United Kingdom VAT & Duties Tribunals (Excise) Decisions

Grimshaw v Customs and Excise [2004] UKVAT(Excise) E00692 (05 April 2004)

EXCISE DUTY — refusal of Respondents to restore seized excise goods — error of law by Review Office as to burden of proof of commerciality— appeal allowed

MANCHESTER TRIBUNAL CENTRE

GORDON GRIMSHAW Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr J H FRYER-SPEDDING CBE (Chairman)

MR J E Davison (Member)

Sitting in public in Newcastle upon Tyne on 22 January 2004

The Appellant appeared in person

Mr G Duff, of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION
1. This appeal is made against the decision of a Review Officer, Mr G Crouch, to confirm a decision of the Respondents not to restore certain goods seized from the Appellant on 29 March 2002.
2. On 29 March 2002 the Appellant's vehicle, a Ford Escort, registration V 147 DNL, was stopped by officers of the Respondents at the UK control zone at Coquelles, France. The Appellant, his wife Susan, his brother William and his sister in law Olwine were travelling in the car. In the car were:

21,800 cigarettes

6.25 kg hand rolling tobacco

4.8 litres spirits

40.88 litres beer

1.5 litres wine

3. The Appellant gave evidence to the tribunal. He confirmed that he stood by the answers that he had given to Mr Alan Wood, an officer at Coquelles, set out in a typed transcript at pages 26-31 of the Respondents' bundle. He also said that matters set out in the letter at pages 84 and 85 were correct.
4. The Appellant's evidence was that he had been to Belgium to get tobacco and cigarettes. He said that he and his wife had got three packets of tobacco each and William and his wife had two packets of tobacco each. The packets were packets of 10. He also said that they had 25 sleeves of cigarettes each. He had six bottles of whisky, some beer and some wine. He said that they had last travelled to the continent in the previous October. He said that they had all put their money together and paid with his sister in law's credit card. He said that he did not have any receipts but they might be in his wife's purse. He said that he would pay his sister in law when she got her credit card bill. He said that he would smoke his cigarettes himself. He smoked about 280 a week on average. He used ready made cigarettes but when they ran out he used hand rolling tobacco, achieving about 60 out of a pouch. He said that he was unemployed and had not worked since 1989. He receives £380 incapacity benefit and Disability Living Allowance of £120 every few weeks and a monthly private pension of £100 a month. His wife worked part time earning about £15 a week. She also received a care allowance of £160 every few weeks. He did not have any open packets with him. He said that his brother had bought some goods for his son.
5. Mr Wood informed the Appellant that he was not satisfied that the goods were not being imported for commercial purposes for the following reasons:

(1) the Appellant had lied about previous travel. He had also travelled in December 2001 and January 2002 (the Appellant confirmed this to the tribunal);

(2) He had not known how much money he had spent;

(3) He did not possess an open packet of tobacco or cigarettes;

(4) The cigarettes and tobacco were in excess of the guidance levels.

(5) In the allocation between the passengers there were 2.25 kg hand rolling tobacco unaccounted for;

(6) Not all of the goods were declared when the vehicle was stopped; namely 1,80 cigarettes and 1.25 kg hand rolling tobacco;

(7) The Appellant had stated that the tobacco should last six weeks but also said that he smoked seven to ten pouches a week, so that his claim to 30 pouches of tobacco would not tally.

6. Mr Wood subsequently seized the goods.
7. By a letter received by the Respondents on 22 April 2002 the Appellant requested restoration of the goods. By a letter dated 14 May 2002 the Respondents informed the Appellant that this request was refused. By a letter of the Appellant received by the Respondents on 26 June 2002 the Appellant requested a review of that decision. The review was carried out by Mr Crouch who confirmed the original decision by a letter dated 8 August 2002.
8. In the review letter of 8 August 2002 Mr Crouch referred to Article 5(3A) of the Excise Duties (Excise Duties (Personal Reliefs) Order 1992 (SI 1992/3155)) Order 1992 (as amended) which provided:

"the Commissioners may require a person to whom this paragraph applies to satisfy them that the excise goods afforded relief under this Order are not being held or used for a commercial purpose."

Having set out the facts, Mr Crouch wrote:

"taking into account all of the above, I agree with the officer in not being satisfied that the goods were for own use"

On page 11 he wrote:

"Given all of the above inconsistencies in your interviews and correspondence you have failed to convince me that you had travelled to purchase excise goods for own consumption."

9. It seems clear to us that Mr Crouch carried out his review upon the footing of the "presumption of commerciality" set out in Article 5(3A) of the 1992 Order. We consider that he erred in law as to the presumption of commerciality. The burden of proof in this context lies upon the Respondents: R (Hoverspeed) Ltd v Customs & Excise Commissioners [2003] 3 WLR 1212.
10. We record that we did not find the Appellant to be a cogent witness. In particular, he was untruthful about previous trips. He gave no satisfactory explanation as to the variety of brands involved and he admitted that he had not repaid his sister in law. Also there was substantial evidence in favour of the arguments in this case of the Respondents. Nevertheless, we do not consider that this is a case where the Review Officer must necessarily have reached the same conclusion if he had directed himself correctly in law: cf. John Dee Limited v Customs & Excise Commissioners [1995] STC 941.
11. Accordingly, we allow the appeal. We direct the Respondents to conduct, within six weeks of the release of this decision, a further review of the original decision not to restore the seized items. In doing so, the Respondents must take into account the legal position as to the burden of proof of commerciality as set out in the Hoverspeed case.
J H FRYER-SPEDDING CBE CHAIRMAN Released:

MAN/02/8217