United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2003] UKVAT(Excise) E00405, [2003] UKVAT(Excise) E405

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Paul Wojnicki v The Commisioners of Customs and Excise [2003] UKVAT(Excise) E00405 (28 May 2003)

EXCISE DUTIES — importation of 66 kilogrammes of tobacco— forfeiture of goods and ca- affect of Hoverspeed (1) and (2) and Lindsay cases — whether refusal to restore car was reasonable—appeal dismissed

MANCHESTER TRIBUNAL CENTRE

PAUL WOJNICKI

Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE

Respondents

Tribunal: Mr I E Vellins (Chairman)

Mr R Presho

Sitting in public in York on 22 July 2002 and 28 March 2003

The Appellant appeared in person

Mr J Puzey of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2003

DECISION

This is an appeal by Mr Paul Wojnicki, the Appellant, against the decision of the Commissioners confirming a refusal to restore to the Appellant a seized vehicle, a Ford Mondeo car, registration S414 LDP, which was owned by the Appellant and was stopped at the Eastern Docks, Dover on 2 September 2001, in which the Appellant and his wife were travelling and which contained inter alia 66 kgs of hand-rolling tobacco.

A request for restoration of the vehicle was made by the Appellant by letter received on 4 September 2001. The decision to refuse restoration was made on 24 September 2001. A request for a review of that decision was made by letter from the Appellant dated 27 September 2001, and following a review the decision not to restore was confirmed on 30 October 2001.

The appeal was heard at York on 22 July 2002 at which the Appellant appeared in person to represent himself and the Respondents were represented by Mr J Puzey, Counsel. The release of this decision was then held back pending the hearings of Hoverspeed (1) and Hoverspeed (2) in the Court of Appeal. An opportunity was given for the parties to make further submission as to the affect of the Hoverspeed cases on the Appellant's case. This took place at York on 28 March 2003.

The background to this appeal is that the Appellant and his wife Carol were returning to the United Kingdom from France on 2 September 2001, the Appellant driving his Ford Mondeo car. In the vehicle were excise goods which had been imported without payment of duty in the United Kingdom, namely 66 kgs of hand-rolling tobacco, 3.5 litres of spirits, 12 litres of beer and 1.5 litres of wine. The 66 kgs of hand-rolling tobacco was considerably in excess of the guidelines of 1 kg of tobacco for own use per traveller. There was no indication as to why the Appellant was stopped.

The Appellant and his wife were interviewed by officers of the Commissioners on 2 September 2001. The Appellant told an officer that he had been with his wife to France and Belgium on a day trip to obtain tobacco. He had purchased 11 boxes of tobacco. Each box which weighed 6 kgs in tobacco, contained 120 pouches. He stated that the goods were divided between himself and his wife, and that the vehicle belonged to the Appellant who had owned it for two years. He advised the officer that he had not made any recent trips to the European community and had not previously had contact with the Commissioners. He said he was aware of the prohibitions and restrictions. The Appellant was retired and his wife was a machinist. He told the officer that he had saved for a year to purchase the goods.

