EXCISE GOODS – Procedure – Appellant appealed against both seizure and restoration – Review decision on restoration made before appeal against seizure withdrawn – Whether Appellant able to contest facts relating to seizure before Tribunal – Weller considered
RESTORATION – Reviewing office proceeded on basis Appellant would not have succeeded in Magistrates Court – Whether decision reasonable – Appeal allowed
LONDON TRIBUNAL CENTRE
DAVID MANSEL DAWKIN Appellant
- and –
THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents
Tribunal: MISS J C GORT (Chairman)
MR J N BROWN CBE, FCA, ATII
Sitting in public in Birmingham on 25 January 2007
The Appellant in person
Mr C Watson of counsel instructed by the Solicitor's Office, for the Respondents
© CROWN COPYRIGHT 2007
"I must also inform you that should the Court decide that the things should be condemned as liable to forfeiture, Customs and Excise normally ask for costs to be awarded which are likely to be not less than several hundred pounds."
There was no reference to any request for costs in respect of the refusal to grant restoration.
"I was surprised at some of the answers I am supposed to have given to Reynolds (the seizing officer). The problem is there are several inaccuracies in the list of `selected' answers (refer to page 2 of your letter)."
He then lists several answers which he is alleged to have given and describes these as "false". In his letter to the officer dealing with restoration, he wrote:
"I can understand Dionne Spearman's (the officer who refused restoration) decision based on the information supplied. I am still in the process of disputing this information, regarding the legality of the seizure and the misunderstanding of the facts by the seizing officer. I only realised what had been put in the officer's statement in recent correspondence and the outcome of my case had already been decided."
"An independent Customs review officer will conduct the review by examining and considering all the information that we have about this case and writing to you with a fresh decision. The review officer will not have been involved in either the seizure or the original decision."
There is no specific reference to the fact that this officer is dealing only with the matter of restoration, which can only be discerned from the fact that he informs Mr Dawkin that he may appeal the original decision to the VAT and Duties Tribunal, and there is no mention of the Magistrates Court.
"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 substitute 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.
"4. Excise Duty Point:
(1) Except in the cases specified in paragraphs (2) to (6) below, the excise duty point in relation to any Community excise goods shall be the time when the goods are charged with duty at importation."
As regards products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired.
(1) Without prejudice to Articles 6, 7 and 8, excise duty shall become chargeable where products for consumption in a Member State are held for a commercial purpose in another Member State.
(2) To establish that the products referred to in Article 8 are intended for commercial purposes, Member States must take account, inter alia, of the following –
- the commercial status of the holder of the products and his reasons for holding them
- the place where the products are located or, if appropriate, the mode of transport used,
- any document relating to the products,
- the nature of the products,
- the quantity of the products.
For the purposes of applying the content of the fifth indent of the first subparagraph, Member States may lay down guide levels, solely as a form of evidence. These guide levels may not be lower than –
(a) Tobacco products
cigarettes 800 items
cigarillos (cigars not weighing more than 3g each) 400 items
cigars 200 items
smoking tobacco 1.0kg
(c) Alcoholic beverages
spirit drinks 10 l
intermediate products 20 l
wines (including a maximum of 60 l of sparkling wines)
beers 110 l."
(2) In the definition of "duty" in regulation 3(1) before the work "means"
",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, the excise duty point is the time when those goods are held or used for a commercial purpose by any person."
(1B) For the purpose 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 land 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 had been reimbursed, refunded or otherwise dispensed 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 grams each)
3 kilograms of any other tobacco products
(ix) whether that person personally financed the purchase of those products,
(x) any other circumstance that appears to be relevant.
"(aa) they were acquired by a person in another member State for his own use and transported by him to the United Kingdom."
"Question: Will you be remunerated for these cigarettes?
Answer: A guy gave me a hundred quid and said bring me some cigarettes."
When asked who had said that, he gave the name of Billy Blane, who was "one of my son's mates". He was then asked:
"What about the rest of the cigarettes, were you given money for them?
Answer: No, but I will when I get back. I am not making a profit on them."
(1) That he had no idea when he would be returning to England as it depended on his work commitments and the costs and availability of flights.
(2) It was untrue that he said his son's friend had given him £100 and asked him to bring some cigarettes for him.
(3) He did not say he had not been given any money for the rest of the goods but would be given money when he got back to England, and
(4) He denied saying that he would not be making a profit on the cigarettes.
In addition he said that the answer recorded by the officer that he was not going to sell the cigarettes as he was aware that it was illegal to do so, was in direct contradiction to the above statements regarding receiving money and selling the cigarettes.
that Billy Blaine was one of his son's mates, who, in addition to looking after his mother's garden, kept an eye on her as she was infirm.
The Respondents' case
"46. All that said I shall now turn to express my view on what was said by Phillips LJ (in the case of Gora). So far as domestic law is concerned I would respectfully say that the observations were clearly correct. I do not think it can have been intended that the exporter before the tribunal would have a second bite of the cherry of lawfulness, having failed in the condemnation proceedings, or let them go by default.
To the extent that it was argued that the literal provisions of section 152(b) are wide enough to allow such a second bite, I would agree that that is so, but the reason why the importer can not have that liberty is not because of the terms of the statute, but because of the normal English law rules of res judicata or abuse of process.
As I have already said, that conclusion does not lead to the more severe conclusion, tentatively drawn by Lord Phillips in paragraph 10 of the original judgment in this case, in that it does not cause the tribunal to be effectively functus even on issues of discretion."
"Lord Justice Buxton's reference to abuse of process or to considerations analogous to abuse of process are, in my view, references to the well-known principle that it may be an abuse of process to raise in one tribunal matters that could and should have been raised in another. So the relevant questions will always be, first, could the applicant have raised the question of lawfulness of forfeiture in other proceedings and, if the answer to that question is yes, why did he not do so? In the light of his reason for not raising the matter in condemnation proceedings the tribunal can then answer the question should he have done so and if they answer that question `yes', then it will be, in most cases, an abuse of process for him to raise the question before the tribunal."
The Appellant's case
Reasons for decision
"(3) That the appeal shall proceed on the basis that the tribunal has jurisdiction to consider whether the seized goods were for the appellant's personal use even though there had been no condemnation proceedings and condemnation has not been challenged …"
In the case of Weller, Gascoyne (supra), Gora v Customs and Excise Commissioners  3 WLR 160 and Smith (supra) were considered. In Weller Mr Justice Evans-Lombe adopted Mr Justice Lewison's approach in Smith, namely, that, whether or not an importer, having suffered a deemed forfeiture under paragraph 5 of Schedule 3, is able to raise the validity of the forfeiture on a review by the Commissioners and on appeal from them to the Tribunal, depends on two questions. The first question is: did the importer have a realistic opportunity to invoke the condemnation procedure and the second is, if he did, are there nonetheless reasons, disclosed by the facts of the case which should persuade the Commissioners or the Tribunal to permit him to reopen the question of the validity of the original seizure on an application for the return of the goods? It was considered that the first question would almost always be answered in the affirmative, since facts would have to be very unusual to base a conclusion that an importer was prevented, in the 30 days succeeding forfeiture, from giving notice to the Customs to initiate condemnation procedure in the Magistrates Court.
MISS J C GORT
RELEASED: 2 April 2007