EXCISE DUTIES  — rehearing of appeal  — original tribunal decision overturned by process of judicial review  -  forfeiture by Customs of excise goods imported from continent as being held or used for commercial purpose —  penalty imposed by Customs under FA 1994 s 9  —   evidence emerging for the first time at tribunal rehearing suggesting that goods  not being imported for own use —  reasonableness of review decision in light of information known to tribunal but not to Customs  — held not to be the case that review decision could not reasonably have been arrived at  —  requirements for avoiding liability to penalty not proven  — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	JOHN ROBERT PASCUAL 	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Mr M S Johnson (Chairman)
						Mr J E Davison

Sitting in public in Newcastle upon Tyne on the 14th October 2002

The Appellant appeared in person

Mr D Mohyuddin of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

	© CROWN COPYRIGHT 2002

DECISION

 Background 

1.     This is the decision of the tribunal on the rehearing of an appeal under section 16 of the Finance Act 1994 and section 170A(2) of the Customs and Excise Management Act 1979 against two decisions upheld on review by the Commissioners of Customs and Excise (“Customs”).  The decisions of Customs are as follows: 

(a)      not to restore certain excise goods seized by Customs from the appellant (“the forfeiture”); and 

(b)       imposing a penalty upon the appellant of £250 (“the penalty”).

2.   The first of these decisions was made having regard to section 139 of the Customs and Excise Management Act 1979, and the second having regard to section 9 of the Finance Act 1994.

3.     The forfeiture related to the following goods (“the goods”):

400 cigarettes
2 litres of spirits
27 litres of wine
786 litres of beer.

4.     The forfeiture of the goods took place as long ago as 12 September 1996.  On 26 September 1997 the appeal against the forfeiture and penalty was heard by a value added tax & duties tribunal sitting in Gateshead, where the appellant lives.  That tribunal dismissed the appeal.  

5.    The appellant applied to the High Court of Justice for judicial review of that decision, resulting in a consideration of documents relating to the case by Mr Justice Popplewell on 4 August 1998 and an oral hearing before Mr Justice Carnwath on 27 October 1998.   By a Consent Order of Mr Justice Latham made in the Divisional Court of the Queen’s Bench Division on 28 May 1999 (the Order is on its face incorrectly dated 28 May 1998), it was ordered that upon lodgement of the tribunal decision or a copy thereof with the Master of the Crown Office, the decision of 26 September 1997 was to be quashed and the appeal remitted for a rehearing to a differently constituted value added tax & duties tribunal.  We understand that the tribunal decision was deemed to be faulty because it gave no reasons for the tribunal’s conclusions. 

6.    By a letter dated 2 June 1999, copied to the appellant and to Mr Dick Lester, Registrar of the VAT & Duties Tribunals, Mr Julian P Winkley, Senior Principal (Legal) of Customs, wrote to the General Office Manager of the Crown Office, lodging a copy of the decision of 26 September 1997 and seeking confirmation that “… all matters are now concluded as far as the Crown Office is concerned”.  Mr Winkley indicated that, upon knowing that, he would pass the papers in the case to colleagues of his dealing with tribunal matters, for them to deal with the subsequent rehearing.  

7.    It appears that neither Mr Winkley nor any of his colleagues attended to having the appeal relisted for a further tribunal hearing.  For his part, the Registrar of Tribunals appears to have waited upon the parties in the matter, having like the appellant been given to understand that the initiative in having the appeal relisted would be taken by Customs.  Some 12 months later, by letter dated 30 May 2000, the appellant complained to Mr Winkley that nothing had flowed from the Order of 28 May 1999 and asked for the goods to be returned.  In his letter in reply dated 5 July 2000, Mr Winkley promised that he would liaise with the VAT & Duties Tribunals “to ensure that there is the earliest listing of the rehearing of this case”.  

8.    The appellant strenuously objected to the Crown Office that a rehearing should not take place, having regard to the 12 months’ inactivity on the part of Customs.  However Mr Winkley belatedly forwarded the papers to colleagues to take the rehearing forward.  He indicated in a letter to the appellant dated 22 November 2000 that, whilst he accepted that he should have checked the position sooner, he had subsequently done all he could to notify the tribunal of the position and facilitate a relisting of the appeal.

9.    The appeal was in due course listed for rehearing on 14 October 2002 before this, a differently constituted tribunal to the one hearing the appeal in 1997.