In answer to further questions at his interview, the Appellant told the officer that the 11 boxes of Golden Virginia tobacco in his vehicle had been purchased in Belgium. He had paid roughly £2,692 for the goods. He said that he did not have a receipt as "they don't give you receipts." He said that no-one had assisted him financially with the purchase and he was not expecting to receive any money or favours in return for the goods. He stated that he smoked about a pouch a day and got roughly 50 to 60 cigarettes from a pouch. He did not know how long he expected the tobacco to last him. He said that he was on long term sick, and was unemployed and that his income was £67 per week sick money and £300 pension per week with a total pension per year of £25,000. He stated that he owned his own house and just had bills to pay. He said that his savings were £5,500 and that he had £2,000 in his current account. He said that he funded the purchase by saving for a year in his bank account. He had previously seen the Customs' notice number one. He was aware of the guidance levels and knew that it was an offence to sell imported excise goods without first paying the duty. He stated that he had not had contact with the Commissioners previously and had last travelled abroad that summer to Ibiza. On that occasion he purchased 1 kg tobacco. He stated that he had imported excise goods before that, and when he travelled he brought in his allowance. He said that this was his third trip in the last 12 months. The Appellant's wife told an officer that the purchase of the 11 boxes of tobacco was between herself and her husband. She said that she had spent £38 on perfume. She said that the goods would last her about a year. She said that she smoked about a pouch a day. She did not know how many cigarettes she would get from a pouch as her husband rolled them. The tobacco purchased was from savings. She said that she spent about £2,000 that day and did not know how much savings were left. She earned about £170 per week and confirmed that the vehicle belonged to her husband who had owned it for about two years. She did not have any smoking materials, cigarette papers or a lighter with her. She stated that she had smoked since she was fourteen and that she had paid about £3 a pouch in Belgium whereas in the United Kingdom it cost about £8. She said it was cheaper in Belgium because there the duty was not paid on it and she was aware that it was illegal to sell it in the United Kingdom. She said that a rep had told her that she could bring back 200 cigarettes from the Canaries and 800 from the Mediterranean. She said that her husband smoked than one pouch a day because he was at home all day and did not work as he was retired. Her money was the only family income and she did not have a mortgage and her bills included electricity, gas and food. She did not know what money was left over for herself after bills. The officer commented that if she smoked a pouch a day that would make 365 pouches a year. He asked her what her husband smoked and she told the officer that her husband smoked 500 pouches easily. The officer totalled that as 865 pouches a year and asked what she would do with the remaining 455 pouches. She replied "We will save them." When asked when she last travelled to buy excise goods she said "We've not got any for more than a year." She stated she had a similar amount then which was at least 865 pouches.

The officer was shown a receipt for the tobacco which had been purchased in Adinkerke for £2,692.80 . After the interviews the officer was not satisfied that the goods were for personal use and he seized the goods and the vehicle because it was used to transport goods liable to forfeiture. The officer noted in his book that the reasons for seizure were that the tobacco was in excess of the minimum indicative levels, that the Appellant and his wife had knowledge of the minimum indicative levels, there was excessive consumption at the rate of one pouch per day, there was no smoking equipment and a clean ashtray in the car, and the Appellant had stated that his last trip was to Ibiza in the summer but his wife had indicated that a similar trip to obtain 865 pouches had been made the previous year.

The Appellant wrote to the Commissioners on 4 September 2001 requesting that his vehicle be restored to him stating that he was totally wrong and regretted everything of which the Commissioners already had the details. On 24 September 2001 the Commissioners wrote to him refusing his request for the restoration of the vehicle. The Appellant then wrote to the Commissioners on 27 September 2001 requesting that the decision not to restore the vehicle be reviewed. In that letter he fully admitted to being in the wrong in bringing in the quantity of tobacco that he had, and he stated that he was fetching in that amount for all the family and thought it would be alright. He stated he was scared of getting the goods and vehicle confiscated when searched so he said it was for himself and his wife. He stated that until that time he thought that it was alright to bring it in for family use but had not mentioned the family implications because he did not want anyone else to get into trouble. He said that he was totally foolish and had learnt his lesson with the loss of the money for the tobacco and requested that the vehicle be restored.

On 30 October 2001 a review officer, Perkins, reviewed the decision not to restore the vehicle, but concluded that the vehicle should not be restored. He concluded that the answers provided by both the Appellant and his wife during interview and subsequent admissions strongly indicated that the goods were not for their own use but for some other commercial purpose. He was of the opinion that the application of the Commissioners' policy treated the Appellant no more harshly or leniently than anyone else in similar circumstances and could find no reason to vary the Commissioners' policy of non-restoration in his case.

Officer Perkins pointed out that when the Appellant and his wife were initially intercepted by the Commissioners he advised the officer that they had 11 boxes of tobacco with 120 pouches in each box, giving a total amount of 66 kgs equivalent to 1,320 pouches which he categorically stated were for himself and his wife. This was also confirmed by his wife. However in his letter dated 27 September 2001 the Appellant had stated that they were bringing in goods for their family which was a total contradiction of their original statements to the officer on the day. Officer Perkins was of the opinion that instead of being truthful to the officer the Appellant and his wife had both deliberately fabricated a story in order to deceive the officer to attempt to avoid the possibility of the goods or vehicle being confiscated.

