United Kingdom VAT & Duties Tribunals (Customs) Decisions

C00259

CUSTOMS DUTIES – importation into the UK from Thailand of goods sold there at less than home market value – plea of "hardship" in respect of deferral of payment of duties pending appeal and as substantive defence – EU Regulations nos. 2913/92 and 2453/93 – FA 1994, Section 16(3) and Rule 26 – appeal dismissed.

EDINBURGH TRIBUNAL CENTRE

STAR ENTERPRISES PACKAGING LTD Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: (Chairman): Mr Kenneth Mure, QC

(Members): Mr K Pritchard, OBE., BL., WS

Ian M P Condie, CA

Sitting in Edinburgh on Wednesday 4 June 2008

for the Appellant Non-Appearance

for the Respondents Joanna Clark, Shepherd+Wedderburn, LLP

© CROWN COPYRIGHT 2008.

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DECISION

At the Hearing the Respondents were represented by Mrs J Clark, Shepherd+Wedderburn, LLP. The Appellant's representative, Mr Moughal, CA, did not appear. The Proper Officer telephoned his office at about 10.15 am to be advised that he did not intend to appear. We noted that at an earlier hearing also (on 26 March 2008) Mr Moughal had failed to attend. This related to the matter of deferral of payment of duties on grounds of "hardship". On that occasion the Tribunal allowed the Appellant an opportunity to produce evidence in support of the "hardship" claim but no documentation has ever been produced in response. We observe that in recent correspondence with the Respondents (their letter to Mr Moughal of 15 May 2008 per Ann Flynn) they made clear their stance of seeking to have the Appeal dismissed. Mr Moughal gave no forewarning to the Tribunal of his intention not to appear today nor, we were advised, to the Respondents or their Solicitors. In these circumstances the Tribunal decided to proceed to hear the Appeal.

The Appeal relates to liability for Customs Duties totalling £37,798.21 on plastic bags imported from Thailand into the UK. (In essence this is an "anti-dumping" charge on imports into the EEC of items sold for export at less than the exporter's home market's value). The only substantive ground of Appeal set out in the Notice is that of hardship likely to be suffered by the Appellant if the duties were recovered. As indicated supra the Appellant had sought deferral of payment of the duties pending the Appeal and this procedural aspect remained outstanding also.

On behalf of the Respondents Mrs Clark sought that the Appeal be dismissed in the first instance on the procedural aspect of a failure to prove hardship. She referred us to the terms of Section 16(3) FA 1994 and also Rule 26. In the absence of any evidence whatsoever to support "hardship" we acceded to this application. The need to produce such evidence had been emphasised.

Further and in any event Mrs Clark argued that the ground of hardship asserted as a substantive defence was not a competent or relevant ground of appeal and the Appeal fell to be dismissed on that basis too. She referred us to EU Regulations Nos 2913/92 and 2453/93 and to detailed articles therein. In short while exceptionally an appeal might be available in the case of a "special situation" – and that by the Member State remitting the matter to the Commission – such a situation did not arise in the present case and especially so in the absence of any supporting evidence of hardship. Mrs Clark referred us to the decision in Samaco Ltd as being particularly apt in the present case and also to the decision in PSL Freight Ltd.

The Tribunal considered this further argument well-founded. We do not consider particularly in the absence of any supporting evidence, that the assertion of hardship could ever be a competent substantive defence to the Respondent's claim for duties. For that reason also we would dismiss this Appeal.

MR KENNETH MURE, QC

CHAIRMAN

RELEASE: 26 JUNE 2008

EDN/07/7004