EXCISE DUTIES  — three travellers imported 23.5 kilograms of hand rolling tobacco, 2,800 cigarettes and other excise goods — Appellant was driver of vehicle — forfeiture of excise goods and contents of vehicle — whether review decision not to restore goods was reasonable — appeal by one traveller the owner of vehicle — appeal allowed

MANCHESTER TRIBUNAL CENTRE

 
 	
	CHRISTOPHER PAUL FIELD	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Mr I E Vellins (Chairman)
						Mr Mr R Presho (Member)	

Sitting in public in York on 16 October 2003  

The Appellant appeared in person

Mr M Graham 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 Christopher Paul Field, a resident of Hull, the Appellant, against the decision of the Commissioners confirming a refusal to restore to the Appellant a quantity of excise goods, and the contents of his vehicle, which had been seized by the Commissioners of 21 September 2001 when the Appellant, while driving his vehicle together with his son and another passenger, had been stopped at Eastern Docks Dover when returning to the United Kingdom.  The three passengers had purchased and were importing altogether 23.5 kilograms of hand rolling tobacco, 2,800 cigarettes, 150 cigarillos, 150 litres of beer, 15 litres of wine and 2.4 litres of spirit.  Each of them claimed a proportion of the excise goods.  The vehicle belonged to the Appellant.  The Appellant requested the restoration to him of the vehicle, a G registered Vauxhall Cavalier, together with his goods, the request for restoration having been made by the Appellant by an undated letter received by the Commissioners on 26 September 2001.  A decision to refuse restoration of the car and goods was made on 20 November 2001.  A request for review of the decision was made by the Appellant by undated letter received by the Commissioners on 5 December 2001.  Following a review the decision not to restore was confirmed on 22 January 2002.  Following the hearing of the Lindsay and Hoverspeed appeals the Respondents applied for and obtained a direction from the tribunal that a further review be carried out by the Commissioners.  That further review dated 1 May 2003 by the Commissioners upheld the decision not to restore the excise goods but varied the review decision to an offer to restore the vehicle to the Appellant on payment of a restoration fee.  The Appellant appealed against that review decision on 28 May 2003.  At the hearing of the appeal the Appellant informed the tribunal that he had prior to the hearing accepted the offer of the Commissioners to restore the vehicle, and that he was withdrawing that part of his appeal that related to the vehicle itself.  The appeal proceeded to a hearing relating to the part of the contents of the vehicle which the Appellant claimed were his.

2.	At the hearing of this appeal at York on 16 October 2003 the Appellant represented himself.  The Commissioners were represented by Mr M Graham, counsel.

Background
3.	The background to the appeal is as follows.  At about 10:45 p.m. on 20 September 2001 an officer of the Commissioners at Eastern Docks Dover stopped a Vauxhall vehicle registration number G804 XAR on its return to the United Kingdom.  The Appellant was the driver of the vehicle and the other occupants of the vehicle were his son John Field, and another passenger Mr Paul Barry Ernest Read.

4.	The Appellant told the officer that they had been to Calais for the day.  The vehicle belonged to him and he had owned it for about 9 months.  He said that each of them had purchased a box of tobacco whilst abroad.  He said each box contained 7.5 kilos of tobacco.  He also stated that he had bought 10 packets of cigarettes.  He then clarified that each of the three of them had had 5 packets (15 in total).  The Appellant stated that he and his son had not been stopped by Customs before but that Mr Read had been stopped by Customs about 6 years previously.  There were also in the vehicle 18 bottles of wine, and 3 packets of cigars and the officer found in a hold-all 1 kilogram of Samson tobacco.  The Appellant said that these other goods belonged to him.  Each of the three travellers were then individually interviewed.

5.	The Appellant told the officer that of the goods in the vehicle he owned most of the beer, the wine, a box of the tobacco together with two loose packets of tobacco, and five cartons of the cigarettes which consisted of Superkings Menthol, and Embassy cigarettes.  He said that he had bought the tobacco in Belgium and the beer in Calais.  He said that he had paid £280 for the box of tobacco and £18 for the two loose packets of tobacco.  He said that he had paid £19 per sleeve for the cigarettes and had paid £9.40 per case for the Stella beer and £6 per case for the wine, paying for the goods in cash.  He said that all three of them had put their money together although Mr Read had bought some separately.  He said that his passengers had given him the cash for the goods.  He stated that nobody else had given him money to purchase the goods.  He stated that he smoked cigarettes and tobacco.  His usual brand of tobacco was Sampson and his usual brand of cigarettes was Benson and Hedges, Embassy Filter, and Embassy Regal.  He said that the Superkings Menthol cigarettes were for his wife.

