First-tier Tribunal (Tax)

[2010] UKFTT 83 (TC)

 

 

 

 

 

                                                                                                TC00395

 

Appeal number LON/2009/8033

 

 

Customs – Seizure of vehicles – Forfeiture – Restoration – Lithuania

 

 

FIRST-TIER TRIBUNAL

TAX CHAMBER

 

 

 

 

                                         AIDINAS IVANAVICIUS                         Appellant

 

 

                                                                      - and -

 

 

                                 THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS (Customs and Excise)                                                                Respondents

 

 

 

 

 

                                                TRIBUNAL: MRS FIONAGH GREEN (Judge)

                                                                        MS ELIZABETH  BRIDGE

                                                                       

 

 

 

Sitting in public in London on 14 December 2009

 

The Appellant appeared in person

 

Mr Rupert Jones for the Respondents

 

 

© CROWN COPYRIGHT 2009

DECISION

 

Introduction

1.         This is an appeal against a decision of the Respondents contained in a letter dated 23 January 2009 in which they notified the Appellant that after conducting a review the Respondents would not restore a Mercedes Sprinter registration ECU 256 seized on 20 September 2008 and a Mercedes Minibus registration ECU 182 seized on 4 October 2008.

Background

2.         On 20 September 2008 at approximately 23.15 hours at Dover Eastern Docks vehicle ECU 256 was stopped by Customs.  The vehicle contained two drivers and eight passengers.  The driver at the time of the stop was a Mr Arturas Staskunas.  The vehicle was searched and a total of 6,290 cigarettes were found concealed underneath the large rubber access bungs under the front seat carpet, behind the internal wall panel on the nearside of the vehicle behind the driver’s seat, and behind the “B” pillar.  The goods and vehicle were seized.

3.         On 4 October 2008 at approximately 16.45 hours in the UK control zone in Coquelles, France, the Appellant was stopped by Customs in vehicle ECC 182.  The vehicle, a Mercedes Minibus, was towing a trailer carrying a Peugeot motor vehicle.  The Appellant told officers that he was carrying six passengers to Peterborough and that there were three drivers and that he was staying for one day and would then return.  The Appellant stated that the vehicle on the trailer belonged to one of his colleagues and had been taken to Lithuania for repairs because repairs were cheaper there.  When the Appellant was asked about excise goods he told officers that there were four blocks of cigarettes and ten bottles of beer and thirty bottles of vodka in his vehicle.  The Customs officer asked the Appellant to tell the passengers to remove their luggage including any excise goods from the vehicle.  Mr Arturas Staskunas was one of the three drivers and he declared 800 cigarettes to the officer and claimed that he would be staying in the United Kingdom for three weeks but could not give details of the address where he would be staying but stated that it would be in Wisbech.  The vehicle was searched and officers found cigarettes concealed within the boxes of beer and within the minibus seats and on the vehicle in the trailer.  A total of 7,180 cigarettes, 45.5 litres of beer and ten litres of mixed spirit were found.  The goods and vehicle were seized.

4.         The goods and vehicles had come from Lithuania on both occasions.  Lithuania is a new member of the EU and restrictions still apply in respect of the quantity of certain tobacco products imported into the United Kingdom.  The allowance of cigarettes from Lithuania is 200.  The goods were therefore seized as liable to forfeiture.  The Mercedes Minibus was also seized. 

5.         Customs officers issued a “Seizure Information Notice” C156 and Customs notice 12A “Goods and/or vehicles seized by Customs”.  The notice explained that the legality of the seizure could be challenged in a Magistrates’ Court by sending Customs a notice of claim within one month of the date of seizure/date of notice of seizure.  The Appellant did not challenge the legality of the seizure of the vehicles (nor the excise goods) within one month of the seizure and the excise goods and vehicles were confirmed as condemned as forfeit to the Crown by the passage of time under paragraph 5 Schedule 3 to the Customs and Excise Management Act 1979.

6.         By separate letters dated 6 October 2008 the Appellant wrote to the Respondents asking for the vehicles to be restored.

7.         On 13 October 2008 the Respondents wrote to the Appellant requesting further information regarding the seizure of vehicle ECU 256 the Mercedes Sprinter, and the completed form was received by the Respondents on 30 October 2008.

8.         On 7 November 2008 the Respondents sent the Appellant a decision letter in respect of each vehicle notifying that the vehicles would not be restored.

