United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2003/E00505.html
Cite as: [2003] UKVAT(Excise) E00505, [2003] UKVAT(Excise) E505

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Owen v Customs & Excise [2003] UKVAT(Excise) E00505 (02 October 2003)

EXCISE DUTIES — traveller importing excise goods from Belgium — quantities incorrectly declared — incredible rate of consumption claimed — goods and car used for transport of goods seized — refusal to restore car upheld on review — whether decision reasonable — yes — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

JAMES THOMAS OWEN Appellant

- 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 James Thomas Owen against the Commissioners' refusal to restore to him a Vauxhall Corsa car which was seized from him at the UK Customs Controls Zone at Coquelles on 17 December 2001. On that occasion Mr Owen and his travelling companion, Simon Wood, were returning to the United Kingdom in the car which contained 7.65 kilograms of tobacco, 12,600 cigarettes, 100 cigarellos, 24.33 litres of beer and 1 bottle of wine. Neither Mr Owen nor Mr Wood has sought restoration of the goods, but Mr Owen asked for the restoration of his car a few days after its seizure. Restoration was refused, and that refusal was upheld on the subsequent review carried out by Hilda Marshall; her decision is contained in a letter to Mr Owen of 11 April 2002 and, formally, it is against that decision that this appeal has been brought.
2. Mr Owen represented himself at the hearing and we heard evidence from him. The Commissioners were represented by Mark Kellett of counsel, who did not call any witnesses but instead relied upon the documentary evidence which he provided.
3. Mr Owen told us that he had travelled to Belgium in order to buy cigarettes and tobacco which were to be consumed by his wife and himself, although some would be given away at parties which he intended to hold, to celebrate his forthcoming sixtieth birthday and his sister's forthcoming seventieth birthday. Mr Wood, a friend, had accompanied him on the trip, and had bought cigarettes and tobacco for himself, although Mr Owen was not able to tell us precisely who was to smoke those goods. They had additionally bought a small quantity of beer, and the cigarillos and wine had been given to them by the shop from which they had bought the tobacco. Each had gone with the intention of spending £750, and the goods were to be divided equally between them.
4. When Mr Owen and Mr Wood were stopped at Coquelles, they were interviewed, as is usual, by Customs officers. Included in the documentary evidence before us were copies of the notebook entries of those interviews whose accuracy Mr Owen did not challenge, although he did complain that the interview was somewhat intimidating and that some of the questions asked of him were very personal. At an early stage in the interview, when both Mr Wood and Mr Owen were present, the officer asked what excise goods had been purchased to which Mr Wood's recorded answer is "7,000 cigarettes for our own personal use". He was then asked about tobacco; Mr Owen is recorded to have asked Mr Wood how much they had, to which Mr Wood is shown to have replied "3 kilograms each". In fact, the car contained 12,600 cigarettes and 7.65 kilograms of tobacco. Mr Owen explained to us that Mr Wood had intended to indicate that they had 7,000 cigarettes each, so that his answer had been misunderstood or inaccurately recorded, but he did not explain why there were less than the 14,000 cigarettes that contention implied, nor why there was more tobacco than the 6 kilograms Mr Wood had mentioned.
5. Subsequently, Mr Owen was interviewed alone. He then maintained that precisely half of the goods belonged to him, because he and Mr Wood had contributed exactly the same amount of money. He also claimed to be a heavy smoker, smoking 60 manufactured cigarettes a day or about 500 per week; he acknowledged at the hearing that one or the other of those figures must be inaccurate. In addition he smoked about 6 pouches of hand rolling tobacco a week, and was able to obtain about 100 cigarettes per pouch, thus he was smoking 1,100 cigarettes in all a week. In his evidence, Mr Owen confirmed that that was the case. The comment is made in the note of his interview that he did not have any smoking material on his person at the time; he told the officer, and confirmed to us, that he had been smoking Mr Wood's cigarettes.
6. There is no record in the notes of the interview of Mr Owen having mentioned his or his sister's birthday. Rather, he said that he and his wife would keep about 1,000 of the cigarettes each, plus the hand rolling tobacco, and give away the remainder of the cigarettes to members of his family.
7. Part of Mr Owen's case was that he was a disabled person, suffering from acute liver disease and a hernia, and his disability was such that he was entitled to an Orange Badge. He conceded however that he had made no mention of those facts to the officer who interviewed him, and that his Orange Badge was not in the car but in his pocket at the time. However, the fact of his disability is mentioned in his letter seeking restoration. He told us that he had had no choice but to obtain a replacement car in order to alleviate the difficulties in which he was placed without the car which was seized.