6.	The Appellant told the officer that he smoked 60 cigarettes a day which included both cigarettes, and cigarettes made from rolled-up tobacco.  He said that a pouch of tobacco lasted him for one and a half days and that he expected the tobacco and cigarettes that he had purchased to last him for one year.  He said that his wife smoked 40 to 50 a day, smoking Superkings Menthol and tobacco.  He said that he rolled the cigarettes with a machine.  He stated that he had bought some goods for his mother and father-in-law, buying them 2 cartons of cigarettes each.  He stated that none of the tobacco was for them.

7.	The Appellant told the officer that he worked as a car sprayer drawing a wage of £150 per week until his first year accounts were completed.  He also received working tax credit and his wife did not work.  He said that the wages that he drew of £150 per week covered shopping, clothes, and socialising, and the working tax credit was used to pay the bills and his mortgage.  He said that he did not have a great deal of savings but he had saved to go on the trip.  He told the officer that he had taken with him £800 or £900 but then clarified that it was £1,100.  He said that all the money was his but he did not know how much he had left.  He said that he last travelled abroad six years previously on a family holiday to Corfu.  He said it was his idea to go on the trip to France and that he knew where to go because he had looked and asked people.  He said that his son had not travelled before.  The Appellant said that the Appellant had paid for the trip and had not asked the others for petrol money.  He had known the guide level for cigarettes but did not know the guide levels for tobacco and had thought it would be ok with a box of tobacco.  He said that he did not how many cigarettes he obtained from a pouch as his wife rolled them on a cigarette roller in bulk, but he thought that it was roughly 200 cigarettes dependant on whether she rolled them thick or thin.  He said that he smoked 2 packets of brand cigarettes a day.  He said the cigarettes were for his wife, his mother and father-in-law.  Those for his mother and father-in-law were Christmas presents and he would not receive money for them.  The officer asked him why he had bought so much tobacco and not more cigarettes as he had not bought the brands that he himself smoked.  He replied that he had bought more tobacco because it was cheaper than back home.

8.	At his interview the Appellant’s son John Field told the officer that he did not smoke.  The purpose of the trip was to purchase some alcohol and cigarettes.  John Field told the officer that he had bought a kilo of tobacco and 5 packets of Embassy and Superkings cigarettes.  The cigarettes were a present for his grandmother and grandfather who both smoked.  The tobacco was for his girlfriend who had just gone to University.  John Field said that she had given him the money for the tobacco.  He could not recall how much the cigarettes and tobacco had cost.  He lived with his grandmother who did not charge him rent.  He was a student and had two part time jobs earning £90 a week.  He had paid for the goods and given the money to his father before he left the United Kingdom.  He thought that he had given to the Appellant his father £280 of which £130 was his girlfriends money.  Altogether he thought his goods came to £380 and that his father had paid the extra £100 for him, to make up the price, as he had only £280 on him.  He had been spending £150 for cigarettes for his grandparents as a present as they were allowing him to live with them.  He had been living with them for a week. He agreed that it would have been cheaper to pay rent.  John Field though that they were about 80 pouches in a kilo of tobacco.  Mr John Field was admitting to the officer that the goods were not for own use, and that his girlfriend had paid him £130 to purchase excise goods for her use.

9.	At his interview the passenger Mr Read told the officer that he had spent just over £400 and that he had purchased a box of tobacco together with a pack of Samson tobacco (160 pouches), 1,000 cigarettes consisting of 800 Embassy and 200 Superkings, a case of cigars, 5 cases of beer and a bottle of vodka.  He said he had bought the beer in Calais and the tobacco and cigars in Belgium and had paid in cash.  He stated that he personally bought all of his goods.  He stated that the idea of the trip was that of the Appellant who was his friend for years.  He told the officer that in the last year he had been to Amsterdam in the previous December and to Ghent in March and on those occasions had made purchases from the ferry shop.  He told the officer that he had bought on those trips 1 kilo of tobacco and 800 cigarettes which had been smoked by himself his parents and his grandfather.  He said that they had all had an equal share of the goods and that he had bought cigarettes for his parents and grandfather previously because they asked him to and had “chipped in”.   He said that he had decided to buy more cigarettes on this occasion because it would be his last trip for ages.  He though there was no limit if he went abroad rather than just buying the goods on the ferry.  The officer asked Mr Read whether his parents and grandfather knew that he was going to buy tobacco on this trip and he replied “yes, same again, they’ve all chipped in”.  He stated that his parents and his grandfather each given him £100 in cash and that they had expected him to buy them 40 pouches each of tobacco.  He had been stopped by Customs in October 1997.   He said that he expected the goods to last him 6 months and stated that a pouch of tobacco would normally have lasted him one week.

