EXCISE - Restoration refusal - Commercial import of champagne and whisky - French exporter's van stopped at Dover - Documentation defective - Negligence but no evasion alleged - Disparity between duty and high value of goods - Failure to consider proportionality - Further review directed - FA 1994 s.16(4)(b) - Appeal allowed
PRACTICE - Non-appearance of Appellant - Application by Customs under Rule 26(1) rejected because sub-rule not applicable - Appeal considered in Appellant's absence under Rule 26(2) - Trib Rules, r.26(1)(2)
LONDON TRIBUNAL CENTRE
PASQUET ONLINE Appellant
T/A BALADE GOURMANDE
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: THEODORE WALLACE (Chairman)
Sitting in public in London on 20 November 2002
The Appellant did not appear and was not represented
Matthew Barnes, Counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2002
"(1) If, when an appeal or application is called on for hearing no party thereto appears in person or by his representative, a tribunal may dismiss or strike out the appeal or application …"
Alternatively he asked the Tribunal to consider the appeal in the Appellant's absence under Rule 26(2) which provides,
"(2) If, when an appeal or application is called on for hearing, a party does not appear in person or by his representative, the tribunal may proceed to consider the appeal or application in the absence of that party."
In the case of a decision under Rule 26(1), the Appellant can apply to reinstate the appeal within 14 days; in the case of a decision under Rule 26(2), he may apply within 14 days to set aside the decision.
"COMMUNAUTÉ EUROPÉENNE DOCUMENT SIMPLIFIÉ
PRODUITS DÉJÀ MIS À LA
The details on one of the three forms corresponded to the typed invoice, showing the supplier as "Balade Gourmande" of Poitiers, the same customer as the invoice, the same goods and the same price under "valeur Commerciale" as on the invoice excluding freight and VAT, namely 11,425 euros. It was dated 25/01/02. Half of the boxes were left blank, including the competent authority in the country of destination, the number and date of declaration and the CN code. The means of transport was given as "Europe Express".
"It is this Department's general policy that seized excise goods should not be restored. However, each case is examined on its merits to determine whether or not restoration may be exceptionally offered."
"The question for me to address is whether or not the goods should have been restored …
The goods were liable to forfeiture because the duty was not properly secured, and no subsequent evidence has been provided to indicate that Mr Pasquet's company had done so prior to importing the goods. From the information you have provided me with, I am quite prepared to accept that this seizure resulted from a mistake rather than a fraud. However, it is true to say that had the vehicle not been intercepted on that day, then it is highly likely that Mr Pasquet's company would have continued to have imported excise goods without making proper arrangements for the payment of UK excise duty, to the financial benefit of his company and his customers."
The Review concluded that Deloittes had not made out a case for disapplying the policy of non-restoration.
 The Commissioners' policy involves the deprivation of people's possessions. Under Article 1 of the First Protocol to the Convention such deprivation will only be justified if it is in the public interest. More specifically, the deprivation can be justified if it is 'to secure the payment of taxes or other contributions or penalties'. The action taken must, however, strike a fair balance between the rights of the individual and the public interest. There must be a reasonable relationship of proportionality between the means employed and the aim pursued (Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35, para 61; Air Canada v United Kingdom (1995) 20 EHRR 150, para 36). I would accept Mr Baker's submission that one must consider the individual case to ensure that the penalty imposed is fair. However strong the public interest, it cannot justify subjecting an individual to an interference with his fundamental rights that is unconscionable."
Lord Phillips quoted the following passage from the judgment of the Court of Justice in Paraskevas Louloudakis v Greece (Case C-262/99) ,
"The administrative measures or penalties must not go beyond what is strictly necessary for the objectives pursued and a penalty must not be so disproportionate to the gravity of the infringement that it becomes an obstacle to the procedures enshrined in the Treaty."
(1) that the Commissioners carry out a further Review within 25 working days of the decision of the Court of Appeal in Commissioners of Customs and Excise v Hoverspeed plc;
(2) that the Review be carried out by an officer not previously concerned with this matter and shall be despatched to the Appellant and served on the Tribunal within the time specified above;
(3) that the Review officer take account of the facts in this decision, should specify what documentation was required stating the statutory basis and should consider the gravity of the infringement.
RELEASED: 10 December 2002