First-tier Tribunal (Tax)

[2010] UKFTT 447 (TC)

TC00712

Appeal number:  LON/2009/8051

EXCISE – Restoration refusal – Tobacco and cigarettes – Goods condemned as forfeit by Magistrates – Refusal to restore reasonable – Appeal dismissed

FIRST-TIER TRIBUNAL

TAX CHAMBER

MANUEL SORIA HERNANDEZ Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS (Excise) Respondents

TRIBUNAL:  JUDGE THEODORE WALLACE

 SONIA GABLE

Sitting in public in London on 6 September 2010

The Appellant did not appear

Rupert Jones, counsel, instructed by the Solicitor, for the Respondents

© CROWN COPYRIGHT 2010

DECISION

1. This appeal was against a review decision on 17 February 2009 refusing to restore 3200 cigarettes and 3.6 kilogrammes of tobacco seized at Stansted Airport on 20 November 2008.

2. The goods were condemned as forfeit by Harlow Magistrates Court on 20 November 2009 after a hearing extending over two days.

3. Today’s hearing was notified to the Appellant on 12 April 2010, the Appellant having asked to avoid June and July.

4. On 31 August the Tribunal received a letter stating that the bilingual Spanish national who was to represent him could not travel from Spain on that day; the Appellant wrote that due to his extremely limited English he had to employ interpreters.  Financially as a pensioner he did not have the means to continue fighting this case.  He asked for a postponement.

5. The Tribunal replied on 2 September that a Spanish interpreter would be provided for the appeal on 6 September.  That was posted first class.  The interpreter attended.

6. The Appellant did not attend but sent a fax from Hythe at 1012 on 6 September.  He said that he did not receive the letter until Saturday (the appeal being on Monday).  He thanked the Tribunal for the offer of an interpreter but said that he had been unable yesterday to find anyone to help him prepare for the hearing.  He wrote that his attendance today would not be valid.

7. The Tribunal had not asked him to find an interpreter. The Tribunal was satisfied that the Appellant had been notified of the hearing and considered that it was in the interests of justice to proceed under Rule 33.

8. The powers of the Tribunal in this appeal are set out in section 16(4) of the Finance Act 1994 and are confined to cases where the Tribunal is satisfied that the review decision was unreasonable.

9. It is well established that the Tribunal does not have jurisdiction to revisit a decision of a Magistrates C ourt that the goods were liable to seizure.  If the Appellant wished to challenge the decision of Harlow Magistrates Court he should have appealed against it; he did not do so.  An appeal to the Tribunal is not an alternative to an appeal to the Crown Court.

10. The starting point for these proceedings is the Order of the Magistrates that the goods be condemned as forfeit.  Unusually the Tribunal was provided with the Magistrates’ reasons which stated,

“These goods were not for personal use but for a commercial purpose.”

11. The only way in which the Appellant could succeed before the Tribunal was to satisfy the Tribunal that, notwithstanding the decision of the Magistrates that the goods were not for personal use, the refusal to restore was unreasonable.

12. We considered the contemporary note taken by the Customs officer of the interview with the Appellant on the night of the seizure.

13. Although the Appellant complained in correspondence that he was denied an interpreter there was no suggestion in the correspondence that the record of the interview was incorrect.  We observe that the letters signed by the Appellant which stated that they were translated on his behalf were articulate and well expressed.

14. The review officer, Mark Collins, gave evidence that he relied on the note of the interview.  Initially the Appellant declared 600 grammes of tobacco in a holdall and in response to three differently worded questions said that he had no more.  When the officer looked at his other bag he found a further 3kg (60 pouches) of tobacco and 3,200 cigarettes. The Appellant first said that he was travelling alone but then admitted that he was travelling with a lady.  He stated that his last trip to Spain was in October, but Ryanair records showed him as having travelled on 14 and 15 November to Santander; Ryanair record showed him as having made 18 trips in 2008.

15. Mr Collins said that neither in the interview nor in subsequent correspondence had the Appellant suggested that the goods were to be supplied to someone else on a not for profit basis.  Even if that had been the case, the failure to say so at the outset and the untrue answers given would he considered have been aggravating circumstances leading to a refusal to restore.  He also pointed to the large number of trips in 2008.

16. Although the Appellant’s English may be poor, we are satisfied that the substance of the interview notes which were signed by him at the time were correct.  If he had twice been refused an interpreter and did not understand what he was being asked, we find it incredible that he agreed to sign the notes.

17. In our judgment there is no basis on which the Tribunal could properly find the decision to refuse restoration to have been unreasonable.  We conclude that not only was it not unreasonable but it was eminently reasonable.

18. The appeal is dismissed.

19. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.  The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.

THEODORE WALLACE

TRIBUNAL JUDGE

RELEASE DATE: 22 September 2010