WYBO Transports SARL v Revenue and Customs [2006] UKVAT(Excise) E00939 (07 February 2006)

EO00939
EXCISE DUTY – goods stolen during duty suspended movement – guarantor assessed – appeal dismissed

LONDON TRIBUNAL CENTRE

WYBO TRANSPORTS SARL	Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS	Respondents

Tribunal:	DR JOHN F AVERY JONES CBE (Chairman)
ROBERTA JOHNSON

Sitting in public in London on 2 February 2006

Cabinet Durand, Avocat, made a written submission on behalf of the Appellant

Matthew Barnes, counsel, instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2006

DECISION

1.	This is an appeal by Wybo Transports sarl against a decision on review dated 27 August 2004 upholding a decision to assess the Appellant to excise duty of £83,047.85.
2.	We find the following facts:
(1)	On 6 May 2004 the Appellant, a French company, and an authorised warehousekeeper, consigned a lorry load of alcohol to Kuehne and Nagel Limited in Barking, Essex, with delivery to be made to an approved warehouse, Barking Storage, in the same street.  This is a “duty suspended movement” of the goods.  The load was transported by a Belgian company, Mattheeuws.
(2)	The load was detained at the Customs and Excise shed at Dartford Docks that night.  A Mr Goddard of Charwood Transport of Dover was instructed to pick up the trailer containing the load and take it to Barking.
(3)	Mr Goddard arrived with the trailer at Kuehne and Nagel Limited’s offices at about 11.30 am on 7 May 2004.  He went into their offices and returned to the lorry to collect some paperwork.  He was then approached by three men in a car that looked like a police car with flashing lights and told that they were police who wanted to search his trailer for illegal immigrants.  He refused until a uniformed officer was present and turned to return to the office.  He was then attacked by the three men, handcuffed with plastic cable and put into the lorry, which was then stolen.  Mr Goddard was abandoned in Hainault still handcuffed but otherwise unharmed.  He called the police.  The police have never recovered the load.
(4)	The AAD shows the Appellant as Expéditeur [consignor] in box 1 and shows Expéditeur in box 10 (Garantie) [guarantee].
(5)	Customs assessed the Appellant as guarantor to the duty on the stolen goods on 24 June 2004.
3.	Cabinet Durand of Lille made a written submission to the Tribunal on 6 September 2004 contending that this was a case of force majeure which exonerated the Appellant, and also asking for an adjournment pending completion of the police enquiry.
4.	Mr Matthew Barnes, for Customs, contends that Customs were correct in law in assessing the Appellant as guarantor.
5.	An appeal lies to this Tribunal under section 16 of the Finance Act 1994.  The appeal is not against a “decision as to an ancillary matter.”
6.	Article 15(3) of Council Directive 92/12/EEC provides:
“The risks inherent in intra-Community movement shall be covered by the guarantee provided by the authorised warehousekeeper of dispatch, as provided for in Article 13…”.
Regulation 3 of the Excise Duty Points (Duty Suspended Movement of Excise Goods) Regulations 2001 provides:
“(1) This regulation applies where:
(a) excise goods are—
(i)…
(ii) imported into the United Kingdom during a duty suspended movement; and 
(b) in relation to those goods and that movement, there is an irregularity which occurs or is detected in the United Kingdom.
(2) Where the Commissioners are satisfied that the irregularity occurred in the United Kingdom, the excise duty point shall be the time of the occurrence of the irregularity…”.
Regulation 7 provides
“(1) …where there is an excise duty point as prescribed by regulation 3 or 4 above, the person liable to pay the excise duty on the occurrence of that excise duty point shall be the person shown as the consignor on the accompanying administrative document or, if someone other than the consignor is shown in Box 10 of that document as having arranged for the guarantee, that other person.
(2) Any other person who causes or has caused the occurrence of an excise duty point as prescribed by regulation 3 or 4 above, shall be jointly and severally liable to pay the duty with the person specified in paragraph (1) above.”
7.	In our view the theft is an irregularity which occurred in the UK during a duty suspended movement causing an excise duty point when it occurred.  The person liable to pay the duty is the Appellant as the consignor (and also the guarantor).  The thieves may be jointly and severally liable with the Appellant but their identity is unknown.  No defence of force majeure is provided for in the legislation.  We do not know whether the police investigation is complete but since the events occurred in May 2004 and the goods have not been found we see no benefit in adjourning the appeal for further investigations.  Accordingly the review decision is correct in law and we dismiss the appeal.
8.	We were pleased to note that the assessment was issued in French and we regret not being able to make this decision in French.

JOHN F. AVERY JONES

CHAIRMAN
RELEASE DATE: 7 February 2006

LON/04/8082