents’(“HMRC”) decisions to issue two C18 Post Clearance Demand Notices for the underpayment of Customs Duty and Import Tax (“C18”) in respect of various items imported by the Appellant during the period 30 November 2015 to 30 March 2016 and the classification of another item as classified by HMRC under the Binding Tariff Information (“BTI”).

The first C18 (C18279272), dated 28 November 2018 (“First C18”), was in the sum of £4,112.33. The amount was varied on review on 14 March 2019 to £3,196.06 (£2,663.39 Customs Duty and £532.68 Import VAT). One of the items was reclassified in favour of the Appellant on 20 December 2021 and, at the date of the hearing, there remained 12 items in dispute.

The second C18 (C18280450), dated 21 December 2018 (“Second C18”), was in the sum of £9,894.85. The amount was varied on review on 30 April 2019 to £9,629.84 and, at the date of the hearing, there remained 34 items in dispute.

On 3 July 2019, HMRC issued a BTI decision dated 3 July 2019 (“Third Decision”) in respect of a toy figure known as Ahab Predator which was reclassified on 3 December 2021 in accordance with the Appellant’s original submission applying customs code 9503 00 49 90 with a 0% rate of duty. The Third Decision is no longer in dispute and is determined in favour of the Appellant.

We were provided with an electronic hearing bundle containing the appeal documents, relevant correspondence, an agreed spreadsheet referring to all 60 items (this included the items agreed at the hearing) and the following witness statements:

For the Appellant, Mr Francis Melinek (“MF”) provided a witness statement dated 30 July 2021 which exhibited photographs of all the disputed 60 items; and

Officer Christina Pond (“CP”), an officer in the Tariff Classification Service, provided a witness statement dated 30 November 2011, which exhibited photographs of sample items provided to HMRC by the Appellant.

MF and CP both gave oral evidence and were cross-examined. Also, in evidence before the Tribunal were some of the items in dispute which were available for the Tribunal to examine.

From all the evidence we find the following background facts and have later set out descriptions of the items in dispute and the parties’ reasons for classification. We consider disputed matters later in the decision.

On 4 June 2018, HMRC informed the Appellant of its intention to carry out a check of its customs and international trade records and on 20 June 2018, HMRC visited the Appellant’s premises. HMRC carried out checks between 23 June 2018 and 20 September 2018 of the Appellant’s customs and international trade records for the period 28 October 2015 to 28 August 2018. The Appellant provided assistance and replied to various e-mailed enquiries.

On 24 September 2018, HMRC issued a Right to be Heard letter which set out the discrepancies identified along with the calculations of import duties covering the period 28 October 2015 to 28 August 2018. The schedule clarified that an underpayment of £363,087.56 had arisen because the Appellant had classified all of the 189 items to 9503 00 99 90 which is zero rated for duty and HMRC considered that all of the 189 items were proper to commodity code 9503 00 21 90 which a attracts a duty rate of 4.7%. The Appellant was given 30 days to make representations before a final decision was made.

On 19 October 2018, the Appellant’s representative, The Customs People, disputed the classification to commodity code 9503 00 21 90. The Appellant disputed the classification to commodity code 9503 00 21 90 as it considered that the majority of the products did not attract duty as they were not covered by the commodity code used by HMRC. The Appellant stated:

“Commodity code 9503 00 21 90 covers dolls, other toys, reduced size ("scale") models and similar recreational models, working or not, puzzles of all kinds: including dolls representing only human beings and parts and accessories thereof.

Commodity code 9503 00 99 90 - other covers (amongst other items), dolls, other toys, reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds. With hindsight the commodity code should have been declared as 9503 00 49 90.

Commodity code 9503 00 49 90 covers (amongst other items) dolls, other toys, reduced-size ("scale") models and similar recreational models, working or not, puzzles of all kinds: toys, representing animals or non-human creatures.

The declaration to 9503 00 99 90 followed a customs audit in 2011 where similar non-human creatures imported were reviewed by the Customs Officer and commodity code 9503 00 99 90 was accepted by the officer.

Whilst the officer's letter dated 28 November 2011 does state that a full audit was not carried out it is quite clear from the contents of the HMRC letter that the main objective of the visit was to review commodity codes declared at importation. A copy of this letter can be provided on request.

In addition I believe the customs audit was triggered because of the submission of a repayment claim for items erroneously entered to 9503 00 21 90. The officer also commented "that after seeing the figures at your premises I am satisfied that the goods are proper to the amended tariff heading and that the classification on import was incorrect".

The company accepts that it is the responsibility of the company to ensure accurate import declarations are submitted. It is highly unlikely that the company would seek advice from a source other than HMRC. I understand that HMRC do offer guidance on classification - why should any company seek further guidance especially when the products imported are of a similar non-human nature?

…

In conclusion I do not believe your schedule is correct or relates to the products imported as the majority of the products do not represent human beings.”

On 28 November 2018, the First C18 was issued by HMRC.

On 21 December 2018, the Second C18 was issued by HMRC.

On 21 December 2018, a review request was made in respect of the First C18. The letter stated: “In relation to most of the products on the schedule, you have not asked for any information at all or you have only requested the image.” The remaining 17 lines were disputed on the basis that they should be classified under 9503 00 49 90 (Toys representing animals or non-human creatures, other, other) except for lines two and four that should be classified to 9503 00 35 00 (Other construction sets and constructional toys, of plastics) albeit they included a non-human figure.

On 1 February 2019, a review request was made in respect of the Second C18. The letter confirmed that lines one to forty-two were disputed (except line five which was accepted) and should be classified under 9503 00 49 90 (Toys representing animals or non-human creatures, other, other). The letter stated:

“Lines 14 and 20 of the schedule need special mention. These products are toys of Chucky, which is a doll. They are clearly non-human since they are toys representing a doll from the movie 'Child's Play', not toys representing a human being.

With reference to lines 2, 3 and 27 of the schedule, these products are of a single non-human figure. They are not toys put up in sets or outfits.”

On 14 March 2019, HMRC’s review conclusion letter was issued in respect of the First Demand and on 30 April 2019, HMRC’s review conclusion letter was issued in respect of the Second Demand. HMRC classified each range of products to one of the following commodity codes:

9503 00 21 90 - Dolls representing only human beings and parts and accessories thereof: other - with a duty rate of 4.7%. (“Dolls”)

9503 00 70 00 - Other toys put up in sets or outfits - with a duty rate of 4.7%. (“Sets”)

9503 00 95 90 - Other toys; of plastics; other – with a duty rate of 4.7%. (“Other”)

3926 40 00 00 – Other articles of plastics and articles of other materials of headings 3901 to 3914; statuettes and other ornamental articles – with a duty rate of 6.5%. (“Statuettes”)

The Appellant contended that the correct commodity code for most of the 60 ranges is:

9503 00 49 90 – Toys representing animals or non-human creatures; other; other – with nil duty rate. (“Non-human toys”)

MF is the sole director and majority shareholder of the Appellant, Star-Images Enterprises Limited. The Appellant is based in London and has for over 25 years been the official UK wholesale distributor of licensed products for a number of international toy manufacturers. During the first 10 years (approximately) of trading, the imported licensed products were paper products: photographs or posters. For the past 15 years, the Appellant has imported licensed collectible toy figures including from (but not limited to) NECA (the National Entertainment Collectibles Association) which is based in New Jersey, USA and specialises in manufacturing toys and figures synonymous with the horror genre as well as other genres; Mezcotoyz from Long Island, New York which produces horror figures such as “Chucky” and the “Living Dead” range; Dark Horse which produces figures from the “Game of Thrones” franchise; and Monogram International Inc. which is based in California and which manufactures toys and figures under licenses from Disney, Marvel, DC Comics, Nickelodeon and others. The Appellant is a member of the British Toy and Hobby Association. The Appellant distributes the figures and dolls to specialist toy shops that are more aimed at adults as well as “high street” toy shops and online retailers. The figures and dolls are advertised by online retailers in their toy section.

All of the imported collectible figures are licensed products and depict a fictional character from a comic-book, film or television series. The figures are imported packaged for retail sale in cardboard “window boxes.” MF confirmed that each character has a “backstory” based on the comic-book or the film and television series narrative; that “backstory” may include special characteristics. The special characteristics may include some or all of the following: physical features that are different to those found in human beings (i.e. different flesh colour to human beings); the character depicts or portrays a species from another world (“an alien”) or a God from mythology; has superpowers or special abilities which humans do not have; the character depicts or portrays a doll, the character has features that appear human (“humanoid”) but is a robot or the character was “dead” but has been brought back to “life” as a “zombie”.

All the items packaged with the licensed figure are not included by chance but are directly connected to the licensed figure and their “backstory”.

CP’s evidence consisted of confirming the approach taken by HMRC in classifying the items in dispute. She confirmed that HMRC considered that in order for an item to classified to the Dolls subheading, the doll must be capable of movement through movement in the joints, head, etc. or have mechanisms which permit movement but that whilst not all “dolls” are jointed or have mechanisms which permit movement, e.g., “plush” dolls which are soft and pliable which means they have movement. Where a figure had clear non-human characteristics, HMRC accepted that the item should be classified as a Non-human toy. Where an item did not have specific non-human physical characteristics and otherwise met the criteria for a doll or humanoid figure, then HMRC would classify the item as either a Doll or Other of plastic. Where the figure’s face was covered by a mask or non-removeable helmet or headdress such that the facial features could not be identified as human or non-human, HMRC classified it as Non-human toy subject to the item potentially being classified as part of a Set. Where an item was held by or physically connected to a toy figure, HMRC were more likely to determine that the item was an accessory, but it was not HMRC’s position that this was the sole test not that it could be applied in all instances. It was HMRC’s position that the tests for determining whether items were accessories to a main item or part of a Set had to be applied on a case-by-case basis and by reference to the objective and essential characteristics of the items. CP’s evidence was that the approach to classification stated in the CNEN dated 31 May 2018 was the one that HMRC had applied since she joined the team in 2015, we accept that unchallenged evidence.

The Harmonized System (HS) of customs commodity codes is an internationally standardised system of names and numbers to classify traded products. It came into effect in 1988 and is maintained by the World Customs Organization (WCO) based in Brussels. The UK is a contracting party to the HS. All EU Member States are also contracting parties to the HS individually and as part of the EU as a contracting party in its own right.

Prior to Brexit and the UK’s withdrawal from the EU on 31 December 2020, the UK relied on (and was required to apply the EU Regulations, Combined Nomenclature (CN) and Explanatory Notes to the CN (CNEN). The EU Commission regularly published guidance in the Official Journal and published BTI’s issued by Member States as an aid to interpretation of the CN and HS. The EU also established the European Commission Customs Code Committee which met regularly to consider tariff rulings and publish meeting agenda and minutes.

Under the HS, Contracting Parties are required to work together to achieve a consistent system of application. Accordingly, all Contracting Parties are obliged to take account of any guidance and Explanatory Notes issued by the WCO and Member State Contracting Parties are also obliged to take account of any Explanatory Notes and guidance published by the European Commission when applying the nomenclature of the HS.