9.         On 16 December 2008 Ward Gethin Solicitors wrote on behalf of the Appellant asking for the decisions to be reviewed.

10.       On 19 December 2008 the Respondents wrote to Ward Gethin explaining the review process and inviting them to provide any further information in support of the request for a review as well as a written authority from the Appellant to act on his behalf however no further correspondence was received from Ward Gethin.

11.       By letter dated 23 January 2009 review officer David Harris confirmed that the vehicles would not be restored.

12.       By letter dated 26 March 2009 the Appellant enclosed a list of documents with translation for his appeal with contracts for the use of the vehicles and purchase and lease documentation.

The Issue

13.       The issue is whether the Respondents’ review decision not to restore the Mercedes Sprinter seized on 20 September 2008 and the Mercedes Minibus seized on 4 October 2008 was reasonable and whether there was any reason to dis-apply the Respondents’ policy of not restoring the vehicles. 

The Law

14.       The relevant legal provisions are as follows:

(i)         The Customs and Excise Duties (Travellers’ Allowances and personal Reliefs) (New Member States) Order 2004 as amended by the Customs and Excise (Travellers’ Allowances and Personal Reliefs) (New Member States) (Amendment) Order 2006 provides that in the maximum allowance for cigarettes imported into the United Kingdom from Lithuania shall be 200.  There is no maximum on other tobacco products provided that they are for personal use.

(ii)        The Excise Duty Points (etc) (New Member States) Regulations 2004 as amended by the Excise Duty Points (etc) (New member States) Amendment Regulations 2006 provide that the duty on any excess quantities must be paid at the excise duty point, and the Channel Tunnel (Alcoholic Liquor and Tobacco Products) (Amendment) Order 2004 applies the arrangements to importations through the Channel Tunnel.

(iii)       Article 4 of the Customs and Excise Duties (Travellers’ Allowances and Personal Reliefs) Order 2004 also provides that goods shall be forfeit if the conditions of relief are not complied with:

“4-  (1) The reliefs afforded under this Order are subject to the condition that the goods in question, as indicated by their nature or quantity or otherwise, are not held for a commercial purpose, nor are used for such purpose, and if that condition is not complied with in relation to any goods, those goods shall, unless the non-compliance was sanctioned by the Commissioners, be liable to forfeiture.”

(iv)       Section 49(1) of the Customs and Excise management Act 1979 (“CEMA”) states:

“Where –

(a)        except as provided by or under the Customs and Excise Acts 1979, any imported goods, being chargeable on their importation with customs or excise duty, are, without payment of that duty –

(b)        unshipped in any port,

(c)        any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer

 

Those goods shall … be liable to forfeiture.”

(v)        Section 139(1) of CEMA provides that:

“Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable, or any member of Her Majesty’s armed forces or coastguard.”

(vi)       Section 141(1) of CEMA states that “where any thing has become liable to forfeiture under the customs and excise Acts”-

(a)        any ship, aircraft, vehicle, animal, container (including any article of passengers’ baggage) or other thing whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and

(b)        any other thing mixed, packed or found with the fittings so liable,

 

shall also be liable to forfeiture.”

(vii)      Section 152 of CEMA establishes that:

“The Commissioners may, as they see fit –

…(b)  restore, subject to such conditions (if any) as they think proper, anything forfeited or seized under the Customs and Excise Acts.”

(vii)      Finally, sections 14 to 16 of the Finance Act 1994 provide that:

Section 14(2):

(2)        Any person who is –

(a)        a person whose liability to pay any relevant duty or penalty is determined by, results from or is or will be affected by any decision to which this section applies,

(b)        a person in relation to whom, or on whose application, such a decision has been made, or

(c)        a person on or to whom the conditions, limitations, restrictions, prohibitions or other requirements to which such a decision relates are or are to be imposed or applied,

 

may by notice in writing to the Commissioners require them to review that decision.

Section 15(1):

“Where the Commissioners are required in accordance with this Chapter to review any decision, it shall be their duty to do so and they may, on that review, either –

(a)        confirm the decision; or

(b)        withdraw or vary the decision and take such further steps (if any) in consequence of the withdrawal or variation as they may consider appropriate.”

 

Section 16(4) to (6):

(4)        In relation to any decision as to an ancillary matter, or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this sections hall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making that 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 cease 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; and

(c)        in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future.

