[2010] UKFTT 255 (TC)

TC00549

Appeal numbers TC/2009/15253

EXCISE DUTY — traveller’s exemption — tobacco seized on entry to UK — seizure challenged out of time — restoration refused — only reason advanced for restoration that goods for own use — appeal dismissed

FIRST-TIER TRIBUNAL

TAX

                                                        STUART KEYTE                                        Appellant

- and -

                                              THE UK BORDER AGENCY                        Respondents

                            TRIBUNAL:    Judge Colin Bishopp

Sitting in Manchester on 4 June 2010

Decision reached on consideration of the documents alone, at the parties’ request

© CROWN COPYRIGHT 2010

DECISION

1.           This is the appeal of Mr Stuart Keyte against the respondents’ refusal to restore to him 20.05 kg of hand-rolling tobacco which was seized from him at East Midlands airport. The refusal was upheld by a review decision set out in a letter to Mr Keyte of 29 September 2009. Mr Keyte asked that the appeal be determined without an oral hearing, a course to which the respondents agreed, and I have accordingly made this decision without hearing evidence though I have, of course, carefully considered all the documents made available to me.

2.           Mr Keyte lives in Spain. On 11 March 2009 he arrived in the United Kingdom for the purpose of visiting his father, who lives in Worcestershire. He was stopped by the respondents’ officers at the airport, and his luggage was searched. The tobacco was found within it. There is no suggestion that Mr Keyte endeavoured to conceal the tobacco, or that it had not borne duty in Spain. He told the officers that he had brought it as a present for his father, but the officers did not accept that explanation. They came to the conclusion that the tobacco was to be used for a commercial purpose, that is for re-sale, and they seized it.

3.           Mr Keyte challenged the legality of the seizure, but unfortunately for him he did not do so until 10 June 2009, after the expiry of the one-month time limit for making such a challenge which is imposed by para 3 of Sch 3 to the Customs and Excise Management Act 1979. That time limit cannot be extended, and Mr Keyte’s right to challenge the seizure was irretrievably lost. He did, however, also ask the respondents to exercise the discretion conferred on them by s 152(b) of the same Act and restore the goods to him. The only reason he has advanced to support his request for restoration is that the goods were intended as a gift for his father, and not for re-sale.

4.           The difficulty which he faces in this tribunal is that it is not open to him to advance that contention as a reason for restoration. There can be no doubt, from the evidence I have seen, that the tobacco was seized because of the officers’ conclusion that it had been imported for commercial purposes, and not for some other reason. Mr Keyte’s failure to challenge the seizure in time means that the tobacco is deemed to have been lawfully seized and, there being no other reason for the seizure, it must follow that I must also treat it as having been imported for the purpose of re-sale. Parliament has prescribed a means by which Mr Keyte and others in his position may challenge seizures, and a time limit within which they must do so. I could take account of his claim that the tobacco was intended as a gift only in exceptional circumstances, for example when he has been prevented, for reasons beyond his own control, from challenging the seizure in time; but that is not this case. Mr Keyte’s challenge was simply too late, and that is not an exceptional circumstance. This tribunal may deal only with the reasonableness or otherwise of decisions to refuse restoration of goods and, in this case, I must start from the position that the goods were lawfully seized because Mr Keyte intended to sell them.

5.           For those reasons, the only argument Mr Keyte has advanced is one I must discard. I have nevertheless considered whether the decision reached on review was one at which the respondents could reasonably arrive, that being the test prescribed by s 16 of the Finance Act 1994, the statutory provision which confers jurisdiction on this tribunal. It is in my judgment impossible to see any basis on which I could conclude that it was not. The officer who undertook the review has clearly considered all the available information carefully, has asked himself whether mitigating factors were present and found none (and there are none before me), has applied the law correctly and has come to a decision which is not merely reasonable but inevitable. The appeal must, therefore, be dismissed.

6.           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

Release Date: 7 June 2010