United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00468.html
Cite as: [2003] UKVAT(Excise) E00468, [2003] UKVAT(Excise) E468

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Coward v Customs & Excise [2003] UKVAT(Excise) E00468 (08 August 2003)

EXCISE DUTY —Customs refusal to restore excise goods allegedly held for commercial purpose not for own use — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MR RICHARD COWARD Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr J D Demack (Chairman)

Sitting in public in Manchester on the 10 July 2003

The appellant did not appear and was not represented

Mr David Mohyuddin 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 Richard Coward against a decision on review of the Commissioners of Customs and Excise by letter of 16 December 2002 not to restore to him excise goods consisting of 48 litres of lager, 16 kilos of hand rolling tobacco, 50 cigars and 200 cigarettes seized on 3 August 2002. The goods were seized because they were allegedly being held or used for a commercial purpose
2. When the appeal was called on for hearing, Mr Coward was not present and, since we knew of no reason for his non-attendance, on the application of Mr David Mohyuddin, counsel for the Commissioners, we determined to proceed in his absence.
3. On the basis of evidence consisting of the Commissioners' bundle of copy documents and the witness statements of Messrs B R Rayden and Gerry Dolan both of whom are officers of the Commissioners, we find the following facts to have been established.
4. On 3 August 2002, Mr Coward was a passenger in a car driven by Mr D Jones which was stopped by Customs' officers on entering the UK Control Zone at Coquelles, France. The car was found to hold 47 kilos of hand rolling tobacco, 400 cigarettes and other excise goods. The tobacco was claimed by Mr Jones, Mr Coward and his son Mr P J Coward as to 16 kilos, 16 kilos, and 15 kilos respectively.
5. All three were interviewed by Customs' officers. Mr Coward said that he had bought 3 boxes of tobacco for about £800. He claimed that he would consume the goods himself, except for perhaps 1 or 2 pouches of tobacco, and that he smoked tobacco except when "out", when he smoked cigarettes. He obtained 30 cigarettes from a pouch of tobacco, and smoked "a pouch easily a day". He expected the tobacco to last him 9 months. He also claimed to have sufficient income to finance his purchases, and to have £5000-6000 in savings.
6. In so far as Mr Coward was concerned his tobacco was seized by Customs because an officer claimed to be satisfied that it as not for own use; and the other goods were seized as being packed with goods liable to forfeiture (see s. 141(b) Customs and Excise Management Act 1979).
7. By letter of 13 November 2002, Mr Coward requested the Commissioners review a decision not to restore the seized excise goods to him. The task of carrying out the review was entrusted to Mr Rayden.
8. In considering whether the goods should be restored by his decision on review of 16 December 2002, Mr Rayden took account of the large quantity of tobacco Mr Coward was importing, the number of cigarettes he claimed to roll from a pouch of tobacco – 30 as opposed to Customs accepted number of between 80 and 100 - the fact that he had no cigarette rolling machine with him, and did not know the price of duty-paid tobacco in the UK. He observed that, whilst the three travellers claimed to know the guidelines or importing excise goods, they had ignored them. Mr Rayden also added that the distance travelled by the group to purchase the goods – a round trip of over 800 miles – "increased his doubts" that they would import such large quantities unless they were expecting to receive money for the tobacco. Consequently, he concluded that there was no reason for departing from departmental policy of not restoring seized goods, and confirmed that they would not be restored.
9. At the time the goods were seized from Mr Coward the Excise Duties (Personal Reliefs) Order 1992 was in force. It required an appellant to satisfy Customs that the excise goods he had imported were not being held or used for a commercial purpose.
10. The 1992 Order was considered by the Divisional Court in Regina (Hoverspeed Ltd and Others) v CEC [2002] 3 WLR 1219 and in two respects was held to be incompatible with EC Council Directive 92/12/EEC and art 26 of the EC Treaty, the former being that under which it had been implemented. Firstly, it made excise goods imported into the UK from the Member State where excise duty had been paid additionally liable to UK duty without its being established that the goods were imported into the UK for commercial purposes. And secondly it imposed on the citizen the burden of establishing that he was not holding the goods for a commercial purpose. The Commissioners did not appeal against the court's decision in that regard. (The 1992 Order was subsequently revoked and amending regulations made with effect on 1 December 2002).
11. But notwithstanding that under the 1992 Order the burden of proving that the goods were not held for a commercial purpose was wrongly placed on Mr James, we are quite satisfied on the evidence, particularly of so large an importation of tobacco, that had the burden been on the Commissioners the end result would inevitably have been the same. We should have found that Mr James held the excise goods for commercial purposes. In those circumstances, the flaws in the 1992 Order avail Mr Coward nothing. (See John Dee Ltd v CEC [1995] STC 941 where at p. 45 Neill LJ said that "where it is shown that, had the additional material been taken into account, the decision would inevitably have been the same, a tribunal can dismiss an appeal").
12. We hold that the Commissioners' decision not to restore Mr Coward's goods to him was not unreasonable and we dismiss his appeal.
13. We direct Mr Coward to pay the Commissioners' costs of £180.
David Demack Chairman Release Date;

MAN/01/8243