10.	At that point the officer bore in mind the quantity of goods being imported, and inconsistencies in the claims in ownership of the goods.  Mr John Field who was a non-smoker had received money from his girlfriend for tobacco, and had only claimed to have purchased 1 kilo of tobacco whereas the Appellant claimed that each of the travellers owned 7.5 kilograms of tobacco.  Mr Read had admitted to having received money from others to purchase goods which were not for Mr Read’s own use.  The officer seized the vehicle and excise goods.

11.	Mr John Field and Mr Read did not make any claim for restoration of their goods.  However in a letter received by the Commissioners on 9 October 2001 the Appellant requested restoration of his goods and the vehicle.  He stated that the three of them had had no intention of selling the goods and had not hidden the goods.   He stated he needed the car for his job as a mobile car sprayer.  The Commissioners refused to restore the vehicle and the excise goods to the Appellant by letter dated 20 November 2001.

12.	The Commissioners then received a letter on 10 December 2001 from the Appellant requesting a review of the decisions not to restore the goods or the vehicle to him.  He stated that since his car had been seized he had only worked for three weeks as he could not afford to replace the vehicle.  He believed that the three of them had not broken any law and that they had been allowed to bring back gifts.  He stated that he did not hide the goods and it was his first and only trip.

13.	The review officer Mr R Payne then considered the evidence and concluded that he agreed with the conclusion of the original officer that the goods were not for the own use of the Appellant and his passengers.  He noted that when they had been initially stopped they had told an officer that they each had a box of tobacco (which contains 7.5 kilograms) which made 22.5 kilograms in total, and there was also 1 kilogram of tobacco in the car making a total of 23.5 kilograms.	The officer concluded however that when the three travellers were all  interviewed separately they contradicted this.  The Appellant had stated that he owned a box of tobacco and two packets which would have made 8 kilograms in total, and Mr Read stated that he owned a box and a packet totalling 8 kilos but the Appellant’s son had only claimed to own 1 kilogram of tobacco. Accordingly the total amount that the three independently admitted to owing was only 17 kilograms, leaving 6.5 kilograms unaccounted for.  The officer concluded that there were clear doubts concerning the ownership of the goods in the car which cast doubts over claims that the goods were for own use.  The Appellant’s son had stated that his girlfriend had given him £130 for the tobacco.  He then stated that he thought he had paid £380 which meant that he did in fact claim to own a box of tobacco, as he had purchased cigarettes for about £100 leaving £280 for the tobacco which was the cost of the box of tobacco.  It did not make sense to the officer that the Appellant’s son thought that he had a kilo but  believed that he paid for a box of tobacco.  The guide level for cigarettes was 800 and the guide levels for tobacco was 1 kilo at the time.

14.	The review officer did not consider that the excise goods had been bought for own use.  The Appellant’s son did not smoke tobacco or cigarettes yet had claimed to have spent £380 on these products although the goods were not for him, and he had stated that his girlfriend had given him £130 to purchase tobacco.  The girlfriend had not travelled with them and had paid him for the goods.  The officer concluded that the goods were therefore not for own use and were for some other commercial purpose.  With regard to the cigarettes that the Appellant’s son claimed that he had purchased for his grandparents, the officer did not consider this claim to be reasonable.  The son had only earned £90 a week and yet he claimed to have spent in the region of £100 on excise goods as a gift for his grandparents although he had only lived with them for one week.  The Appellant had contributed £100 towards his son’s purchases in the full knowledge that his son did not smoke.  Mr Read had stated that of the tobacco goods he had purchased, most of them were not for Mr Read at all.  Mr Read had imported 160 pouches of tobacco.  Of that he was importing 40 pouches of tobacco each for his mother, his father and his grandfather which meant that only 40 pouches of tobacco were for Mr Read.  He had received £300 from them to buy their share of the tobacco.  They had not been travelling with Mr Read.  The officer was not satisfied that the goods Mr Read was importing were for his own use, and concluded that they were for some other commercial purpose.

