EXCISE DUTY —Customs refusal to restore car seized as allegedly used to import excise goods not for own use — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	MR PHILIP JAMES	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Mr J D Demack (Chairman)

Sitting in public in Manchester on the 1st July 2002 and 16 May 2003 

The appellant did not appear and was not represented

Mr Jonathan Cannan of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

	© CROWN COPYRIGHT 2003

DECISION

1.	 This is an appeal by Mr Philip James against the deemed decision on review of the Commissioners of Customs and Excise by letter of 18 June 2001 not to restore to him his Vauxhall Astra estate car, registration no K766 VDB (“the car”).  The car was seized because it was being used to carry excise goods he was importing which the Commissioners alleged were being held or used for a commercial purpose
2.	When the appeal was called on for hearing, Mr James was not present and, since we knew of no reason for his non-attendance, on the application of Mr Jonathan Cannan, counsel for the Commissioners, we determined to proceed in his absence.
3.	On the basis of evidence consisting of the Commissioners’ bundle  of copy documents and the witness statements of Messrs Roderick Barr, Michael Frank Simmons, Brian John Roland, Dave Luckhurst, Gerry Dolan and Graham Charles Crough, all of whom are officers of the Commissioners, we find the following facts to have been established.
4.	On 18 May 2001, Mr James was stopped by Mr Barr as he entered the UK control zone at Coquelles, France.  Mr James was driving the car, and was travelling alone.  He was asked where he had been and replied “Calais”. He was then asked, “In the last year how many times have you travelled abroad?”, and replied “About 3 times in the tunnel”.  Mr Barr then said, “No, I mean how many times abroad whichever route”, to which Mr James responded, “6 times.”  In response to a question  about what excise goods he had, Mr James said, “25 cases of beer, 15 cases of wine, 2 bottles of spirits and 800 cigarettes.”  As those goods exceeded the quantity specified in the Schedule to the  Excise Duties (Personal Reliefs) Order 1992 (the 1992 Order), and Mr Barr was aware that the car had travelled to Europe at least 5 times between 10 December 2000 and 18 May 2001, he required Mr James to satisfy him that the goods were not being held or used for a commercial purpose.  Mr James declined to stay to be interviewed, whereupon Mr Barr proceeded to seize the excise goods and car.  The excise goods consisted of:
312 litres of beer
136.5 litres of wine
1600 cigarettes
2 litres of whisky  
5.	By letter of 21 May 2001, Mr James requested the Commissioners to restore the car to him.  In the letter he acknowledged that he had behaved stupidly, and said that he would “never go over the limit again”.  He added that he and his wife  needed the car for work and for taking their children to school, and that he had not been untruthful in responding to Mr  Barr’s questions at Coquelles.
6.	The Commissioners, by Mr Simmons, (Mr Barr’s team leader), responded to Mr Barr’s letter on 18 June 2001 saying that the car would not be offered for restoration because:
1)	he was carrying excise goods in excess of the guidelines contained in the Schedule to the Excise Duties (Personal Reliefs) Order 1992;
2)	he was a frequent traveller;  
3)	he had knowledge of the guidelines (law); and
4)	he had been untruthful to the officer regarding the number of trips abroad he had made.
7.	Mr James requested the Commissioners to review the decision not to restore the car, but they failed to carry out a review within the 45 day period for which s.15 of the Finance Act 1994 provides.  Consequently, Mr Simmons letter of 18 June 2001 became the deemed decision on review.
8.	We earlier mentioned that Mr James’ car had been recorded as travelling to the continent on at least 5 occasions in the previous year.  The Commissioners records showed, and we find, that it had in fact travelled by ferry on 22 occasions between 10 December 1999 and 27 April 2001, and by tunnel on 11 occasions between 7 April 2000 and 28 April 2001.
9.	We also mentioned that Mr James was required by Mr Barr to satisfy him that the excise gods he had imported were not being held or used for a commercial purpose.  That requirement was contained in the 1992 Order.
10.	The 1992 Order was  considered by the Divisional Court in Regina (Hoverspeed Ltd and Others) v CEC [2002] 3 WLR 1219 and in two respects was held to be incompatible with EC Council Directive 92/12/EEC and art 26 of the EC Treaty, the former being that under which it had been implemented.  Firstly, it made excise goods imported into the UK from the Member State where excise duty had been paid additionally liable to UK duty without its being established that the goods were imported into the UK for commercial purposes.  And secondly it imposed on the citizen the burden of establishing that he was not holding the goods for a commercial purpose.  The Commissioners did not appeal against the court’s decision in that regard. (The 1992 Order was subsequently revoked and amending regulations made with effect on 1 December 2002).
11.	But notwithstanding that under the 1992 Order the burden of proving that the goods were not held for a commercial purpose was wrongly placed on Mr James, we are quite satisfied  on the evidence, particularly of so many and so frequent unexplained trips to the continent, that had the burden been on the Commissioners the end result would inevitably have been the same.  We should have found that Mr James held the excise goods for commercial purposes.  In those circumstances, the flaws in the 1992 Order avail Mr James nothing.  (See John Dee Ltd v CEC [1995] STC 941 where at p. 45 Neill LJ said that “where it is shown that, had the additional material been taken into account, the decision would inevitably have been the same, a tribunal can dismiss an appeal”). 
12.	We hold that the Commissioners’ decision not to restore Mr James’ car to him was not unreasonable and we dismiss his appeal.

David Demack
Chairman
Release Date;

MAN/01/8243