United Kingdom VAT & Duties Tribunals (Excise) Decisions

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Cite as: [2003] UKVAT(Excise) E474, [2003] UKVAT(Excise) E00474

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McEvoy v Customs & Excise [2003] UKVAT(Excise) E00474 (13 August 2003)

RESTORATION OF GOODS AND VEHICLE — reasonableness of decision not to restore — Finance Act 1994 S16(4) —appeal dismissed

MANCHESTER TRIBUNAL CENTRE

LESLIE McEVOY Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Miss J Warbutron (Chairman)

Mr P Whitehead

Sitting in public in Manchester on 24 July 2003

No one appeared on behalf of the Appellant

Mrs L Walmisley of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

DECISION

This is an appeal by Leslie McEvoy against a decision to refuse to restore 10kg of hand rolling tobacco, 11,000 cigarettes, 2.8 litres of whisky and a Peugeot 405 car registration number N134 ORW seized at Coquelles on 13 October 2001.

The Commissioners were represented by Mrs L Walmisley of counsel instructed by the Solicitor for Customs and Excise. The Commissioners put in a bundle of copy documents. The Appellant did not appear and was not represented.

The Tribunal determined to hear the appeal under rule 26(2) of the Value Added Tax Tribunal Rules 1986.

The basic facts of this case as they appear from the documents before the Tribunal are that the Appellant and a companion were stopped at Coquelles by officers of Customs and Excise on 13 October 2001 on their return from Belgium to Manchester. After being interviewed by Customs and Excise officers, 10kg of tobacco, 11,000 cigarettes, 2.8 litres of whisky and the Appellants vehicle were seized.

By a letter dated 14 November 2002, but received 18 January 2002 the Appellant requested restoration of his goods and vehicle. The Commissioners communicated their decision not to restore the goods or vehicle by a letter dated 22 July 2002. By a letter dated 3 August 2002, the Appellant requested a review of that decision stating various reasons why the decision was unfair.

The decision was reviewed by Ms H B Perkins, an officer of HM Customs and Excise on 12 September 2002. The letter setting out the decision not to restore either goods or vehicle appears at pages 18 – 27 of the Commissioners' bundle.

The Appellant appealed that decision to the Tribunal by a Notice of Appeal dated 8 October 2002. The ground of appeal stated is that Customs and Excise confiscated his goods and vehicle on allegations that he was a smuggler which was not the case.

The law as it applies in this case has been the subject of recent review by the Divisional Court in Regina (Hoverspeed Limited) v Customs and Excise Commissioners [2002] 3WLR 1219 ("the Hoverspeed case") and to a more limited extent in relation to seizure by the Court of Appeal in Commissioners of Customs and Excise v The Queen on the application of Hoverspeed Limited [2002] EWCA Civ 1804. These cases make it clear that under the Excise Directive 92/12 EEC goods are either held for personal use and subject to excise duty in the member state of acquisition, Article 8, or held for a commercial purpose and subject to excise in the member state in which they are held, Article 9 (see the Hoverspeed case para 105 and the Court of Appeal at para 65). The Divisional Court in Commissioners of Customs and Excise v Ian Newbury [2003] EWHC 702 (Admin) has confirmed that duty is only payable in the country of origin under Article 8 if goods are acquired by a private individual for their own use which does not include purchase as an agent (see para 32).

The Commissioners are empowered by the Customs and Excise Management Act 1979 (CEMA) section 49 to forfeit dutiable goods which have been imported or held without payment of duty. A vehicle used to carry goods liable to forfeiture is itself liable to forfeiture by section 141(1) of CEMA. All such goods are liable to seizure pursuant to section 139 of CEMA. Such powers, must however, be exercised with due regard to proportionality as they involve the deprivation of a person's property, see Linsday v Customs and Excise Commissioners [2002] STC 588.

Section 152(b) of the 1979 Act allows the Commissioners as they think fit to restore any goods which have been seized. A review and appeal procedure from decisions of the Commissioners is set out in sections 15 and 16 of the Finance Act 1994. A holder of goods may appeal against a review decision of the Commissioners taken under section 15 to the Tribunal. The Tribunal's powers on appeal are, however, limited by Section 16(4) to directing that the Commissioners' decision shall cease to have effect, to directing that a further review be carried out or, if the latter is no longer possible, declaring the decision to have been unreasonable.

Mrs Walmisley for the Commissioners submitted that the Commissioners acted reasonably when reviewing the decision not to restore the goods or vehicle to the Appellant. They considered all relevant matters including all points made to them by the Appellant and did not take account of any irrelevant matters. No documents had been produced to the Commissioners by the Appellant after the date of the review in September 2002. The Appellant had not appeared at the Tribunal. There was no evidence on which the Tribunal could investigate the review decision to determine that it was otherwise than reasonable. The Appellant had not challenged the seizure by taking confiscation proceedings.

The Tribunal's jurisdiction under section 16(4) of the Finance Act 1994 is not one to try again the original decision to forfeit but to consider whether the decision on review not to restore goods is one that the Commissioners could not reasonably have come to.

It is generally accepted that the test of reasonableness requires the Tribunal to ask:

Is this a decision which no reasonable panel of Commissioners could have come to?

Has some irrelevant matter been taken into account?

Has some matter which should have been taken unto account been ignored?

Has there been some error of law?

(see Customs and Excise Commissioners v J H Corbitt (Numismatists) Ltd [1980] STC 231; Associated Provincial Houses Ltd v Wednesbury Corporation [1948] 1KB 223)

It is clear from the documents that when Ms Perkins reviewed the decision not to restore she considered all the evidence available to her and did not consider any irrelevant matters. There were no documents then available which should have caused Ms Perkins to make further enquiries. In particular she considered the matters raised by the Appellant in correspondence.

We have heard no evidence from the Appellant. There is nothing on the papers before us to provide grounds for finding that the Commissioners' conclusion that the goods were imported for commercial use was unreasonable or that the decision not to restore was disproportionate.

Accordingly we dismiss the appeal by make no direction as to costs.

MISS J WARBURTON

CHAIRMAN

Release Date:

MAN/02/8237