E00358
	RESTORATION OF VEHICLE — Appellant duped into providing a Mercedes vehicle and driving for third parties who he did not know — circumstances in which he should have been aware that smuggling was going to take place — reviewing officer’s decision reasonable

MANCHESTER TRIBUNAL CENTRE

 
RAYMOND FOSTER	
		Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE	
Respondents

				Tribunal:         Mr D S Porter LLB (Chairman)
			                              Mr R Grice	

Sitting in public in Birmingham on 12 September 2002 

The Appellant appeared in person

Mr James Puzey of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2002

DECISION

1.	The appeal is against the decision of the Respondents to refuse to restore a Mercedes 300 diesel vehicle registration number FIL 450 in a decision dated 18 June 2001.
2.	Mr Puzey appeared on behalf of the Respondents and produced a bundle to the tribunal.  The Appellant appeared in person.
The facts
3.	Mr Raymond Foster (“the Appellant”) is a private individual living at 36 Maypole Lane, Kings Heath, Birmingham B14 5JG.  His son was friendly with a Mr John Charles Clifford who he met at “The Blues Pub.”
4.	The Appellant’s son told his father that Mr Clifford was going through the tunnel to get some tobacco and wondered if the Appellant would like to go.
5.	There was some dispute as to which car should be used and the Appellant was advised by Mr Clifford that Mr Clifford’s car was not available Mr Clifford asked if it would be in order to take the Appellant’s Mercedes.
6.	As Mr Clifford was a friend of his son, the Appellant was content to provide the vehicle.
7.	When he went to pick Mr Clifford up he was asked if Mr Oliver David Ward, June Dorothy Walford and her child could join them.  The Appellant knew none of these people but as Mr Clifford was a friend of his son, he did not object.
8.	From the evidence it was not entirely clear who had driven but it appeared certainly that the Appellant was driving at the time that the vehicle was stopped.
9.	The Appellant wished to go the hypermarket at Pidou.  Mr Clifford and his colleagues wanted to buy hand-rolling tobacco.  As a result they went to Belgium and all four adults bought 2 kilograms of hand-rolling tobacco at the price of £408.  As far as the Appellant was concerned this was for his own consumption and that of his son.  The Appellant was retired but clearly had some funds not least because he had since bought a Peugeot motor car to replace the Mercedes for which he had paid £8,500.
10.	The Appellant alleged that he did not know what the others were buying although it is clear that each of them handed Mr Clifford £408 so that he could pay for all the goods together.  The goods were then put into separate plastic bags and the Appellant retained his.
11.	We are satisfied that the Appellant had acquired his goods for himself and his family.
12.	It is clear from the evidence however that Mr Clifford, Mr Ward and Miss Walford were working together with a view to selling the tobacco afterwards.  It is not credible that both Miss Walford and Mr Ward could afford to buy the amount of tobacco they did given their financial means.
13.	The Appellant had instructed Glaisyers solicitors to act on his behalf but they had not attended at the tribunal as the expense was too high.
14.	All the parties had been interviewed at Coquelles on 19 May 2001 when the vehicle was stopped.  Details of their interviews appear at folios 14 to 33.
15.	The Respondents wrote to Glaisyers solicitors on 18 June 2001 confirming that they were not prepared to restore the vehicle.  The Appellant asked for a review but the review was not carried out within 45 days and the restoration is therefore deemed to have been refused.
16.	Mr Puzey summed up and confirmed that £3,939.75 of duty had been lost on the 40 kilograms of hand-rolling tobacco.  This represented £968 each.
17.	The vehicle had been sold on 29 November 2001 for £2,325 although he conceded that it’s market value at the time of the seizure might have been higher.
18.	The Respondents conceded that the goods had been bought separately but they were of the opinion that the purchase was at least by the three occupants of the car for commercial purposes.
19.	Mr Clifford was a market trader and had an ideal outlet for the sale of smuggled tobacco.  All parties had bought the same amount of goods.
20.	Three out of four indicated that they smoked one and a half pouches per week.  This would mean that 133 weeks were needed to smoke all the tobacco.
21.	The Appellant had signed the interview notes and if he did not think they were right he should have said so.  It was clear from the hearing today that he was not easily intimidated by authority.
22.	There were inconsistencies in the statements between the parties and the suggestions they were making were not credible and in those circumstances there were reasonable grounds for the Respondents to believe that the goods had not been purchased for personal use.
23.	The Appellant confirmed that he had merely agreed to go across the channel to buy tobacco for himself and that that included tobacco for his sons which he would have given to them.  He was totally unaware of the activities of his son’s friends nor did he feel it was any of his business.  He assumed that as they buying similar amounts to himself that that was reasonable and in those circumstances he was doing nothing wrong.
Decision
24.	We have considered the facts of this case and we do believe that the Appellant had purchased his own tobacco for his own purposes.  He was not familiar with the procedure and had merely followed Mr Clifford’s lead.  We also believe that he was naive in agreeing to take the individuals and child to Belgium for the purpose of buying tobacco.  Any reasonable man in his circumstances would have realised that their activities were less than honest.
25.	As we find that the other three participants had purchased tobacco with a view to selling it commercially then the Respondents were acting reasonably in refusing to restore the vehicle.
26.	No application was made for costs by the Respondents and none are awarded.

D S PORTER
CHAIRMAN
RELEASE DATE:11 October 2002

MAN/01/8276