United Kingdom VAT & Duties Tribunals (Excise) Decisions

McDonald v Customs & Excise [2003] UKVAT(Excise) E00431 (25 June 2003)

SEIZURE OF GOODS — previous visits — evasive answers — no income — Commissioners acted reasonably —appeal dismissed

MANCHESTER TRIBUNAL CENTRE

BARRY McDONALD Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr D S Porter LLB (Chairman)

Mrs M Crompton

Sitting in public in Manchester on the 16 May 2003

The Appellant appeared in person

Mr A Vincent of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2003


 


DECISION

1. By notice of appeal dated 18 October 2002 the Appellant appealed against a seizure on the basis that he was registered disabled with brain damage and had a very poor memory.
2. The Appellant appeared in person. Mr A Vincent of counsel appeared for the Commissioners of Customs and Excise.

The Facts

3. The Appellant left Berkenhead by coach and crossed the channel at Dover to Calais. He was taken to warehouses in Calais and subsequently was taken over the border into Belgium. He had with him 1 kilogram of tobacco and 2,560 cigarettes. He also had some alcohol but this was not the subject of this appeal. He confirmed that he was registered disabled and produced to the tribunal a disabled rail pass but had no further evidence from his general practitioner as to his actual condition.
4. He confirmed that he received £160 per week but that his rent and council tax were paid for him. He saved for his gas and electricity by buying stamps each week.
5. He also had in his house a large whiskey bottle into which he put money as and when he smoked cigarettes. He was trying to come off ordinary cigarettes and go onto hand rolling, because this would reduce the number that he smoked. He smoked some 40 cigarettes a day - particularly if he was having a bad day.
6. The coach trip from Berkenhead cost somewhere between £25 and £35 and he had to find food on top. He usually took sandwiches with him.
7. He confirmed that he had been over to France 8 or 9 times in the year and on one occasion he had been stopped and had 1,600 cigarettes taken off him.
8. He had gone down to Dover with his friends who were going to a party and thought he might go over to Calais as he had not been invited to the party. He went over to Calais on the boat and bought 800 cigarettes. He did not get off the boat and he came back. He rang his friends to collect him but they were unfit to drive and they were staying over night. He therefore decided to stay on the boat. He asked the Customs officer if he could bring another 800 cigarettes and the officer had said he could. He therefore stayed on the boat overnight, bought some more cigarettes and then came back. When he came back he had two lots of 800 making the 1600 cigarettes and those were confiscated from him, despite the fact that he had been told that he could bring in another 800 cigarettes.
9. It was confirmed that 800 cigarettes would cost about £90 so he had spent £180 on that occasion.
10. In summing up Mr Vincent took the view that the Customs officer had acted reasonably in that he had taken into account all of the facts.
11. The Appellant had produced no evidence with regards to his memory loss and brain damage.
12. The Appellant had a small disability payment each week of £160 and £800 of saving. It was not credible to believe that a man in his condition and financial position could go abroad 8 or 9 times in one year. It was not credible that the quantity of cigarettes brought in that way were for his own use.
13. When he was questioned by the Customs officer his answers were different to those given to the tribunal today. He was fully aware of the amount of goods he could bring in. The limit had now been increased to 3000 cigarettes so that he would now be within the limit. Customs in those circumstances normally withdrew their objections and returned the seized goods. In this case, however, Customs felt justified in retaining the goods on the basis that the Appellant had been abroad on several occasions; his financial position was such that he could not properly afford this; and it was clear that the purchases were not for his own use. In those circumstances he considered that the Customs officer had acted reasonably in seizing the goods.
14. The Appellant in summing up said that he had been concerned because the witness statement mentioned a car which he had not had. The document indicating the goods seized had indicated he had 2 kilograms of hand rolling tobacco and that had been amended to 1 and it had been sent back to him subsequently to the seizure.
15. The Hoverspeed case had indicated that Customs were wrong to stop individuals unless they had a good reason for believing that they were smuggling. In all those circumstances he considered the Customs officer had not acted reasonably.

Decision

16. We've heard that facts in this case and are satisfied that the Customs officer acted reasonably and that the review by R Brenton was also reasonable.
17. We do not believe that it is credible that a man on the Appellant's reduced income with minimal savings, could risk his financial future by taking £600 abroad and going on many occasion to buy quantities of cigarettes substantially greater then he could reasonably smoke between visits. We therefore conclude that the goods were not bought for his own use and the Customs officer acted reasonably and we dismiss the appeal.
18. No requests for costs were made by the Respondents and no costs are awarded.

D S PORTER LLB

CHAIRMAN

RELEASE DATE:

MAN/02/8243