EXCISE DUTY – Restoration of seized goods and vehicle – Goods alleged to have been hidden in car – Review out of time – No reasons given for original decision not to restore – Whether decision "reasonable" – Excise Duties (Personal Reliefs) Order 1992 arts 3, 3A, 5 – CEMA 1979 ss 49(1), 151(b) – FA 1994 ss 14(2), 15(1), (2), 16(4) – Appeal allowed
LONDON TRIBUNAL CENTRE
AVTAR SINGH JHALLI Appellants
KATHLEEN MARGUERITE JOHNS
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: ANGUS NICOL (Chairman)
SHEILA WONG CHONG FRICS PRAFUL D DAVDA FCA
Sitting in public in London on 17 May 2002
The Appellants in person
Nicola Shaw, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2002
"Under the circumstances detailed in this statement it was not appropriate to offer either of the travellers an interview prior to the seizure of the goods and vehicle."
It is to be noted that that statement also gives no reasons for refusing restoration of the goods or vehicle, though it does state that in the circumstances seizure was, in her consideration, properly made.
"It falls to me to determine whether or not the contested decision is one which a reasonable body of commissioners could not have reached."
He then went into the reasons why he considered that the goods and vehicle had been properly seized. He repeated that he did not find it reasonable that crushable items such as cigarettes should be packed under cases of beer, for any reason other than to keep them out of sight from the outside of the vehicle. He referred to the underdeclaration of the amount of cigarettes, and considered that that was a deliberate attempt to mislead Customs. He referred to evidence before him that the Second Appellant's vehicle had travelled out and back by ferry on 10 March 2001, whereas the Second Appellant had said that she had not been abroad in the vehicle since Christmas 2000. He mentioned that the cigarettes were of Belgian origin, and could not, therefore have been transported to France by the Appellants, who said that they had only been to France. He said that he was, therefore, satisfied that the goods and vehicle had been properly seized. He referred to a letter in which the Second Appellant had said that the notices in duty free shops which said that one could buy as much as one liked, and pointed out that the notices were displayed by people with a commercial interest in the sale of tobacco. He said that Mr Elliott had recorded in his notes that "cigarettes were hidden under the cases of beer". He also observed that the First Appellant had not corrected the mistake that the Second Appellant had made as to the number of cigarettes imported. Having expressed satisfaction that the goods and car were properly seized, Mr Tooke concluded by saying that he was satisfied that there were no exceptional circumstances that would warrant restoration of either the goods or the vehicle, and that he was satisfied that the Commissioners' policy treated the Appellants no more harshly or leniently than anyone else.
"...the obtaining of excise goods duty and tax paid in the Economic Community provided that payment has not been, and will not be, reimbursed, refunded or otherwise dispensed with."
Article 3A provides for the conditions on which relief is given in the case of goods brought through the Channel Tunnel, which are termed "shuttle train goods":
"(1) In relation to shuttle train goods, this article shall have effect for the purpose of determining whether relief has been treated as having been afforded under article 3 above.
(2) No relief shall be treated as having been afforded if the goods are held for a commercial purpose.
(3) Where the shuttle train goods exceed any of the quantities shown in the Schedule to this Order the Commissioners may require the person holding the goods to satisfy them that the goods are not held for a commercial purpose.
(4) In determining whether or not any person holds shuttle train goods for a commercial purpose regard shall be taken of the factors listed in sub-paragraphs (a) to (j) of article 5(2) below.
(5) If the person holding the goods is required so to do but fails to satisfy the Commissioners that he does not hold them for a commercial purpose, it shall be presumed that the goods are held for a commercial purpose.
(6) . . ."
Article 5, so far as it applies in this appeal, provides as follows:
"(1) The reliefs afforded under this order are subject to the condition that the excise goods in question are not held or used for a commercial purpose whether by the Community traveller who imported them or by some other person who has possession or control of them; and if that condition is not complied with in relation to any excise goods, those goods shall ... be liable to forfeiture.
(2) In determining whether or not the condition imposed under paragraph (1) above has been complied with, regard shall be taken of-
(a) his reasons for having possession or control of those goods;
(b) whether or not he is a revenue trader;
(c) his conduct in relation to those goods and, for the purposes of this sub-paragraph, conduct includes his intentions at any time in relation to those goods;
(d) the location of those goods;
(e) the mode of transport used to convey those goods;
(f) any document or other information whatsoever relating to those goods;
(g) the nature of those goods including the nature and condition of a package or container;
(h) the quantity of those goods;
(i) whether he has personally financed the purchases of those goods
(j) any other circumstances which appear to be relevant."
The Schedule to that Order sets out the quantities of goods specified for the purposes of paragraph 3A(3), and includes 800 cigarettes, 100 cigars, and 110 litres of beer.
(a) except as provided by or under the Customs and Excise Acts 1979, any imported goods, being goods chargeable on their importation with customs or excise duty, are, without payment of that duty—
(i) unshipped in any port,
. . .
those goods shall, subject to subsection (2) below, be liable to forfeiture."
Subsection (2) is not relevant in the present case.
Section 151(b) of the Customs and Excise Management Act 1979 ("CEMA") provides that the Commissioners may, as they see fit, restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under the Customs and Excise Acts.
"(1) Where the Commissioners are required in accordance with this Chapter to review any decision, it shall be their duty to do so and they may, on that review, either—
(a) confirm the decision; or
(b) withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they may consider appropriate.
(a) it is the duty of the Commissioners in pursuance of a requirement of any person under section 14 above to review any decision; and
(b) they do not within the period of forty-five days beginning with the day on which the review was required, give notice to that person of their determination on the review,
they shall be assumed for the purposes of this Chapter to have confirmed the decision."
Section 16 provides for appeals to the Tribunal, and as to matters defined as ancillary matters in Schedule 5 to the Act, which includes appeals such as the present, provides:
"(4) In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say—
(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct;
(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and
(c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future."
(a) the Appellants were never asked, but said in later correspondence that the goods were for their own use.
(b) neither was asked, but it appears that neither was a revenue trader.
(c) the conduct would include the Second Appellant's underdeclaration, the First Appellant's failure to correct that, and the alleged concealment of the cigarettes. Neither Appellant was asked about his, her, or their intentions, save that the First Appellant said that he had said that some of the cigarettes were for his wife and son.
(d) the location of the goods was in the car in Coquelles.
(e) the mode of transport was private car.
(f) there apparently were receipts, handed to Mr Elliott, which have never been seen again.
(g) there seems to have been nothing remarkable about this.
(h) the quantity of cigarettes was considerably in excess of the quantities set out in the Schedule to the 1992 Order.
(i) it appeared that the Appellants had personally financed the purchases.
(j) possibly the previous journey made by the Second Appellant, and the comment that people do not smoke more than one brand of cigarette, and the Belgian origin.
Of those matters, it appears to us that all except (c), (h), and (j) were neutral or in the Appellants' favour. We have already dealt with (c), and with the matter of the Belgian origin. It is also the case that, probably in part because there had been no interview, the Commissioners did not at any stage consider what the Appellants' several intentions were with respect to the goods, since they were never asked.
RELEASED: 8 October 2002