Officer Perkins commented that during the interview the Appellant had advised the original officer that he had paid roughly £2,692 for the tobacco purchased. This was not a rough estimate but very much an exact figure apart from 80p. However when asked by the officer if he had a receipt the Appellant had replied "No, they don't give you receipts." This was untrue as the Appellant and his wife later produced to the officer a receipt for £2,692.80 from Adinkerke for that purchase.

Officer Perkins commented that the consumption rate that the Appellant notified to the officer was one pouch per day and from that pouch he would get about 50 to 60 cigarettes but he did not know how long the tobacco would last him. The officer commented that a 50g pouch would yield an average of 80 to 100 cigarettes. He commented that if the Appellant consumed at the rate he stated he consumed, it would mean he would smoke 365 pouches a year (approximately 18 kg). His wife's account differed in that she was able to say that the tobacco products would last a year and that he would smoke in a year 500 pouches easily (25 kg). His wife, at her given consumption rate of a pouch a day equating to 365 pouches in a year, left a total of 455 pouches unconsumed and not accounted for after a year. This added significant weight to his opinion that the rates of consumption provided by the Appellant and his wife were not accurate but had been specifically calculated to try and correspond with the quantity imported.

Officer Perkins concluded that he doubted the claimed smoking habits. The Appellant's wife when questioned was not in possession of any smoking paraphernalia such as cigarette papers or a lighter despite her claim to smoke a pouch a day. The ashtray within the vehicle was also searched and found to be clean. This did not appear to be in accordance with the situation of heavy smokers.

The officer also noted a degree of confusion surrounding the details given in respect of previous travel. The Appellant had stated that this was his third trip in twelve months and that he had travelled abroad in the summer to Ibiza where he had purchased 1 kg of tobacco, and each time he travelled he said that he brought in his allowance. When his wife was asked when she last travelled to buy excise goods, she stated "We've not got any for more than a year" and went on to say, "We had a year's worth then." The officer questioned whether that was at least 865 pouches and the Appellant's wife replied "Yes." This purchase just a year previously was obviously significantly in excess of the guidelines and could not just be considered the allowance. The Appellant's omission of this fact emphasised the officer's opinion that there was a definite intent to deceive.

Officer Perkins also noted from commercial records that the Appellant's vehicle had travelled on 30 April 2001 and questioned the Appellant's need to bring in any further tobacco.

The Appellant appealed and in his notice of appeal dated 29 November 2001 stated "I do not dispute anything in relation to the seizing of my goods and never have. I agree fully that it was my own fault for being ignorant and naive. I do not agree that it is fair to take my car as do members of the European Parliament."

Evidence

The Appellant gave evidence at the hearing of the appeal that he accepted that the Commissioners had the full right to take away the tobacco, but that he did not think it was correct for them to take away his vehicle. He stated that he had lost a lot of money with the seizure of the tobacco and had lost even more with the seizure of the car. He said that both his wife and himself had wrongly assumed that he could bring into the United Kingdom as much tobacco as they wanted as long as they paid duty on it abroad in a European country. He said that he previously made one trip in April 2001 to France but only purchased liquor on that occasion. On that occasion when he had purchased the liquor at Eastenders, he said that he received a document explaining where he could purchase cheap tobacco. He then returned to England and discussed with his family the purchase of tobacco. He said that they all collectively put money together and then the Appellant and his wife took the car over to France and to Belgium on 2 September 2001. On their return to the United Kingdom he had told the officer that they had been to France and Belgium to buy tobacco and that his wife had bought some perfume. He said that when he was stopped by the officer they were frightened and confused and he discussed with his wife how they could get out of the situation and he and his wife decided to say that it was just for themselves rather than tell the truth that the tobacco was for the whole family. He said that they did not want to involve anyone else and they were frightened.

