United Kingdom VAT & Duties Tribunals (Excise) Decisions

Shears v Customs and Excise [2004] UKVAT(Excise) E00685 (25 March 2004)

MAN/03/8217

RESTORATION— 3 trips to Calais by different routes on the same day — returning with more than allowance on each occasion — Commissioners acted reasonably — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

JULIE SHEARS Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: D S PORTER (Chairman)

Mr R PRESHO (Member)

Sitting in public in Newcastle upon Tyne on 3 March 2004

No one appeared for the Appellant

Miss E Piasecki, of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. This is an appeal by Julie Shears (the Appellant) against a decision on review of the Commissioners of Customs and Excise (the Commissioners) by letter of 12th July 2002 not to restore to her 7,460 cigarettes; 3 kg hand rolling tobacco; 100 cigars and 2 litres of whisky seized on 17th March 2002. She claims to have imported the goods for her own use and that of her husband and son. The Commissioners claim that the excise goods were held for commercial purposes and were liable to duty in the UK.

   The Parties

2. Miss E Piasecki of counsel appeared for the Commissioners and relied on the witness statements, and produced a bundle of documents for the Tribunal. As no one appearing for the Appellant this Tribunal determined to proceed under rule 26(2) of the Value Added Tax Rules 1986 (as amended).

The Facts

3. The Appellant travelled to Calais on 17 March 2002 on three occasions on the same day; at 11.00am on Seafrance; at 16.30 through the Hoverport; and at about 20.00 through Eastern Dock. Emma Dunn who was on duty at Eastern Docks that evening interviewed her. (See pages 18 and 19 of the bundle). She had been stopped previously in November of 2001 and had travelled five or six times before that.
4. She had purchased 2400 Lambert and Butler cigarettes and 1 kg of hand-rolling tobacco on the first trip; 2000 Lambert and Butler cigarettes, 1 kg of hand-rolling tobacco and 100 cigars on the second trip; and 1600 Lambert and Butler cigarettes, 1kg of hand-rolling tobacco and 1600 regal cigarettes on the third trip.
5. She explained that the cigarettes were for herself, her husband and her son. However she indicated that her son was 16 years old. She also confirmed that she was separating from her husband. She earns £200 per week and had spent approximately £900 on her credit card that day. Her credit card limit was £3,200.
6. She has been stopped on at least four previous occasions and travelled on this occasion through three different exits to avoid the problem of being recognised.
7. The undisputed witness statements were from: -

Stuart Wright who was told by Dover Harbour Board Police that there was a vehicle W 434 PEF belonging to the Appellant in the car park full of the cigarettes and tobacco. The police had stopped the Appellant as she had been drinking.

John Arthur Gray who confirmed two booking in January 2002 for the Appellant and her husband; and a booking in March 2002

Peter Edward Pott who operates the automatic number plate reader and confirmed that the vehicle W 434 PEF passes through the checking point on 14^th July 2001

Jeremy Francis Michael Tooke, the reviewing officer stated that the Appellant had been stopped previously and was aware of the guidelines, but had been allowed to proceed with those goods. She had made three cross channel trips on the 16^th March 2002 using two different points of departure. He had considered all the evidence and was satisfied that the goods had not been purchased for the Appellants own use

8. In the Appellant's letter of 18th March 2002 she alleges that she bought the large quantity of goods in order to save money. She also enjoyed the trips as they enabled her to have time apart from her husband. She worked shifts as a forklift truck driver and she was quite able to make up any additional money by working overtime. There was no need for her to be involved in smuggling.
9. We find as fact the matters set out in paragraphs 3 to 8 above.

The Law

10. The Excise Duties (Personal Reliefs) Order 1992 as amended at article 3 states:-

"Subject to the provisions of this Order a community traveller entering the United Kingdom shall be relieved from the payment of any duty of excise on excise goods which he has obtained for his own use in the course of cross-border shopping and which he has transported"

"Own Use" is defined in the Order as:-

"Own Use" includes use as a personal gift provided that if the person making the gift receives in consequence any money or money's worth (including any reimbursements of expenses incurred in connection with obtaining the goods in question) his use shall not be regarded as own use for the purpose of this Order."

The Commissioners may require the person to satisfy them that the goods are not being held for commercial purposes.

11. Paragraph 2 of Article 9 of the Council Directive 92/12/EEC provides the criteria which must be taken into account in establishing whether or not the products are intended for commercial use: -

The commercial status of the person holding the products, and his reason for holding them

The place where the products are located or, if appropriate, the mode of transport used

Any documents relating to the products

The nature of the products

The quantity of the products

Summing up

12. Miss E Piasecki submitted that the Appellant was spending at least £80 travel expenses on each round trip. She was separated from her husband and it was unlikely that she would want to buy any cigarettes or tobacco for him. Her son was 16 years of age and could not have been smoking the amount of cigarettes and/or hand-rolling tobacco that she said she had bought for him. She had travelled abroad on numerous occasions and could not have smoked all the cigarettes and tobacco purchased on the various trips. The Respondents had exercised their discretion reasonably and the appeal should be dismissed

The Decision

13. My colleague and I are satisfied that the Respondents have acted reasonably in this case and we dismiss the appeal. It is not credible that someone with the Appellant's means would have made the trips unless it was with a view to selling the goods. She would not in our opinion have wished to buy cigarettes and tobacco for a husband from whom she was separating. Further, she ought not to have been buying cigarettes or hand rolling tobacco in the quantities that she alleged for a 16 year old son.
14. We award costs of £320 to the Commissioners as the Appellant had neither turned up to the hearing nor advised that she would not be coming.

The Decision

15. My colleague and I are satisfied that the Respondents have acted reasonably in this case and we dismiss the appeal. It is not credible that some one with the Appellants means would have made the trips unless it was with a view to selling the goods. She would not in our opinion have wished to buy cigarettes and tobacco for a husband from whom she was separating. Further, she ought not to have been buying cigarettes or had-rolling tobacco in the quantities that she alleged for a 16 year old son.
16. We award costs of £320 to the Commissioners as the Appellant had neither turned up to the hearing nor advised that she would not be coming.
D S PORTER CHAIRMAN Released:

MAN/02/8199