United Kingdom VAT & Duties Tribunals (Excise) Decisions

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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Crank v Customs and Excise [2004] UKVAT(Excise) E00699 (23 April 2004)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00699.html
Cite as: [2004] UKVAT(Excise) E699, [2004] UKVAT(Excise) E00699

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Crank v Customs and Excise [2004] UKVAT(Excise) E00699 (23 April 2004)

EXCISE DUTY — non-restoration of 16 kilos of hand rolling tobacco and 100 cigars — appellant admitted buying half tobacco for boyfriend who had given her £300 for purpose — other evidence pointing to importation for commercial purpose — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MISS EILEEN MARY CRANK 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 instructed by the Solicitors office of HM Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004


 


DECISION

1. On 5 June 2001, the appellant, Miss Eileen Mary Crank, returned to the UK from France. She had travelled abroad by coach with two friends. She brought with her 16 kilos of hand rolling tobacco and 100 cigars. She was stopped by Customs at Dover and freely declared the excise goods she had. Miss Crank informed the officer dealing with her that she was registered blind. She was asked whether some of the goods were for her boyfriend, and replied that they were, adding that he had given her £300 to assist in their purchase. (She later also explained that her boyfriend who is also blind had travelled to Dover with her intending to cross the Channel but was unable to do so as he did not hold a passport).
2. In view of Miss Crank's disability, Customs did not immediately seize her goods but detained them and allowed her to continue her coach journey home. They did, however, require her to attend for interview in relation to seizure, and an appointment was made for that purpose for 15 August 2001 at Eastern Docks, Dover.
3. Following the interview, which lasted for all of 18 minutes, Miss Crank was told that as she had failed to satisfy the interviewing officer that she held the excise goods for her own use, they were being seized as liable to forfeiture. (We pause there to observe that, following the unappealed part of the judgment of the Administrative Court in Regina (Hoverspeed Limited and others) v Customs and Excise Commissioners [2001] WCR 1218, it is not for an appellant to satisfy Customs that goods are held for own use: it is for Customs to establish that they are held for commercial purposes).
4. Miss Crank went on to ask for her goods to be restored to her, even if she were required to pay the duty on them. Customs refused her request, and repeated their decision not to restore in a letter of 29 January 2002 which forms the decision on review now appealed against.
5. In the review decision, following a short statement of the facts and all the relevant legislation (which we do not propose to repeat as it is also set out in the Statement of Case), the reviewing officer, Mr Payne, noted Customs general policy of non restoration of seized goods, adding that each case was examined to see whether restoration exceptionally might be offered. Next he observed that it was for him to consider whether the decision was one which a reasonable body of Commissioners could not have reached. That observation was incorrect: by s.15(1) of the Finance Act 1994 he was required to confirm, withdraw or vary the decision as to non-restoration.
6. Mr Payne then noted that Miss Crank was seeking to import 16 times the then guide level of tobacco considered appropriate for personal use. (The guide level has since been increased from 1 kilo per person to 3 kilos). He added that Miss Crank had admitted that her boyfriend had given her £300 to buy excise goods on his behalf; and as a result the goods bought for him did not qualify for relief from excise duty, and were liable to forfeiture.
7. The review officer then dealt with Miss Crank's claimed consumption of cigarettes. Initially in questioning she had said she smoked 60-80 cigarettes a day, but in interview had reduced the figure to 20-25. Mr Payne took the view that she had given the original figures to mislead Customs, and had intended to make the size of her tobacco purchase appear reasonable. At Miss Crank's claimed rate of consumption, Mr Payne observed, her tobacco would last over 2 years – well beyond its shelf life. As Miss Crank had said that the tobacco was intended to last her a year, he calculated that she would have had to give away as much as 6 kilos to achieve that result, - an event he considered unlikely without reimbursement.
8. Next Mr Payne noted that on 6 December 2000 Miss Crank had been stopped at Manchester Airport and had had seized 6000 cigarettes. On that occasion she had been returning from Lanzarote. (We observe that whilst Lanzarote is Spanish territory, it is not part of the European Union, so that travellers from it are only allowed to import 200 cigarettes duty free). He found it surprising that she should travel to the continent so shortly after the earlier seizure without first attempting to find out what she was entitled to import. He so observed against a background of a claim by Miss Crank that she had not seen Customs Notice No.1 and was unaware of its contents. (No evidence was adduced of the way in which blind people are provided with Customs information and, in its absence, we are not prepared to accept that proper provision is made for them. However, in isolation the point avails Miss Crank nothing).
9. Mr Payne agreed with the seizing officer that Miss Crank's goods were not for her own use, particularly as her boyfriend had given her £300 to buy tobacco for him. Having concluded that her goods were held for a commercial purpose, he confirmed that the goods would not be restored to her.
10. We should explain to Miss Crank that European Community law allows Community travellers, i.e. persons travelling from one member State in the European Union to another member State, to import excise goods duty paid in the former in any quantity duty free in the latter provided they are for own use and are personally transported. Own use in this context includes gifts. But goods imported by one person for another paid for by that other do not qualify for the exemption from duty: tobacco products so imported are liable to duty on importation under the Tobacco Products Duty Act 1979. Consequently, Miss Crank's boyfriend's tobacco was liable to duty, and since she had not declared it on importation, it was liable to seizure and condemnation as forfeit. Miss Crank's own goods were "mixed, packed or found" with her boyfriend's, so that in Customs view they too were liable to be forfeited (see s.141 Customs and Excise Management Act 1979).
11. Even where goods have been condemned as forfeit, Customs have a discretion to restore them to their owner. It is in relation to that discretion that the jurisdiction of these tribunals comes into play. Their jurisdiction is restricted to holding that Customs decision as to non-restoration is unreasonable or disproportionate, unreasonable in the sense that in determining not to restore excise goods they took account of something they should have ignored, or failed to take into account something they should have considered, or the decision not to restore was one at which no reasonable body of Commissioners could have arrived.
12. We are quite satisfied that Customs decision as to non-restoration was not unreasonable in the sense we have just described. Everything that should have been taken into account was taken into account, just as everything that should have been ignored was ignored; and the overall decision was not unreasonable. Further, it was not disproportionate; the duty on the goods Miss Crank was importing was £1558.96. Consequently, we have no alternative but to dismiss Miss Crank's appeal. The flaws in procedure we identified earlier avail Miss Crank nothing, for in our judgment were Customs to be required to reconsider their decision taking those matters into account, the end result would inevitably be the same.
13. Ordinarily we would not comment on Customs behaviour, but since the particular circumstances of Miss Crank's case cause us considerable unease, we do so. As we mentioned earlier, because of her blindness Miss Crank's tobacco was initially detained and only later seized as liable to forfeiture. To attend an interview required by Customs, Miss Crank (and her boyfriend) travelled from Wigan to Dover, some 250 miles there and 250 back, by public transport for an 18 minute interview. It comes as no surprise to us (since her journey to the tribunal hearing – some 20 miles – took her 3½ hours) that she claimed in correspondence with Customs that the journey proved "something of a nightmare…. especially getting across London".
14. Miss Crank's journey for interview was unnecessary. The interview could just as easily have been conducted by telephone or by an officer in one or other of Customs large offices in the north-west of England; it gave her an unrealistic hope of getting her tobacco back, perhaps on terms. But, most seriously, it appears to us to have showed a callous disregard for her disability. Had we had the jurisdiction to compensate her for her ordeal, we should certainly have done so. As it is, we can only recommend that Miss Crank take up the matter of Customs conduct with their adjudicator.

DAVID DEMACK

CHAIRMAN

MAN/02/8099