 

(5)        In relation to other decisions, the powers of an appeal tribunal on an appeal under this sections hall also include power to quash or vary any decision and power to substitute their own decision for any decision quashed on appeal;

(6)        On an appeal under this section the burden of proof as to –

(a)        the matters mentioned in subsection (1)(a) and (b) of section 8 above;

(b)        the question whether any person has acted knowingly in using any substance or liquor in contravention of section 114(2) of the management Act, and

(c)        the question whether any person had such knowledge or reasonable cause for belief as is required for liability to a penalty to arise under section 22(1) or 23(1) of the Hydrocarbon Oil Duties Act 1979 (use of fuel substitute or road fuel gas on which duty not paid).

 

shall lie upon the Commissioners, but it shall otherwise be for the appellant to show that the grounds on which any such appeal is brought have been established.

15.       The Appellant contends that:-

(i)         He was not in the United Kingdom when the first vehicle was seized.

(ii)        On 4 October 2008 he truthfully declared his excise goods to the officers and could not take responsibility for what other people in the vehicle were carrying.

(iii)       There was no intentional misleading of the officers on the day.

(iv)       The vehicles were not modified.

(v)        There was no concealment of excise goods.

(vi)       It was not his fault that his solicitors had not responded to requests for further information.

(vii)      There was no reason for him not to lend his vehicle to Mr Staskunas for two weeks.

(viii)     There was no reason to think that Mr Staskunas was using his vehicle for fraudulent activity.

(ix)       The vehicles were vital to the business that he ran and he faced bankruptcy if they were not returned.

16.       The Respondents contend that the review decision was reasonable as:-

(i)         The Respondents applied their stated policy that private vehicles used for the improper importation or transportation of excise goods should not normally be restored.  The policy is intended to be robust in order to protect legitimate UK trade and revenue and prevent illicit trade in excise goods.  However vehicles may be restored at the discretion of the Commissioners subject to such conditions (if any) as they think proper (e.g. for a fee).

(ii)        It was not unreasonable for the Respondents to consider the two seizures together as they occurred within a very short period of time and there were a number of similarities between them.

(iii)       As Lithuania was not, at the time of seizure, a full member of the European Union, there were still restrictions on the number of cigarettes that individuals could import into the United Kingdom.  At the time of the seizures the maximum allowance was 200 cigarettes.  It is the responsibility of the individual traveller to familiarise themselves with Customs representatives before they depart for their destination.

(iv)       The Appellant misled Customs officers about the true quantity of cigarettes that he had, in circumstances where it must have been clear to him that he was expected to answer all questions fully and truthfully.  Furthermore, on both occasions the vehicle in which the goods were imported was used to conceal the true number of cigarettes that had been imported.

(v)        The Appellant claims that he lent the Mercedes Sprinter (ECU 256) to Mr Staskunas for two weeks.  Given that the Appellant now states that he cannot run his business without the vehicles, two weeks would seem to be a long period of time to lend a vehicle to someone.  In fact, records show that the vehicle has been to the UK on a number of previous occasions with different drivers and passengers, as set out in Mr Harris’s review.  In those circumstances it was reasonable for Mr Harris to conclude that the Appellant had not really lent the vehicle to Mr Staskunas, and that Mr Staskunas had simply driver the vehicle as part of the Appellant’s business of transporting people from Lithuania to the United Kingdom, particularly given that Mr Staskanus was also present at the second seizure.

(vi)       The Appellant admitted that he had had goods seized previously.

(vii)      The quantity of goods seized from the Appellant is many times greater than the maximum allowance for cigarettes imported from Lithuania.

(viii)     Lord Phillips in giving judgment in Lindsay v Customs and Excise Commissioners (2002) 1 WLR 1766 stated:

“Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their vehicles will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose those vehicles.  Nor does it seem to me that, in such circumstances, the value of the car used need to be taken into consideration.  Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance.  Cases of exceptional hardship must always, of course, be given due consideration …”

Lord Justice Judge stated:

“Given the extent of the damage caused to the public interest, it is, in my judgment, acceptable and proportionate that subject to exceptional individual consideration, whatever they are worth, the vehicle of those who smuggle for a profit, even for a small profit, should be seized as a matter of policy.”