HMRC’s decisions and Statement of Case were provided before 31 December 2020. Accordingly, the decisions of HMRC refer principally to EU legislation and guidance and the Statement of Case and Skeleton Argument similarly follow the same approach. As a then Member State, the UK had a specific compliance obligation in respect of all EU Regulations, Directives and, in this case, the CN and CNEN. In any event, such resources aid interpretation of the HS Headings and Subheadings and therefore remain relevant to customs classification generally notwithstanding the UK’s withdrawal from the EU.

The Combined Nomenclature Regulation (Reg EEC) No 2658/87 of 23 July 1987 (“Regulation”) provides the legal basis for the Community’s Tariff (which applied at the time of importation of items the subject of these appeals). An annual amendment to the Regulation contains the CN that is reproduced in the UK Tariff. The CN provides systematic classification of all goods in the international trade and is designed to ensure, with the aid of the General Rules for the Interpretation of the Harmonized System (“GIRs”), that any product falls to be classified in one place and only one place. The six GIRs are also the same as those published by the WCO in support of the HS.

The GIRs have legal force, and are intended to be applied, where goods cannot be classified solely by reference to the terms of headings and subheadings or by taking into account Section or Chapter Notes.

Explanatory Notes to the CN and HS are not legally binding; but are generally applied by customs authorities to ensure consistency between contracting parties to the HS. Notes to headings and subheadings within the HS do have legal effect. The approach to classification set out in the GIRs is legally binding on contracting parties.

There was no dispute between the parties that the provisions relevant to this appeal in the CN are at Chapter 95 and Chapter 39. Chapter 95 applies to “Toys, Games and Sports Requisites; Parts and accessories thereof”:

"9503 00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls; other toys; reduced size ("scale") models and similar recreational models, working or not; puzzles of all kinds:

9503 00 10 - Tricycles, scooters, pedal cars and similar wheeled toys; dolls carriages

- Dolls representing only human beings and parts and accessories thereof:

9503 00 21 - Dolls

9503 00 29 - Parts and accessories

…

– Other construction sets and constructional toys

9503 00 35 - Of plastics

9503 00 39 - Of other materials

– Toys representing animals or non-human creatures:

9503 00 41 - Stuffed

9503 00 49 90 - Other, Other

…

9503 00 70 – Other toys, put up in sets or outfits

– Other

…

Other

9503 00 95 – Of plastics

9503 00 99 – Other”

Chapter 39 applies to “Plastics and articles thereof”. Heading 3926 comprises: “Other articles of plastics and articles of other materials of headings 3901 to 3914”. There are 24 commodity codes arising under Heading 3926 but only one is relevant namely:

“3926 40 00 – Statuettes and other ornamental articles”

We refer to the sub-headings above as “Dolls”, “Construction Sets”, “Non-human toys”, “Sets”, “Other toys of plastic” and “Statuettes.”

Note 2 to Chapter 39 (“Note 2”), which is legally binding, provides as follows:

“This chapter does not cover:

…

(y)

articles of Chapter 95 (for example, toys, games, sports requisites)

Note 3 to Chapter 95 (“Note 3”), which is legally binding, provides as follows:

“Subject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.”

Note 4 to Chapter 95 (“Note 4”), which is legally binding, provides as follows:

“Subject to the provision of note 1 above, heading 9503 applies, inter alia, to articles of this heading combined with one or more items, which cannot be considered as sets under the terms of General rule of interpretation 3(b) and which, if presented separately, would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.”

The HSENs, which are not legally binding, relevantly state:

Chapter 39

Notes. …

2.

This Chapter does not cover:

…

(y)

Articles of Chapter 95 (for example, toys, games, sports requisites);

…

Plastics

Plastics have almost unlimited applications but many articles made therefrom are classified elsewhere (see Note 2 to this Chapter).

39.26

Other articles of plastics and other articles of other materials of headings 39.01 to 39.14

3926.10

- Office or schools supplies

3926.20

– Articles of apparel and clothing accessories (including gloves, mittens and mitts)

3926.30

– Fittings for furniture, coachwork or the like

3926.40

- Statuettes and other ornamental articles

3926.90

- Other

This heading covers articles, not elsewhere specified or included of plastic ( as defined in Note 1 to the Chapter) or other materials of headings 39.01 to 39.14

The included:

…

(3)

Statuettes and other ornamental articles.”

Chapter 95

“This Chapter covers toys of all kinds whether designed for the amusement of children or adults …

Each of the headings of this Chapter also covers identifiable parts and accessories of articles of this Chapter which are suitable for use solely or principally therewith, and provided they are not articles excluded by Note 1 to this Chapter.”

The HSENs for Chapter 95 under the heading “General” provides:

“Each of the headings of this Chapter also covers identifiable parts and accessories of articles of this Chapter which are suitable for use solely or principally therewith, and provided they are not articles excluded by Note 1 to this Chapter.”

The HSENs for heading 9503 identifies four groups A to D and states:

“This heading covers: …

…

(C)

Dolls

This group includes not only dolls designed for the amusement of children, but also dolls intended for decorative purposes (e.g. boudoir dolls, mascot dolls), or for use in Punch and Judy or marionette shows, or those of a caricature type.

Dolls are usually made of rubber, plastic, textile materials, wax, ceramics, wood, paperboard, papier mâché or combinations of these materials. They may be jointed and contain mechanisms which permit limb, head or eye movements as well as reproductions of the human voice, etc. They may also be dressed.

Parts and accessories of dolls of this heading include: heads, bodies, limbs, eyes (other than those unmounted of glass, of heading 70.18), moving mechanisms for eyes, voice producing or other mechanisms, wigs, dolls’ clothing, shoes or hats.

(D)

Other toys.

This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This groups includes:

All toys not included in (A) to (C). Many of the toys are mechanically or electrically operated.

These include:

(i)

Toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows.

…

Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature are classified in this heading when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).

Also as provided by Note 4 to this Chapter, subject to Note 1 to this Chapter, this heading includes articles of the heading combined with one or more items which would be classified in other headings if presented separately, provided that:

(a)  the combined items are put up together for retail sale, but the combination cannot be considered as a set under the terms of General Interpretative Rule 3 (b); and

(b)  the combination has the essential character of toys. Such combinations generally consist of an article of this heading and one or more items of minor importance (e.g., small promotional articles or small amounts of confectionary).”

The CNEN published by the Commission on 4 March 2015, stated the following:

“9503 00 21 Dolls

See the HS Explanatory Note to heading 9503, (C), first two paragraphs.

See also the Explanatory Notes to subheadings 9503 00 81 to 9503 00 99

This subheading includes, by application of general rule 2(a) for the interpretation of the Combined Nomenclature, unassembled or disassembled dolls.

9503 00 29 Parts and accessories

See the HS Explanatory Note to heading 9503, (C), third paragraph.

9503 00 35 and 9503 00 39 Other construction sets and constructional toys

These subheadings include construction sets and constructional toys other than reduced-size (‘scale’) model assembly kits, which have the character of toys. Such goods have the following characteristics:

– they consist of two or more individual components presented together in a packing;

– the individual components are mutually complementary and are not suitable for playing with on their own merits. An assembly instruction may be provided with these construction sets.

950300 41 and 9503 00 49 Toys representing animals or non-human creatures

These subheadings include, by application of general rule 2(a) for the interpretation of the Combined Nomenclature, unassembled or disassembled toys representing animals or non-human creatures.

9503 00 70 Other toys, put up in sets or outfits

‘Sets’ of this subheading consist of two or more different types of articles (principally, for amusement), put up in the same packing for retail sale without repacking.

Articles of the same subheading, except for items covered by subheadings 9503 00 95 or 9503 00 99 (since these subheadings may include miscellaneous articles of different types), are not to be considered different types of articles.

Apart from the articles forming a set, simple accessories or objects of minor importance intended to be used with the articles (for example, a plastic carrot or a plastic brush for a toy animal) can be present.

By virtue of note 4 to Chapter 95, this subheading includes sets intended for the amusement of children, consisting of articles of heading 9503 combined with one or more items which, if presented separately, would be classified in other headings, provided that the combinations have the essential character of toys. Examples are:

— sets consisting of toys in the form of injection moulds and moulds for modelling pastes, together with other items such as tubes or tablets of paint, modelling pastes, pencils and chalks,

— cosmetic sets for children, containing articles of heading 9503 combined with preparations of heading 3304.

However, cosmetic sets for children containing preparations of heading 3304 which do not contain any articles of heading 9503 are excluded (heading 3304).

‘Outfits' of this subheading consist of two or more different articles put up in the same packing for retail sale, without repacking, and are specific to a particular type of recreation, work, person or profession, such as instructional and educational toys.

9503 00 81 to 9503 00 99 Other

These subheadings include humanoid figurines, for example, in the form of film, fairy-tale or comic-book characters, Indians, astronauts or soldiers, not with movable parts and not with detachable clothing, fixed on a base-plate, pedestal or a similar base which enables the figurine to maintain its pose unsupported.

Such figurines often form part of a collection series. Because they are small, light and robustly made, they are, however, usually used as toys by children. Their recreational function therefore outweighs their ornamental value.

These subheadings include, by application of general rule 2(a) for the interpretation of the Combined Nomenclature, unassembled or disassembled humanoid figurines (tin soldiers and the like).

The Appellant relied upon HMRC’s Guidance Note – Classifying toys, games and sprots equipment for import and export (2012) which was extant at the time of the importation of the disputed items. The Guidance note was published on 3 August 2012; however, neither party was able to provide the Tribunal with the original guidance only the version that was updated on 27 April 2018. It was stated by the Appellant, which was not disputed by HMRC, that the original and updated Guidance Note relevantly stated:

“Remember that dolls only representing humans are covered by these classification codes.”

The relevant GIRs (which are required to be applied in numerical order) are as follows:

"1.  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.

2 …

3.  When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a)  the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;

(b)  mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable;

(c)  when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

4.

Goods which cannot be classified in accordance with the above Rules shall be classified under the heading appropriate to the goods to which they are most akin.

5.

[This provides that cases, boxes and packing material be classified together with the goods they contain.]

6.

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 purposes of this Rule the relative Section and Chapter Notes also apply, unless the context otherwise requires.”

Binding Tariff Information notices (“BTIs”) are issued by the Customs Authorities of the Member States pursuant to Article 12 of the Common Customs Code (Council Regulation 2913/92/EEC) on request from a trader. BTIs are binding on the relevant authorities in respect of the tariff classification of goods. The Tribunal must exercise care before departing from a settled approach set out in BTIs (see Case C-495/03 Intermodal Transports BV v Staatssecretaris van Financien at [34]). The parties relied upon a number of BTIs issued by both the UK and other Member States but we found these largely (save for the BTI in respect of the Third Decision) to be of limited or no assistance as there was frequently either no explanation or only a limited explanation of the reason for the classification and, taken as a whole, we were unable to discern a consistent approach.

