United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2003] UKVAT(Excise) E454, [2003] UKVAT(Excise) E00454

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Duffield v Customs & Excise [2003] UKVAT(Excise) E00454 (05 August 2003)

Excise duty – seizure of vehicle – restoration – whether goods imported for commercial purposes – whether review decision not to restore was reasonable

LONDON TRIBUNAL CENTRE

JULIAN E.P. DUFFIELD Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: JOHN CLARK (Chairman)

SUNIL K. DAS

Mrs ELIZABETH MACLEOD

Sitting in public in London on 16 June 2003

The Appellant in person

Mr Christopher Mellor of counsel, instructed by the Solicitor's Office of HM Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2003


 


DECISION

1. This is an appeal against a decision on re-review not to restore a vehicle seized at Dover on 3 January 2001.

The law

2. The relevant provisions under consideration in this appeal are sections 78, 139, 141, 152, 163 of the Customs and Excise Management Act 1979 ("CEMA"), Article 3 of the Excise Duties (Personal Reliefs) Order 1992 ("the 1992 Order"), sections 14 and 16 of the Finance Act 1994, and Article 1 of Protocol 1 of the European Convention on Human Rights ("ECHR"). As these provisions have been widely cited in previous decisions of these tribunals, we do not reproduce them in full.

The facts

3. The evidence before us consisted of the Commissioners' bundle of documents. These included witness statements made by the following individuals: Ian Frederick McEntee ("Mr McEntee"), the Commissioners' Review Officer, two made by Robert Harding ("Mr Harding"), an Officer of HM Customs and Excise, one by Michael Johnson ("Mr Johnson"), another such Officer, two by Brian John Rowland ("Mr Rowland"), a Supervisor in the Tourist Finance Department of P&O Stena Line at Dover. A witness statement made by Joanna Frances Nutten, another Review Officer for the Commissioners, was with the other evidence, but the Commissioners did not seek to rely on it. In addition, oral evidence was given by Julian Ernest Peter Duffield ("the Appellant"), Mr Harding and Mr McEntee. The Appellant submitted two letters dated 2 November 2001 written by his wife, Victoria Louise Fletcher, and a letter dated 31 October 2001 from Mrs Heather Moyle, and a letter relating to the booking of a castle in Scotland by Mrs Moyle for seven nights from 2 February 2001. (Mrs Fletcher did not attend the hearing, as she had to look after the children.) The Appellant also produced correspondence relating to the treatment by the Commissioners of another individual who had imported a quantity of hand rolling tobacco in 1998. (We comment later on the latter correspondence.) We describe the factual background as shown in the correspondence, then consider the oral evidence. There were some conflicts between the account of this background and the other evidence given, as well as differences between the oral evidence given by different witnesses. We comment on these below; subject to this, we find the facts to be as described.
4. At approximately 2015 on 2 January 2001 the Appellant was stopped by the Commissioners at the Port of Dover. He was driving a Nissan Patrol vehicle, registration number L462 UKF. The passengers were Mrs Fletcher and their four children, their surname being Smiles, the youngest being between six and eight months old at the time. The Appellant told the Officer, Mr Harding, that they had been to Calais and Belgium for a day out and to do some shopping. The Appellant said that they had intended to buy some beer but had not bought any. He told Mr Harding that they had bought three boxes of tobacco, which were in the boot. Mrs Fletcher showed these to Mr Harding, who asked if that was all of the tobacco goods. Mrs Fletcher said that it was. The Appellant told Mr Harding that he had made three trips to the Continent in the last three years. He said that he was self-employed, and intended to give the tobacco to his customers as gifts. Mr Harding then looked in the vehicle and found a further two boxes under a child's seat in the front which was overhanging the footwell. All the boxes contained 6 kg of hand rolling tobacco. The Appellant and Mrs Fletcher were then interviewed separately.
5. The Appellant's interview was carried out by Mr Johnson. The Appellant confirmed that he was a self-employed gardener. He had purchased three cases of wine, four cases of beer and five boxes of tobacco. The purchases had been made between him and his wife, as some family credit had come through. He had had several jobs before Christmas and had saved the money. He had spent between £600 and £700 out of the total of about £1,100. The tobacco was for both of them. He smoked three pouches a week, but was unable to say how much each day, nor how many cigarettes he got per pouch. He had been smoking hand-rolling tobacco for twenty years. He thought that the tobacco would last him a year. He had only been given a Customs Notice No. 1 shortly beforehand, and previously was not aware of the Customs guideline levels. He thought that if he came through with a van load, it would be wrong, but what he had he thought was reasonable. He said that ten packets of Gold Leaf were for a friend and that he might give some for Christmas presents. He was aware that it was illegal to sell excise goods without payment of UK excise duty, and said that he did not want to sell it. The family income was £25,000, but they had now applied for family credit. They had between £50 and £60 a week to spend on themselves. The Appellant signed Mr Johnson's notebook with the statement: "I agree this to be reasonably accurate to my best knowledge." Mr Johnson consulted with Mr Harding and remained present during seizure of the goods and the vehicle.