The Appellant stated that the officer's notes regarding his previous travel were not in fact correct. He said that he never said to the officer that he had not been abroad previously that year. He said that he told the officers that he had been to Turkey, Ibiza and France in that year, although the officer only wrote down Ibiza. Accordingly he said that he had never said that he had not travelled abroad for over a year. The Appellant also explained that when he had initially told the officer that he did not have a receipt as "They did not give receipts" this was to his knowledge correct at the time because he did not have a receipt. He said that in fact a receipt had been given to his wife but he was unaware of that because at the time when she had been given the receipt he was sorting out the tobacco and when after the interview he had asked his wife about the receipt, she had told him that she had obtained one and he immediately took it from her and gave it to the officer. He also explained that the three previous journeys abroad had been on holiday and had not been on trips to obtain excise goods. He said that he was not a smuggler. He said if he had been a smuggler then he would have used a cheap car costing some £200 such as he had seen in the Commissioners' shed, so that he would only have lost £200 worth of vehicle if he had been caught. He said he would hardly have taken his new car if he had been a smuggler. He said that he was a stupid person but he was not a smuggler. Previously he had only brought back what he had been allowed under guidelines.

The Appellant said that he had previously understood that he could bring back to the United Kingdom whatever he bought in a European country provided he paid the duty there in that country if it was an EC country. He had realised that he could not sell the tobacco but thought that he was allowed to bring it back for himself and his family. He had not told the officer this because he had panicked and did not wish to involve his family. He and his wife had then decided to tell the officer that the tobacco was just for the Appellant and his wife. He said that in fact they had all clubbed together to buy for his family. He said that he was 53 years of age and had been smoking since he was twenty two. He said that he did not smoke now because he had given it up since this incident because of the ordeal.

The Appellant admitted that he had lied to the interviewing officer when he stated that he smoked a pouch of tobacco a day. He said that in fact he did not smoke a pouch a day then but merely smoked 20 roll-up cigarettes a day. He had told the officer an untruth because he did not wish to involve his family and he wanted to make it look like it was all for himself and his wife. He had discussed with his wife that they would both tell the officer that they each smoked a pouch a day. He could not account for the fact that his wife had actually told the officer that he had smoked 500 pouches a year easily rather than 365 a year. He did not know why his wife had not stuck to the story.

The Appellant said at the hearing that he had taken money from his parents and other members of this family to bring back the tobacco. He said that the money had come from the Appellant and his wife, from the Appellant's parents, from his sister, from his brother and brother's wife, and from his wife's sister and her husband.

The Appellant agreed that he had never before the hearing suggested that he was being paid by anyone else to bring back the tobacco. In his letter of 27 September 2001 he had said "We were fetching it in for all the family", meaning by this that it was purchased from contributions from all the family for them. He had not told the interviewing officer about this. He accepted that his letter had not indicated where the money had come from. He could not explain why at her interview his wife had told the officer that they had both brought in a year's supply of tobacco the year beforehand. On previous occasions they had not the money to buy any large quantities. He said that his wife on this occasion had collected the money together from various members of the family, and the Appellant and his wife had contributed £800 towards the cost of the tobacco. He could not say how much each other member of the family had contributed as he said that his wife had collected the money. He said there was no evidence of smoking in the car because they did not smoke in the vehicle. He admitted that when he had told the officer that he had savings of £7,500 he had cooked this up at the time as he did not wish to involve the family. He accepted that he told a pack of lies to the officer. He also admitted that when he told the officer that he could roll 50 to 60 cigarettes from a pouch he was lying and that in fact he used to roll 80 or 90 cigarettes from a pouch. He said that he had never sold tobacco to anyone other than his family. His family had given him money to buy the tobacco and he thought that it was alright if it was a member of the family and "It was not like selling in my mind." He said that he had purchased the vehicle for £8,000 at an auction second-hand when it was six months old. It had been an ex-rental model. He said his father had loaned him £6,000 to purchase the vehicle and the rest was from his own monies. He said that even after two years he could have sold it for the same price of £8,000. After the seizure of the vehicle some 3 to 4 months later in November 2001 he had bought another vehicle at a sale. In the meantime he had used his wife's Ford Fiesta car. He had retired in 1996 from his previous occupation as a miner and confirmed that his various pensions were worth £25,000 per annum.

On behalf of the Commissioners evidence was produced at the hearing of the appeal in the form of a witness statement from Officer Perkins confirming her review of the decision, and the documents referred to in that review. A witness statement from a Mr Rowland was produced indicating the records of P&O Stenna Line that the Appellant had booked and driven his Ford Mondeo vehicle from Dover to Calais and back on 30 April 2001 and again on 2 September 2001 accompanied by his wife. A further witness statement was produced on behalf of the Respondents from Mr Gerry Dolan in which Mr Dolan explained that following huge losses of revenue as a result of tobacco smuggling and alcohol smuggling, on 13 July 2000 the policy of the Commissioners was introduced which was the policy of the Commissioners at the date of the decisions, namely that vehicles would be seized and not restored for the first attempt they were detected being used in smuggling. This "get tough" policy was part of a clampdown on smugglers and had been widely publicised. Where vehicles were seized and not restored individual applications for restoration were considered on their merits and officers bore in mind the need for proportionality. There was nothing in the Commissioners evidence to indicate why the officer had stopped the Appellant's vehicle.

The Relevant Law

Section 3 of the Excise Duties (Personal Reliefs) Order 1992 states that:

"Subject to the provision of this Order a Community traveller entering the United Kingdom shall be relieved from payment of any duty of excise on excise goods obtained for his own use in cross-border shopping of which he has transported."

"Own use" is defined in the Order as:

"Own use includes use as a personal gift provided that if the person making the gift receives in consequence any money or money's worth (including any reimbursement of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order."

Section 5(3) of the Order establishes that paragraphs (3A) and (3C) apply to a person who has in his possession or control any excise goods afforded relief under this Order in excess of any of the quantities shown in the Schedule to this Order."

Paragraph 3A states that the Commissioners may require a person to whom this paragraph applies to satisfy them that the excise goods afforded relief under this Order are not being held or used for a commercial purpose.

Paragraph 3B provides that where a person fails to satisfy the Commissioners that the excise goods in question are not being held or used for a commercial purpose the condition imposed . . . be treated as not being complied with.

The schedule specified at the time in connection with tobacco products, 800 cigarettes, 400 cigarillos, 200 cigars and 1kg of tobacco products, as quantities above which a traveller may be required to satisfy the Commissioners in this way. The tobacco figure has since the hearing been increased to 3 kg under Amendment Regulations 2002 No. 2692.

Paragraph 5(1) of the Order states that if this condition is not met "those goods shall, without prejudice to article 6, be liable to forfeiture."

Paragraph 5(2) sets out various factors where regard shall be taken in determining whether or not the condition in paragraph 5(1) has been complied with.

Section 141(1) of the Customs and Excise Management Act 1979 ("CEMA") provides that:

"(a) any . . . vehicle . . . which has been used for the carriage … of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and

(b) any other thing mixed, packed or found with a thing so liable

shall also be liable to forfeiture."

Section 152 of the 1979 Act provides that:

"The Commissioners may, as they see fit - … (b) restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under [the Customs and Excise Act.]"

Section 15 of the Finance Act 1994 empowers the Commissioners to confirm and vary or withdraw a reviewable decision on behalf of the Commissioners.