The appellant’s application to have the appeal allowed 

10.   At the opening of the appeal rehearing, the appellant made application for the appeal to be allowed, by reason of the delay on the part of Customs in having the appeal listed for a rehearing, as provided by the Order dated 28 May 1999.  The application was opposed by counsel appearing for Customs.

11.   Rule 18(2) of the Value Added Tax Tribunals Rules 1986 (as amended) provides for a tribunal to dismiss an appeal for want of prosecution “… where the appellant … has been guilty of inordinate and inexcusable delay”.   There is no corresponding rule where it is the respondents who are alleged to be in default.

12.   There are however circumstances in which it may be appropriate for a tribunal to allow an appeal because of conduct on the part of the respondents.  One such is failure to comply with a direction made by the tribunal (see C & E Comrs v A & D Goddard [2001] STC 725).  There seems however to be no case of an appeal having been allowed exclusively on the basis of inactivity on the part of the respondents without any element of wilful disobedience.

13.   The reference to “inordinate and inexcusable” delay requires a consideration of the reasons for the delay as well as its length.  The modern practice in the courts is to strike out a claim where lengthy delays have been caused by a claimant acting in wholesale disregard of the norms of conducting serious litigation, doing so with full awareness of the consequences.  This is exemplified by the decision of the Court of Appeal in Habib Bank v Jaffer [2000] Times Law Reports 265.  The claimant had in that case ignored the advice of solicitors to progress the proceedings, which conduct was found by the court to be contumelious and amounting to an abuse of process.  That was in a case where the claimant conceded inordinate and inexcusable delay on its part for two and a half years.  Whilst there was no wholesale disregard of court rules or orders by the claimant with awareness of the consequences so as to constitute abuse of process (as in the Goddard case, supra), yet the known history of political events in Pakistan was such that the Habib Bank was found to have been “simply unable to make any decision” in regard to making progress with the disclosure of documents and preparation of witness statements which the case required.  So the court struck out the claim on the basis of the deliberate stance of the claimant.

14.   By contrast, the conduct of Customs in this case was not contumelious: it was, at most, negligent.  Moreover Customs were not the appellants in the appeal; the onus remained on Mr Pascual, having secured part of his object in having the original tribunal decision overturned, to continue to prosecute his appeal, so as to have it allowed on rehearing.  He would still need to advance his grounds on which to have the disputed decisions of Customs set aside.    

15.   We observe that the Order dated 28 May 1999 did not expressly provide for any time-scale within which the rehearing of the appeal was to take place.  Although we agree with the appellant that 12 months was a reasonable period within which to have expected his case to be reheard, nevertheless the appellant was unable to point this tribunal to any respect in which a fair hearing of the appeal might be put in jeopardy by reason of the delay.  Indeed, bearing in mind his personal grasp of the case and his intention to call only himself as a witness, the appellant accepted before us that a fair hearing was no less possible in October 2002 than had the rehearing taken place immediately after the Order of 28 May 1999.

16.   Moreover the appellant was unable to indicate any respect in which his position might have been financially prejudiced by the delay in having the case relisted.  What he did say is firstly that he has been classed as a fraudster, and secondly that he has been prevented from playing so full a role in the Labour Party or in his trade union as he might otherwise have done, for a longer period than should have been the case.  However we are not satisfied that those matters impact on the proceedings in such a way as to make them unsatisfactory or prevent the tribunal from doing justice in the case:  see Arrow Nominees Inc v Blackledge [2000] TLR 528.  As Counsel for Customs pointed out, the present is an appeal primarily brought before the tribunal in relation to a so-called “ancillary matter”, as defined in section 16(8) of the Finance Act 1994, in which our role is limited as described in section 16(4) of that Act.    

17.   We are satisfied that it remains fully possible for us to conduct this appeal rehearing to a just conclusion notwithstanding the complaints made by the appellant.  Whilst we consider that the appeal in this case should have been listed for rehearing well within 12 months of 28 May 1999, nevertheless we hold that there is no rule or principle of inherent jurisdiction falling to be applied whereby we ought not to proceed with the rehearing at this late date.  Indeed, we regard ourselves as under a duty to proceed with the rehearing, having regard to the history of this matter and the ruling made by the High Court.  Accordingly we direct that the appellant’s application for the appeal to be allowed on grounds of delay is dismissed.

18.   Our decision to reject the application was announced at the hearing, when we gave oral reasons.  The above statement of reasons should however be regarded as the written document for which provision is optionally made in the second part of rule 30(2) of the Value Added Tax Tribunals Rules 1986 (as amended), anticipating any request that might be made under that sub-rule.                     

