Tariff classification of wafer products turned on whether the filling was cocoa or chocolate, requiring fresh factual determination.

Classification of the products under Chapter Heading 19.05 turned on whether the filling between the wafers was cocoa simplicitor or chocolate, since cocoa and chocolate are not the same for tariff purposes. The Tribunal had not examined this essential distinction and had wrongly proceeded on the basis that the products were biscuits. The further factual question whether the filling could be said to be "containing" chocolate also required determination. The SC therefore set aside the Tribunal's order and remanded the matters for fresh consideration.

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Issues: Whether the classification dispute concerning the products under Chapter Heading 19.05 required reconsideration by the Tribunal because it had not examined whether the filling between the wafers was cocoa simplicitor or chocolate, and whether such filling could be said to be "containing" chocolate.

Analysis: The products were undisputedly waffles and wafers and were not coated with chocolate. The real controversy was whether the material sandwiched between the wafers was chocolate or only cocoa, since cocoa and chocolate are not the same for the purpose of the tariff entry. The Tribunal had not addressed this essential distinction and had proceeded on the basis that the products were biscuits. The question whether the filling fell within the expression "containing" also required determination on the facts.

Conclusion: The Tribunal's order was set aside and the matters were remanded for fresh consideration.

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