The HSENs and the CNENs are an important aid to the interpretation of the scope of the various tariff headings but do not themselves have legally binding force. The content of the HSENs and the CNENs must therefore be compatible with the provisions of the CN, and cannot alter the meaning of those provisions (see Revenue and Customs Commissioners v Honeywell Analytics Limited [2018] EWCA Civ 579 per Davis LJ at [95] and InvamedGroup Limited and ors v HMRC [2020] EWCA Civ 243 per Patten LJ at [12]).

The Upper Tribunal in Barrus & Kubota v Revenue and Customs [2013] UKUT 0449 (TCC) at paragraph [41] summarised the approach to be adopted by the Tribunal to the classification of products as follows:

“In our view the following principles can be derived from the authorities we have reviewed:

(1)  The decisive criterion for the classification of goods for customs purposes is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters…;

(2)  The relevant criteria must be apparent from the external characteristics of the goods so that they can be easily appraised by the customs authorities (Farfalla Fleming);

(3)  By the examination of the external characteristics the main purpose of the product must be inferred. It does not matter if there are other purposes for the product (Neckermann);

…

(5)  Marketing materials and a product's targeted use are not to be taken into account (Kamino, Honda)”

The approach to customs classification was summarised by the Court of Appeal in Build-A-Bear Workshop UK Holdings Ltd v HMRC [2022] EWCA Civ 825 (“BaB CA”) at [15], quoting the decision of the Upper Tribunal in Build-a-Bear WorkshopUK Holdings Ltd v HMRC [2021]UKUT 67 (TCC) (“BaB UT”):

“16.

For present purposes, suffice to say that:

(1)

The GIRs provide a set of rules for interpretation of the CN in order to ensure that all products are classified under the correct code and (unlike the HSENs and CNENs) all have "the force of law" (Vtech [16]).

(2)

It is common ground that, in the interests of legal certainty and ease of verification, the decisive criteria for the tariff classification of goods must be sought in their objective characteristics and properties as defined by the wording of the relevant heading of the CN and of the notes to the sections or chapters of the CN (Holz Geenen GmbH v Oberfinanzdirektion Munchen (Case C-309/98) at [14]).

(3)

The intended use of the goods may be considered as part of the classification analysis where that use is inherent to the goods and that inherent character is capable of being assessed by reference to the objective characteristics and properties of the goods (see Hauptzollant Hamburg-St. Annen v Thyssen Haniel Logistic GmbH (Case C-459/93) … at [13]).

(4)

Having regard to the objective characteristics and properties of the goods, a combined examination of the wording of the headings and the explanatory notes to the relevant sections and chapters should be undertaken to determine whether a definitive classification can be reached, in accordance with GIR 1 and GIR 6. If not, then in order to resolve the conflict between the competing provisions, recourse must be had to GIRs 2-5 (see the opinion of Advocate General Kokott in Uroplasty v Inspector van de Belastingdienst (Case C-514/04) … at [42].

(5)

GIR 3 will apply only when it is apparent that goods are prima facie classifiable under a number of headings (see Kip Europe SA & Ors and Hewlett Packard International SARL v Administration de douanes (Cases C-362/07-C363/07) … at [39] and the wording of GIR 3 itself).

(6)

Classification must proceed on a strictly hierarchical basis, taking each level of the CN in turn. The wording of headings and subheadings can be compared only with the wording of headings and subheadings at the same level (see the opinion of Advocate General Kokott, Uroplasty [43]).

It is for the national court, in this case the Tribunal, to determine the objective characteristics, having regard to a number of factors including their physical appearance, composition and presentation (Wiener SI GmbH v Hauptzollamt Emmerich (Case C-338/95 at [21].

Line 1: Walking Dead: figures in blind bags 1

Description: “Blind bags” Series 3 containing five to seven moveable body parts to assemble a 2” plastic figure with accessories of either a survivor or a zombie from the Walking Dead zombie television series. All the accessories are small, simple items made of plastic that are proportionate in size to the 2” figure and can be held by or attached to the figure. All the figures have a “U” shaped plastic attachment to the rear of either their left or right shoe allowing the figure to be used with and attached to Walking Dead construction sets. Blind bags are a common way in the United States to sell toys. As they are primarily aimed at the United States market they are rarely imported into the UK for sale. The contents of the bag cannot be seen when purchasing the blind bag and appeal to consumers who are trying to collect all the items in a blind bag series either by purchasing blind bags or swapping “duplicates” with other collectors.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings or Other toys put up in sets or outfits 9503 00 70 00. 4.7% duty rate. HMRC accept that the bag is packaging, GIR 5 applied.

Appellant’s Classification: Zombies do not represent human beings because there are no human features visible and no human being is capable of walking around when dead, with missing skin and missing limbs. One of the survivor figures is fully masked and cannot be identified as humanoid. The four remaining survivor figures all carry a pathogen which will turn them into zombies when they die. This is not a characteristic representative of human beings. The figures represent non-human creatures. 9503 00 49 90 non-human and not a set. 0% rate of duty.

Tribunal Classification: For the reasons set out at paragraphs 132 to 134 above, the blind bags are classifiable to 9503 00 95 90 “Other- of plastic”. 4.7% duty rate.

Line 3: The Walking Dead: figures in blind bags 2

Description: “Blind bags” Series 2 containing five to seven moveable body parts to assemble a 2” plastic figure of either a survivor or a zombie from the Walking Dead zombie television series. All the accessories are small, simple items made of plastic that are proportionate in size to the 2” figure and can be held by or attached to the figure. All the figures have a “U” shaped plastic attachment to the rear of either their left or right shoe allowing the figure to be used with and attached to Walking Dead construction sets.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings or Other toys put up in sets or outfits 9503 00 70 00. 4.7% duty rate. HMRC accept that the bag is packaging.

Appellant’s Classification: As per Appellant’s classification for Line 1 above. 9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: For the reasons set out at paragraphs 132 to 134 above, the blind bags are classifiable to 9503 00 95 90 “Other- of plastics”. 4.7% duty rate.

Line 5: Coraline

Description: A rag doll of the character “Coraline” from the horror film of the same name: “Coraline”. The figure is approximately 9” tall and is stuffed with a soft fabric that can be depressed and cannot stand-up unaided. The figure is wearing a removeable yellow raincoat with hood and non-removable yellow boots, striped tights, skirt and short-sleeved top. The figure has blue and black soft cord for hair with the blue fabric predominating. The figure only has three “fingers” (denoted by stitching as opposed to three digits) on each hand, has non-removeable large black buttons with four holes instead of eyes and what appears to be surgical stitches in a continuous line from the bottom of the left ear to the mouth, across the mouth, and to the bottom of the right ear.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings. 4.7% duty rate.

Appellant's Classification: In the horror film “Coraline”, a little girl called Coraline is given a ragdoll and it is a toy of this ragdoll that has been imported and not a toy depiction of the little girl. The figure is a toy of a doll (a non-human creature) and not a doll of a human being and therefore represents a non-human creature and not a human being. It has non-human features – only three fingers and buttons instead of eyes. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: We have taken no account of the backstory. We consider the large non-removeable buttons in the place of eyes are clearly defined non-human features, such features warrant classification to 9503 00 41 stuffed Non-human toy. 4.7% duty rate.

Line 6: Captain America

Description: 8” solid plastic figure from the Marvel comic-books and films affixed to a non-removeable plastic base plate emblazoned with the letters “C” and “A” with non-moveable body parts and with a “bobblehead”. The “bobblehead” is oversized compared to the body of the figure and instead of a solid connection the head is connected to the body by a spring or hook in such a way that a light touch to the head will cause the head to move around or “bobble”. The figure is part of the headknocker range. The head is covered by a blue helmet with a mask-like attachment over the eyes. The figure’s eyes can clearly be seen through the mask part of the helmet. Affixed to the figure’s left arm is a round shield with red and silver concentric circles emblazoned with a silver star in the centre.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings. 4.7% duty rate.

Appellant's Classification: Captain America has physical abilities significantly beyond the capabilities of normal human beings by virtue of having been injected with a “super-serum” and turned into a “super-soldier”. He does not, therefore, depict or portray a human-being. The figure represents a non-human creature. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure has clearly defined human features and is recognisable as only representing a human being. The figure has non-moveable body parts with a “bobblehead” that is capable of movement and affixed to non-removeable base plate. We consider that the presence of the non-removeable base-plate takes the figure out of the Dolls subheading. We have considered whether the figure should be classified as a Statuette but have concluded that the “bobblehead” and the robust quality of the figure prevents the figure being a Statuette. In addition, we do not consider that the figure can be considered ornamental (in the sense of being decorative) and its ornamental value is not outweighed by its recreational value. We have concluded that figure should be classified to 9503 00 95 90 “Other- of plastics”. 4.7% duty rate.

Line 7: Thor

Description: 9” solid plastic figure of Thor, Norse God of Thunder, from the Marvel comic-books and films. The figure is affixed to a non-removeable base plate with non-moveable body parts and a “bobblehead”. The “bobblehead” is oversized compared to the body of the figure and instead of a solid connection the head is connected to the body by a spring or hook in such a way that a light touch to the head will cause the head to move around or “bobble”. The figure is part of the headknocker range. The figure is clothed in non-removeable clothing, knee length boots, body and wrist armour and a red cloak. In the figure’s left hand is held a large non-removeable hammer. The figure’s head is not covered and the figure is clearly identifiable as a human being.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings. 4.7% duty rate.

Appellant's Classification: Thor is not a human being. He is the Norse God of Thunder from the realm of Asgard. Asgard is one of the Nine Worlds surrounding the tree Yggdrasil. Norse mythology portrays Asgard as a fortified home to the Æsir tribe of gods, located in the sky. Thor has physical abilities significantly beyond the capabilities of human beings, with super-human strength, the ability to wield thunderbolts and the ability to fly. The figure represents a non-human creature. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure has clearly defined human features with an uncovered face and is recognisable as only representing a human being. The figure has non-moveable body parts with a “bobblehead” that is capable of movement and affixed to non-removeable base plate. We consider that the presence of the non-removeable base-plate takes the figure out of the Dolls subheading. We have considered whether the figure should be classified as a Statuette but have concluded that the “bobblehead” and the robust quality of the figure prevents the figure being a Statuette. In addition, we do not consider that the figure can be considered ornamental (in the sense of being decorative) and its ornamental value is not outweighed by its recreational value. We have concluded that figure should be classified to 9503 00 95 90 “Other- of plastics”. 4.7% duty rate.

