United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00725.html
Cite as: [2004] UKVAT(Excise) E725, [2004] UKVAT(Excise) E00725

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David Marsh v Customs and Excise [2004] UKVAT(Excise) E00725 (27 May 2004)

EXCISE DUTY — Customs' refusal to restore 25 kilos of HRT and Austin Metro car — whether HRT appellant's property or jointly owned with co-traveller — finding that all HRT belonged to appellant — HRT not imported for own use — Custom' decision not to restore HRT and car not unreasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

DAVID MARSH Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr J D Demack (Chairman)

Mrs M C Ainsworth

Sitting in public in Manchester on 15 April 2004

The Appellant appeared in person

Mr A Vinson, of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

DECISION

On 6 December 2001, the appellant, Mr David Marsh, and a Mr Crabtree, a person Mr Marsh described in evidence as nothing more than "an acquaintance", returned to the UK from France and Belgium having made a day trip to the continent to buy excise goods. On arriving at Dover Eastern Docks in Mr Marsh's L – registered Austin Metro car, they were stopped by Customs officers and found to be importing without payment of UK excise duty:

1) 400 cigarettes

2) 15 kilos of hand rolling tobacco

3) 5.9 litres of spirits

4) 3.75 litres of wine

Customs were not satisfied that the goods were being imported for the travellers' own use, so they invited them to be interviewed. In interview, Mr Marsh said that one 7½ kilo box of tobacco was his, as was a small quantity of the wine and spirits. He said he had paid £560 for the entirety of the tobacco and produced a single receipt for that sum. He also said that he smoked 60 cigarettes a day or 10 pouches a week, and that he and his wife would smoke most of the tobacco, but he would give 4 or 5 pouches to his son and daughter. Mr Marsh added that he earned £200 per week, his wife did not work, and his son who lived with them did not contribute to the household budget. Mr Marsh also disclosed that he had travelled to the continent about 3 weeks earlier when he had gone to buy a "car part". As that was the sole reason for his earlier journey and he claimed to have had no money for excise goods on that occasion, he said he had returned with only 800 cigarettes and "a couple" of pouches of tobacco.

In interview, Mr Crabtree claimed as his the other 7½ kilo box of tobacco and the 400 cigarettes. (He wrongly described the cigarettes as Benson & Hedges; they were in fact Embassy). He said the tobacco had cost him "£280 or something", and the cigarettes £40. He disclosed his cigarette consumption as 60 – 80 cigarettes a day, and maintained that his tobacco would last 3 to 4 months. He also said that on his last previous trip to the continent, he had gone for a car part, and had returned with about 200 cigarettes. Out of his claimed income of £180 – £250 per week, Mr Crabtree admitted expenses of £120 to £140 per week, and to having no savings.

The interviewing officer was not satisfied that the travellers' goods were being imported for own use, and seized both them and the car as liable to forfeiture. Neither traveller appealed against seizure, so that goods and car were deemed condemned as forfeit. But both sought restoration of goods and the car. In relation to the car, Mr Marsh maintained that he owned it, whilst Mr Crabtree claimed to be in the process of buying it. Customs refused to entertain Mr Crabtree's claim to the car. Mr Marsh's claims for restoration were refused by letter of 19 March 2002. He required a review of the decision, but none was carried out within the statutory time limit. Consequently the letter of 19 March 2002 became the deemed decision on review.

For the benefit of Mr Marsh, we may summarise the relevant law in the following way. European Community legislation permits travellers from one EU country to another to import into that other excise goods duty paid in the country of origin which are for own use and are personally transported. Own use in this context includes goods intended as gifts. Goods falling outside that description are liable to UK excise duty on importation into the UK.

Any goods liable to UK duty on importation, and any car used to transport them, may be seized and condemned as forfeit, unless the importer successfully appeals against seizure. Mr Marsh did not so appeal so that both his goods and car were forfeited to the Crown.

Notwithstanding that a car may have been forfeited, Customs have a discretion to restore it: they have to believe reasonably and proportionately. And an aggrieved importer may appeal to these tribunals under certain provisions of the Finance Act 1994 if Customs refuse on review to restore. But the tribunal my overturn Customs decision if they have behaved unreasonably. It is those provisions of which Mr Marsh seeks to take advantage.

In their letter of 19 March 2002, Customs gave their reasons for refusing to restore the car, that being the only subject of restoration which Mr Marsh's solicitors made in a letter of 19 December 2001. Having explained that Customs policy was not to restore seized cars used for the improper importation of excise goods even on the first occasion of such use, they said that there were no exceptional circumstances warranting restoration so that it would be refused because:

1) Mr Marsh had used the car to import excise goods in excess of the guidelines contained in legislation;

2) he had had an opportunity to bring similar quantities of excise goods on his earlier visit to the continent;

3) Customs were not satisfied that Mr Marsh's income supported the quantity of purchases he had made;

4) there were inconsistencies in Mr Marsh's version of events, particularly in relation to the brand of cigarettes being imported, which failed to satisfy Customs that the goods were for personal use.

We can conveniently deal with point 4 first. It will be recalled that in interview Mr Crabtree claimed the 400 cigarettes seized as his, but wrongly described them as Benson & Hedges. In contrast, Mr Marsh made no claim to the cigarettes. Yet before us, he maintained that they were his, justifying his claim by saying that he smoked Embassy cigarettes. That was just one element of his evidence that caused us to doubt its overall veracity. Another element was a claim that half the tobacco imported belonged to Mr Crabtree when all the evidence pointed to that gentleman having gone along 'for the ride' and having bought nothing. Mr Marsh claimed that Mr Crabtree was drunk throughout the journey and presented to Customs as an incoherent, comatose individual. But in his replies in interview, Mr Crabtree answered all the questions put to him clearly and concisely. Mr Crabtree did not give evidence to us, so that, in so far as his part in events is concerned, we can only rely on the record of interview. On that basis, Customs have satisfied us on the balance of probabilities that the whole of the tobacco seized belonged to Mr Marsh.

In relation to point 2, Mr Marsh produced an advertisement from a local newspaper which he claimed to have inserted. It was undated and it related to the sale of a car. Mr Marsh claimed that the proceeds of sale of the car were the source of his funds to buy tobacco on his December 2001 trip. Whether or not that was the case, we find it unnecessary to decide. Even it if were so, he still had an opportunity to import excise goods on his earlier visit to the continent, and we consider it most unlikely that he failed to take advantage of it.

Point 1 is fact and needs no further comment. Point 3 must be read in the context of our having found that Mr Marsh imported the whole of the 15 kilos of tobacco. His purchase represented approaching three weeks' earnings and could therefore justifiably be described as commercial in quantity.

The Commissioners have satisfied us on the balance of probabilities that the excise goods Mr Marsh was importing were not for own use. Consequently, their decision not to restore Mr Marsh's car was not unreasonable nor was it disproportionate. We dismiss his appeal.

DAVID DEMACK

CHAIRMAN

Release Date:

MAN/03/8099