United Kingdom VAT & Duties Tribunals (Excise) Decisions

Bell v Customs and Excise [2004] UKVAT(Excise) E00694 (05 April 2004)

EXCISE — cigarettes concealed in car roof space — restoration claim — whether reviewing officer acted reasonably — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

GARETH BELL Appellant

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THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

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

R PRESHO FCMA (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 Reviewing Office, Mr David Harris, not to direct restoration of the Appellant's motor car seized on 15 July 2002.
2. On 15 July 2002 the Appellant was driving his Audi 80 Convertible, registration number BI–RD 912 through the UK Customs control zone at Coquelles, France. The Appellant was the sole occupant of the vehicle. The Appellant was then serving in the Army at Bielefeld in Germany. The car was stopped by an officer of the Respondents. The Appellant was asked by the officer whether he had any cigarettes or tobacco and replied that he did not. When the officer asked the Appellant to open the roof, the Appellant replied that he was in a bit of a hurry as he was returning for a funeral. He then attempted to open the roof of the car and informed the officer that it must be broken. Eventually the Appellant opened the roof and the officer found 5,200 cigarettes in the roof space under it. The Appellant said that "my mate" had put the cigarettes there whilst the Appellant was present. He said that the cigarettes were there because he thought that they might be taken away from him. Subsequently the officer seized the vehicle and the cigarettes.
3. By a letter dated 23 July 2002 the Appellant requested restoration of his vehicle. By a letter dated 19 August 2002 the Respondents informed the Appellant of their refusal to restore the vehicle.
4. By a letter dated 1 October 2002 the Appellant's solicitors requested a review of the decision not to restore the vehicle on the following grounds:

(1) That it was the Appellant's first offence;

(2) That the Appellant accepted the penalty in relation to the goods, other than the car, seized;

(3) That the amount of the goods was not excessive and that the Appellant was not a persistent offender;

(4) That the penalty was disproportionate;

(5) That the Appellant had not accepted the legality of the policy, related to this matter, of the Respondents.

5. By his letter dated 1 November 2002 Mr Harris informed the Appellant's solicitors that he confirmed the decision not to restore the vehicle.
6. The Appellant gave evidence to the tribunal. He said that he had behaved as mentioned above because he had been in a panic. He had never brought cigarettes into the UK before. He had purchased the vehicle in February 2002 and funded the purchase by a Lloyds TSB loan of £6,000. The repayments on the loan were currently £178 per month. The loan was repayable in 4 years' time. It had been his intention to sell the vehicle and he had a buyer for it. The sale should have gone ahead on 24 August 2002. He was discharged from the Army on 19 December 2002 on the basis of ill health (depression). He presently resided at South Shields with his fiancée, his stepdaughter and their son, who was born on 23 November 2003. He was employed by Balfour Beatty. His fiancée was not employed. In reply to questions by Mr Duff, the Appellant agreed that he had told a series of lies to the officer and that he knew that he had been doing wrong. He also agreed that although he had said that he had panicked, he had not acted on the spur of the moment. However he had not understood the risk to the car.
7. Mr Harris, in his Review Letter, referred to the decision of the Court of Appeal in Customs & Excise Commissioners v Lindsay [2002] EWCA Civ 267, where, in paragraph 63 Lord Phillips of Worth Maltravers MR said:

"Having regard to these considerations, I would not have been prepared to condemn the Commissioners' policy had it been one that was applied to those who were using their cars for commercial smuggling, giving that phrase the meaning that it naturally bears of smuggling goods in order to sell them at a profit. Those who deliberately use their cars to further fraudulent commercial ventures in the knowledge that, if they are caught, their cars will be rendered liable to forfeiture cannot reasonably be heard to complain if they lose their vehicles. Nor does it seem to me that, in such circumstances, the value of the car used need be taken into consideration. Those circumstances will normally take the case beyond the threshold where that factor can carry significant weight in the balance. Cases of exceptional hardship must always, of course, be given due consideration."

8. We consider that the Review Officer took into account all material matters and did not take into account any matters which were not material. We do not consider that his decision was one which no reasonable Review Officer, acting on behalf of the Commissioners, could have reached. We therefore dismiss the appeal.
J H FRYER-SPEDDING CBE CHAIRMAN Released:

MAN/03/8023