United Kingdom VAT & Duties Tribunals (Excise) Decisions

Hambleton v Customs and Excise [2003] UKVAT(Excise) E00409 (06 May 2003)

RESTORATION OF VEHICLE —Appellant jailed for two years for fraudulently evading duty s.170 CMA 1979 —Commissioners acted reasonably —appeal dismissed

MANCHESTER TRIBUNAL CENTRE

JOHN HAMBLETON Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr David S. Porter LLB(Chairman)

Mrs G Pratt

Sitting in public in Manchester on the 21st March, 2003

The Appellant did not attend and was not represented

Mr D Mohyuddin of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2003


 


DECISION
1. Appeal against forfeiture of Vauxhall Frontera L515 CFV and Ford Transit Van F71 KGG forfeited by the Respondent and retained by a review letter of the 21^st May, 2001 which was out of time so that there was a deemed review.
2. Mr D Mohyuddin of Counsel appearing for the Respondents, produced a bundle of documents and no-one appearing for the Appellant this tribunal agreed to proceed under Rule 26(2) of the Value Added Tax Tribunals Rules 1986 as amended.

The Facts

3. On the 11^th January 2001, three people including the Appellant were arrested at Snape Road, Macclesfield by officers of Macclesfield Police on suspicion of theft. The officers had observed a white Ford Transit Van registration F71 KGG which belonged to the Appellant backed up to an HGV with 4 persons moving parcels from the HGV to the Transit Van.
4. A Vauxhall Frontera registration L515 CFV also belonging to the Appellant was at the scene and contained 400 cigarettes, 250g of tobacco and £50,000 in cash.
5. The Appellant and two other persons were arrested and interviewed under caution at Wilmslow Police Station by an officer of Customs & Excise. It appeared that the HGV had been loaded in Italy with a legitimate load of chocolate and in Belgium with approximately 200,000 cigarettes and 200 kg. of tobacco duty paid in Belgium. The Appellant stated that he had loaded the Transit Van with the cigarettes and tobacco from the HGV. He was aware that the goods had been smuggled into the UK and was also aware that it was an offence to sell these goods on.
6. The cash in the Vauxhall Frontera was to be used to pay for the cigarettes and tobacco. £8,000 of the cash belonged to the Appellant and he would sell the cigarettes on for £2 per pack and tobacco at £3 per pack.
7. The Appellant had previously bought excise goods which had been unlawfully imported to sell on.
8. Search of the Appellant's house at 196 Brocklehurst Avenue, Macclesfield disclosed 6,000 cigarettes and 2.15 kg. of tobacco.
9. Details of the interview at the time of the arrest are contained in the Respondent's bundle.
10. On the 1^st of May, 2001 the Appellant was convicted of two counts of "Being knowingly concerned in fraudulently evading duty chargeable on goods, contrary to s.170(2) of the Customs and Excise Management Act 1979" and was sentenced to two years imprisonment in connection with the above matters.

The Law

11. Section 170 CEMA 1979 provides:

"(1) …if any person knowingly acquires possession of …goods which are chargeable with a duty which has not been paid … and does so with intent to defraud Her Majesty of any duty payable … he shall be guilty of an offence …

(6) Where any person is guilty of an offence under this section, the goods in respect of which the offence has been committed shall be liable to forfeiture"

12. Section 141 CEMA 1979 further provides

"(1) "…where any thing has become liable to forfeiture under the Customs and Excise Act-

(a) any ship, aircraft, vehicle … which has been used for the carriage, handling, deposit, of the thing so liable to forfeiture …and

(b) …any other thing mixed, packed or found with the thing so liable, shall also be liable to forfeiture."

13. Messrs. Cuttle & Co., Solicitors, wrote to the office of Customs & Excise on the 13^th March, 2001 appealing against the proposal of Customs & Excise to forfeit the 400 Silk Cut cigarettes and the 250g. of hand rolling tobacco.
14. On the 21^st May, 2001, Jayne Potts, a Reviewing Officer, purported to review the application including the application for the restoration of the Ford Transit vehicle F71K KGG and the Vauxhall Frontera registration L515 CFV. The Solicitors were out of time in relation to their application for the matter to be reviewed, but Jayne Potts, the Reviewing Officer, was prepared to review the application for restoration.
15. As the two vehicles had been used for criminal purposes and the Appellant had been convicted of knowingly and fraudulently evading duty chargeable on goods, it was clear that they were smuggling and restoration would not therefore be granted. Mr Mohyuddin suggested that as the Appellant had gone to jail for a criminal offence in circumstances where he was clearly smuggling, there could be no possibility of a restoration of either of the vehicles and that the decision of the Respondents was therefore a reasonable decision.

Decision

16. Although this is a deemed review, we are satisfied that at the time of the seizure, a criminal offence had occurred. The Appellant conceded that he was a smuggler and that the lorry had been used for a "tobacco run". In all the circumstances we find that the Respondents acted reasonably in this matter and dismissed the appeal.
17. The Appellant had not appeared at the hearing, nor had made any attempt to indicate whether he wished the matter to proceed and in those circumstances the Respondents asked that their costs be awarded against the Appellant. We therefore award costs of £300 for the Respondent.

David Porter

Chairman

Release Date:

MAN/01/8101