EXCISE DUTIES Importation of 30 kilograms of hand rolling tobacco together with cigarettes, spirits and other goods Forfeiture of vehicle and goods Whether review decision not to restore vehicle and goods was reasonable Appeal dismissed
MANCHESTER TRIBUNAL CENTRE
DAVID LEWIS Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: MR I E VELLINS (Chairman)
MRS G PRATT
Sitting in public in Manchester on 5 August 2003
The Appellant appeared in person
Mrs L Walmisley of Counsel instructed by the Solicitor for the Customs and Excise for the Respondents
© CROWN COPYRIGHT 2003
Evidence at the hearing
Submissions of Respondents Representative
Submissions by Appellant
The relevant law
"As regard products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired".
"9.1 Without prejudice to article 8 excise duty shall become chargeable where products released for consumption in a Member State are held for a commercial purpose in another Member State".
In this case the duty shall be due in the Member State in whose duty the products are and shall become chargeable to the holder of the products.
"9.2 To establish that the products referred to in Article 8 are intended for commercial purposes, Member States may take into account inter alia the following:
- the commercial status of the holder of the products and his reasons for holding them
- the place where the products are located or where appropriate the mode of transport used
- any document in relation to the products
- the nature of the products
- the quantity of the products
Member States may lay down guide levels solely as a form of evidence. These guidelines may not be lower than [specified levels]".
"Subject to the provision of this Order a community traveller entering the United Kingdom shall be relieved from payment of any duty of excise on excise goods obtained for his own use in cross-border shopping of which he transported".
"Own use includes use as a personal gift provided that that if the person making the gift receives in consequence any money or money's worth (including any reimbursement of expenses incurred in connection with obtaining the goods in question) its use shall not be regarded as own use for the purpose of this Order".
"(a) any vehicle which has been used for the carriage of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and
(b) any other thing mixed, packed or found with a thing so liable shall also be liable to forfeiture".
"The commissioners may, as they see fit (b) restore, subject to such condition (if any) as they think proper, any thing forfeited or seized under [CEMA]".
"In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power where the tribunal are satisfied that the commissioners or other persons making their decision could not reasonably have arrived at it".
"The principle issue before the tribunal, was whether the commissioners' decision not to restore Mr Lindsay's car to him was one that they "could not have reasonably have arrived at" within the meaning of those words in section 16(4) of the 1994 Act. Since the coming into force of the Human Rights Act 1998, there can be no doubt that if the commissioners are to arrive reasonably at a decision, their decision must comply with the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in schedule 1 to the Human Rights Act 1998). Quite apart from this the commissioners will not arrive reasonably at a decision if they had taken into account irrelevant matters or fail to take into account all relevant matters see Customs and Excise Commissioners v J H Corbitt (Numismatists ) Ltd 1980 STC 231 at 239, 1981 AC 22 at 60 per Lord Lane".
"63. I would not have been prepared to condemn the commissioners' policy had it been one that was applied to those who were using their cars for commercial smuggling, giving that phrase the meaning that it naturally bears of smuggling goods in order to sell them at a profit. Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose those vehicles. Nor does it seem to me that in such circumstances, the value of the car used need to be taken into consideration. Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always of course be given due consideration.
The commissioners' policy does not however draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. Of course even in such a case the scale of importation, or other circumstances, may be such as to justify forfeiture of the car. But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a first offence, whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture. There is open to the commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.
I do not think that it would be impractical to distinguish between the truly commercial smuggler and others. The current regulations shift the burden to the driver of showing that he does not hold the goods for commercial purposes when these exceed the quantity in the Schedule. In a case such as the present the driver importing for family or friends should be in a position to demonstrate that this is the case if called upon to do so (see the comments of Lord Woolf CJ in Goldsmith v Customs and Excise Commissioners 2001 1WLR 1673 at pages 1679-1680)".
"We would however draw the same distinction as that which was drawn in the Lindsay case between the treatment of those who are found to be smuggling for profit and those who are directly or indirectly involved in not-for-profit smuggling. So far as the latter are concerned the remedy applied by the commissioners must be proportionate to the activity of which complaint is made".
I E VELLINS