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 >> Howard v Customs and Excise [2004] UKVAT(Excise) E00700 (23 April 2004)
URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00700.html
Cite as: [2004] UKVAT(Excise) E00700, [2004] UKVAT(Excise) E700

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William John Howard v Customs and Excise [2004] UKVAT(Excise) E00700 (23 April 2004)

RESTORATION — trip to Spain – stopped at Manchester airport — 18,600 Lambert and Butler and 400 Lambert and Butler Light cigarettes — purchased for self and wife — several previous trips — Appellant did not appear — refusal to restore cigarettes reasonable – appeal dismissed

MANCHESTER TRIBUNAL CENTRE

WILLIAM JOHN HOWARD Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr D S Porter (Chairman)

Mrs R Dean (Member)

Sitting in public in Manchester on 29 March 2004

No one appearing for the Appellant

Mr J Vinson of counsel for the Commissioners

© CROWN COPYRIGHT 2004


 


DECISION
1. This is an appeal by William John Howard (the Appellant) against the refusal to restore 18,600 Lambert and Butler cigarettes and 400 Lambert and Butler light cigarettes confirmed in a letter dated 23rd September 2003. The Appellant claimed to have imported the goods for his own and his wife's use. The Commissioners claim that the excise goods were held for commercial purposes and were liable to duty in the UK.

The Parties

2. Mr A Vinson of counsel appeared for the Commissioners and produced a bundle of documents for the Tribunal. As no one appeared 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 was stopped on 4th May 2003 at Manchester Airport on his return from Alicante in Spain. He and his wife were interviewed separately and in his interview he said that he was not sure how many cartons of cigarettes he had bought, but he thought it was 18 to 20. His wife in her interview had thought it was 50. It subsequently transpired that they had purchased 85 cartons. The Appellant had stated in his interview that the cigarettes had cost him £900 although his wife, in her interview, stated that they had cost £1,200. The Appellant stated that he had travelled abroad the previous October, and that he had been stopped some 3 years previously and had some goods seized.
4. The Appellant is a retired entertainer/builder, he had had about £3000-4000 of savings. He smoked about 30 to 40 cigarettes per day. He had intended to give some six packets of cigarettes to his children.
5. The Appellant's wife stated that she smoked 20 cigarettes per day and 30 to 40 at the weekend. She was employed as a check-out operator at Asda and earned £265 per month. She had also been abroad in October of the previous year and had had another trip in May 2002 making three trips in the year.
6. Mr Vinson referred to the Statement of Theresa Carol Driscoll, which had not been objected to by the Appellant. Ms Driscoll works as a Security Investigator for Easy-jet and produced details of trips made with Easy jet by the Appellant and his wife. Mr and Mrs Howard had booked flights to Spain on 8th April 2002; 27th April 2002; 11th April 2003; and 23rd September 2003; Mrs Howard alone on 18th May 2003; Mr Howard alone on 8th June 2003; and Mr and Mrs Howard and family on 22nd June 2003, seven trips in all.
7. We find as fact the matters set out in paragraphs 3 to 6 above.

The Law

8. 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.

9. 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

10. Mr Vinson thought that the Appellant might have asked for condemnation proceedings but he was unsure of the outcome. He submitted, however, that the Reviewing Office had acted reasonably in refusing to restore the goods for the reasons set out in his letter of 23rd September 2003. He gave the following reasons: -

The Appellant and his wife had been vague about the quantity of cigarettes they had purchased

Their statements in their interviews had been inconsistent

The Appellant had goods seized on a previous occasion

The level of their incomes was not consistent with the expenditure

It was not credible that they would give away as many packets of cigarettes as they suggested they would.

The Appellant and his wife had travelled on many more occasions than they disclosed in their interviews.

In the circumstances the Respondents has acted reasonably in not restoring the goods.

11. In his letter of 7th August 2003 the Appellant stated that he was semi-retired; that he was financially secure having received money from his Father's estate; he and his wife liked to travel abroad as much as they could but they did not always buy cigarettes; when cigarettes had been purchased they lasted them about 4 to 5 months; his children would buy cigarettes for them when they went abroad and he and his wife would reciprocate. He had had goods sized before but had he not represented himself and sort legal advice instead it is likely that they would not have been seized.

The Decision

12. My colleague and I have considered the facts in the case and have decided that the appeal should be dismissed. Although the Appellant has not appeared to day, it is clear that the Appellant is familiar with travelling abroad and clearly knows how many goods can be brought back to the United Kingdom. The interviews given by both the Appellant and his wife were untruthful. They must have known how many cigarettes they had bought and on how many occasions they had been abroad previously. We consider that the Respondents acted reasonably in refusing to restore the goods.
13. The Respondents made no request for cost so none are awarded.

MR D S PORTER

CHAIRMAN

MAN/03/8168