United Kingdom VAT & Duties Tribunals (Excise) Decisions

Bental v Customs & Excise [2003] UKVAT(Excise) E00472 (12 August 2003)

EXCISE DUTY – Tobacco purchased for own consumption and brought into the UK – goods seized as abandoned – whether decision on review not to restore the goods reasonable – no – appeal allowed

LONDON TRIBUNAL CENTRE

CONSTANCE MARGARET BENTALL Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: MALCOLM GAMMIE Q.C. (Chairman)

RANBUIR SURI

Sitting in public in London on 3rd February 2003

The Appellant in person

Matthew Barnes of Counsel for the Respondents

© CROWN COPYRIGHT 2003


 


DECISION

1. Mrs Bentall appeals against a decision by the Respondents dated 17^th May 2002 refusing to restore excise goods consisting of 200 cigarettes and 800 grammes of hand-rolling tobacco.
2. At the hearing a bundle of documents was produced to us on behalf of the Respondents. Mrs Bentall and her husband each gave evidence. In addition, we heard evidence on behalf of the Commissioners from Mr Stuart Weatherall and Ms Sharon Butler, both uniformed officers of HM Customs and Excise who were involved in the seizure, and Mr Carl Penfold, a senior officer of HM Customs and Excise, who conducted the review leading to the decision of 17^th May 2002. We record below our findings based on the documents before us and the evidence that we heard.
3. On Wednesday 3^rd October 2001 Mr and Mrs Bentall made a shopping trip to Calais, accompanied by two friends. They travelled by coach. According to the receipt produced to us they bought the following amounts of hand-rolling tobacco and cigarettes while in Calais:

20 x 40g Drum HRT = 800g

40 x 40g Samson HRT = 1,600g

Total HRT 2,400g

50 x 20 Benson & Hedges = 1,000

150 x 20 Lambert & Butler = 3,000

Total cigarettes 4,000

They bought a further 1,600 cigarettes at Coquelles. There was no receipt detailing this purchase but Mrs Bentall was able to produce a credit card transaction receipt and a Visa card account statement showing expenditure on the relevant day at Coquelles and of an amount that is consistent with such a purchase.

4. They packed the Calais purchases, with the exception of 200 Lambert & Butler cigarettes in three bags marked with their name together along with their other purchases of groceries and fruit. Whilst in Calais Mrs Bentall had opened one pack of 200 Lambert & Butler cigarettes and handed packets to her husband and her friends, placing the balance in her handbag. Accordingly, there would only have been 2,800 Lambert & Butler cigarettes packed in the three bags. The coach driver placed the bags in the luggage compartment of the coach. Mr and Mrs Bentall carried the 1600 Lambert & Butler cigarettes that they had purchased at Coquelles with them on the coach.
5. On their return the Respondents' Officers stopped the coach at the United Kingdom Control Zone in Coquelles, France. Although they had made previous cross-Channel shopping trips, Mr and Mrs Bentall were unfamiliar with the procedures that they should follow in this event. The Respondents' Officers boarded the coach and directed the passengers to collect their belongings and walk through the passenger hall. They warned passengers not to leave any tobacco goods on the coach or else those goods would be liable to be seized.
6. Mr and Mrs Bentall and their friends were sitting at the rear of the coach. At the rear they were unable to hear these instructions, initially at least, but they eventually gathered that they were being told to disembark, taking any tobacco goods with them, and to walk through the passenger hall. Mr and Mrs Bentall said that they did not hear the Respondents' Officers instruct passengers to take any tobacco goods that were stowed in the coach's luggage compartment. There was some disagreement between the Respondents' witnesses and Mr and Mrs Bentall as to whose fault this might have been. Wherever the fault lies, however, we are satisfied that Mr and Mrs Bentall were unaware when they left the coach that they should retrieve their tobacco goods from the luggage compartment of the coach.
7. Having disembarked and proceeded as directed with other passengers Mrs Bentall saw from a distance that her luggage had been offloaded from the coach. She recognised two of her three shopping bags on the ground by the coach. It was at that point that another passenger told Mrs Bentall that the Respondents' Officers had told passengers to retrieve any tobacco goods from the luggage compartment and to carry the goods with them through the passenger hall.
8. Mrs Bentall immediately returned to the coach to retrieve her bags. It is at this point that there is some disagreement between Mr and Mrs Bentall and the Respondents' Officers as to what transpired. Shortly stated, Mrs Bentall's account is that she approached the Respondents' Officers and explained that she had returned to claim her bags because they contained tobacco goods. She told them that she had not understood the need to remove them from the luggage compartment. She reclaimed the two bags that had been offloaded and enquired as to the whereabouts of the third bag. She says that she was told that it was being examined. There is no dispute that Mrs Bentall did have a third bag and that it was not produced to her at the time.
9. One of the Respondents' Officers (Sharon Butler) then searched Mr and Mrs Bentall's two bags in their presence. She asked them for an explanation of the quantity of hand-rolling tobacco and cigarettes that she found. Being satisfied with their explanation, the Officer allowed them to repack the bags. Mrs Bentall says that she repacked 800 Benson & Hedges and 2,800 Lambert & Butler cigarettes and 4 packets of hand-rolling tobacco. The balance of their Calais tobacco purchases was in the third bag. At some point and out of sight of Mr and Mrs Bentall this bag was searched and replaced in the coach by the Respondents' Officers. On returning home, Mrs Bentall realised that the balance of her purchases had been removed from the third bag. She immediately wrote to the Respondents asking them to restore her goods.
10. Sharon Butler's evidence, based on her recollection and supported by the written note that she made at the time (which Mr and Mrs Bentall signed), confirms that they claimed ownership of the two bags that had been offloaded from the coach and mentioned a third bag. According to Ms Butler, she asked Mrs Bentall whether there were any cigarettes or tobacco in the third bag, to which Mrs Bentall replied that the bag contained only groceries. This question and Mrs Bentall's answer are not recorded in Ms Butler's note. What her note states is that—

