United Kingdom VAT & Duties Tribunals (Excise) Decisions

 


Whatnell v Customs and Excise [2003] UKVAT(Excise) E00410 (15 April 2003)

E00410

EXCISE DUTIES — importation of cigarettes—large quantity of cigarettes transported into U.K. by courier—whether held excise goods for commercial purpose—whether cigarettes should be restored to owner of goods—whether review decision was reasonable – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MATTHEW STEVEN WHATNELL

Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE

Respondents

Tribunal: Mr I E Vellins (Chairman)

Mr R Presho

Sitting in public in York on 27^th February 2003

The Appellant appeared in person

Mr R Toone of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2003

DECISION

1. This is an appeal by Mr Matthew Steven Whatnell, the appellant against a decision of the respondents dated 30^th January 2002 confirming a refusal to restore excise goods to the appellant. The excise goods were cigarettes which were variously described in this appeal as either being of a quantity of 40,000 cigarettes, or of a quantity of 37,600 cigarettes. The cigarettes had been purchased by the appellant in Spain and brought back to the U.K by a courier Mr Langlands in Mr Langlands' Ford Transit minibus. The cigarettes were seized on the 19^th August 2001 by officers of the Commissioners at Eastern Docks car terminal in Dover, when the vehicle and excise goods were being driven back into the U.K by Mr Langlands. The appellant made a request for restoration in an undated letter. A decision to refuse restoration was communicated to the appellant by letter dated 20^th November 2001. A request for a review of that decision was made in an undated letter from the appellant. Following a review the decision not to restore was confirmed by letter dated 30^th January 2002 and this was the decision against which the appellant appealed.
2. At the hearing of this appeal at York on 27^th February 2003 the appellant represented himself, and the Commissioners were represented by Mr R Toone, Counsel.
3. The appellant gave evidence in person at the hearing of this appeal. Evidence was given on behalf of the Commissioners by the reviewing officer Mr Johnston in a witness statement which referred to the correspondence, the documents and the notes of the officer who had seized the goods and who had interviewed the driver of the vehicle in which the goods had been carried, Mr Langlands.

The Background

4. On 19^th August 2001 an officer of the Commissioners Mr D Jackson who was on duty at Dover, at the Eastern Docks car terminal, stopped a Ford Transit vehicle being driven by a Mr Paul Anthony Langlands who told the officer that he had been in Spain since April 2001 trying to find some work, and was then returning to the U.K. The officer asked Mr Langlands if he had any excise goods. Mr Langlands told the officer that he had 30 cases of beer, 1 kilo of tobacco, 2,400 cigarettes and some spirits and some wine and that was all he had got. He said that he did not have any more cigarettes or tobacco with him. The officer looked in the back of the vehicle and found three large boxes wrapped in cartoon wrapping paper and clear plastic. The officer asked Mr Langlands what was in the boxes. Mr Langlands told the officer that Mr Langlands did not know and was taking them into the U.K. for a firm Millbrook Transport. He said that he did not know what was in the boxes. He said that he did not know why they were wrapped in cartoon wrapping paper but presumed it was to keep the dust off them. He said that he was taking the boxes to an address which was on the labels on the boxes namely to a Mrs F Whatnell at an address in Tyne and Wear, England. Mr Langlands said that he had been asked to take the boxes into the U.K by a Mr Mabbott of Millbrook Transport.
5. The officer opened the boxes and found inside a large quantity of cigarettes. The officer pointed out to Mr Langlands that relief from payment of U.K. Excise Duty was afforded subject to the conditions that these goods were not imported or held or used for a commercial purpose. Mr Langlands was asked if there was anything he could say to the officer to convince the officer that the goods were not for a commercial purpose. Mr Langlands replied in the negative. The officer seized a total of 40,000 cigarettes, 1 kilo of hand rolling tobacco together with a quantity of beer, spirits and wine together with the vehicle. A schedule showed that the cigarettes were in bags of 5,000 cigarettes totalling 8 bags, the cigarettes being all Regal Kingsize filters apart from one bag of mixed Kingsize filters.
6. The appellant's wife Mrs Whatnell then wrote an undated letter to the Commissioners stating that for the previous three months she had been living in Spain with her family but had had to return to England unexpectedly. She stated that she had some cigarettes that she had bought in Spain and which she could not fit in her case, so she had sent the cigarettes with a delivery company to deliver to her back in the U.K. She stated that she had wrapped them all in boxes but did not tell the delivery firm what was in the boxes in case they took any out. She stated that the cigarettes were for the consumption of herself and her husband only and if she had not had to come back unexpectedly to the U.K the cigarettes would not have been sent back to the U.K. She stated that she did not realised that she was not allowed to do this and was sorry. She asked for the return of the cigarettes. She confirmed that the delivery driver was unaware of what was in the boxes.
7. On 20^th November 2001 a review officer replied to Mrs Whatnell's letter. The officer explained that the excise goods were liable to forfeiture as Mr & Mrs Whatnell were in breach of the Excise Duties (Personal Reliefs Order) 1992 and the goods had been seized under the Customs and Excise Management Act 1979. The officer explained that it was the policy of the Commissioners that seized excise goods were not restored but that each case was examined on its merits to determine whether or not restoration may be exceptionally offered. The officer explained that in conducting the examination the presence of any one of the following would mitigate against restoration, namely; any evidence of previous smuggling or failure to comply with legal requirements, any evidence that the person involved knew what they were doing was wrong, any evidence that the person was paid to make the journey, large quantities of goods which might damage legitimate trade, and any evidence that the goods were for a commercial purpose. The officer explained that excise goods were not restored unless Mr & Mrs Whatnell could clearly demonstrate exceptional circumstances. The officer stated that he had considered all the factors in the case, and confirmed that the goods were not offered for restoration. The reasons set out in the letter from the review officer, were that Mr & Mrs Whatnell were not travelling with the goods when they were seized by officers and relief under the terms of the Excise Duties (Personal Reliefs Order) 1992 was not afforded. Furthermore, the driver of the vehicle carrying the goods failed to declare a large quantity of goods that were in the vehicle. This was an attempt to deceive the officer. A large quantity of the goods, those that were not declared, were found concealed in boxes covered in wrapping paper in the rear of the vehicle. The normal policy in such cases was to refuse to restore seized goods. The officer commented that there were no exceptional circumstances which would justify a departure from the policy.
8. Following that letter Mr Whatnell, the appellant, then wrote to the Commissioners writing to appeal against the decision concerning his 40,000 cigarettes. He pointed out that the rest of the goods seized were not his. He stated in the letter that the cigarettes were purely for his own consumption and not to be sold. He stated that he did not believe that what he was doing was wrong. He had sent back the cigarettes with a courier service as he was unable to get the cigarettes on the plane with him. He stated that the intent was not smuggling and that he stressed that the tax had been paid on them in Spain and that he was under the impression that he could bring as many cigarettes into the U.K. as long as the duty had been paid.
9. On 30^th January 2002 a review officer Mr L W Johnston replied to the appellant's letter which Mr Johnston had treated as a request to conduct a review. Mr Johnston stated that he had conducted a review. He set out the information obtained from the notes of the officer Mr Jackson who had questioned Mr Langlands when Mr Langlands returned to the U.K, with the cigarettes owned by the appellant in his vehicle. Mr Johnston reviewed the legislation and the policy of the Commissioners. Mr Johnston reached the following conclusions. It was evident from the interview that Mr Langlands did not declare to the officer Jackson the three boxes in the rear of the vehicle, regardless of whether Mr Langlands knew of their contents. The three boxes were found to contain a large quantity of cigarettes when the officer examined the rear portion of the vehicle. Mr Langlands, as the driver and sole occupant of the vehicle, was required to declare all of the goods in his vehicle, particularly goods for which he was acting as a haulier or courier. It was a misdeclaration by Mr Langlands. It was the responsibility of Mr Langlands to ensure that Mr Langlands knew exactly what he was carrying as a haulier or courier of goods being brought into the U.K. Furthermore, the three boxes containing cigarettes were wrapped in children's wrapping paper, namely cartoon wrapping paper. Mr Johnston considered that the cigarettes were packed in a manner appearing to deceive an officer, placing the goods liable to forfeiture under Section 49(1)(f) of the Customs and Excise Management Act 1979. In total 40,000 cigarettes had been found in Mr Langlands vehicle and it was apparent from the interview that the importation was of a commercial nature. Mr Langlands did not offer any evidence or explanation that the cigarettes were not imported held or used for a commercial purpose and the goods did not quality from relief from excise duty under the Excise Duties (Personal Reliefs) Order 1992. Mr Johnston considered the cigarettes were properly liable to forfeiture under Regulation 3 of the Excise Duties (Personal Reliefs) Order 1992 whereby a community traveller entering the U.K shall be relieved of any payment of any duty on excise goods which he has obtained for his own use in the course of cross border shopping and which he has transported. The officer pointed out that in the case of the appellant the appellant and his wife had travelled by air independently from the goods, not transporting them themselves and as such failed to comply with Regulation 3. The officer concluded that the cigarettes were properly subject to seizure and liable to forfeiture under Section 139 of the Customs and Excise Management Act 1979. With regard to restoration, the officer concluded that the goods should not be restored as the officer saw not exceptional circumstances to justify departure from policy.
10. The appellant appealed by notice of appeal dated 6 August 2002. He gave the grounds of his appeal that the cigarettes were for his own personal use and gifts for his family and not for any retail purpose. He stated that he felt that 200 cartons between 4 people "is a vast amount".

