EXCISE DUTY – Appeal under s.16 FA 1994 against a review decision to offer restoration of a freight tractor unit on payment of a restoration fee equal to 50% of the trade value of the unit – neither haulier nor driver responsible for or complicit in the carriage of an illicit load in the trailer drawn by the unit – whether basic reasonable checks were carried out which would have identified the illicit load – found they were not – whether the decision was reasonable in all the circumstances – found that although the imposition of a restoration fee was reasonable the review officer had taken into account irrelevant considerations in reaching his decision – Appeal therefore allowed – A further review directed under s.16(4)(b) FA 1994
LONDON TRIBUNAL CENTRE
JOBE TRANSPORT LIMITED Appellant
- and -
THE COMMISSIONERS FOR HER MAJESTY'S
REVENUE AND CUSTOMS Respondents
Tribunal: JOHN WALTERS QC (Chairman)
Sitting in public in Norwich on 17 September 2008
Mr. G. Goodwill, Counsel, instructed by Martin Arthur, Solicitor, appeared for the Appellant
Mr. R. Jones, Counsel, instructed by the Solicitor for HM Revenue and Customs, appeared for the Respondents
"We at all times try to take as many steps as we can not to be used in the way we have been in this matter.
Our driver, Richard Ogilvie, was following instructions from myself. We believed that the collection we were making was all OK. We had a letter headed fax and phone number plus a proper collection address along with a delivery address.
The boxes (pallets) were marked for the said address, so nothing out of the ordinary for the driver to notice.
We collected the goods and carried on as usual. It was not until we got to Customs that we knew what was in the boxes.
We cross the Channel once or twice a week and over the last 4 years have never had a problem.
Mr. Ogilvie has worked for the company for as many years and is a very good worker and family man much like myself. I, more than most, wish we had not done this collection.
My driver and I were unfortunately used and are both paying the price for these very worrying times.
We are a small family business with no need financially or otherwise to be involved in anything like this.
We would appreciate the return of our truck Y10 KPE so we can try and get back to normal."
"The Commissioners' policy for the restoration of goods vehicles that have been used for smuggling excise goods is intended to tackle cross border smuggling and to disrupt the supply of excise goods to the illicit market.
Each case is considered carefully on its individual merits so as to decide whether exceptions should be made, and any evidence of hardship is always considered.
The policy depends on who is responsible for the smuggling attempt:
A: neither the haulier nor the driver are responsible or
B: the driver, but not the haulier is responsible or
C: the haulier is responsible
A. If the haulier provides evidence satisfying the Commissioners that neither the haulier not the driver were responsible for or complicit in the smuggling attempt then:
- If the haulier also provides evidence satisfying the Commissioners that both the haulier and the driver carried out basic reasonable checks (including conforming with the CMR Convention) to confirm the legitimacy of the load and to detect any illicit load, the vehicle will normally be restored free of charge,
- Otherwise, on the first occasion the vehicle will normally be restored for 20% of the revenue involved in the smuggling attempt (or for 100% of the trade value of the vehicle if lower). On a second or subsequent occasion (within 6 months) the vehicle will not normally be restored."