EXCISE DUTIES — cigars imported from Spain — liable to United Kingdom duty — importers' agents making duty declarations by reference to weights recorded on AADs — weights recorded understated — whether Respondents' estimation of true weights acceptable for duty calculation — yes — joint and several liability of agents for unpaid duty — Excise Directive, art 6 — FA 1994, ss 12, 16 — REDS Regulations 1992, regs 4, 5 — joint and several liability established — appeals dismissed
MANCHESTER TRIBUNAL CENTRE
KERRY LOGISTICS (UK) LIMITED
HERBERT WATSON FREIGHT SERVICES LIMITED
- and -
THE COMMISSIONERS FOR
HER MAJESTY'S REVENUE AND CUSTOMS
Tribunal: Colin Bishopp (Chairman)
Sitting in public in Manchester on 14, 15 and 16 August 2006
Richard Barlow, counsel, instructed by Hassan Khan & Co for the Appellants
Andrew Macnab, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents
© CROWN COPYRIGHT 2006
Paula Bisby, Watson's office manager;
Gary Wilcock, Kerry's managing director;
Gerry Gaffney, manager of Kerry's airfreight business;
Alan Cooke, at the relevant time Kerry's sales and operations manager;
Michael Cullen, the warehouse manager of Hunters and Frankau Limited, importers and distributors of cigars;
Jacqueline Leach, Richard Gledhill, Colin Buckley and Chantelle Tunnicliffe, all officers of HM Revenue and Customs.
We had also the unchallenged and purely formal statements of a number of other HMRC officers.
"(1) Subject to subsection (4) below, where it appears to the Commissioners—
(a) that any person is a person from whom any amount has become due in respect of any duty of excise; and
(b) that there has been a default falling within subsection (2) below,
the Commissioners may assess the amount of duty due from that person to the best of their judgment and notify that amount to that person or his representative …
(2) The defaults falling within this subsection are—
(a) any failure by any person to make, keep, preserve or produce as required or directed by or under any enactment any returns, accounts, books, records or other documents;
(b) any omission from or inaccuracy in any returns, accounts, books, records or other documents which any person is required or directed by or under any enactment to make, keep, preserve or produce …
(2A) In subsection (2)(a) and (b) above 'enactment' includes directly applicable Community provisions."
"The element of guess-work and the almost unavoidable in a properly made best of judgment assessment … do not serve to displace the validity of the assessments, which are prima facie right and remain right until the taxpayer shows that they are wrong and also shows positively what corrections should be made in order to make the assessments right or more nearly right."
"(1) The person liable to pay the duty in the case of an importation of excise goods from another member State shall be the importer of the excise goods.
(2) Each of the persons specified in paragraph (3) below having the specified connection with the excise goods at the excise duty point, shall be jointly and severally liable to pay the duty with the person specified in paragraph (1) above of this regulation.
(3) The persons specified in this paragraph are—
(a) any authorised warehousekeeper or REDS acting on behalf of an importer of the excise goods in respect of the importation of those goods;
(b) any other person acting on behalf of the importer of the excise goods in respect of the importation of those goods …
(9) In this regulation 'importer of the excise goods' includes any owner of those excise goods or any person beneficially interested in those excise goods."
"1 Excise duty shall become chargeable at the time of release for consumption …
Release for consumption of products subject to excise duty shall mean …
(c) any importation of those products … where those products have not been placed under a suspension arrangement.
2 The chargeability conditions and rate of excise duty to be adopted shall be those in force on the date on which duty becomes chargeable in the Member State where release for consumption takes place … Excise duty shall be levied and collected according to the procedure laid down by each Member State …"
"(1) … the excise duty point in relation to any Community excise goods shall be the time when the goods are charged with duty at importation …
(3) If duty suspension arrangements do not apply in respect of Community excise goods consigned, in accordance with these Regulations, to a REDS or to an occasional importer or to an importer for whom a REDS is acting, the excise duty point shall be the time when those goods are received by that person.
(9) This regulation—
(a) shall apply to fix an excise duty point with respect to any Community excise goods imported into the United Kingdom from another member State …"
"where the goods are brought by air, the time when the aircraft carrying them lands in the United Kingdom or the time when the goods are unloaded in the United Kingdom, whichever is the earlier."
Release Date: 3 October 2006