Evidence of appellant at hearing

11. The appellant Mr Whatnell gave evidence at the hearing that he was living at the date of the hearing at an address in Gateshead. He said that he had set out to live in Spain with his wife and three children and had been living in Spain for three months when they had decided to return to the U.K. He had previously sold his house in the U.K. receiving a profit of £14,000. He said that then his wife did not wish to stay in Spain any longer and they had decided to return to the U.K. Before returning he had bought a large quantity of cigarettes which he said were for his own use and for a gift to his parents. He said that he could not carry them all with him on the aeroplane when he returned to the U.K. as he was with his children, so he telephoned a courier service in Spain and asked if the courier service would take back to the U.K. for him three parcels of cigarettes. He said that he wrapped the cigarettes in boxes surrounded by children's wrapping paper, which was in the form of cartoon wrapping paper. He said the reason for this was that he was returning to the U.K. before the courier and he was frightened that the courier would find what was in the boxes before they reached the U.K. and that the courier would steal the contents if the courier found out what was in the wrappers, so that he had surrounded the boxes with the children's wrapping paper to fool the courier. He said that the wrapping paper was not to fool the Customs Officers. He said he was under the impression that he could bring back to the U.K. as much as he wanted for his own use and that he had recently been on a trip to Amsterdam where he saw cigarettes being sold in premises with posters stating that a traveller could bring back as much as he liked for own consumption. He said that prior to going to Spain he had worked in the steel industry earning £12,000 to £15,000 per year. He stated his parents were wealthy and that his mother had given him previously £10,000 and would give or lend him money if he needed it. He said that he had bought 36,400 cigarettes over a period of three days about a week before he had returned to the U.K. and this was a joint purchase with his wife. He said that he was going to split up from his wife and that some of the cigarettes were for her, some cigarettes were for him and some were for his parents as a gift. He said that 50 cartons of the cigarettes were for his wife, 50 cartons for himself and 100 cartons for his parents. He said that the cigarettes had cost £16 per carton. He said the reason for returning to the U.K. was that his marriage was breaking up. He had had a lot of money in his savings account namely the proceeds of the sale of his previous house in England of £14,000, and £10,000 from his earnings. After their return to the U.K. his wife went to live in a rented Council property.
12. The appellant said that he had chosen the courier by looking in the newspapers in Spain and finding a telephone number of a courier. He could not remember how much the courier had charged. He said that he did not obtain a receipt for what he paid to the courier. He had only a telephone number for the courier service. He had not used a more regular larger courier service because of the cost. He had not thought to make a note of the name of the courier even thought he had not trusted the courier and had wrapped the cigarettes in children's paper in order to fool the courier as to the contents of the boxes. He had covered the paper with a cling film wrapping paper but not so as to disguise the smell of the contents. He denied that he was attempting to fool the Customs Officer by wrapping the boxes in that way. He said that he was currently living apart from his wife, but she was supporting his appeal. He had not been working in Spain. He was not sure as to the exact amount of cigarettes in the three parcels but thought that they contained 37,600 cigarettes, although it was possible that they contained 40,000 cigarettes. He said that he had never met Mr Langlands before and had never imported cigarettes before. He said he expected the cigarettes that he was going to smoke to last him for between 7 – 9 months. He said that he smoked 40 cigarettes a day. He said that he did not recall the name Millbrook Transport but thought perhaps that was the company he telephoned. He said that he had not kept a note of the name of the courier or haulage company that he had contacted on the telephone. He said that Mr Langlands had telephoned him in the U.K. and told him that Mr Langlands had been stopped by the Commissioners and that the cigarettes had been seized. He said that he had not been aware of the guidelines for the quantity of cigarettes that a person could transport back with him to the U.K.