6. Mr Harding interviewed Mrs Fletcher. She said that she and the Appellant had bought five boxes of tobacco between them and that they would share the cost. She was not sure how much it had cost; she had paid for the shopping and she and the Appellant would settle up later. She said that she smoked Golden Virginia, one pouch a week. She had not worked out how long the tobacco would last her, half a year perhaps. She normally paid between £7.50 and £8.00 for tobacco. She did not know exactly how much the tobacco had cost; she knew it was cheaper, she thought about £2.50. She supposed that this was because there was no duty. She had never had any contact with Customs before. Mr Harding asked her whether she had travelled abroad recently; she said that she had not done so for a long time. She said that the Appellant had not brought back any hand rolling tobacco recently. She was aware that one should not sell imported excise goods; she knew this from advertisements on television and such. All the tobacco (the two and a half boxes) was for her. She was going to keep it in a cupboard under the stairs. On the question of its shelf life, she thought it would last for a couple of years if it was not open. She would pay for the goods from family credit. She received £100 a week, and £45 allowances. She had just received a back payment of £400 family credit and £180 family allowances that Monday. These amounts related only to her. No-one had given her money towards the goods. Mr Harding asked her why she had not told him about the other tobacco when she opened the boot; she answered, "I just did it off the top of my head."
7. Following the interviews, the tobacco and the vehicle were seized. There is a discrepancy concerning the amount of the tobacco; the Form C 156 (Seizure Information) shows the amount as 30 kg, but the later correspondence refers to 30.5 kg. It is not clear whether the Form C 156 gives the correct figure; the question of the additional 0.5 kg was referred to in oral evidence, see below. (It would have helped to have a clearer explanation; it may be that as the ten packets of Golden Virginia were for a friend, they were not seized as they could have been, as mixed or packed with the tobacco seized.) Similarly, the wine and beer were not seized; they and other personal effects were stored in the Glasshouse.
8. The Appellant wrote to the Commissioners on 15 January 2001 explaining that he, his partner and his four young children including an eight month old baby had been detained on suspicion of smuggling tobacco and their car impounded. The Appellant said that he did not believe that he had infringed any importation regulations as the tobacco was for their own personal use and never intended for re-sale. The officer who had interviewed the Appellant had said that their vehicle had been to France six times; this was inaccurate, it was their third trip, as they had cancelled their previous reservations three times due to bad weather and sickness. He referred to the harrowing task of walking around Dover in the middle of the night with the children in search of a hotel; this had been an unpleasant experience after their previously very enjoyable day abroad. The Appellant asked for the situation to be resolved as soon as possible as they were in desperate need to have their vehicle returned, being essential for his work as a gardener; its detention was causing extended financial difficulties.
9. The Commissioners responded in their letter of 25 January 2001. The decision was not to restore the vehicle. The reasons were that the goods were in excess of the Minimum Indicative Limits in Article 5 of the 1992 Order, that this was an excessive expenditure considering the Appellant's income, that the claimed consumption rates were deemed excessive, that the Appellant did not account for previous travel to the Continent, and that the Appellant did not declare all of the excise goods on initial interception. The letter briefly referred to the Commissioners' policy relating to forfeiture, and cited section 141 CEMA. There were no exceptional circumstances in this case which would justify a departure from this policy.
10. The Appellant wrote on 25 February 2001 appealing against the decision not to restore the vehicle, and set out the following grounds:

(1) he and Mrs Fletcher had been exercising their legal right to import duty free tobacco in accordance with EC law for their own consumption without the intention to resell;

(2) the Minimum Indicative Levels Order 1992 (we assume this to be the 1992 Order) was retrospective and confusing, as he had been assured by the Commissioners' own department prior to travelling that these were guidelines and not law, and that as they had never bought tobacco before in bulk, this should not be a problem;

(3) that what they chose to spend their taxed earnings on was their choice;

(4) that how much tobacco they chose to smoke was their business;

(5) that the Officer's reference to six trips was fictitious: the two trips made prior to the detention of his vehicle were for Christmas food shopping, and their freedom to travel was not restricted by any legislation;

(6) it had been his fault that he did not declare the full amount of tobacco in their possession at the initial interception, as he had been speaking for himself and not for his wife.

