[2010] UKFTT 168 (TC)

TC00473

Appeal number TC/2009/13803

EXCISE DUTIES — tobacco seized from traveller on arrival in UK from Spain — legality of seizure challenged — challenge later withdrawn — only contention before tribunal that goods for own use — issue determined against appellant by withdrawal of challenge to seizure —  appeal dismissed

First-tier tribunal

tax

PETER HILTON

Appellant

– and –

                                 THE DIRECTOR OF BORDER REVENUE              Respondent

                            Tribunal :     Judge Colin Bishopp

                                                   Howard Middleton FCA

Sitting in public in Manchester on 9 April 2010

The Appellant in person

Ms Elizabeth McClory, counsel, for the Respondents

© CROWN COPYRIGHT 2010

Decision

1.           This is an appeal by Mr Peter Hilton against the Director’s decision, on review, upholding an earlier decision refusing to restore to him 6 kg of hand-rolling tobacco seized from him when he arrived at Liverpool airport on a flight from Spain, on 22 June 2009.

2.           On 6 July 2009 Mr Hilton wrote to HM Revenue and Customs, who dealt with matters of this kind before the responsibility for them was transferred to the Director, to challenge the legality of the seizure and to ask for restoration of the goods. However, on 3 November 2009, and before the condemnation proceedings in the magistrates’ court, which would have decided the legality issue, had been begun, Mr Hilton withdrew his challenge to the legality of the seizure. In the meantime, his request for restoration was refused and that refusal was upheld in a review which led to a letter to Mr Hilton of 19 August 2009.

3.           A challenge to the legality of the seizure and a request for restoration of seized goods are distinct remedies, with quite different procedures and consequences. A challenge to legality must be made by notice to HMRC or, now, the Director, within one month of the seizure, and if a challenge is made the Director must commence condemnation proceedings in the magistrates’ court or (though this is very rarely done) the High Court: see Customs and Excise Management Act 1979, Sch 3, paras 3 and 6. This tribunal has no part to play in challenges to the legality of seizure. If a challenge is not made within a month, the goods in question are deemed to be forfeit: Sch 3, para 5. Withdrawal of a challenge necessarily has the same effect as the failure to make a challenge in time; it is as if no challenge had ever been made.

4.           Restoration is governed by s 152 of the same Act, which allows the Director to restore goods which have been forfeited or seized, subject to conditions if appropriate. A person aggrieved by a review decision upholding a refusal to restore, or by the terms on which restoration is offered, may appeal to this tribunal: see Finance Act 1994, ss 14 to 16. This tribunal cannot deal with matters which are the province of the magistrates’ court: if the magistrates decide that the goods were lawfully seized, that is the end of the matter. A person aggrieved by a decision of the magistrates may appeal to the Crown Court (Customs and Excise Management Act Sch 3 para 11) but cannot dispute the finding in this tribunal.

5.           Of course, the magistrates have not made a finding in this case, but Mr Hilton did withdraw his challenge to the legality of the seizure and the same consequences flow as if he had never made a challenge. That is, his goods are deemed to be forfeit. The Director (or, at least, HMRC before him) sometimes goes further and says they are deemed to have been imported for a commercial purpose, but that is not right: there is nothing in the legislation to that effect. However, it is clear from the evidence available to us, including the letters written by Mr Hilton, that the reason why the goods were seized was that the officers concerned believed that they had been imported for re-sale, a commercial purpose, and no other reason for seizure has been identified.

6.           In his notice of appeal, his correspondence and before us Mr Hilton  has advanced only one argument, that the goods were imported for his personal use and not for a commercial reason, but that is a basis on which the legality of the seizure may be challenged, and not a basis (once the goods are forfeit) on which we might conclude that the refusal to restore the goods was incorrect. The claim Mr Hilton wishes to make is one he should have made in the condemnation proceedings in the magistrates’ court. He chose to abandon his right to condemnation proceedings, and as we explained at the hearing it is not open to him to raise arguments in this tribunal which he should have made in the court.

7.           The reviewing officer quite rightly left out of account, when considering restoration, an argument which is relevant only to the lawfulness of the seizure, and her decision cannot be faulted. The appeal must therefore be dismissed.

8.           These are full reasons for the decision. Any party dissatisfied by this decision may apply for permission to appeal to the Upper Tribunal. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party.

Colin Bishopp

Tribunal Judge

Date of release: 15 April 2010