(ix)       In the circumstances, it was reasonable for Mr Harris to doubt the Appellant’s credibility.  In the case of Brealey Mr Bishopp stated that:

“If travellers lie to Customs about the frequency of their trips, the quantities of goods they have bought or the quantities they already have at their house, they cannot be surprised, nor can they complain, if Customs doubt everything they say … it cannot, in our view, be regarded as unreasonable if Customs officers, having defected lies, conclude that a traveller’s purposes are not as innocent as he claims.”

(x)        In the circumstances there was no reason to dis-apply the Respondents’ policy of not restoring the vehicle.

(xi)       There are no other exceptional factors in this case that should lead the officer to have dis-applied the Respondents’ policy.

Findings of Fact and Decision

16.       It is the responsibility of the individual traveller to familiarise themselves with Customs’ requirements before they depart for their destination. 

17.       The Appellant has a permanent working contract with the company JSC “Optimus Ventus” working as an electrician and driver.  The company carries out working installation and maintenance of heating and water supply systems. 

18.       The two vehicles the Mercedes Sprinter ECU 256 and a Mercedes Minibus ECC 182 are both owned by the Appellant who uses the vehicles for his own use and for the use of JSC Optimus Ventus.  The company is small and relies on the Appellant and his vehicles.

19.       The Mercedes Sprinter ECU 256 had been owned by the Appellant since March 2008.  In the middle of September 2008 the vehicle was not required by the Appellant for the purpose of his work as his other Mercedes Minibus was sufficient.  The Appellant did not need the permission of his company to lend the Mercedes Sprinter.  The Appellant had known Mr Arturas Staskunas since the spring of 2008.  Mr Staskunas had moved from another area to become the Appellant’s neighbour and they socialised.  In September 2008 Mr Staskunas had asked to use the Appellant’s Mercedes Sprinter vehicle to go to England.  The reason given to the Appellant was that Mr Staskunas wanted to buy a car in England and to transport it back to Lithuania for parts.  The Appellant had asked Mr Staskunas why he could not use his own vehicle which was a BMW however Mr Staskunas needed the Mercedes Sprinter so that he could trail another vehicle and the BMW was left with the Appellant.  It was a BMW 325.  The Appellant had asked Mr Staskunas to return the Mercedes Sprinter in the same condition.  It was a verbal agreement as he got on well with Mr Staskunas.  The Appellant had not discussed with Mr Staskunas whether Mr Staskunas could give passengers a lift but he would have consented as he knew that it was a long journey and if more people travelled they will contribute towards the petrol and it would be cheaper.  The Appellant was relaxed about lending his vehicle as this happened frequently in his country and he had previously lent the vehicle to relatives and friends.  The Appellant had previously lent the vehicle to Mr Krutikovas Valdas, Mr Jokuvaskas Valdas and Mr Zalcas.

20.       On 28 October 2008 the Appellant’s wife had written the responses to the questions raised by the Respondents relating to the Mercedes Sprinter.  The Appellant’s knowledge and understanding of English is not good.  The responses to the questions were mainly confirmed by the Appellant in his evidence.  Mr Staskunas had asked to borrow the Appellant’s vehicle as Mr Staskunas had wanted to go abroad to “carry a car” and the Appellant’s vehicle was more appropriate for towing.  The Appellant had confirmed that he and Mr Staskunas were, at that time, very good friends and that the Appellant knew that the vehicle was being taken abroad.  The Appellant made it clear that he did not know that Mr Staskunas’s trip was to carry out any illegal act or to purchase excise goods.  Although the Appellant had answered that he had not lent the vehicle to anyone before this was inaccurate.  The Appellant had used the dictionary and his wife had written the answers.  The Appellant intended the answer to say that he had not lent the vehicle to anyone previously to transport illicit or unlawful goods.  The Appellant had only lent his vehicle to people that he knew and he believed that his answers were correct. 

21.       In the written information given to the Respondents the Appellant had answered truthfully that he had previously been stopped by the Respondents when in Germany where he did not have a licence to transport passengers.

