EXCISE DUTY RED DIESEL - assessment re two vehicles - only one dipped - issues whether undipped vehicle could be assessed and whether methodology for calculation of duty correct - High Court decision in Thomas Corneill followed - reduction in mileage for one vehicle accepted by Customs - subject thereto appeal dismissed
MANCHESTER TRIBUNAL CENTRE
T.C.KIRTON PLANT HIRE LTD. Appellant
THE COMMISSIONERS FOR
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Tribunal: Elsie Gilliland (Chairman)
Mohammed Farooq (Member)
Sitting in public in Birmingham on 20 May 2008
Tony Kirton, director, for the Appellant
Bernard Haley of the Solicitors Office of H M Revenue and Customs for the Respondents
© CROWN COPYRIGHT 2008
"Claim is unfair and unfounded. Only 1 vehicle found to be running on red diesel, yet the amount demanded relates to 4 vehicles".
As indicated above only two vehicles are now assessed subsequent to the departmental review.
"(2) No heavy oil on whose delivery for home use rebate has been allowed (whether under section 11 above or 13AA(1) below shall-(a) be used as fuel for a road vehicle; or(b) be taken into a road vehicle as fuel,
unless an amount equal to the amount for the time being allowable in respect of rebate on like oil has been paid to the Commissioners in accordance with regulations made under section 24 (1) below for the purposes of this section".
Accordingly HODA imposes a tax on hydrocarbon oil (section 6) but permits a rebate for home use (section 11) disallowing the rebate for use in road vehicles (section 12). Section 13 then deals with the misuse of rebated heavy oil in vehicles and states as follows:
"13(1A) Where oil is used, or is taken into a road vehicle, in contravention of Section 12(2) above, the Commissioners may-
(a) assess an amount equal to the rebate on like oil at the rate in force at the time of the contravention as being excise duty due from any person who used the oil or was liable for the oil being taken into the road vehicle, and
(b) notify him or his representative accordingly".
"An assessment can be made where it can be demonstrated that oil has been "used or taken into a road vehicle in contravention of Section 12(2)". It is not possible to read into that part of the section any particular evidential requirements as to how closely one has to tie any particular fuel to any particular vehicle. All one can say about the quality of the evidence that underlies such an assessment is that there has to be enough. There is a contravention if it is taken into a road vehicle. That can be demonstrated in a number of ways. The clearest way is a vehicle which is caught with fuel in its tank". Paragraph 30 per Mann J.  EWHC 715 (Ch).
Release date: 30 July 2008