United Kingdom VAT & Duties Tribunals (Customs) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Customs/2009/C00271.html
Cite as: [2009] UKVAT(Customs) C00271, [2009] UKVAT(Customs) C271

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Mohamed Hersi v Revenue & Customs [2009] UKVAT(Customs) C00271 (27 February 2009)

C00271

Customs Duty - Seizure of a jar of honey, posted from a relative in Australia to the Appellant - whether the Commissioners were unreasonable in their decision not to return the honey to the Appellant when the jar of honey weighed 1.8Kg., and the maximum weight for postal importations of honey for own consumption was 1 Kg. - Appeal dismissed

LONDON TRIBUNAL CENTRE

MOHAMED HERSI Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: HOWARD M NOWLAN (Chairman)

Sitting in public in London on 19 February 2009

The Appellant in person

Rupert Jones, counsel, for the Respondents

© CROWN COPYRIGHT 2009

DECISION

The facts and the law

In this case, the Appellant's uncle, who lived in Australia, had posted a large 1.8Kg. tub of honey to the Appellant in England. The honey was plainly sent as a gift, and it appeared that the uncle thought that the honey might serve as an alternative treatment for the Appellant's hepatitis B condition.

The postal packet was opened by Customs officers of HMRC, and it was seized. This was because, whilst pots of honey weighing no more than 1.0 Kg were exempt from seizure if certain other conditions were satisfied (as they were in this case), that exemption did contain the maximum size limit, and the pot in the present case was nearly twice the maximum size.

The Regulations under which the honey was seized were the Products of Animal Origin (Third Country Imports) (England) Regulations 2006 (No 2841). It appeared that the general purpose of these Regulations was to prevent dangerous or diseased products from entering England. Consistently there are provisions for veterinary checks to be made of imported animal products. Honey is one of the products in relation to which the normal import restrictions were disapplied, however, in relation to "personal imports in the personal luggage of a traveller intended for personal consumption" and to products "sent by post or carrier (otherwise than by way of trade or as a trade sample) and addressed to a private individual in England, if they are intended for his personal consumption", and if four further conditions were met. Of those four, three were met, and the one that was not satisfied was the one that required the weight of the imported product not to exceed 1 Kg. The implicit thinking behind the exemption from the normal application of the restrictions was that honey (and other relevant products covered by the exemption) was not particularly dangerous or particularly likely to contaminate local products; it would be impractical to apply veterinary checks in relation to small quantities of personally imported product, and thus, provided the imported products fell below a "de minimis" threshold, they could be imported without tests or complications.

When the Appellant was notified that the parcel addressed to him had been seized, he immediately e-mailed the relevant department of HMRC involved with postal seizures (on 17 March 2008) and explained that the honey was a present from his uncle in Australia; that it was only intended for consumption by him or his family; that neither he nor his uncle had known of the weight limit for personal postal imports of honey, and that he would see that the limit was never infringed in future. Naturally he asked for the honey to be returned to him.

The Appellant received an instant reply in a letter also dated 17 March. This letter was not a particularly satisfactory one. Initially it explained that:-

the officer in question would not and could not consider the legality of the seizure, because that could only be challenged in the Magistrates' Court;

the Commissioners had some discretion to return seized goods, with "each case [being] examined on its merits to determine whether or not restoration [might] be offered exceptionally"; and

that in considering restoration, the officer would look at all of the circumstances surrounding the seizure.

The letter then went on to indicate that "importers must make themselves aware of the guidelines when bringing goods into the UK", which was not a terribly relevant remark to make to someone who had received an unsolicited present of which he was previously totally unaware. The letter then informed the Appellant that in this case the goods had already been destroyed, so that they could not be restored. What the officer could however do, was to consider the issue of whether the goods would have been restored had they not been destroyed, whereupon if the conclusion was that they would have been restored, appropriate compensation would then be paid. The letter then concluded with the statement that "On this occasion the prohibited Products of Animal Origin would not have been restored".

The Appellant then asked for this decision to be reviewed. In response to this he was told that there had not been time to undertake the review in the 45-day period in which the review should be undertaken, and that the consequence of this was that the original decision was deemed to have been upheld. Beyond the fact that this was not terribly satisfactory, the letter in which the Appellant was told that the original decision had been deemed to be upheld merely said that the original decision (i.e. that of 17 March) "was "deemed on 12 May 2008". Although the letter went on to explain that this meant that the decision had been upheld, and that the Appellant had 30 days in which to appeal to the VAT and Duties Tribunal, the use of very curious internal terminology, particularly in the context of explaining such an unsatisfactory state of affairs, seemed rather regrettable.

