EXCISE DUTY – Restoration – Forfeiture in Magistrates' Court not contested – Reasonability of reviewing officer's decision considered – Appeal dismissed
LONDON TRIBUNAL CENTRE
STEPHEN WEBB & ADRIAN CALDICOTT Appellants
- and –
THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents
Tribunal: MISS J C GORT (Chairman)
MR C PERRY C.Eng
Sitting in public in Birmingham on 24 January 2006
Mr Webb for the Appellants
Miss F Darroch of counsel for the Respondents
© CROWN COPYRIGHT 2006
"They are independent of any operational work areas and will examine all papers and other available information relating to this case. … If … you have any queries or further information which you would like to provide in the support of this request, please contact the review officer …"
(1) The excise goods were destined for supply on a "not for profit" basis, for example, for re-imbursement.
(2) If the excise goods were destined for supply for profit, the quantity of excise goods is small and it was a first occurrence.
(3) If the vehicles owned by a third party who was not present at the time of the seizure and was either blameless or had taken reasonable steps to prevent smuggling in the vehicle.
"1. Tobacco products
(1) In this Act 'tobacco products' means any of the following products, namely:
(c) hand-rolling tobacco;
(d) other smoking tobacco, and
(e) chewing tobacco,
Which are manufactured wholly or partly from tobacco or any substance used as a substance for tobacco, but does not include herbal smoking products.
(2) Subject to subsection (3) below, in this Act 'hand-rolling tobacco' means tobacco –
(a) which is sold or advertised by the importer or manufacturer as suitable for making into cigarettes; or
(aa) which is of a kind used for making into cigarettes; or
(b) of which more than 25 per cent by weight of the tobacco particles have a width of less than 1mm.
(1) There shall be charged on tobacco products imported into or manufactured in the United Kingdom a duty of excise at the rates shown, […], in the Table in Schedule 1 to this Act.
The Tobacco Products Regulations 2001 state:
"4-(1) Amend the Tobacco Products Regulations 2001 as follows;
(2) In the definition of "duty" in regulation 3(1) before the word "means" insert –
"except in regulation 12(1B)9d) below,"
(3) In regulation 12, after paragraph (1) insert –
"(1A) In the case of tobacco products acquired by a person in another Member State for his own use and transported by him to the United Kingdom, he excise duty point is the time when those goods are held or used for a commercial purpose by any person."
(1B) For the purposes of paragraph (1A) above –
"(a) 'Member State' includes the Principality of Monaco and San Marino, but does not include the Island of Heligoland and the territory of Busingen in the Federal Republic of Germany, Livigno, Campione d'Italia and the waters of Lake Lugano in the Italian Republic, Ceuta, Melilla and the Canary Islands in the Kingdom of Spain, or the overseas departments of the French Republic …".
(b) "own use" includes use as a personal gift,
(c) if the goods in question are –
(i) transferred to another person for money or money's worth (including any reimbursement of expenses incurred in connection with obtaining them), or
(ii) the person holding them intends to make such a transfer,
those goods are to be regarded as being held for a commercial purpose,
(d) if the goods are not duty and tax paid in the Member State at the time of acquisition, or the duty and tax that was paid will be or has been reimbursed, refunded or otherwise dispenses with, those goods are to be regarded as being held for a commercial purpose,
(e) without prejudice to sub-paragraphs (c) and (d) above, in determining whether excise goods are held or used for a commercial purpose by any person regard shall be taken of –
(i) that person's reasons for having possession or control of those products,
(ii) whether or not that person is a revenue trader (as defined in section 1(1) of the Customs and Excise Management Act 1979),
(iii) that person's conduct, including his intended use of those goods or any refusal to disclose his intended use of those products,
(iv) the location of those products,
(v) the mode of transport used to convey those products,
(vi) any document or other information whatsoever relating to those products,
(vii) the nature of those products including the nature and condition of any package or container,
(viii) the quantity of those products, and in particular, whether the quantity exceeds any of the following quantities –
400 cigarillos (cigars weighing no
more than 3 grammes each)
3 kilogrammes of any other tobacco
(ix) whether that person personally financed the purchase of those products,
(x) any other circumstances that appears to be relevant.
(4) In regulation 23(1), after paragraph (a), insert –
"(aa) they were acquired by a person in another member state for his own use and transported by him to the United Kingdom."
"1. Where –
(a) except as provided by or under the Customs and Excise Acts 1979, any imported goods being goods chargeable on their importation with customs or excise duty, are, without payment of duty –
(i) unshipped in any port,
(ii) unloaded from any aircraft in the United Kingdom,
(iii) unloaded from any vehicle in, or otherwise brought across the boundary, into, Northern Ireland, or
(iv) removed from their place of importation or from any approved wharf, examination station or transit shed;
… those goods shall … be liable to forfeiture.
"(1) Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majesty's armed forces or coastguard."
"(1) … where any thing has become liable to forfeiture under the Customs and Excise Acts – any ship, aircraft, vehicle … which has been used for the carriage, handling, deposit … of the thing so liable to forfeiture … and any other thing mixed, packed or found with the thing so liable, shall also be liable to forfeiture."
"The Commissioners may, as they see fit –
(b) restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under the Customs and Excise Acts."
(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such a time as the tribunal may direct;
(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision; and
( c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to given directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future."
The Respondents' case
"The amount brought in in this case was enormous, and Her Majesty's Customs were entirely entitled to take the severe view that they did."
It was submitted in the present case that the 37.5 kilos of hand-rolling tobacco brought in was an amount that could reasonably suggest that the goods were not for the Appellants' own use and would justify the commerciality statement being given. It was for the Appellants to demonstrate to the officers at the time that the tobacco was for their own use.
"Given the extent of the damage caused to the public interest, it is, in my judgment, acceptable and proportionate that subject to individual considerations, whatever they are worth, the vehicles of those who smuggle for a profit, even for a small profit, should be seized as a matter of policy."
Mr Webb had produced no evidence to indicate that there were any exceptional individual considerations which would lead the Commissioners to depart from that policy.
The Appellant's case
Reasons for decision
MISS J C GORT
RELEASED: 14 March 2006