Title: Hancock v Customs &amp; Excise [2003] UKVAT(Excise) E00585 (11 December 2003)
Author: VAT Tribunals
Last saved by: jury
Company: Unisys

EXCISE GOODS  — large quantity of tobacco and other dutiable goods bought in Belgium and brought to UK — goods and car used for transport seized — owner of car not present at time — request for restoration refused — subsequently restoration offered on terms — whether reasonable — yes — appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

 
 	
	AMANDA HANCOCK	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Mr C P Bishopp (Chairman)
						Mrs R Dean FCA (Member) 	

Sitting in public in Manchester on 3 November 2003 

The Appellant did not appear and was not represented
 
Mr Andrew Vinson of counsel instructed by the Solicitor for the Customs and Excise for the Respondents

	© CROWN COPYRIGHT 2003

DECISION

1.	 On 3 March 2002, Christopher Hancock arrived at Dover, on a ferry on which he had travelled from Calais, in a Ford Escort car.  He was accompanied by three friends.  They were stopped by Customs officers – we do not know why – and it was found that, between them, they had 6,780 cigarettes, 48 kilograms of hand rolling tobacco, 250 cigarillos and a small quantity of alcoholic drink.  The officers who interviewed the travellers came to the conclusion that they had not bought the goods entirely for their own use but were instead intending to resell at least some of them.  They seized the goods and the car, which Mr Hancock had claimed was his.  In fact it belonged to his wife, the appellant Amanda Hancock – or at least, she is the registered keeper of it.

2.	However, on 13 March 2002 a solicitor instructed by Mr Hancock wrote to the Commissioners on his behalf repeating the claim that he was the owner of the car, and requesting its return.  Shortly afterwards a copy of the registration document was produced showing that Mrs Hancock was the registered keeper.  A few days later, Mrs Hancock herself wrote to the respondents, seeking the restoration of the car to herself.  She explained in her letter that her husband had borrowed the car to take a weekend away with some friends in Belgium and she went on to say that the loss of the car was causing her severe inconvenience.  Her request for restoration was refused.  In the meantime, the respondents had also refused Mr Hancock’s request for the restoration of his goods.

3.	Mrs Hancock asked that the refusal to restore her car be reviewed.  In her letter seeking that review, she mentioned - so far as we can tell for the first time -  that she and her husband had separated (although we deduce they must have remained on friendly terms) and she repeated that she had lent him the car for the purpose of travelling to Belgium.  

4.	On 20 June 2002 a review officer, Keith Harman, wrote to Mrs Hancock at some length, explaining in detail the background to the seizure and the reasons for it.  He went on to say that he had come to the conclusion that the story of a weekend out in Belgium was implausible, a conclusion with which we can only agree (the four travellers had arrived in Calais at about 1.30 a.m. on 3 March, had travelled to Belgium, where the tobacco was purchased, and had returned to Calais in time to catch the 8 a.m. sailing back to Dover) and his conclusion, with which we also agree, that the four travellers had attempted to mislead the Customs officers on that score.  We also agree with Mr Harman’s analysis of the rates of consumption claimed by the four travellers, which in each case were incapable of reconciliation with the length of time for which they said the goods would last. We accept his conclusion that this factor, alone, casts considerable doubt on their claim that the goods were for their own consumption.  In addition, one of the travellers admitted that half of his goods were for his father, who had provided the money to buy them; relief from UK duty is not available in such cases.

5.	Mr Harman then went on to conclude that Mrs Hancock had  knowingly lent the vehicle to her husband for the purpose of a trip to the continent – and this was not the first occasion on which he had used the car for that purpose – and that although Mrs Hancock had established some inconvenience she had not established exceptional circumstances which would justify the restoration of the vehicle.  Accordingly he upheld the refusal to restore it.

6.	Shortly after Mr Harman wrote that letter, the decision of the Divisional Court in R (Hoverspeed and others) v Commissioners of Customs and Excise [2003] STC 1273 was released and Mr Harman, prompted by that decision, wrote again to Mrs Hancock offering to restore the vehicle on payment of a restoration fee of £5,694.99, the excise duty payable on the goods in the possession of the four travellers, or its trade value, whichever was the lower; we have no information about the trade value of the vehicle.