11. The Commissioners responded with their review decision on 11 April 2001. The officer who carried out this review was Joanna Nutten. This extremely brief letter, with two Annexes setting out the legislation and the Commissioners' policy, simply confirmed the contested decision without setting out the reasons. If this had been the review decision under consideration in this appeal, we would have expressed strong criticism of this letter for failing to set out the reasons for applying the policy in the particular circumstances of the Appellant's case. However, on 3 May 2002 the Commissioners wrote to explain that following the decision of the Court of Appeal in Lindsay v Customs and Excise Commissioners [2002] STC 588, they had applied to the Tribunal for the Appellant's appeal to be allowed and for the case to be remitted to be reviewed again in the light of that decision. On 15 May 2002 they wrote to confirm that the Tribunal had allowed the Appellant's original appeal and issued a Direction; if the new review decision was adverse, the Appellant would be able to continue with an appeal.
12. Mr McEntee was the Review Officer for the re-review. He wrote on 12 June 2002 setting out detailed reasons for the decision on re-review, which was to uphold the decision not to offer restoration of the vehicle. After giving the factual background, corresponding largely to the details set out above (with only minor differences), he set out the Commissioners' policy on the restoration of private vehicles used to transport seized excise goods. He then set out the applicable legislation. He explained that his task was to consider the matter afresh and to determine whether the Commissioners had acted reasonably and to see if the revised policy could be applied in the present case. He first considered whether the excise goods and the vehicle were appropriately seized. The Appellant and Mrs Fletcher were importing hand-rolling tobacco that was over 15 times the guide level for this product for each of them. They were both therefore correctly required to satisfy the Officers that it was not for a commercial purpose and was eligible for relief from duty. The Appellant had told the Officer that there were three boxes of tobacco in the boot, amounting to 18 kg, but the Appellant and Mrs Fletcher clearly omitted to inform the Officer about the further two boxes (12 kg) that had been placed under a child's seat. The Appellant had told the Officer that he had made three trips [to the Continent] in the last three years. However, commercial information available to Mr McEntee showed that the Appellant's vehicle had crossed the Channel on 11 December 2000 and 29 December 2000. In addition, vehicle registration number B254 NBJ registered to Mrs Fletcher had crossed the Channel on 30 November 2000, and the ticket had been booked in the Appellant's name. The Appellant was therefore on his fourth crossing in 36 days, having crossed the Channel on consecutive days in November. This was a far shorter time span than the three years as mentioned to the Officer. The Appellant had also told the Officer that he was going to use some of the tobacco as business gifts; this would make them ineligible to relief from duty. The Appellant had gone on to say that he intended to give some of the tobacco away as Christmas gifts, even though Christmas had passed. The Appellant's and Mrs Fletcher's combined weekly consumption rate of four pouches of tobacco would mean that the 600 pouches would have lasted them both just under three years. If they had not shared the tobacco between them, Mrs Fletcher's 300 pouches would have lasted her around six years. (In Mr McEntee's letter, the word "not" is omitted from the relevant sentence; as it is clear to us that the intention was to contrast sharing and not sharing, we consider that the sentence only makes sense if it is added.) Mr McEntee thought it obvious that the Appellant and Mrs Fletcher had no idea how long the tobacco would last, as the Appellant had said that it would last for one year and she had said half a year. Mr McEntee found it quite implausible that a family with four children, in receipt of family allowance, would be in a position to spend so much, stocking up on tobacco for so many years into the future. He cited an Edinburgh tribunal case in which the Chairman had said that where 9.6 kilos of hand-rolling tobacco were imported, it strained credibility beyond acceptable levels that this could be for one man's own use. Mr McEntee referred to the total of 30.5 kg in the present case, and did not accept that the Appellant and Mrs Fletcher were going to smoke this quantity themselves. Mr McEntee was satisfied that the tobacco was correctly seized and that the vehicle used to transport the goods was also liable to forfeiture under section 141 CEMA.
13. On the question of restoration, Mr McEntee's view was that the scale of the importation and the circumstances surrounding it did not allow him to implement the revised policy which could be applied where people imported modest amounts for friends and family which they then supplied at cost and where there had been no attempt at concealment or dissimulation. As already indicated, the Appellant had misled the Officer in several respects, and apart from the half kilo of Gold Leaf tobacco that the Appellant said was for a friend, the Appellant and Mrs Fletcher had claimed that 30 kilos was for their own use. The Appellant had said that the quantity was reasonable; however, the goods had cost over £1,100 and the duty applicable was £2,901. The tobacco that they were importing was a considerable amount. It was generally accepted that a smoker could obtain between 80 to 100 roll-ups from a 50 gram pouch. It would have been possible to obtain between 48,000 and 60,000 roll-up cigarettes from the quantity imported. The Appellant in his original application to the Tribunal had stated that he considered the Officer's action of seizing the vehicle late in the evening late in the evening to be unfair and heavy-handed. Mr McEntee pointed out that it was the Appellant who decided to travel back from the Continent late in the evening with a six-month-old baby. The Appellant had spoken to the Complaints Section on 17 May 2002 and they had advised him to put his concerns to them in writing. In relation to the review, Mr McEntee considered that the time of day had no relevance in deciding the reasonableness or otherwise of the decision not to restore the vehicle to the Appellant at a later date. (This is our interpretation of an obscurely worded sentence in the re-review letter.) Mr McEntee considered that the Appellant had not presented the Commissioners with any valid reasons and there were no exceptional circumstances that would warrant the restoration of the vehicle.