The respondents’ application to amend their statement of case

19.   The respondents made application by counsel to amend their statement of case to take account of the recent decision of the Divisional Court of the Queen’s Bench Division in R on the application of Hoverspeed Ltd and others v Comrs of C & E [2002] EWHC 1630 (Admin).

20.   The appellant expressed his opposition to the last-minute timing of the amendments, it being common ground that the amendments were only formulated in draft on 8 October 2002.    

21.   As the amendments were purely formal in nature, recognizing that the Excise Duties (Personal Reliefs) Order 1992 SI 1992/3155 (“the PRO”) erroneously reversed the burden of proof required by Council Directive 92/12/EEC (“the Excise Directive”), as held in the Hoverspeed case, we allowed the amendments, being conscious that the expressed acceptance by Customs of the reversal of the burden of proof was a matter that enured for the benefit of the appellant.

22.   So far as concerns the penalty, however, it is clear that the burden of proof under section 170A(2) of the Customs and Excise Management Act 1979 (as amended) rests on the appellant.  Under that sub-section, he needs to prove that he was not the person, or one of the persons, liable to pay duty on the goods, and that at the time he acted he had no grounds for suspecting that the goods were chargeable with unpaid excise duty (the remaining provisions of section 170A(2) being irrelevant to this appeal). 

Evidence before this tribunal 
    
23.   The tribunal heard oral evidence from Mr Pascual in support of the appeal and from two officers of Customs, Mr David Medcalf and Mr Nicholas Albert Riley, in support of Customs’ case. Customs presented their case first.  Mr Pascual cross-examined Mr Medcalf and Mr Riley, and he was in his turn cross-examined by counsel for Customs.

24.   The tribunal had the benefit of reading and considering a joint bundle of documents, incorporating copies of the notice of appeal, Customs’ amended statement of case, and documents emanating from the lists of documents of both parties.

25.   We also had sight of a duly signed typewritten witness statement dated 22 February 2002 from Mr Brian John Rowland, who was in it expressed to be Team Leader in the Tourist Finance Department of P & O Stena Line Ltd of Dover.  This had exhibited to it records of 16 round ferry trips made across the English Channel (Dover – Calais and return) by a vehicle Registration No M286 FFT, described variously as a “Jeep” or a “Suzuki”, in each case “ + trailer”.  There was a record of one further round trip by a “Van” of unknown registration, and a final (18th) round trip on 12 September 1996 by a Ford Transit Registration No N843 SBC.   The trips were made between 4 October 1995 and 12 September 1996.  The bookings were all in the name of a Mr R or a Mrs C Pascual, save for that of the van of unknown registration, which was in the name of a Mr B Hildrath.

26.   We admitted this witness statement and its exhibits, which had not been challenged as provided in rule 21(4) of the Value Added Tax Tribunals Rules 1986 (as amended), as evidence in the appeal pursuant to rule 21(5).  In the statement, the witness vouched for the 18 round trips referred to in the exhibits as having been booked and made.   

27.   On 31 October 2002, that is to say after the conclusion of the tribunal hearing, Mr Pascual served at the Manchester Tribunal Centre a copy of a letter dated 25 October 2002 written to him by Mr John Langford, Company Secretary of P & O Ferries Ltd, Dover.  The admissibility and effect of that letter, a copy of which was sent to Customs by the Manchester Tribunal Centre on 1 November 2002, are considered in paragraph 48 of this decision.         

The facts of the appeal as found by this tribunal

28.   At the Boston Spa weighbridge, on the Great North Road, on 12 September 1996, police officers were routinely stopping and examining vehicles for roadworthiness.  Officers of Customs were also present, namely the witness Mr Medcalf and a Mr Stuart Philip Padgett.  The police stopped a Ford Transit vehicle, Registration No N843 SBC, containing the appellant and members of his family.

29.    The vehicle was found to contain the goods.

30.   Mr Medcalf and Mr Padgett interviewed the appellant at the scene.  The interview lasted 20 minutes, from 14.18 to 14.38 hrs on 12 September 1996.  The interview was tape-recorded.

31.   The appellant was offered legal representation which he declined.  He was then given the caution, “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court.  Anything you do say may be given in evidence.  Do you understand?”  The appellant said that he did.

