United Kingdom VAT & Duties Tribunals (Excise) Decisions

Critchley v Customs & Excise [2003] UKVAT(Excise) E00469 (08 August 2003)

EXCISE DUTY — forfeiture of hand rolling tobacco — first visit to continent — new passport — 10 kilograms brought in for wife and self — guideline limit 3 kilograms per person — decision not reasonable — case to be reviewed

MANCHESTER TRIBUNAL CENTRE

MICHAEL CRITCHLEY Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: David S Porter LLB (Chairman)

Brian Strangward (Member)

Sitting in public in Manchester on 21 July 2003

The Appellant appeared in person

Mr D Mohyuddin of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2003


 


DECISION

1. By notice of appeal dated the 17 February 2002 the Appellant appealed against the seizure of his tobacco which he had acquired for himself and his wife for their personal use. By a review letter dated 12 December 2002 the Respondents refused to return the goods.
2. The Appellant appeared in person and Mr D Mohyuddin of counsel appeared for the Respondents and produced a bundle for the Tribunal.

The Facts

3. Michael Critchley (the Appellant) lives at 32 Victoria Road, Cadishead, Earlham, Manchester, M44 5FB. On 8 November 2002 he travelled by bus from Knutsford service station through Dover to Calais for the purpose of buying tobacco. His brother had made the trip on several occasions and recommended that he ought to do that.
4. The Appellant obtained a new passport and paid £34 for the trip including the ferry and just over £6 to park his car at Knutsford.
5. The Appellant is disabled and is in receipt of disability payment of £140 a week. He has his rent paid for him and a mobility allowance of £55 a week. He lives with his wife and is spending almost £80 a week on cigarettes for both of them. As his brother had asked him to go with him to buy tobacco he had borrowed money from his mother and father; £200 from his mother and £300 from his father. He bought 2 cases of hand rolling tobacco which is sold in 5 kilogram cases.
6. He left England at 11 o'clock on the 8 November and returned through Dover at about midday on the 9 November. The bus was stopped and the passengers were asked to be taken off and he was selected to have an interview although he was unclear why that had happened. The details in the interview appear at Folio Tooke 1 of 4 to 4 of 4. He explained that at the interview he had gone over to France to specifically buy hand rolling tobacco, that he smoked some 1.5 pouches per day and his wife did the same. He subsequently corrected that and said that they smoked 1.5 pouches between them. It was unclear how many cigarettes he could get to a pouch but he reckoned that 1.5 pouches was somewhere between 130 to 165 cigarettes but he could be no more specific.
7. The goods were taken off him.
8. At Christmas he received £700 from members of the family (including his mother and father who let him have £300 between him and his wife) and he repaid £500 that had been lent to him. This was clearly a family arrangement.
9. Further, his daughter smoked hand rolling tobacco and when she came she would help herself to some pre-rolled cigarettes. It was unclear how many she would have smoked, but it appeared that this was on a fairly casual basis, when she was without her cigarettes. We came to the conclusion that this was not a large amount.
10. In cross examination Mr Mohyuddin suggested that there were inconsistencies in his story in that he had now changed the amount he smoked to 1.5 pouches for himself and his wife.
11. He considered there was no arrangement within the family for his mother and father to lend him £500 in November only to get it back in December as that did not make any sense.
12. It was unclear how many cigarettes he could get from 1.5 pouches.
13. He had signed the statement which contained sufficient information for the officer on duty to have acted reasonably.
14. Mr Mohyuddin summed up by referring the tribunal to their powers under section 16(4) of the Finance Act 1994. He contended that nothing that had been heard at the tribunal could have led the reviewing officer to have acted in any other way than he did.
15. The purchases were financed by his wife and as such under Hoverspeed in the court of first instance could not be for own use. The Appellant had changed his story to 1.5 pouches between them and whilst it was accepted that this had not been considered by the reviewing officer, it was not material because the goods had been purchased for and on behalf of his wife using her money. In the circumstances the tribunal had no jurisdiction other then to confirm that the decision had been reached reasonably.
16. The Appellant was of the view that husband and wife should be treated as one, and that he had considered that he was buying for his own use if that included his wife. He was also unclear as to why he had specifically been stopped as he had never been abroad before and there was no good reason why the customs officer should ask him to have an interview.
17. He otherwise confirmed the position as identified in the facts.
18. We have considered the facts in this case and are of the opinion that the reviewing officer did not act reasonably. We are of the view where there is a domestic arrangement; that is the parents lent the money to their son for repayment; he purchased goods for himself and his wife and that this is undoubtedly a purchase for his own use.
19. The guidelines have been altered so that an individual can bring in 3 kilograms of hand rolling tobacco. Given that the Appellant could bring in 3 kilograms and his wife the same then there was only a disparity of 4 kilograms or 2 each in relation to the guidelines.
20. Given that the Appellant lives in Manchester and would not have the opportunity to go abroad very often there clearly was a considerable saving to him in bringing in 10 kilograms for his own use. In spite of his disability we believe that the cigarettes were for his own use and that in those circumstances the reviewing officer has not acted reasonably.
21. We therefore require that the case be reviewed.
22. It was agreed that the Appellant had some costs but those would be agreed with the Respondents and failing such agreement would be returned to this tribunal for decision.

D S PORTER LLB

CHAIRMAN

Release Date: