United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2004/E00726.html
Cite as: [2004] UKVAT(Excise) E726, [2004] UKVAT(Excise) E00726

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Miss Michelle Paula Shiers v Customs and Excise [2004] UKVAT(Excise) E00726 (27 May 2004)

EXCISE DUTY — importation by appellant and one other of 14,380 cigarettes — Customs refusal to restore car used to transport cigarettes — trading in appellant's absence that cigarettes not imported for own use — non-restoration of car not unreasonable — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

MISS MICHELLE PAULA SHIERS Appellant

- and -

THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents

Tribunal: Mr J D Demack (Chairman)

Mr J P M Denny (Member)

Sitting in public in Manchester on 31 March 2004

The Appellant did not appear and was not represented

Mr J Gray, of counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

DECISION

On 26 May 2002, the appellant, Miss Michelle Paula Shiers, returned to the UK from the continent in her Renault Laguna car arriving at Eastern Docks, Dover, early in the morning. She had 3 passengers, Paul Waldron, Lee Andrew Worthington, and Anthony John Gibson. Mr Gibson is a minor and took no part in later events. Customs officers who stopped the car found that Miss Shiers and Mr Waldron were importing 14,380 cigarettes, 4½ litres of wine and 5 litres of beer. Mr Worthington was found to be importing 1800 Silk Cut cigarettes for the purchase of which he produced a receipt. He was allowed to retain his cigarettes and he too then played no further part in events.

The Customs officers who dealt with Miss Shiers and Mr Waldron were not satisfied that the cigarettes they were importing were for 'their own use' and seized them as liable to forfeiture. They also seized the car.

Miss Shiers initially appealed against the seizure of both cigarettes and car, but later abandoned her appeal against seizure of the cigarettes. Customs refused to restore the car, both at first instance and on review. And it is against the decision on review, given by letter of 10 December 2002, that Miss Shiers now appeals.

When the case was called on for hearing, Miss Shiers was not present, nor was she represented. As we knew of no reason for her non-attendance and a telephone call to her home number went unanswered, on the application of Mr J Gray, counsel for Customs, we determined to proceed in her absence.

The evidence presented to us by Mr Gray consisted of a bundle of copy documents which included witness statements by Mr T A Skynner and Mr N J Bushell (interviewing officers), Mr G Crouch (the review officer) and Mr G Dolan (a Customs officer dealing with policy matters) to none of which objection had been raised.

Mr Gray submitted that Customs decision not to restore Miss Shiers' car was perfectly reasonable because:

1) her importation of cigarettes and that of Mr Waldron had been truly commercial: they had been imported for profit;

2) further, and in the alternative, there was serious doubt whether EU duty had been paid on the cigarettes; and

3) yet further, and also in the alternative, the quantity of cigarettes imported raised issues of credibility and inconsistency on the part of Miss Shiers and Mr Waldron so that Customs' decision not to offer restoration of her car was both reasonable and proportionate.

To deal with those submissions, we then turn to the review letter. In it Mr Crouch, the review officer, rehearsed the legislation which he was required to consider. We may summarise it for the benefit of Miss Shiers. 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 their seizure. Miss Shiers did not so appeal so that both her 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 behave 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 may allow as appeal against a Customs decision only if they have behaved unreasonably including disproportionately. It is those provisions of which Miss Shiers seeks to take advantage.

Customs allegation that it was highly probable that EU duty on the cigarettes had not been paid was essentially based on two facts. First, that Miss Shiers and Mr Waldron were unable to produce any receipts for their excise goods purchase; and, secondly, that in interview Mr Waldron claimed that he and Miss Shiers had paid £14 per 200 sleeve of cigarettes in France, whereas the duty paid price in that country was between £19 and £20 per sleeve. Further, both were unable to say in interview how many cigarettes they had bought, how much they had paid for them, and their accounts of where and how the purchase had taken place differed in interview.

Also in interview, Miss Shiers explained that from her work as a shop assistant she had a weekly income that varied between £70 and £150. She gave her weekly expenditure as £10 board and lodging to her mother, and £50 per week for a car. From that information, Customs observed that in some weeks she had a surplus of but £10 per week to cover all her other expenses so that the likelihood of her being able to finance her excise purchases from savings kept in a tin, (that being her explanation), was extremely remote.

Miss Shiers admitted having made 3 trips to the continent in the previous 6 months, but claimed to have purchased no excise goods on any of those trips. Her claim in that behalf was challenged by Customs.

Customs also relied on a statement in interview by Mr Waldron that he expected his cigarette purchase to last him 'a month' as stretching consumption rates beyond the bounds of credibility since, assuming the cigarettes were divided equally between him and Miss Shiers, it would have meant his smoking 220 cigarettes a day.

Customs have satisfied us on the balance of probabilities, i.e. if that was more likely than not, that Mr Waldron and Miss Shiers were importing the cigarettes for commercial purposes. In those circumstances, it was not unreasonable of Customs to refuse to restore Miss Shiers' car to her. We dismiss her appeal

DAVID DEMACK

CHAIRMAN

Release date:

MAN/03/8017