First-tier Tribunal (Tax)

[2011] UKFTT 3 (TC)

 

 

 

 

 

 

TC00880

 

 

Appeal number:  TC/2009/13551

 

 

 

Excise Duty – Seized Goods – Beer – Restoration requests – Whether decision proportionate and Reasonable – Yes – Appeal dismissed

 

 

FIRST-TIER TRIBUNAL

TAX CHAMBER

 

 

AUTO POZ TRANS Appellant

 

 

- and -

 

 

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS Respondents

 

 

 

TRIBUNAL:  DR K KHAN (Judge)

 

 

 

Sitting in public in London on 22 November 2010

 

The Appellant was unrepresented

 

Mr R Jones, Counsel, for the Respondents

 

 

© CROWN COPYRIGHT 2010

DECISION

 

1. The matter proceeded in the absence of the Appellant pursuant to Rule 33 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (“the Rules”).  The Tribunal was satisfied that the Appellant had been notified of the hearing and considered that in the interest of justice the appeal should be heard.

 

Introduction

 

2. The disputed decision of the Commissioners of Her Majesty’s Revenue and Customs (“the Respondents”) is contained in a letter dated 27 July 2009.  The letter refused the restoration of 22,860 litres of beer.  The duty on the beer is £16,964.64.  Although the vehicle (owned by a third party) in which the beer was being transported was also seized, this is not the subject of this appeal, having been dealt with separately.

 

The relevant facts

 

3. On 14 February 2009 officers of Her Majesty’s Revenue and Customs (“HMRC”) at Dover Docks stopped a vehicle driven by Mr Nowak.  The vehicle belonged to F H U Woga.  The load was said to be beer.

 

4. The vehicle and the load were seized and further investigations were made.  On 28 February 2009, a formal notice of seizure was issued. 

 

5. The seizure was on the basis that the goods were for a commercial purpose but were not accompanied by the proper documentation for such a load.  The SAAD documents were not in order.  There were three copies of the documentation with the load whereas one copy should have been left with the sender. In any event , the  document appeared to be copies and the signature was not an original.  The document had been used on three occasions prior to the importation.

 

6. The Registered Excise and Dealers and Shippers Form, REDS 98 documents, had also been used before.

 

7. On 18 August 2008, the Appellant had a load seized for use of duplicate documents and was therefore aware that these documents can only be used once.

 

8. The agent shown on the REDS documents, Anglo Overseas, had ceased trading on 16 January 2009.  Administrators had been appointed to manage affairs of that company and they had no knowledge of the load of beers being imported.

 

9. The address for delivery, “Trade Your Business Ltd”, was investigated and found not to exist at the delivery or invoiced address.

 

10. The legality of the seizure had not been challenged before the Magistrates Court and accordingly the goods are forfeit under the Customs and Excise Management Act 1979 (“CEMA”).

 

11. On 4 March 2009, a letter was received from Euro Lex and Partners, on behalf of the Appellant, concerning the seizure of the beer load and denying allegations of using documents on multiple occasions.  The letter was treated by HMRC as a request for restoration.  Information was provided by the Appellant and after review on 11 May 2009 restoration of the beer was refused.

 

12. The Appellant requested a review and this was done on 27 July 2009.  Restoration was refused and it is this decision which is the subject of the present appeal.

 

The Law

 

13. The seizure of the goods in this case was made pursuant to the Customs and Excise Management Act 1979 (“CEMA”), because of breaches of sections 49 and 170B of the Act and Regulation 24 of the Excise Goods (Accompanying Documents) (EGAD) Regulations 2002.

 

14. Regulations 24 gives the power of forfeiture for breach of the regulations.  Regulations 16 and 17 set out the documents required and Regulation 20 places the responsibility upon owners and transporters to ensure those requirements are fulfilled.

 

15. With regard to restoring goods seized, 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.”

 

The legislative authority to consider the process of review is contained in the Finance Act 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.”

 

The powers of the Tribunal are set out in this part of the Finance Act:

 

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 section shall 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 be 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.

 

The Appellant’s case

 

16. In the Notice of Appeal dated 25 August 2009, the Appellant stated as follows:

 

“Auto Poz Trans strongly denies that they had further consignments as stated above, namely on 8 January 2009 and 17 January 2009.  The consigner consistently denies that he used relevant documentation repeatedly.  The Auto Poz Trans Director, Mr Grzegorz Napierala is always present at the consignment and personally signs relevant documents.  In the period 6 January to 14 January he was outside Poland, in Egypt.

 

According to Auto Poz Trans SAAD 01/01/2009p and REDS 98 09/01 were used once and related duties in the sum of £16,964.64 were paid accordingly.  Therefore the consignor acted reasonably and complied with the relevant regulations”.

 

The Respondents’ case

 

17. The Respondents contend that the decision was to refuse restoration of the goods was reasonably arrived at for the following reasons.  They say that the documentations produced were incorrect and not proper.  The paperwork was false and the importer had ceased trading and the delivery address did not exist and  this was a scheme to avoid the payment of duty on the cargo.

 

18. They contend that the repeated use of documentations for the consignment together with discrepancies in the agent and delivery details makes the decision taken reasonable and proportionate in all the circumstances and a proper approach was followed in accordance with the procedure which has been laid down.

 

 

General conclusions

 

19. The Tribunal find that the decision taken was reasonable in the circumstances and the seized goods should not be restored.

 

20. The officer’s decision was based on several factors supported by evidence and in particular repeated use of customs documentation. Proper consideration of relevant facts was undertaken and correct procedure was followed. The facts were thoroughly considered and supportive of the officer’s decision which was proportionate in the circumstances.

 

21. The appeal should therefore be dismissed.

 

22. 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.

 

 

 

DR K KHAN

TRIBUNAL JUDGE

 

RELEASE DATE:1 December 2010