14. In his oral evidence the Appellant said that when he had bought the tobacco, he had thought that he could bring in any amount. He went by the yardstick of a note issued by the Commissioners to a Mr Sweeney, who had been permitted in 1998 to import 13.5 kg of hand-rolling tobacco. When he had been pulled over, the officers had been very abrasive. His wife had been interviewed with the children present. At no time had he or his wife been told that they risked losing the car. At 11.30 p.m., when they had asked the officers what they were supposed to do now, the response had been that they should have thought of that; no help had been offered, despite the problems of dealing with the children. He thought that the younger members of the Customs team looked quite shocked at their treatment. The Appellant said that he had made various trips; these were connected with his ex-wife Mrs Moyle's fortieth birthday celebrations. Before the first occasion, he had not travelled to the Continent for about five years. He had thought that he could go every week. The Officers had thought that he did not have enough money; his car was worth £10,000, and they had not looked at his tax records.
15. In answer to Mr Mellor, the Appellant accepted that he and Mrs Fletcher were importing five boxes of tobacco. He also accepted the figure of 80 to 100 roll-ups per pouch. He had not realised that tobacco had a limited life. He did not know how many cigarettes could be produced from the five boxes. He had since given up smoking; in this respect, the experience had been a benefit. He thought that the equivalent price per pouch was £9; when tobacco was cheaper, one could be much freer with it, in the same way as with cheap drink. He accepted that this was a significant quantity. At the time when they were stopped, Mrs Fletcher was driving. The Officer had spoken through the window; the Appellant had been in the back and had answered some of the questions. The Officer had initially spoken to Mrs Fletcher. When he had asked about the quantity of tobacco, the Appellant had said that he had three boxes in the boot. The others in the front were not covered up. They had also bought wine and cheese; these had cost £400 or £500. He accepted that neither he nor Mrs Fletcher had mentioned the two boxes of tobacco in the front of the car. These had been placed in the footwell under the child seat. There was also wine in the footwell. He did not consider that the boxes were obscured by the child seat. The boot was full; when emptied, the contents filled two supermarket trolleys.
16. In reply to a further question from Mr Mellor, the Appellant did not accept that he had tried to mislead the Officer. He agreed that the reference to three trips in the last three years had been incorrect. They had been preparing for the party, and all the trips had been in November/December. There had been four or five trips, all in a short space of time. Mr Mellor referred to a schedule of sailed bookings, attached to Mr Rowland's first witness statement. This showed three return trips to Calais, on all of which the Appellant had been one of those travelling; the dates were 29 November and 11 December 2000, and 3 January 2001. Mr Mellor referred also to Mr Rowland's second witness statement; this showed that the Appellant had travelled with Mrs H Moyle and Ms H Duffield on 4 December 2000 in a Mercedes car. (The spelling of the surname in the booking records was "Dufield".) The Appellant confirmed that on the latter occasion he had been driving his wife's car. He had not been stopped on any of these occasions. He accepted that this amounted to four trips in thirty-six days. Mr Mellor asked why he had not remembered this when questioned by Mr Harding. The Appellant said that this was not deliberate; he had said three instead of four. He had not been travelling before; these trips were near the date of the party. Mr Mellor referred to the Appellant's letter dated 15 January 2001, in which he had mentioned three trips; was this wrong again? The Appellant confirmed that the reference should have been to four instead of three. He could not remember the Officer reading through the notes to him, but he agreed that he had signed the notebook. The reference to bringing in a van load was what he had thought; he had thought that there were no limits.
17. Mr Mellor referred the Appellant to the information about Mr Sweeney. The Appellant explained that Mr Sweeney had had two and a half boxes totalling 13.5 kg. Each of the boxes in the Appellant's case was bigger, having 120 pouches. This meant that the total was higher. He had spoken to his friend before he travelled; they had not spoken about the guideline levels, but his friend had said that he would be all right with two and a half boxes. Mr Mellor then referred to the Appellant's letter of 25 February 2001, in which he had said that he had been assured by the Commissioners' own department prior to travelling that these were guidelines and not law, yet he had told Mr Johnson that he had been unaware of the guideline levels. The Appellant replied that no-one had a real idea of the true position.
