EXCISE DUTY – Restoration of goods – Cigarettes – Whether decision not to restore was reasonable – No – Appeal allowed
LONDON TRIBUNAL CENTRE
DAVID GEORGE LEWIS WELLER Appellant
- and –
THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents
Tribunal: STEPHEN OLIVER QC (Chairman)
Sitting in public in London on 21 August 2006
Dougald Robinson, friend, for the Appellant
Kieron Beal, counsel, instructed by the Acting General Counsel and Solicitor for HMRC, for the Respondents
© CROWN COPYRIGHT 2006
The Function of the Tribunal
"… the powers of an appeal Tribunal on an appeal under this section shall be conferred to a power, where the Tribunal is satisfied that the Commissioners or other person making the decision could not reasonably have arrived at it, to do one or more of the following, that is to say –
(a) to direct that the decision, so far as it remains in force, is to seize to have effect from such 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;
Pursuant to Section 16(6) the burden is on the Appellant to satisfy the Tribunal in the appeal.
The Decision appealed against
It is the Department's general policy that seized or condemned excise goods should not normally be restored. However, each case is examined on its merits to determine whether or not restoration may exceptionally be offered."
So far as is relevant the "Consideration" part of the letter reads as follows:
"It is for me to determine whether or not the contested decision is one that should be upheld, varied or withdrawn. In order to do so, I considered the decision afresh, including the events of the 11 July 2004 and related evidence, to identify if any mitigated or exceptional circumstances exist it should be taken into account. I also examined and considered all the material and representations that were before the Commissioners at the time the decision was made and any that have subsequently been received.
The goods were seized due to the conclusion that they were for commercial use."
The letter states what the review has involved:
"In my review, I have examined your correspondence, and the situation surrounding the seizure, to identify if I consider any exceptional circumstances do exist …. My review … only deals with matters relevant to the decision regarding non restoration of the goods."
The review letter rejects Mr Weller's contention that the stopping of him at the Docks and therefore the subsequent seizure was illegal. This has not been pursued before the Tribunal. The letter then sets out what we see as the reason for the decision. This reads:
"… the misleading information provided at interview concerning your previous travel, coupled with the fact that with a consumption rate of 2 or 2½ pouches of tobacco per week, you would not need to travel as frequently as every six weeks to obtain supplies for your own consumption, I find your statements unreliable. Although you travelled as a foot passenger on 11 July and 4 April, I note you normally travel by car, and therefore would have had opportunity to purchase larger amounts at a time, from the cheaper suppliers in Belgium or France, whom you mention.
The revenue involved in the offence is duty of £389.36 and VAT of £107,25, i.e. a total of £396.61."
The conclusion in the review letter is:
"Due to all my findings above, I consider that a refusal to restore the excise goods is both reasonable and proportionate, when taking into account all the above considerations of your case."
The events of 11 July
"I intend to ask you some questions to establish whether these goods are held for a commercial purpose. If no satisfactory explanation is forthcoming or if you do not stay for questioning it may lead me to conclude that the goods are held for a commercial purpose and your goods (and vehicle) may be seized as liable for forfeiture. You are not under arrest and are free to leave at any time. Do you understand?"
By then, Mr Weller told us and we accept, he was in quite a state.
• The goods had cost some £300.
• Mr Weller had borrowed £15,000 to buy his car.
• Mr Weller had £100-£150 a week after expenses.
• Asked to explain why he had not mentioned the April 2004 trip, Mr Weller had said that he did not keep track of these things.
• Normally Mr Weller travelled by car with his friend Mr W.
• Mr Weller normally got through two packets of Golden Virginia a week.
At 12.22 Mr Weller signed the notes acknowledging them as an accurate account. The notes then record a visit to the car park to inspect Mr Weller's Astra which contained "nothing of Customs interest". The notes record the seizure.
"I am a mechanic and often help him with car maintenance. As a thank you he occasional brings me various gifts back from his trip to France (i.e. cigarettes or alcohol). Although I have offered him payments, he has never accepted and has always been adamant that they were gifts."
Mr Penson duly signed the letter but did not attend to give evidence. Mr Penson, Mr Weller explained to us, was another of the good neighbours in Ashtead who sometimes repaired his car for a small payment and sometimes ferried him around. We accept that Mr Weller owed a debt of gratitude to Mr Penson but we do not accept that the cigarettes given by Mr Weller to Mr Penson were in any real sense payment in kind for Mr Penson's services.
STEPHEN OLIVER QC
RELEASED: 12 September 2006