Whilst the following letter was not a review, it seems that the officer who should have conducted the review for which there was inadequate time decided to "conduct a reconsideration of the original decision", ostensibly for the purpose of assisting the Appellant in considering whether to appeal to the Tribunal. The letter in which this "reconsideration" was summarised was considerably fuller in that it explained the purpose behind the import prohibitions. It also accepted that neither the sender nor the recipient of the postal packet in fact knew that the size of the pot of honey exceeded the permitted size and that a 1 Kg. pot of honey could have been legally imported. It also accepted that the honey was being sent for personal and not commercial use. It then repeated the points about the discretion of the Commissioners to restore goods, and the feature that the officer could not be considering the legality of the seizure as such. It added that the officer should "note that such discretion (i.e. to restore goods) should not be used to circumvent the provisions of legislation designed to protect the Community". On the discretion issue, the letter then concluded that "the relevant legislation sets out this distinction in the weight of the goods, and prescribes how HMRC must respond when the relevant conditions of importation are not met. I must therefore conclude that in this case, given the nature of the goods and the disease risks involved, it would be inappropriate to restore the seized items."

Whilst the letter just quoted was referring to restoring or not restoring the goods, it was still assumed when this letter was written that the honey had been destroyed immediately, and thus the letter was talking about whether the honey would have been restored, had it not been destroyed. In actual fact by the time of the hearing before me, it had eventually been ascertained that the honey had not been destroyed at all but that it was in a deep freeze.

The contentions on behalf of the Appellant

The Appellant contended that:

• the breach of the Regulations was entirely innocent, since neither the Appellant or his uncle knew of the restrictions on importation or their disapplication to honey weighing les 1Kg. or less;

• the feature that up to 1 Kg. of honey could be imported for personal consumption without the honey being inspected indicated that the goods could not be dangerous, and that 1.8 Kg. of honey could hardly be more dangerous than 1.0 Kg.;

• the Review was not conducted in the due 45-day period, and that the Reviewing officer (i.e. the officer undertaking "the reconsideration") was anyway not independent;

• the initial decision, and the later reconsideration, were all based on the ignorant misapprehension that the honey had been destroyed, when it actually turned out that it was being held in a deep freeze, pending the outcome of this decision; and

• the original decision did not clearly explain why the Officer had not exercised the discretionary power to permit restoration in Section 152 Customs and Excise Management Act 1979.

My decision

It is unnecessary to summarise the contentions on behalf of the Respondents.

My jurisdiction is in practice confined, by section 16(4) Finance Act 1994, to a power to order a re-review, should I consider that the Officer who made the original decision could not reasonably have refused to exercise her discretion to restore the goods to the Appellant.

The Appellant was clearly most indignant at the seizure of his honey, and at what he saw (not unrealistically) to be a number of failures on the part of the Commissioners in dealing with this case. I also confess to having found it somewhat bewildering that a case, that generated a weight of paper very significantly in excess of the weight of the honey, was occasioned simply by the personal importation of one quantity of honey being unproblematic, whilst importation of a larger quantity of the same honey involved the destruction of the honey. It indeed seemed odd, if honey was considered sufficiently safe for 1 Kg to be imported for personal use without any checks, for larger quantities, otherwise meeting the same conditions, to have to be destroyed.

I certainly accept that the ignorance of the parties as to the restrictions is, and must obviously be, irrelevant. The restrictions are designed to protect UK and European produce against infection and disease, and this purpose means that, if prohibited goods are brought to the UK without undergoing the required checks (which are not feasible for personal importations), ignorance of the parties is completely irrelevant to the infection risks underlying the Regulations.

I accept that no technical mistake was made by the Officers in the review process. Although it is unfortunate that a formal review was not conducted, there is a procedure for then deeming the original decision to have been confirmed. The fact that there was no technical review means that the claim that the reviewing Officer was not "independent" is irrelevant, but in any event it is clear that the reviews do have to be undertaken by another Officer of HMRC, and claimants and Appellants must accept that. In any event they can appeal to this independent Tribunal, albeit that the powers of this Tribunal are very limited.