"[Mr and Mrs Bentall] initially went through the coach hall controls with 800 cigarettes each but then claimed bags underneath coach which were theres (sic) – containing a further 3,200 cigarettes and 2kg HRT between them."

Mrs Bentall says that Ms Butler asked whether the third bag contained groceries and fruit and Mrs Bentall confirmed that it did. This was quite correct. Mrs Bentall did not understand Ms Butler to be asking whether the third bag contained only groceries and fruit. So far as Mrs Bentall was concerned she had already told the Respondents' Officers that her bags contained tobacco goods, so that did not need mentioning again.

11. In her evidence, Ms Butler states that the bags she examined (i.e. the two reclaimed by Mrs Bentall) contained a total of 3,200 cigarettes and 2kg of hand-rolling tobacco. We do not imagine that this is a matter of Ms Butler's definite recollection. Quite reasonably she derives this from her contemporaneous note. That note, however, is ambiguous. It does not refer to two bags as such but to bags underneath the coach. So far as Mrs Bentall was concerned, she had claimed three bags and had been told that the third bag was being examined separately.
12. Ms Butler's note states that the bags underneath the coach contained 3,200 cigarettes and 2kg of hand-rolling tobacco, in addition to the 1,600 cigarettes carried by Mr and Mrs Bentall (their Coquelles purchases). Does this record what Mr and Mrs Bentall told Ms Butler they had bought or what Ms Butler found in the two bags? Either way, other evidence suggests that the figures are wrong. If the note records what Mr and Mrs Bentall declared, they must have made an inaccurate declaration. But the figures also do not accurately record what Ms Butler should have found. The three bags contained 3,800 cigarettes (after allowing for the 200 pack that Mrs Bentall had opened while in Calais) and 2.4kg of hand-rolling tobacco. Based on the seizure, the third bag contained 800g of hand rolling tobacco and 200 cigarettes. The two bags would then have contained 3,600 cigarettes and 1.6kg of HRT.
13. What Mr Weatherall's evidence confirmed (again supported by his contemporaneous note) is that during his search of the coach he found and seized 800g of hand-rolling tobacco and 200 Benson & Hedges cigarettes. His note indicates that these were "unowned" and in evidence Mr Weatherall said that they were checked for signs of ownership but as no markings or owner could be identified the goods were seized as being abandoned. Mrs Bentall said that this could not have been the case because all her bags were marked with her name. She produced to us what she claimed was the bag in question, marked with her name. While this cannot be verified absolutely, we accept Mrs Bentall's evidence that the third bag was marked with her name.
14. The differing figures of cigarettes and hand-rolling tobacco that appeared in the papers was an issue of which Mr Penfold took account in reaching his decision on review. The figures are certainly confusing and difficult to reconcile, a point for which Mrs Bentall must share some responsibility. For example, Mrs Bentall said in her letter of 4^th October 2001 that Ms Butler emptied the contents of the two bags and counted out 1000 Benson & Hedges and 1600 Lambert & Butler cigarettes. She corrected this in a letter dated 8^th November 2001 when she said that the two bags contained 800 Benson & Hedges and 2,800 Lambert & Butler cigarettes and 1.6kg of hand-rolling tobacco. Mr Penfold concluded that the discrepancies in the figures meant that Mrs Bentall had not demonstrated ownership of the contested goods. An obvious point to make in relation to that conclusion is that Mrs Bentall only discovered the missing goods when she reached home. That at least raises the possibility that the seized goods belonged to another passenger and that Mrs Bentall's goods were mislaid somewhere between Coquelles and home.
15. Having considered the evidence, however, the only reasonable conclusion to our minds is that the goods seized by Mr Weatherall were Mrs Bentall's goods. Mr Penfold's calculations in his review letter are incorrect because they compare the amount recorded in Ms Butler's notes (3,200 cigarettes purchased in Calais and 1,600 purchased at Coquelles) with the 4,000 cigarettes recorded on the Calais receipt. Mr Penfold was unaware at the time that Mr and Mrs Bentall had purchased a further 1,600 cigarettes at Coquelles. Mr Penfold's conclusions are therefore based on a comparison of the 4,800 cigarettes recorded by Ms Butler and a purchase receipt for 4,000 cigarettes when Mr Penfold should have been comparing the 4,800 cigarettes with purchases of 5,600 cigarettes.