Line 8: The Hulk

Description: 9” plastic figure of the green coloured mutant monster from the Marvel comic-books and films. The figure is affixed to a non-removeable base plate with non-moveable parts with a “bobblehead”. The “bobblehead” is oversized compared to the body of the figure and instead of a solid connection the head is connected to the body by a spring or hook in such a way that a light touch to the head will cause the head to move around or “bobble”. The figure is part of the headknocker range. that wobbles on a fixed base plate (part of the headknocker range). The figure is clothed with non-removable purple knee-length trousers. The figure has well defined and exaggerated muscle definition and its facial features are not covered. Despite the green skin, the figure is clearly recognisable as a human being.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings. 4.7% duty rate.

Appellant's Classification: The Hulk is a mutant monster of over eight feet tall and is far stronger than any human being. He has green skin which human beings do not. The figure depicts or portrays a non-human creature. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: Despite the green skin colour the figure has clearly defined human features with uncovered face and is clearly recognisable as representing only a human being. The figure has non-moveable body parts with a “bobblehead” that is capable of movement and affixed to non-removeable base plate. We consider that the presence of the non-removeable base-plate takes the figure out of the Dolls subheading. We have considered whether the figure should be classified as a Statuette but have concluded that the “bobblehead” and the robust quality of the figure prevents the figure being a Statuette. In addition, we do not consider that the figure can be considered ornamental (in the sense of being decorative) and its ornamental value is not outweighed by its recreational value. We have concluded that figure should be classified to 9503 00 95 90 “Other- of plastics”. 4.7% duty rate.

Line 12: Living Dead Dolls

Description: Six 10” plastic figures from the Living Dead themed doll collection “Lost in Oz”. All the figures are wearing removeable clothing which when removed reveals that an identical plastic doll’s body is used for each character. The dolls have joints in the arms and legs that permit movement. The boxes containing the Living Dead Dolls all stated: “Not a toy for children intended for adult collectors only” and “for spooky kids ages 15 and up”. The themed collection was comprised of: Dorothy (with fabric flat dog accessory, “Toto”) with vehicle tyre marks imprinted on the dog and an attached lead); Tin Man (with large blood spattered felling axe with notch that allows the axe to be held by the figure); Lion; Scarecrow; Wicked Witch of the West (“Witch”) (with traditional tall, pointed conical black witch’s hat), and Wizard with velvet looking drawstring bag containing two small metal ball bearings, plastic heart and plastic brain. The Dorothy figure is wearing silver shoes, a green short-sleeved top with a green and white gingham pinafore, has long black hair and wearing removeable green lensed glasses which concealed a black sclera with a green coloured dot as the pupil. The Tin Man figure was wearing removeable green lensed glasses which concealed Philips screw heads in place of eyes. The Wizard figure was wearing green lensed removeable goggles which concealed yellow sclera and yellow pupil. The Witch figure was wearing removeable green lensed glasses concealing green sclera and green pupil. The Lion figure was wearing removeable green lensed glasses concealing human eyes.

HMRC Classification: 9503 00 21 90 Dolls representing human beings or 9503 00 70 00 Other toys put up in sets or outfits 4.7% duty rate. Dorothy and Wizard (although the heart is an accessory, the brain and the bag containing two balls bearings would be classified to a different heading) classified as Sets. Tin Man (the axe is considered an accessory), the Witch (the separately packaged hat is considered an accessory) and Lion classified as representing only human beings. It was accepted that the Scarecrow is “non-human” and re-classified as “non-human” under 9503 00 49 90.

Appellant’s Classification: Dorothy is not a set and the fabric flat dog, Toto, is clearly connected to Dorothy and it does not, in its own right, have any use or function and is purely to be used with the Dorothy figure. In the Wizard of Oz the Tin Man was not human. He was robotic and did not have a heart. This figure does not therefore depict or portray a human being but is a robot. The Wicked Witch of the West depicts or portrays a witch, not a human being. The Wicked Witch of the North had magic powers which human beings do not have and could fly. The skin colour of the figure is green which is not the colour of a human being. The figure represents a non-human creature. The Wizard has green coloured skin which is not the skin colour of a human being. The Wizard is not a set as, like the heart, the brain and the bag are directly connected to the main figure and do not in their own right have any use of function and are all to be used with the Wizard figure. The Wizard represents a non-human creature.

All are 9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification:

Dorothy

The figure has clearly identifiable human features and represents only a human being and is clearly classifiable as a Doll. The flattened fabric dog is attached to a lead that has a loop at the end through which the figure’s hand can be inserted. We have concluded that the fabric dog accessory is a simple accessory as it enhances the way in which the figure can be used for amusement or play and has no independent play value. The Dorothy figure and accessory should be classified to 9503 00 21 90 Dolls with a duty rate of 4.7%

Tin Man

Whilst the figure had predominantly human features, removal of the green lensed glasses revealed non-human features: Crosshead screw heads (“Phillips”) in place of eyes. The felling axe is large in proportion to the figure but have concluded that the presence of the notch that allows the axe to be held by the figure enhances the way in which the figure can be used for amusement or play and it is suitable for use solely or principally with the Tin Man figure. The Tin Man figure and accessory should be classified to 9503 00 49 90 Non-Human toys with a duty rate of 0%

Lion

The Lion figure was wearing a removeable one-piece green fabric outfit with a hood, attached to the hood are green strands of fabric intended to replicate a lion’s mane. The figure was wearing removeable green lensed glasses concealing human eyes. Despite the green outfit, the figure is clearly recognisable as a doll representing only a human being. We have classified the Lion figure to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Scarecrow

HMRC accepted that the Scarecrow figure is a Non-human toy and had re-classified it as a Non-human toy under 9503 00 49 90. We do not disagree with that conclusion.

Wicked Witch of the West

The Witch figure had green tinged skin and was wearing a green skirt cloak with black crochet style top and a removeable green lenses glasses. Removal of the glasses revealed human eyes with green sclera and green pupils. It was accepted by HMRC that the traditional tall, pointed conical black witch’s hat packaged with the figure was a simple accessory. We agree with that conclusion. Despite the green tinged skin, we consider that the figure is clearly recognisable as a doll representing only a human being. We have classified the Witch figure to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Wizard

The Wizard has green coloured skin and was wearing a blood-spattered white laboratory coat over a black suit with a bow tie together with brown boots and gaiters. The figure was wearing brown goggles with green lenses and had vivid orange hair. Painted just below both sides of the mouth were small purple fangs. Packaged with the figure was a velvet looking fabric bag (containing two small metal ball bearings), plastic heart and plastic brain. The Wizard figure had a notch on its right hand to enable the plastic heart to be attached to the figure. The two ball bearings and plastic brain could not be attached or held by the Wizard figure. We consider that despite the green skin and painted/drawn on small purple fangs the figure is clearly recognisable as a doll representing only a human figure. We agree with HMRC that the plastic heart is simple accessory. We do not accept that, based on their objective characteristics, that the two small metal ball bearings and plastic brain provide some additional functionality or enhance the performance or play value of the Wizard figure and are classifiable in their right. We have concluded that the correct classification for the Wizard figure and included items is to 9503 00 70 00 Sets with a duty rate of 4.7%.

Line 14: Kitana

Description: 6” solid plastic female figure from the Mortal Kombat computer game with moveable body parts and two weapons which can be held by the figure. The figure is wearing a non-removable mask covering the mouth and neck but human eyes, nose and ears can be clearly seen. The figure is wearing thigh length boots with knee protectors and wearing body armour that only covers the figures groin area, breasts, sternum and shoulders.

HMRC Classification: 9503 00 21 90 Dolls representing human beings or a 9503 00 70 00 set if the simple objects packaged with the figure are not “intended to be used with the doll” and are not “considered an accessory to the doll”. 4.7% duty rate.

Appellant’s Classification: The figure is not a set because the two weapons do not in their own right have any use or function and are purely to be used with the main figure. The character Kitana is 10,000 years old and an alien from the fictional planet Edenia and represents a non-human creature.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figure is clearly recognisable as representing only a female human being. We consider that the two weapons packaged with the figure and that can be held by the figure are simple accessories of minor importance that are intended to be used with the figure and enhances the way in which the figure can be used for amusement or play and has no independent play value. We have concluded that the correct classification of the Kitana figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 15: Raven

Description 9” solid plastic female figure from the DC comic-book team “The Titans” with moveable body parts. The figure is wearing a blue leotard with blue thigh length boots, a gold-coloured belt and a long blue hooded cloak. The cloak is attached to the figure by gold coloured fastening just below the neck and the figures full facial features can be seen under the hood.

HMRC Classification: On review, 3926 40 00 00 Statuettes or other ornamental articles, 6.5% duty rate, in witness statement 9503 00 21 90 Dolls representing human beings 4.7% duty rate.

Appellant’s contentions: The Raven character is half-demon and has telekinetic powers and her soul can act as her eyes and ears when physically distanced from her body. These are non-human attributes and the figure represents a non-human creature.

9503 00 49 90 “non-human” 0% duty rate.

Tribunal Classification: The figure is clearly recognisable as representing only a female human being. We do not accept that the figure can be properly classified as a Statuette as it is capable of movement and is robustly made, we have concluded that its recreational function outweighs its ornamental value. We have concluded that the correct classification of the Raven figure is to 9503 0021 90 Dolls with a duty rate of 4.7%.

Line 16: Emma Frost

Description: 8” solid plastic female figure from the “X-men” comic-books with moveable body parts on a removeable base. The figure is wearing black thigh length boots and a black body suit (with cutaway to expose the area from midriff to sternum) with attached black cloak. The figure’s head is uncovered and female human facial features can clearly be seen.

HMRC Classification: 9503 00 21 90 Dolls representing human beings or 9503 00 70 00. 4.7% duty rate.

Appellant's Classification: The character is a mutant with telepathic powers who can also transform her body into a solid diamond. These are non-human attributes and the figure represents a non-human creature.

9503 00 49 90 “non-human” 0% duty rate.

Tribunal Classification: The figure is clearly recognisable as representing only a female human being. We have concluded that the correct classification of the Raven figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 17: Batman

Description: 10” solid plastic figure of the DC comic-book superhero with no moveable parts with a non-removeable mask packaged with a modular base comprised of 80 unassembled pieces (with assembly instructions). The unassembled modular base pieces each have numerous holes for the Batman figure to be inserted in various poses via a peg attached to the character’s left hand. Both the figure and modular base are 1/10 scale. The packaging states “This product incorporates the new BUILD-UP DIORAMA BASE system. Using different combinations of base and joint pieces, a variety of environments can be produced: A ruined factory, dimly lit corridors, and broken windows or smashed-in ceilings can all be created quickly and easily with the new snap-fit assembly system.”

HMRC Classification: On review, 9503 00 21 90 Dolls representing human beings. 4.7% duty rate. In witness statement, HMRC classified it as a Set as the modular base would be classified to a different heading as it had independent play value: 9503 00 30 “Electric trains, including tracks, signals and other accessories therefor; reduced-size (scale) model assembly kits”. 4.7% duty rate. HMRC agree that if not a Set, it is a Non-human toy because of the non-removable mask.

