United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00504.html
Cite as: [2003] UKVAT(Excise) E504, [2003] UKVAT(Excise) E00504

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Gent v Customs & Excise [2003] UKVAT(Excise) E00504 (02 October 2003)

EXCISE DUTIES — appellant importing excise goods purchased in Belgium — fellow travellers under-declaring quantity of goods purchased — goods of all travellers, and appellant's car seized — appellant ignorant of quantities purchased by fellow travellers — restoration of appellant's goods refused — whether all relevant factors taken into account on review of refusal — no — appeal allowed and further review directed.

MANCHESTER TRIBUNAL CENTRE

DEREK GENT Appellants

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Colin Bishopp (Chairman)

Mr J T B Strangward

Sitting in public in Manchester on 3 September 2003

The Appellant appeared in person

Mark Kellett of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2003


 


DECISION

1. This is the appeal of Derek Gent against the Commissioners' refusal to restore to him excise goods which were seized from him in February 2002, when Mr Gent entered the UK Customs Control Zone in Coquelles, intending to return to the United Kingdom through the Channel tunnel. The refusal to restore was upheld when it was the subject of review by Linda Healey, who conveyed her decision to Mr Gent by letter of 21 May 2002.
2. The goods taken from Mr Gent were 7.5 kilograms of hand rolling tobacco, 1,000 cigarettes and 11 litres of spirits. The car in which he was travelling, and which he had under the Motability scheme, was also seized. Although Mr Gent has protested about the seizure of the car he did not formally ask for its restoration and, as he accepted, it was now too late for him to do so.
3. Mr Gent was accompanied at the time by his father, John Gent, and by two friends, Geoffrey Brenton and Roger Griffiths. Mr John Gent had a similar quantity of goods seized from him and had likewise appealed against the Commissioners' refusal to restore them, upheld on review. His appeal was to have been heard at the same time but sadly Mr John Gent died about a year ago and his personal representatives have not adopted his appeal. Rather than postpone the hearing of Mr Derek Gent's appeal until the representatives had decided whether or not to adopt his father's appeal, we heard Mr Derek Gent's appeal alone and made directions in Mr John Gent's appeal in case his representatives do wish to adopt it. So far as we are aware, neither Mr Brenton not Mr Griffiths has sought restoration of his goods.
4. It was common ground that when they were stopped at Coquelles by an officer, Stuart Wetherell, Mr Gent and his father each said that they had 7.5 kilograms of tobacco and 1,000 cigarettes and Mr Brenton and Mr Griffiths each said that they had 7.5 kilograms of hand rolling tobacco. When the vehicle was searched, however, it was found that it contained an aggregate of 45.5 kilograms of tobacco. In subsequent interviews Mr Brenton and Mr Griffiths each conceded that he had in fact bought 15 kilograms of tobacco. Even then, 500g were unaccounted for; there was no definite evidence about that quantity but Mr Gent told us in his evidence that he believed it belonged to Mr Brenton. It was not his.
5. He also told us that on their arrival in France, the party had travelled to Belgium in order to purchase tobacco, and they had made all of their purchases from the same outlet. He and his father had each bought Sampson tobacco, which at the time was being sold in green hold-alls, rather than the usual cardboard boxes, as a promotional offer. Because Mr Derek Gent is quite severely disabled, he went back to his car, with his father, who loaded their goods into the boot while Mr Gent sat in the driver's seat. A little later, Mr Brenton and Mr Griffiths came out of the shop with their tobacco. Mr Gent had seen them in the shop, and had observed that they were buying a different brand of tobacco and that it was being placed in black bags, but he did not watch as the goods were loaded into the car. His disabilities are such that it would be impossible for him to turn round in his seat in order to do so. He said that although he had observed Mr Brenton and Mr Griffiths in the shop, he had not paid any particular attention to the quantity they were buying, and did not know how much they had loaded into the car.
6. He then drove the party back to Coquelles where they were stopped. After their initial questioning, and the search of the car, each of the four men was interviewed separately. During the course of those separate interviews, so the interview notes (which were included in the bundle of documents produced at the hearing) record, Mr Brenton and Mr Griffiths admitted that they had bought more tobacco than they had at first acknowledged. Mr Gent was asked a few questions about his financial position. He told us that the significance of those questions had not occurred to him at the time, and he had not thought it necessary either then or in his letters seeking restoration and a review of the refusal to mention that his wife had inherited a significant sum of money from her brother's estate. He realised the significance of his financial circumstances only when he received Mrs Healey's letter and at the hearing he produced evidence supporting his claim that his wife had inherited money.