15.	The reviewing officer Mr Payne then examined the claims made by the Appellant at his interview concerning his consumption of tobacco and cigarettes.  He had stated that he smoked 60 cigarettes a day and that a pouch of tobacco lasted him a day and a half.  He then went on to say that he smoked two packets of brand cigarettes a day (40).  That would presumably mean that it was his habit to smoke 40 brand named cigarettes and only 20 roll-up cigarettes a day.  Yet despite this he had not bought any brand named cigarettes for himself (they were all for his mother, his father in law or his wife) but he had purchased eight kilos of tobacco (160 pouches).  The Appellant had argued that tobacco was cheaper on the continent.  However brand named cigarettes were also considerably cheaper on the continent than in the United Kingdom (he paid £19 for 200 and would be likely to pay £45 per 200 in the UK).  He had also stated that a pouch of tobacco lasted him one and a half days.  Yet if it was his habit to smoke 2 packets of cigarettes a day and only 20 roll-up cigarettes a day, that was not considered logical by the officer.  The officer noted that he had also claimed that his wife made 200 cigarettes from a 50 gram pouch of tobacco.  A pouch of tobacco would reasonably be expected to yield 80 to 100 cigarettes, or up to 120 if a machine was used, and not 200 cigarettes.  If he did make 200 cigarettes from a pouch of tobacco as he claimed a pouch of tobacco was likely to last him and his wife 2 days, but only if he purely smoked tobacco.  Given that he claimed to smoke two packets of brand cigarettes and his wife also smoked brand cigarettes, the officer was of the view that a pouch of tobacco would last him longer than he claimed.  The officer could see no reason why the Appellant would contribute £100 towards the box of tobacco which his son had purchased.

16.	The review officer noted that the Appellant had taken £1,100 out with him to purchase excise goods.  When the officer asked what he had had left he had replied that he did not know.  Given his limited means and savings, the review officer found it unreasonable that he should have had no idea of how much he had spent.  The officer concluded that the Appellant had been aware that others in his vehicle had purchased excise goods which were not for their own use.  There were a large quantity of goods involved and the officer concluded that there was clear evidence that a high proportion of the goods in the car were for a commercial purpose and that they were intended for people who had not travelled and who either would contribute or had contributed to the cost of the goods.  With regard to the vehicle the officer concluded that the restoration of the vehicle was not appropriate as the vehicle had been used to carry goods that had been improperly imported.

17.	The Appellant then appealed against this review decision and in his Notice of Appeal dated 14 March 2002, the Appellant contended that this was his first trip to Calais and he still thought he had not broken any laws.  He contended that at no point had he been told of any excess duty to pay nor had he been offered the choice to do so.

18.	On 19 March 2003 the Commissioners served an application for directions for the original disputed review decision to be further reviewed in the light of changes in the Commissioners’ policy and the promulgation of the Court of Appeal judgment in the Hoverspeed case.  Directions were granted by the tribunal directing that a further review take place.

19.	That further review was carried out by a review officer G M Hurrell on 1 May 2003.  In that review the review officer varied the review decision to a decision to restore the vehicle on payment of restoration fee, and the review officer upheld the decision not to restore the excise goods.

20.	The Appellant appealed against Mr Hurrell’s review decision stating as the grounds of his appeal that his car and contents had been confiscated, he had never been stopped before, and had since learnt that the Commissioners were willing to compensate him for his car but not the tobacco or alcohol.

21.	Prior to the hearing of the appeal the Commissioners tendered witness statements of the various officers, and the Appellant had not objected to these statements nor had he required the officers to give evidence.

Evidence at the Hearing
22.	At the hearing of this appeal the Appellant, who represented himself, stated that prior to the hearing of the appeal he had accepted the offer of the Commissioners to restore to him his vehicle on payment of a restoration fee, and the issue of the vehicle itself had been resolved and settled on the basis that he would be receiving payment from the Commissioners of the value of the vehicle £500, less the restoration fee.  He stated that so far as the vehicle was concerned he was withdrawing his appeal against the decision not to restore the vehicle, but wished to continue with his appeal in relation to the goods.  During the course of his evidence he indicated that his appeal now related to 8.5 kilos of tobacco, 5 cartons of tobacco, 10 cases of larger and 4 cases of wine.  He also indicated that he had intended his appeal also to relate to the other contents of his vehicle which he stated were a CD player, 10 CDs, 2 jackets and a jumper, a pair of sunglasses and some tools.  These items had not been specifically mentioned by the Appellant in his letters to the Commissioners relating to the appeal and had accordingly not been in any way referred to in the decisions of the Commissioners.  The Appellant did say however that when he had been corresponding with the Commissioners concerning his acceptance of the offer to restore the vehicle he had mentioned these contents of the vehicle, although he did not have a copy of his correspondence, and there was no mention of any of these contents in any of the Respondent’s documents relating to this appeal.