Appellant’s Classification: Not a set as the modular base is intended to be used with the figure and the figure designed to be attachable to the modular base. The mask is non-removeable which is not a characteristic of a human, the character represents a non-human. 9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The Batman figure has no moveable parts and is in a fixed “flying kick” pose and is incapable of standing unsupported. It was accepted by the Appellant during the hearing that the Batman figure is a figure representing only a human being. We agree. Despite the mask concealing part of the figure’s face, the figure has clearly identifiable human physical facial features and is recognisable as representing only a human being. Having examined the figure, it is our view that it is suitable for playing with on its own merits. We did not consider that the modular base had any independent play value as the preponderance of the holes in each piece of the modular base meant that it was only suitable for use with the Batman figure. We concluded that, based on the objective characteristics of the modular base, it is classifiable as “parts and accessories” under the Dolls subheading. In our judgment, the Batman Doll is the component which gives the packaged items their essential character and, applying GIR3(2) we have concluded that, based on the objective characteristics of the packaged items that the correct classification of the packaged items is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 18: Batman figure – The Arkham Knight

Description: 10” solid plastic figure of the DC comic-book super-villain character, The Arkham Knight, with no moveable parts with a non-removeable mask and modular base comprised of 80 unassembled pieces (with assembly instructions). The unassembled modular base pieces each have numerous holes for the figure to be inserted in various poses via a peg attached to the left heel of the character. The assembled modular base has numerous holes for the figure to be inserted in various poses via a peg attached to the character’s left hand. Both the figure and modular base are 1/10 scale. The packaging states “A first for the ARTFX+ series: the Arkham Knight come with a new modular base system that lets you customise your display with a wide range of options: you can have the villain rushing over rooftops, breaking through a wall, or tackling the hero! Even better, you can really craft your own unique display”.

HMRC Classification: On review, 9503 00 21 90 Dolls representing human beings. 4.7% duty rate. In witness statement, 9503 00 70 00 set because of the modular base. 4.7% duty rate. HMRC agree that if not a set, non-human because of the non-removable mask.

Appellant’s Classification: Not a set as the modular base is intended to be used with the figure and the figure designed to be attachable to the modular base. The mask is non-removeable which is not a characteristic of a human, the character represents a non-human.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The Arkham Knight figure has no moveable parts and is in a fixed “running” pose and is incapable of standing unsupported. HMRC accepted that if the packaged items were not classified as a Set, it was agreed that the figure was a non-human toy as figure’s helmet was non-removable and no facial features could be seen. We agree that the figure is a Non-human toy. Having examined the figure, it is our view that it is suitable for playing with on its own merits. We did not consider that the modular base had any independent play value as the preponderance of the holes in each piece of the modular base meant that it was only suitable for use with the Arkham Knight figure. We concluded that, based on the objective characteristics of the modular base, it is classifiable as an accessory which is suitable for use solely with the Arkham Knight figure. Note 3 requires that accessories which are suitable for use solely with articles of Chapter 95 are to be classified with those articles and we have concluded that the correct classification of the packaged items is to 9503 00 49 90 Non-human toys with a duty rate of 0%.

Line 2: Jason Vorhees

Description: 7” solid plastic figure from the Friday 13^th film franchise with moveable body parts packaged with a removeable right hand, removeable ice hockey mask, two knives that fit in the scabbards attached to figure, fence post (in two parts) that can be held by replacement right hand. When the ice hockey mask is removed, exposed sinew and bones can be seen instead of facial skin.

HMRC Classification: 9503 00 70 00 other toys put up in sets or outfits. Fence post and two knives are accessories to figure, tombstone is not accessory.4.7% duty rate. Agree that the figure is a Non-human toy.

Appellant’s Classification:

The character is a non-human creature as the character’s face has exposed sinew and bones and was reanimated after death when lightning struck the metal fence post that impaled the character’s corpse in a buried coffin. The character is not a set as the tombstone has “Jason Voorhees” engraved upon it and is intended to be used with the main figure and it does not, in its own right, have any use or function.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figure, whilst having predominantly human features, is clearly a Non-human toy as it has exposed sinew and bones where a face would be. We consider that the removeable right hand, removeable ice hockey mask, two knives and fencepost are accessories to the figure as they are to be used solely or principally with the figure and enhance the play and amusement value. We do not accept that the plastic tombstone performs a particular function in relation to the figure by adding to or enhancing the way in which the figure can be used for amusement or play and is classifiable to 9503 0095 00 Other of plastic. As the items are packaged together for retail sale, we have concluded that the figure and items should be classified to 9503 00 70 00 Sets with 4.7% duty rate.

Line 3: Jason Vorhees (different figure to Line 2).

Description: 7” solid plastic figure Friday 13^th film franchise with moveable body parts packaged with non-removeable ice hockey mask and two weapons that are designed to fit the figure’s hand and be held .

HMRC Classification: 9503 00 70 00 other toys put up in sets or outfits as contains two weapons. 4.7% duty rate. Agree that “non-human” as mask non-removeable.

Appellant’s Classification:

Not a set as the two weapons packaged with the figure do not, in their own right, have any use or function and are designed to be used with the figure. Figure is non-human as mask cannot be removed.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figure’s ice hockey mask is non-removeable and it cannot be seen if the figure has human or non-human facial features. We agree with the parties that the figure is properly classifiable as a Non-human toy. We consider the two weapons to be small simple accessories that are of minor importance designed and intended to be used with the figure. Accordingly, we have concluded that the figure and two weapons should be classified to 9503 00 49 90 Non-human toy other with 0% duty rate.

Line 6: Red Hood

Description: 8” solid plastic figure of a character of a superhero/villain from the DC Batman comic-books and films. The figure has no moveable parts and has a non-removeable metallic red helmet, is wearing non-removable clothing and has two holsters for the two non-removeable handguns that the figure holding in each hand. Supplied with the figure is a square magnetic base. The figure has metal incorporated into the soles of the figure’s footwear enabling the figure to be stand unaided in a fixed pose on the magnetic base.

HMRC Classification: On review, 9503 00 70 00 Other toys put up in sets or outfits. 4.7% duty rate. In witness statement, 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette. HMRC has classified the figure as a Statuette as it was considered insufficiently robust to be considered a toy as the gun holsters are somewhat fragile.

Appellant’s Classification: The figure would be purchased from a toy shop for its representation of a character from comic-books, television and films rather than its aesthetic value. The figure promotes recreational conversation and play based around the character. It is not a decorative statuette to display, its recreational value substantially exceeds its ornamental value.

9503 00 49 90 “non-human”. 0% duty rate.

Tribunal Classification: The figure does not have discernible facial features such as a mouth and ears and it cannot be seen whether the features beneath the non-removeable mask are human or non-human features. We consider that the absence of a mouth and ears the figure is clearly a non-human creature. We have examined the figure and the gun holsters attached to the figure. In our view the figure is robustly made and, whilst the gun holsters may appear to be physically fragile, our physical examination confirmed that they are robust to withstand the figure being played with by a child or adult. For those reasons we have concluded that its recreational function outweighs its ornamental value and it cannot properly be classified as a Statuette. We have concluded that the figure should be classified to 9503 00 49 90 Non-human toy other with a duty rate of 0%

Line 7: Magneto

Description: 8” solid plastic figure from the “X-Men” comic-books and films with non-moveable parts on a removable base of a mutant super-villain. The figure is clothed in non-removeable clothing with a fixed, billowing cloak, wearing boots, elbow length gauntlets and a non-removeable helmet. Despite the non-removable helmet, the facial features of the figure can clearly be seen to be that of a human being.

HMRC Classification: 9503 00 21 90 Dolls representing human beings 4.7% duty rate.

Appellant's Classification: The character is a powerful mutant who is able to control magnetism through which he manipulates metal objects. This is a superpower which human beings do not have. The figure represents a non-human creature.

9504 00 49 90 “non-human”. 0% duty rate.

Tribunal Classification: The figure clearly represents only a human being. We considered whether the figure should be classified as a Statuette but concluded that it should not as it is robustly made and its recreational value clearly outweighs its ornamental value. We have concluded it should be classified to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 8: The Flash

Description: 12” solid plastic figure of a superhero from the DC comic-books and films. The figure has no moveable parts and is wearing a non-removeable red bodysuit with yellow boots and a non-removeable mask. A removeable base is packaged with the figure. The non-removable mask covers the area around the figure’s eyes but it can be clearly seen that the figure has recognisable human facial features.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings 4.7% duty rate. In witness statement 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette.

Appellant’s Classification: The figure would be purchased from a toy shop for its representation of a character from comic-books, television and films rather than its aesthetic value. The figure promotes recreational conversation and play based around the character. It is not a decorative statuette to display, its recreational value substantially exceeds its ornamental value. The figure is non-human as it has the power of super-speed which enables it to create lightning and travel in time.

Not a statuette. 9504 00 49 90 “non-human”. 0% duty rate.

Tribunal Classification: The figure clearly represents only a human being. We considered whether the figure should be classified as a Statuette but concluded that it should not as it is robustly made and its recreational value clearly outweighs its ornamental value. We have concluded it should be classified to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 9: Poison

Description: 10” solid plastic figure is a character from the computer game, “Street Fighter”. The figure clearly represents a female human being and is wearing high-heeled red shoes, cutoff micro denim shorts, a cropped white tank top and a keystone pin down hat with metal chain above the brim. Packaged with the figure is a riding crop, a pair of handcuffs and a removeable base. The riding crop and handcuffs are designed to be held and used by the figure.

HMRC Classification: 9503 00 70 00 Other toys put up in sets or outfits because of the inclusion of the riding crop and handcuffs.

Appellant's Classification: Not a set as the package contains a set of handcuffs and a whip which do not, in their own right, have any use or function and are purely to be used with the figure. 9504 00 49 90 “non-human”. 0% duty rate.

Tribunal Classification: The figure clearly represents only a female human being. We considered whether the figure should be classified as a Statuette but concluded that it should not as it is robustly made and its recreational value clearly outweighs its ornamental value. The riding crop and handcuffs are simple accessories of minor importance intended to be used with the figure. We have concluded it should be classified to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 10: Game of Thrones - Jon Snow

Description: 8” solid plastic non-moveable figure of character from the Game of Thrones television series on a fixed base. The figure’s facial characteristics are fully visible and it is clear that the figure represents only a male human being. The detailed figure is wearing non-removable black boots, black gloves, black clothes and a black cloak. The figure is holding a sword in both hands, the sword is non-removable.

HMRC Classification: On review 9503 00 95 90 other of plastic. 4.7% duty rate. In witness statement 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette.

Appellant's Classification: The figure is not a statuette, the figure would be purchased from a toy shop for its representation of a character from comic-books, television and films rather than its aesthetic value. The figure promotes recreational conversation and play based around the character. It is not a decorative statuette to display, its recreational value substantially exceeds its ornamental value. The figure does not represent only human beings as the character was brought back to life by magic after having been assassinated. He is a “Warg”, also known as “skinchanger”, which gives him the power to project his mind into his “direwolf”, Ghost, and see what Ghost sees. Human beings do not have Jon Snow’s special abilities. Further, the story is set in a mythical world which is not our Earth. In its world there are dragons, zombies and ice creatures which have never existed on Earth. The characters in that world are not indigenous to Earth and are not, therefore, human beings. They are akin to aliens.

