EXCISE DUTY – Seizure of vehicle and excise goods – Commissioners' refusal to restore – Large excess of excise goods – Reasonableness of policy – Right to property – Appeal dismissed
LONDON TRIBUNAL CENTRE
MRS ELSIE DOWNES Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: MR PAUL HEIM CMG (Chairman)
MR A McLOUGHLIN
MRS C J DEBELL
Sitting in public in London on 19 October 2001
Mr K Rogers of counsel, for the Appellant
Mr C J Mellor of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2002
"(i) She had imported goods that exceed the guide levels set out in the Excise Duties (Personal Reliefs) Order 1992 (as amended);
(ii) She failed to satisfy the officer that there was no commercial element in the importation;
(iii) A false declaration was made to the officer;
(iv) No satisfactory explanation was given for making a false declaration about the amount of purchases;
(v) Excess and undeclared goods were concealed under other items;
(vi) An admission was made that the goods would be sold to others at a club and that sums would be added on to cover expenses."
This decision was reviewed and upheld by letter dated 8 February 2001.
"The department's efforts are directed towards deterring and detecting fraud failure to pay excise duty that is due, irregularities and to encourage compliance with procedures established to control movements of excise goods. In this way protection will be given to both Revenue and the legitimate trade in the UK. It is appropriate that this objective should be applied consistently throughout the UK. The creation of the single market meant the removal of fiscal frontiers, this significantly increases opportunities for smuggling and irregular movement of goods with less risk of detection. Thus routine restoration, even on fairly stringent terms, would thoroughly undermine the Department's objective of reducing the incident of fraud, failure to pay excise duty that is due and irregularities.
To maximise deterrent and encourage compliance, the normal policy in these cases is to refuse to restore seized goods. There are no exceptional circumstances in this case which would justify departure in this policy".
"The current policy introduced on 13 July 2000 means that vehicles will be seized and not restored on the first attempt they are detected being used in smuggling. The message for fraudsters now using their vehicles to commit excise fraud is very simple, use it and you will lose it: and there will be no second chance. … Vehicle which belong to owners who are not present at the time of detection will also not have their vehicles restored, unless they can demonstrate that the decision not to offer the vehicle for restoration is unreasonable.
The current policy has been widely publicised in the national press and the Customs leaflet was sent out to every registered vehicle keeper with the reminder to pay their road fund licence (tax). This leaflet sets out the guidelines for amounts of tobacco and alcohol regarded as reasonable for personal use, the need to convince an officer of no commercial intent if these are exceeded and the penalties if caught smuggling. Where vehicles are seized and not restored, individual applications for restoration are considered on their merits and officers bear in mind the need for proportionality. …
It is not our intention to penalise the genuine honest traveller or to dissuade travellers from shopping in other EU countries when making purchases for their own use, but to deter those who are intent on regularly smuggling tobacco and alcohol into the UK".
"16(4) In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of the 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 the decision could not reasonably have arrived at it, to do one or more of the following, that is to say –
(a) to direct that a 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 the future".
PAULL HEIM CMG
RELEASED: 22 October 2002