23.	The Appellant gave evidence at the hearing that the only reason that he was pursuing his appeal was because of the way he had been treated by the Commissioners.  He said that he was not told what excise goods he was allowed to bring back to the United Kingdom until he had been stopped by the officer and his vehicle had been seized.  He had said that he had been told by the interviewing officer that it was  up to the Appellant to prove that the goods were solely for his own use and were not to be sold on.  He said that he explained to the officer which of the excise goods in the vehicle belonged to the Appellant and he also explained that he was a heavy smoker as was his wife.  He thought that he had been entitled to bring back to the United Kingdom a box of tobacco, 800 to 1,000 cigarettes and some liquor.  The vehicle and the excise goods had been seized but when he had asked the officer how he was supposed to get home from Dover to Hull he was told by the officer that that was his problem as he had broken the law.  The Appellant complained that it had taken so long for his appeal to be heard.  It had also taken so long for the Commissioners to offer to restore the vehicle to him.  He had said that he had been fed up with waiting and had written back to the Commissioners accepting the net offer of £297 for compensation for his vehicle.  He felt that he had been bullied.

24.	The Appellant said that his vehicle had contained a CD player which he had bought new only 2 months before the vehicle had been seized.  It was a 10 stack Sony CD player which cost £275 and which had been installed in the vehicle.  He also had had in the vehicle 10 CD’s which had cost him £10 each and were therefore valued at £100.  He said that he had had a jumper and a jacket in the vehicle which he used for work but which were in good condition.  There was also a jacket belonging to his son.  He valued those items at £130.  He said that he had had in the vehicle a pair of sunglasses which had cost £25.  He said that the officer had allowed him to take his toolbox which was in the vehicle but there was some other tools in the vehicle which he could not carry which he said were worth £40.  The Appellant stated that it cost him £150 to return home to Hull from Dover.

25.	The Appellant said that he had purchased the box of tobacco containing 7.5 kilograms costing £280 together with 1,200 cigarettes costing £100.  The Embassy cigarettes were for the Appellant and the menthol cigarettes were for his wife.  He had also purchased the 10 cases of lager and 4 cases of wine costing £132.  He said that the spirits were a gift from the warehouse when the other items were bought.  He stated that his goods were all bought with his own money which he had saved from his earnings as a self employed vehicle sprayer.  He said that the three of them had put on the seat of the vehicle all the excise goods that they had purchased and were not intending to hide anything.  He said that each of them had bought roughly the same amount and that his son had been working.  He had paid over the cash for himself and his son, and his son had handed him some of the money for his son’s goods and the rest had been lent by the Appellant to his son.  Mr Read had bought his own goods although all the purchases were on one set of receipts.  When the three of them had told the staff at the warehouse what they wanted the staff had put the goods onto a trolley.   The Appellant said that he was a heavy smoker and that he had been in hospital since for lung cancer.  He said that when he had originally been questioned by the officer he had forgotten about the 1 kilo of tobacco in a hold-all.  He thought that he bought that on the ferry.

26.	The Appellant explained that the Commissioners had made a mistake when they concluded that 6 kilograms had been unaccounted for.  He said that his son did tell the officer that the son had bought 1 box of tobacco and when his son originally stated 1 kilo of tobacco he had meant 1 box.  He said that all three of them had made it clear that they  had purchased 1 box each.  The Appellant said that he had not seen Mr Read since the day that they had been stopped.  On the way home from Dover Mr Read had mentioned to the Appellant for the first time that Mr Read had been abroad before and had been stopped.  He said that his son did not have the money to buy all the son’s goods because his son had spent some money on perfume for his girlfriend as well as bringing her back some tobacco.  The Appellant said that his son’s girlfriend had given his son £130 to buy tobacco for her but when they were purchasing the tobacco the Appellant had told his son that he might as well get her a whole box of tobacco and the Appellant then provided the balance of the money for that tobacco.  The Appellant also said that his son was purchasing some cigarettes as a present for his grandparents.  His son had been living with the grandparents for about a week and they would not take any board money from him.  The Appellant said now his son was back living with the Appellant.  The Appellant said that when he had first been asked by the officer how many cigarettes there were in the car he had said 10 packets, but when he had been asked by the officer how many of the cigarettes were for the Appellant he told the officer that 5 packets were his (the other 5 packets being his son’s).  He said that when asked about how much money he had been taking with him, he had first mentioned £800 to £900 and then later £1,100 because he was upset and annoyed about the way he was being dealt with and was not thinking clearly.  He explained that at the time he had been smoking 60 a day, about one and a half to two packets a day and the rest tobacco.  There were a total of eight receipts for the tobacco but that was done by the girl in the warehouse who split up the tobacco in order to give the Appellant some free spirits and lighters.  The order had been given to the girl behind the counter who was behind a screen and she obtained the goods from the back and loaded them into the trolley putting all three travellers’ purchases together.  The goods were then put on the back seat of the car and were there when the officer stopped them.  The Appellant submitted that there were three quite separate importations by each of the three travellers and whilst his son and Mr Read had not contested the goods taken from them, the Appellant considered that his goods should be dealt with quite separately even though they had been on the back seat of the vehicle with the goods belonging to the other two travellers.  He said that since the day in question he had found out that Mr Read did not smoke.  He said that he would not have noticed that on the day in question because none of them smoked in the car.  The Appellant said that he had not considered that any of them had been smugglers.  He did not believe that any of the three of them were buying goods for resale.  He believed that all the goods bought by his son and Mr Read were for their respective families.  The Appellant’s goods were for the Appellant, his wife and family and were not for resale.

