Grace Construction Products Limited v Her Majesty's Revenue & Customs

Facts

Grace Construction Products Limited imported from the United States a composite building material known as Preprufe, manufactured by one of its U.S. affiliates and designed to be laid beneath concrete slabs as a highly reliable waterproof membrane in below-ground construction, having been used at the new Wembley Stadium and Heathrow Terminal 5. The material comprises three layers: a high density polyethylene (HDPE) layer of 0.75 or 0.4 mm, indisputably plastic; a pressure-sensitive adhesive layer of about 0.5 mm based on a styrene-isoprene-styrene block copolymer, which is synthetic rubber and bonds to freshly poured concrete so as to prevent the lateral migration of water; and a very thin porous protective layer of about 0.1 mm which stops the product being sticky underfoot during construction. The Commissioners classified the material as plastic under Heading 3920 in a BTI decision issued on 15 July 2003, by an application of Rules 1 and 6 of the General Interpretation Rules, attracting duty at 6.5%. Grace sought a review, contending the material was rubber and dutiable at nil. The Review Decision varied the classification to Heading 3921 but maintained the product as plastic at the same rate. Grace appealed to the Tribunal, contending for classification as rubber under Heading 4005 91 00.