It is decidedly embarrassing for the Commissioners that their decision and the reconsideration, which were both meant to be considering all the circumstances, failed to appreciate whether the honey had or had not been destroyed. It is difficult to escape the inference that the officers would be far more likely to assert that the honey would not have been restored to the owner if it had been destroyed than if it was appreciated that it was simply safely stored in a deep freeze. Nevertheless the officers both asserted that they considered that the honey would not have been restored, and I cannot see that their misapprehension as to the facts greatly affects the ground on which I will actually decide this case.

Much the most compelling argument by the Appellant is that the original Decision letter merely gave a conclusion, namely that the discretion to restore the honey to the owner would not have been exercised had the honey not been destroyed, and it gave no reasons. Indeed there is every ground for suspicion that the letter of 17 March was written in accordance with a formal script, correctly referring to the distinction between challenging the legality of the seizure and the discretion to restore. The letter then concluded with a bald refusal to confirm that the honey would have been restored had it not been destroyed, and there is every indication that this conclusion was added without very much thought at all to the circumstances. Whilst I do consider that this feature was unsatisfactory the question for me is the much more difficult question of whether I can say that the decision not to restore (whether explained or not explained) was unreasonable. I consider that I cannot reach that conclusion, because nothing has been drawn to my attention, and nothing has occurred to me, that can be said to make the decision not to restore "unreasonable".

In a sense the only really odd thing about this case is the inherent feature of the Regulation that 1 Kg. of honey can be freely imported for personal purposes, whereas 1.8 Kg. must be destroyed. It seems odd that if the first quantity is safe, the second is deemed not to be. This however is a fundamental feature of the Regulation, and on the assumption that honey is sufficiently safe (unlike animal feed that may spread BSE) that a small quantity can be imported, then if a limit must be drawn somewhere, the Regulations must set that limit, and it must generally be followed. I can follow that if the quantity imported (say 1.05 Kg.) only fractionally exceeded the limit, that might be a ground on which the officers might sensibly decide to restore the excessive quantity. That point apart, however, it actually seems to me that the claim that the honey should have been restored because the weight was only about double the permitted amount is a very bad ground on which to contend that restoration should have been granted; or rather a very bad ground on which to suggest to me that I should deem a decision not to restore to be unreasonable. A ground on which restoration might have been granted, it seems to me, would be the case where it was proved that the brand of honey in question was one that had been tested by the government vets for the purposes of commercial importation and found to pass all the tests with flying colours. For those facts would render the general purpose behind the low weight condition normally relevant for personal imports of honey, irrelevant in relation to the particular honey imported. Offices might sensibly permit restoration in these circumstances. Another possible case would be the one where the owner of the honey had a vital medical need for it, there being insufficient time to acquire other smaller quantities, for then again the officers might conclude that the urgency of the situation would justify making an exception. I do not say that even in these circumstances a decision "not to restore" would necessarily be "unreasonable". I merely say that such factors might sensibly justify restoration, and that a total failure to consider them might point to a decision having been unreasonable.

The mere fact that the honey was of roughly double the permitted quantity, so that it plainly breached the size limitation, is not a reason to disapply the rule, because that would involve distorting and effectively doubling the limit for no special reason, rather than identifying a genuinely special circumstance that cogently explained the departure from the basic rule.

I thus conclude that even though the officer who made the decision on 17 March gave no reason for refusing to exercise the discretion to restore, and even though I am not entirely clear that that officer even turned her mind to the circumstances that might or might not justify restoration, I cannot say that refusing restoration was unreasonable. This is because at no time has anyone suggested to me, or have I thought of, any reason that would have made it compellingly sensible to conclude that restoration would be justified in the special circumstances of this case. That being the case, I cannot say that the decision, even if unexplained, not to restore, was unreasonable. To say that I would have to conclude that the officer had failed to pay due regard to whatever circumstance would have rendered restoration "compellingly sensible" and I repeat that I have identified no such circumstance.

I am not oblivious of course to the feature that the Appellant's uncle could, were he so minded, make a number of unconnected gifts of 1 Kg. of honey to the Appellant, but that does not change my conclusion.

HOWARD M NOWLAN

CHAIRMAN

RELEASED: 27 February 2009

LON 2008/8051