United Kingdom VAT & Duties Tribunals (Excise) Decisions

McNally & Coleen McNally v Customs and Excise [2004] UKVAT(Excise) E00712 (10 May 2004)

E00712

EXCISE DUTIES — appellants intercepted carrying goods within minimum indicative limits – history of recent trip – aggregate quantities brought into country substantial – whether review officer's conclusion that importations commercial reasonable – yes – whether grounds for restoration – no – appeal dismissed

MANCHESTER TRIBUNAL CENTRE AMANDA MCNALLY & COLEEN MCNALLY Appellants - and - THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Colin Bishopp (Chairman) Mrs R Dean FCA (Member)

Sitting in public in Manchester on 2 April 2004

The Appellants appeared in person

Andrew Vinson of counsel, instructed by the Solicitor for Customs and Excise, for the Respondents.

© CROWN COPYRIGHT 2004

DECISION
1. These are the appeals, directed to be heard together, of Colleen McNally and her daughter Amanda McNally. Their appeals are against the Commissioners' refusal to restore to them various excise goods which were seized from them at Dover on 26 April 2003. In Colleen McNally's case the quantities of goods were 3160 cigarettes, 2 kilograms of hand rolling tobacco, 81 litres of wine and 11 litres of spirits and in Amanda McNally's case the goods were 3180 cigarettes and 2 kilograms of hand rolling tobacco. It will be observed by those familiar with matters of this kind that in each case the quantities were within the minimum indicative limits (that is the guidelines of reasonable quantities for personal consumption) prescribed by legislation and which the Commissioners applied at the time.
2. The appellants represented themselves at the hearing while the respondents were represented by Andrew Vinson of counsel. It was agreed that Mr Vinson would go first and we heard evidence from Richard Truscott, the officer who undertook the review of the refusal to restore which the appellants had requested, and who upheld that refusal, and from the two appellants.
3. It was quite clear that the most important factor leading to the initial seizure, to the refusal to restore and to Mr Truscott's conclusion was not the quantity of goods in the appellant's possession when they were stopped on this occasion, but the short period which had elapsed since their previous trips which, we suspect, was also the reason which led to their being intercepted. Amanda McNally had been stopped at Liverpool airport on 5 February 2003 and found to have in her possession (according to the Commissioners) 6000 cigarettes, which she was allowed to retain. On that occasion Amanda McNally was not accompanied by her mother. The two appellants were intercepted, again at Liverpool airport, on 15 March 2003. They had between them 10,000 cigarettes which, according to the intercepting officer's notes, they said would last them six months. At the time Amanda McNally claimed to smoke 20 cigarettes per day and her mother 40; at those consumption rates the cigarettes would have lasted fractionally over 5 months. The two appellants were next stopped on 26 April at Dover, about six weeks later, carrying the quantities which we have already set out.
4. One of the points which Mr Truscott made with some force was that what the appellants put forward when seeking restoration amounted to no more than a claim that the goods were for their own consumption, which was relevant to the validity of the seizure but not relevant to the question whether the goods should be restored, for which purpose exceptional circumstances needed to be made out. Mr Truscott is technically correct though we have a good deal of sympathy with appellants who are reluctant to travel back to Dover and appear in the magistrates' court in order to challenge the seizure in condemnation proceedings, and who instead pursue the apparently easier route of seeking restoration. Even so, Mr Truscott did examine the evidence available to him with a view to satisfying himself whether or not this was a commercial importation. In essence, the factor which weighed on his mind more than any other was that the quantities of cigarettes and tobacco imported by the two appellants over a short period were far in excess of their reasonable personal consumption requirements, even allowing for their claims that they would share some of the goods with their respective partners. He concluded that the probability was that some of the cigarettes were to be sold and that this was therefore to be regarded as a commercial importation. Since no reasons had been advanced why the goods should nevertheless be restored he concluded that they should not be.
5. Both of the appellants assured us as they gave their evidence that all of the goods were for their own consumption, or for that of their partners, and that none of them were to be sold, even at cost. More importantly, perhaps they challenged the accuracy of the officers' notes - of which we had copies – made when Amanda McNally was stopped on 5 February 2003 and when they were stopped together on 15 March 2003. In each case, they said, the quantities of the cigarettes they had with them had been overstated. Amanda McNally said that in February she had 800 cigarettes, and not the recorded 6000; and that in March, she and her mother had 1200 cigarettes each. They did, however concede that when they were stopped they were still suffering from the effects of alcohol consumption, and although they contended that the notes were concocted in order to inflate the quantities, they accepted that they were otherwise correct.
6. While it is true that the appellants have not signed the officers' notebooks to indicate that the notes made at the interceptions in February and March 2003 were correct, we cannot accept their evidence that these notes have been concocted. We cannot imagine any reason why an officer, having allowed a traveller to proceed with excise goods, should then deliberately inflate the quantity of goods; and no such reasons were suggested. We prefer the view that the notebooks are an accurate record and we are satisfied that the two appellants have, as Mr Truscott also concluded, imported more tobacco and cigarettes than they could reasonably consume themselves, even if they shared with their partners, in the time available.
7. That issue aside, the appellants' case was simply that the goods had been bought for their own use. They did not seek to advance any exceptional reasons justifying the restoration of the goods (although it has to be said that it is difficult to imagine what might constitute an exceptional reason for the restoration of the goods).
8. We can allow the appeal only if we are satisfied that Mr Truscott came to a conclusion at which he could not reasonably have arrived: see section 16(4) of the Finance Act 1994. In our view it is quite impossible to say that Mr Truscott could not reasonably have decided as he did. The appeal must, therefore, be dismissed.

COLIN BISHOPP

CHAIRMAN

Release date: 10 May 2004

MAN/04/8166 & 8167