32.   The appellant was then required to satisfy Customs that the goods were not being held or used for a commercial purpose.  We find that the officers here had in mind the original article 5(3) of the PRO as it stood before the Excise Duties (Personal Reliefs) (Amendment) Order 1999 SI 1999/1617.  That article implemented article 9(1) of the Excise Directive, whereby excise duty becomes chargeable in a Member State of the Community where products for consumption in one Member State are held for a commercial purpose in another.

33.   The interview elicited that the appellant had been to France in the Transit the day before, had driven straight to the retail outlet colloquially known as “Eastenders”, not far from Calais, and had purchased the goods, spending only some 2 hours on the continent.  His purpose was to acquire the goods for less than they would have cost in the UK.

34.   This was not the first occasion on which the appellant had been to the continent specifically for the purpose of buying excise goods.  In the witness box, he admitted to making 6 trips, nos 5, 6, 14, 16, 17 and 18 in the schedule of trips exhibited to Mr Rowland’s witness statement.  He made no bones about his repeated trips to the continent to buy alcoholic drinks.  His case has consistently been that the trips were to buy excise goods for his own use.  Excise goods acquired elsewhere in the Community than the UK for a traveller’s own use are not subject to further duty in the UK, as article 8 of the Excise Directive makes clear.  

35.   What of the other trips listed in Mr Rowland’s schedule, and why so many trips?  It took detailed cross-examination by counsel for Customs to get to the bottom of that. The explanation, as we find it to be, which was not at the time apparent to Customs, is as follows.
 
36.   We find that the appellant and his wife were offering a service to former work colleagues and acquaintances of the appellant.  The appellant and his wife provided transport and travel arrangements to enable alcoholic beverages to be brought back to Tyneside on behalf of such individuals.  Formerly the appellant had a well-paid job working on a North Sea oil platform.  He and his colleagues enjoyed a high earned income.  Then the appellant suffered an accident which rendered him unemployable in that industry. The appellant lost this income, although we find that he had substantial savings, and had received the benefit of a substantial collection raised by his fellow workers, payable to whichever of their number might lose his job through injury.  Although unemployed, the appellant retained his former working connections.  His former colleagues, and their acquaintances, still had a lot of money to spend.

37.   In these circumstances, the appellant and his wife identified what amounted to an enterprising business opportunity.  The opportunity resided in the fact that a preferred manner of unwinding from the strenuous jobs carried out in the North Sea oil industry was the consumption of large quantities of beer in a social setting.  These workers were in the market to acquire alcoholic drinks in bulk at a good price.  The appellant and his wife provided the means to help meet this demand.      

38.   Broadly the system worked as follows.  The appellant’s wife owned a Suzuki Jeep with a trailer.  The appellant and his wife would know when their customers might be coming on leave and who might then be interested in buying what quantities of drinks (chiefly, but not exclusively, beer).  The appellant or his wife would make a cross-Channel ferry booking in his or her name.  They would not necessarily themselves make the trip to the continent to buy the alcohol.  Members of their family might go instead, or the consumers would travel to bring back their own drinks.  However the appellant and his wife would make the basic travel arrangements.  They would make the ferry bookings on the basis that they took the risk that they might be left without a need to make the trip to satisfy their working contacts.  Of course, they would also bring back quantities of drinks for themselves, and indeed they and the appellant’s former colleagues and acquaintances would frequently drink socially together.

39.   When the appellant was interviewed on 12 September 1996, he told Mr Medcalf and Mr Padgett that he paid cash for the goods out of his own money.  He explained about his accident and the collection made for him by his former colleagues.  He told them of his former high earned income (£39,000 a year), his social security benefits since received and his surplus spending money.  He in no way qualified his story that the goods were for his own use and maintained that he had a high personal consumption of beer and would drink all that he had brought back, with or without the company of his friends.  He confirmed that he had made 6 or 7 previous trips to the continent in the last 12 months, using his wife’s Jeep. He said nothing about any occasions on which the Jeep might have been used to travel to the continent otherwise than on his account.  He was not questioned about those occasions. 

40.   Mr Medcalf put it to the appellant that Customs had to satisfy themselves that the goods were not being taken back to the appellant’s home address and then sold to pubs or clubs.  The appellant replied that that was not the case.  The question about what might have happened to excise goods brought to the UK from France on previous occasions was not pursued. 