22.       The Appellant was not present either as a driver or a passenger at Dover Docks on 20 September 2008. 

23.       On 20 September 2008 the Mercedes Sprinter registration ECU 256 concealed 6,290 cigarettes in three separate places namely underneath the large rubber access bungs under the front seat carpet, behind the internal wall panel on the nearside of the vehicle behind the driver’s seat and thirdly behind the “B” pillar.  The vehicle had come from Lithuania.  Lithuania is a new member of the EU and the quantity of cigarettes exceeded the allowance of 200.  The goods were therefore correctly seized as liable to forfeiture under Article 4 of the Customs and Excise Duties (Travellers’ Allowances and Personal Reliefs) Order 2004 and section 49(1)(a) Customs and Excise Management Act 1979.  The packets of cigarettes had been deliberately placed in the natural spaces of the vehicle. The drainage bungs were situated within the rubber grummet along the cills running the length of the vehicle and someone would have had to lie on the floor underneath the vehicle.  It had been noticed by the Customs officer that the underside of the vehicle was dirty but the grummets were clean.  The cigarettes were in packets of 20 cigarettes.  There was a double layer under the carpet.  The internal wall panel was behind the driver’s seat on the door.  The cigarettes had been placed within the natural spaces of the vehicle and there was therefore no adaptation or alteration give rise to forfeiture under section 88 of the Customs and Excise Management Act 1979.  The vehicle was liable to forfeiture under section 141 of the Customs and Excise Management Act 1979 as it had been used for the carriage of goods liable to forfeiture.

24.       The Appellant gave clear evidence at the Tribunal hearing.  The Appellant did not know and did not have reason to believe that his friend and neighbour Mr Staskunas, or some other person travelling with Mr Staskunas on 20 September 2008 had concealed and transported goods prohibited to be imported to the United Kingdom.  The Appellant knew and trusted Mr Staskunas and had asked him to look after his vehicle as his own.  The Appellant gave evidence that Mr Staskunas had not returned the vehicle to the Appellant and the Appellant had to make enquiries and to search to find Mr Staskunas at his previous address with his parents.  Mr Staskunas had only been in contact from England to say that the vehicle had been seized.  The Appellant had asked Mr Staskanus to return to tell him what had happened but Mr Staskunas had avoided contact.  The documentation in relation to the Mercedes Sprinter had been left in Wisbech and the Appellant decided that he would travel to the United Kingdom with Mr Staskunas to recover the paperwork and vehicle.

25.       The Appellant travelled to the United Kingdom on 4 October 2008 with Mr Staskunas and other passengers.  The Peugeot on the trailer belonged to a colleague and had been taken to Lithuania for repairs.  Mr Staskunas had declared 800 cigarettes to the Customs officer.  The cigarettes were found concealed in the three separate places namely within boxes of beer, within the Minibus seats and on the vehicle on the trailer.  There were 1,600 Kingsize filter L&N cigarettes placed at the bottom of the boxes of beer.  45.5 litres of mixed Vodka and 10 litres of mixed beer were seized.  The beer and the vodka were not concealed and were found within the Mercedes Minibus.  There was a further 200 Kent Kingsize filter cigarettes in the Peugeot on the trailer.  The cigarettes and alcohol were correctly seized as liable to forfeiture under Article 4 of the Customs and Excise Duties (Travellers’ Allowances and Personal Reliefs) Order 2004 and section 49(1)(a) Customs and Excise Management Act 1979.  The goods were not however liable to forfeiture in addition under section 88 of the Customs and Excise Management Act 1979 as the Mercedes Minibus and Peugeot had not been adapted or altered in a manner designed to conceal goods.  The goods and the Mercedes Minibus were seized under section 139(1) of the Customs and Excise Management Act 1979 as they have been used for the carriage of goods liable to forfeiture.  The Peugeot was not seized. 

26.       The Appellant in his evidence confirmed that there had been six passengers for the journey to England on 4 October 2008 and that the journey had been partly for business as his company wanted him to pick up a stove.  The Appellant also wanted Mr Staskanus to find the paperwork for the Mercedes Sprinter which had been seized and to try to recover the vehicle.  The six passengers had been picked up and knew about the journey from adverts which is quite usual in Lithuania where there is a long journey and with the intention of sharing the cost of petrol and food.  The Appellant accepted in his evidence that he knew that cigarettes had been placed with the boxes of beer and within the Minibus seats and he knew that the total quantity was a larger amount than allowed.  The cigarettes and alcohol were needed as the Appellant and the passengers needed to stay in England and they were bringing cigarettes and alcohol as gifts.  The Appellant accepted that he had only told the Customs officers about the four blocks of cigarettes and that he had not admitted that there had been cigarettes within the Minibus seats although he had said that he had not been asked about other items.  The Appellant was however adamant that he had no knowledge of any illegal enterprise in respect of the actions by Mr Staskanus on 20 September 2008.

