United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00709.html
Cite as: [2004] UKVAT(Excise) E00709, [2004] UKVAT(Excise) E709

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Global Beers & Wines Ltd & Olton International Freight v Customs and Excise [2004] UKVAT(Excise) E00709 (10 May 2004)

EXCISE DUTIES —Lorry and load of beer seized – Commissioners view that AAD being used for second time for purpose of duty evasion – restoration of beer refused – lorry offered for restoration on terms – tribunal's finding that AAD being used legitimately – appeal allowed and further review directed.

MANCHESTER TRIBUNAL CENTRE

GLOBAL BEERS & WINES LTD

& Appellants

OLTON INTERNATIONAL FREIGHT

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Colin Bishopp (Chairman)

Brian Strangward (Member)

Sitting in public in Birmingham on 16 March 2004

Derek Payne, Business Consultant, appeared for the appellants

Nicholas Smith of counsel, instructed by the Solicitor for Customs and Excise, appeared for the respondents

© CROWN COPYRIGHT 2004


 


DECISION

1. These are the appeals of Global Beers & Wines Limited and Olton International Freight against the Commissioners' refusal to restore 23,040 litres of beer to Global Beers & Wines Limited and their decision to restore to Olton International Freight the lorry on which the beer had been transported only on payment of a restoration fee of £2,849.03. Since the facts are identical in the two cases, and there is no conflict between the appellants, it was determined that the appeals should be heard together.
2. The appellants were represented by Derek Payne, a business consultant, and the Commissioners by Nicholas Smith of counsel. We heard evidence from Mr P S Dhillon, a director of Global Beers and Wines Limited, from Martin Moseley, the managing director and major shareholder of Olton's holding company, Status Supplies Limited, and from Alan Matthews, the officer who undertook a review of the decision in each case (that is, not to restore the goods and to restore the vehicle only on payment of a fee) and upheld both.
3. The vehicle, an articulated tractor and trailer unit, was stopped by Customs officers when it arrived at Dover on 24 October 2002. The driver, Richard Arnold, produced the accompanying administrative document (AAD) which is necessary when excise goods are being transported from one bonded warehouse to another; in this case from a warehouse in Belgium to one in Essex. He also produced the international consignment note, known as a CMR. After interviewing Mr Arnold and making further enquiries of both the appellants, the Commissioners came to the conclusion that the AAD was being used for the second time, in other words it had been used once for a legitimate load and it was being used on this occasion to conceal the fact that an attempt to evade the payment of duty on a second load was being made.
4. That conclusion depended on a number of factors. First, there was an error in the AAD in that the consignee was incorrectly named as Global Distribution rather than Global Beers & Wines Limited. That is certainly an error but, having heard the evidence, we are satisfied that it was no more than a clerical error. Secondly, the officers detected a discrepancy between the AAD and the CMR. The former, which is typewritten, identifies the load as "1920 Stella cans 5.2% 50*24", or 23,040 litres, the quantity seized. The latter, in handwriting, was interpreted by Customs to read, as it was put in Mr Matthew's letter, "7320 cans Stella beer". We have no doubt that the latter interpretation is incorrect and that the officers have misread continental handwriting. We are quite satisfied that the entry actually reads "1920 Stella Artois cans 24x50cl" and that there is in truth no discrepancy between the AAD and the CMR.
5. The second significant feature is that the explanation given to Customs about the manner in which the goods arrived in the United Kingdom on the trailer which was intercepted was confusing, to say the least. The Commissioners, we think, justified in suspecting that there might have been an attempt to conceal what had happened; certainly they were not helped by Mr Arnold, who rapidly tired of answering the officers' questions, and by Mr Moseley who, quite obviously indignant about the fact that his vehicle had been seized, refused to give certain information which he considered irrelevant. Even when he gave his evidence before us, we encountered considerable difficulty in discovering the detail of the events which preceded the seizure; Mr Moseley appears to have a habit of making unwarranted assumptions of knowledge on the part of the person to whom he is speaking, while at the same time burdening what he is saying with a mass of unnecessary detail. Nevertheless, his evidence was consistent with what had gone before and we are satisfied that he was telling us the truth. We do not think it will assist understanding to set out the minutiae of the case here; suffice to say that because of a series of incidents—the breakdown of one vehicle, an accident involving another and the unsuitable condition of a trailer intended for other goods which had to be exchanged with the trailer on which these goods were first loaded—the goods with which we are concerned arrived in Dover one day later than originally expected on that other trailer. We accept Mr Moseley's evidence that he would not jeopardise what, as we accept, was a thriving business by duty evasion, that the AAD and CMR which Mr Arnold produced when intercepted at Dover related to this load, and had not previously been used for another load, and that no attempt at duty evasion was being made.
6. We have a good deal of sympathy with the Customs officers involved, particularly Mr Matthews, who was faced with a mass of very poorly presented detail, and the uncooperative attitude of Mr Arnold and Mr Moseley; but we are nevertheless satisfied that they came to the wrong conclusion and that, because of the misinterpretation of the CMR, and the importance of its comparison with the AAD in his reasoning, Mr Matthews' conclusion must be regarded as one which could not reasonably have been reached, so that we must allow the appeal (see Finance Act 1994, section 16(4)). We are satisfied, after hearing the evidence, that there was nothing improper about the consignment, that neither the goods nor the vehicle should have been seized and that, when they were in fact seized, they should have been restored without payment.
7. We cannot ourselves direct the restoration of the goods and the remission, or the repayment, of the restoration fee; we can do no more than direct a further review. We accordingly direct that a further review shall be conducted, to be concluded within 6 weeks of the release of this decision by an officer other than Mr Matthews, who shall take into account our findings of fact, and that as soon as the review has been concluded its result shall be communicated to both of the appellants and the tribunal.
8. We do not think it appropriate that we make any direction for costs in the appellants' favour. Had the Commissioners' concerns, which were initially quite proper, been dealt with openly and helpfully from the outset it seems to us quite possible the goods and vehicle would have been restored long ago and that this appeal would have been unnecessary.

COLIN BISHOPP

CHAIRMAN

Release date:

MAN/04/8037 & 8038