Not a statuette. 9504 00 49 90 “non-human”. 0% duty rate.

Tribunal Classification: The figure clearly represents only a human being but we considered it was not classifiable as a Doll as it is affixed to a non-removeable base. The 8” inch figure is very detailed and we have concluded that its ornamental value outweighs its recreational value and it should be classified according to its constituent parts (plastic) to 3926 40 Statuette with a duty rate of 6.5%

Line 11: Game of Thrones – White Walker

Description: 8” solid plastic non-moveable figure of a character from the Game of Thrones television series mounted on a fixed base. The figure is detailed and its facial characteristics are fully visible and it is clear that the figure represents only a male human being. The figure is wearing non-removable brown lower leg coverings, a brown leather type skirt of individual strips, brown leather type wrist protectors and is holding with both hands a non-removable spear.

HMRC Classification: On review, 9503 00 95 90 other of plastic. 4.7% duty rate. In witness statement, 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette.

Appellant's Classification: The figure is not a statuette, the figure would be purchased from a toy shop for its representation of a character from comic-books, television and films rather than its aesthetic value. The figure promotes recreational conversation and play based around the character. It is not a decorative statuette to display, its recreational value substantially exceeds its ornamental value. The character is non-human as it is an undead ice creature with skin of colour and texture that does not exist in human beings. The story is set in a mythical world which is not our Earth. In its world there are dragons, zombies and ice creatures which have never existed on Earth. The characters in that world are not indigenous to Earth and are not, therefore, human beings. They are akin to aliens.

Not a statuette. 9504 00 49 90 “non-human”. 0% duty rate.

Tribunal Classification: The figure clearly represents only a human being but we considered it was not classifiable as a Doll as it is affixed to a non-removeable base. The 8” inch figure is very detailed and we have concluded that its ornamental value outweighs it recreational value and it should be classified according to its constituent parts (plastic) to 3926 40 Statuette with a duty rate of 6.5%

Line 12: Game of Thrones – Daenerys Targaryen

Description: 8” solid plastic non-moveable figure of a character from the Game of Thrones television series. The figure is detailed and its facial characteristics are fully visible and it is clear that the figure represents only a female human being. The figure is holding a dragon egg on a fixed base to which is affixed a removeable open plastic “treasure chest” with closeable lid containing dragon eggs. The figure is wearing a floor length non-removable grey dress with two attached floor length scarfs.

HMRC Classification: On review, 9503 00 95 90 other of plastic. 4.7% duty rate. In witness statement, 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette.

Appellant's Classification: The figure is not a statuette, the figure would be purchased from a toy shop for its representation of a character from comic-books, television and films rather than its aesthetic value. The figure promotes recreational conversation and play based around the character. It is not a decorative statuette to display, its recreational value substantially exceeds its ornamental value. The package includes a removeable chest with an opening lid, which contains three dragon eggs each of which can be placed into the figure’s hands. This is not a feature which would be expected of an ornamental statuette and confirms the recreational value of the product.

The figure is non-human as the Targaryen family, deriving from an ancient line of sorcerers, Daenerys Targaryen inherited dragon genes which give her extreme heat tolerance, immunity from fire and the ability to communicate with, and control her three dragons. These are not powers which human beings have. Further, the story is set in a mythical world which is not our Earth. In its world there are dragons, zombies and ice creatures which have never existed on Earth. The characters in that world are not indigenous to Earth and are not, therefore, human beings. They are akin to aliens.

Not a statuette. 9504 00 49 90 “non-human”. 0% duty rate.

Tribunal Classification: The figure clearly represents only a human being but we considered it was not classifiable as a Doll as it is affixed to a non-removeable base. The 8” inch figure, chest and dragon’s eggs are all very detailed and ornate and we have concluded that its ornamental value outweighs its recreational value. We consider that the item should be classified according to its constituent parts (plastic) to 3926 40 Statuette with a duty rate of 6.5%

Line 13: The Walking Dead – Rick Grimes

Description: 10” solid plastic figure of a character from the television zombie series, The Walking Dead. The figure has moveable parts and packaged with the figure are a machete, dagger and a chain which can all be held by the figure. The figure’s facial features are not concealed and clearly only represents a male human being.

HMRC Classification: 9503 00 70 00 other toys put up in sets or outfits because of the three weapons. 4.7% duty rate. If not a set, a human doll

Appellant's Classification: Not a set as the package contains a machete, a dagger and a chain which do not, in their own right, have any use or function and are all purely designed to be used with the figure. The character, a survivor, carries a pathogen which will turn him into a zombie when he dies. This is not a characteristic representative of human beings.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figure is clearly recognisable as only representing a male human being. We consider that the two weapons and the chain packaged with the figure that can be held by and attached to the figure are simple accessories of minor importance that are intended to be used with the figure. We have concluded that the correct classification of the Rick Grimes figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 14: Chucky

Description: 15” plastic figure of the toy doll character from the Child’s Play horror film franchise. The figure has moveable parts with scar marks criss-crossing the figure’s face and exposed flesh around the right eye. The figure can “talk” when the button to the rear of the figure is pressed, the figure repeats well known phrases from the Child’s Play film. The figure is wearing a non-removeable multi-coloured striped long-sleeved top, non-removeable denim dungarees and a pair of red shoes with white piping. Packaged with the figure is a plastic knife with a serrated blade which can be held in the figure’s right hand. The knife is large by comparison to the figure.

HMRC Classification: On review, 9503 00 21 90 Dolls representing human beings. 4.7% duty rate. In witness statement, 9503 00 70 00 other toys put up in sets or outfits with a duty rate of too big to be a simple accessory. 4.7% duty rate.

Appellant's Classification: Not a set as the package contains a knife which fits into the figure’s hand and does not, in its own right, have any use or function as it purely to be used with the main figure. The size of the accessory is irrelevant. The character does not represent only human beings because the figure is a toy figure of a doll which is brought to life when a dying serial killer transfers his soul into it and is not a toy figure of a human being.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: Despite the facial scarring, the figure is clearly recognisable as representing only a male human being. We examined the figure and the knife accessory. The knife is a 6” long and is a kitchen style knife with a serrated blade which, despite being made of plastic, feels sharp. The knife does not have a notch or any similar means of attaching it to the character, whilst the figure’s left hand can be prised open such that forefinger and thumb to prevent the knife from falling out of the hand no other part of the hand is in contact with the knife. We consider that the knife is too large to be a simple accessory and is not designed to be used solely and principally by the figure. We consider that the knife has independent play value (e.g. a child cutting vegetables in a kitchen role play etc.) and if presented separately would be classified to 9503 00 95 Other of plastic. We have concluded that the correct classification of the packaged items is to 9503 00 70 00 other toys put up in sets or outfits with a duty rate of 4.7%.

Line 15: Judge Dredd

Description: 6” solid plastic figure of a comic-book character in a series set in a post-apocalyptic future world. The figure has moveable parts and is wearing non-removeable clothing and body armour covering the shoulders and from the knee down. The figure is holding a removeable gun and is wearing a helmet. Despite the helmet the figures facial features can be clearly seen as those of a male human being. Other weapons are packaged with the figure.

HMRC Classification: 9503 00 70 00 Other toys put up in sets or outfits. 4.7% duty rate. If not a set, a human doll.

Appellant's Classification: Not a set as the package contains weapons which do not, in their own right, have any use or function and are all purely to be used with the main figure.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and is clearly recognisable as representing only a male human being. We consider that the weapons packaged with the figure, which can be held by and attached to the figure, are simple accessories of minor importance that are intended to be used with the figure. We have concluded that the correct classification of the Judge Dredd figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 16: Scorpion

Description: 6” solid plastic figure of a character in the computer game, Mortal Kombat. The figure has moveable parts and is wearing non-removeable black moulded plastic clothing with a yellow tunic and yellow mask covering the face below the eyes. The remainder of the figures head is covered by a hood and only the figure’s eyes can be seen. The figure is holding a sword in its left hand.

HMRC Classification: 9503 00 70 00 Other toys put up in sets or outfits. 4.7% duty rate. If not a set, a human doll.

Appellant's Classification: Not a set as the package contains weapons which do not, in their own right, have any use or function and are all purely to be used with the main figure. The character is non-human as it is a dead ninja warrior, a hell spawned revenant resurrected for the purpose of revenge.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figures facial features cannot be seen, we concluded that it should be classified as a Non-human toy. We consider that the weapons packaged with the figure, which can be held by and attached to the figure, are simple accessories of minor importance that are intended to be used with the figure. We have concluded that the correct classification of the Scorpion figure is to 9503 00 49 90 Non-human toy with a duty rate of 0%.

Line 18: Scorpion

Description: 12” solid plastic figure of a character in the computer game, Mortal Kombat. The figure has moveable parts and is wearing non-removeable black moulded plastic clothing with a yellow tunic and yellow mask covering the face below the eyes. The figures upper arms are not covered by the clothing. The remainder of the figures head is covered by a hood and only the figure’s eyes can be seen. The figure is holding a sword in each hand.

HMRC Classification: 9503 00 70 00 Other toys put up in sets or outfits as comes with weapons which would be classified to different sub-heading if presented separately. 4.7% duty rate. If not a set, a human doll.

Appellant's Classification: Not a set as the package contains weapons which do not, in their own right, have any use or function and are all purely to be used with the main figure. The character is non-human as it is a dead ninja warrior, a hell spawned revenant resurrected for the purpose of revenge.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figures facial features cannot be seen and we concluded it should be classified as a Non-human toy. We consider that the weapons packaged with the figure, which can be held by and attached to the figure, are simple accessories of minor importance that are intended to be used with the figure. We have concluded that the correct classification of the Scorpion figure is to 9503 00 49 90 Non-human toy with a duty rate of 0%.

Line 19: Sub-Zero

Description: 12” solid plastic figure of a character in the computer game, Mortal Kombat. The figure has moveable parts and is wearing non-removeable black moulded plastic clothing with a blue tunic and a mask covering the face below the eyes. The figures upper arms are not covered by the clothing. The figure is wearing a non-removeable helmet and is packaged with an additional pair of hands to which can be attached an ice sword, ice hammer and ball of ice.

HMRC Classification: 9503 00 70 00 Other toys put up in sets or outfits. 4.7% duty rate. If not a set, a human doll.

Appellant's Classification: Not a set as the package contains weapons which do not, in their own right, have any use or function and are all purely to be used with the main figure. The character is non-human as it has the power to control ice and the ability to control it in many forms including flash-freezing people. turn 9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figures facial features cannot be seen and we concluded it should be classified as a Non-human toy. We consider that the additional pair of hands to which can be attached an ice sword, ice hammer and ball of ice are simple accessories of minor importance that are intended to be used with the figure. We have concluded that the correct classification of the Sub-zero figure is to 9503 00 49 90 Non-human toy with a duty rate of 0%.

