United Kingdom VAT & Duties Tribunals (Excise) Decisions

You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Ramsden v Customs and Excise [2003] UKVAT(Excise) E00437 (25 June 2003)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00437.html
Cite as: [2003] UKVAT(Excise) E00437, [2003] UKVAT(Excise) E437

[New search] [Printable RTF version] [Help]

Mr S Ramsden v Customs and Excise [2003] UKVAT(Excise) E00437 (25 June 2003)

27/06/2006 draft MAN/01/8176 E00437

SEIZURE — 4000 cigarettes, 1 kilo hand rolling tobacco — earlier visits — deemed decision — incomplete interview notes — decision unreasonable — appeal allowed

MANCHESTER TRIBUNAL CENTRE

MR S RAMSDEN 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 D Mohyuddin of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

DECISION

This is an appeal against a review decision of the Commissioners communicated in a letter dated 4 June 2001 not to restore to the Appellant 1 kilo of hand rolling tobacco and 4000 king-size cigarettes. The goods were seized by the Commissioners on 4 May 2001 at Eastern Dock, Dover, Kent. The Appellant appeared in person, Mr Mohyuddin of counsel appeared for the Commissioners and produced a bundle and referred us to the following cases:

Commissioners of Customs & Excise v The Queen on the application of Hoverspeed Ltd and others [2002] EWCA Civ 1804

John Dee Limited v Customs & Excise Commissioners [1975] STC 941

Lucy Thompson and Commissioners of Customs & Excise 000395

The case had been adjourned from August 2002 to give the Commissioners an opportunity to indicate why they considered that the tribunal had no jurisdiction to hear the case because the decision to stop a community traveller entering the United Kingdom and importing excise goods, was not a matter for the tribunal, but rather one that could only be challenged by the High Court on judicial review. Since that direction the Hoverspeed case had been concluded and the point was no longer valid.

The Facts

Mr Ramsden gave evidence to the effect that he lived at Heckmondwike, West Yorkshire, that he had driven down to Dover on 4 May and that he had travelled as a foot passenger and had returned with 4,000 cigarettes and I kilo of hand rolling tobacco which he had given to his brother. He had been abroad before some 4 or 5 weeks earlier. He had suffered an accident at work and he produced a psychiatric report dated November 2001 which made it clear that he was suffering from chronic depression as a result of which he did not sleep very well and was smoking excessively.

He admitted to smoking 80 cigarettes a day. He lived with his girlfriend who also smoked. He was referred to the interview carried out by Miss Bail which appeared at Folios 14 and 15 in the bundle.

He denied ever having been interviewed. He confirmed that he had spoken to Miss Bail but he had become agitated and refused to speak to her further and left. He had never signed the interview notes nor had he ever seen it and he believed it had been written up by her subsequent to her stopping him.

He was still being paid by work at the time of the seizure and was earning £245 a week. He confirmed that he bought all his cigarettes on Visa and that he never had to pay any interest as he kept changing his cards. He also confirmed that on 31 August 2002 he was made bankrupt by the Visa company.

He had started smoking hand rolling tobacco, but was not very good at rolling them and could give no indication as to the number he could successfully roll from one pouch.

Mr Jeremy Francis Michael Tooke gave evidence on behalf of the Respondents. He confirmed that he had written to Mr Ramsden on 13 February 2002 what purported to be a review letter.

Mr Mohyuddin confirmed that the review letter of 13 February was out of time and that the decision of the Commissioners was therefore a deemed decision. He wished however to produce the evidence from that letter as Mr Tooke's witness statement had not been accepted and Mr Tooke was in a position to give evidence to the tribunal.

Mr Took referred to notes from head office identifying the dates of which Mr Ramsden had been abroad namely 6 April, 4 May (the subject of this hearing), 14 May, 2 June and 18 June. Mr Ramsden denied that he had received the letter. There was also produced to the tribunal a copy of Notice 1 which is now no longer in use. The Respondents conceded that Notice 1 had no provision in it that you could not stockpile your goods.

