Omar v Revenue and Customs [2006] UKVAT(Excise) E00938 (02 February 2006)

EO938
	RESTORATION — Appellant’s Luton Van and 1000 kg of hand rolling tobacco properly forfeited — van in yard containing 500 gms of hand rolling tobacco from the same source improperly seized — Appellant unaware of presence of tobacco — appeal allowed — case to be reconsidered

MANCHESTER TRIBUNAL CENTRE

KENNETH OMAR	Appellant

- and -

THE COMMISSIONERS FOR
HER MAJESTY’S REVENUE AND CUSTOMS	Respondents

Tribunal:	David S Porter (Chairman)
Elizabeth M Pollard

Sitting in public in York on 30 November 2005

The Appellant appearing in person

Richard Manley, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2006

DECISION

1.	Kenneth Omar (the Appellant) appeals against the refusal, contained in a letter dated 10 June 2005, from the Commissioners to return his VW van S204 KNV seized with a Luton Box van FY 03 XAE on 18 March 2004. The Commissioners say that the VW van S 204 KNV contained 500gms of hand-rolling tobacco from an illicit consignment smuggled into the country by the Appellant. The Appellant says that the van, when originally examined by the Customs officers was empty and somebody other than the Appellant placed the tobacco in the van.
2.	Christian Mills of counsel instructed by the acting solicitor for H M Revenue and Customs appeared for the Respondents and produced a bundle of documents for the Tribunal.  The Appellant appeared in person.
3.	We found the following facts. Customs officers had seen the Luton Box Van at 12.45pm at the roundabout on the A614 Selby Road and followed it to Jeffries House, Pinfold Fishlake, Doncaster the home and business premises of the Appellant. The Appellant produced a plan of his house and grounds to the tribunal. The house stands back from the garages and buildings in which the he stored his second-hand commercial vehicles and vans. Vehicles are also kept out side in the yards.
4.	When the Customs officers arrived at Jeffries House at 13.04pm they served the Appellant with a writ of assistance and asked him to allow them to search the premises. The VW Van S 204 KNV was parked at the front of the building in which the Luton Box Van was garaged. The Customs Officers asked to look inside the VW van. The Appellant took the keys off the visor and opened up the back of the vehicle. The Customs officers searched the vehicle and confirmed there was nothing in it. They then asked to look in the garage. The Appellant explained that the garage was locked as he had hired it out to a Mr Hampshire the previous week. Mr Hampshire had paid him £50 and he expected to receive a further payment when he saw him again. The Customs officers broke the lock on the door and found the Luton Box Van, which had a  warm engine. Mr Hampshire was nowhere to be seen. 
5.	The Customs Officers asked the Appellant to open up the Luton Box Van,he was unable to find the keys which he said would be on the visor. The Customs officers broke the lock to the van. Inside were 50 sealed cardboard boxes containing 1000kg of hand-rolling tobacco. The Customs Officers opened the cardboard boxes and examined the hand-rolling tobacco, which bore Dutch tax stamps. The Appellant was arrested and interviewed at Doncaster Police Station. He was remanded on bail.  Approximately one week later the Appellant was informed that the VW van had 500gms of hand-rolling tobacco under the driver’s seat. In January 2005 the enquiry was terminated and the Appellant was not prosecuted but both vans and the tobacco were forfeited.
6.	In a letter of 10 June 2005 refusing to restore the vehicles Julie Wiggs, the reviewing officer stated: -
•	“…A full search of all the vehicles in the building then took place when a further 500gms of Golden Virginia hand-rolling tobacco was found under the driver’s seat of another Van registration S 2204 KNV. This tobacco bore the manufacturers batch code of 457242. The 1000kg in the other vehicle also bore the batch number 457242 as well as 156242. They also bore the Dutch tax stamps.”
We are concerned about the accuracy of the evidence supplied to Julie Wiggs as set out in her letter above. We are satisfied from the evidence that van S 204 KNV was parked outside the garage and was inspected by the Customs Officers prior to them going into the garage.
•	The letter also stated “When asked about the 500gms of tobacco found under the driver’s seat of S 204 KNV you said somebody had moved that vehicle out of the garage that morning. You had given them the keys for it and opened all the doors and claimed there was no tobacco in it at that time.”
We query the validity of the above quote. In his interview at Doncaster police station (see page 42 of the bundle) the Appellant stated that he gave them (relating to the Customs Officers) the keys. We are satisfied from the evidence that the Customs Officers inspect S 204 KNV outside the garage, the keys having been taken off the visor by the Appellant and given to the Customs Officers so that they could inspect the vehicle. We are also satisfied that there was no tobacco in S 1204 KNV at the time of that search.