7.	Mrs Hancock’s notice of appeal was served after the first of those letters, but before the second.  We were informed by Andrew Vinson, counsel for the Commissioners, that Mrs Hancock had not taken up the offer of restoration in exchange for a fee and we have accordingly treated her appeal as one against that offer, rather than one against Mr Harman’s initial review decision not to restore the car at all.

8.	When the appeal was called on for hearing, Mrs Hancock was neither present nor represented, and there was no indication on the tribunal’s file whether or not she intended to attend the hearing.  Mrs Hancock lives in West Glamorgan but she had lodged her appeal with the Manchester Tribunal Centre, no doubt because Mr Harman’s letters informed her that that was the correct address.  The hearing of her appeal took place in Manchester.  In fact, Mrs Hancock ought to have appealed to the London Tribunal Centre which would have arranged a hearing in Bristol or Cardiff, either of which, no doubt, would have been more convenient for Mrs Hancock.  Mr Vinson asked us nevertheless to hear the appeal in Mrs Hancock’s absence and we decided we should do so upon the basis that it might be helpful to her to know how the tribunal is required to deal with cases of this kind.  If however she seeks to set aside this decision, as she is entitled to do since the hearing was held in her absence, on the grounds that a hearing in Manchester was of significant inconvenience to her, we have no doubt that her application will be sympathetically considered.

9.	We have of course heard no evidence from Mrs Hancock, nor from any of the four travellers in her car, and it is quite possible that their evidence, had we heard it, might have caused us to view this case in a different light.  As it is, we have only what the four travellers are recorded to have said in Dover, and what is set out by or on behalf of Mr and Mrs Hancock in the subsequent correspondence.

10.	We have already indicated that we have serious doubts about what the four travellers said to the Customs officers and, in particular, we find it implausible that they truly were intending to spend a night out in Ostend, as they explained, or that they were truly intending to bring in substantial quantities of tobacco products for their own consumption.  On the evidence available to us, Mr Harman’s conclusion that these goods were being brought into the country, at least in part, for commercial purposes cannot be faulted.  That conclusion makes the goods and the vehicle liable to forfeiture, for reasons which are set out in detail in Mr Harman’s letter and in the Commissioners’ statement of case, and which there is no point in our repeating here.

11.	 Mrs Hancock has not challenged the seizure but has asked that her car be restored, a course which the Commissioners may adopt even in the case of commercial importation.  Their policy, which the courts have held to be reasonable in principle, is, however, not to restore vehicles used for the commercial importation of excise goods save in exceptional circumstances.  Those circumstances would include a case in which the owner is entirely innocent, or where it would be quite disproportionate, in the individual case, not to restore the car, or where there are humanitarian reasons – for example when a car has been adapted for a disabled person.   Here, the Commissioners are in fact willing to restore the car, though only on payment of a fee.  We suspect that the amount demanded represents the value of the car, and in reality, there is no practical difference between refusing to restore the car at all and offering to restore it for a fee.  Taking Mrs Hancock’s letter at face value, we accept that she has been put to a good deal of inconvenience by reason of losing her car, but one could not realistically say that the inconvenience was exceptional, nor could one say that Mrs Hancock was wholly innocent, in the sense that she was entirely ignorant of the purpose to which her car was to be put.  She knew that on this occasion her husband was travelling to Belgium and we think it more likely than not that she knew that on at least one previous occasion he had also used her car to travel to Belgium, in order to buy substantial quantities of excise goods, as he had accepted when he was interviewed at Dover.

12.	We can allow the appeal, and direct a further review, only if we are satisfied that the decision to restore Mrs Hancock’s car to her only on payment of the duty sought to be evaded is one at which the Commissioners could not reasonably have arrived.  In this case we think that the decision was entirely reasonable and the appeal must be dismissed

COLIN BISHOPP
CHAIRMAN
Release Date:

MAN/02/8180