41.   The goods were forfeited on the basis that Customs found that the appellant’s purpose in importing them was commercial.   It appears from the record of interview that Customs simply placed the burden of proof upon the appellant to demonstrate that the importation was for his own use, and forfeited the goods when he failed to discharge that burden.  However that was not the approach adopted by Mr Mike Louis, the officer of Customs who conducted the review of the decision.   In his review letter dated 4 November 1996, Mr Louis looked at the circumstances of the case in a judicial way.  In particular, on the second page of the letter he sets out a number of “bullet points” specifying factual matters which, he says, he has noted and taken into consideration.  One of them is the following:

•	“You claimed that the last time you were abroad was 4 months previously and that you had made 6 or 7 trips to the continent in the previous year.  Customs have evidence, however, to show that at least 19 trips have been made in the previous 12 months, all completed within about 6 hours and invariably every other Thursday”.

42.   That evidence was not put to the appellant at the time of his interview.  However it is in evidence before this tribunal, the evidence of Mr Rowland actually being that 18 trips were made in a period of just over 11 months.  As mentioned above, the witness statement containing such evidence was not challenged.  We interpret the decision in the Hoverspeed case as being that we should, at this hearing, take account of that evidence in deciding this appeal.     

43.   We are mindful that the court in the Hoverspeed case was of the view that, in the hearing of an appeal such as the present, “ … it is for the appeal tribunal to decide de novo whether the goods were imported for a commercial purpose, the proceedings being civil and the burden lying on [Customs] to prove on a balance of probabilities, and on the basis set out above, that the goods were imported for a commercial purpose”.

44.   The reference to “the basis set out above” is to the court’s earlier holding that the possession of quantities of excise goods in excess of the prescribed levels in the PRO (in the present case, the appellant was travelling with about 7 times the prescribed amount of beer) “ … raises an evidential presumption which calls for a response from the citizen, but once the citizen has responded, it is for [Customs] to be satisfied on all the evidence that the goods are held for a commercial purpose”.

45.   In the present case, the appellant responded to Customs’ disbelief that the goods were not for a commercial purpose by maintaining steadfastly that the goods were for his own use.  This was not accepted by Customs on a consideration of all the evidence when Mr Louis conducted his review of the decision to forfeit the goods.  

46.   The way in which Mr Louis expressed his conclusion in the review letter was as follows.  He said this:

“In all the circumstances and applying the Civil Law test of “the balance of
 probabilities” I have concluded that the officers were justified in believing the goods concerned were imported for a small scale commercial purpose”.

47.   Had this case simply depended on the misconception as to the burden of proof as to commerciality evident in the PRO, without a weighing of the evidence surrounding the forfeiture by the reviewing officer, this tribunal might have found it necessary to remit this case for the conducting of a further review of the original decision, pursuant to section 16(4)(b) of the Finance Act 1994.  However on examination of the review letter, we find that Mr Louis of Customs is stated to have performed that exercise.

48.   The letter of 25 October 2002 from Mr Langford to the appellant in substance makes just two points, viz firstly that Mr Rowland’s evidence is not intended to suggest that the appellant travelled on any of the 18 ferry trips that he does not admit having travelled on, and secondly that all the evidence does is to vouch for the booking details recorded in the ferry operator’s reservations system.   As we are already of the view that that is as far as Mr Rowland’s evidence extends, we think that the letter is unremarkable, and it is unnecessary for us to consider its admissibility, coming as it does after the conclusion of the hearing.

49.   We record that the appellant did not satisfy us that he was not himself the person, or one of the persons, liable to pay any excise duty that might be due on the goods.  Moreover he has not proved that he had no grounds for suspecting that the goods were chargeable with excise duty that had not yet been paid.  Indeed we conclude that he must have had such grounds, in that he must have been aware that the question whether the goods had been imported for his own use had not been fully explored by Customs.    

Submissions of the parties

50.    For Customs, Mr Mohyuddin submitted that it was in order for Customs to have seized the goods, because it was more likely than not that the appellant had not imported them for his own use.  Mr Mohyuddin referred us to the Hoverspeed case and to the power of Customs to restore forfeited goods under section 152 of the Customs and Excise Management Act 1979.  He referred us to the factual circumstances of the seizure, the review procedure under sections 14 and 15 of the Finance Act 1994, and to Mr Louis’ review letter and its terms.

51.    For the scope of the jurisdiction of the tribunal, Mr Mohyuddin cited John Dee Ltd v C & E Comrs [1995] STC 941.  He referred to how section 16(4) of the Finance Act 1994 had been interpreted in C & E Comrs v Lindsay [2002] EWCA Civ 267.  He urged us to dismiss the appeal.