7.	The Appellant produced photographs of the cab area of a van, which showed that the seats were constructed on a box and there would be nowhere to store the 500gms of tobacco. Under cross-examination he conceded that the photographs were of a Mercedes van not a VW van although he alleged that the constructions were the same. We are unable to say whether that is correct or not. We would have been more prepared to accept his evidence if he had disclosed, when introducing the photographs, that they were of a Mercedes van. He also produced a sales invoice in relation to the sale of a vehicle to M G Motors to substantiate the amount of money that he had on him a the time of the visit by the Customs officers. He indicated that the sales invoice was from a pad. We note that the invoice was the top copy. We would have expected it to be the second carbon copy . We are not satisfied that the invoice is genuine. The evidence given by the Appellant was far from satisfactory.

8.	Christian Mills submitted that the facts contained in the statement of case and the detailed letter of 10 June 2005 from the reviewing officer establish that the Appellant was involved in an illicit venture. The finger print evidence had not been disputed by the Appellant and the reviewing officer had reached the only sensible conclusion on the facts .The appeal should be dismissed.

9.	The Appellant did not wish to add anything to what he had already said

10.	We find ourselves in some difficulty in this case. We have no doubt that the Appellant was driving the Luton Box Van and that he acquired the tobacco for commercial purposes. As a result both have been properly forfeited. The difficulties arise in relation to the VW van S204 KNV. The facts, which establish that the Appellant was driving the Luton Box Van, make it unlikely that the 500gms of tobacco in the VW Van were left there by him. The evidence from the Commissioners is that the Appellant drove the Luton Box Van into the garage, locked the doors and went up to the house. The VW van was parked in front of the garage and the Appellant produced the keys from the visor and opened up the back of the van. At that time the officers did not see any tobacco. If there had been tobacco on the front seat it would have been seen by the Customs officers alternatively the Appellant, aware that it was smuggled, would have removed it. The problem relates to the 500gms of tobacco that had batch numbers which tallied with the numbers in the boxes of tobacco in Luton Box Van. No evidence has been given that the Appellant’s fingerprints were on the 500 gms of tobacco. From the interview at Doncaster it became evident that none of the three Customs officers had actually seen the tobacco in the VW van, they had merely been told about it.  Further, it was not until the Luton Box Van was opened up and the sealed card boxes opened that the 1000kgs of hand-rolling tobacco was found. Given that the 500gms were of the same batch they could only have come from the Luton Box van. None of the boxes were open until the Customs Officers broke the seals. The Appellant is, in any event, unlikely to have broken into a box of tobacco in order to remove a small quantity and then carelessly left it on or under the seat in the VW Van. He had acquired the Tobacco in boxes to presumably sell by the box. It is agreed that he did not buy the tobacco for his own use.

11.	THIS TRIBUNAL HEREBY DIRECTS under section 16(4)(b) of the Finance Act 1994

1.	that the Commissioners do conduct a further review of the decision to refuse restoration of the VW van and serve the same on both the Appellant and the Tribunal within 30 days of the release of this direction

2.	that the Review be conducted by an officer not previously involved, who shall make enquiry of the Customs officer, who found the tobacco in the VW van S 204KNV, to discover where the tobacco came from and when it was found in the Van. If fingerprints were on the packets of the 500gms of tobacco he should satisfy himself that they are the Appellants fingerprimts. He should then consider whether restoration should be made in the form of compensation and if so he shall specify the amount of compensation and the basis of the calculation

3.	that the Review officer shall take account of any further material or representations made by the Appellant within 14 days to H M Revenue & Customs at 1st Floor Southwest Queens Dock Liverpool L74 4AG

4.	that the Appeal is determined on the above basis and the Appellant is entitled to apply within 60 days of the release of the direction for costs

5.	that if dissatisfied with the Review the Appellant will have a further right of appeal to this Tribunal

DAVID S PORTER
CHAIRMAN
Release Date: 2 February 2006
MAN/05/8036