The basis of the tribunal's jurisdiction is set out in section 16 of the Finance Act 1994, subsection (4) of which provides that:

"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, …"

The jurisdiction of the tribunal was considered by the Court of Appeal in the case of Lindsay v Commissioners of Customs and Excise [2002] EWCA C1V 267. Lord Phillips stated at paragraph 40:

"… the principle issue before the tribunal, was whether the commissioners' decision not to restore Mr Lindsay's car to him was one that they 'could not reasonably have arrived at' within the meaning of those words in section 16(4) of the 1994 Act. Since the coming into force of the Human Rights Act 1998, there can be no doubt that if the commissioners are to arrive reasonably at a decision, their decision must comply with the Convention for the Protection of Human Rights and Fundamental Freedom 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the convention). Quite apart from this, the commissioners will not arrive reasonably at a decision if they take into account irrelevant matters, or fail to take into account all relevant matters – (see) Customs and Excise Comrs v J H Corbitt (Numismatists) Ltd [1980] STC 231 at 239, [1981] AC22 at
60 per Lord Lane."

In the Lindsay case the Court of Appeal considered the policy of the Commissioners as explained in a witness statement of Mr Gerry Dolan, the same policy being adopted by the commissioners in the current appeal.

Lord Phillips considered the commissioners' policy at paragraphs 63 to 65 inclusive. He concluded as follows:

"63 … I would not have been prepared to condemn the Commissioners' policy had it been one that was applied to those who were using their cars for commercial smuggling, giving that phrase the meaning that it naturally bears of smuggling goods in order to sell them at a profit. Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that if they are caught their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose those vehicles. Nor does it seem to me that in such circumstances, the value of the car used need to be taken into consideration. Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always, of course, be given due consideration.

64 The commissioners' policy does not, however, draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. Of course even in such a case the scale of importation, or other circumstances, may be such as to justify forfeiture of the car. But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a 'first offence', whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture. There is open to the commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.

65 I do not think that it would be impractical to distinguish between the truly commercial smuggler and others. The current regulations shift the burden to the driver of showing that he does not hold the goods "for commercial purposes" when these exceed the quantity in the Schedule. In a case such as the present the driver importing for family or friends should be in a position to demonstrate that this is a case if called upon to do so (see the comments of Lord Woolf CJ in Goldsmith v [Customs and Excise 2001] 1WLR 1673 at pages 1679-1680)."

The case of Hoverspeed (2) in the Court of Appeal [2002] EWCA Cir 2002 clarified that the burden of proof as to commerciality is on the Commissioners and not on the Appellant.

That case also decided that the seizure was not to be regarded as axiomatically invalid merely because it occurred as a result of a check which was invalid.

The case also decided that if an individual acquires products for a person other than his own use such products are to be regarded as held for commercial purposes.

Conclusions

The basis of our jurisdiction as set out in Section 16 of the Finance Act 1994 subsection (4) is that our powers are confined to a power to decide whether we are satisfied that the Commissioners could not reasonably have arrived at that review decision not to restore the Appellant's vehicle. We have to ask whether the Commissioners reached a decision which no reasonable Commissioners could have taken and whether they took into account all relevant considerations and discarded all non-relevant considerations. We have to decide if there has been an error in law.

We find that the vehicle and excise goods were liable to forfeiture and seizure in accordance with the legislation. The Appellant has challenged the decision of the Commissioners not to exercise its discretion to restore the vehicle by means of a request for a review and subsequently an appeal to the tribunal. We have to decide whether that decision was reasonably arrived at or whether there has been an error in law.

The decision was made before the Hoverspeed (2) Appeal and on the assumption by the Respondents that the burden of proof as to commerciality was on the Appellant.

On September 2001 when the Appellant was stopped while driving back to the United Kingdom from France to Dover his Ford Mondeo car, with his wife as a passenger they had in his vehicle 66 kgs of hand-rolling tobacco. This was hugely in excess of the guidance levels of 1 kg per person for such persons own use. On his own admission the Appellant and his wife decided to lie to the officers and to claim to the officers that the 66 kgs of hand-rolling tobacco were intended for the Appellant and his wife to smoke over the course of one year. In trying to justify to the officer that their smoking habits would have fuelled such a large amount of tobacco, it was not surprising that the Appellant and his wife were in difficulties in attempting to explain to the officer such smoking habits, and the versions given by each of them contradicted each other. In those circumstances it was not surprising that the officer did not believe the accounts of the Appellant and his wife. The Appellant's wife was not in possession of any smoking paraphernalia and the ashtray of the vehicle was clean. The Appellant's wife also appeared to indicate that there had been a previous purchase a year previously of at least 865 pouches of tobacco. The Appellant initially stuck to his story but later when writing to the Commissioners on 27 September 2001 the Appellant then stated "We were fetching it in for all the family." There was no indication in that letter that his family were contributing towards the cost of the tobacco. Finally at the hearing of the appeal, the Appellant stated that the tobacco had been purchased from a pool of money to which ten members of the family including himself and his wife had contributed and that he was purchasing tobacco for the use of all the members of his family. He claimed that he was not intending to sell tobacco for a profit.