7. It is evident from Mrs Healey's letter that the factors she considered significant, and which led her to the conclusion that Mr Gent's goods should not be restored, were that they were properly seized, that the initial declaration that the vehicle contained 30 kilograms of hand rolling tobacco was found to be false – Mrs Healey went on to say that she did not find it credible that Mr Gent would be unaware of the quantities purchased by Mr Brenton and Mr Griffiths – and that from the information he had given about his means it did not seem possible that he would have been able to afford his share of the goods. She could find no exceptional circumstances for returning Mr Gent's goods and upheld the decision not to restore them. It is worth mentioning in passing that Mrs Healey referred to Mr Gent's having been required to satisfy the officers that the goods were held for his own personal consumption; at the time she wrote her letter, in May 2002, that was believed ( though incorrectly) to be the test.
8. We found Mr Gent to be a credible witness and we believe what he told us. Mark Kellett of counsel, appearing for Customs, asked him why he thought he had been asked questions about his means. Mr Gent plainly did understand by the time of the hearing what the purpose of the questions was, but we can well understand how, when he was in Coquelles, it was not apparent. The questioning recorded in the interview notes is limited in scope. There are no questions about Mrs Gent's income or assets. Mr Gent is recorded to have said that he had about £300 left in savings, having financed these purchases from his savings. It is true, as Mr Kellett maintained, that Mr Gent did not volunteer information about his wife's financial situation but we accept his explanation that its significance did not occur to him. It seems to us a much more valid criticism that the officer who was asking the questions, who must have been very well aware of the purpose behind them, did not explore the position fully. In our view it is not fair to criticize the traveller who has answered the questions put to him for his failure to provide additional information for which he has not been asked, and whose significance is not obvious.
9. We can some force in the argument advanced by Mr Kellett that Mr Gent should have asked Mr Brenton and Mr Griffiths how much tobacco they had bought. He told us that he did not do that. While we are willing to accept Mr Kellett's argument that most people on an expedition of this kind would discuss with each other what they intended to buy, and had in fact bought, we nevertheless believe Mr Gent's evidence that such a discussion did not occur in this case.
10. Mrs Healey's starting point was evidently the conclusion she reached that the goods were properly seized. We agree with her that they were; on the evidence available to us there was plainly a misdeclaration by Mr Brenton and Mr Griffiths about the quantity of goods which they had bought. We accept too that their misdeclaration, and the large quantity of goods which they had bought, must lead at the least to a strong suspicion that they were bringing the goods into the country in whole or in part for commercial purposes, that is with the intention of reselling them. If that is correct, their goods were liable to forfeiture, since United Kingdom duty was not offered on them, and Mr Gent's goods being "mixed, packed or found" with their tobacco (to use the words of section 141 of the Customs and Excise Management Act 1979) were also liable to forfeiture. However, the conditions which lead to forfeiture do not necessarily reflect the criteria which should be borne in mind when considering restoration. In essence, Mrs Healey's reasoning depends entirely on the absence of exceptional circumstances. In our view, that is not sufficient.
11. We can allow an appeal of this nature only if we are satisfied that "the Commissioners or other person making [the] decision could not have reasonably arrived at it." This does not mean that we must be satisfied that the decision is irrational or without foundation; rather, the test is whether the person making the decision, Mrs Healey in this case, has arrived at it by taking into account an irrelevant factor, by leaving out of account a relevant factor or by misdirecting herself in law. The Commissioners, as is well known, have a policy that goods properly seized and forfeited are not restored except in exceptional circumstances. What such exceptional circumstances might be is not apparent.
12. We recognise that we have heard Mr Gent for ourselves and Mrs Healey did not have that opportunity. Having heard Mr Gent, we do not accept Mrs Healey's conclusion that Mr Gent must have been aware of the quantities purchased by his travelling companions; as we have indicated, we believe his evidence that he did not know what they had purchased. We also do not accept Mrs Healey's conclusion that Mr Gent was unable to pay for his purchases; we are satisfied that he did have the means to do so. We regard as a relevant factor, when considering whether or not to restore the goods of a traveller which have been forfeited by reason of their being found with goods which plainly are liable to forfeiture, that they have been forfeit by reason of that association, rather than because the traveller to whom they belong was himself in breach of the law. We should add at this point, in case there should be any doubt about it, that we believe Mr Gent's evidence that he did not intend to sell any of the goods and that they were for his own personal consumption. We think it also a factor to be taken into account that Mr Gent has suffered the forfeiture of the car in which he was travelling.
13. For those reasons we are satisfied that Mrs Healey's decision was not one at which she could have reasonably arrived and we allow the appeal. We direct that a further review be carried out by an officer not previously connected with the case, which is to take into account the tribunal's findings of fact, as set out in this decision. The review is to be concluded within six weeks after the release of this decision and its outcome is to be communicated in writing to Mr Gent, with a copy sent to the tribunal, immediately it has been concluded.
14. We make no direction in respect of costs.

COLIN BISHOPP

CHAIRMAN

Release Date:

MAN/02/8121