18. Mr Mellor asked why the Appellant had referred to giving tobacco as Christmas presents when Christmas had already passed. The Appellant's explanation was that, as already mentioned, an earlier trip had had to be cancelled. Mr Mellor asked whether the quantity of tobacco was so much that the Appellant and his wife could not have smoked it; the Appellant emphasised that the real point was that he was not going to sell it. He did not think that it would last as long as the three or six years suggested. He said that if he had been acting as a smuggler, he would have used a van, and would not have had his family with him when bringing in tobacco.
19. The earlier trip on 29 November had been for shopping. The Appellant had gone with his sister, his son, and his son's mother Mrs Moyle. They were preparing for a party in February; fifteen people were renting a Scottish castle for a week. The trip on 11 December had been with Mrs Moyle and his son's best friend. They had bought similar shopping. On one trip the Appellant had bought about fifteen pouches of tobacco. The reason that they were so late on the January trip when they had the baby with them was that they had been for excursions and to a canal. The Appellant did not remember having a P&O leaflet relating to guidelines for excise goods; all he could remember was notices on the wall. He had been given a leaflet by Customs afterwards.
20. In his oral evidence, Mr Harding said that there was no record of why the Appellant's vehicle had been stopped. Both Mrs Fletcher and the Appellant had responded to his initial questions. The Appellant had declared the three boxes in the boot. Mr Harding had asked Mrs Fletcher to open the boot. He had had a quick look round the vehicle. A baby seat on the front seat was overhanging the footwell and obscured it from view. He could see what was there when he opened the door. In his view, there would have been sufficient room for two more boxes of tobacco in the boot. He said that he would always have asked to carry out an interview without children being present. During the interview they were spinning on the office chairs; he did not think that they took much notice. The factors that he had taken into account were the 1 kilo minimum indicative limits guideline, the amount spent, the several recent trips (for which he believed a computer check had been run), and the Appellant's answers. He referred to "excessive consumption"; we take this to mean that the quantity of tobacco was considered to be far in excess of the consumption levels claimed by the Appellant and Mrs Fletcher. The Appellant had referred to travelling three times in three years; this had actually been three times in just over a month. Mr Harding's view as to the reason for placing the boxes in the footwell under the baby seat was that this was so that he would not see them. He had concluded that the intended purpose of the importation of the tobacco was commercial. Either the Appellant and Mrs Fletcher were being paid to bring the tobacco into the UK, or they were going to distribute it themselves. In his experience, those passing excise goods on at cost usually told the Customs officers. On the discrepancy between the 30 kg referred to on the form C 156 and the other references to 30.5 kg, he explained that they had found a further 0.5 kg Gold block. On the treatment of the family, his response was that this was unfortunate but that it had been their choice; the Commissioners could not treat people differently. There were hotels and guest houses within 100 yards of the Docks.
21. The Appellant cross-examined Mr Harding. If the Commissioners did not treat people differently, why, given the 1 kg guideline, had Mr Sweeney been allowed to import 13.5 kg? He had had two types of tobacco, the Appellant only one. Mr Harding explained that if there was a large quantity, the officer concerned would have to interview and be satisfied that the purpose was commercial. On the evidence that Mr Harding had, he had been so satisfied. Mr Sweeney's interview had had a different result. The Appellant asked Mr Harding why he had referred to income and tax credits but had not mentioned savings. Mr Harding said that the Appellant had given the figure of £50 per month as spare, and £1,100 was large compared with this. On the question of carrying out the interviews without the children present, he reiterated that he would have asked about this, although this would have meant delaying the interviews. The Appellant challenged Mr Harding on the extent to which the baby seat obscured the footwell, and on whether there would have been room for the two boxes in the boot. Mr Harding confirmed that he had not seen the tobacco because of the baby seat, and that his recollection was that it would have been possible for the two boxes to be placed elsewhere in the vehicle.
22. Mr McEntee's evidence largely confirmed the contents of the review letter. The reference to determining whether the Commissioners had acted reasonably harked back to earlier guidance. He confirmed that it was for him to consider all the facts afresh and make a new decision. He had considered whether the revised policy following Lindsay could be applied. This referred to supplying goods to friends at cost, and an absence of dissimulation. That had not been the case here. There were several occasions where the travellers had misled the officers. He had considered the humanitarian questions relating to restoration. On the timing of the family's departure from the Docks, this had not been that late in the evening, and there were plenty of hotels. If they had been prepared to spend so much on tobacco, they should have been able to pay for accommodation. On the question of the Appellant lodging a written complaint, there was no record of his having done so. Mr McEntee confirmed that he had not at any time before the hearing seen the two letters from Mrs Fletcher and the Landmark Trust letter relating to the booking of the castle. Apart from a telephone call from the Appellant after the review, the Appellant had made no contact with him and had provided no further information. Mr McEntee did not think that the booking for the party changed his conclusion; for a party, one would expect wine and spirits rather than tobacco. Mr McEntee confirmed that Mr Sweeney's circumstances could have no bearing on the review.