We do not find the Appellant to be a credible witness. We did not believe the evidence that he gave at the hearing. The Appellant admitted that he and his wife told lies to the officer when he was entering the United Kingdom. We take the view that he has continued to tell lies in order to attempt to obtain the return of his vehicle. We did not consider it credible that ten members of his family would all contribute towards the purchase of rolling tobacco of only one brand which they would all smoke. We did not believe that they all smoked rolling tobacco of the same brand nor that they requested the Appellant and his wife to purchase such tobacco with the aid of their funds. The Appellant now no longer smokes although he claimed that he had previously smoked for some thirty years. We doubt whether the Appellant his wife were smokers of rolling tobacco. The Appellant could not explain why his wife had admitted to the interviewing officer that they had previously made a large scale purchase of tobacco when he said that such a purchase had not in fact been made.

We have concluded on all the evidence that we are satisfied that the Appellant was a commercial smuggler who was attempting to bring to the United Kingdom a considerable amount of rolling tobacco, some 66 kgs, with the intention of selling it for profit. He lied to the officer and when giving evidence came over as a poor witness whose credibility was low. We did not believe his evidence that the tobacco was for the own use for himself, his wife and eight other members of their family. However, even on the Appellant's own final story he and his wife were not purchasing the tobacco for their "own use", but for the use of their families who had paid money to purchase the tobacco. That in itself made the use commercial. We are satisfied on all the evidence that the Respondents have proved that the importation was commercial and with the intention of the tobacco being sold for profit. In accordance with the Lindsay test the policy of the Commissioners not to take into account the value of the vehicle was not unreasonable. However even if we had not found that the Appellant was a commercial smuggler, we consider that the value of the Appellant's vehicle was not disproportionate to the amount of duty evaded and was not disproportionate in all the circumstances. The Appellant claimed that he had bought the vehicle two years previously for £8,000 but that it was still worth the same amount. We doubt this. The amount of duty evaded was more than the value of the vehicle, even on the Appellant's own valuation. We further find that there was not undue hardship to the Appellant caused by the seizure of the vehicle. He did not work, his wife had a vehicle of her own, and he was able to purchase another vehicle of his own within a short period of time. We consider that there were no exceptional circumstances in the case of the Appellant which would justify the Commissioners restoring the vehicle to him.

We find that the vehicle and excise goods were liable to seizure and forfeiture in accordance with the legislation. We find that the Commissioners decision not to restore the vehicle was in accordance with that legislation. The Commissioners have reviewed the decision and the decision has been upheld. We find that the decision was reasonably arrived at. The Commissioners have further reviewed the decision and concluded that the vehicle should not be restored to the Appellant. We find that the Commissioners have not acted in a way that no reasonable panel of Commissioners could have acted, that they have not taken into account irrelevant matters or disregarded something to which they should have given weight and we further find that they have made no error in law. We find that they have given effect to the Appellant's rights under the European Convention on Human Rights. We further find that even if the Commissioners had made their decision on the basis of the principles decided in the Hoverspeed (2) appeal and on the basis that the burden of proof had been on the Commissioners and not on the Appellant as to commerciality, and taken these additional factors into account, the decision would inevitably have been the same.

The appeal of the Appellant is dismissed. The Commissioners did not apply for costs and we make no order as to costs.

I E VELLINS

CHAIRMAN

RELEASE DATE:

MAN/01/8347