13/04/2004 03 8126 MICHAEL RILEY Mr J D Demack  Manchester 10 March   

	EXCISE DUTY — non-restoration of 8800 cigarettes seized as imported for commercial purpose — non-attendance of appellant at hearing — whether decision as to non-restoration reasonable and proportionate — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	MICHAEL RILEY	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	Mr J D Demack (Chairman)
						Mr A E Brown

Sitting in public in Manchester on 10 March 2004

The Appellant in person
Mr A Vinson of counsel for HM Customs and Excise

	© CROWN COPYRIGHT 2004

DECISION

1.	Mr Michael Riley appeals against a decision on review of Customs and Excise by letter of 21 March 2003 refusing to restore 8800 cigarettes seized from him on 23 November 2002.
2.	On the latter date, Mr Riley returned to the UK from Spain.  On landing at Liverpool Airport he was stopped by a Customs Officer and found to be importing 7600 Regal cigarettes and 1200 Lambert and Butler cigarettes.  The officer interviewed him and, on the basis of what he said, concluded that he was importing the goods for a commercial purpose.  He therefore seized the cigarettes as liable to forfeiture, giving the following reasons for the seizure:
1.	Number of cigarettes exceeds guide levels
2.	Vague about travel details
3.	Vague about quantity purchased
4.	Vague about price paid
5.	Vague about finances
6.	No open packet of cigarettes or lighter and did not smell of smoke
3.	Mr Riley sought restoration of his cigarettes, to no avail.  He then asked for the decision on review; and that too went against him.
4.	Mr Riley did not attend the hearing of his appeal.  On the application of Customs counsel, Mr A Vinson, we agreed to proceed in his absence.  All we know of his case is contained in the reasons he gave for appealing in his Notice of Appeal.  He said that he had bought the cigarettes for his personal use; that he could well afford to pay for them being a plasterer earning about £30,000 per annum; that he had bought the cigarettes at a small shop in Majorca and had exhausted their stock of Regal cigarettes so that he had gone on to spend the balance of the money he had allocated to cigarettes on another brand; that he was planning to give his sons cigarettes as Christmas presents, but had no intention of selling any of them; that he himself had funded the trip; that he smoked 40-50 cigarettes a day; and that he was a law abiding citizen, and had throughout co-operated with Customs.
5.	In the review decision, Miss Julie Logan, the review officer, first outlined the facts.  Then she dealt with the applicable legislation, setting it out in its entirety.  As the legislation is repeated in the Statement of Case, it is unnecessary for us also to rehearse it.
6.	Having indicated that she was required to confirm, vary or withdraw the decision not to restore Mr Riley’s cigarettes, Miss Logan explained why the seizing officer had doubts about his claimed use of them, saying:
“[Mr Riley] was vague in his replies.  He was unsure of his travel details.  He did not know how many cigarettes he had purchased or how much he had paid in total.  He told the officer that he had only one brand of cigarettes on him, which was not correct.  I also found it unusual that he had only just discovered that he could bring back more than 200 cigarettes on his trips.  Mr Riley did not have an open packet of cigarettes on his person or the means to light one, which is again unusual for a smoker of 40 per day.  For example, if he sleeps for 6 hours each night then he could smoke on average one cigarette every 27 minutes.  The first thing he would want after disembarking from a non-smoking flight is a cigarette”.

7.	For those reasons, Miss Logan concluded that Mr Riley’s cigarettes were not imported for his own use, and were held for a commercial purpose.
8.	Miss Logan then went on to deal with the question of whether the cigarettes should be restored, bearing in mind Customs policy of non-restoration except in exceptional circumstances.  She noted that Mr Riley was importing 2.75 time the guide level of 3200 cigarettes for personal use, and disclosed that a check with Inland Revenue records had shown his income to have been about £9800 in the tax year 2001/2002.  She observed that although Mr Riley, a diabetic, claimed to have been vague in his replies to Customs as a result of a need for insulin, he did not say that he felt unwell, or needed, or was late for his medication.  Finally, Miss Logan commented that in interview Mr Riley had claimed to have bought Lambert & Butler cigarettes at the airport, and had produced a receipt confirming an airport purchase: that contrasted with his claim to have bought them at a local shop.  For all those reasons, Miss Logan confirmed that the cigarettes would not be restored to Mr Riley.
9.	As a Community traveller, i.e. a person travelling from one EU Member State to another, Mr Riley is entitled to import into the UK duty free excise goods for his own use which he had personally imported.  “Own use” in this context includes gifts.  It is for Customs to establish that goods have not been imported for own use, but for a commercial purpose.  The standard of proof is the civil one, known as balance of probabilities, i.e. is it more likely than not.
10.	The tribunals’ jurisdiction is restricted to holding that Customs decision as to non-restoration is unreasonable, or disproportionate.  Unreasonable in this context means that Customs considered something which they ought to have ignored, or failed to take account of something they should have considered, or that the decision as a whole was one which no reasonable body of Commissioners could have reached.
11.	In our judgment, Customs decision not to restore the cigarettes was not unreasonable in the sense we have just described.  Miss Logan took into account all the factors she should have done, and ignored those which she ought to have ignored.  Further, the decision not to restore was proportionate.  We dismiss the appeal.

DAVID DEMACK
CHAIRMAN
MAN/03/8126