Arguments of the Appellant

23. The Appellant pointed out his lack of expertise, and asked the Tribunal to bear in mind his nervousness. He felt that he had been wronged, and was unhappy at the treatment of the children. He had been to France for a shopping trip with the family. He had bought tobacco and thought that he could buy any amount. He had gone by the yardstick of the note issued to Mr Sweeney. The officers had been very abrasive. The day in France had been very enjoyable; the treatment by Customs had been a complete contrast. Even if he had been guilty of something, it was wrong for the children to be treated as they had been. He had no record of selling tobacco; he was not a smuggler, but a gardener. He had no expertise in paperwork; all he was able to do was to put the facts to the Tribunal. He had the truth on his side. The Commissioners' arguments were all based on assumption. There were inconsistencies in their treatment; they had not asked how much tobacco Mr Sweeney would have been able to smoke. His position was not like that of Mr Wilkinson in Commissioners of Customs and Excise v R, ex p Hoverspeed Ltd and Others [2003] 3 WLR 950 (CA) at [55], cited by Mr Mellor. His spare £50 to £60 a week was "drinking money". The vehicle had been his work vehicle, worth £10,000, and the recent service had cost £800. Its loss had been a major blow; he had had to borrow a vehicle. He felt that he had been unfairly penalised. He was not an unemployed person selling tobacco "on the side"; he felt that he had a right to buy it. The experience of walking round Dover with the family at 11.30 p.m. had been unpleasant, with gangs wandering about.