8. It is apparent from Mrs Marshall's letter that the factors which influenced her were, first, that the number of cigarettes declared was incorrect; the purchase of hand rolling tobacco was not immediately volunteered, and the amount declared was understated; that a receipt for less than the full amount of tobacco and cigarettes purchased was produced; that Mr Owen had to ask Mr Wood how much tobacco had been bought; that there were discrepancies in the claims made by Mr Owen and Mr Wood, during their separate interviews, about the amount of goods which each owned; that Mr Owen claimed to be a heavy smoker, yet had no cigarettes of his own on his person; that his claimed consumption of cigarettes was unrealistically high; that the quantity of goods which Mr Owen was proposing to give away, calculated by deducting from the amount purchased the amount he claimed he and his wife intended to keep, was unrealistically high; and that there was a discrepancy between the two travellers about the manner in which they had paid for the trip. The last discrepancy, if indeed it is a discrepancy, is trivial and we discard it.
9. Mrs Marshall's letter was written in April 2002, and at a time when the Commissioners considered that the burden was upon the traveller to satisfy them that the goods were being transported for personal use rather than, as is the correct test, whether they were satisfied that the goods were being transported for commercial purposes. We have viewed this case by applying the latter test. Secondly, Mrs Marshall's letter indicates that she had considered whether the decision not to restore was one which could reasonably have been reached. That is not how she should have viewed the matter; her task was to consider all the circumstances afresh. It is for us, in accordance with section 16(4) of the Finance Act 1994, to consider whether the conclusion to which Mrs Marshall came is one at which she could have reasonably have arrived. The fact that her thought process might be flawed is not to be disregarded but what we have to consider is the conclusion, rather than the manner in which it is reached.
10. In our view the circumstances of this case can lead only to the conclusion that Mrs Marshall's view was reasonable.
11. First, we were impressed by Mr Owen's claimed consumption of cigarettes and tobacco. He did not suggest, as he gave evidence, that the replies he is recorded to have given at Coquelles were inaccurately recorded, or had been misconstrued; on the contrary, he confirmed that he had, at that time, had been smoking as many as 500 manufactured cigarettes and 600 hand rolled cigarettes per week. That equates to 157 per day; if one allows eight hours for sleep and for other activities when smoking is not possible he would have been smoking between 9 and 10 cigarettes per hour, or roughly one every 6 and a half minutes. We agree with Mrs Marshall that consumption at that rate is not credible.
12. Mrs Marshall concluded that the gifts Mr Owen claimed he would make – and not only at Coquelles but also in his letter seeking a review – were remarkably generous. We agree, and in addition we find it difficult to understand why a man claiming to smoke as much as Mr Owen claimed to smoke would give away more than half of the manufactured cigarettes he had purchased leaving him sufficient to last barely two weeks. Moreover, when he gave his evidence to us, Mr Owen told us that the cigarettes would be handed out at parties, of which no mention was made at Coquelles or in correspondence. We observe too that although he claimed that his sixtieth birthday party was imminent, he gave his date of birth, at Coquelles, as 23 February 1943, so that in December 2001, when his car was seized, he would be approaching his fifty-ninth, and not his sixtieth birthday.
13. Although we attach rather less weight to discrepancies between what Mr Owen and Mr Wood said at their separate interviews – Mr Owen was not present during Mr Wood's interview, and we have heard no evidence from Mr Wood – we do share Mrs Marshall's view that their failure at the outset to declare the correct amount of goods, which Mr Owen was not able to explain adequately to us, can lead only to the conclusion that there was an attempt to deceive.
14. All these factors lead us to the conclusion Mr Owen was not bringing into the United Kingdom goods which were for his own consumption or which were to be given away, but that this was a commercial importation, from which he intended to profit. It was determined by the Court of Appeal in Lyndsay v Customs and Excise Commissioners [2002] STC 588 that the Commissioners' policy of seizing and not restoring cars used for smuggling excise goods with a view to selling them for profit was not disproportionate. We are accordingly satisfied that Mrs Marshall's decision was reasonable and that the appeal must be dismissed.

COLIN BISHOPP

CHAIRMAN

Release Date:

MAN/02/8092