The Relevant Law
27.	Alcoholic drinks, cigarettes and tobacco are chargeable with excise duty upon importation into the United Kingdom under the Alcoholic Liquor Duties Act 1979 and Tobacco Products Duty Act 1979 section 2.
28.	By regulation 4(1) of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 SI 3135 the excise duty point at which excise duty is payable generally arises at importation.
29.	Under article 10(2) of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992, except where the Commissioners otherwise allow, imported community excise which are subject to a duty of excise that has not been paid and which it could not consigned to a tax warehouse shall upon their importation be consigned to a REDS.
30.	Article 8 of the European Union Council Directive 92/12/EEC states that:
“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”.
31.	Article 9 of the Council Directive states as follows:
“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.

32.	Article 9.2 of the EC Directive provides as follows:
“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]”.
33.	The quantity of those goods specified in the United Kingdom was in connection with tobacco products 800 cigarettes, 400 cigarillos, 200 cigars and 1kg of tobacco products.  The cigarettes and tobacco figures since the seizure have been increased under Amendment Regulations 2002 No. 2692.
34.	Section 3 of the Excise Duty (Personal Relief’s) Order 1992 states that:
“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”.
35.	“Own use” is defined in the Order as:
“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”.
36.	Section 5(3) of the Order establishes that paragraphs 3(a) and 3(c) applied to a person who has in his possession or control any excise goods afforded relief under this Order in excess of any of the quantities shown in the schedule to the Order.
37.	Paragraph 3(a) states that the Commissioners may require a person to whom this paragraph applies to satisfy them that the excise goods afforded relief from this Order are not being held or used for a commercial purpose.
38.	Paragraph 3(b)	provides that where a person fails to satisfy the Commissioners that the excise goods in question are not being held or used for a commercial purpose the condition imposed shall be treated as not being complied with.
39.	This schedule specified at the time in connection with tobacco products 800 cigarettes and 1kg of tobacco product as quantities about which a traveller may be required to satisfy the Commissioners in this way.  The cigarettes figure has since been increased to 3,200 cigarettes, and the tobacco figure increased to 3kgs.
40.	Paragraph 5(1) of the Order states that if this condition is not met “those goods shall without prejudice to article 6 be liable to forfeiture”.
41.	Paragraph 5(2) sets out various factors where regard should be taken in determining whether or not the condition in paragraph 5(1) is being complied with.
42.	Section 141(1) of the Customs and Excise Management Act 1979 (CEMA) provides that:
“(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”.
1.	Section 152 to the 1979 Act provides that:
“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]”.
43.	Section 49(1) of CEMA enables the commissioners to forfeit dutiable goods that had been imported or held without payment of duty.
44.	The Court of Appeal in Hoverspeed appeal placed the burden of proof upon the Commissioners as to whether goods are being held or used for a commercial purpose.
45.	Section 15 of the Finance Act 1994 empowers the Commissioners to confirm and vary or withdraw a reviewable decision on behalf of the Commissioners.
46.	The basis of the Tribunal’s jurisdiction is set out in section 16 of the Finance Act 1994, subsection (4) of which provides that:
“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”.
47.	In John Dee Ltd v Commissioners of Customs and Excise 1994 STC 941, Neill L.J. approved the principle that the tribunal could only properly review the commissioners’ decision if it was shown that the commissioners had acted in a way in which no reasonable panel of commissioners could have acted, if they had taken into account some irrelevant matter, or had disregarded something to which they should have given weight, and stated that the tribunal may also have to consider whether the commissioners had erred on a point of law.
48.	The jurisdiction of  the Tribunal was further considered by the Court of Appeal in the case of Lindsay v Commissioners of Customs and Excise 2002 EWCA Civ 267.  Lord Phillips stated at paragraph 40-
“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”.
49.	In the Lindsay case the Court of Appeal considered the then policy of the commissioners as explained in a witness statement relating to the commissioners’ general policy of non-restoration.  Lord Phillips considered the commissioners’ policy at paragraphs 63-65 inclusive.  He concluded as follows:
“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. 
64.	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. 
65.	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)”.
50.	The case of  Hoverspeed (2) in the Court of Appeal 2002 EWCA Civ 2002 clarified that the burden of proof as to commerciality is on the commissioners and not on the appellant.
51.	That case also decided that the seizure was not to be regarded as axiomatically invalid merely because it occurred as a result of a check which was invalid.
52.	The case also decided that if the Commissioners prove that an individual acquires products for a person other than for his own use such products are to be regarded as held for commercial purposes.
53.	In the Hoverspeed appeal in the High Court Case No 2002 EWHC 163L the Court stated at paragraph 187:
“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”.
54.	The Court of Appeal in Gora v Commissioners of Customs and Excise Case No.2003 EWCA Civ 525 confirmed that it was not intended that the tribunal should have jurisdiction to reconsider the condemnation of goods as forfeited, although the tribunal has the capacity to determine the issue of reasonableness which includes proportionality, in the light of facts found.
55.	The High Court in the case of Gascoyne v Customs and Excise Commissioners Case No. CH/2002/AWP/0743 has held that taken as a whole the condemnation and restoration rights are sufficient to comply with Convention Rights set out in article 6 of the ECHR.