Arguments for the Commissioners

24. Mr Mellor explained that under section 163 CEMA, if a Customs Officer had reasonable grounds to suspect that a vehicle was, or might be, carrying goods liable to forfeiture, the Officer could stop and search that vehicle - Hoverspeed at [15]. The Officer was permitted to rely on profiles and trends to establish such reasonable grounds – Hoverspeed at [39(iv)]. It was for the Commissioners to show that there were such grounds – Hoverspeed at [23]. (He acknowledged that in the present case there was no evidence as to why the vehicle had been selected.) If they failed to do so, the checks would have been invalid; however, even so, the seizure of the excise goods and the vehicle would not thereby be invalidated - Hoverspeed at [49].
25. On the question of "own use", the Commissioners accepted that the 1992 Order failed to implement the 1992 Excise Directive, to the extent that the 1992 Order made excise goods imported from another Member State chargeable to excise duty without it being established that the goods were imported into the UK for a commercial purpose, and that it placed a persuasive burden of proof on the individual to prove that the goods were not held for a commercial purpose where the goods were in excess of the minimum indicative limits. Although the standard statement read out to the Appellant and Mrs Fletcher reflected the misapprehension of the legal position and the burden of proof, the question was what attitude the Commissioners actually adopted in coming to the conclusion that the goods were liable to forfeiture Hoverspeed at [54]. Mr Mellor also referred to Gascoyne v Customs and Excise Commissioners [2003] 2 WLR 1311 at [83] and [106] showing that in practice in many cases the burden of proof plays no real part in the Commissioners' determination. In the present case the Officer had given full reasons for seizing the excise goods and the vehicle. Mr Mellor argued that the matter was not decided on the basis of any legal misapprehension or by reference to any burden of proof. The Officer had reached a clear conclusion disbelieving the travellers' contention that the goods were for "own use". The seizure was therefore not invalidated; he cited Hoverspeed at [55] and [56].
26. The Commissioners contended that the Appellant's intention was to sell the goods on a commercial basis, in the sense of a sale for a profit. Mr Mellor referred to various matters in support of this: the amount of tobacco; the Appellant and Mrs Fletcher seeking to mislead the Officer by declaring only three boxes; the Appellant's reference to three trips in three years when this was his fourth in 36 days; the reference to giving Christmas presents when Christmas had already passed; the claimed levels of consumption and the time on such basis that the tobacco would have lasted; and the level of spending compared with their commitments. The correspondence relating to Mr Sweeney was of no relevance, as it was not possible to know what factors had been taken into account. Mr Mellor also referred to the inconsistency concerning the Appellant's knowledge of the guideline levels. At his interview he had said that he was not aware of them, yet in his letter of 25 February 2001 he had referred to being assured by the Commissioners' own department prior to travel that these were guidelines and not law. Clearly, one of these statements must have been wrong.
27. As the tobacco was not held for the Appellant's and Mrs Fletcher's own use, and was for a commercial purpose, and duty had not been paid on it, it was liable to forfeiture. (The tobacco concealed and/or not declared was also liable to forfeiture under section 78 CEMA.) Under section 141(1) CEMA, anything mixed, packed or found with the goods liable to forfeiture was also liable to forfeiture. The vehicle was liable to forfeiture under section 141(1)(a) CEMA. The goods and the vehicle had been properly seized under section 139 CEMA.
28. Under section 16(4) Finance Act 1994, the Tribunal's jurisdiction was confined to a consideration of the reasonableness of the Review Officer's decision. The Court of Appeal had confirmed in Gora and Dannatt v Customs and Excise Commissioners [2003] EWCA Civ 525 at [39] that in making this determination the Tribunal has power to make findings of primary fact, including as to the intended use of the goods in question. (Mr Mellor also referred to Gascoyne at [117].) The Tribunal should then go on to decide whether, in the light of its findings of fact, the decision on restoration was reasonable. (The Tribunal could not reconsider forfeiture.) The Tribunal could not substitute its own decision for that of the Review officer simply because it would have arrived at a different one. The Tribunal could only interfere with the review decision if it found that the Commissioners could not reasonably have arrived at that decision; the test was the same as the Wednesbury one. The decision had to be judged in the light of the information available to the Commissioners at the time the decision was made; facts and matters raised by the Appellant after that stage could not be taken into account in the Tribunal's consideration of whether the decision had been reasonably arrived at. Mr Mellor referred to section 14(5) Finance Act 1994 in relation to an appellant requesting a further review in the light of new information.
29. Mr Mellor argued that the decision was reasonable. Mr McEntee had taken into account the Commissioners' policy in relation to the restoration of privately owned vehicles. The Commissioners were entitled to adopt a policy through which their discretionary powers under section 152 CEMA was to be exercised, and Mr McEntee had been entitled to take that policy into account. The policy pursued the legitimate aim of deterring the importation of goods for commercial purposes without payment of duty and encouraged compliance. Mr Mellor argued that the Commissioners had not fettered their discretion by refusing to listen to an application that the policy should not be applied in the present case; they had considered whether there were any reasons for disapplying the policy, and had only followed it after due consideration of all the facts and matters surrounding the seizure of the excise goods and the vehicle, and of the Appellant's representations. He referred to Mr McEntee's evidence, and to Gascoyne at [102]-[104].
30. The second issue in relation to the policy was whether its application in the Appellant's case complied with the requirements of proportionality. Did the policy achieve a fair balance between the deterrence of smuggling and the protection of revenue on the one hand, and the right to enjoyment of property, on the other, in accordance with Article 1, Protocol 1 ECHR? Mr Mellor distinguished the Appellant's case from Lindsay, as the Commissioners had reasonably concluded that the goods were intended for a commercial purpose, in the sense that they were to be sold at a profit. It followed from Lord Phillips MR's judgment at [63] that the "social distribution" matters referred to at [64] did not need to be considered in relation to the Appellant. Mr Mellor also referred to Houlton Meats Ltd (Excise Decision No. E00233) at paragraph 15, which showed that where the importation was regarded as commercial smuggling, the value of the car in relation to the duty could be ignored. He also referred to Gascoyne at [97]-[101]. Mr Mellor submitted that as the Review Officer had concluded in the present case that the goods were held for a commercial purpose (to sell at a profit), and given the travellers' various attempts to mislead the Customs Officer (including the initial misdeclaration) it was reasonable and proportionate not to restore the vehicle. The Review Officer had had to consider the question of hardship, but this was outweighed by the attempts to mislead. On the question of the treatment of the Appellant and his family, it had been his decision to travel at that time of day. There were hotels, guest houses, taxis etc. within a reasonable distance of Dover Docks, and so there was not ill treatment going to the question of humanitarian treatment or restoration. The Tribunal could not go back to the seizure of the vehicle. The treatment of the family had no relevance to restoration; it was a matter of complaint. Finally Mr Mellor argued that Commissioners of Customs and Excise v Newbury [2003] EWHC 702 did not assist with the Appellant's case. In Newbury only one person had been importing goods, and Mr Newbury had given instructions or a warning that the passengers must only bring in goods for their own consumption or as gifts. The case did not assist on the question of proportionality in the context of restoration. In all the circumstances the decision not to restore the vehicle had been reasonably arrived at and the appeal should be dismissed.