Submissions of respondents representative

13. Mr Toone submitted on behalf of the respondents that the case must now be judged by those principles set out in Commissioners for Customs and Excise and Hoverspeed Ltd and others 2002 EWCA CIV1804 and Lindsay v Customs and Excise Commissioners [2002] STC 588 together with the new Statutory Instruments 2692 The Excise Goods Beer and Tobacco Products (Amendment) Regulations 2002 and 2693 The Channel Tunnel (Alcoholic Liquor and Tobacco Products) (Amendment) Order 2002. Mr Toone accepted that the burden of proof is on the Commissioners but submitted that it was more likely than not that the appellant held the goods for a commercial purpose. He had not transported the goods as required under Regulation 3 of the Personal Reliefs Order and the sheer volume of the importation and the method of concealment had proved that this was a commercial importation. The traveller Mr Langlands was receiving remuneration for the importation of the excise goods and thus they were held for a commercial purpose. Mr Langlands had acknowledged to the officer Jackson that there was nothing he could say which would show that the goods were not held for a commercial purpose. It was submitted that the Commissioners were entitled to conclude on the evidence that the appellant was holding the goods for a commercial purpose even allowing for the new U.K. guide level of 3,200 cigarettes (which was not in force at the time of the seizure or the decision to refuse restoration). He submitted that the decision appealed against was not a decision which no reasonable body of Commissioners could have reached because this was a case in which the goods were held for a commercial purpose even on the evidence of the traveller, the Commissioners policy on restoration was sound and lawful, remuneration had been provided for Mr Langlands importation of the goods, and there were no exceptional circumstances which justified restoration. He submitted that the tribunal should be satisfied that the Commissioners had reasonably arrived at their decision and the decision was not unreasonable. He submitted that the Commissioners had not failed to take relevant facts into consideration, and had not taken into consideration irrelevant facts or otherwise acted unfairly, and he submitted that this was not a decision that no reasonable body of Commissions could have reached. He submitted that had the Commissioners been aware at the time of the matters raised in the Lindsay and Hoverspeed appeals, they would have inevitably reached the same conclusion that the appellant was holding the excise goods for a commercial purpose. Mr Toone referred to the facts in this appeal. Mr Toone submitted that the review decisions of the Commissioners were reasonable in all the circumstances.

The Law

14. Articles 8 and 9 of the EC Directive 1992/12/EEC provide as follows:-

8. As regards products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the member state in which they are acquired.

9. 1. Without prejudice to Article 8, excise duty shall become chargeable where products released for consumption in a member state are held for commercial purpose in another member state.

2. To establish that the products referred to in Article 8 are intended for commercial purposes, member states must take into account inter alia the following:

- the commercial status of the holder of the products and his reasons for holding them,

- the place where the products are located or where appropriate the mode of transport used,

- any document relating to the products,

- the nature of the products,

- the quantity of the products

Member states may lay down guide levels, solely as a form of evidence. These guidelines may not be lower than [specified levels].

15. The quantity of goods specified in the U.K. was, in relation to cigarettes, 800 cigarettes. This has subsequently been increased to 3,200 cigarettes by the Excise Goods Beer and Tobacco Products (Amendment) Regulations 2002.
16. When tobacco goods are not imported for own use and transported by the private individual, where goods are held for commercial purpose, excise duty becomes payable on the goods by virtue of Section 2 Tobacco Products Duty Act 1979. The duty becomes payable upon importation by virtue of the Excise Goods (Holding Movement Warehousing and REDS) Regulations 1992.
17. The Excise Duties (Small Non Commercial Consignments) Relief Regulation 1986 restricts relief to consignments of a maximum of 50 cigarettes, and provides that a consignment is of non commercial character only if it is not imported for any consideration in money or monies worth and it is intended solely for the personal use of the consignee or that of his family and not for any commercial purpose.
18. Section 49 (1) Customs and Excise Management Act 1979 ("CEMA") enables the Commissioners to forfeit dutiable goods that have any been imported or held without payment of duty. These include under section 49 (1) (f) any imported goods concealed or packed in any manner appearing to be intended to deceive an officer. There is a similar power of forfeiture under the Excise Goods (Holding, Movement, Warehouse and REDS) Regulations 1992.
19. The Court of Appeal in the Hoverspeed appeal placed the burden of proof on the Commissioners as to whether goods are being held or used for a commercial purpose.
20. CEMA sets out a procedure for requesting restoration of goods forfeited or seized and, on the Commissioners refusal to restore, a procedure for seeking a review of the decision. Under section 152 (b) CEMA the Commissioners may as they see fit restore subject to such conditions (if any) as they think proper, any thing forfeited or seized under the Acts.
21. The basis of the tribunal's jurisdiction is set out in section 16 of Finance Act 1994, sub section (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 the appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal is satisfied that the Commissioners or other persons making the decision could not reasonably have arrived at it. Neill L J in John Dee Limited v Commissioners for Customs and Excise 1995 STC 941 approved a principle that the tribunal could only properly review the Commissions' discretion if it were shown that the Commissioners had acted in a way in which no reasonable panel of Commissions could have acted, if they had taken into account some relevant matter, or had disregarded something to which they should have given weight, and stated that the tribunal may also have to consider whether the Commissioners had erred on a point of law.
22. The cases of Hoverspeed 2002 and Lindsay 2002 set out the principles under which cases must be judged including the function of the tribunal on appeal, what must be taken into account on review, and how the policy of the Commissioners must be applied.
23. Paragraphs 16, 17, 18, 26 and 27 of the Lindsay appeal and paragraphs 60, 61, 62, 63 and 64 of the Hoverspeed appeal are particularly relevant to these matters.
24. The Commissioners actions must be proportionate within Article 1 of Protocol 1 of the European Convention on Human Rights.
25. We have considered the provisions of the law in reaching our conclusions in this appeal.

Conclusions

26. We have considered all the evidence in this appeal and the provisions of the law involved. We make the following findings of fact and reach the following conclusions.

We find that in August 2001 the appellant and his wife and three children flew back to the U.K from Spain having lived in Spain for some three months. The marriage of the appellant and his wife had broken down and they were intending to part in the U.K. Prior to returning to the U.K the appellant and his wife purchased in Spain a large quantity of cigarettes. There was some doubt in this appeal as to whether they had purchased 40,000 or 37,600 cigarettes, but it is common ground that they paid in Spain many thousands of pounds for the cigarettes. They did not transport the cigarettes back to the U.K. with them, but used the services of a courier or haulier for the cigarettes to be brought back into the U.K. On 19 August 2001 the haulier Mr Paul Anthony Langlands was stopped by an officer of the Commissioners at Dover driving a Ford Transit vehicle. He disclosed to the officer that he had a quantity of 2,400 cigarettes together with some tobacco, spirits, wine and beer. He told the officer that he did not have any more cigarettes with him. The officer found in the rear of the vehicle three large boxes wrapped in children's cartoon wrapping paper covered with plastic. The driver Mr Langlands told the officer that he did not know what was in the boxes but that he was transporting the boxes to the U.K for a firm Millbrook Transport, and that the boxes were to be delivered to a Mrs Whatnell in Tyne and Wear at an address there. The officer Mr Jackson opened the boxes and found the large quantity of cigarettes in the boxes which were seized by the officer. Mrs Whatnell then wrote to the Commissioners claiming that she had had to return to the U.K. unexpectedly that she had cigarettes which she had bought in Spain which she could not fit into her case and so she had sent the cigarettes with a delivery company to delivery them to the U.K. She claimed the cigarettes were for the consumption of herself and her husband only. She stated in the letter written on behalf of herself and the appellant that the driver had been unaware of what was in the boxes. The appellant in a subsequent letter claimed that the 40,000 cigarettes were his and were purely for his own consumption. At the hearing of the appeal the appellant stated that he was not sure whether the three boxes contained 37,600 or 40,000 cigarettes but claimed that although he and his wife were splitting up, 50 cartons of the cigarettes were for his wife, 50 for the appellant and 100 cartons for his parents. He claimed that the money used to purchase the cigarettes had been the joint monies of himself and his wife. He had paid for the transportation of the cigarettes back to the U.K through a haulage service whose telephone number he had found in a local newspaper in Spain. He had not kept a receipt for the money that he had paid to the haulier, and could not remember the name of the haulier. He stated that he had packed the cigarettes in three boxes which he had covered with children's cartoon wrapping paper so that the haulier would not know the contents of the boxes as he feared that the haulier might steal the cigarettes if the haulier had been aware that the haulier had been carrying cigarettes. He denied that the wrapping paper had been an attempt to fool the Commissioners.