Conclusions
56.	We have considered all of the evidence in this appeal and the provision in the law involved.  We make the following findings of fact and reach the following conclusions.

57.	We find that on 20 September 2001 the Appellant, his son John Field, and a friend Paul Read were returning to the United Kingdom in the Appellant’s Vauxhall car when it was stopped at Eastern Docks Dover.  In the vehicle were a quantity of tobacco cigarettes and other excise goods which the three of them had purchased in Calais France.  The total excise goods in the vehicle consisted of 23.5 kilograms of tobacco, 2,800 cigarettes, 150 cigarillos, 150 litres of beer, 1.5 litres of wine and 2.4 litres of spirits.  We find on the evidence that of those goods the Appellant’s son John Field had purchased 5 cartons of cigarettes costing approximately £100, and a box of tobacco containing 7.5 kilograms of tobacco which had cost £280.  We accept that his girlfriend had given him £130 to purchase tobacco for her but that when it came to the purchase the Appellant had suggested to his son that his son should buy for her a box of tobacco which cost £280.  We find that John Field was also purchasing the 5 cartons of cigarettes for approximately £100 as a gift to his grandparents with whom he was then living free of charge.  We accept that John Field handed over to the Appellant £280, and tobacco and cigarettes to the value of £380 were purchased for John Field to pass on to his girlfriend and grandparents with the Appellant contributing the other £100 as a loan or gift to his son.  We are satisfied that John Field made a mistake when he initially told the officer that he had bought a kilo of tobacco.  We find that John Field was intending to tell the officer that he had bought a box of tobacco, but in error referred to this as a kilo. We are satisfied with the Appellant’s explanation that this was a genuine mistake on the behalf of his son and that his son was not intending to mislead the officer.  We are therefore satisfied on all the evidence that the officer’s conclusion that 6.5 kilograms had been unaccounted for was incorrect.  John Field at his interview had clarified that he had purchased a box of tobacco.  We find that the officer’s doubts about the ownership of the various goods had been explained satisfactorily by the Appellant.  It is clear that John Field’s girlfriend had paid £130 for tobacco and that accordingly John Field’s goods were not being imported by him for his own use in law.  We are satisfied that the cigarettes being purchased by him for his grandparents were intended as a gift to his grandparents with whom he had been living and that he was not expecting to be reimbursed by them.  We find on all the evidence that John Field had not intended to resell the tobacco or cigarettes for profit and was not a commercial smuggler in that sense.  Whilst John Field has not requested the restoration of his goods, his motives of intention are relevant to the claims of the Appellant himself.  

58.	Mr Read, according to the Appellant, does not smoke, although he claimed that some of the pouches calculated at 40 were for him.  He was importing 40 pouches of tobacco each for his mother father and grandfather and had received £300 from them to buy their share of the tobacco.  It is clear that Mr Read was not importing the goods for his own use either in fact or in law but we find that the Commissioners have not proved that Mr Read was a commercial smuggler intending to resell tobacco for profit.