Conclusions

31. As Mr Mellor indicated, our jurisdiction is limited to considering the reasonableness of the Review Officer's decision. The test that we have to apply is whether the Commissioners have acted in a way in which no reasonable body of Commissioners could have acted, whether they have taken into account some irrelevant matter or disregarded something to which they should have given weight, or made some other error of law.
32. We consider that it was reasonable for the Review Officer, Mr McEntee, to take into account the matters referred to in his review letter. The quantity of tobacco, 30.5 kg, was very substantial. Whatever the reason for the Appellant only declaring three boxes, neither he nor Mrs Fletcher made any reference to the other two boxes. The Appellant disputed Mr Harding's evidence that he was unable to see these boxes in the footwell under the baby seat. We accept Mr Harding's evidence on this point; our conclusion is assisted by the travellers' failure to mention them, which also renders less material the question whether there would have been room for them in the boot. (If it were to be material, on balance we prefer Mr Harding's evidence on this question.) It was a reasonable conclusion that this was an attempt to mislead the Customs Officer. Similarly, it was reasonable to conclude that the reference to three trips in the last three years was an attempt to mislead, as Mr McEntee had evidence that the trips had been concentrated within a much shorter period. The references to giving some of the tobacco away as business gifts, and to making Christmas gifts despite Christmas having been some days before, were not consistent with the answers as to expected consumption given by the Appellant and Mrs Fletcher. It was reasonable to be sceptical as to the intention to make Christmas gifts at that stage. Apart from these inconsistencies, we note that the Appellant told Mr Harding that they had intended to buy some beer but had not bought any, yet in the interview the Appellant stated that he had bought four cases of beer. This was not specifically taken into account in the review letter, but we consider that it does affect the credibility of the Appellant's evidence. We think that it was reasonable to take into account the Appellant's and Mrs Fletcher's inability to calculate how long the tobacco would last. It strains credibility to assume that smokers thinking of spending such a substantial amount would not carry out a realistic estimate in advance of how long the tobacco would last, and would not take into account that the shelf life of tobacco is not unlimited. Although on its own this might appear merely foolish or reckless, taking into account the other circumstances we think that it was reasonable to conclude that the tobacco could not have been for their own use. In considering the level of spending, Mr McEntee took into account the financial commitments implied by the reference to a family with four children in receipt of family credit (his letter referred to family allowance). He did not specifically mention the spending money of £50 to £60 per week in that section of his letter, but we consider that by implication he did take this into account. No reference was made at any stage to any savings, but we do not think that this affects the reasonableness of the decision, as we think that the Appellant or his wife would have volunteered details if there had been any material amounts of savings. Another matter not referred to in the review letter, but which again goes to credibility, is whether the Appellant was aware of the guidelines. As Mr Mellor contended, his answer in the interview and his letter dated 25 January 2001 were inconsistent. We agree that the correspondence relating to Mr Sweeney could not be taken into account; it was not clear to us at what stage the Appellant had seen the correspondence, but he had discussed the number of boxes in advance of the trip, even though he said that they had not discussed the guidelines as such. Although it is not strictly in point in this appeal, we would comment that information about the treatment of one individual in one set of circumstances cannot possibly be a guide to the treatment of another person in other circumstances, precisely because no two sets of circumstances can ever be exactly the same. On the question of the further correspondence submitted after the review had been carried out, we agree with the Commissioners' view that this cannot be taken into account. Although not strictly relevant, we agree with Mr McEntee's conclusion in the course of his evidence that for a party, it was much more likely that alcoholic drink would be purchased than tobacco.
33. We agree that the treatment of the appellant and his family by the Customs Officers concerned is not a matter on which the Tribunal can comment. If the Appellant wishes to complain, he should pursue the complaint in writing, as mentioned by Mr McEntee.
34. We accept Mr Mellor's argument that the seizure was not invalidated by the failure to give reasons for stopping the vehicle. Although possible reasons were considered in evidence, we do not think that speculating about these assists, as it was clear that at that stage no record was kept of such reasons. The issue of the burden of proof is not material in this case; taking into account all the evidence as to the circumstances, the importation of such a significant amount of tobacco could only be explained by a commercial motive. Whether it was for sale by the Appellant or by some other party cannot be established, but we do not see it as necessary for the Commissioners to prove the exact commercial intentions; in practice this might be impossible. It is enough for them to provide evidence showing on the balance of probabilities that the motive must have been commercial. We consider that the evidence here did demonstrate this; despite the Appellant's protestations in his letter, it was entirely appropriate for levels of consumption and ability to pay to be reviewed.
35. We therefore find no reason to interfere with the re-review decision, and so dismiss the appeal. There was no application for costs, so we do not award costs.

JOHN CLARK

CHAIRMAN

RELEASED:

LON/02/8214