27.       The Mercedes Sprinter and the Mercedes Minibus are similar vehicles although there is some height difference between the two vehicles.  There are the same number of seats.  One was used for carrying passengers and the other vehicle was used for carrying a load.  The Mercedes Sprinter registration ECU 256 was registered in 1997 and which the Appellant valued at £9,000.  The Mercedes Minibus registration ECU 182 was registered in 2005 and valued by the Appellant at £20,000.  There was no other documentary evidence relating to the value of the vehicles and no evidence from the Respondents as to the values of the vehicles.

28.       The Appellant had paid a penalty for the importation of two blocks of cigarettes when he was allowed only one eight years ago when he had been working in Germany.  He had paid the penalty. 

29.       The relationship between Mr Staskanus and the Appellant was at an end and Mr Staskanus had gone abroad to Spain. 

30.       The vehicles were confirmed as condemned as forfeit to the Crown by the passage of time under paragraph 5 of Schedule 3 to the Customs and Excise Management Act 1979.  The Respondents did not dispute the Appellant’s right to appeal to the Tribunal in respect of the decision not to restore the Mercedes Sprinter and the Mercedes Minibus to him.  The cases of Gora v Customs and Excise Commissioners 2004 QB 1993, Gascoyne v Customs and Excise Commissioners 2005 Ch 215, Commissioners of Customs and Excise v David Weller 2006 EWHC 237 Ch and Commissioners of Her Majesty’s Revenue and Customs v David Dawkin [2008] EWHC 1972 (Ch) were carefully considered.  It is clear in accordance with Gascoyne v Customs and Excise Commissioners [2005] Ch 215 that because of the rights conferred by the European Convention on Human Rights that the owner of the goods can reopen the question of the liability to forfeiture in the tribunal where the goods have been condemned by the deeming provision in paragraph 5 of Schedule 3 to the Customs and Excise Management Act 1979.  In all the circumstances of this case it is right that the Appellant should be allowed to challenge the validity of the forfeiture and refusal of restoration of the vehicles.

31.       There are similarities between the two events on 20 September 2008 and 4 October 2008 however the Appellant provided considerable further evidence at the appeal hearing.  The Appellant also accepted that he knew that the cigarettes and alcohol were in excess of that allowed for the journey into the United Kingdom on 4 October 2008.  There is jurisdiction in respect of the Appellant having been stopped within the United Kingdom control zone in Coquelles France and not in the United Kingdom and in all the circumstances it was considered that the Respondents had correctly seized the goods and the Mercedes Minibus on 4 October 2008.  It should be noted however that the vehicle had not been altered in a manner designed to conceal goods. 

32.       Although there are similarities between the two incidents on 20 September 2008 and 4 October 2008 they are not considered sufficiently similar.  In his evidence to the Tribunal the Appellant satisfied the burden of proof to prove that the decision made by the Respondents not to restore the Mercedes Sprinter registration ECU 256 was not reasonable. There is reason to dis-apply the Respondents’ policy of not restoring the Mercedes Sprinter registration ECU 256.  It is however accepted that the policy that private vehicles used for the improper importation or transportation of excise goods should not normally be restored and the policy is intended to be robust in order to protect legitimate United Kingdom trade and revenue and prevent illicit trade in excise goods.  Although the value of the Mercedes Minibus registration ECU 182 is relatively high it was considered that the actions of the Respondents in respect of that vehicle were proportionate and the Tribunal was particularly aware of the judgment by Lord Phillips and Lord Justice Judge in Lindsay v Customs and Excise Commissioners (2002) 1 WLR 1766

33.       The Appellant will suffer some hardship as a result of the loss of the Mercedes Minibus but the Appellant did not prove exceptional hardship and had been able to purchase a replacement for one of the vehicles which was a 1996 registration vehicle valued by the Appellant at £6,000. 

34.       Having carefully considered all of the evidence and the case law it was decided that the Respondents should further review the evidence in respect of the above findings of fact relating to the restoration of the Mercedes Sprinter registration ECU 256 seized on 20 September 2008. The Appellant was not a driver and was not present in the vehicle, the seizures were 14 days apart in time and we were satisfied that Mr Staskanus was not driving the vehicle as part of the Appellant’s business.

 

 

MRS FIONAGH GREEN

TRIBUNAL JUDGE

RELEASE DATE: 5 February 2010