59.	With regard to the Appellant himself we found the Appellant to be a credible witness as to his own purchase of goods, and the purposes and the intentions of their purchase.  We find that the Appellant himself purchased the box of tobacco and further tobacco for his own use.  He is a heavy smoker.  We further find that he purchased cigarettes not only for himself to smoke but also for his family to smoke, without any of his family contributing towards the cost.  We find that there was no intention to resell any of the goods by the Appellant.  We find the drink was for his own use.  We find that he had satisfactorily explained the discrepancies which concerned the officers.

60.	Whilst all the goods purchased by the three travellers were largely carried together on the seat of the vehicle we find that in fact and in reality there were three separate individual importations taking place, one by John Field, one by Mr Read and one by the Appellant himself.  We find that it would be reasonable to separate these importations for the purpose of considering whether the Commissioners acted reasonably in the case of the Appellant himself.  The Commissioners have not proved that the Appellant was importing his goods not for his own use.  Indeed we are satisfied on all the evidence that the Appellant was importing his excise goods for his own use, either for his own consumption or to be used and consumed by members of his family without them contributing towards the cost.  We are certainly satisfied that the Appellant did not intend to resell any of the excise goods, and further that he did not intend to resell at a profit.  We find that the Appellant was not a smuggler, and there was no attempt at commercial importation by him.  We find accordingly that the Commissioners did not act reasonably.  They should have given weight to the Appellant’s assertions, which we accepted, that the Appellant himself was not either a commercial smuggler or importing goods which were not for his own use.  The Commissioners disregarded that.

61.	We turn now to the question of the other contents of the Appellant’s vehicle.  It is quite apparent from the documents in this appeal that the Appellant did not make it clear to the Commissioners that he was intending to claim the restoration of his personal belongings on the vehicle, which he left in the vehicle when it was seized. In those circumstances the Commissioners have treated the Appellant’s claims and appeal as relating solely to the excise goods which were in the vehicle rather than his other personal items such as his CD player, CDs, clothing, spectacles and tools.  These items appeared to have been detailed for the first time when the Appellant gave evidence at the hearing of this appeal, although it is possible that the Appellant may have referred to these other items when corresponding the Commissioners in relation to the return of the vehicle for which they have agreed to compensate him.  Certainly this aspect of the Appellant’s intended claim does not appear to have been specifically considered by the Commissioners, and we take the view that the Commissioners should investigate this aspect of the appellants claims and review the Appellant’s contentions with regards to these goods.  Certainly the Commissioners do not appear to have had the opportunity to indicate their views as to the values attached to those goods by the Appellant himself for the first time at the hearing.

62.	The Appellant prior to the hearing had accepted the Commissioners offer to pay to the Appellant the agreed value of the Appellant’s vehicle less the restitution fee, in lieu of the restitution of the vehicle itself.  The Appellant has settled that matter prior to the hearing of the appeal and has withdrawn his appeal in relation to the vehicle itself.

63.	To summarise therefore we have concluded that we can isolate the importation by the Appellant of his own part of the excise goods found in the vehicle, which he purchased with his own money for his own use and for consumption by members of his family without them contributing towards the cost of such goods.  In law accordingly the Appellant was importing his own excise goods for a purpose which in law is regarded as for his own use.  He is not a smuggler and he was not importing for commercial use.  He was not intending to resell the goods.  We find that the Commissioners decision not to restore those excise good to the Appellant was not in accordance with the legislation and that the decision was not reasonable.  We find that the decisions were accordingly not reasonably arrived at.  We find that the Commissioners have acted in a way that no reasonable panel of Commissioners could have acted, and that they have taken into account irrelevant matters and disregarded things to which they should have given weight.  We therefore allow the Appellant’s appeal and direct that the Commissioners review further their decision with regard to the Appellant’s excise goods.  We further direct that while they are carrying out their review, the Commissioners could consider the additional claim of the Appellant for him to be restored the goods which were his personal possessions which were in the vehicle which were not excise goods, or the proper value thereof if the goods have been disposed of.  The Appellant innocently believed that, when asking for the restoration or his goods, that request applied also to his personal items, whereas it is clear that the Commissioners have not interpreted his claim for restoration or his claim for reviews as relating to those items because he has never specifically itemised these items to the Commissioners, and he has not made it clear to the Commissioners that he was also claiming these personal items.  We attach no blame to the Commissioners in that respect, but consider that it would be proper and proportionate for the Commissioners, whilst conducting their further review in connection with the excise goods, to further consider the Appellant’s claims in connection with his personal items.

64.	Accordingly we allow the Appellant’s appeal and direct that the Commissioners carry out a further review.  We make no order as to costs.

I E VELLINS
CHAIRMAN
Release Date:

MAN/03/8095