E00874
EXCISE – Restoration refusal – Commercial vehicles – Polish haulier – Two tractors with trailers seized separately within 2 days with total of 2.5 million cigarettes – No explanation offered – No evidence that haulier ignorant – Haulier did not attend - Appeal heard in absence – Rule 26(2) – Appeal dismissed

LONDON TRIBUNAL CENTRE

	TOMASZ TRACZ	Appellant

-	and –

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	THEODORE WALLACE (Chairman)
						MRS PENNY JONAS 

Sitting in public in London on 18 March 2005

The Appellant did not appear and was not represented

Sarabjit Singh, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2005

DECISION

1.	This was an appeal against a decision on review confirming the refusal to restore a Volvo tractor with refrigerated trailer seized on 20 March 2004 and another volvo tractor with trailer seized on 22 March 2004.

2.	The Notice of the hearing was posted on 17 February 2005 to the address in Poland which had been provided by the Solicitors who lodged the Notice of Appeal but had ceased to act for the Appellant.  The hearing was therefore validly notified under the Rules. No communication was received from the Appellant in response to the hearing notice.

3.	We decided to consider the appeal in the Appellant’s absence under Rule 26(2).  Under Rule 26(3) the Appellant is entitled to apply within 14 days of the release of the decision for the decision to be set aside.  In view of the fact that the Appellant lives in Poland we extend the time for an application under Rule 26(3) to 35 days so as to allow for postal days and for time to translate the decision and take advice.  This extension is given under Rule 19(1).

4.	The evidence consisted of three witness statements served by Customs under Rule 21 to which there had been no objection and a bundle of documents produced by Customs.  Brian Anthony Rayden answered questions from the Tribunal as to his Review decision.

5.	We find the following facts.

6.	The Appellant operated a transport business under the name “Tom-Trans” from Katowice, which is near Cracow in the South of Poland.

7.	At 1823 hours on 20 March 2004 Customs officers at Dover stopped a Volvo heavy goods vehicle pulling a refrigerated artic box trailer which had just arrived from Dunkirk.  The accompanying paperwork showed the load as 5912 cartons of Snickers spread on 29 pallets.  The driver said that the load was food.  The vehicle was taken to an examination area where 1,200,000 Regal KSF cigarettes were found in boxes of 10,000 on five pallets.  The cigarettes were in boxes marked “Wavy Soup” and were under and behind the cartons of Snickers chocolate spread. It is clear from photographs of the load that the consignment of Snickers must have been substantially unloaded to accommodate the cigarettes unless all were loaded at the same time.  As the number of pallets indicates, the cigarettes formed a significant part of the load.

8.	The driver was initially arrested however he was released without charge.  There was no evidence as to his response when the cigarettes were found.

9.	The cigarettes and tractor and trailer were seized as was the chocolate spread; however the chocolate spread was released later without charge.  We assume that this was to the customer.

10.	Less than two days later at 0110 hrs on 22 March another trailer belonging to the Appellant was stopped and 1,320,000 Bensen and Hedges and Silk Cut cigarettes were found in a cargo of tubes of putty consigned to a firm in Doncaster. The putty was in boxes shrink wrapped on pallets and the cigarettes were behind and under it.  The driver was arrested and cautioned but was released without charge.  His English was limited. The goods and vehicle were seized but the putty was later released.

11.	On the following day, the Appellant sent a fax to Customs asking for the vehicles to be released because the goods should be delivered to clients.

12.	An explanatory note in Polish as to seizures had been given to the drivers.

13.	Customs asked for details of the vehicles including date of registration, and for details of the drivers’ contracts and of references for the drivers.

14.	Solicitors acting for the Appellant provided details of the vehicles and stated that the drivers were employees.  They wrote that the drivers had been interviewed by the Appellant and that their references had been checked by telephone.  They produced contracts with English translations.

15.	Correspondence continued both with the original solicitors and with a different firm who lodged the appeal.

16.	None of the correspondence contained any explanation of how the cigarettes came to be in the trailers; nor did any of the letters or the notice of appeal contain any assertion that the Appellant was unaware of the smuggling.

17.	In his review Mr Rayden concluded that either the Appellant or the drivers were involved in the smuggling attempts.   He considered that it is most likely that the cigarettes were put in the vehicles when originally loaded in Poland and that it was difficult to see how either the Appellant or his drivers could not have known.

18.	Mr Rayden’s review stated that a haulier involved in transporting goods across international frontiers should be well aware of the risks of illicit loads being carried by drivers, should vet drivers carefully and should include strict rules in their contracts.  He concluded that the Appellant had not made reasonable checks of the drivers so as to prevent smuggling.

19.	The Review recorded that on 4 December 2003 another tractor operated by the Appellant had been stopped at Dover with a refrigerator trailer unit with a large and elaborate adaption suitable for concealing goods.  The tractor had been returned but not the trailer.

20.	The Review stated that the vehicle seized on 20 March was worth £32,000 and the trailer £17,300; the other tractor was worth £2,125, being older, and the box trailer about £10,650.  The total excise duty with Vat was £452,339.

Conclusions

21.	The burden of proof rests with the Appellant who must show that the decision was unreasonable.  This involves either showing that it was based on  incorrect facts or that in exercising his discretion on behalf of the Commissioners the Review Officer either failed to take account of matters which he should have considered or took account of matters which he should not have considered.  It is also necessary that the decision should not be disproportionate.

22.	The Appellant produced no evidence to show that the decision was based on wrong facts.

23.	The consignments were very large and the cost of initial purchase of the cigarettes must have been considerable. Operations of that size must have been organised.  The cigarettes must have been destined for a customer or customers who had agreed to buy them and to pay for them.

24.	If there had been just the one load on one of the Appellant’s trailers which had been seized and the Appellant had denied any knowledge this might have been credible.

25.	However two large consignments of smuggled cigarettes were seized from different drivers.  Furthermore this was only a matter of months after the seizure of the trailer in December.

26.	In the absence of even a protestation of ignorance by the Appellant, we conclude on the balance of probabilities that the Appellant was not ignorant and was a party to the smuggling even if only as the transporter.

27.	In those circumstances an appeal against the refusal to restore the tractors and trailers which were used for the smuggling is hopeless.

28.	We have reservations as to whether the level of checks of drivers which it was suggested should be made is compatible with the principle of free movement of goods.  However here the Appellant had already lost a trailer adapted for concealment and must have been well aware of the risk of illicit loads.

29.	The appeal is dismissed.

30.	Mr Singh applied for costs and being pressed for a figure specified £250.  He said that although Customs do not normally seek costs in restoration appeals, it is policy to apply for costs when an appellant does not attend.   In this case there had been no communication that he was not attending.

31.	In principle Customs are entitled to costs although it is unclear how they could be enforced.  We direct that, if so advised, Customs make a written application for costs within 21 days.

THEODORE WALLACE
CHAIRMAN

RELEASED: 6 April 2005

LON/04/8058