52.    The appellant submitted that there was no evidence on the basis of which it could reasonably have been concluded by Customs that the importation was not for own use.  He said that he had been shabbily treated and he urged us to allow the appeal

Decision of this tribunal with reasons

53.    We have an insight into the reasons for the various trips to the continent that Customs did not have, either at the time of the forfeiture of the goods or when Mr Louis reviewed that decision.

54.    We have found, because this is what the appellant himself told the tribunal and we believe him, that some of the trips were for the purpose of bringing back excise goods for former work colleagues and acquaintances of the appellant.  

55.    If Customs had known what we now know about the trips made during the 11 months prior to 12 September 1996, the question would need to have been asked, are these goods (that is, the goods being transported on that date in the Transit) for the own use of the appellant, and his fellow travellers, or are they for the use of any former work colleagues or acquaintances?

56.    That question was not asked because Customs were unaware that it needed to be asked.

57.    No question arises of any of the goods being imported as gifts for former work colleagues or acquaintances, or anyone else, because that has never been suggested.  The definition of “own use” contained in article 2(1) of the PRO is not therefore in point.

58.    If the forfeiture were reviewed today by Customs in the knowledge that the appellant and his wife had operated arrangements to facilitate the importation of excise goods for former work colleagues and acquaintances, it would be reasonable for Customs to doubt whether the goods were for the own use of the appellant and his fellow travellers.  They would still, however, need to be satisfied on all the evidence that the commerciality of the importation was proved, on a balance of probabilities, otherwise the appellant would be entitled to the benefit of the doubt.

59.    This tribunal is entitled to decide, from what this tribunal has seen and heard, whether in the case of a review today by Mr Louis, he could not reasonably have arrived at the decision to uphold the forfeiture.  This tribunal’s powers to intervene are limited to the case where we are satisfied that such a decision could not reasonably have been arrived at.

60.    We observe that Mr Louis attached significance, in the review letter, to the previous trips made to the continent.  Little did he know precisely what significance those trips had, but it is clear beyond question to us that he has been vindicated by the facts found at this tribunal hearing in specifying that as an evidential matter justifying the forfeiture.

61.    We must resist the temptation to substitute our own judgment for that of the reviewing officer.  We are not redeciding whether the goods should have been forfeited; rather we are deciding whether Mr Louis could not reasonably have arrived at his decision upholding the decision of Customs to forfeit the goods.

62.    Had we found that the previous trips to the continent had no significance, we might have concluded that Mr Louis took account of an irrelevant circumstance, and concluded that he could not reasonably have arrived at his decision to uphold the forfeiture.  As it is, we have found that the previous trips are highly relevant: so much so that they are the matter, par excellence, which raises a real doubt as to the “own use” character of the importation.

63.    Armed with information as to the significance of the previous trips, Customs might reasonably have decided this case in one of two ways.  On the one hand, they might have been persuaded that the appellant’s own large alcohol consumption, his savings, the fact that he and his family only were travelling, and the absence of evidence of the involvement of any other person in this particular trip added up to an importation for “own use”.  Alternatively, they might have concluded that the appellant was more likely importing the goods for one or more former work colleagues or acquaintances.

64.    Without the benefit of information as to the significance of the previous trips, Mr Louis decided that, on a balance of probabilities, the importation was not for “own use”.  With the benefit of that information, we cannot see that it would have been unreasonable for him to have decided the matter in exactly the same way.  We regard our own view as to the reasonableness or otherwise of having so decided without that information as being irrelevant.  

65.    As mentioned above, the appellant has altogether failed to prove any of the factual requirements of section 170A(2) of the Customs and Excise Management Act 1979.

66.    For the above reasons we decide that it is not competent for us to intervene in respect of the review decision in this case, or to grant relief against the penalty.  We therefore dismiss the appeal.

Costs

67.    The appellant has failed in the appeal.  He has also failed in his preliminary application to have the appeal allowed irrespective of the merits.  On the other hand, having had the original tribunal decision overturned, he has had to wait an unduly long time for his case to be reheard.   It is no small matter for an appellant to have had the outcome of his appeal “hanging over his head”, as it were, for an unnecessarily long time.  That was a preventable state of affairs that was not the appellant’s fault.  We therefore do not think that it would be right for costs to follow the event in this case, as they might otherwise have done.   In these circumstances there will be no order as to costs.

M S JOHNSON
CHAIRMAN
RELEASE DATE:

MAN/97/8001