16. Ignoring their Coquelles purchases, the receipt shows that Mr and Mrs Bentall purchased 4000 cigarettes and 2.4kg of hand-rolling tobacco in Calais. Whatever discrepancies may appear in Mrs Bentall's letter of 4^th October 2001, the fact remains that she wrote immediately to the Respondents stating that the Respondents' Officers had improperly removed 800g of hand-rolling tobacco and 400 cigarettes from the third bag. On 4^th October 2001 (and when she wrote with the correct figures on 8^th November 2001), Mrs Bentall could have known nothing of what Mr Weatherall had seized from the coach as "unowned". The coincidence of what Mrs Bentall claimed had been seized and what was seized from the coach is too great to bear any other explanation than that these were Mrs Bentall's goods. Of course, the seizure related to 200 cigarettes only, rather than 400 cigarettes. We think, however, that the discrepancy lies in Mrs Bentall failing to remember when she first wrote that she had opened a pack of 200 Lambert & Butler cigarettes in Calais and that these (to the extent unconsumed) were being carried on the coach between herself, her husband and their friends.
17. We also accept Mr and Mrs Bentall's version of events, in particular that all three bags placed in the luggage compartment were marked with their name. Thus in our view the goods seized by Mr Weatherall were only "unowned" in the sense that the third bag might have been removed and searched before Mrs Bentall returned to claim her bags and the search officer failed to notice the name. Alternatively, it may be that the goods were immediately removed from the bag on being searched and they then became separated from the bag so that Mr Weatherall could not thereafter identify whose they were. Nevertheless, as we accept that the bag was marked, whichever of the Respondents' Officers searched it could and should have identified the owner of its contents.
18. That leaves the matter of the declaration that Mr and Mrs Bentall made to Ms Butler, which she recorded (and they signed) in her notebook. Mr and Mrs Bentall said that they did not know and could not easily read what they were signing. They claimed that the writing was possibly in pencil and very faintly written. This was not the case from our inspection of the notebook. It is true, however, that the page on which Mr and Mrs Bentall signed contains the last five lines only of Ms Butler's notes. The first part of the entry (which includes details of the amount of goods that Mr and Mrs Bentall declared) appears on the previous page. Mr and Mrs Bentall said that the notebook was folded over for them to sign so that it was impossible to read the notes on the previous page.
19. That does not mean that Ms Butler's notes were inaccurate. As we have pointed out, however, it is difficult to reconcile Ms Butler's figures with what she should have found in the two bags she searched. Mr and Mrs Bentall say that they reached home with 3,600 cigarettes and 1.6kg of hand-rolling tobacco packed in the two bags. This tallies with Mr Weatherall's seizures and the Calais receipt. If 3,200 cigarettes were an accurate record of what Ms Butler had been told it would surely have been a matter of note when her search revealed 3,600 cigarettes? It cannot be an accurate record of what she found based on the other evidence. At the same time, where did the extra hand-rolling tobacco that she recorded come from? Mrs Bentall suggested at one point in the correspondence that the figure of 2kg might have been based on four 50g bags of hand-rolling tobacco (as sold in some outlets) rather than four 40g bags. If so, that further confirms the inaccuracy of Ms Butler's notes.
20. Mr Penfold concluded on 17^th May 2002 that the decision not to restore the goods was correct and reasonable because (1) Mrs Bentall had not mentioned to the Officer that there were tobacco goods in the third bag and (2) the ownership of the seized goods was not proven. He further concluded that it was unnecessary in the light of the correspondence that followed his decision to conduct a further review because Mrs Bentall had produced no new evidence that was capable of altering his earlier decision.
21. We disagree. In out view the only reasonable conclusion on the evidence is that these were Mrs Bentall's goods. We also accept Mrs Bentall's account of events regarding the third bag. She may not have said explicitly at any stage that the third bag did contain tobacco goods. It is more likely that she would have said that she had tobacco goods in her shopping bags without differentiating between them. Indeed, when she returned to the coach she might well not have known what was packed in the two bags and what in the third. We accept, however, that she never told the Respondents' Officers that the third bag contained no tobacco goods.
22. In his submissions Mr Matthew Barnes for the Commissioners said that as a result of the checks on the coach, 200 cigarettes and 800 grammes of hand rolling tobacco were discovered. He said that as Mr and Mrs Bentall had not declared these goods they should be taken to have abandoned them. He also said that there was no good evidence that Mrs Bentall owned the seized goods and that it was therefore quite reasonable for the Respondents not to restore them. He relied upon section 49(1)(a), (d) and (f) to justify the seizure. This provides that—