Mr Mohyuddin summed up and said that it was for the Appellant to show that:-

either the decision was one which no reasonable panel of Commissioner could have come

some relevant matter was not taken into account

some irrelevant matter was taken into account

some error of law was made

In that respect he referred to John Dee Limited.

The Appellant suggested that the Notice 1 and the rules set out by Customs & Excises are two different sets of rules, and that they were breaking the European laws by having guidelines. From the evidence deduced he was of the opinion that:

(1) It was not credible that the amount of cigarettes purchased by the Appellant could be for his own use

(2) The Appellant was fully aware of the guide levels as provided in Notice 1

(3) The consumption rate between 06/04/01 and 04/05/01 of at least 3000 cigarettes was equivalent to 111 cigarettes a day.

(4) That a consumption of cigarettes at that rate, even at the price of tobacco and cigarettes on the ferry, would have cost £132.90 per week.

(5) The Appellants reason for making the trip and purchasing the goods do not support the contention that the goods were for his own use and that the appeal should be dismissed.

Mr Ramsden had little to add to what he had already said:

there was no provision in Notice 1 that indicated that he could not bring in the full amount of goods each time.

he could not for his part recall the dates of the various trips referred to as these were some 2 two years ago.

he had never received the purported review letter although he had received all the other letters from the Respondents

in the circumstances the decision to seize his goods was wrong.

We have considered the facts and cases referred to in this matter and are of the opinion that the decision made by the Respondents was not reasonable and direct that the decision, so as far as it remains in force, is to cease to have affect from the release date of this decision.

Reason

We are concerned by the evidence produced by the Respondents. We are satisfied that the interview notes contained at pages 14 and 15 in the Respondents' bundle were written up after Mr Ramsden had left Dover. We are of this opinion for two reasons:

(1) The notes are far too tidy and clearly are written from memory

(2) We believe Mr Ramsden when he said to her he was not prepared to stay.

In fact at the tribunal Mr Ramsden got up from his chair and marched around the room and was clearly very agitated. The tribunal were concerned that he was unstable. We are satisfied that if he behaved in a similar manner (which we believe he did) when he was interviewed by Miss Bail, then she would have allowed him to go rather then putting herself at risk. We are therefore of the opinion that at no time was he told that the goods were seized for the various reasons stipulated.

We are further not satisfied that the letter of 13 February 2002 was ever sent to Mr Ramsden. Whether it was or not, it is irrelevant as this review was out of time and there was therefore a deemed decision not to restore the goods. The letter of 13 February and any evidence relied on thereafter is in our view highly suspect not least because neither the letter, nor the evidence from central office as to the number of trips was ever produced to the tribunal.

We are satisfied that Mr Ramsden went abroad on more than 1 occasion, but no evidence has been given as to the dates of those trips nor the value or volume of goods purchased by him. The only evidence before us was the evidence of the goods on the 4 May 2001 identified in the seizure information at page 16 of the bundle.

Whilst we do find it less than credible that Mr Ramsden would have smoked the number of cigarettes he did, he did indicate that he lived with his girlfriend and we do accept that she must have smoked some of them.

We do however find credible that he purchased those goods and we imagine other goods on his Visa card and that he changed to his Visa cards to avoid paying any interest.

We do not however find it credible that somebody would be made bankrupt where it is alleged that he was smuggling. We are of the opinion that even the most inept smuggler would at least cover the costs of the goods he bought!! Given that goods costs half as much abroad as they do in the Untied Kingdom, there would be no reason for him to be out of pocket which he clearly was.

In conclusion we found the Appellant to be unstable and the evidence deduced by the Respondents to be unreliable. In those circumstances we direct that the decision is to cease to have effect from the release date under Section 16(4)(a) Finance Act 1994.

The costs are to be agreed between the parties and failing agreement to be brought back to the tribunal.

D S PORTER

CHAIRMAN

RELEASE DATE: 25 June 2003

MAN/01/8176