Line 20: Chucky

Description: 6” plastic figure of the toy doll character from the Child’s Play horror film franchise. The figure has moveable parts and is wearing a non-removeable multi-coloured striped long-sleeved top, non-removeable denim dungarees and a pair of red shoes with white piping. Packaged with the figure is a plastic knife which can be held in the figure’s right hand.

HMRC Classification: On review, 9503 00 21 90 Dolls representing human beings. 4.7% duty rate. In witness statement, 9503 00 70 00 other toys put up in sets or outfits. 4.7% duty rate. In cross-examination accepted could be an accessory.

Appellant's Classification: Not a set as the package contains a knife which fits into the figure’s hand and does not, in its own right, have any use or function as it purely to be used with the main figure. The character does not represent only human beings because the figure is a toy figure of a doll which is brought to life when a dying serial killer transfers his soul into it and is not a toy figure of a human being.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figure is clearly recognisable as representing only a male human being. The kitchen style knife is in proportion to the figure and can be held in either of the figure’s hands. We consider that the knife is a simple accessory of minor importance that is intended to be used with the figure. We have concluded that the correct classification of the Chucky figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 24: Lady Deadpool

Description: 9.5” solid plastic figure of the superhero character from the Marvel comic-books. The figure is wearing a non-removeable one-piece bodysuit with head covering. The figure appears to represent a female human being but no facial features can be seen. Packaged with the figure is an alternate head. No sample or photographs were provided of the alternative head.

HMRC Classification: On review, 9503 00 21 90 Dolls representing human beings. 4.7% duty rate. In witness statement, 9503 00 70 00 other toys put up in sets or outfits if alternative head is human, 4.7% duty rate, or a non-human toy if alternative head is not human, 0% duty rate.

Appellant's Classification: Not a set. Even if the alternate head has some human features, it does not, in its own right, have any use or function and is purely to be used with the main non-human figure. Further, an alternate head is part of the figure and is not a separate article and, in any event, it does not attract a different sub-heading. Its presence cannot therefore transform a figure into a set. Even if the alternate head has some human features, Lady Deadpool has the super-human power of regeneration, meaning that she cannot be killed, and super-human strength, stamina, agility and reflexes. She is also immune to disease and to the various Marvel psychics and telepaths. These are all attributes which are not found in human beings.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figure’s facial features cannot be seen and we have concluded that it should be classified as a Non-human toy. In the absence of any additional information regarding the alternate head we have been unable to provide a definitive classification of the item. As suggested by HMRC, we have determined the Dolls versus Non-human toy issue on the basis of the available information and evidence to enable the parties to agree the classification. In the event that the parties are unable to agree the appropriate classification of the item, the matter should be remitted to the Tribunal together with relevant information and/or evidence in respect of the additional head.

Line 26: Magik

Description: 8” solid plastic figure with moveable parts of the character Magik from the Marvel X-Men comic-books and films. The figure is wearing non-removeable moulded plastic clothing of black leg-length boots, bikini-style bottoms with belt, gauntlets and shoulder armour. Packaged with the figure is a large plastic sword held by the figure. The figures’ face is fully exposed and is clearly recognisable as an adult female with shoulder length blond hair.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings. 4.7% duty rate.

Appellant's Classification: Magik has the mutant power of teleportation between dimensions and is a powerful sorceress, particularly by use of a magic sword. These are powers not possessed by human beings.

9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and is clearly recognisable as representing only a female human being. We consider that as sword packaged with the figure can be held by the figure it is a simple accessory of minor importance that is intended to be used with the figure. We agree with HMRC that the correct classification of the Magik figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 27: Kratos

Description: 7” solid plastic figure with moveable parts of the character from the computer game, God of War. The figure is wearing non-removeable moulded plastic boots and waist covering, gloves and armour covering the lower left arm and covering all of the right arm. The figure is holding in each hand two small weapons. Packaged with the figure are alternate heads to be used with the figure, two small swords and two gauntlets. The figures’ face, upper torso, knees and thighs are exposed, the figure is clearly recognisable as an adult male.

HMRC Classification: On review 9503 00 70 00 other toys put up in sets or outfits as has two swords and two gauntlets. 4.7% duty rate.

Appellant's Classification: Not a set as the swords and gauntlets are plainly for use with the main figure and do not, in their own right, have any use or function other than with the figure. The figure does not represent human beings because Kratos is a minor God from Greek mythology, being one of the sons of Pallas and Styx, and not a human being.

9503 00 49 90 non-human and not a set. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and the figure is clearly recognisable as representing only a male human being. We consider that the two small swords, two gauntlets and alternate heads are simple accessories that are intended to be used by the figure and do not have independent play value. We have concluded that the correct classification of the Kratos figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 28: Game of Thrones - Ygritte

Description: 8” solid plastic figure with non-moveable parts of the character from the Game of Thrones television series. The figure is wearing non-removeable clothing and is holding in a fixed position a bow with an arrow drawn back and has a quiver attached to the back of the figure with protruding arrow flights. The figures’ facial features are clearly visible and is recognisable as a female human being. The figures features are very detailed.

HMRC Classification: On review, 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette as human figure but no moveable parts.

Appellant's Classification: The figure is not a statuette. A purchaser would purchase such a figure from a toy shop for its representation of a character from the TV series of Game of Thrones, rather than for its aesthetic value. The figure provides amusement and entertainment by promoting recreational conversation and play based around the character. It is not a decorative statuette to display on a mantlepiece, its recreational value substantially exceeds its ornamental value. The figure does not represent only human beings because the story is set in a mythical world which is not our Earth. In that world there are dragons, zombies and ice creatures which have never existed on Earth. The characters in that world are not indigenous to Earth and are not, therefore, human beings. They are akin to aliens.

9503 00 49 90 non-human. 0% duty rate

Tribunal Classification: The figure clearly represents only a human being but we considered it was not classifiable as a Doll as it is affixed to a non-removeable base. The 8” inch figure is very detailed and we have concluded that its ornamental value outweighs its recreational value and it should be classified according to its constituent parts (plastic) to 3926 40 Statuette with a duty rate of 6.5%

Line 29: Game of Thrones – Margaery Tyrrell

Description: 8” solid plastic figure of the character from the Game of Thrones television series. The figure has no moveable parts and is affixed to a plastic base plate. The figure is wearing moulded plastic clothes and its facial features are clearly visible and the figure is recognisable as a female human being. The figures facial features, clothes and body are very detailed.

HMRC Classification: On review 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette as human figure but no moveable parts.

Appellant's Classification: The figure is not a statuette. A purchaser would purchase such a figure from a toy shop for its representation of a character from the TV series of Game of Thrones, rather than for its aesthetic value. The figure provides amusement and entertainment by promoting recreational conversation and play based around the character. It is not a decorative statuette to display on a mantlepiece, its recreational value substantially exceeds its ornamental value. The figure does not represent only human beings because the story is set in a mythical world which is not our Earth. In that world there are dragons, zombies and ice creatures which have never existed on Earth. The characters in that world are not indigenous to Earth and are not, therefore, human beings. They are akin to aliens.

9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure clearly represents only a human being but we considered it was not classifiable as a Doll as it is affixed to a non-removeable base. The 8” inch figure is very detailed and we have concluded that its ornamental value outweighs its recreational value and it should be classified according to its constituent parts (plastic) to 3926 40 Statuette with a duty rate of 6.5%

Line 30: Game of Thrones – Grey Worm

Description: 8” solid plastic figure of the character from the Game of Thrones television series affixed to a plastic base. The figure has no moveable parts and is affixed to a plastic base plate. The figure is wearing moulded plastic clothes and is holding a full-face helmet under the right arm and tall spear and shield in its left hand. The figures facial features are clearly visible and the figure is recognisable as a male human being. The figures facial features, clothes, helmet, spear and shield are all very detailed.

HMRC Classification: On review 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette as human figure but no moveable parts.

Appellant's Classification: The figure is not a statuette. A purchaser would purchase such a figure from a toy shop for its representation of a character from the TV series of Game of Thrones, rather than for its aesthetic value. The figure provides amusement and entertainment by promoting recreational conversation and play based around the character. It is not a decorative statuette to display on a mantlepiece, its recreational value substantially exceeds its ornamental value. The figure does not represent only human beings because the story is set in a mythical world which is not our Earth. In that world there are dragons, zombies and ice creatures which have never existed on Earth. The characters in that world are not indigenous to Earth and are not, therefore, human beings. They are akin to aliens.

9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure clearly represents only a human being but we considered it was not classifiable as a Doll as it is affixed to a non-removeable base. The 8” inch figure is very detailed and we have concluded that its ornamental value outweighs its recreational value and it should be classified according to its constituent parts (plastic) to 3926 40 Statuette with a duty rate of 6.5%

Line 31: Game of Thrones – Oberon Martell

Description: 8” plastic figure of the character Oberon Martell from the Game of Thrones television series. The figure has no moveable parts and is affixed to a plastic base plate. The figure is clothed in a moulded plastic yellow robe with brown belt and brow boots. The figures facial features are clearly visible and the figure is recognisable as a male human being. The figures facial features, robe, belt, boots and other physical features are all very detailed.

HMRC Classification: On review 3926 40 00 00 Statuettes or other ornamental articles 6.5% duty rate. Other of plastic to code 9503 00 95 90 if not a statuette as human figure but no moveable parts.

Appellant's Classification: The figure is not a statuette. A purchaser would purchase such a figure from a toy shop for its representation of a character from the TV series of Game of Thrones, rather than for its aesthetic value. The figure provides amusement and entertainment by promoting recreational conversation and play based around the character. It is not a decorative statuette to display on a mantlepiece, its recreational value substantially exceeds its ornamental value. The figure does not represent only human beings because the story is set in a mythical world which is not our Earth. In that world there are dragons, zombies and ice creatures which have never existed on Earth. The characters in that world are not indigenous to Earth and are not, therefore, human beings. They are akin to aliens.

9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure clearly represents only a human being but we considered it was not classifiable as a Doll as it is affixed to a non-removeable base. The 8” inch figure is very detailed and we have concluded that its ornamental value outweighs its recreational value and it should be classified according to its constituent parts (plastic) to 3926 40 Statuette with a duty rate of 6.5%

Line 33: Thor

Description: 8” solid plastic figure on a removeable base of the character Thor, Norse God of Thunder, from the Marvel comic-books and films. The figure is wearing moulded plastic clothing, boots, helmet with winged decorations and a cloak. In its right hand the character is holding a hammer. The figures facial features are not obscured by the helmet and the figure is recognisable as a male human being.

HMRC Classification: On review, 9503 00 21 90 Dolls representing human beings. 4.7% duty rate. In witness statement, 9503 00 70 00 other toys put up in sets or outfits, 4.7% duty rate or if non-moveable parts other of plastic, 4.7% duty rate.

Appellant's Classification: Not a set as the package contains Thor’s hammer, Mjölnir, which can only be wielded by Thor. It does not, in its own right, have any use or function and is purely to be used with the figure. The figure does not represent only human beings as Thor is not a human being. He is the Norse God of Thunder from the realm of Asgard. Asgard is one of the Nine Worlds surrounding the tree Yggdrasil. Norse mythology portrays Asgard as a fortified home to the Æsir tribe of gods, located in the sky. Thor has physical abilities significantly beyond the capabilities of human beings, with super-human strength, the ability to wield thunder bolts and the ability to fly.

9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and the figure is recognisable as representing only a male human being. The figure can be removed from the base. We consider that the hammer is a simple accessory that is intended to be used by the figure (it fits in the figure’s hand) and does not have independent play value. We have concluded that the correct classification of the Thor figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 34: Shazam

Description: 8” solid plastic figure with a removeable base of the character from the DC comic-books and films. The figure is wearing a moulded red plastic clothing, gold-coloured boots, gold coloured belt and a cloak. The figure’s facial features can clearly be seen and the figure is recognisable is recognisable as a male human being.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings. 4.7% duty rate.

Appellant's Classification: The figure represents a non-human creature as the character has super-human strength and speed, can fly and is invulnerable as well as having other super-human abilities. His powers are almost identical to Superman’s, and he was originally created by a rival publisher to DC comics to compete directly against Superman. These are all super-powers which human beings do not have.

9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and the figure is recognisable as representing only a male human being. The figure can be removed from the base. We agree with HMRC that the correct classification of the Shazam figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 35: The Hulk

Description: 8” solid plastic figure of a green skinned character from the Marvel comic-books and films with moveable parts. The figure is wearing moulded plastic shorts and the remaining visible body has clearly defined and exaggerated muscle definition. The figure’s facial features can clearly be seen and, despite the green skin, the figure is recognisable is recognisable as a male human being.

HMRC Classification: On review 9503 00 21 90 Dolls representing human beings. 4.7% duty rate.

Appellant's Classification: The figure represents a non-human creature as the character is over eight feet tall, far bigger than a human being and is far stronger than a human being. He is green, which human beings are not.

9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and, despite the green skin and exaggerated muscle definition, the figure is recognisable as representing only a male human being. We agree with HMRC that the correct classification of the Hulk figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 36: Red Robin

Description: 8” solid plastic figure on a removable base of the superhero character (a later incarnation of Robin in the Batman franchise) from the DC comic-books and films. The figure is wearing moulded plastic clothing and a red cloak. The figure is holding a staff in its right hand. The figure is wearing a mask covering only the area around the eyes and the space between them, the eyes remain visible. Despite the mask, the figure’s facial characteristics remain visible and the figure is recognisable is recognisable as a male human being.

HMRC Classification: On review, 9503 00 21 90 Dolls representing human beings. 4.7% duty rate. In witness statement, 9503 00 70 00 other toys put up in sets or outfits, 4.7% duty rate or if non-moveable parts other of plastic, 4.7% duty rate.

Appellant's Classification: Not a set as the package includes a staff which does not, in its own right, have any use or function and is purely to be used with the main figure. If not a set, accept classification as doll representing human beings.

Tribunal Classification: Despite the mask around the figure’s eyes, the figure’s facial features can clearly be seen and the figure is recognisable as representing only a male human being. The figure can be removed from the base. We consider that the staff is a simple accessory that is intended to be used by the figure (it fits in the figure’s hand) and does not have independent play value. We have concluded that the correct classification of the Red Robin figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 37: The Walking Dead – Daryl Dixon

Description: 6” solid plastic figure with moveable parts from the Walking Dead zombie television series. Packaged with the figure is plastic shovel and a burial marker cross. The spade can be held by the figure and the cross has a small round base representing a mound of earth that enables it to stand unsupported. The figure has moulded plastic clothes and the lower part of the figure’s face is concealed by a bandana mask. Despite the bandana mask the figure’s facial characteristics remain sufficiently visible such that the figure is recognisable as only representing a male human being.

HMRC Classification: On review, 9503 00 70 00 other toys put up in sets or outfits, 4.7% duty rate. If not a set, 9503 00 21 90 Dolls representing human beings, 4.7% duty rate, or if non-moveable parts other of plastic, 4.7% duty rate.

Appellant's Classification: The figure is not a set as the package includes a shovel and cross which do not, in their own right, have any use or function and are, in the context of the story, purely to be used with the main figure. The figure does not represent only human beings as the character, a survivor, carries a pathogen which will turn him into a zombie when he dies. This is not a characteristic representative of human beings. Not a set and 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: Despite the bandana, the figure’s facial features can clearly be seen and the figure is recognisable as representing only a male human being. The spade packaged with the figure can be held in either hand by the figure and we consider this to be a simple accessory that is intended to be used by the figure (it fits in the figure’s hand) and does not have independent play value. We do not consider the burial marker cross to be a simple accessory as it does not perform a particular function in relation to the figure by adding to or enhancing the way in which the figure can be used for amusement of play and is classifiable to 9503 00 95 00 Other of plastic. As the items are packaged together for retail sale, we have concluded that the figure and items should be classified to 9503 00 70 00 Sets with 4.7% duty rate.

Line 38: The Walking Dead - Beth Greene

Description: 6” solid plastic figure with moveable parts of a character from the Walking Dead zombie television series. Packaged with the figure are three small items: a rifle, a pistol and a knife. The three items can be held by the figure. The figure has moulded plastic clothes and boots and the figure’s face is visible. The figure’s facial characteristics and body are such that the figure is recognisable as representing only a female a male human being.

HMRC Classification: On review, 9503 00 70 00 other toys put up in sets or outfits, 4.7% duty rate. If not a set, 9503 00 21 90 Dolls representing human beings, 4.7% duty rate, or if non-moveable parts other of plastic, 4.7% duty rate.

Appellant's Classification: The figure does not represent only human beings as the character, a survivor, carries a pathogen which will turn her into a zombie when she dies. This is not a characteristic representative of human beings. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and the figure is recognisable as representing only a female human being. We consider that the weapons are simple accessories that are intended to be used by the figure (they fit in the figure’s hand) and do not have independent play value. We have concluded that the correct classification of the Beth Greene figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 39: The Walking Dead - T-Dog

Description: 6” solid plastic figure with moveable parts of a character from the Walking Dead zombie television series. Packaged with the figure are three small items: a pistol, bolt cutters and fireside poker. The three can be held by the figure. The figure has moulded plastic clothes and boots the figure’s face is visible. The figure’s facial characteristics and body are such that the figure is recognisable as representing only a male human being.

HMRC Classification: On review, 9503 00 70 00 other toys put up in sets or outfits, 4.7% duty rate. If not a set, 9503 00 21 90 Dolls representing human beings, 4.7% duty rate, or if non-moveable parts other of plastic, 4.7% duty rate.

Appellant's Classification: The figure does not represent only human beings as the character, a survivor, carries a pathogen which will turn him into a zombie when he dies. This is not a characteristic representative of human beings. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and the figure is recognisable as representing only a male human being. We consider that the three small items packaged with the figure are simple accessories that are intended to be used by the figure (they fit in the figure’s hand) and do not have independent play value. We have concluded that the correct classification of the T-Dog figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 40: The Walking Dead - Water Walker

Description: 6” solid plastic figure with moveable parts of a character from the Walking Dead zombie television series. The figure has exposed sinews, ligaments, organs etc. on upper body and head and there is a left knee-bone protruding from the moulded plastic trousers. The figure has hole in base of left heel to attach to a peg on the circular base plate, the left leg articulates to allow the figure to be placed in different poses. Packaged with the figure are three small food cans and a jar. The food cans and jar cannot be held or attached to the figure. The figure is recognisable as representing a non-human being.

HMRC Classification: On review 9503 00 70 00 other toys put up in sets or outfits, 4.7% duty rate. If not a set, accept non-human.

Appellant's Classification: The figure does not represent only human beings as the character, a survivor, carries a pathogen which will turn him into a zombie when he dies. This is not a characteristic representative of human beings. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure, whilst having predominantly human features, is clearly a Non-human toy as it has exposed sinew and bones on its upper body and head. We do not accept that the three cans and jar perform a particular function in relation to the figure by adding to or enhancing the way in which the figure can be used for amusement of play and are classifiable to 9503 00 95 00 Other of plastic. As the items are packaged together for retail sale, we have concluded that the figure and four items should be classified to 9503 00 70 00 Sets with 4.7% duty rate.

Line 41: The Walking Dead - Michonne

Description: 6” solid plastic figure with moveable parts of a character from the Walking Dead zombie television series. Packaged with the figure are two small items: a pistol and a sword. The pistol and sword can be held by the figure. The figure has moulded plastic clothes and boots; the figure’s face is fully visible. The figure’s facial characteristics and body are such that the figure is recognisable as representing only a female human being.

HMRC Classification: On review, 9503 00 21 90 Dolls representing human beings, 4.7% duty rate.

Appellant's Classification: The figure does not represent only human beings as the character, a survivor, carries a pathogen which will turn her into a zombie when she dies. This is not a characteristic representative of human beings. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and the figure is recognisable as representing only a female human being. We consider that the two small items packaged with the figure are simple accessories that are intended to be used by the figure (they fit in the figure’s hand) and do not have independent play value. We agree with HMRC that the correct classification of the Michonne figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.

Line 42: The Walking Dead – Dale Horwarth

Description: 6” solid plastic figure with moveable parts depicting a character from the Walking Dead zombie television series. Packaged with the figure are a rifle, binoculars and a hat. The rifle and binoculars can be held in the figure’s hands and the hat worn on the figure’s head. The figure has moulded plastic clothes with exposed intestines that are partially spilled out from the stomach cavity. The figure is recognisable as representing only a human being.

HMRC Classification: On review 9503 00 70 00 other toys put up in sets or outfits, 4.7% duty rate. If not a set, HMRC accept 9503 00 21 90 Dolls representing human beings, 4.7% duty rate.

Appellant's Classification: Not a set as the package includes a rifle, binoculars and a hat which do not, in their own right, have any use or function and are, in the context of the story, purely to be used with the main figure. The figure does not represent only human beings as, in common with all the other survivors, the character carries a pathogen which will turn him into a zombie when he dies. This is not a characteristic representative of human beings. Not a set. 9503 00 49 90 non-human. 0% duty rate.

Tribunal Classification: The figure’s facial features can clearly be seen and, despite the exposed and protruding intestines, the figure is recognisable as representing only a male human being. We consider that the three small items packaged with the figure are simple accessories that are intended to be used by the figure (the rifle and binoculars fit in the figure’s hand) and do not have independent play value. We consider that the correct classification of the Dale Howarth figure is to 9503 00 21 90 Dolls with a duty rate of 4.7%.