(1) Where—

(a) except as provided by or under the Customs and Excise Acts 1979, any goods, being goods chargeable on their importation with customs or excise duty, are. Without payment of that duty (i) unshipped at any port …

(d) any goods are imported concealed in a container holding goods of a different description

(f) if any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer,

those goods shall … be liable to forfeiture.

23. We note that in this instance the Respondents have always accepted that Mr and Mrs Bentall's purchases were for their own consumption. There is no question in this case of commercial smuggling. Accordingly, duty is no more chargeable in respect of their purchases of tobacco than it is on their groceries. We also note that the reason why Mr and Mrs Bentall failed to retrieve their third bag was because the Respondent's Officers failed to produce it when Mrs Bentall went to recover it. This was a something that, in the circumstances, lay within their power rather than Mrs Bentall's. Thereafter, it appears that one misunderstanding has followed another but the misunderstanding would never have arisen, or would have shortly been resolved on all sides, had the Respondents' Officers acted as they should have done and retrieved Mrs Bentall's third bag when she first explained her misunderstanding and enquired as to its whereabouts.
24. We therefore allow Mrs Bentall's appeal and instruct the Respondents' to conduct a further review in the light of our findings.
25. We would add the following comments. In the correspondence and in the course of the hearing, Mrs Bentall made various allegations about the conduct of the Respondents' Officers and their truthfulness as witnesses. We are obviously unable to comment on the Officers' conduct on the 3^rd October 2001. Mrs Bentall has complained elsewhere about this and it falls to others to investigate matters as appropriate. Our conclusion should not be taken to suggest that we think that the Respondents' Officers acted in an improper manner on the day. Our conclusion also does not indicate that we think that the Respondents' Officers were untruthful in their evidence. We do not endorse anything that Mrs Bentall had to say on this. We have had to resolve conflicting accounts of past events, which reflect different perspectives of those events and a variety of misunderstandings by those involved as to what was said and done.
26. Finally, it has not escaped our attention that the dispute in this case involves 200 cigarettes and 800 grammes of hand-rolling tobacco, costing less than £100. Despite that amount, we note that the Respondents nevertheless thought it worthwhile to instruct Counsel to represent them and to withdraw three Officers from their normal duties to give evidence before us for a matter that involved no allegation of commercial smuggling. We accept that the Respondents cannot easily defer to any claim for restoration that an individual may make just because the value of the goods involved is small. Many small claims can quickly amount to a large sum of money. Nevertheless, we have difficulty in understanding how this matter could have reached the stage that it did and the Respondents' may wish to reconsider whatever internal guidelines they have for deciding whether to contest particular cases.
27. We assume that in the light of our findings Mrs Bentall's goods (or their equivalent) will be restored without further delay. As Mrs Bentall has been successful before us, she is also entitled to be paid her costs in the appeal. We leave the amount to be agreed with the Commissioners. If not agreed, the matter should be referred to the Chairman of this Tribunal (sitting alone) for a further direction.

MALCOLM GAMMIE QC

CHAIRMAN

RELEASED:

LON/2002/8155