United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00721.html
Cite as: [2004] UKVAT(Excise) E721, [2004] UKVAT(Excise) E00721

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Alec and Lorraine Weatherby v Customs and Excise [2004] UKVAT(Excise) E00721 (07 May 2004)

EXCISE DUTY — Importation by appellants of 32,740 cigarettes claimed to be for own use — restoration refused for various reasons — whether non-restoration unreasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

ALEC AND LORRAINE WEATHERBY Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr J D Demack (Chairman)

Sitting in public in Manchester on 31 March 2004

The appellants did not appear and were not represented

Mr J Gray of counsel instructed by the Solicitor for the Customs and Excise fro the respondents

DECISION

Mr Alec Weatherby and Mrs Lorraine Weatherby, his wife, appeal against a decision of Customs and Excise by letter of 7 November 2002 refusing to restore to them cigarettes seized in the following circumstances.

On 11 September 2002 the two returned to the UK from a week's holiday in Majorca. They brought with them 32,740 cigarettes. On landing at Manchester Airport they were stopped by Customs officers. Mr Weatherby told them that he had 100 cartons of cigarettes (i.e. 20,000). He had in fact 163 cartons and 140 loose cigarettes. Mr Weatherby claimed that he had bought the cigarettes for personal consumption using money taken for the purpose; he smoked 30 to 40 cigarettes a day, and his wife 25 to 30 a day. He said he was a self-employed car dealer earning £20,000 a year with savings of over £50,000. Mr Weatherby also said he had travelled to Greece the previous Christmas but had "not brought many" cigarettes home with him. He had also been to Benidorm in the previous 12 months, but said he did not buy any cigarettes when there.

Customs were not satisfied that the cigarettes were for the travellers' own use, and seized them as liable to forfeiture. They appealed against seizure, but on 28 August 2003 the magistrates' court dismissed their appeal. Consequently, the cigarettes were condemned as forfeit so that the property in them passed to the Crown.

Mr and Mrs Weatherby also appealed against Customs refusal to restore the cigarettes to them. Customs initial decision was given in the letter of 7 November 2002. And whilst Mr and Mrs Weatherby invited Customs to review that decision, no review was carried out within the statutory time limit of 45 days, so that the decision of 7 November 2002 became the deemed decision on review for the purposes of the appeal.

The travellers failed to attend the hearing and, as we knew of no good reason for that failure, we agreed to deal with the appeal in their absence.

All we know of their case is the reason they initially gave for appealing, namely, "the cigarettes were for our joint use and were believed to be approximately one year's supply. There was no intention to sell any of the items seized."

Mr and Mrs Weatherby claimed to take advantage of European Community legislation which permits travellers from one EU country to another to import into the latter excise goods purchased duty paid in the former which are for own use and are personally transported. Own use in this context includes gifts.

Notwithstanding that Mr and Mrs Weatherby's cigarettes were condemned as forfeit, Customs did have a discretion to restore them (see s. 152 Customs and Excise Management Act 1979). And it is relation to Customs powers in that behalf that the jurisdiction of these tribunals comes into play. The tribunals are empowered to hold that Customs refusal to restore is unreasonable or disproportionate.

But the tribunals cannot restore seized goods to travellers. As just indicated, they may only decide that Customs decision as to non-restoration is unreasonable or disproportionate, and direct that Customs carry out a further review of their decision not to restore.

Customs maintained that Mr and Mrs Weatherby's goods were not for own so that they concluded that they were held or to be used for commercial purposes. They relied on the following factors for their conclusion:

Mr Weatherby had misled Customs in claiming to have only 100 cartons of cigarettes when he in fact had 163 cartons and 140 loose cigarettes;

the quantity of cigarettes imported was "inconsistent with goods bought back previously" and with the travellers' stated consumption rates (By the words in quotation marks we understand Customs to mean that they did not accept that the travellers imported few or no cigarettes when returning from their two trips abroad in the previous twelve months);

Mr Weatherby claimed that the cigarettes would last 12 months when they would have lasted 18 months at the travellers' stated consumption rates;

the cigarettes were 10.23 the guide level for one traveller and 5.11 the level for two;

the goods would last the travellers over 12 months and it was doubtful that they would have facilities to prevent them from going stale;

although Mr Weatherby stated that he was self-employed checks by Customs with the Inland Revenue showed that body to have no tax record for him; and

the travellers provided no evidence of income or savings.

Dealing with those reasons in numerical order, we are in no doubt that in relation to the first – Mr Weatherby's declaration of goods to Customs - he sought to mislead the officers. That militigated against restoration of the goods. Since Mr and Mrs Weatherby did not attend the hearing, we had no opportunity to consider their claims not to have imported excise goods on returning from their two previous continental trips. In view of their declared smoking habits, we do not consider customs view that they probably imported cigarettes on both occasions unreasonable. Nor do we consider Customs statement that the cigarettes should have lasted Mr and Mrs Weatherby 18 months, and not the 12 months they claimed, as unreasonable. Coupled with that reason is that of the tobacco going stale – again a factor pointing to earlier importations having occurred, but their existence having been denied. That the number of cigarettes imported substantially exceeded the statutory guideline is fact, and needs no comment from us. The remaining two matters – Mr Weatherby's employment status and the lack of evidence as to income and savings – could have been dealt with had Mr and Mrs Weatherby attended the hearing. As it is, we can only proceed on the basis that Customs behaved reasonably in considering that both factors indicated against restoration the cigarettes.

The jurisdiction of these tribunals is restricted to holding that Customs decision as to non-restoration is unreasonable in the sense that they have taken into account something they should have ignored, have ignored something they should have considered, or that the decision as a whole is one no reasonable body of Commissioners could have reached.

Customs have proved to our satisfaction that Mr and Mrs Weatherby did not import the cigarettes for their own use; and that they therefore held them or they were to be used for commercial purposes.

We are unable to hold that Customs decision as to non-restoration was unreasonable in any of the senses we have mentioned, nor was it disproportionate. Consequently, we dismiss Mr and Mrs Weatherby's appeal.

DAVID DEMACK

CHAIRMAN

Release Date:

MAN/03/8051