27. We did not find the appellant to be a credible witness and we did not believe his evidence. We find that it is not credible that the appellant, if his motives were innocent, would entrust such a large quantity of cigarettes to a haulier whose identity he did not keep, and when he did not as he claimed obtain a receipt, in circumstances where he did not trust the haulier and had deliberately packed the cigarettes in children's wrapping paper in order to fool the courier as to its contents. We find that the motives of the appellant were not innocent. We find that the appellant was importing the cigarettes into the U.K for a commercial purpose. We find that the appellant was bringing the cigarettes back to the U.K. through a courier for resale. We did not believe the evidence of the appellant that the cigarettes were for the own use of the appellant, his wife, and parents. The appellant and his wife were splitting up as their marriage had broken down. The appellants wife was returning to the U.K. in order to live separate from the appellant, and found a rented council property in which to live. In the circumstances of the breakdown of the marriage it is not credible that the appellant and his wife would spend such a large sum of money, many thousands of pounds, in order to purchase cigarettes to be smoked by themselves and his parents only. On his own evidence the appellant only smokes 40 cigarettes a day. The appellant had not worked during the three months that he had lived in Spain. We find that the appellant wrapped the boxes of cigarettes in children's wrapping paper in order to mislead and fool customs officers who might examine the vehicle of the courier who was bringing the boxes of cigarettes back into the U.K. We find that the Commissioners have satisfied the burden of proof on them and have satisfied us that the appellant held the cigarettes for a commercial purpose, and that he was endeavouring to bring the cigarettes into the U.K. without paying the excise duty due upon them in the U.K. We find that the appellant was not entitled to personal reliefs in connection with the cigarettes as he was not bringing the goods back with him to the U.K. The appellant did not transport the goods under Section 3 of the Excise Duties (Personal Reliefs) Order 1992 as amended. Accordingly, the appellant was not relieved of payment of the excise duty on the cigarettes. We find that the shear volume of the importation and the method of concealment prove that this was a commercial importation. The haulier Mr Langlands received remuneration for the importation of the excise goods, and his answers to the questions from the officer Mr Jackson clearly showed that the goods were held for a commercial purpose.
28. We find that the decision appealed against was not a decision which no reasonable body of Commissioners could have reached. The goods were held for a commercial purpose. We find that the respondents policy not to restore was sound and lawful and that there were no exceptional circumstances which justified restoration. We find that the decision of the Commissioners was not a decision with which we should interfere. The review decision was taken before the decisions in the cases of Lindsay and Hoverspeed in the Court of Appeal. We find however that a reasonable body of Commissioners taking into account the decisions in Lindsay and Hoverspeed would have come to the same conclusions bearing in mind our findings that the appellant was holding the cigarettes for a commercial purpose.
29. We find that the Commissioners acted reasonably in refusing to restore the cigarettes for reasons stated in their letter of 20 November 2002. The appellant had not been travelling with the goods when they were seized and was not entitled to reliefs. The driver of the vehicle had failed to declare the large quantity of cigarettes in the vehicle and there had been an attempt to deceive the officer. The goods had been concealed in boxes covered in children's wrapping paper in the rear of the vehicle. There were no exceptional circumstances which would justify a departure from policy. We further find that the review officer Mr Johnston acted reasonably in upholding the original decision not to restore the goods as set out in his letter of 30 January 2002. The cigarettes had not been declared despite the fact that it was up to the driver Mr Langlands to know what was in his vehicle and to declare this to the Commissioners. There had been a misdeclaration. The cigarettes were wrapped in children's wrapping paper to deceive the Commissioners. 40,000 cigarettes were found in the vehicle. There was a clear commercial importation. The cigarettes did not qualify for relief having not been transported by the appellant. The goods were properly seized.
30. We find that applying the principles in the Lindsay and Hoverspeed cases to these circumstances where the haulier is being paid to transport the goods for the appellant, the goods so imported are not entitled to the reliefs afforded under the Directive and become liable for seizure and forfeiture. The goods were being imported for a commercial purpose. We find that the decision of the Commissioners was proportionate. The Court of Appeal in Hoverspeed found that even if no reasons had been given by the Commissioners for stopping a vehicle the seizure was not rendered unlawful of goods or vehicle. We find that the Commissioners have satisfied the burden of proof on them.
31. In conclusion therefore, we find that Mr Langlands held and brought into the U.K. cigarettes for a commercial purpose and that the seizure of the goods was lawful. We further find that the appellant cannot show that his case possesses any exceptional circumstances which justify the restoration of the goods. We find that the decision on review was not a decision that no reasonable body of Commissioners could not have reached. Accordingly we dismiss the appellants appeal.
32. Mr Toone on behalf of the respondents did not make any application for costs and we make no order as to costs.

I E Vellins

Chairman

ReleaseDate: 15 April 2003

MAN/02/8245